Conclusion -
Having seen each witness give evidence, in my view all witnesses gave their evidence in an honest, clear and forthright manner and to the best of their knowledge and recollection. The evidence of Ms Wood is largely accepted. From time to time her evidence showed examples of stress-related circumstances for example, where she had requested copies of complaints made about her to Mrs Green, a request that had been repeatedly refused by the respondent, the applicant became upset during cross examination. Mr McCorry, in cross-examination from time to time, appeared to frighten Ms Wood. The Commission was asked to reject the evidence in relation to the improvement notice as issued by Mr Powell an inspector of WorkSafe. The Commission notes I have clear confidence in Mr Powell’s evidence which was clearly given regarding the improvement notice which traversed the often complex area of bullying in the workplace. The evidence of Ms Tuppley was also clear and concise and was accepted by the Commission. The evidence of Ms Ireland too is largely accepted with the exception of her evidence relating to whether the applicant had seen the letters of complaint relating to the first investigation. The evidence from the applicant was she sought those letters of complaint from Ms Ireland both in writing and orally, an aspect of evidence denied by Ms Ireland. I find the applicant’s version of events to more likely be correct. The Commission notes that the views of Mr McCorry were largely relied upon by Ms Ireland in the giving of her evidence.
Findings -
At the outset I have been asked by the respondent’s representative Mr McCorry to make a finding regarding the improvement notice issued against the respondent. The submission to the Commission by the respondent is that the improvement notice was improperly issued; and was issued in an excess of power therefore, should be completely disregarded so far as this matter is concerned.
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The Commission has considered relevant submissions and correspondence including:
the correspondence from WorkSafe dated 24 August 2010 to the respondent as attached to improvement notice 70023759;
the correspondence from Ms Lyhne regarding the review of improvement notice 70023759 dated 6 October 2010;
the correspondence from Mr McCorry to Ms Lyhne regarding what he considers the making of ‘a statement that is demonstrably false and further, made you appear incompetent’ (dated 18 October 2010);
email correspondence from Mr McCorry to Mr Powell dated 15 December 2010 asserting that Mr Powell's email to Ms Robinson seeking from her the names and contact details of all board members drawing the following response. Note, the underlining in the following reproduction has been inserted by the Commission:
Dear Mr Powell
I refer to your email to Ms Robinson, the text of which I reproduce below.
I am getting really sick and tired of your incompetence and abuse of power.
The powers under the Act conferred by paragraph 43(1)(k) are qualified by the phrase ‘in accordance with subsections (1b) and (1c)’ which means you have to be in the workplace in question before you can interview anyone. You are not entitled to do it over the phone. Get your arse down to Albany if you want to interview anyone.
Furthermore you have failed to disclose the nature of the matter about which you are inquiring.
All inquiries in relation to any matter involving RCNC should be directed to me at first instance.
Correspondence from Mr Powell providing commentary about the respondent’s investigation into the complaint about Ms Wood dated 16 December 2010; and
Finally, correspondence from Mr McCorry to Ms Lyhne, dated 30 December 2010, complaining about the conduct of Mr Powell of WorkSafe, in particular his failure to put ‘his questions in writing and address them to me.’
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The Commission has had regard for the OSH Act, pt VI - Improvement and prohibition notices, div 1 – Issue of notices by inspector. Of particular relevance is s 48:
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Where an inspector is of the opinion that any person –
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is contravening any provision of this Act; or
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has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated,
the inspector may issue to the person an improvement notice requiring the person to remedy the contravention or likely contravention or the matters or activities occasioning the contravention or likely contravention.
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An improvement notice shall –
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state that the inspector is of the opinion that the person –
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is contravening a provision of this Act; or
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has contravened a provision of this Act in circumstances that make it
likely that the contravention will continue or be repeated;
and
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state reasonable grounds for forming that opinion; and
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specify the provision of this Act in respect of which that opinion is held; and
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specify the time before which the person is required, to remedy the contravention or likely contravention or the matters or activities occasioning the contravention or likely contravention; and
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contain a brief summary of how the right to have the notice reviewed, given by sections 51 and 51A, may be exercised.
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The powers of an inspector pursuant to the OSH Act are particularly broad. In particular:
s 43 Powers of inspectors
(1) An inspector may, for the purposes of this Act —
…
(k) in accordance with subsections (1b) and (1c), interview any person who the inspector has reasonable grounds to believe —
(i) is, or was at any time during the preceding 3 years —
(I) an employee working at a workplace; or
(II) an employee occupying residential premises mentioned in section 23G(2),
in relation to which the inspector is inquiring; or
(ii) was at such a workplace or such residential premises at a time that is relevant to a matter about which the inspector is inquiring; or
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may otherwise be able to provide information relevant to a matter about which the inspector is inquiring;
…
(m) require any person to state his or her name and address;
(n) require the employer or any person who works at a workplace to render such assistance to the inspector as the inspector considers necessary for the performance of his or her functions under this Act;
(o) exercise such other powers as may be conferred on him or her by the regulations or as may be necessary for the performance of his or her functions under this Act.
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The Commission has had regard for Mr McCorry’s submission to the Commission that the improvement notice was improperly issued by Mr Powell. The Commission finds the improvement notice was in fact properly issued to the extent that is necessary for the purposes of these proceedings and further pursuant to the powers of s 48 of the OSH Act having regard for:
the provisions of s 48 of the OSH Act;
the provisions of s 23K of the OSH Act:
23K. Duty to inform employee who reports hazard or injury
(1) This section applies where an employer receives from an employee a report of a kind described in section 20(2)(d).
(2) The employer must, within a reasonable time after receiving the report –
(a) investigate the matter that has been reported and determine the action, if any, that the employer intends to take in respect of the matter; and
(b) notify the employee of the determination so made.
(3) If an employer contravenes subsection (2), the employer commits an offence.
….
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The Commission considers:
the actual improvement notice, the letter referred to, as issued by Mr Powell (WorkSafe 70023759) (exhibit R2) and the attached documents including the Commission for Occupational Safety and Health Code of practice on Violence, aggression and bullying at work, 2010;
the evidence of Mr Powell, the WorkSafe inspector;
the request from the respondent for a review of the improvement notice (exhibit A4) and associated correspondence written on behalf of the respondent by Mr McCorry on 29 August 2010; and
the correspondence from Ms Lyhne in carrying out a review of the improvement notice dated 6 October 2010 (exhibit A3)
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Furthermore, in making my finding with respect to the power of an inspector in this case Mr Powell to issue an improvement notice, the Commission refers to pt VI - Improvement and prohibition notices, in particular s 48 as the relevant section of the OSH Act from which an inspector draws power for the purposes of issuing improvement notices pursuant to the OSH Act.
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Having regard to the aforementioned excerpts of s 43 of the OSH Act it is clear to the Commission that the power resides for an inspector to interview any person, whether it be over the phone, or in person, subject to s 43 of the OSH Act. To suggest, in the manner in which Mr McCorry did, that Mr Powell needed to come down to Albany, was disrespectful of the statutory role held by occupational health and safety inspectors in this state. The Commission finds the power does not extend to contacting the respondent’s advisor as was directed by Mr McCorry. Furthermore, to suggest in the manner in which Mr McCorry did that Mr Powell needed to come down to Albany was offensive at best and ignored the provisions of s 43 of the OSH Act.
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The applicant submitted that the Commission should not rely on the board minutes of 7, 9, 15 and 23 September 2010 (exhibit R1, tabs 31, 32, 33 and 38) or to the lack of any reference in them to the WorkSafe improvement notice received by the respondent on 27 August 2010 or the request for a review of that notice dated 29 August 2010. Applying the rule in Browne and Dunn the respondent’s then chairperson, Ms Ireland attended the meetings and gave evidence of what occurred. The Commission, in making its decision, has had no regard or drawn an adverse inference about the reliability of the board minutes of the meetings of 7, 9, 15 and 23 September 2010.
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The applicant submitted that the decision by the respondent to terminate the applicant was unconstitutional given that the right for the respondent to hold an extraordinary board meeting has generally been removed from the constitution. Furthermore, the applicant submitted a number of the board meetings were inquorate and meetings held between 23 September and 3 December 2010 were exclusively the conduct of Mr McCorry and Ms Ireland. The Commission has no evidence to suggest that the latter was the case, in other words, to rely on such an assertion is hearsay. In examining the constitution of the respondent, the Commission is of the view that, although unusual, decisions are able to be made by the board after the event.
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The applicant sought the inclusion of a long service leave benefit that she would have received if her employment had continued. The respondent submitted the applicant relied on the LSL Act as the basis of such an entitlement. At the time of the applicant's termination she had completed six years and nine months of continuous service. The Commission finds long service leave entitlements for employees covered by the award are those applying to State government wages employees, long service leave entitlements thereby prescribed by WAIRC General Order 763 of 1982 (66 WAIG 319). The Commission finds there is currently no long service leave due to the applicant for a period of service where the employee has been paid as a casual.
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The Commission finds that the respondent had carried out an improper investigation into the applicant's actions in that the investigation was narrow, more than one of the complaints were solicited by the respondent and therefore could not be relied upon. To suggest that there was no other reasonable option but to terminate the applicant’s employment was in the Commission’s view unreasonable. It is noted by the Commission if it was necessary for the safety and welfare of other employees to remove the applicant from the workplace rather than employ the applicant as was done on an occasional basis during the four months leading up to the applicant’s termination.
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The second investigation was carried out contrary to the advice of WorkSafe, their recommendation being that the investigations ought be carried out concurrently. The Commission’s view is that the respondent’s assertion was that the applicant failed to cooperate in that investigation and thereby primarily breached her contract of service.
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It is clear to the Commission that the applicant made herself available for the first investigation and that by the time the second investigation took place:
the applicant had already been asked to show just cause as to why she ought not be dismissed;
the aforementioned was withdrawn on 14 July 2010;
the Commission finds the invitation to be involved in the second investigation was never received either by the applicant or her counsel;
on 21 May 2010 the applicant was suspended from her duties; and
an email exchange between Mr McCorry and Ms Ireland (exhibit R1 tab 25a) was suggestive of the applicant resigning her employment.
The Commission does not accept that the applicant primarily breached her contract of service by failing to cooperate in the second investigation. The Commission’s view is that at the time the second investigation took place the respondent was moving to end the applicant’s contract of service.
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The Commission finds the respondent, at the time of the applicant’s termination, had no policy prohibiting bullying or violence in the workplace.
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