Prior to the proceedings commencing Mr Graham McCorry (Mr McCorry), agent for the respondent, raised the issue of potential bias between Ms Janelle Price (Ms Price) being the applicant’s witness in addition to seeking to act as her advocate.
The respondent submitted where a party may be self-represented the Commission recognises there can be conflict between the two roles. The procedure that is normally adopted is that witnesses are excluded from the hearing of other evidence until such time as a witness has concluded their evidence. Similarly the Commission instructs a witness not to discuss any evidence they may have given to other potential witnesses. Such instructions are integral to protect the process of the trial which is adversarial in nature. If witnesses are permitted to remain in court before giving their evidence then they may receive evidence previously unknown to them in cross-examination from other witnesses.
The Commission must rule on both the credibility of the applicant as a witness and the merit of the evidence put in or omitted by the applicant. The respondent submitted that neither the Act, nor the Legal Profession Act 2008 (WA) limits the rights of appearance of advocates who are not registered agents or practitioners. Nor is it an offence under the Legal Profession Act 2008 (WA) for a person to appear for another party providing they are not directly or indirectly paid for doing so.
An applicant is able to, without any objection from the respondent appoint any other person to be her advocate in the proceedings. The respondent submitted in such circumstances Ms Price should not be permitted to be both a witness and the advocate for the applicant.
In reply the applicant outlined she understood the differentiated role between an advocate and a witness. It was submitted that Ms Price’s witness statements and such evidence provided by her as a witness were limited to those matters addressed in her statement and such matters that may arise through cross-examination. The Commission may only consider knowledge available to the respondent up to and inclusive of the date of termination, that being 18 September 2010.
The apparent partiality of Mr McCorry is within the Commission’s power also to consider having regard for Industrial Relations Commission Regulations 2005 (WA) pt 4 and 6 (div 2, 63) to not place any restriction on an applicant's nominated agent with respect to appearing as a witness.
The applicant submitted Ms Price is neither being directly or indirectly paid by the applicant or any representative of her family as an advocate. The respondent's application should therefore be dismissed.
The Commission considered the submissions of the respondent and the applicant and considered that Ms Price would be able to act as the applicant’s advocate following the giving of her evidence having regard to equity, good conscience and the substantial merits pursuant to s 26 of the Act, recognising that Ms Price is not an agent registered pursuant to the Act.
Background
The applicant and the respondent’s advocate submitted a statement of agreed facts signed by the applicant and Mr McCorry representing the respondent:
1. The respondent operates a community centre in Albany that includes a crèche for persons using the services of the respondent.
2. The applicant was employed by the respondent as crèche supervisor from May 2003 until 18 September 2010.
3. The applicant's employment was on a permanent part time basis until November 2006, and on a casual basis of 17 hours per week from 12 October 2007 onward.
4. On 21 May 2010 the applicant was suspended from her duties on full pay.
5. Between 21 May 2010 and early June 2010 an investigation into allegations made against the applicant was carried out by Mrs Bridget Green.
6. On 1 June 2010 the applicant lodged a complaint with the respondent and requesting copies of the respondent’s Grievance Procedure and Workplace Bullying policies.
7. On or about 1 June 2010 the applicant lodged a complaint with WorkSafe WA.
8. On or about 10 June 2010 the applicant lodged with the respondent a worker’s compensation first medical certificate claiming she suffered an injury commencing on 22 March 2010 and the onset of the disability occurred on 21 May 2010.
9. On 14 June 2010 the respondent's industrial advisors wrote to the applicant acknowledging her letter dated 1 June 2010 and seeking particulars of the complaint to the benefit of insurers.
10. On 14 June 2010 the respondent held an extraordinary ordinary meeting of board members to discuss Mrs Green’s Report.
11. On 15 June 2010 the respondent wrote to the applicant requesting the applicant ‘Show Just Cause’ in writing by 18 June 2010 as to why her employment should not be terminated.
12. On 16 June 2010 the applicant's legal representative wrote to the respondent's industrial advisor advising that the applicant declined to ‘Show Just Cause’ and requesting the respondent provide full details of the alleged incidents upon which it was relying.
13. On 14 July 2010 the respondent's industrial advisor wrote to the applicant's legal representative withdrawing the applicant's requirement to ‘Show Just Cause’.
14. On 6 September 2010 the respondent’s industrial advisor provided the applicant’s legal representative with a second ‘Investigation Report’, prepared by Mr Graham McCorry.
15. The applicant's employment was terminated effective as of 18 September 2010. The applicant received such advice on 24 September 2010.
16. The applicant was paid during the period of suspension from 21 May 2010 to 18 September 2010.
17. The applicant was paid 4 weeks pay in lieu of notice.
Applicant’s Submissions
The applicant's employment was terminated on 18 September 2010 as her conduct, in the view of the respondent, had destroyed the relationship of trust and confidence. In the view of the respondent, having considered alternative options, the respondent concluded that termination was most appropriate.
The applicant submitted that any alleged conduct by the applicant failed the objective tests. In particular in Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224; 229 the Full Bench of the South Australian Commission observed in circumstances where employees were alleged to have failed to have cooperated with their employer:
An employee is entitled to both substantive and procedural fairness in respect of a dismissal. Substantive fairness will be satisfied if the grounds upon which dismissal occurs are fair grounds. Broadly speaking a dismissal will be procedurally fair if the manner or process of dismissal and the investigation leading up to the decision to dismiss is just.
The applicant submitted that the manner and the process of the dismissal were unwarranted and unfair particularly in relation to the process used by the respondent having regard to the process that had been conducted by the respondent leading up to the termination of the applicant.
On 3 May 2010 the respondent's centre manager, Ms Cate Ham (Ms Ham), held discussions with the applicant relating to her conduct. The discussions were initiated without prior notice and without the offer of a support person. The meeting was later minuted by Ms Ham. On 5 May 2010 the applicant was directed in writing to meet with the respondent’s board members on 10 May 2010 for both issue resolution and a performance appraisal. On 10 May 2010 the minutes of the 3 May 2010 meeting were produced for the applicant’s immediate response without prior notice or perusal. During the course of the meeting the applicant was not made aware of any written allegations against her.
On 21 May 2010 the respondent’s board convened and decided to stand the applicant down as a result of some written complaints about the applicant, allegations which were denied by the applicant. The substance, nature and particulars of these allegations were known to the respondent but were not provided to the applicant. The applicant was stood down from the workplace that same afternoon. The bullying incidents alleged by other employees occurred in early 2009.
Relevant to the issues concerned is that the applicant worked together with the inquiry as directed by the respondent however as earlier indicated was not provided with:
the elements of the allegations; nor
the copies of the complaints that had been made against the applicant; nor
the respondent’s grievance policies and procedures; nor
the terms of reference, nor the scope of the inquiry.
At no stage was the applicant invited to provide witnesses to answer the allegations.
There were six crèche employees under the supervision of the applicant however only three were nominated by the respondent to participate in the investigation. Of the two complainants, one was on maternity leave who was asked by the respondent to submit a complaint and to participate in the inquiry.
The applicant submitted the matter in 2009 could be not relied upon because the delay in investigating such a matter as per Smith v Penrhos College [2002] WAIRC 04854; [2002] 82 WAIG 654 [39]:
In a case where allegations of misconduct are involved, it is important for an employer to act promptly, lest it be said that the employer has condoned the conduct of the employee.
On 1 June 2010 the applicant raised with Ms Ireland an issue of alleged bullying of a furtive nature by the centre manager Ms Ham and those matters were referred by Ms Ireland to Mr McCorry. The applicant submitted, even though she had been stood down from the workplace she continued to inquire about the allegations against her, a request which was repeatedly denied on the grounds of needing to protect other employees.
On 14 June 2010 the applicant received a letter in relation to her complaint against Ms Ham. That correspondence was from Mr McCorry and stated:
Dear Mrs Wood
Re: Rainbow Coast Neighbourhood Centre Inc
I act for Rainbow Coast Neighbourhood Centre Inc (RCNC) and I refer to your letter to Mrs Karen Ireland of 1 June 2010.
It is my understanding that you have been provided with details of the substance of the complainants that have been made against you. Contrary to your assertion in paragraph two of your letter, in the absence of formal legal proceedings, you have no entitlement to copies or the specifics of the complaints lodged if this would disclose the identity of the persons who made the complaints. The investigation being conducted is administrative in nature and the principles of natural justice – which includes procedural fairness – are not applicable in such circumstances.
You will be advised of the findings of the investigation when it is completed and you will have the right to dispute the correctness of the findings.
In relation to your complaint against Ms Ham, this will be investigated in due course.
I am advised that on 10 June 2010 a Workers Compensation First Medical Certificate was lodged by you. The certificate asserts that the injury occurred on 22 March 2010, that you were allegedly bullied by your boss on that date and that the onset of the complaint occurred on 21 May 2010.
For the benefit of the RCNC insurers can you please provide specifics of the following to RCNC: –
At what time and what place did the alleged bullying on 22 March 2010 occur?
What words, gestures or other conduct is said to constitute the alleged bullying?
Were there any witnesses to the alleged bullying and if so what are the identities of such witnesses?
What did you say or do in response to the conduct said to constitute the alleged bullying?
What is the explanation for the delay between the date of the alleged bullying (22 March 2010) and the experience of the onset of the effects of the alleged bullying (21 May 2010)?
What is the explanation for the delay between the date of the alleged bullying/or experience of its effects and the seeking of medical treatment?
What is the explanation for the delay between the date of the alleged bullying (22 March 2010) and the lodging of the complaint about the alleged bullying (1 June 2010)?
You also need to provide a completed worker’s compensation claim form which will be sent to you separately.
Yours faithfully
Graham McCorry
14 June, 2010
(exhibit A11 tab 13)
The applicant submitted that the chairperson of the respondent misled the board in that she did not inform the board there were allegations against Ms Ham. On 15 June 2010 the applicant was informed in writing that the allegations made against her in relation to incidents of bullying and harassment in the workplace had been supported by her own admissions and supporting witness statements. The respondent was notified of an investigation by WorkSafe into alleged bullying by Ms Ham.
In British Home Stores Ltd v Burchell (1978) IRLR 379, 380 approved in C v Quality Pacific Management Pty Ltd (1993) 73 WAIG 988, 997 it was noted that:
What the Tribunal have to decide every time is broadly expressed whether the employer … entertained a reasonable suspicion amounting to a belief in the guilt of the employee of the misconduct at the time … First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think that the employer at this stage in which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.
The applicant submitted that the respondent was unable by way of fairness or management to manage the process fairly and some board members expressed the view that information was being withheld. They felt deceived.
Mr McCorry wrote to the applicant’s representative. The applicant submitted she sought legal representation during this period and on 14 July 2010 received by way of her legal representative correspondence from Mr McCorry representing the respondent. The correspondence withdrew the request that the applicant be required to show cause why her employment should not be terminated until the complaint made by the applicant was fully investigated. The advice from Mr McCorry was that he would be conducting the investigation (exhibit R1 tab 19).
The applicant on 14 July 2010 was directed by the respondent's advocate to respond to a two page extract of the first report prepared by Mrs Green in relation to the allegations made against the applicant. On 10 August 2010 a response to those questions was submitted by the applicant, a response which the respondent denies ever having been received.
Regardless, the respondent corresponded by email with Mr McCorry on 23 August 2010 during which exchange Mr McCorry makes the following comment:
I am hoping my letter to the lawyer will encourage him to advise her to resign as an alternative to termination and if she does that then the matter will be resolved without any further action needed. If she doesn’t then you will have to bite the bullet. I will provide a full report for the Board if it becomes necessary.
(exhibit R1 tab 25a)
Moore J said in Wadey v YMCA Canberra [1996] IRCA 568, 12 November 1996, that an employee has a right to know the nature of the allegations being made and have an opportunity to defend him or herself:
In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee’s conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.
The applicant submitted that the purpose and intent of the respondent was to raise grounds for dismissal as far back as 28 April 2010 or, alternatively, in the absence of there being sufficient grounds established, precipitate a constructive dismissal from that date forward. Furthermore the applicant submitted it was never intended by the respondent to allow the applicant to offer any meaningful defence.
On 24 August 2010 WorkSafe issued in accordance with the Occupational Safety and Health Act 1984 (WA)(the OSH Act) an improvement notice number 70023759 directing the respondent, by 30 September 2010 to:
Investigate the allegations of bullying against Ms Wood and Ms Ham. The terms of reference of the investigation should include all persons who work for Ms Wood and employee perceptions of the management skills of Ms Wood and Ms Ham.
The investigation should also consider the timing of the complaints against Ms Wood.
(exhibit A11 tab 20)
The applicant submitted that at the board meeting of 27 August 2010 the respondent did not discuss the WorkSafe improvement notice. At the same meeting it was announced by Mr McCorry that he had found no case against Ms Ham without having conducted any form of investigation.
In Portilla v BHP Billiton Iron Ore Pty Ltd [2005] WAIRC 2604; [2005] 85 WAIG 3441 [166] it is stated:
The dismissal of an employee may be unfair if one employee is dismissed for misconduct when another employee guilty of similar or the same misconduct and without other mitigating features to differentiate, is not dismissed (see CFMEU v BHP Billiton Iron Ore Pty Ltd (FB) (op cit) at page 3796 per Sharkey P and Coleman CC). This inconsistent treatment of employees can constitute unfairness. If an employee is treated so inconsistently that, on an objective consideration of the matter, he/she ought to be and feel aggrieved, then the dismissal may be unfair.
On 30 August 2010 the respondent lodged a Form 4 pursuant to the OSH Actseeking a review of the improvement notice, a review that was subsequently upheld on 6 October 2010. There was an amendment to the compliance date extending that date to 1 December 2010.
The applicant submitted that a further investigation report prepared by Mr McCorry on 6 September 2010 was not dated. Further, on 9 and 15 September 2010 the respondent discussed the termination of the applicant's employment. The conduct of concern at that stage was outlined as ‘bullying allegations by three members of staff’. The termination was determined upon those grounds.
The respondent’s board minutes demonstrate that the applicant's previous record of positive behaviour was not considered. Furthermore, minutes demonstrate that alternative options were not at all discussed or explored. The applicant submitted that she was notified of her termination with no prior notice expressing the respondent’s view that the relationship had broken down with no opportunity to respond to that particular claim.
On November 2010 the respondent contended that the dismissal was justified in that the applicant had failed to participate in an investigation into allegations that she had bullied other employees. The applicant submitted this assertion to be demonstrably untrue and that regardless of whether or not there was any truth to the allegations the respondent had a bona fide belief that there was a genuine allegation which as an employer the respondent was bound to investigate. The applicant had made a complaint to WorkSafe alleging that her manager Ms Ham had bullied her with the result that there had been in a breakdown in the employee employer relationship which the applicant submitted entitled the respondent to dismiss the applicant without verbal or written warning.
The applicant submitted it is an offence to attempt to prohibit someone from making a legitimate or indeed any complaint to WorkSafe. An assessment of the subject of the actions of the respondent will determine that there was no valid reason for the termination; the termination was both impulsive and flawed.
Furthermore the applicant submitted by law she was entitled to procedural fairness, but by the respondent's own admission they had no intention of applying such process. The final objective test for determining whether the respondent has abused its lawful right to terminate the contract of employment is whether the employee has been afforded a fair go all round, the Undercliffe test, Miles v The Federated Miscellaneous Workers' Union of Western Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385. The applicant submitted she did not receive anything resembling a fair go all round and further submitted her dismissal was unfair, harsh oppressive and unreasonable. The applicant is seeking the maximum compensation that the Commission can award in her favour.
