The applicant submitted the decision to terminate was unconstitutional for the reasons that:
the constitution of the board does not refer in any part to the term extraordinary meeting
and the term extraordinary has generally been removed;
notwithstanding the extraordinary meetings of the board constituted special general meetings as referred to in part 6C of the constitution for the following reasons:
the meetings were called to deal with the specific matter which was not ordinarily the business of the centre or otherwise a matter set aside from the ordinary business of the centre;
the minutes of these meetings were not moved or seconded at ordinary board or management committee meetings; e.g. the 3 December 2010 minutes record minutes from previous meeting 27 August 2010;
and the minutes held between those dates being 7, 15 and 23 September 2010 were therefore differentiated in accord with the intent of pt 6C;
under these conditions certain extraordinary meetings were unconstitutional as a quorum as set out in pt 6E was not present;
on 15 September 2010 a quorum of six was required; there were only five present; and
The applicant asserts that the decision was harsh, oppressive and unfair as she was exposed to an unfair process on, but not limited to the dates of 15 and 23 September 2010.
The applicant also asserts that the decision was harsh, oppressive and unfair as the respondent has not demonstrated a credible understanding of its constitutional obligations.
The applicant denies any claim of an ex-poste ratification of the respondent's defence of the proceedings for the reasons that:
there were no ordinary, extraordinary or otherwise special meetings held between 23 September and 3 December 2010;
the applicant's Form 2 was filed on 22 October 2010;
the respondents Form 5 was filed on 3 November 2010;
the board did not convene to discuss the particulars of the application or the response;
consequently the content of the respondent’s Form 5 was exclusively the construct of Mr Graham McCorry and/or Ms Ireland; and
the respondent has not produced any evidence to support a claim of ex-poste ratification, and the Commission may draw an inference that the substance of the claim may remain unknown to the board.
The applicant asserts that the respondent’s defence in the proceedings therefore has no standing.
The respondent submitted the applicant to be a person who did not appreciate how inappropriate her behaviour was viewed by others. On a number of occasions, as a supervisor, she had caused fear and apprehension in other staff. As an example, the applicant had, in 2009 threatened to ‘king hit’ someone, to cause bodily harm in a particularly cowardly manner. The respondent submitted that while it was appreciated the applicant's behaviour on that occasion was not intended by the applicant to frighten people, the fact that it was uttered at all will colour the perceptions of those who did hear about it.
The respondent commissioned an independent inquiry to be carried out by Ms Green into harassment and other incidents by the applicant in 2010. The applicant was suspended on full pay while the investigation was conducted. The respondent requested the applicant show cause why she should continue to be employed.
The applicant lodged a complaint of bullying against her supervisor and the respondent commissioned a further and different independent investigation into that complaint sometime later. In relation to that particular complaint the applicant refused to cooperate with the investigation. It is the respondent’s view that the refusal to cooperate was the fault of the applicant's solicitor however the applicant is bound by the acts or omissions of her solicitor and is taken to have been knowingly involved in the refusal failure to cooperate. The respondent submitted that an employee's failure to cooperate in an investigation carried on by the employer into a serious complaint lodged by that employee is a fundamental breach of the employee’s contract of service. The Court of Appeal in Murray Irrigation Limited v Balsdon [2006] NSWCA 253 considered the observation of Heron J in Associated Dominion Assurance Society Pty Ltd v Andrew & Haraldson (1949) 49 SR (NSW) 351, 357 where he said:
a duty lies upon an employee in general terms to give information to his employer such as is within the scope of his employment and which relates to the mutual interest of employer and employee. If an employee is requested at a proper time and in a reasonable manner to state to his employer facts concerning the employee’s own actions performed as an employee, provided that these relate to the master’s business, the employee is bound, generally speaking, to make such disclosure.
The respondent accepted the independent investigator’s findings that the applicant's allegations against a supervisor were not substantiated but drew no conclusions as to whether the applicant had made a false or malicious complaint in order to deflect the inquiry into her behaviour. The respondent however was entitled to take into consideration the failure by the applicant to cooperate or provide an adequate explanation into the decision by the respondent to terminate her employment.
The respondent submitted:
that they had carried out a proper consideration of what action to take in respect of the applicant’s actions;
they had concluded the applicant had not demonstrated an acceptance of the impact of her behaviour on others;
other employees were fearful of the applicant's return to the workplace without a resolution of the applicant's behavioural problems;
that changes in the applicant's behaviour would be necessary for the safety and welfare of other employees, there was little chance of the applicant altering behaviour;
the applicant did not accept the inappropriateness of her activities;
the applicant did not recognise the respondent had lost trust and confidence in the applicant because of her failure to cooperate in the investigation into a serious complaint made against another employee.
The respondent submitted there was no other reasonable option but to terminate the applicant's employment and in the circumstances reinstatement was completely impracticable. The applicant was paid for four months and was not required to work while the investigations were carried out notwithstanding that she was employed during that period of time on an occasional basis. At the time of the applicant's termination she was paid four weeks in lieu of notice even though she was entitled to one hour’s pay in lieu of notice as a casual employee.
The respondent submitted the termination of the applicant's employment was not at all unfair in the circumstances. The applicant had failed, in the alternative to take proper steps to mitigate any loss or damage arising from the termination of her employment, in the further alternative she had not suffered any loss or damage arising from the termination of employment.
The respondent submitted that the applicant’s submissions were misconceived as the applicant was not terminated for misconduct. Condonation was not considered to be relevant by the respondent as the basis for termination of the employment and any suspected misconduct was investigated as quickly as practicable following the incident.
The submission in relation to suspected disparity in treatment between the applicant and Ms Ham is also misconceived. The respondent submitted that the applicant’s suspension from duties was implemented to protect employees from possible retribution, something that was not applicable to the complaint made by the applicant.
The respondent submitted the application should be dismissed.
