[2010] FWA 4797 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Kelly Anne Biggs-Venz
v
Ozcare
(U2009/5183)
SENIOR DEPUTY PRESIDENT RICHARDS |
BRISBANE, 8 JULY 2010 |
Summary – alleged unfair dismissal – performance and conduct issues - conduct claims do not provide valid reason on their own - support person request.
[1] The Applicant in this matter, Ms Kelly Biggs-Venz, lodged an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the FW Act”) on 14 December 2009. Her employer was Ozcare (“the Respondent”), which is a publicly funded organisation that provides non-clinical support and “living skills” for people in the community with moderate to severe mental health issues.
[2] There is no contest that the Respondent is a national system employer for the purposes of the FW Act.
[3] The Applicant performed duties as an Assistant Coordinator with the Ozcare Mackay Mental Health Service from 10 December 2007 until she was dismissed from her employment on 30 November 2009. The Applicant was therefore employed for a period of time slightly less than 2 years on this particular contract of employment.
[4] In her letter of termination, dated the same day, the Respondent contended that the dismissal followed a number of performance and conduct issues which had been in evidence since March 2008. The background to the decision to terminate the Applicant's employment was provided in correspondence directed to the Applicant on 30 November 2009 by Ms Robyn Grove, State Manager, Human Resources. The content of Ms Grove’s correspondence is reflected in the following summary information concerning the formal disciplinary and performance management steps taken by the Respondent in relation to the Applicant. This summary is supplemented by the evidence as led in these proceedings, which was extensive.
THE APPLICANT’S POSITION
[5] The Applicant’s position required her to work within the support arrangements for persons recovering from mental health conditions. This might include working with clinicians, and carers and others who are helping the Respondent’s clients along a recovery pathway and towards an independent lifestyle. 1
[6] It seems as though encouraging independence is an important theme in the recovery strategy.
[7] Typical duties of an Assistant Coordinator might include assisting a client with:
[8] It also appears that the formal job description required the following skills and competencies:
DISCIPLINARY ACTIONS BY RESPONDENT
[9] The Respondent contended that the Applicant had been subject to a number of disciplinary actions over the two year period of her employment.
The First Disciplinary Action
[10] The first of these actions formally occurred on 17 March 2008, comprising a first warning, and concerned an incident when advocacy organisation, Mackay Advocacy Inc., complained about the Applicant's unprofessional conduct in front of a client.
[11] The issue concerned the Applicant voicing a view in front of a client (an external agency) that a privacy policy distributed by that agency (which appears to have been a standard government publication) was “crap” and should be re-written. 3
[12] The Applicant signed a record of interview in relation to this warning and admitted to the conduct as alleged. 4 The Applicant’s written response included the following statement:
“I apologise for the lack of professional conduct and will ensure that it will not happen again. [...] I did not intend to discredit Mackay Advocacy Inc. or any of its staff, but realise now that I should not have used that language or said anything about Nina re-writing it. I also should not have said anything of this nature in front of a client.” 5
[13] The Applicant herself further contended that the first disciplinary action denied her procedural fairness in so far as she was denied access to relevant documentation and was unable to respond to the allegations put to her.
[14] In the disciplinary interview the Applicant contended that she was not shown the actual email complaint that was filed about her conduct and therefore was unable to respond fully to the allegations. 6
[15] The Applicant’s evidence was that she had commented at the meeting with her client and the external agency words to the effect that “This Privacy Policy is crap […]. It’s too difficult to understand.” 7
[16] Whilst acknowledging that she should not have acted in this way, the Applicant’s evidence was that she remained in disagreement with the Respondent’s policies in regard to privacy information. 8
The Second Disciplinary Action - First Warning
[17] The second disciplinary action occurred on 16 June 2008 when the Applicant is said to have commenced services “outside the scope of her role” in relation to a client; failed to follow a direction from a Coordinator as to the services to be extended to the client; and assisted a client to write a letter of complaint which was not part of the Coordinator’s approved recovery plan.
[18] This action resulted in a first warning. The full scope of the various allegations was put to the Applicant in correspondence directed to her on 16 May 2008.
[19] The relevant incidents concerned a claim that the Applicant allegedly sought to involve a client in the Respondent’s organised Friday activities notwithstanding that Ms Andrew, the then (Acting) Coordinator (in Ms O’Brien’s absence), had stated the client was not to do so until the client’s mental health diagnosis had been ascertained by the appropriate procedure to ensure the safety of participants. 9
[20] The Applicant admitted that Ms O’Brien, in February 2008, had stated to her that she had reservations about involving the client in any organised activities until the client’s progress had been monitored sufficiently. This is because the evaluation carried out on the client by the Applicant had revealed some potential for conflict with participants in the Friday activities. 10
[21] The Applicant further admitted the issue of the client’s acceptance at the Friday activities was raised again in the next month, when Ms Andrew stated to her that there was insufficient information about the client’s diagnosis and that they required a consent form to allow contact with the client’s mental health case worker.
[22] The Applicant stated that the client would not consent to access to the mental health case worker and that the diagnosis as to the client’s mental health was incomplete on the forms held by the Respondent. Ms Andrew’s evidence was that her advice to not allow the client to attend the Friday activities was reasonable application of the organisation’s risk management policies given the incomplete assessment of the client’s capacity to interact positively with other clients. 11
[23] The Applicant conceded that Ms Andrew had told her that at that point she was uncomfortable with the client joining any organised activities.
[24] Notwithstanding this, the Applicant was of the view that the client should have been allowed to participate in the organised Friday activities, and she had given the client an expectation that would be the case. 12
[25] The Applicant was advised in a staff meeting that the client was not able to attend the Friday activities. Ms Andrew gave evidence that the Applicant became upset (on 1 April 2008) when informed of this, she started to cry, left the meeting, and stayed in the toilets for 10-15 minutes and cried. It was said that the Applicant stated that she did not want to be the one to let the client know that he could not be involved in the Friday activities. 13
[26] Notwithstanding this, the Applicant claimed that the reason why she believed that that the client could attend the activities is because there must have been a discussion at some point in time (which she could not identify or detail at all) that meant that Ms O’Brien had changed her initial view (as set out above). There is further discussion of this matter below.
[27] These allegations principally concerned the Applicant not accepting directions from her Coordinator, which resulted in over-servicing of particular clients, and the Applicant’s failure to maintain professional boundaries.
[28] In replying in writing to the allegation, the Applicant stated that she may have been told not to permit the client to attend the Respondent's organised activities, but if “that is the case then I did not understand or remember her saying it as I most definitely would not have mentioned anything about [the client] attending the Friday outing [...] if I had remembered that she had directed that [the client] not attend Friday groups [...].” 14
[29] The Applicant went on to contend that the Respondent had “victimised” the client by not permitting him to attend the Friday activities. 15
[30] The Coordinator at the time, Ms O’Brien, had written to the Applicant the previous month and directed her to not over-service the client. 16 The Applicant responded in detail in relation to this claim.17
[31] This same warning was in the further context of an incident in which the Applicant had assisted the client in writing a letter of complaint about barking dogs to householders in his street. The Respondent contended this was outside its recommended strategies and was not to be condoned. The client had apparently claimed he wished to hit the dogs with a hammer to silence them, and had possession of a hammer at his residence. 18
[32] The Applicant conceded during the proceedings she had been advised that such actions might not assist the recovery strategies. 19
[33] Over the course of the proceedings, the Applicant nonetheless provided transport for this client to the Mackay Advocacy Inc where she arranged for an advocate to assist the client in writing to the householders. The Applicant did so on the basis that she did not understand why Ms O’Brien had contended that such a strategy might not assist in the client’s recovery. 20
[34] The Applicant construed this to mean (under cross - examination) that it would not support the client’s recovery if she (the Applicant) assisted the client in writing to the householders. 21
[35] The Applicant reconciled her understanding of the issue that Ms O’Brien had raised with her with her subsequent conduct by contending that if the client was provided professional assistance in writing the letter this might overcome Ms O’Brien’s concerns. 22
[36] The Applicant did not contend that she sought to clarify her approach in this regard with either Ms O’Brien or Ms Andrew in order to ensure it conformed with their direction.
[37] In the end, she was of the view that her “compassion” for the client drove her to assist him to write the letter as he was fixated on the issue of the dogs barking in his neighbourhood. 23 That is, the Applicant was not driven by any recovery strategy as such but by her subjective response to the situation at hand.
[38] It was further alleged at this time that the Applicant completed the evaluation of the client referred to above on her own, when such an assessment, in accordance with the stipulated protocols should have been carried out by two persons. The Applicant did not dispute her error in this regard. 24 The only qualifying comment I make in this regard is that the Applicant derived her understanding in this regard from another person’s comments and not from the quality framework that forms part of the Respondent’s policies. The Applicant stated that she should have derived her knowledge of the protocol from this source and not from a more informal source.25
[39] The Respondent did not issue a warning on 16 June 2008 in respect of all the matters it originally raised with the Applicant in the previous month. It only found that three of those allegations warranted disciplinary action. 26 Ms Jodie Turner’s (Senior Human Resource Officer) findings which were given to the Applicant on 16 June 2008 and which constituted the first warning represented a consideration of the Applicant’s perspective on the incidents and issues27 against the wider body of allegations.
The Third Disciplinary Action - Final Warning
[40] The third disciplinary action, comprising a final warning, occurred on 8 April 2009 and concerned a failure to approve a hand over upon return from annual leave; refusing a direction from a Coordinator to reduce services to a particular client and re-allocate time to another client; swearing in a meeting (by stating that “I am f...ing sick of this”) and the Respondent being in receipt of two complaints by advocacy organisations concerning unprofessional conduct.
[41] The conduct in this regard had allegedly occurred between late March and early April 2010. 28
[42] The Applicant conceded in her letter of reply to the Respondent’s allegations that she spent too much of her time with one client. 29
[43] It appears that the Applicant made this comment to Ms O’Brien in relation to her (“the Applicant”) performance and over-servicing of a client. The client, it appears had been serviced for 18 months and was still requiring or being provided with an extensive proportion of the Applicant’s time each week. 30
[44] Ms O’Brien gave evidence that she had lost track by this time of the occasions on which she had to performance manage the Applicant and was becoming frustrated by the Applicant’s apparent difficulties in understanding any communications directed to her. 31
[45] Ms O’Brien’s further viva voce evidence was that the lack of support from her Assistant Coordinators was a reason for her decision to leave her then position as Coordinator with the Respondent. 32
[46] The Applicant provided a reply in writing to the Respondent's claims on 23 March 2009 33 before such time as the warning was formally extended to her.
[47] The details of the above issues were disclosed to the Applicant on each occasion, the Respondent submits. In light of the range of issues that sat behind the above warnings, a series of show cause letters were also issued to the Applicant.
[48] The Applicant responded to these allegations in detailed correspondence. 34
[49] The Applicant admitted to there having been a tense exchanges (in March 2009) which revolved around issues of excessive levels of servicing for particular clients, support for the Support Workers and the perceived demand upon Ms O’Brien of having to performance manage the Applicant. It was in the context of this discussion that the Applicant states that she said “I am f…ing sick of this”. 35 The Applicant put her own version of the relevant events to the Respondent’s HR Department in writing, complaining that Ms O’Brien had been at fault.36
[50] This incident led to the Applicant being stood down. 37
[51] The Applicant returned to work on 8 April 2009 and was issued with a final warning.
[52] Thereafter the Applicant was supervised (and performance managed) by Ms Gretchen Smith who had taken over the position of Coordinator temporarily as Ms O’Brien had left the organisation. 38 The Applicant’s on-going supervision was by Ms Hita, who replaced Ms O’Brien on a permanent basis.
[53] In relation to the third disciplinary action cited above, the Applicant maintained that the HR Department did not properly investigate the claims made against her and relied on incorrect information to reach its conclusions and reprimand her.
Fourth Disciplinary Action
[54] A further complaint was received from an external body, the Village Life Retirement Centre on 27 August 2009. 39 This incident (which occurred on 26 August 2009) is discussed below in detail and it is enough to say at this point that the Applicant was said to have assisted a client to make a complaint about meals provided for in the Centre. This resulted in some tension in the relationship between the Applicant and the Centre Manager at the time. The file note of the complaint reads in part:
“Both still very upset with the manner in which they had been spoken to and the fact [the client] had been uncomfortable in the situation. Stated when Kelly was speaking at them she had been confused and upset. She then started speaking about things that had happened with previous managers and could not reorientate to time and place.” 40
[55] The Respondent (this time Ms Hita, the new Coordinator) gave evidence that the Applicant, when interviewed, had stated that the Centre Manager had been aggressive towards her and so “she had responded in kind and used an abrupt manner when dealing with him.” 41 The Respondent contended that the Applicant should have better conducted herself at that time and used more deft social skills in dealing with the situation (such as discussing the matter and not being confrontational).42
[56] The Applicant is said to have conceded that she had become annoyed with the Centre Manager at the time and should have remained professional. 43
[57] The interview by the Respondent of the complainants indicated that the Applicant had “demanded” the complaint form and “insisted” they should be accessible to all clients and otherwise acted rudely. 44
[58] The Applicant provided a full written response to the allegations made against her at this. It was in this correspondence that the Applicant conceded becoming:
“a bit annoyed with” the manager “after he got aggressive with me, which I acknowledged to Ms Hita that I should not have done, as I realise I should remain professional at all times, and show no emotion during discussions of this kind.”
[59] The Applicant went on to offer an apology and meet with the Centre Manager in question, but she did not concede that she had ever stated to Ms Hita that she was aggressive in kind or rude. 45
[60] Whilst she made this apology, the Applicant contends that the evidence relied upon by the Respondent was not well founded, and that she was denied any opportunity to respond to the allegations.
[61] This latter proposition was advanced notwithstanding that the Applicant provided a full written response to the allegations as set out above and there does not appear to be any matters of any substance that she was not able to address.
[62] The Applicant’s version of events is as follows. As stated above, the incident arose from a client’s dissatisfaction with the meals she was receiving from the Village Life Retirement Centre.
[63] During cross examination, the Applicant gave evidence that she had perceived that the food on the client’s plate was rather “skimpy” and she suggested to the client that she (the client) might wish to make a complaint. That is, the complaint was not initiated by the client. 46
[64] The Applicant said that she supported the client in making a complaint and assisted the client in obtaining a complaint form from the Centre Manager of the facility. There followed a discussion about the issues and what the client’s meal preferences were.
[65] The Applicant claims that she was passive throughout the process by which the complaint was articulated and put in writing and discussed with the Centre Manager. The Centre Manager of the facility on the Applicants’ evidence, however, expressed annoyance at her presence throughout the process and did not appear to accept her explanation as to why she was in attendance. 47
[66] The Applicant conceded that she had herself been annoyed during the process with the manager’s “attack” on her but that this might not have been expressly discernible in anything she said or how she conducted herself. 48 But she did not concede she had been aggressive.49
[67] The Applicant also rejected that she had spoken over the resident during the complaints process or was aggressive and caused other difficulties at the time. 50 She also rejected any suggestion that the client had been confused and upset at the time.51 The Applicant also put her own version of events to the Respondent (on 12 September 2009).52
[68] The Applicant did concede, however, that over the course of the incident that she:
“[does] not deny [...] that I failed to demonstrate high level interpersonal skills in the management of this situation.” 53
[69] Notwithstanding this, with a complaint having been made to the Respondent by the manager of Village Life Retirement Centre the Applicant offered to apologise for her conduct in becoming annoyed. 54
[70] The Applicant subsequently fell into dispute with her employer over the ensuing disciplinary process which she felt mischaracterised her conduct in the incident at the Village Life Retirement Centre and did not give recognition to her perspective on the incident. 55 As stated above, the Applicant set her concerns in writing to the Respondent.56
SHOW CAUSE CORRESPONDENCE
[71] On 28 September 2009 57 the Applicant was given a show cause letter from the Respondent. That correspondence, which is detailed, cited various issues including that:
[72] The Applicant replied to the Respondent’s correspondence of 28 September 2009
[73] A further show cause letter was issued on 20 October 2009 to provide the Applicant with a further opportunity to respond to the show cause letter of 28 September 2009.
PERFORMANCE MANAGEMENT
[74] The Applicant was provided with three performance management plans over the course of her employment.
[75] The first of these was put in place on 1 December 2008. Two others were put in place on 16 April 2009 and 22 October 2009. The plans included an action strategy in relation to building relationships with other team members and being involved in a collaborative plan, amongst a wide range of other broad operational matters (such as planning and management skills, familiarity with relevant guidelines and service providers, maintaining diaries etc). These actions plans were designed to address deficiencies in the Applicant’s skills profile, especially in relation to her poor management of time and ability to make decisions independently.
[76] Ms Hita’s supervision notes provide further detail of the range of matters. 58
[77] It appears that the Applicant had been performance managed in relation to time management skills from 2008 (under Ms O’Brien’s supervision) and thereafter continuously by Ms Smith and Ms Hita. According to Ms Hita, the Applicant’s ability to manage her time and allocate appropriate priorities to the full range of her duties (including clients) and therefore to attend to the other duties required of her position, such as administrative functions (in relation to form completions and file updating), providing support to the Support Workers by way of providing them, for example, with advice on mental recovery strategies, and promoting the Respondent’s mental health care programme amongst stakeholders.
[78] Ms Hita discovered that the Applicant's presentational skills were not sufficient to promote the program amongst stakeholders 59, her time management skills required improvement60 and that her administrative skills were weak.
[79] Ms Hita provided an account of the Applicant's administrative skills, which went unchallenged in essence:
“The following is an example of working with Kelly. One job that had to be done was to get the team here up to date with the QMS changes around the requirements about client files, because the files in Mackay weren’t set up properly with regards to QMS. The QMS highlighted the name and number of forms that had to be in a clients file. The team had been given Friday afternoons in the office without any client contact to get the files up to date, but this had been going on for some time and the updates just weren’t happening. Therefore, I directed that we would take one full day and get all files up to date. So we printed out a whole lot of the forms needed and all workers had a list of the forms needed and what order those forms went into the files. It was then a matter of going through the file and looking to see if the required forms were in there and if not, adding them in. It doesn’t sound hard and it really is not. I had done five or six and Kelly was still struggling with her first at which point I became frustrated I asked why it was taking her so long. Because I had mentioned about how much time she was taking to do it she decided that her time would be better spent doing the stickers for the files which she proceeded to do. In the end she had still not completed the stickers for all client files, which was a very small number.” 61
[80] The Applicant herself also conceded that the Support Workers had complained that she (along with her other Assistant Coordinator) were failing to provide them with adequate support. The Applicant stated that she often did not have the confidence to advise them or else suffered from what appear to be short term memory lapses resulting from earlier health issues she had experienced. 62
[81] The Applicant gave the following evidence:
“It was part of the position as Assistant Coordinators to help them [the Support Workers], but at the time, for quite a period of time, I lacked confidence, and could not seem to “think” clearly, or able to give much help. I often experienced my mind going blank.” 63
[82] The Applicant indicated that she had no experience in case management of mental health clients in a community setting and never purported to have such experience to the Respondent at the time she made an application for the position. 64
[83] The Respondent contended that the Applicant was provided with a range of training whilst in its employment (about which there is further discussion below) and possessed a bachelors level degree and ordinarily should have been expected to be capable of performing the suite of relevant duties. The Applicant’s performance deficiencies, the Respondent complained, were the result of innate limitations in relation to the kind of work in which she was involved. 65
[84] Following the final performance plan being issued, the Applicant herself proposed to meet with Ms Jodie Turner to discuss the relevant matters after her (the Applicant's) return from leave on 20 November 2009.
[85] On 16 November 2009 the Applicant took it upon herself to attend personally at the Brisbane headquarters of the Respondent and sought an interview without advanced warning from Chief Executive Officer of Ozcare. No meeting was possible and the Applicant declined to meet a human resources representative at the time.
[86] The Respondent subsequently arranged a meeting between the Applicant, Ms Turner and Ms Robyn Grove, State Human Resources Manager, for 19 November 2009. The Applicant, though initially agreeing, subsequently postponed the meeting and indicated she did not wish to meet with Ms Turner.
[87] Ms Robyn Grove, telephoned the Applicant on 24 November 2009 and indicated that the Respondent was still seeking to have her show cause why her employment should not be terminated (in the context of the above mentioned show cause correspondence).
APPLICANT’S FURTHER CONTENTIONS
[88] The Applicant’s defence against the Respondent’s claims need to be further contextualised. The Applicant made a number of claims about the conduct of various parties which she contends are relevant to the decision to terminate her employment.
[89] Broadly, the Applicant claims she was treated inappropriately by Ms O’Brien who was rude to her and made unfounded comments about her conduct and performance. The Applicant also claims that her conduct and performance had been pre-judged by the Respondent, which also failed to provide her with an opportunity to respond to the allegations it put to her.
[90] The Applicant also contends that she was bullied, harassed and demeaned by Ms O’Brien. The Applicant contended that she was too fearful of reporting Ms O’Brien’s conduct and when she did her complaint was ignored by the Respondent’s Human Resources team in preference to the Respondent's concerns with her conduct.
[91] The Applicant claimed that Ms O’Brien’s conduct had been observed by other others – Ms Karen Andrew, a former employee of the Respondent whose employment was terminated by the Respondent 66 and Ms Lachelle Uzcateguigaymon, a former employee. Both Ms Andrew and the Applicant contend that Ms O’Brien’s conduct was such that they were unable to perform their duties effectively.
[92] Ms Andrew contended that she recalled a meeting at which Ms O’Brien sat an angle that caused her to have her back to the Applicant and acted in a manner to dismiss the Applicant's contribution to the meeting’s subject matter. Ms Andrew’s claimed this conduct was “very abusive”. 67 She also claimed that Ms O’Brien on “many occasions [...] acted angrily towards both Kelly and I at meetings and would often speak in derogatory way to Kelly” (sic).68 Ms Andrew gave an example of a meeting at which she alleged that Ms O’Brien has “abused” her and the Applicant for not completing forms on clients appropriately.69
[93] Ms Uzcateguigaymon also gave two examples of undated incidents in which Ms O’Brien was said to have cut the Applicant off whilst she was talking or otherwise appeared annoyed or agitated with the Applicant and “lashed out” at her for making suggestions. 70
[94] Ms Andrew also claimed that Ms O’Brien would “verbally abuse” her and the Applicant in front of other staff or otherwise “yell” at her for not performing a task adequately. 71 On other occasions Ms Andrew and the Applicant, it was said, would be “belittled” by Ms O’Brien.72 Ms O’Brien was also said to have “reacted viciously” to the Applicant and have “verbally abused” her when she had forgotten an unspecified item or task.73 There is some further discussion of the Applicant’s difficulties with retention below.
[95] Ms Andrew also gave evidence that the Respondent had never provided the necessary training to perform the duties of an Assistant Coordinator. 74 Her own evidence was she had received training in relation to maintaining professional boundaries, mental health first aid, indigenous training, and post-recovery strategies when a client was self-sufficient. Ms Andrew at the time was in the course of completing her Bachelor of Social Work, which included mental health issues (but not recovery strategies).
[96] The Applicant herself undertook a wide range of training programs, of varying duration, over the course of her period of employment. These are set out in the Respondent’s material. These courses relate to a variety of organisation and management type skills to mental health issues. 75 The Applicant’s training also extended to how to disengage clients.76 The Applicant claimed these courses were not at all times relevant to her position.77
[97] However, under further cross examination, the Applicant did reveal that she had participated in a two day training course on recovering from mental health issues, which afforded her access to mental health recovery strategies.
[98] The Applicant also claimed she had no case management experience and never purported to posses that she had such experience. The Applicant contended that this was known to the Respondent at the time she was recruited. Her argument, as a consequence, was that she was not able to meet the requirements of the job for which she was recruited, this was known to the Respondent at the time, and the Respondent did not subsequently act to provide training to build her skill deficiency in this regard.
[99] The Applicant made various claims that Ms O’Brien’s conduct itself revealed an absence of appreciation of professional boundaries, and gave some examples of this. 78 She also claimed that Ms O’Brien held her responsible for the long hours which she worked, because she received insufficient help from her.79
[100] The Applicant also conceded that the Support Workers had complained that she (along with the other Assistant Coordinator) were failing to provide them with adequate support. The Applicant stated that she often did not have the confidence to advise them or else suffered from what appeared to be short term memory lapses resulting from earlier health issues she had experienced. 80
[101] Ms O’Brien apparently demonstrated annoyance with the Applicant for reason of the complaint and made comments about her in front of the complainants, which appears to have exacerbated the state of the relationship between Ms O’Brien and the Applicant. 81 The Applicant described this as being “akin to torture” and that she believed that she was “going crazy” and was doing “whatever [she] could just to survive”.82 The Applicant did not approach the HR staff because she believed that they would not believe her.83
[102] The Applicant cited other examples of occasions when Ms O’Brien had reacted negatively to her and had spoken in strong terms during a meeting in which efforts were being made to resolve a request by Ozcare for funds to be redirected. 84
[103] The Applicant also claimed that whilst she was being performance managed her performance had improved and she had responded to the requirements to manage her time more effectively by using appropriate tools. 85 This was despite Ms O’Brien claiming the opposite was the case.
[104] The Applicant thereafter took an opportunity whilst participating in a training session in Brisbane on 10 November 2009 to visit the CEO of Ozcare, as was recounted above. 86 The Applicant claimed that she acted politely and did not make any demands to see the CEO.87
[105] The Applicant conceded that whilst she had agreed to meet with Ms Turner (from the HR team) in the context of the letter of 20 October 2009 (as discussed above) she did withdraw her offer to meet with her (Ms Turner). The reason for this was that “I thought about it over the weekend and how I wasn’t very happy with the way Jodie Turner “spoke” to me in the first couple of letters, I thought more and more about asking if Robyn Grove could attend the meeting.” 88 The reference to the letters is a reference to the correspondence relating to the ongoing disciplinary concerns and show cause letters.
[106] The Respondent conceded to the Applicant’s request and she met with Ms Grove of the Respondent’s HR team instead of Ms Turner.
[107] The Applicant responded negatively to the interview with Ms Grove, contending that references to the seriousness of the circumstances and the show cause letters were threatening and “forceful\emotional” 89 and intended the exact a resignation from her.90
[108] The Applicant was subsequently contacted and informed that the Respondent was not satisfied that she had demonstrated reasons why her employment should not be terminated. The Applicant was offered another opportunity to meet the HR staff on Monday 16 November 2009 but declined the opportunity. 91 The Applicant was handed the letter of termination as summarised above on Monday 30 November 2009 and her employment ceased that day.92
THE TERMINATION
[109] The Applicant’s employment was terminated on 30 November 2009. The general reason for the dismissal as put to the Applicant as follows:
“[…] Ozcare does not believe your conduct is consistent with Ozcare policies and procedures. Ozcare Code of Conduct requires all employees to perform their duties in a professional manner and to carry out all or any lawful duties as directed and Ozcare considers you have not met these requirements.” 93
[110] More particularly, the Respondent submitted that the Applicant was unable or unwilling to perform the duties for which she was employed, as set out above. 94
CONSIDERATION
[111] Section 387 of the FW Act reads as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
Section 387(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
[112] Caution is required when examining a range of discrete incidents that unfold over a period of time. If the time period if compacted, the incidents might leave the impression of having greater intensity and impact than they did in reality. The range of incidents must be properly characterised within the relevant time frame and an effort should be made to avoid exaggeration about their effect. This is an important approach for ensuring that subsequent considerations extend the appropriate weight to relevant matters.
[113] In that context, it nonetheless appears to me that the Applicant struggled to exercise the necessary judgment required of her position (in relation to appreciating professional boundaries, including managing subjective responses to client circumstances and the appropriate role for other stakeholders, such as clinicians, in the overall support for a client) and otherwise failed to exhibit the necessary administrative and presentational skills.
[114] The Applicant, on two occasions, was the source of complaints by service providers with whom she was required to maintain productive relationships in the interests of the overall support and recovery network, which includes the clients.
[115] Both incidents indicate that the Applicant did not exercise a suitable degree of self-control or judgment in the circumstances where conflict was avoidable, and only occurred as a consequence of the particular steps taken by the Applicant.
[116] These incidents were bookends, as it were, to the period of the Applicant’s employment with the Respondent. The last incident gave evidence that the Applicant's sensitivities and judgment had not evolved sufficiently over the course of the two year period of her employment.
[117] In respect of the first incident, the Applicant admitted her conduct in referring to a privacy policy as “crap” in front of a client and a service provider was unprofessional.
[118] In respect of the second incident, the preferred approach given the importance building relationships within the network of stakeholders and the circumstances of the client, was to avoid conflict and perhaps resolve any concerns by discussion. The approach taken by the Applicant was to suggest to the client that she might want to make a complaint and assisting the client to lodge the relevant form.
[119] Over the course of the exchanges around the complaint, the Applicant conceded that she became annoyed with the Village Life Retirement Centre Manager (see above) and otherwise:
“[does] not deny [...] that I failed to demonstrate high level interpersonal skills in the management of this situation.” 95
[120] It appears from the evidence in relation to the two incidents here discussed that the Applicant herself struggled to control the perceived impact of her admitted “strong personality” on other people, but that is a skill she needed to exercise in the context if this particular job, which is heavily dependent upon cooperative interactions with other persons and organisations. 96
[121] The Applicant’s judgment, and her capacity to manage the application of services to clients, came into question for wider reasons as well.
[122] The Applicant’s conduct in having an emotional response to a refusal to permit a client to participate in an organised function appears to me to have given the Respondent further cause for concern that the Applicant lacked the necessary self disciplines that are a core part of the position she fulfilled. 97
[123] But while these incidents might have caused the Respondent to question the Applicant's judgment, I do not consider the Applicant’s conduct in relation to the above matters to have warranted the termination of her employment.
[124] The three incidents I have touched on above in relation to clients over the two years and either taken together or on their own they are not sufficiently substantive to warrant the termination of the Applicant’s employment.
[125] They are low-grade conduct issues, relatively, and whilst they do not reflect well on the Applicant and properly warrant disciplinary action, in their own right they did not impact so significantly on the employment relationship as to cause that relationship to resolve.
[126] When considered objectively and over the relevant time line, each of the incidents discussed above were manageable, in the sense that the impact on the Respondent cannot be said to have been serious or substantial.
[127] But what the incidents did demonstrate - and this is more important by far - was that when put into a wider performance context, the Applicant might not be a person who could, for the long term, develop and maintain the necessary self-discipline, professional boundaries (which includes identifying where her support role finished and a clinician should take over) and apply a dispassionate, professional perspective on clients that the Respondent required as a core feature of the mental recovery strategy.
[128] That is, the above discussed incidents became interwoven into a wider set of concerns about the Applicant’s performance of her duties, to which I will now turn.
[129] The conduct issues which have figured prominently in the disciplinary actions (set out above) were further examples of deficiencies in the Applicant's skills set and further explained why she was unable to fulfil her wider duties (such as supporting Support Workers and competing administrative tasks in a timely way).
[130] I should add at this point I have not given great weight to the Applicant's outburst (which involved the use of expletives) against Ms O’Brien as outlined above.
[131] The meeting was tense one, and Ms O’Brien’s own evidence was that she was “burned out” at that stage (owing to the lack of assistance from her two Assistant Coordinators) and that she herself had banged the desk at a point in the meeting. The strong language used by the Applicant is not to be condoned, but it was not directed abusively at Ms O’Brien, nor was it gratuitous, as it arose in a particular context.
[132] In my view, however, the evidence supports a finding that the Applicant did not develop effective time management skills over the course of her employment, which itself is indicative of other deficiencies in her skills set (as discussed above). Whilst there might have been some improvements, as Ms Hita’s evidence suggested, the Applicant nonetheless was performance managed in relation to how she allocated time for a lengthy period of her employment. This was so despite the fact that her client allocation was much smaller than a Support Worker’s allocation, and she did not appear to perform a great many of her wider duties.
[133] There are, admittedly, difficulties in evaluating exactly to what extent the Applicant misallocated her time. This is because client demands are not able to be scientifically determined and a significant measure of judgment is required. That is, competing client demands must be balanced, and the demands of a particular client must be carefully measured in the context of the relevant recovery strategy (which requires the withdrawal of service as the client moves towards independence, which is a programme objective). But these are the kinds of decisions that an Assistant Coordinator needed to make, and they are the kinds of decisions that the Applicant found perplexing or which she allowed her own subjective responses override.
[134] My views in this regard might be more constrained if the allegations made against the Applicant were only in the context of Ms O’Brien’s period of tenure as a Coordinator. But Ms Hita, Ms O’Brien’s successor as Coordinator, also experienced the same problem and worked intensively with the Applicant on the issue. 98
[135] The matter had also arisen in the Applicant’s probationary interview, and had been the subject of discussions with Ms Gretchen Smith, who was Acting Coordinator for a short period prior to Ms Hita’s arrival. 99 Ms Smith met with the Applicant and provided her some tools for dealing with the Applicant's difficulties in managing her time.100
[136] Ms Hita came to develop a dismal view of the Applicant's skills:
“In my opinion Kelly’s time management skills were very poor.”
and
“[...] she didn’t seem to have the capacity for autonomy, or thinking and problem solving - or any other sort of thing.” 101
[137] Ms Hita’s further evidence, which went unchallenged in any substantive way, was also that the Applicant was not capable of representing the Respondent for the purposes of a short presentation to an external agency, which was one of her duties and was one of the means by which she could (as an Assistant Coordinator) assist the Coordinator. 102
[138] Ms O’Brien’s evidence was that she simply expected more from a degree qualified employee who had two years of experience. 103
[139] Beyond this, the Applicant, in Ms O’Brien’s view:
[140] That is, while the Applicant might claim to have never have had the necessary skills transferred to her (and this appears to be the gist of her claims) the Respondent contended that a person with experience as a Support Worker and holding a relevant degree in Social Work, ought in the circumstances be able to acquire and develop over time sufficient skills to perform the job - which were not unduly complicated (particularly given the Applicant's description of her duties). 105
[141] As I will discuss below in relation to the warnings given to the Applicant about her performance, the Applicant’s evidence suggested she understood clearly the issue about allocating sufficient time between clients and how she should manage the withdrawal of her service with particular clients, despite the (actual or perceived) pressure to extent those services. 106
[142] After the passage of two years, I think the Respondent was entitled to discern substantial progress in the development of the Applicant's performance. But evidence of this progress remained limited. In such circumstances, the inability to demonstrate the relevant competencies and appropriate decision making skills critically compromised the employment relationship.
[143] Further to this, in my view, the inability to retain professional boundaries caused the Applicant not to apply the appropriate servicing levels to clients. This had the effect of misallocating Ozcare’s scarce (counselling) resources, exacerbating relationship issues within the organisation and not promoting the objective of building a client’s independence within the community. Importantly, given the discussion immediately above, this matter was closely related to the Applicant’s failure over time to make effective use of her time in order to perform the wider duties for which she was employed to perform.
[144] For example, writing a personal letter of complaint to householders in the street in which the client lived over a barking dogs issue (where they client had violent images of how he might address the problem) was far from a considered strategy. The Applicant was given alternative strategies, and even admitted that Ms O’Brien had told her that assisting the client to write a letter to householders in his neighbourhood would not assist recovery. But the Applicant took her own course nonetheless and transported the client to Mackay Advocacy Inc. where he was assisted in writing a letter by an advocate:
“So you took him there so that he would get a letter that would go to the neighbourhood , even though Vicki had told you, as your manager, that would not assist with his recovery? -- That’s correct.” 107
[145] The Applicant contended that by having Mackay Advocacy Inc. assist in writing the letter, this would not contravene Ms O’Brien’s advice to her. The Applicant took the view if some other person assisted the client in writing the letter then she would be acting in compliance with Ms O’Brien’s advice.
[146] This explanation is not genuine.
[147] The Applicant’s evidence demonstrates, simply, that she did not agree with Ms O’Brien’s advice :
“She said that it wasn’t recovery, but I didn’t understand how it wasn’t recovery.” 108
[148] The Applicant had reached her own view that:
“[...] to me this was an issue, you know, that he really wanted to write a letter [...].” 109
[149] The Applicant then embarked on her own course of action because of her “compassion” for the client, and not, as a consequence, a recovery strategy as she had been advised. 110
[150] The evidence suggests to me that the Applicant simply disagreed with her manager and took her own course of action, and in so doing extended services of a type and on a scale that were not recommended or compatible with the recovery model.
[151] The Applicant adopted the same approach in regard to advice she was given to not allow a client to participate in the Respondent’s organised Friday activities until such time as his behaviour had been properly monitored. In this instance, the Applicant had become aware that the client had demonstrated some anti-social behaviour in his past.
[152] Ms O’Brien had indicated that the client should not attend for the time:
“[...] Did Ms Andrew say anything to you about him attending the Friday group?---She said that she wanted a diagnosis because his diagnosis hadn't been provided on the referral form in the first place, and that she wanted something else - a consent form signed, allowing Ozcare to talk with his mental health case worker before he - yes, I agree that she wasn't comfortable in the, you know, I guess I agree that. But that's what she said, that she wanted his diagnosis on paper, on our forms, before she would approve it, and a consent form - on the consent form allowing Ozcare staff to talk with his mental health case worker. That's basically what she wanted.” 111
[153] Here the Applicant took the view that as services were being extended to the client then he should be permitted to attend the Friday activities regardless. This plainly contradicted the advice the Applicant knew she had been given:
“In think she (Vicki O’Brien) may have said about him not attending the Fridays for a while until we see how he goes, because there were a couple of risks brought up at the assessment. You know, namely spitting at clients when they’re smoking [...] Vicki was unsure about whether he should actually be with other clients who smoke until I worked with him for a while and saw how he got on. It was the same with the dog issue. You know, there were alarm bells there, things that he said [...].” 112
[154] The Applicant was unable to reconcile her admissions in this regard with her subsequent conduct (in seeking to have the Applicant participate in the Friday activity). The Applicant merely asserted that there “must have been” a discussion with Ms O’Brien at some stage that gave approval for the client to attend, but she could not provide any evidence of that meeting or when it occurred or what was said, and was uncertain if it even occurred. So far as the Respondent complained of the Applicant’s conduct in these respects, it claimed there was no such meeting at any time. 113
[155] I do not accept that the Applicant’s distress and wider conduct in relation to the refusal to allow the client access to an organisational activity was unrelated to the relationship the Applicant had built up with the client. The Applicant’s own evidence in this regard was equivocal and Ms Andrew’s evidence (which was called by the Applicant herself) was that the Applicant had broken down and cried when she was informed of the Respondent's position in a staff meeting. 114
[156] The Applicant appears plainly to me to have been acting on personal rather than professional criteria in relation to this particular client. Support person functions require a considerable deal of human empathy but nonetheless impose necessary disciplines upon the individual support worker, which is one indicator of their professionalism.
[157] Here, again, the Applicant misread her role, and the services she was to provide to a client, and failed to appreciate the professional boundaries she needed to maintain to give proper effect to her role.
[158] The fact that the Applicant may have broken down in tears in a meeting of staff when directed not to permit the client to attend the Friday activities is in itself of no moment. But in so far as it was demonstrative of an on-going inability to discern the limitation of the services to be provided to the client and at what point professional boundaries needed to curtail subjective interactions, the incident had more substantial implications.
[159] The by-product of these and other tensions between the Applicant and the Respondent over the performance of her duties (in relation to professional boundaries and time management for the main) led to the strong language used by the Applicant in the meeting of 16 March 2009.
[160] The language in itself does not provide a valid reason for the termination of the Applicant's employment (as I have pointed out above), but it evidences the decline in the relationship with her managers, who had become frustrated with the demands the Applicant made on their time. This was an issue that two of the Applicant’s supervisors gave evidence about, not just Ms O’Brien (who was alleged to have a vendetta of sorts against the Applicant).
[161] Both Ms O’Brien and Ms Hita gave evidence, some of which I have set out above, particularly in relation to performance management, that the Applicant's performance of her duties was chronically below what might reasonably have been expected over the period of her employment.
[162] In the end, in my view, the Applicant became an intolerable strain upon the resources and patience of the Respondent. The Applicant’s progress had not been sufficient by the time of the termination of her employment in view of the evidence before me it would have been reasonable for the Respondent to have reached a view that she was capable of performing the range of duties for which she was employed two years previously.
[163] Again in my view, given the range of concerns about the Applicant’s performance as an Assistant Coordinator at the time that the Applicant’s employment was terminated, the Applicant’s performance over the past two years was so wanting, that a valid reason for the termination of her employment existed.
Section 387(b) whether the person was notified of that reason
[164] I have discussed below the extent to which the Applicant could be taken to have had reasonable knowledge of the reasons for the Respondent’s decision to terminate her employment.
[165] In my view, the evidence (as largely set out above) suggests that the Applicant was informed over a long period of the range of issues and concerns that were a cause of concern to her employer, and at the time of her employment was subject to “show cause” correspondence.
[166] For all practical purposes, the Applicant must be taken to have been notified of the issues that were of on-going concern to the Applicant such that, in the end, they warranted, the termination of her employment.
Section 387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[167] The Applicant was the recipient of “show cause” correspondence and was provided an opportunity, obviously, to respond to the allegations contained therein before such time as the Applicant's employment was terminated.
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[168] The Respondent's documentation as provided to the Applicant refers to the role of a support person in meetings. There is no evidence that the Applicant ever sought or requested the role of a support person and that request was refused.
[169] The Explanatory Memorandum in relation to s.387(d) of the FW Act reads as follows:
“Clause 387 - Criteria for considering harshness etc.
1540. This clause is central to the unfair dismissal provisions as it sets out the factors FWA must take into account when considering whether a dismissal was harsh, unjust or unreasonable:
[...]
[387(d)]
- any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
[...]
1542. These factors are the same as those in subsection 652(3) of the WR Act, with the addition of paragraph 387(d). This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them. It will be one factor FWA must consider when determining whether a dismissal was unfair, having regard to all of the circumstances, including the capacity of the employee to respond to the allegations put to him or her without such a support person being present.”
[170] The Explanatory Memorandum corroborates the meaning of the plain words of s.387(d) of the FW Act in that s.387(d) only becomes a relevant consideration when an employee has made a request for a support person present but that request is refused.
[171] However, as the Explanatory Memorandum makes clear, it will be the case that in certain circumstances the capacity of an employee to respond to the allegations put to him or her in the absence of a third party support person may be an issue relevant to s.387(h) of the FW Act. For reasons of convenience only, I will make comment in relation to this matter at this juncture.
[172] Given the significant extent of the interaction (including the large volume of detailed, written correspondence) between the Applicant and the Respondent about the various performance and conduct issues, I very much doubt, even if the Applicant had been refused the assistance of a support person, that she lacked the capacity to respond to the allegations being put to her.
[173] I note further in this regard that the Applicant sought to take the matter of her performance management up personally with the Respondent’s CEO at her own initiative. This conduct does not suggest that the Applicant lacked the confidence to put her views forward by way of personal exchanges either.
Section 387(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
[174] The Applicant was performance managed (virtually) over the course of her employment with the Respondent and three such plans had been put in place. These are set out above in the discussion of the evidence. The various disciplinary actions that were undertaken by the Respondent also included the articulation of particular concerns with the performance of her duties. The Applicant faithfully replied to each of these in quite some detail and in writing.
[175] The first of the Performance Plans was put in place on 1 December 2008. The other plans were put in place on 16 April 2009 and 22 October 2009. Arguably the latter plan was not given full effect owing to the intervention of the decision to terminate the Applicant's employment, which was precipitated by other events.
[176] The Applicant at all times must have appreciated the full scale of the Respondent’s concerns with her performance, amongst other conduct related allegations.
[177] I appreciate that the Applicant contends that the Respondent never articulated with sufficient precision the exact areas in which she was to improve her performance or how this was to be done. But the evidence before me suggests all three managers invested time in the Applicant in an effort to address areas of concern, particularly so in relation to time management and, relatedly, appropriate levels of servicing for clients. 115
[178] Moreover, the Applicant’s own evidence suggests clearly that she understood the time management issue and how to withdraw from contact in order to allocate time to other clients. 116 This evidence suggests to me that the Applicant appreciated the particularity of the Respondent’s concerns.
[179] I cannot therefore conclude that the Respondent's concerns were vague or undefined and therefore did not provide a clear direction for change.
[180] In all, the evidence suggests the Applicant was warned before her dismissal about the Respondent’s concerns with her performance as an employee.
Section 387(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
[181] It was put to me that widely dispersed nature of the Respondent’s services throughout Queensland’s regional centres necessitated the role of centralised human resource personnel based in Brisbane, and that this impacted on the procedures followed in relation to the termination of the Applicant's employment. That is to say, the Respondent did not have HR staff on hand to work on a day by day basis with the Applicant. This is why the performance management and disciplinary process was heavily dependent upon formal correspondence rather than face-to-face meetings.
Section 387(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
[182] No relevant submissions were put to me in respect of this matter. The Respondent had access to human resource expertise, though it was located off-site.
Section 387(h) any other matters that FWA considers relevant
[183] I think that consideration should be given to the fact that the Applicant was recruited to assist in the delivery of a “new and developing program” of help and support for people recovering from mental health issues. 117
[184] That is, the Applicant appears to have been recruited for a new position and had to develop the skills on the run as it were. The position, so far as it related to a recovery-type journey, was not one into which the Applicant could have stepped with any experience.
[185] The conceptual underpinning to the program appears to have been somewhat novel, though the literature that forms part of the Respondent's documentation and policies is quite helpful in explaining the direction of the program and its goals, and how it differs from other programs.
[186] The Applicant appears to have struggled with her own self-confidence and to have had an expectation that she might have been able to have passively received training that would equip her for the job.
[187] To some measure, this is an appropriate expectation, given the novelty of some features of the program.
[188] An employee who has limited direct experience for a position, if recruited, should be permitted to time and patience and resources to develop their skills and competencies and familiarise themselves with the employer’s expectations.
[189] The Applicant, bar a short period of relief work, was recruited for the position with no experience in mental health recovery strategies and had no experience in the less structured environment (compared to her previous Support Worker function) in which an Assistant Coordinator must work. 118
[190] Ms O’Brien recalled the Applicant undertook a two day training course in Townsville regarding recovery strategies, and some other short duration external training was provided, but beyond that the Respondent possessed its own resources which were available to employees.
[191] The Respondent provided funds for the Applicant to improve her professional capacities by having access to external professional supervision, which allows for an employee to meet and discuss issues arising from her employment. This would extend to tensions between professional roles and subjective responses.
[192] But largely, as I have set out earlier, the Respondent took the view that the Applicant was a qualified employee at bachelor’s degree level and had worked as a social worker. As a consequence, the Respondent, or more particularly Ms O’Brien, took the view it was reasonable to assume that she had the capacities to develop within a position which was largely a support role with some networking and modest administration work by way of a week-long induction process, on-the-job experience, familiarity with the written guidelines, personal and weekly group mentoring and professional external supervision (funded by the Respondent), and by way of some external training (to the extent the Respondent could afford to provide such training).
[193] In respect of the induction process, I note that the Applicant carried out this process on two occasions, and had indicated (at the very least) that she understood the location and the content of the suite of documents and manuals and guidelines relevant to her position. 119 Ms O’Brien’s evidence was that the Applicant had the relevant materials “explained” to her.120
[194] The Applicant had a two year period of employment in which to demonstrate her competencies but showed no substantial progress (which is not to say that no improvement was evident, as Ms Hita’s evidence suggested).
[195] The difficulty with the Applicant, from Ms O’Brien’s perspective, was that she could not adapt to the new role, and became resistant to the performance management regime. Even the Applicant indicated that at a point she had stopped talking to the Ms O’Brien, and that was not a helpful state of affairs or “a positive way to deal with the situation”. 121
[196] I further note that the Applicant contended that the Respondent did not faithfully implement its own disciplinary regime in so far as it did not provide for a support person at the interview stage in relation to disciplinary actions. It appears, however, that the correspondence directed to the Applicant was predicated on the assumption that the Applicant might be accompanied by a support person. The disciplinary letter of 16 May 2008, for example, stated that the Applicant should not discuss the relevant matters with staff members or clients unless the person is “your designated support person”. 122
[197] The role of a support person forms part of the Respondent's disciplinary procedures and is cited within the applicable industrial instrument.
[198] There may have been other departures from the Respondent's own policies in relation to whether the records of interview were created and signed off by both sides. Arguably, the centralised nature of the Respondent's HR resources (which is addressed below) may explain any lapses in these regards.
[199] That said, the significant volume of correspondence that passed between the parties about the above matters demonstrates that notwithstanding some procedural lapses, if made out, it is very difficult to see this as impacting in any substantial way upon the end result (or the objective evaluation of the factual matrix as I see it).
[200] I note that I have made other comments in relation to considerations relevant to s.387(d) of the FW Act above that are comments that might have warranted consideration here, under s.387(h) of the FW Act.
CONCLUSION
[201] Section 387 of the FW Act requires that I reach a view as to whether the decision to terminate of the Applicant's employment was harsh, unjust or unreasonable.
[202] I have set out the various issues as I have found them to be made out in the evidence above.
[203] In my view, the Applicant’s performance was such that after a two year period of employment, she was unable to satisfy her employer that she possessed, or was likely to come to possess, the requisite range of skills to carry out her duties at a satisfactory level.
[204] Because of this, I am not of the view that the Applicant was dismissed from her employment on terms that could be described as being harsh, unjust or unreasonable.
[205] I therefore dismiss the Applicant's application for an unfair dismissal remedy under s.394 of the FW Act.
SENIOR DEPUTY PRESIDENT
Appearances:
Ms R Broanda of the Australian Workers’ Union - Queensland Branch
Ms M Darwin of the National Baking Industry Association for the Respondent
Hearing details:
2010.
Mackay.
June 16 and 17.
1 Witness statement of Ms Donna Hita dated 25 May 2010 at Attachment 4
2 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment 2
3 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-7 being a letter of complaint dated 10 March 2008; Witness statement of Ms Vicki O’Brien dated 20 May 2010 at Attachment VOB-10
4 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment 10; Witness statement of Ms Vicki O’Brien dated 20 May 2010 at PN 9 and Attachments VOB-7 and VOB-9
5 Witness statement of Ms Vicki O’Brien dated 20 May 2010 at Attachment VOB-9
6 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PN 51
7 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PNS 45-50
8 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PNS 46-49
9 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachments JT-12 and JT-14
10 Transcript of Proceedings dated 16 June 2010 at PN 329
11 Transcript of Proceedings dated 16 June 2010 at PNS 329 and 566
12 Transcript of Proceedings dated 16 June 2010 at PN 297 and PN 568
13 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-14; Transcript of Proceedings dated 16 June 2010 at PN 581-584; Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PN 4 and Attachment KBV- 14
14 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-15
15 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-15
16 Witness statement of Ms Vicki O’Brien dated 20 May 2010 at Attachment VOB 14
17 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-15 being a letter dated 26 May 2008
18 Witness statement of Ms Vicki O’Brien dated 20 May 2010 at Attachments VOB-3 and VOB-12
19 Transcript of Proceedings dated 16 June 2010 at PNS 285-287 and 294
20 Transcript of Proceedings dated 16 June 2010 at PNS 291-292
21 Transcript of Proceedings dated 16 June 2010 at PNS 292
22 Transcript of Proceedings dated 16 June 2010 at PN 292
23 Transcript of Proceedings dated 16 June 2010 at PN 235
24 Transcript of Proceedings dated 16 June 2010 at PNS 456, 459-450
25 Transcript of Proceedings dated 16 June 2010 at PN 459-450
26 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-16
27 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-15
28 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-17
29 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-23 (page 1)
30 Witness statement of Ms Vicki O’Brien dated 20 May 2010 at PN 29
31 Witness statement of Ms Vicki O’Brien dated 20 May 2010 at PN 30; Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachments JT-21 and JT-24; Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at Attachment KBV-27 being an email exchange between Ms O’Brien and Ms Turner dated 16 March 2010
32 Transcript of Proceedings dated 17 July 2010 at PN 1842; Witness statement of Ms Jodie Turner dated 26 May 2010 at JT-21
33 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-29
34 Witness statement of Ms Jodie Turner dated 26 May 2010 at JT-23; Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at Attachment KBV-25
35 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PN 298
36 Witness statement of Ms Jodie Turner dated 26 May 2010 at JT 23; Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at Attachment KBV-25
37 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PN 302 and Attachment KBV-27 being an email exchange between Ms O’Brien and Ms Turner dated 16 March 2010
38 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PN 323
39 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-26
40 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-26 being a file note by Ms Helen Beattie
41 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-27
42 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-27
43 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachments JT-28, JT-29 and JT-30
44 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at Attachment KBV-33
45 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-29
46 Transcript of Proceedings dated 16 June 2010 at PNS 732-733
47 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PNS 329-353
48 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PNS 360-361 and 405
49 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PNS 381-393 and Attachment KBV-33
50 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PNS 370-371
51 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PN 373
52 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PN 377
53 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-42
54 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PNS PN 362
55 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PNS 405-416
56 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at Attachment KBV-42
57 Witness statement of Ms Jodie Turner dated 26 May 2010 at Annexure 30
58 Witness statement of Ms Donna Hita dated 25 May 2010 at PN 50 and Attachments 5, 6 and 7
59 Witness statement of Ms Donna Hita dated 25 May 2010 at PN 10
60 Witness statement of Ms Donna Hita dated 25 May 2010 at PN 13
61 Witness statement of Ms Donna Hita dated 25 May 2010 at PN 49
62 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PNS 247-249
63 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PN 248
64 Transcript of Proceedings dated 16 June 2010 at PNS 880-884
65 Witness statement of Ms Vicki O’Brien dated 20 May 2010 at Attachment VOB-3; Transcript of Proceedings dated 16 June 2010 at PNS 821-876
66 Witness statement of Ms Karen Andrew dated 28 April 2010 at PN 50
67 Witness statement of Ms Karen Andrew dated 28 April 2010 at PN 13
68 Witness statement of Ms Karen Andrew dated 28 April 2010 at PN 17
69 Witness statement of Ms Karen Andrew dated 28 April 2010 at PNS 18-20
70 Statement of Ms Lachelle Uzcateguigaymon dated 30 April 2010 at PNS 4-6
71 Witness statement of Ms Karen Andrew dated 28 April 2010 at PNS 25-26
72 Witness statement of Ms Karen Andrew dated 28 April 2010 at PN 29
73 Witness statement of Ms Karen Andrew dated 28 April 2010 at PN 39
74 Witness statement of Ms Karen Andrew dated 28 April 2010 at PNS 14 and 45
75 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-3
76 Transcript of Proceedings dated 16 June 2010 at PNS 499 -506
77 Transcript of Proceedings dated 16 June 2010 at PN 870
78 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PNS 272-274
79 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PN 275; Witness statement of Ms Karen Andrew dated 28 April 2010 at PN 23
80 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PNS 247-249
81 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PN 250-1
82 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PN 253
83 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PN 254
84 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PNS 260-271
85 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PNS 315, 453-460
86 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PNS 418-419
87 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PN 424
88 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PNS 429, 431
89 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PNS 437-441, 443-445
90 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PNS 445-446
91 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PN 470
92 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-38
93 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PN 474 and Attachment KBV-50
94 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment 2
95 Witness statement of Ms Jodie Turner dated 26 May 2010 at Attachment JT-42
96 Transcript of Proceedings dated 16 June 2010 at PNS 700, 702-704
97 Transcript of Proceedings dated 16 June 2010 at PN 300
98 Witness statement of Ms Vicki O’Brien dated 20 May 2010 at PNS 13-17; Transcript of Proceedings dated 16 June 2010 at PN 107; Transcript of Proceedings dated 16 June 2010 at PN 123
99 Transcript of Proceedings dated 16 June 2010 at PN 95
100 Transcript of Proceedings dated 16 June 2010 at PN 93
101 Witness statement of Ms Donna Hita dated 25 May 2010 at PN 50
102 Witness statement of Ms Donna Hita dated 25 May 2010 at PN 10
103 Witness statement of Ms Donna Hita dated 25 May 2010 at PN 14 and Transcript of Proceedings dated 17 June 2010 at PNS 1704-1706
104 Transcript of Proceedings dated 17 June 2010 at PNS 1627-1632, 1634
105 Transcript of Proceedings dated 16 June 2010 at PN 45
106 Transcript of Proceedings dated 16 June 2010 at PNS 668-669
107 Transcript of Proceedings dated 16 June 2010 at PN 294; Transcript of Proceedings dated 16 June 2010 at PNS 285-287
108 Transcript of Proceedings dated 16 June 2010 at PN 287
109 Transcript of Proceedings dated 16 June 2010 at PN 291
110 Transcript of Proceedings dated 16 June 2010 at PN291
111 Transcript of Proceedings dated 16 June 2010 at PN 297; Transcript of Proceedings dated 16 June 2010 at PN 329
112 Transcript of Proceedings dated 16 June 2010 at PN 329
113 Transcript of Proceedings dated 16 June 2010 at PNS 353-360
114 Transcript of Proceedings dated 16 June 2010 at PN 300
115 Transcript of Proceedings dated 17 June 2010 at PN 1704
116 Transcript of Proceedings dated 16 June 2010 at PNS 668-669
117 Transcript of Proceedings dated 17 June 2010 at PN 1726
118 Transcript of Proceedings dated 16 June 2010 at PNS 883-884
119 Transcript of Proceedings dated 16 June 2010 at PNS 67-73
120 Transcript of Proceedings dated 16 June 2010 at PN 712; Transcript of Proceedings dated 17 June 2010 at PN 1629-1632
121 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at PN 245
122 Witness statement of Ms Kelly Biggs-Venz dated 30 April 2010 at Attachment KBV-13 (page 2)
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