The Commission in such matters is not to become a manager and apply personal standards of management decision making, but to consider all of the surrounding events and make a conclusion based upon the fairness or otherwise of the decision. The Commission is satisfied that there was a dismissal.
The question the Commission must consider was the employer's right to terminate the applicant exercised in a manner that was unfair. The test in matters of this nature was most famously stated in Undercliffe:
the question to be investigated is not a question as to the respective legal rights of the employer and the employee but a question whether the legal right of the employer has been exercised so harshly or oppressively against the employee as to amount to an abuse of that right.
The respondent claimed the applicant was fairly dismissed and sought the application be dismissed. Conversely, the applicant claimed she had been harshly and oppressively dismissed. If she was found to be unfairly dismissed in the first instance the applicant sought reinstatement and failing that, that she be compensated.
Having had regard for all of the evidence both written and oral, and the issues raised in this case, which were extensive, I am of the conclusion that the applicant's dismissal was, in all of the circumstances, harsh, oppressive and unfair. On all of the evidence, I have no doubt that the true working relationship between the applicant and the respondent prior to 2009 was a sound one.
A relevant consideration in the Commission’s view was that Ms Ireland agreed in evidence that she was selective with the board in excluding a selection of the applicant's correspondence dated 1 June 2010, which advised that Ms Ham had bullied her. In my view the respondent allowed the continuation of a workplace culture of abuse, bullying and intimidation in this case against the applicant. After receiving the applicant's complaints it is my view that the respondent should have addressed the nature of employee interaction at the workplace in general to ensure that all employees, including the applicant, felt safe to work free from harassment and bullying.
Where a workplace entertains a level of bullying this does not remove the responsibility of an employer to provide a safe workplace for each and every employee. In this instance instead of facing up to the matters raised by the applicant the respondent largely ignored the applicant's complaints regarding her supervisor with the exception of carrying out an investigation of a bullying complaint made by the applicant against her supervisor. That investigation was dated 5 September 2010 (exhibit R1 tab 29) when a decision had already been made by the respondent for the applicant to show just cause as to why she should not be terminated (15 June 2010). The respondent had received advice from Mr McCorry (23 August 2010) suggesting that the respondent’s correspondence to the applicant's solicitor would force a resignation from the applicant.
It became clear to the Commission that the point at which the relationship between the applicant and the respondent changed was regarding the issue involving rates of pay. In my opinion it was this matter that contributed significantly to the escalation of an inappropriate relationship between the respondent and the applicant and it would have been a far more appropriate course for the respondent to counsel the applicant if it was considered to be an incongruous activity for the supervisor of the crèche be involved in. I pause at this stage to reflect as to why an employee cannot simply request of her employer her correct rates of pay.
In making my decision the Commission has had regard for cl 7.2 of the Code of practice Violence and aggression and bullying at work 2010 provided by Mr Powell when he issued the improvement notice against the respondent:
In situations where workers complain of seemingly trivial examples of bullying behaviours, employers should be aware that this might be indicative of more complex bullying behaviours at the workplace.
The Commission finds the behaviour of the respondent over a period of time could be viewed as treating the applicant less favourably in the workplace and in a manner that could be defined in accordance with the Code of practice as bullying behaviour.
Having regard for the famous Undercliffe test it is the view of the Commission that the applicant was unfairly dismissed by the respondent.
The Commission in making its decision has given weight to the casual nature of the applicant's employment over a number of years and has taken that matter into account in assessing of the compensation for loss and injury.
It is the Commission’s view that the applicant, had she not been dismissed would have continued her employment with the respondent for a further six months prior to the birth of her second child. It is clear also given the number of years of employment the applicant has had with the respondent that arrangements were made following the birth of her first child for her return to the workplace although no evidence was led in this regard. Even though the applicant was engaged as a casual employee in the Commission’s view there was an expectation of ongoing work. The evidence is that the applicant returned to work following the birth of her first child. There was no evidence to the contrary from the respondent to suggest that the applicant would indeed not return again following the birth of the second child.
Given the circumstances, the Commission is satisfied the applicant acted reasonably in the mitigation of her loss. She sought alternative work:
as a pre-primary teacher in October at Wanslea;
at Satin and Lace in Albany in a part-time capacity; and
during her four month period of suspension in an occasional capacity with the respondent as required.
Although the applicant did not apply for any other positions her reasons for doing so are in the Commission’s view reasonable, as the applicant’s medical condition, her esteem and confidence to seek other work were affected by the actions of the respondent. The Commission is therefore satisfied the applicant has acted reasonably in her mitigation of loss and the respondent has failed to meet his onus of proof.
