1 Fair Work Act 2009 s.394—Unfair dismissal Louise v The School (U2019/6378) COMMISSIONER WILSON MELBOURNE, 1 APRIL 2020 Application for an unfair dismissal remedy. [1] Louise (a pseudonym) worked for her former employer, a Melbourne private school (referred to in this decision as The School) as a part-time laboratory assistant and was dismissed for several reasons, including trying to remove some of The School’s property without permission and that in the course of the ruckus surrounding that event, she argued with her supervisor, The School’s Head of Science and was untruthful both about the events of the day in question as well as about other matters. The School characterises those matters as misconduct, being actions, which caused significant concern for others and created a serious reputational and legal risk to The School. It alleges other matters surrounding Louise’s employment join with the first mentioned matters and are to be taken as its valid reasons for Louise’s dismissal. [2] Louise worked for The School as a part-time laboratory technician, with her first day at work being 8 March 2018. After her dismissal by The School on 17 May 2019, Louise commenced an unfair dismissal action against The School on 7 June 2019. [3] This decision concerns Louise’s application, with me finding that she was not unfairly dismissed. [4] Louise relied to a significant degree in the hearing on several grounds for a finding that her dismissal was unfair; what has been said by the employer witnesses and others who support them is wrong; she was bullied at work by a number of people, and in particular the Head of Science to whom she reported; and further, the state of her mental health is so fragile as to explain what occurred. Her closing submissions developed two further themes; the fact that she was better qualified than staff around her may have caused tension, and that her lack of comprehension of nuanced English may have influenced some of the difficulties she experienced.1 [5] The Head of Science accepts that there was a poor working relationship between all concerned, but reports in her evidence that Louise threatened her, denigrated her and 1 Applicant’s Final Submissions, 22 January 2020, [3], [6]. [2020] FWC 758 DECISION [2020] FWC 758 2 consistently made false accusations against her.2 A Co-worker reports Louise as liking her way of doing things and only that way and lashing out without regard for the consequences if her way did not happen.3 She said to the Head of Science that Louise would talk over the top of her and not listen.4 [6] Both parties point to events from around 4 September 2018 as the start of a deteriorating relationship. Over the ensuing months The School’s Head of Science, Director of People and Strategy and others tried without success to engage with Louise about their concerns and to have her take corrective action. The School’s concerns were first drawn to Louise’s attention in November 2018 and more formally so in December 2018, with other correspondence being sent with increasingly formal tone in February, March, April and May 2019. A “formal written first and final warning” was issued to Louise on 29 March 2019. The School’s Head gave evidence that had she known that Louise was not accepting of the concerns raised with her in March 2019 she may have seriously considered dismissing her at the time, instead of giving a warning (noting that on 29 March 2019 people reporting to the Head issued Louise with a written warning). [7] There is no question that what transpired in the period between March 2018 when Louise was employed by The School and May 2019 when she was finally dismissed is a very distressing state of affairs; and most of all for Louise. However the employer witnesses are credible and their evidence of poor conduct and behaviour in the workplace is to be accepted, with much of the poor behaviour alleged in their evidence – yelling, failing to listen, failing to follow reasonable and reasoned directions, making false or overblown accusations without a credible base – being repeated in the hearing before me. The matter of mental illness relied upon by Louise was amply evident including during the conduct of the hearing. [8] The circumstances of Louise’s mental illness may explain what went on in the workplace and may even call for reasonable accommodations to be given to her, when reviewing events or requests made of her. In the end though, Louise’s circumstances do not excuse what occurred and it is for her conduct and behaviour she was ultimately held accountable by her former employer, which reasonably formed the view that the egregious nature of her conduct and behaviour was misconduct warranting dismissal. My findings, set out in detail below in this decision, find that the conduct alleged occurred and that it was misconduct. I further find that the misconduct, and other matters, accrue to a valid reason for Louise’s termination of employment. [9] I am satisfied that Louise was, with one exception, accorded procedural fairness in the steps leading to dismissal. Given that the Respondent relied in the hearing upon reasons for termination which had not featured in its letter of termination, it follows that a question of procedural fairness arises in relation to those additional reasons. That subject is dealt with in detail below with me finding that certain of the additional reasons were valid reasons for termination, and that even though the matters were first indicated as reasons for dismissal after Louise was terminated, that fact does not disturb my primary finding that there were valid reasons for her dismissal. 2 Exhibit R10, [191]. 3 Exhibit R3, [58]. 4 Exhibit R3, Attachment 1. [2020] FWC 758 3 [10] For the detailed reasons set out below and having regard to the proper application of s.387 of the Fair Work Act 2009 (the Act), being the criteria for considering harshness, etc I do not find that Louise was unfairly dismissed. [11] I have chosen of my own motion to de-identify this decision. Louise is already considerably distressed by The School’s decision to dismiss her. She is unlikely to accept the conclusions I have reached in this decision and it is likely she will be distressed beyond the norm with my findings. I do not want to add to her distress with publication of the decision which necessarily canvasses a very sorry employment relationship. On the other side of the ledger, I consider The School and several of its employees are also likely to be distressed with publication of a fully open decision. A Confidentiality Order will also be issued by me, restricting access to the file to the parties, their legal representatives and Members and staff of the Fair Work Commission. PRELIMINARIES [12] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Louise’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the relevant time she was dismissed she was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise. [13] Evidence was given in these proceedings by Louise and her separated husband5 on her behalf. For The School, evidence was taken from the Co-worker, the Head of Science, the Director of People and Strategy and her husband, the Associate Head of The School, the People and Strategy Manager and the Head of School. [14] Louise appeared for herself in most of the proceedings, but was represented in the last two hearing days by Mr Bruce Shaw, of Counsel. Mr Shaw also prepared and submitted Louise’s written closing submissions. Mr Ben Tallboys, solicitor, of Russell Kennedy appeared for The School. Permission for both parties to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Act, with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)). LEGISLATION [15] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which is as follows: “387 Criteria for considering harshness etc. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account: 5 Transcript, PN 3566. [2020] FWC 758 4 (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 the FWC considers relevant.” [16] Determination of whether Louise’s dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account. [17] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way:6 “[28] The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established: a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced;7 a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour);8 it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal;9 the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss10 (so that, for example, where summary dismissal has occurred, it is not 6 Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520. 7 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373. 8 Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7]. 9 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10]. [2020] FWC 758 5 necessary to determine whether the right of summary dismissal was legally available); and the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct).11” (original references) BACKGROUND AND KEY EVENTS [18] The following records the key events leading to Louise’s dismissal. Necessarily it does not canvass every single contention each party has put forward about the others. Except where the context of what is indicated by me would require a different interpretation, it may be presumed both that the following are my findings of the things that were the key events, as well as that the following are my findings of fact. Summary of key events [19] Louise was employed by The School as a part-time science laboratory technician, with her first day of work being 8 March 2018.12 She was initially contracted to work hours equivalent to 0.4 full-time. [20] The School argues that Louise was not truthful with it when she applied for employment. It says that when she applied to work at The School she failed to disclose that she had been subjected to disciplinary action at her most recent employer;13 and that she also failed to disclose that she had a history both of mental illness and physical injury,14 each of which should have been disclosed. It also argued that while Louise had disclosed during the recruitment process one name by which she was known (in addition to her actual name) she had not disclosed another, and that had she done so the disclosure may have pointed The School to some of her previous employment history, saying that it believes the name was deliberately withheld.15 [21] Because of a particular need on the part of The School, Louise’s hours increased from 23 July 2018 until late September 201816 after which she dropped back to part-time employment, working part-time on Mondays and Fridays. Her contract of employment referred to a six-month probationary period, which ended on 5 September 201817 [22] On 4 September 2018, Louise was involved in an altercation with a Co-worker, (another laboratory technician) and her supervisor, the Head of Science. Later that day the 10 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15]. 11 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23]. 12 Form F2, Unfair Dismissal Application, 6 June 2019, items 1.1 and 2.1. 13 Transcript, PN 803 – 816. 14 Ibid, PN 823 – 830; 856 – 858. 15 Exhibit R10, [120]. 16 Exhibit R13, [23]; Exhibit R4, [35]. 17 Exhibit R13, Attachment 5. [2020] FWC 758 6 Head of Science attempted unsuccessfully to resolve the two’s differences. After perceiving a number of workplace concerns, including the September dispute, the Head of Science emailed Louise on 16 November seeking to “clarify a few points so that we can continue to work effectively together” and on 7 December 2018 the School provided Louise with a letter addressing concerns about her recent performance. Two further performance concern letters were issued to Louise (on 22 February 2019 and 29 March 2019). Louise claims there is a connection between the last of these letters which was a first and final warning and the fact that she made complaints to The School about bullying on 22 March 2018.18 Louise was warned specifically about the consequences of repeated behavioural and other matters in the 29 March 2019 warning letter. [23] A conflict which arose on 9 May 2019 led to Louise being suspended with pay while her conduct was investigated by The School. The correspondence about that last event also put to Louise a number of allegations of misconduct, with her being informed that if they were substantiated her employment may be terminated. Investigation of the 9 May 2019 incident involved allegations that Louise had attempted to remove The School’s property without authorisation and entered into an altercation with a fellow colleague in front of staff and students.19 Being dissatisfied with her responses, The School dismissed Louise with immediate effect on 17 May 2019,20 in a face-to-face meeting with the Head of School.21 The dismissal was indicated as being for reasons of misconduct associated with the events on 9 May 2019.22 [24] Louise argues that these and other steps taken by The School amounted to bullying. In particular, she argues that the bullying commenced after the first incident on 4 September 2018, after which she was continually micromanaged for performance and conduct management purposes in order to isolate her from voicing her opinions during weekly science staff meetings and team meetings further disadvantaging her in the workplace. Louise believes she was treated differently than other staff as a result on this incident including increasing her workload and misrepresenting her to other staff.23 She believes her previous experiences at two other Melbourne private schools and her psychological status had been discussed by other staff at The School.24 She also argues, including in her originating application, that she was bullied by the Head of Science after lodging a WorkCover claim on 19 March 2019 for the aggravation of a psychological condition and elbow soft tissue injury25 (noting that The School contends that the elbow soft tissue injury was not known to The School until well after Louise’s dismissal). She argues as well that her dismissal was engineered by The School for having made allegations of bullying in a meeting held on 22 March 2019 with the People and Strategy Manager and the Associate Head of School.26 Louise also believes she has been unfairly treated by two other staff whom she names, the Co- 18 Form F2, Unfair Dismissal Application, 6 June 2019, item 3.1. 19 Ibid, item 2.1 20 Ibid, item 1.2. 21 Ibid, item 3.1 p.8. 22 Exhibit R1, Attachment 51. 23 Form F2, Unfair Dismissal Application, 6 June 2019, item 3.1 p.17. 24 Ibid, item 3.1 p.14. 25 Ibid, item 2.1 p.4 26 Ibid, item 3.1, p.8. [2020] FWC 758 7 worker and another.27 Louise believes the making of her bullying complaints is the real reason for her dismissal with the subsequent allegations being fabricated to hide this fact.28 [25] Separate to her unfair dismissal application, it is to be noted that Louise commenced an anti-bullying application in the Fair Work Commission on 20 April 2019 naming the Head of Science as the person responsible for the alleged bullying conduct. The School opposed the bullying allegations submitting that its actions were reasonable management action.29 The anti-bullying application was the subject of two conferences before another Member of the Commission on 16 and 28 May 2019, which did not resolve the application. Louise also commenced a general protections application against The School on 17 May 2019. The general protections application was lodged in the morning of the day of Louise’s dismissal, but before the dismissal meeting took place. The application was made pursuant to s.372 of the Act, relating to an alleged contravention not involving a dismissal, but did not progress to a conciliation conference since The School declined, as is its right,30 to attend a conciliation conference. The evidence generally [26] Except where the context requires a different interpretation, I accept without reservation the evidence of the Respondent’s witnesses and prefer their evidence to that of Louise. [27] Louise’s evidence is not accepted by me. Bearing in mind both that English is not her first language and that she suffers to some degree at least from a mental illness it would be appropriate to ordinarily make allowances for minor inconsistencies in recollection or narrative. However, much of what Louise had to say to the Commission was repetitive and self-serving and designed to display a narrative at odds with events that demonstrably occurred. My observation of Louise was that her oral English proficiency is quite high when calm and collected and probably what one would expect of a speaker at upper-high school level. It may be further observed that her oral English is frequently better than her written English. During the hearing she repeatedly took and answered questions in English and frequently did not rely on the interpreter for translation in either direction. However, when she became agitated her English proficiency reduced. She was assisted in the hearing by two very capable interpreters whom she took to criticising on different occasions. [28] Beyond the question of language proficiency it is to be observed that much of Louise’s reasoning to the Commission, in whichever language, was an endeavour on her part to merely repeat in the best favourable light for her what she desired to say and to avoid the question or propositions being put to her. That could well be a product of her mental illness and in that regard it needs to be noted that there is no substantive formal evidence before me about the nature of her illness beyond a few medical and other certificates providing only a basic insight into her illness. It is also to be noted that the sheer volume of what Louise had to say to the Commission would suggest that whatever the nature of her illness she has had a full opportunity to put forward her case. Because of these observations I find myself unable to accept her narrative or reasoning about events which took place. 27 Ibid, item 3.1, p.14. 28 Ibid, item 3.1 p.8. 29 Ibid, item 3.1. 30 See Fair Work Act 2009, s.374(1)(b). [2020] FWC 758 8 [29] In forming my views about Louise’s evidence generally I also take into account two matters of honesty raised by the Respondent, both of which bookend her employment. The first is the contention that Louise was not truthful with The School when she commenced employment. The second is associated with documents given by her to The School after being told she was dismissed. On that occasion, she gave documents to the Head of School, which included a WorkSafe Certificate of Capacity. Material which Louise provided to The School well after having been dismissed revealed the existence of a physical injury as well as mental illness, which had not previously been disclosed to The School. As detailed below, both these contentions are generally made out, with my finding being that Louise kept the relevant knowledge from The School, despite knowing of her obligation to provide the information. Terms 3 and 4, 2018 [30] Until 4 September 2018, the relationship between Louise and other employees was mostly uneventful. On that day though two things occurred which Louise saw as affecting her employment relationship. First, the Head of Science cut herself and was bleeding and Louise offered assistance and second, there was an unpleasant exchange between Louise and the Co- worker, another laboratory assistant. [31] The first matter, the Head of Science cutting herself and Louise offering assistance, is seen by Louise as a matter of social and workplace significance. Her submissions on the subject are ambiguous and could be taken either as a submission that the event then played into and heightened the reaction of all concerned to the workplace dispute which is the subject of the second matter, or they could be taken as her holding the view that the event either had the potential to skew the employment relationship, or that it actually did skew the relationship. The Head of Science does not mention the event in her witness statement. [32] Louise recollects that somewhere near to 8:40 AM she saw the Head of Science bleeding from the leg and asked if the latter needed help, which elicited the reply that she might need first aid, such as a band aid. Louise went to obtain assistance and it was shortly after that point the second event took place.31 Such evidence as is before me on the subject indicates the bleeding was minor at worst. [33] The Co-worker had a need for a particular chemical solution and asked Louise whether she knew where it was.32 The two got into an argument in which personal views about each other were exchanged. The Co-worker was in tears after what transpired.33 Later in the day the Head of Science asked both Louise and the Co-worker to meet about what had occurred with the meeting not meaningfully resolving the dispute between the two. There was finger-pointing and hostility as well as an accusation by Louise that the Co-worker had locked her out of the Prac Room. Louise was referring to points written down by her in a diary she kept and in the course of the debate became upset and had difficulty communicating. The Head of Science offered to read out Louise’s diary notes, which was consented to. One of the sentences referred to the Co-worker bullying Louise.34 The Co-worker found the things 31 Exhibit R4, Attachment 11; Transcript, PN 104 – 109; 130 – 131. 32 Exhibit R3, [33]. 33 Exhibit R4, [41]. 34 Ibid, [43]. [2020] FWC 758 9 referred to confronting and asked the Head of Science to stop reading them.35 After the Co- worker asked the Head of Science to stop reading the document, she left the meeting.36 The meeting between Louise and the Head of Science continued with accusations being made by Louise about the Co-worker’s motives. After trying but failing to resolve matters the Head of Science ended the meeting, and Louise followed her making further accusations including that she was “trying to fire me”.37 The Head of Science reports the exchanges involving Louise as “shouting at me”.38 [34] While this dispute between the two employees went unresolved in its substance, a truce of sorts was achieved with a change in the working pattern of the two protagonists meaning that the two did not have much, if anything, to do with each other. In particular, Louise resumed working part-time, working only on Mondays and Fridays, with the Co- worker working on Tuesdays, Wednesdays and Thursdays.39 Even so, the Co-worker remained aggrieved by what she saw as Louise’s lack of accountability. Shortly after these events the Co-worker sent the Head of Science an email with her reflections and some criticisms of Louise.40 She had noticed and was irritated by Louise’s practice of sending group emails on subjects which probably did not require being sent to the science department generally but instead should have been sent only to one or two people. [35] Following these events, the Head of Science queried Louise’s employment status with the People and Strategy team, including whether she had passed her probationary period; she had done this since Louise had mentioned about being fired and was puzzled why this was so. She also noticed that Louise was gossiping about the events and speaking negatively about the Co-worker.41 The Head of Science counselled the Co-worker about her dealings with Louise in another incident.42 In mid-September the Head of Science invited Louise to a meeting with her and the then Director of People and Strategy. At around the same time Louise took umbrage with a union poster in the staff room which she thought was directed at her own conduct and defended her character by attaching sticky notes to the poster43 and by sending an email to the Head of Science with the subject line “Do you persist my conduct to [the Co- worker] is a “REPORTABLE CONDUCT” as attached which I just saw on the whiteboard at my office?”44 The poster itself was relatively innocuous, giving advice about “reportable conduct” and advising that; “Employees and schools work under extraordinary levels of scrutiny. If any allegation is made against a staff member in a school, they might be subjected to a range of disciplinary and statutory processes. In this advice sheet, we look at some of the procedural issues. …”45 35 Exhibit R3, [46] – [47]. 36 Exhibit R4, [44]. 37 Ibid, [45] – [46]. 38 Ibid. 39 Exhibit R3, [20], [51]. 40 Ibid, Attachment 1. 41 Exhibit R4, [49] – [51]. 42 Ibid, [60]. 43 Ibid, [62]. 44 Ibid, Attachment 10. 45 Ibid. [2020] FWC 758 10 [36] The Head of Science responded to Louise in reassuring terms.46 Later, Louise confirmed that she no longer had concerns which led to the cancellation of the meeting, however in doing so the Head of Science took the opportunity to advise Louise that if she had concerns, either then or in the future they should be discussed with an appropriate person.47 [37] When she commenced work with The School, Louise had not disclosed either that she had a minor physical injury or a mental illness and she claims, erroneously, that The School did not ask. She claimed in evidence that her General Practitioner and Psychologist had advised her it was not necessary to do so.48 However, on 12 September 2018 Louise wrote to the Head of Science about her state of mind, attaching a copy of an undated open communication from her Psychologist saying that he had seen Louise and that she was “very upset because of issues with her colleague whom she believes is attempting to undermine her. Despite my experience and familiarity with [Louise] I was unable to understand the issue she was attempting to explain. Unfortunately, when she becomes upset, she tells her story in a rambling way that is both tangential and over-inclusive. Her emotional state affects adversely her ability to explain herself and her lack of command of the English language exacerbates the situation markedly”.49 This communication was sent by Louise on the same day that the “sticky notes” problem had arisen and the day on which the Head of Science first invited Louise to a formal meeting, later cancelled, with the Director of People and Strategy. [38] In relation to the claims made by The School that Louise had not been entirely candid with it when it employed her by not disclosing relevant background facts it should also be noted that The School’s reference checking or due diligence about Louise was likely significantly inadequate. A single referee, nominated by Louise, had been consulted about her application. The person had worked at a previous school at which Louise was also employed, but had since moved her employment elsewhere and gave an overall positive reference (noting that the evidence is unclear whether the person concerned had worked at the school with Louise at the time she had disciplinary action taken against her, or even knew about the circumstance).50 With the Applicant’s own evidence in this matter indicating work related difficulties in two other private schools before this one, it is frankly unlikely that detailed and objective reference checking would not have disclosed obvious concerns about Louise’s work and capabilities before an offer of employment was made. [39] During September and October 2018, the Head of Science noticed a number of concerns about Louise’s performance and conduct. She said she was too busy to take breaks; she worked back late in the laboratory by herself contrary to policy; the supervisor thought Louise was performing unnecessary work and some contrary to safety requirements; and she had observed that Louise was failing to comply with chemical labelling standards. Louise had also told her “she had tested chemical on her skin, and that the chemical was therefore fine for students to use on their arms”. The Head of Science considered the “chemical in question, potassium thiocyanate, is known to be toxic and absorbed by the skin”.51 Louise had also taken issue with the Head of Science intervening in an exchange between Louise and another staff member; she says that when Louise remonstrated with her about the subject the tone of 46 Ibid, Attachment 11. 47 Ibid. 48 Transcript, PN 906 – 932; 937 – 943. 49 Exhibit R4, Attachment 9. 50 Exhibit R4, [29]. 51 Ibid, [67]. [2020] FWC 758 11 her voice was “yelling”.52 The Head of Science was also aware that the new Director of People and Strategy had unsuccessfully attempted to meet with Louise. [40] The Head of Science endeavoured to facilitate a meeting between the two and received a response from Louise refusing to do so; she did not “trust any meeting which is against my wish” and seemed to have a difficulty with the day of the week which had been proposed and putting forward the view that an unexpected meeting may be a potential political game contrary to her interests.53 On 2 November 2018, Louise sent a medical certificate to the Associate Head of School stating that she “is psychologically unwell and is therefore is unable to attend any meetings that are scheduled at this time until further notice”.54 The Head of Science and the Director of People and Strategy decided that as a result of this medical certificate they could not pursue a face-to-face meeting with Louise about the concerns either of them held at that time.55 Amongst other things the People and Strategy team had been endeavouring without success during this period to obtain verification of Louise’s educational qualifications which she said included a PhD in Biomedical Engineering. During this period the Head of Science was also concerned about Louise’s failure to complete an assignment task updating the ChemWatch database.56 [41] In November the Head of Science had reported to her by the Co-worker that Louise had swapped her working days in order to attend a non-compulsory conference for laboratory technicians. The request had not been discussed with the Head of Science which led to the Head advising Louise that she must attend work on her usual days and attend the conference on her days off.57 In the same period other matters of concern to the Head of Science arose as well. Probably of most concern was a worry expressed by Louise in an email to the Head of Science that she may have hidden from Louise the key for a cabinet to which she needed access. That subject had been brewing as a concern to Louise for a few days. Also in November, Louise presented a medical certificate to The School which stated she was “unable to attend any meetings that are scheduled at this time until further notice”58 (a matter discussed in greater detail at a later point in this decision). [42] In December 2018, a further matter arose when Louise requested advice from the Head of Science about whether she could have a delayed first working day for 2019, namely 2 February 2019. While the Head of Science initially thought that the leave may be permissible, she was notified by The School that all staff were required to be back to work on 24 January 2019 and that the absence could not be approved.59 She sent an email to Louise on 11 December 2018 saying that she could not approve the requested absence.60 Louise points to some confusion within The School about approval of the absence, with the leave having been approved on 14 December 2018 by another Senior Manager in The School. That leave approval was given on an online application initially made by Louise on a date earlier than 5 December 2018, and had been escalated to the Senior Manager by another staff member on 5 52 Ibid, [72]. 53 Ibid, Attachment 19. 54 Exhibit R15, Attachment 4. 55 Exhibit R4, [72]. 56 Ibid, [73] – [77]. 57 Ibid, [82] – [85]. 58 Ibid, Attachment 5. 59 Ibid, Attachment 33. 60 Ibid. [2020] FWC 758 12 December 2018 with the note that “this has been discussed with [the Director of People and Strategy] and [the Head of Science] and approved”.61 While it could be said by The School that Louise should have taken the word of her direct supervisor as the accurate and final word on whether the leave was approved and could be taken, the obvious confusion on the subject removes it as a criticism of Louise to be relied upon by The School. [43] Louise attended for work on Tuesday, 11 December 2018 even though it was not a scheduled working day. The Co-worker was rostered to work and was upset to see Louise at work on that day; that situation led the Head of Science to communicate with the Head of People and Strategy about the circumstance. [44] Relevant to the contentions about her conduct in late 2018, Louise believes there is a double standard between how she has been treated and how other staff are treated: “…why [the Head of Science] was able to use her double standard to give my two team members’ freedom to update the old chemical labellings as the GHS labellings when they are free but only expected me to provide the GHS labellings for any Prac I serviced to while the large bulk solutions were yourself delivered to your own class…”.62 [45] Louise submits she was set up to look bad by the Head of Science. For example, Louise was instructed to lock a cabinet in the chemical storage area and hide the key without reminding any other science staff of its whereabouts. It appears the key went missing and Louise could not locate it as such she had to undertake alternative duties such as routine laboratory duties.63 [46] Louise submits the Head of Science publicly humiliated her by emailing the staff generally asking Louise to attach her ChemWatch database spreadsheets on days she was not rostered to work and after she knew the cabinet had been locked and that Louise was unable to locate the keys needed to access the cabinet and therefore complete the required spreadsheet. Louise also submits that she was receiving conflicting instructions from the Head of Science and another person to provide the spreadsheet to both of them and determined that “the only solution you have is to follow your heart to do whatever you can do to meet both instructions”. The Respondent indicates Louise did not provide the spreadsheet and instead sent an email on 26 November 2018 to the Head of Science, in which she expressed that it was her view there was too much of a “psychological barrier” for her to continue working on ChemWatch.64 [47] In relation to the allegation that she swapped her shifts to attend a conference, contrary to The School’s policy and without getting approval from her Manager, Louise submits the contention was incorrect. Louise submits The School’s policy allowed her to swap her shift and that the Head of Science verbally approved the swap on 19 and 20 November 2018.65 Term 1 2019 61 Exhibit A6, p.391. 62 Form F2, Unfair Dismissal Application, 6 June 2019, item 3.1 p.16. 63 Ibid, item 3.1 p.22. 64 Exhibit R10, Attachment 30; Form F3, Employers Response, Attachment 1, Letter dated 29 March 2019. 65 Form F2, Unfair Dismissal Application, 6 June 2019, item 3.1, p.23. [2020] FWC 758 13 [48] Louise’s first rostered working day for 2019 was 25 January 2019, however she did not attend as directed by the Head of Science, relying on the leave approval by another Senior Manager. [49] On 3 February 2019, the Director of People and Strategy requested from Louise’s union a formal response to The School’s 7 December 2018 correspondence. The following day the union advised the Director that Louise no longer wanted union representatives to communicate with The School on her behalf.66 Because a response was not provided by late February the Director made a further written request for a response. Louise’s conduct over this period was viewed as erratic, perhaps in response to The School pressing for a response to its December correspondence. She sent an email to all staff in the science department and others couched as an apology as well as an explanation for some of her conduct as well as providing a video of her daughter involved in activities not related to Louise’s work (noting that the video is not before the Commission). Further, she advised the Head of Science that in future she is “not willing to receive the School any more letter in hard copies since I have enough suffering from the 1st discipline letter which showed non of your concerns were making sense”.67 Some in The School saw the distribution of an email to a wide audience as a breach of The School’s policy and potentially a form of bullying to them. [50] A further complaint was made to the Head of Science and Director of People and Strategy by the Co-worker about Louise with concerns that she had not finished work which was having to be picked up by other staff.68 [51] On 1 March 2019, Louise’s union responded to The School about its December and February correspondence. That correspondence records that its earlier letter of 13 December 2018 should be taken as Louise’s formal response to the December “concerns” letter, with the addition of a supplementary response, which addresses 5 allegations: In relation to the allegation that Louise was instructed to work on inventory for a particular project which was not prioritised or completed, Louise responds that she was awaiting further instruction on the final location of equipment which she did not receive; that she has email exchanges and a spreadsheet which demonstrates her attempts to complete this work; and she has received competing instructions on the work to be completed. In response to the allegations that Louise spread unsolicited personal views to staff; and that she forwarded confidential messages to staff, Louise claims she was not informed of The School’s email policy and that when she became aware of the policy, she apologised to the affected staff. In response to the allegation that Louise made changes to the team calendar for assignment of duties, Louise puts forward as a defence that during the weeks commencing 22 October 2018, she was the only laboratory technician available so took on the unassigned work. 66 Ibid, [51] – [52]. 67 Ibid, Attachment 25. 68 Ibid, Attachment 26. [2020] FWC 758 14 In relation to the allegation that Louise advised a teacher that she would work on her classes’ practicals without obtaining approval, Louise responded that she only took on the unassigned tasks so that classes could proceed but acknowledges she should have sought approval.69 [52] The earlier response, in December 2018, had defended the allegations against Louise. She denied testing potassium thiocyanate on her skin, and that she took regular breaks when a named colleague was at work. She thought her chemical labelling and storage was compliant. She committed to providing a transcript of her academic qualifications which she would obtain in her forthcoming holiday. It was said she has invested time and energy to follow every instruction from science staff, and especially her supervisor. She apologised for copying family members into her work emails; having used that practice when employed elsewhere she was not aware this would be a concern at The School as it has never previously been raised with her.70 [53] Commencing in February, Louise endeavoured to engage with the Associate Head of School about her disputes. The Associate Head thought that Louise was attempting to bypass the Head of Science and Director of People and Strategy by coming to him directly, however responded by suggesting they meet, which eventually took place in March. Part of the communication with the Associate Head was from Louise on 5 February 2019 which included reference to her psychological condition. She referred to her “psychological state clearance from my clinic Psychologist”, attaching a copy of a short report from her Psychologist. That report, dated 31 January 2019, provided to The School within a week of it being prepared, included advice that Louise “is now prepared and willing to attend a meeting with the school to address any and all concerns they may have”, but with the qualification that any meeting not include either the Head of Science or the Director of People and Culture and that instead the meeting or meetings be held with the Associate Head and two nominated support people.71 [54] Importantly, in the Respondent’s case, is that another report, obtained by Louise from her General Practitioner and dated 30 January 2019, provides an unconditional clearance for the attendance of meetings, making no reference to the limitation indicated by the Psychologist. That certificate did not become known to The School until 5 April 2019, when it was provided to the Head of School by Louise attached to an email. Amongst other things Louise saw it as a clearance for a meeting “as long as I will not have the meeting with either of [the Head of Science or the Director of People and Strategy] but (sic?) without independent person onsite”72. The certificate itself states that “[t]his certificate certifies that [Louise]is now psychologically well enough to attend all meetings as required by the school”.73 The School sees the two month delay in its provision as a calculated and dishonest attempt to withhold important information from The School.74 [55] The Associate Head’s recollection of the meeting he had with Louise on 22 March 2019 is that she read from a statement and that at the beginning she was quite respectful and 69 Exhibit R10, Attachment 28. 70 Ibid, Attachment 17. 71 Exhibit R15, Attachment 8. 72 Exhibit R1, Attachment 1, p.1. 73 Ibid, p.4. 74 Respondent’s Closing Submissions, 5 February 2020, [8.9]. [2020] FWC 758 15 calm, however, became more agitated as she read from the statement. Louise was obviously unhappy with the Head of Science; however, the specifics of her grievances were unclear, and her recounting of events was “very long-winded, and did not appear to be in any specific order”. He recalls having spoken for less than 2 minutes in a meeting which lasted an hour and a half. When he ended the meeting to go to another, Louise was “visibly upset” and said “the meeting was “a waste of time, because you’ve already made up your mind and you’re already against me…I can tell by your body language”.75 [56] Also, during March 2019, the Director of People and Strategy and Head of Science decided to issue a warning letter to Louise. This was motivated by a concern on their part that the correspondence from Louise through her union did not adequately address The School’s concerns about her conduct or behaviour.76 Key matters communicated to Louise in the warning letter included these:77  She was not taking sufficient rest breaks and was working alone in the laboratory, and otherwise not following required work processes or occupational health and safety obligations. The School considered that in some respects Louise’s responses to the matters it had raised were not adequately addressed and drew her attention to her obligations to follow procedures and directions on these subjects.  Louise’s denial of having tested a chemical on her skin was contradictory to what she had said to the Head of Science. In any event, in the future, testing of chemicals on her skin was not to occur.  The School noted that Louise had now provided documentation of her qualifications, but that it had taken 10 months for her to do so.  The School also referred to the concerns it had raised about Louise’s adherence to its procedures and direction including her not following reasonable directions, failing to notify The School of absences, completing other employees work, changing working days without permission and showing a mistrust of management. It noted that some of The School’s concerns had been addressed by Louise in her responses, some had not been addressed, and in particular she had not given a response on The School’s concern that she may at times complete other employee’s work. The School also sought further clarification from Louise on what it saw was its failure to follow reasonable direction and the mistrust of management concerns.  The letter instructed Louise on three particular matters; her preparedness to follow directions and what it perceived as her mistrust of management and her habit of copying staff and family members into what The School saw as confidential emails. [57] Finally, the letter cautioned Louise that: “The School wishes to advise that this letter serves as a formal written first and final warning in relation to your performance and conduct. In future, it is expected that the expectations and outcomes, detailed in this letter be followed. Should the School not 75 Exhibit R15, [69] – [76]. 76 Exhibit R4, [129] – [131]; Exhibit R10, [74] – [76]. 77 Exhibit R10, Attachment 30. [2020] FWC 758 16 see immediate and sustained improvement in the areas that have been detailed in this letter, the School may take further formal disciplinary action, up to and including termination of your employment. This letter will remain on your employment file.”78 [58] When the Director of People and Strategy came to deliver the warning letter to Louise in person on 29 March 2019, she refused to take the letter and was adamant that she would not read it.79 [59] During this period Louise also made complaints to WorkSafe about the health and safety of her working conditions. At the end of March, The School was contacted by a person working in another School who was involved in a professional association and who had knowledge of Louise’s situation. He endeavoured to make representations to the Co-worker about Louise’s concerns and her treatment. 80 The Co-worker was distressed at the contact (and what it revealed).81 On 5 April 2019, Louise made allegations of workplace bullying to the School Head, which was accompanied by medical certificates dated 30 and 31 January 2019. Term 2, 2019 [60] At the start of Term 2 WorkSafe attended The School and determined Louise’s complaint to them could not be substantiated.82 At around the same time, the School Head agreed to meet with Louise, which led to further communication with her office and others about Louise’s grievances and her state of health. Because of one of Louise’s communications, the School Head learned for the first time that Louise had a psychological injury, from six years earlier when she worked at another school.83 [61] The School Head as well as the Director of People and Strategy overheard a phone conversation with Louise and the Head’s Executive Assistant, when at least part of the call was played on a speaker. The call had come about as a result of the Executive Assistant’s attempts to arrange a meeting between Louise and the School Head. The Executive Assistant’s File Note records that the call itself lasted for almost an hour.84 The Head recollects Louise as yelling and shouting.85 The Director of People and Strategy gave evidence that it was her view that Louise’s “behaviour during that conversation was entirely inappropriate, particularly as it was towards someone who was merely trying to arrange a meeting. She clearly had no self-regulation”.86 [62] The Head gave evidence that had it come to her attention at the time of considering the March warning, as it did at the end of April, that Louise did not accept any aspect of the concerns raised by the Head of Science and the Director of People and Strategy she may have 78 Ibid. 79 Exhibit R10, [82]. 80 Exhibit, Attachment 31. 81 Exhibit R4, [21]. 82 Exhibit R13, Attachment 19. 83 Exhibit R1, [58]. 84 Ibid, Attachment 10. 85 Ibid, [65] – [66]; Attachment 10. 86 Exhibit R10, [91]. [2020] FWC 758 17 seriously considered whether dismissal was appropriate instead of being dealt with through a warning.87 [63] Louise’s complaint of workplace bullying was investigated by The School through a process delegated to the Associate Head and the People and Strategy Manager. Separate to this process but related, Louise commenced an anti-bullying application in the Fair Work Commission in late April 2019. As part of the School’s investigation into the bullying allegations, it sought to meet with the Head of Science, since at least some of the allegations were pertinent to her conduct. That meeting took place on 29 April 2019 and the Head of Science invited her husband to attend as a support person, who later reported to his wife and The School and gave evidence to the Commission about an approach made to him by Louise in the hour or so prior to the meeting involving his wife. Louise denies that the conversation took place in the form reported by the husband. The evidence of a number of people is that the husband sent himself a written message about the interaction, subsequently seen by others. The written message, sent electronically, was the subject of minor revision within a short period of the interaction, with it stating: “[The School] Approached by person who introduced themselves Said had Missed name and she identified as [Louise] You would know about me No I don't I am here for meeting Probably with you I think Questioned about how long at [school] I have a bad memory I was surprised at how long [wife] had been here Advised I dint think we should talk about this Continually questioned and told 'confidential information' that potentially would be damaging to [Louise] claim Cintiued to say we should not be talking about this throughout conversation And I dint think you should be telling me this it is probably something you will be asked in the meeting but I am unsure how the meeting works. Topics Chemwatch Past work safe at two other schools [names omitted] One on her laptop from 2013 [school name omitted] RELATION IN [omitted] POLICE Sell house to sue school Report [wife] to institute of teaching Best workplace lawyer Will put up with bullying just wants job security This can be small if she has job security but can be big if not Husband out next week as her support person Has the best workplace lawyer and will sell house to fight this 87 Exhibit R1, [47]. [2020] FWC 758 18 No witnesses to chemical in skin No witnesses to stock solution Screenshot of chemwatch Checked chemwatch and nothing in the system Eventually she said she is not invited to the meeting”88 (spelling, etc as shown in original) (names and other identifiers removed) [64] On 9 May 2019 Louise was not scheduled to work at The School and had an appointment in the morning with a Fair Work Commission arranged pro bono lawyer. Louise’s evidence is that she was concerned she did not have a diary which recorded a number of workplace interactions and she wanted to show the lawyer what was contained within the diary. Her evidence is that because of the situation she went to The School to obtain the diary. What took place was an unseemly commotion which started with the Head of Science being alarmed to see Louise at work on the day, at about 7:45 AM.89 This was followed by Louise searching through a variety of drawers and emptying them out.90 She asked a colleague “to make sure the cleaners clean up the mess left”.91 She then started moving in an agitated manner between different rooms in the science block. The Head of Science was alarmed about the situation and asked for assistance from the Director of People and Strategy’s team. The People and Strategy Manager then attended and told Louise that she was not to remove things that were The School’s property from its premises. Other staff members as well as school students were drawn into or observed what was happening. Close to 8:30 AM the Head of Science believed that Louise was electronically recording the interaction with her.92 Shortly afterward, Louise left the premises to take a tram to the Commission’s office. [65] Louise’s evidence is that she had not been able to retrieve the diary from The School; that she left empty-handed with the diary later being retrieved by someone else and given to her in private.93 It is unclear whether this is actually true or when the diary may have been given to her. [66] File Notes were prepared for The School by the Head of Science and the People and Strategy Manager and three other people who had peripheral involvement in the matter, the Director of People and Strategy as well as two other staff members, the school’s media technician and a teacher. The File Note from the Head of Science is the most comprehensive of the two with its contents being broadly supported by the People and Strategy Manager, bearing in mind that the latter was present only for a part of the events on 9 May 2019. The File Note from the Head of Science records that she entered a lift with another staff member at about 7:45 AM and saw Louise already in the lift, who said that she was in to pick up something. The File Note then records the following: “I went to work at my desk and I noticed that [Louise] was emptying out her desk drawers, going in and out of the office. I observed her in the prep room taking photos of keys I didn't notice what else she was doing there. 88 Exhibit R2, Attachment 1. 89 Exhibit R4, [160]. 90 Transcript, PN 3000 – 3012. 91 Exhibit R1, 23. 92 Ibid, [170]. 93 Transcript, PN 3019. [2020] FWC 758 19 [Louise] collected the large pile of stuff in the middle of the office and then asked Jenny to make sure the cleaners clean up the mess left. She walked out the office saying goodbye and she will see us tomorrow. I rang [the Director of People and Strategy] to ask what I should do. This was 8:14 am. On her advice I walked to the lift where I saw the pile of stuff on the desk. I heard a noise in the chem store and opened the door. [Louise] was in the chem store she said she was looking for her diary. I told her that she was not to take the stuff until [the People and Strategy Manager] could review the stuff to see if it was personal or belongs to work. She said she had a meeting at 9:30 and had to leave. I said that [the People and Strategy Manager] would be here in a minute (as [the Director of People and Strategy] had stated this) [A student] walked by as he had intended to discuss stuff with me, he looked at me and I said "not now Tim" so he walked away. At around the same time [two other staff] were moving chairs onto a trolley at the time. I saw [one staff member] and mouthed help as [Louise] was grabbing the bag and stuff. [Louise] ran into the lab saying [a colleague] could check it all and screamed out to her. I followed her. [Louise] was screaming and shouting saying she had a meeting to go to. I repeated that she needed to wait for [the People and Strategy Manager] to check the stuff and she would not be long. [Another staff member] was in the other lab undertaking a session with the Yr 12 students. [The School’s media technician] walked in and mentioned to [Louise] words to the effect of stop shouting as "there are students around" [the People and Strategy Manager] walked in and asked her some questions mentioning that she was not expected to be working on her days off. We were all around the science bench at this stage. [Louise] was taking photos of the stuff, saying [the Co-worker] wrote the handwritten note saying [Louise’s] things on the plastic bag, her phone was at one stage on the bench and I saw the frequency modulation as if there was a recording of the conversation on the screen. She lost her phone in the mess, then she found it. [A second student] (yr 12) student walked in as I had class. I said to the student Hi and that we would be doing Prac #12. [the People and Strategy Manager] and myself picked up the stuff and placed it on her desk. I grabbed my lab coat and safety glasses. Eventually [Louise] walked off and left. [Two further staff members] were still in the Office. I taught the class. Issue was the aggressive shouting of [Louise], the unwillingness to get [the People and Strategy Manager] to check if the material belonged to her or the school (I had class so did not have to the time to do this) and the fact this was not a discrete and was in front [2020] FWC 758 20 of the students. [Louise] was insisting that the stuff belonged to her.”94 (spelling, etc as shown in original) (names and other identifiers removed) [67] A further note contained in the covering email for the above File Note sent at 11:18 AM to the People and Strategy Manager records that “[another staff member] came to see me after recess to see if I was okay. She said she heard [Louise] screeching from outside her office. She said there were quite a few students in the atrium area that would have heard”.95 [68] In her File Note the teacher who was present indicates there were three staff members present, including the media technician, and “many students”. Her File Note records the following: “Whilst I was on Open duty this morning [in a named area], sitting at [a] desk, a loud and disruptive conversation between [Head of Science] and [Louise] took place. At first I thought [Louise] was working in the cupboard near [a] lift and having a heated discussion with [the Head of Science] about work, however as the conversation got louder I realised this was not the case and it actually sounded like [Louise] was leaving or had been let go, but there was concern about the belongings she was leaving with. Whilst I didn't actually see any of the action, the voices were clear and caused concern in a number of students and staff either studying or walking by in the [area]. From what I heard, [Louise] was about to leave, via the lift, with a box of belongings. [the Head of Science] informed [Louise] that she needed to wait. [Louise] was upset by this and as a result got louder and more emotional saying that the box was filled with her personal belonging and she was entitled to take them. [The Head of Science] replied saying that [the People and Strategy Manager] needed to check the belongings before [Louise] took them, personal belongings or not, they needed to be checked. There was some more back and forth, during which time I was responding to staff and students questions, mostly regarding the loud conversation taking place. I did however hear [Louise] say something about needing to leave and not waiting and then something else about [the Head of Science] checking the box then, as she was not waiting for [the People and Strategy Manager]. [The Head of Science] replied something about not wanting to cause a scene or hassles but she was doing what was asked of her and it was [the People and Strategy Manager] that needed to check. By this stage they started to move away from the lift and towards the Science labs. [The media technician], who had been [in another named area], heard what was going on and came up to help. He quickly spoke to me and then, concerned about what was going on, followed [the Head of Science] and [Louise] to help keep the situation contained and away from students. Unfortunately there was an early class in one of the Science labs. The conversation continued for some time in the Science labs and whilst I tried not to listen in but rather keep things as normal, I could still hear that an unhappy back and forth was taking place. I did see [Louise] go towards the chemical cupboard/room at one stage and heard [the Head of Science] saying a few times something about not 94 Exhibit R4, Attachment 68. 95 Ibid. [2020] FWC 758 21 taking school belongings home. [Louise] said something about her rights and something I didn't understand about in the past ... and she was quite upset. [The People and Strategy Manager] shortly arrived, I let her know there was some unpleasantness going on, she entered the Science area and things seemed to calm down. I spoke to both [the media technician] and [the People and Strategy Manager] again on their way out but didn't see [the Head of Science] or [Louise] again. I am also unaware of what the outcome, agreements or actions were. [Two staff members] both walked by whilst this was taking place. I don't think [one staff member] took much notice. [The other staff member] did stop and ask if things were OK both before going down stairs and then again when she came back up. However I don't think she went near [the Head of Science] and [Louise] or spoke to them. Several students asked questions, were concerned or stopped to look. However none were involved and I just asked that they ignore it and continue with what they were doing.”96 (names removed) [69] The Head of School received reports about the incident from a number of staff. Not only were reports provided by the Head of Science and the People and Strategy Manager, two other staff members, the schools media technician and a teacher, all of whom were present, and the Director of People and Strategy, who was not. She also had the benefit of a written communication provided to her by email sent by Louise at 9:11 AM. Neither of the other two staff members gave evidence about their File Notes on the subject, however I am prepared to accept the File Notes as essentially an accurate record of what took place. The media technician is more critical of the Head of Science in his record than the teacher, making the point that both Louise and the Head of Science “were having and (sic) heated conversation regarding her employment in front of [a nominated lift]. It is my understanding that [Louise] was trying to leave the school with a bag” and after some time he “then explained to [Louise and the Head of Science] that this was inappropriate as it was taking place in front of students. I then tried to calm [Louise as] she was highly stressed”.97 [70] It flows from the media technician and the teachers File Notes that the Head of Science was likely to be perceived by others as angry and speaking with an unduly raised voice. While certainly that observation must be made, it does not particularly undermine the core finding to be made about the altercation that the fault, or misconduct, associated with it rests with Louise and not with the Head of Science. While the Head of Science may be criticised for reciprocating to a limited extent the unacceptable behaviour of Louise, that does not of itself undermine the findings to be made about Louise’s conduct and that such conduct was misconduct. [71] Later on 9 May 2019, The School suspended Louise with pay pending an investigation into what took place earlier that day. The Head of School’s evidence is that she had decided on a suspension the night before the 9 May incident, but that her decision had been reinforced by the incident that day.98 While she does not particularise her reasons for having decided to suspend Louise the night before, it is to be noted that there had been an escalation of tensions and communications from Louise to The School and the Head of School between the date 96 Exhibit R1, Attachment 25. 97 Ibid, Attachment 26 98 Ibid, Attachment 27. [2020] FWC 758 22 when the Commission notified The School an anti-bullying application had been made, on 26 April 2019, and 8 May 2019. The Head considered that Louise was weaponising her complaints by making applications on the same subject to both the Commission and WorkSafe, while “actively thwarting the School’s attempts to deal with both its and her concerns (including by avoiding meetings)”.99 Her witness statement recollects about the period between the two dates: Louise did not attend a meeting scheduled with the Head on 26 April 2019, instead telling the Head in an email on 29 April 2019 that she was sorry to have commenced the formal complaints before she had a chance to meet with the Head, but was scared to do so and that she had commenced the formal actions on the basis of legal advice.100 She was made aware that Louise had a conversation with the Head of Science’s husband on 29 April 2019 who referred to Louise telling him about confidential information; She became aware on 6 May 2019, before Louise was informed of the outcome of The School’s bullying investigation, that Louise had contacted the Manager of People and Strategy and complained at some further length about her treatment and The School’s handling of the investigation.101 On 7 May 2019 Louise sent three emails to the Head of School again agitating about her treatment: The first two are internally repetitive as well as repeating complaints which had already been made to The School. The first, sent at 7:18 AM to the Head and others, restates Louise’s complaints and takes issue with the Head of Science’s written response to the FWC about Louise’s anti-bullying application calling the response a “nonsense” which provoked an episode of shaking on her part. The second, sent at 7:52 AM to WorkSafe and copied to the Head of School asks WorkSafe to come to The School and investigate since it would not undertake itself a proper investigation of her complaints. 102 The third email on 7 May 2019 is from Louise’s union to her, providing reassurance to Louise about The School’s 29 March 2019 warning letter. The email was sent to The School by Louise and says to her that “I hope you can see from this letter that you are not going to be terminated”.103 [72] I accept that the Head of School had justification, by the evening of 8 May 2019 to suspend Louise with pay; to call her conduct to account; and, in effect, call her to show cause in the meeting scheduled for 17 May 2019 as to why she should not be dismissed or disciplined. After the reports of what occurred on 9 May 2019 were made to the Head of 99 Ibid, [72]. 100 Ibid, Attachment 12. 101 Ibid, Attachment 16. 102 Ibid, Attachment 19 and Attachment 20. 103 Ibid, Attachment 21. [2020] FWC 758 23 School, she not only had ample justification, she had little effective choice. To do otherwise would likely show her as unsupportive of other employees or as a weak manager, unwilling to call bad conduct to account as well as failing to model good conduct and governance to the wider school community. Louise was plainly not someone who would make her complaint, wait patiently for it to be investigated and then move on. Her complaints would likely become more erratic and the working relationship, such as it was by that time, would likely become even more stymied and ineffective. The only way through the matter was to endeavour to hold Louise to account. [73] Louise’s suspension was notified to her through a letter sent by The School with the letter particularising a number of allegations about her conduct, broader than the 9 May incident. The letter is lengthy and does not require repeating in this decision; however so far as is relevant, it raises concerns about the allegation that Louise approached the Head of Science’s husband on 29 April 2019, and that the Head of School was concerned about the incident on 9 May 2019. The correspondence started by directly addressed the possibility that it would be seen as undermining Louise’s right to make complaints to The School, with the Head expressing these views: “At the outset, please let me reiterate a few things mentioned in my 3 May email: 1. I take the health and wellbeing of all staff seriously. 2. It is important that you and [the Head of Science] are able to work together in an effective and respectful manner. It is therefore unfortunate you feel [the Head of Sciences’] behavior towards you has been unreasonable, which is why the School has been investigating your concerns. 3. I respect your right to raise your concerns with the Fair Work Commission, and WorkSafe. The School will be respecting the Commission and WorkSafe's respective processes, and also your and [the Head of Science’s] respective interests. Nonetheless, there are some matters I wish to clarify with you, including some serious concerns I have regarding your capacity and conduct, in this letter.”104 (names removed) [74] In relation to Louise’s discussion with the Head of Science’s husband, the letter makes the point that the conversation may have breached The School’s confidentiality by discussing matters with him and that the conversation was potentially intimidating, with the product being that the conversation may well have undermined its trust and confidence in their working relationship. In relation to the 9 May 2019 incident, the Head says that she was still seeking additional information about the matter. The letter stood Louise down with pay and notified her of the requirement to attend a meeting. The letter also sought Louise provide The School with comprehensive medical reports from her General Practitioner and Psychologist about her state of health and work capacity. The Head of School counselled Louise of the import of what she was considering: “It is important you appreciate that if I decide that allegations of misconduct are substantiated, or that mutual trust and confidence has been lost, I will need to then 104 Ibid, Attachment 27. [2020] FWC 758 24 decide what action is now appropriate (if any). Such action may, regrettably, include the termination of your employment. However, I have made no decisions yet about such matters, as I would first like to give you an opportunity to respond to the concerns in this letter.”105 [75] Louise submitted in her closing submissions that the letter is confusing and raises some new matters, with it failing to take into account her written English difficulties. I agree that the letter is poorly written and struggles to provide a logical narrative of the matters it endeavours to communicate; however, it is far from lacking in comprehension to the reader, even one who may have English language difficulties. In any event, Louise overlooks in her submissions about whether the letter was comprehendible to her that she received advice from her union on its contents with the union advising her that: “[Louise], I hope you can see from this letter that you are not going to be terminated. The school has advised you of particular practices and behaviours that you need to undertake to ensure that your employment is secure. I hope that now you can rest easy.”106 [76] On 15 May 2019, the Associate Head and the People and Strategy Manager met with Louise and her husband and advised her of the outcome of its bullying investigation, which included giving her a letter about the investigation. The Associate Head records Louise as repeatedly raising that she wanted The School’s allegations against her to be withdrawn: “95. [Louise] was visibly upset in the meeting. She kept raising the performance management letters she had received from [the Director of People and Strategy]. [Louise] repeated a number of times that she wanted them to be ‘withdrawn’. I tried to explain that this meeting was only about the investigation, that we were presenting our findings, and that [Louise] had already had her opportunity to present her case. [Louise] and her husband kept interrupting me. I had to give them three warnings not to interrupt me or [the People and Strategy Manager] when we were speaking. 96 At the end of the meeting, [Louise] said “why are we having this meeting, it is a waste of time, management is targeting me”. This is similar to what [Louise] said to [the People and Strategy Manager] and me on 22 March 2019. Again, it struck me that [Louise] had no capacity to rationally engage in a discussion about her concerns, or to accept that there may be two perspectives to her concerns.”107 (names removed) [77] Louise contends The School’s bullying investigation was procedurally unfair as several of her witnesses were not interviewed.108 [78] On the following day, on 16 May 2019, the Commission convened a conciliation conference in respect of Louise’s workplace bullying application, however the conference was unsuccessful in resolving the dispute. On 17 May 2019, Louise lodged in the 105 Ibid. 106 Ibid, Attachment 21. 107 Exhibit R15. 108 Form F2, Unfair Dismissal Application, 6 June 2019, item 3.1 p.9. [2020] FWC 758 25 Commission a general protections application not involving a dismissal which was served on the Respondent on 20 May 2019. [79] Also, on 17 May 2019 Louise was dismissed from employment. Her dismissal followed a disciplinary meeting with the Head of School. The meeting had been notified to Louise in the stand-down letter provided to her on 9 May 2019.109 The meeting commenced at about 3 PM and lasted until about 5:50 PM with a break. Attending the meeting were Louise and her separated husband and a translator engaged by The School; the school nurse; the People and Strategy Manager and the School Head.110 The Head records that at the start of the meeting she confirmed its purpose as being to provide Louise with an opportunity to respond to the matters in the stand-down correspondence. I am satisfied that Louise had such an opportunity, reading from notes and providing brief and direct answers. She denied the allegations, however the Head of School was not persuaded by her responses about the events on 9 May 2019 and preferred what had been reported to her by the Head of Science, the Director of People and Strategy and the People and Strategy Manager. She formed the view that Louise had little insight as to what occurred and: “... she left me with no trust and confidence that her employment could continue. Again, [Louise’s] responses were unusually brief and direct, and she denied doing anything wrong, to the point that again I did not believe she was being truthful. By and large, I accepted the accounts I had received from [the Head of Science], [the Director of People and Strategy], [the People and Strategy Manager] and others. I was satisfied that the incident had been brought about by [Louise’s] own actions. I was satisfied that [Louise] had such little insight into what happened that I had no confidence she understood the way her actions could have played a part in what happened, let alone that she may have done something wrong. There was no insight into what had happened, and I could not trust that she would not behave that way again.”111 (names removed) [80] During the first part of the meeting, Louise provided the School Head with a letter from her Psychologist, dated 15 May 2019. The letter refers to Louise’s bullying allegations, and the associated Commission application as well as her mental state, which the Psychologist referred to as fragile. The Psychologist’s letter offered the opinion that The School was “not equipped to make a determination as to whether or not [Louise] has been harmed by the "alleged unreasonable behaviour''” being the subject of the matters within the anti-bullying application and that termination of employment “would constitute a significant loss of face and would further damage [Louise’s] already fragile psychological state”.112 [81] After hearing Louise’s responses, the School Head adjourned the meeting to consider what should be done. When she returned, she informed Louise that she had decided to terminate her employment and that a letter would be sent to her informing her of the decision. She advised Louise that she needed to keep these matters confidential. The Head’s recollection is that Louise “immediately became angry, and screamed something to the effect “[y]ou cannot do this”. She tried to hand me some documents, but when I refused she threw 109 Exhibit R1, [90]; Attachment 27. 110 Exhibit R1, [112]. 111 Ibid, [118]. 112 Ibid, Attachment 44. [2020] FWC 758 26 them at me and screamed “Take them!”.”113 The Head of School felt threatened by Louise’s physical conduct, which included her shouting, threatening to sue The School and “gesticulating and moving towards me aggressively”.114 Louise had to be encouraged to leave by her husband and the translator. Another School staff member and a security officer came to the room to assist. Louise left The School at about 5.50pm. [82] The documents Louise sought to provide to The School Head in the meeting included material relating to her former employment at other schools as well as a WorkSafe Certificate of Capacity, dated 17 May 2019. [83] Louise denies she was untoward in the meeting. In relation to the documents, while she accepts that she endeavoured to give documents to the Head of School at the end of the meeting,115 she denies that she threw them at the Head of School, saying that she merely left them on the table116 and that she did not throw them at the Head and that the Head accepted them117. Her husband’s evidence on the subject was in some ways at variance to Louise’s. On the one hand he stated in his witness statement that Louise did not throw any documents at anyone either during or after the meeting,118 but elaborating in cross-examination that he did not recall Louise providing any documents to the Head of School in the meeting.119 In relation to whether she had been shouting in the meeting, his witness statement claims that Louise did not display “any unprofessional or improper conduct … let alone any level of either screaming or yelling”, but then conceded in cross-examination that, while not screaming “[p]erhaps she was speaking at a good volume”.120 [84] Plainly the question of throwing documents and yelling or screaming are matters of adjectival degree; one may lightly throw a tennis ball to a toddler or one may throw a brick in an act of aggression; and what may be screaming in an office may not raise any concern at all at the Melbourne Cricket Ground on match day. I have considered whether the Respondent’s choice of the adjectives used to describe these events and others may be over-reach or embellishment and whether allowances should be made for whether Louise was simply angry and uncontrolled. My observation, formed through the many days of hearing, is that Louise regularly raises her voice and displays anger. I have no doubt, not only from my findings about the evidence, but from my own observations of Louise that the allegations made by The School about her conduct in the meeting on 17 May 2019 actually took place. The conduct reported is both consistent with that of other witnesses both about this event and others, as well as conduct exhibited before me. The Head of School’s File Note about the 17 May 2019 meeting records her impressions of what happened, and I accept these matters as fact; in particular, in relation to her narrative of what occurred after informing Louise that her employment was ended: 113 Exhibit R1, [124]. 114 Ibid, [125] – [126]. 115 Transcript, PN 3702. 116 Ibid, PN 3702. 117 Ibid, PN 3723. 118 Exhibit A7, [1]. 119 Transcript, PN 4448 – 4451. 120 Ibid, PN 4458. [2020] FWC 758 27 “… [Louise] pulled out some forms and threw them across the table stating I could not terminate her employment because she had applied that morning for a 'certificate of capacity' and it had been granted. [Louise] had not mentioned this prior to the meeting and at the point of the break she had given me a letter from her treating Psychologist but it did not refer to this certificate or declare her unfit. I handed the form to [the People and Strategy Manager] and continued, 'We will collect your pass and keys from you now. A letter will be sent.' [Louise] became visibly agitated and aggressive towards me. She yelled and I asked her to let me finish. I informed her of the process from here on, 'we will courier your personal belongings to you' to which she yelled, 'I do not want them, they are the Schools.' At this point, I reminded her that the matter was to be kept confidential and that her obligation to confidentiality remained after she leaves the School. I also stated. 'I am genuinely sorry that things are ending this way but that I have to make the decision I consider best for the School and its students.' [Louise] then stood up and moved towards me in an aggressive manner.”121 [85] Shortly after the meeting ended, the Head of School and others noticed two emails had been sent by Louise to all of The School’s staff:122 At 5.53pm: “Re: I have been dismissed just now because of [the Head of Science’s] bullying” At 5.55pm: “Good luck everyone! I love this school everyone except her including [the Co- worker] and [another named employee], which I wish I can be reinstated by FWC”. (names removed) [86] The School Head sought for its IT department to retrieve the emails and was successful in this endeavour in part, but not completely. At 6.21 PM, the Head of School sent her own email to all staff addressing Louise’s earlier communications.123 [87] Following the meeting, and also on 17 May 2019, the Head of School sent Louise a letter confirming her dismissal. The letter sets out the following: “Dear [Louise] Re: Termination of your employment 121 Exhibit R1, Attachment 50. 122 Ibid, Attachment 45. 123 Exhibit R1, [133]; Attachment 46. [2020] FWC 758 28 1 refer to our meeting earlier today. The purpose of that meeting was to give you a reasonable opportunity to respond to my concerns about your conduct on 29 April and 9 May 2019. Those concerns were set out in my letter to you dated 9 May 2019. I am satisfied that you have been afforded procedural fairness in relation to my concerns, and confirm I have considered your responses. I also note that I put you on notice in my letter dated 9 May 2019 that disciplinary action, including the termination of your employment, was a possible outcome of this process. Having considered the available evidence, I am satisfied on the balance of probabilities that you engaged in misconduct on 9 May 2019 by attending school on a non-working day to remove school property without permission, and by arguing with [the Head of Science] (in the vicinity of students and other staff) when she attempted to prevent you from doing so. In addition to being wholly inappropriate, your actions caused significant concern for others and created a serious reputational and legal risk to the School. Having considered the findings of misconduct that have been made, I am satisfied that it is now appropriate to terminate your employment. In making this decision, I have considered your length of employment. However, I have also considered the seriousness of your misconduct. In making my decision, I have respected your rights to make complaints to the School, the Fair Work Commission and WorkSafe. However, your conduct, and more importantly your response to my concerns, has left me with no trust and confidence in your ongoing employment (regardless of the outcome of your respective complaints). Your employment is therefore being terminated effective today. I have decided to provide you with four weeks' salary in lieu of notice. Any accrued entitlements will be processed and paid to you as soon as possible. You will need to arrange for the immediate return of any School property in your possession, specifically, your swipe card and any keys in your possession. We will have any personal items at the School couriered to you as soon as possible. I have made the decision that I consider to be in the best interests of the School (as I am obligated to do). Your behaviour immediately after the meeting reaffirms my decision. Despite your wholly inappropriate 'All Staff' emails after our meeting, it is important that these matters be kept strictly confidential. I can only reiterate, please ensure you do not discuss these matters with anyone in the School community (other than me), or disparage any staff member of the School (including [the Head of Science] and others). In this regard, I remind you, yet again, that your confidentiality obligations as an employee continue after the termination of your employment. [2020] FWC 758 29 Again, you are encouraged to utilise the School's Employee Assistance Program, which offers confidential counselling and support. I encourage you to make contact with them on [telephone number]. Yours sincerely”124 (names removed) [88] As set out above, on the day of termination of employment, Louise gave to The School Head a WorkSafe Certificate of Capacity, dated 17 May 2019 which asserts a clinical diagnosis of “depression and anxiety” and that her attention/concentration, memory and judgement capacities are “affected”. It does not disclose any physical function limitations and only provided mental health function assessments, particularly to the effect of “lowered mood, increased distress” and established a treatment plan of “weekly psychological treatment and sertraline 50mg daily”. It also asserted that she had no capacity for employment from 17 May 2019 to 30 May 2019. Well after her termination of employment Louise provided to The School a large amount of material for the purposes of submissions in these proceedings. One of the documents within the bundle was a WorkSafe Certificate of Capacity also dated 17 May 2019, but which provided an altogether different diagnosis to the one which had been given by Louise to the Head of School in her termination meeting.125 [89] The second Certificate of Capacity provided the same information as the first but contained an additional clinical diagnosis of “bilateral chronic elbow soft tissue injury”. It prescribed “rest breaks as required for forearms”, as well as a treatment plan of “physiotherapy to elbows”. The initial certificates of capacity referred to Louise having no capacity for employment from 17 May 2019 to 30 May 2019 while the second certificate indicates no capacity for employment from 31 May 2019 to 27 June 2019.126 [90] The Head of School draws two matters from the circumstance in which she came to see the first certificate: “In my letter dated 9 May 2019 I had specifically raised concerns with [Louise] about her capacity, and also the fact that she had not disclosed her apparent pre-existing health issues when she applied to work at the School. In response, she provided me with letters from [the General Practitioner] and [the Psychologist] saying she was fit and safe to be at work. However, that day she had clearly obtained a certificate of incapacity but waited until she was dismissed to share it with me. Yet again, this shows she could not be trusted, a view which was reinforced when she later provided the School an alternative version of the certificate of capacity I received”127 (names removed) [91] Louise’s evidence about how there came to be two Certificates of Capacity with the same date is not accepted by me. She was asked extensive questions in cross examination about the circumstances, giving answers which were at times conflicting, incomplete or on some entirely different subject.128 I do not accept that she had difficulty understanding the questions being put to her. Instead, her answers were consistent with a difficulty in putting 124 Ibid, Attachment 51. 125 Ibid, Attachment 48; Attachment 47A; Exhibit A6, pp.329 – 330. 126 Exhibit A6, pp.329 - 330. 127 Exhibit R1, [135]. 128 See Transcript, PN 3934 – 4015. [2020] FWC 758 30 forward a coherent or accurate answer fearing it would not assist her. In the end the best her evidence resolves is with her contention that the first Certificate of Capacity, the one referring only to a psychological injury, was given to her by the General Practitioner on 17 May 2019 while the second certificate, referring both to a psychological injury as well as a soft tissue physical injury was given to her about a week later.129 While I am unconvinced that this is what actually occurred, the possibility that the General Practitioner may have issued an initial certificate and amended it at a later stage is somewhat plausible, but not completely so. [92] As a result of the way Louise answered questions on the subject, I do not accept her evidence about when the two certificates were given to her. It is possible her narrative is correct; however, I cannot be certain. It seems likely that the first of the certificates was provided to her on 17 May 2019, however in the absence of cogent evidence on the subject, the date on which the second certificate was issued is unresolved. I agree with the Head of School that there is no doubt that Louise waited until a convenient time to provide to The School the Certificate of Capacity from her General Practitioner. As it turns out, that convenient time was after she was advised that she was to be dismissed. CONSIDERATION [93] I will deal with each of the criteria within s.387 in turn. (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) [94] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship: “At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, common sense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.”130 [95] It is not the Commission’s role to “stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court.”131 However, I “must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.”132 129 Transcript, PN 3846 – 4016. 130 Selvachandran v Peteron Plastics (1995) 62 IR 371, pg.373. 131 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185, [46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685. 132 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185, [46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413. [2020] FWC 758 31 The grounds relied upon [96] In this case, some of the reasons given by The School to Louise at the time of dismissal are different from the reasons the Respondent now says were the actual reasons for dismissal. [97] The termination letter sent by The School asserts three matters of direct misconduct, being the grounds for dismissal. The grounds set out in the termination letter were Louise’s attendance at The School on 9 May 2019 “to remove school property without permission”; by arguing with the Head of Science in the vicinity of students and other staff; and that those actions caused significant concern for others and created a serious reputational and legal risk to The School. [98] The School’s written submissions, filed at the start of proceedings, refer to a number of valid reasons justifying her dismissal, such that by 17 May 2019 it contends it would have been “irresponsible” to not dismiss her.133 In this regard, it relied upon the contention that by that date she had not been performing her duties competently, or in conformity with its expectations or with personal insight;134 that she engaged in serious misconduct on 29 April 2019 when she spoke with the Head of Science’s husband;135 and that she was dishonest both about her employment history and when she provided responses in the 17 May 2019 meeting with the Head of School.136 [99] Grounds said to form part of The School’s valid reasoning for dismissal are stated differently in the Respondent’s Closing Submissions. Those submissions were stated as The School having no trust and confidence in Louise by 17 May 2019; the interactions Louise had with the Head of Science’s husband on 29 April 2019; and Louise’s dishonesty about her health and previous employment. [100] After reviewing the grounds set out in the documents in support of these contentions, it may be ascertained that these various elements distil into four broad groups of grounds for dismissal: The School believes Louise was dishonest about her health and previous employment when she applied for employment; the interactions Louise had with the Head of Science’s husband on 29 April 2019 were misconduct and she was dishonest to The School about what had happened; by 17 May 2019, Louise was no longer performing her role competently; and by 17 May 2019 The School had no trust and confidence in Louise; by that date her conduct on 9 May 2019 had been established as misconduct by trying to remove The School’s property against direction, she had publicly argued, and those things together created serious legal and reputational risk to The School; finally she was dishonest to The School about what had happened. 133 Respondent’s Outline of Submissions, 30 September 2019, [8.8]. 134 Ibid, [8.9] – [8.12]. 135 Ibid, [8.14]. 136 Ibid, [8.15]. [2020] FWC 758 32 [101] What is required is that The School have a valid reason. It need not be the reason given to the Applicant at the time of dismissal.137 However, the fact that The School did not rely on this reason at the time of dismissal means that the Respondent will have to “contend with the consequences of not giving the employee an opportunity to respond to such reason…”138 Misconduct principles [102] The first, second and fourth grounds summarised above relate to allegations of misconduct. In such case, of an employee having been dismissed for misconduct, the Commission is first required to find whether on the balance of probabilities the alleged misconduct actually occurred.139 Whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it.140 In considering these matters, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.141 The Commission will also take into account the need for honesty on the part of the Applicant during the course of an investigation.142 [103] It has been said by the Full Bench that “the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct).143 The Full Bench has also found there is not a “clear rule of law defining the degree of misconduct justifying summary dismissal”,144 and that it “is certainly well established that, for the purposes of s.387(a), it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason)”. Further: “[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice” and identified the touchstone as being whether the conduct was of such a grave 137 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185, [45] citing Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 377-8. 138 AGroup Placements Pty Ltd v O’Loughlin [2011] FWAFB 5230, [51] per majority. 139 Edwards v Giudice (1999) 94 FCR 561 [6] ‒ [7] 140 King v Freshmore (Vic) Pty Ltd (2000) AIRC, unreported, Print S4213 141 Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171 142 Streeter v Telstra Corp Ltd (2008) 170 IR 1 143 Titan Plant Hire Pty Ltd v Malsen [2016] FWCFB 5520, [28]. 144 Sharp v BCS Infrastructure Support Pty Limited, [2015] FWCFB 1033, [36]. [2020] FWC 758 33 nature as to be repugnant to the employment relationship. “Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd Buchanan J said: “[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful misconduct’ are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term ‘serious misconduct’ is under consideration an evaluation of what conduct represents ‘serious’ misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).””145 (endnotes omitted) The first stages of employment [104] While not directly relied upon by The School as a ground for dismissal the first stages of employment until the issuing of the warning letter at the end of March 2019 are relevant since they show an employment relationship which became dysfunctional as time went by, and seriously so by March. [105] The events which took place in late 2018 would not of themselves justify dismissal, and Louise cannot be held entirely responsible for what took place that year; although it must be observed that by the end of 2018 her behaviour was at best problematic and more likely setting herself on a path of inevitable departure. [106] In early September, near to the time her probation period ended, both Louise and key people within The School were still learning about each other. Either Louise or the Co-worker or both were mistaken in the cause as well as the consequence of their interaction in September. Certainly, the Co-worker cannot be regarded as blameless in the situation. She accepts about her interaction with Louise on 4 September 2018 that when Louise asked her the whereabouts of a particular chemical solution she was frustrated with Louise’s lack of helpfulness, but maintains through her evidence that Louise had lost her temper.146 The Head of Science notes that she had to counsel the Co-worker about another conversation in which the Co-worker had been observed by another to be “unusually curt” with Louise.147 The Head of Science may have made a mistake in reading aloud Louise’s diary in the meeting on 4 September 2018, however it was an innocent mistake. 145 Ibid. 146 Exhibit R3, [33]. 147 Exhibit R4, [59] – [60]. [2020] FWC 758 34 [107] Despite Louise seeing the cut sustained by the Head of Science to her leg having some significance either in the overall narrative or relationship, I am unable to discern that it has any particular significance. At best for Louise’s case it may have put all on edge and caused the Co-worker to be a little sharper in her responses to Louise when she was not assisted in locating the chemical solution she needed. [108] The strength of Louise’s responses to The School and people in its management structure after 4 September 2018 were unjustified and she was equally unjustified in avoiding meeting with the Head of Science or the Director of People and Strategy. She could and should have met with them to discuss their concerns. The fact that she did not immediately placed her employment relationship on thin ice, whether she or The School actually recognised that at the time. Her provision of a medical certificate to The School as a means to avoid meetings on unpleasant subjects she did not wish to discuss probably entrenched her lack of employment security because there was no means by which The School could discuss with her its concerns. [109] Louise’s submission that “her lack of comprehension of some of the unique nuances of the English language … [and her] limited understanding of the finer points of English have influenced some of the difficulties” experienced at The School148 is not accepted by me. While she may suffer from a lack of insight about how to assimilate, control and overcome work related problems identified about her by others, it would not be consistent with the evidence to accept that she did not comprehend the complaints being made, or the significance of them. Neither do I accept that a workplace culture of dealing with problems by email made things harder.149 The submissions are self-serving for someone who turned constant, extensive, repetitive, attacking communication, verbally, by email and in English, into a weapon of choice against anyone who questioned her. Granted, English is not Louise’s first language and her skill reduces appreciably when she is agitated; however the sheer volume of what was being said, the volume at which it was spoken when it was verbal, and the unambiguously hostile tone of much of it, written or spoken, removes a capacity on my part to accept this submission. [110] Louise’s submission that “the lack of face to face discussion is a handicap in developing an understanding of a person's position, especially a person with less than optimum proficiency in English”150 is at odds with her actions of refusing to meet to discuss The School’s early concerns and then having her General Practitioner state in November 2018 that she was “unable to attend any meetings that are scheduled at this time until further notice”.151 She was offered the opportunity for face to face discussions but actively avoided them. The endeavours by The School to raise with Louise concerns about the employment relationship were justified but were blocked by her. If what The School tried to arrange in its various attempts to meet with her and the Director of People and Strategy starting in October 2018 was not for the purpose of face to face discussion, what were they for? She was content enough to pepper targets in The School with her own complaints, but was reluctant to entertain feedback from others, taking elaborate measures to ensure it was never given, or at least not received. 148 Applicant’s Final Written Submissions, 22 January 2020, [3]. 149 Ibid, [7]. 150 Ibid. 151 Exhibit R10, Attachment 5. [2020] FWC 758 35 [111] By late October 2018, The School was forming adverse views about Louise and wanted to discuss things with her. The Head of Science wanted to raise with Louise a number of concerns and discussed these matters with the incoming Director of People and Strategy who suggested a meeting with Louise on the subject, and then sent a meeting invitation to Louise proposing a discussion. There was an extensive communication between the two on the subject, running between Monday, 29 October 2018 and Friday, 2 November 2018, with Louise finding numerous reasons why she could not meet when proposed.152 She was either too busy or did not have free time on the indicated dates. However, she had time enough to go to her General Practitioner, who saw her on 2 November 2018. From that appointment, Louise’s General Practitioner provided a certificate stating that Louise was “unable to attend any meetings that are scheduled at this time until further notice”.153 Nothing within his certificate actually indicates the basis of his opinion or how he reasonably concluded that Louise was able to continue to attend for work safely but not attend meetings. There is nothing within the certificate that would satisfy a reasonable person that there was a proper basis upon which “meetings” could not be attended. There is no clarity in the certificate about which “meetings” could be attended and which could not. [112] The restriction that meetings could not be had for the purpose of discussing legitimate concerns The School had about their employment relationship with Louise would in time have the effect of ensuring the relationship would be unlikely ever to recover. It was a crude attempt by Louise to avoid accountability, and one which both worked against her interests since she was seen as avoiding discussing problems and it even only worked for her in the short term, since by March she had to find a different conduit to raise her complaints, which she chose to pursue through the Associate Head. [113] The history of what then took place over the next few months in early 2019 reinforces that Louise liked her way of doing things and only that way. [114] Significantly, Louise had to be prompted to provide a response to the “concerns” correspondence from December 2018 and even then, failed to actually acknowledge any need for improvement on her part. When she was formally warned about her conduct she literally refused to accept the letter, running a charade, rather like avoiding a troublesome process- server, of not physically accepting the letter, insisting it be delivered to her pigeon-hole, saying further that she did not want to read the letter and would not read it.154 The theme of Louise not reading things is then repeated elsewhere in her conduct both with The School and the Commission; she refused to open the further concerns letter the Head of Science tried to give her on 22 February 2019 and claimed in evidence to the Commission to have not read it (or at least not read it at the time).155 However, given that a communication from Louise a short time after the concerns letter was issued used the same language as within the letter, the claim she would not read the letter seems only to be a rhetorical flourish. The School’s correspondence to Louise informed her that her practice of broadly distributing to staff messages containing confidential information caused them to feel uncomfortable.156 Yet, allegedly without reading the correspondence, two days later Louise referred to being admonished about the practice in an email to a widely distributed audience and asking their 152 Ibid, Attachment 3. 153 Ibid, Attachment 5. 154 Ibid, [82]; Attachment 12; Transcript, PN 1769 – 1777. 155 Exhibit R4,[114]; Transcript, PN 1963 – 1976. 156 Exhibit R10, Attachment 22. [2020] FWC 758 36 forgiveness if her practice caused them discomfort.157 Louise also claimed to not have read many of the Respondent’s materials filed in these proceedings.158 [115] Whether or not Louise actually read these documents or read the warning letter at the time is likely a moot point since in any event she did not act upon or acknowledge the failings indicated within The School’s correspondence. The evidence before me leaves me amply satisfied that it was reasonable for The School to draw these matters to her attention and require remedial action on Louise’s part. After the warning letter was issued the Head of Science’s evidence is that there was a string of transgressions by Louise on matters dealt with in the warning letter: Despite being requested to assist, Louise did not assist with setting up for a “Junior School Science Circus” being hosted on 3 April 2019;159 On 5 April 2019, she failed to undertake as requested a tidy up of science equipment left in a food technology classroom;160 A further request given on 26 April 2019 and connected with the short notice cancellation of a science practical led to aggression on Louise’s part;161 and On 8 May the Head of Science received complaints from the Co-worker and a teacher that Louise had incorrectly prepared a practical and had interfered with what had been prepared.162 [116] I accept that these omissions, inattentions to duty, or errors occurred. These things arose despite the warning letter of 29 March 2019 being clear that it considered Louise to not be willing to amend her work in accordance with reasonable management direction. While these matters are not relied upon by The School as the basis for dismissal, they suggest a lack of attention by Louise to the things about which she had been warned. [117] I now consider each of the reasons for dismissal advanced by The School. Disclosure of information about health and previous employment when applied for employment [118] As noted above, The School’s past employment and health disclosures were not referred to in the termination letter but were relied upon in the Respondent’s Initial Written Submissions and its Closing Submissions. [119] The offer of employment made to Louise on 20 February 2018 included the following conditions regarding disclosure of prior relevant circumstances: “17. Acceptance of offer 157 Ibid, Attachment 23. 158 Transcript, PN 2194 – 2213. 159 Exhibit R4, [136] – [138]. 160 Ibid, [139]. 161 Ibid, [140] – [142]. 162 Ibid, [157] – [159]. [2020] FWC 758 37 By accepting this offer of employment you declare that you: • do not have any convictions, findings of guilt, whether with or without conviction, or any charges pending or matters still outstanding against you (except traffic matters) in Australia or overseas; and • have not had any formal disciplinary action taken against you, or any finding made, in relation to improper or unprofessional conduct in any previous employment; and • have not been dismissed or retired or resigned from any previous employment or volunteer role for reasons or allegations that you were involved in inappropriate conduct of a sexual nature or otherwise with a student or child. If you accept this offer of employment when you are not in a position to make the above declaration, and the School subsequently becomes aware of your false declaration, then the School reserves the right to terminate your employment without notice. If you are unable to accept this offer of employment on the basis of the above clause, and wish to make a disclosure regarding any of the matters listed above, you will be given an opportunity to provide further information to the Director of People and Strategy.”163 [120] Understandably, abundantly evident in the content of the above, the need for disclosure as a future employee is highly important and The School is entitled to take seriously departures from the obligation cast by the condition. Further to the foregoing, when Louise completed a new staff information form on 7 March 2018, she neglected to provide information which was required by that form. The relevant request of the new employee and in particular Louise was this: “Medical history Please provide details of any current or previous medical conditions or restrictions, physical or otherwise which may affect your ability to perform the requirements of your position. This must include any medical condition or restriction arising from previous workers compensation claim. Failure to provide such information may jeopardise your rights to workers compensation if a pre-existing disability is aggravated at work. (Section 79 of the Workers Compensation and Rehabilitation Act 1981)” [121] Louise did not make any meaningful disclosures to The School in response to these obligations. The School’s submissions on these matters include: “8.1 The precise diagnosis and symptoms of [Louise’s] health issues remain a mystery. However, the Commission can be certain that [Louise] prior to being employed at the School, [Louise] had been diagnosed with a serious mental illness (PN868) and elbow injury , which related to her work as a [name of school omitted] Laboratory Technician; she was regularly seeing a general practitioner [name omitted] and clinical psychologist [name omitted]); she was taking anti-depressants (PN874); 163 Exhibit R13, Attachment 5. [2020] FWC 758 38 she had made WorkCover claims; and she was receiving WorkCover payments when she obtained employment at the School (PN847). 8.2 Of course, the School did not know these things when it employed [Louise] . It also did not know that [Louise] had been disciplined (PN803) and later dismissed (PN729) by [another school], where she was apparently known as [name omitted]. [Louise] was determined to obtain further employment, and so she deliberately withheld such matters from the School. 8.3 This is not a case where an employee chose not to share private information, because they were not asked. As part of the recruitment process, [Louise] was specifically asked to: declare that she had not been the subject of any formal disciplinary action (5, p15); disclose any other names (7, p20); and certify that she did not have any physical or psychological medical condition which may affect her ability to perform the requirements of the role (6, p18). She was advised she must disclose any previous WorkCover claim (7, p21). 8.4 These were reasonable queries, relevant to [Louise’s] capacity and suitability to work at the School. Truthful answers would have raised critical matters for the School to investigate. [Louise] did not trust the School with those answers. Instead, she denied the School the opportunity to make an informed decision about [Louise’s] capacity. This was dishonest, and [Louise’s] first failure to show regard for her own work health and safety (as she was required to do).”164 (names removed) [122] Louise’s omissions are not a circumstance in which she did not understand the need to disclose relevant information; instead her own evidence is that she knew about the obligation but chose not to disclose the information based upon advice given to her by her General Practitioner and Psychologist.165 Whether or not such advice was actually given to Louise is not able to be discerned in the absence of evidence from either practitioner. [123] I am satisfied on the evidence that there was a deliberate failure by Louise to disclose her past employment and relevant medical history to The School and that she did so in order to mislead The School. In the overall context of Louise’s employment and what would have likely been disclosed to The School had she satisfied the obligations on her; these are very serious omissions by Louise. Had she complied, she would have informed The School of a history of disciplinary action taken against her by at least one previous employer; that she had pre-existing mental and physical health issues; and that she had made and had accepted a workers compensation claim in relation to a work related injury sustained at another school. [124] The fact that Louise did not disclose these matters to The School and that she says she did so deliberately after taking advice leads me to conclude this was misconduct by Louise. This was not inadvertence or embarrassment or a misguided view that personal information did not need to be disclosed. The object of the misconduct was to procure from The School a decision favourable to her (to employ her as a laboratory technician) likely calculating that it would not do so if it knew the truth. This is a valid reason for Louise’s dismissal. Interactions with the Head of Science’s husband on 29 April 2019 164 Respondent's Closing Submissions, 5 February 2020 165 Transcript, PN 906 – 932; 937 – 943. [2020] FWC 758 39 [125] While the termination letter did not rely upon Louise’s contact with the Head of Science’s husband as a ground for dismissal, it was relied upon as a reason in the Respondent’s initial written submissions and its closing submissions. [126] The Head of Science’s husband records his interactions with Louise on 29 April 2019 in the way set out above. I am satisfied both that Louise initiated the conversation and that left to his own devices he would not have spoken with her. The husband was at The School for the purpose of providing assistance to his wife, the Head of Science, who was being asked to answer the bullying claim made against her by Louise. I am satisfied on the evidence that once he knew who she was the husband did not want to engage in a conversation with Louise and likely considered a conversation with her on any subject, let alone Louise’s bullying complaints, to be inappropriate given that she was the complainant against his wife. I am satisfied that he accurately recorded what transpired in the conversation in the messages sent by him at the end of that day. Those messages were prepared and sent by him well prior to sustaining the injury referred to in his oral evidence and do not suffer from any concern they may not be substantially accurate. [127] What flows from the communication initiated by Louise is most obviously an intemperate and ill-considered discourse lacking in appropriate confidentiality. After advocating in its Closing Submissions that the husband’s recollection of the conversation should be accepted as credible the Respondent puts forward that Louise’s version of events on the subject is not credible. When she was asked about the subject on 17 May 2019 she denied the allegations, saying both that she did not approach the husband, but that he approached her and that it was only later, after the exchange, that another employee told her who she had been talking to.166 Her Closing Submissions put forward that she “denies that the alleged altercation with [the Head of Science’s husband] took place at all”.167 [128] The Respondent also puts forward that Louise’s alleged conduct in respect of this conversation is consistent with her other behaviour. The husband recorded Louise as saying that she has the: “Best workplace lawyer Will put up with bullying just wants job security This can be small if she has job security but can be big if not Husband out next week as her support person Has the best workplace lawyer and will sell house to fight this.”168 [129] The Respondent notes that when she wrote to the Associate Head on 27 February 2019, she said “I will use my last breathe to fight for my basic job sercuirty (sic) only” (spelling as per original).169 Further, late on the afternoon of 29 April 2019 Louise emailed the Head of School making reference to having consulted a lawyer, and in the course of the dismissal meeting on 17 May 2019 had threatened to sue The School. Those things are consistent with the threats recorded in the husband’s message. 166 Exhibit R1, Attachment 49 167 Applicant’s Closing Submissions, 22 January 2020, [26]. 168 Exhibit R2, Attachment 1. 169 Exhibit R15, Attachment 13. [2020] FWC 758 40 [130] The evidence before me itself leads to a finding that Louise initiated and participated in the conversation as reported by the Head of Science’s husband. I agree that the contentions made about Louise and her conduct by the husband is also consistent with the accounts of others about her conduct which of course reinforces that the primary finding is available to me about her conversation with him. I accept that the conversation held by Louise with the Head of Science’s husband was misconduct. [131] Were this to be the only transgression on the part of Louise in her employment with The School, it is unlikely that the finding would be made that the breach of confidentiality and initiation of the conversation and its content, replete with threats of litigation, on their own would amount to a valid reason for dismissal, although it may warrant a warning, or other action. Plainly the matter would be the subject of consideration of the degree to which the conversation itself was inconsistent with a continuation of the employment relationship. [132] Consistent with these observations, I do not find this matter to be a valid reason for dismissal. Competence generally [133] The School argues in its initial Outline of Submissions to the Commission that by 17 May 2019 it would have been irresponsible to not dismiss Louise and then puts forward an argument relating to her overall competence. In this regard it argues: “8.9 By that stage, [Louise] had not been performing her duties in the manner reasonably expected of a competent Laboratory Technician. She was completing some of her tasks inappropriately (e.g. Chemwatch, some practicals, working without supervision, rest breaks, threatening to test chemicals on her skin, inventory and labelling requirements). In other cases, [Louise] was reassigning herself work when this suited her own preferences. 8.10 But more generally, and alarmingly, [Louise] was demonstrating an inability to work in a team environment. Her key relationships and communications were seriously deficient. She displayed an inability to respect the School’s lawful and reasonable directions. 8.11 The School attempted to guide [Louise] in relation to its expectations, and on 29 March 2019 provided her with a written warning about the consequences if she did not do so. Rather than accepting the School’s guidance, as [Louise] was encouraged to do by the Independent Education Union, [Louise] refused to accept that she needed to improve or otherwise regulate her own behaviour (or at least appreciate its impact on others). She doubled down on her behaviours and, eventually, demonstrated that her failings as a Laboratory Technician were innate. 8.12 This lack of insight culminated in [Louise’s] behaviour on 9 May 2019, when she attended the School despite it being her day off and attempted to remove school property without permission. Rather than acknowledging the School’s valid concerns [Louise] escalated the situation, resulting in a public altercation at the School with [the Head of Science] where other staff and students could see and hear. [Louise] again demonstrated an inability to regulate her behaviour, or appreciate the impact on her behaviour on others. She showed no insight into these matters and, accordingly, [2020] FWC 758 41 allowing [Louise] a further period of time in which to address the School’s concerns would have proved futile.”170 (names removed) [134] In its Closing Submissions The School argues that the inherent requirements of Louise’s role were primarily relational: “4.1 Operationally, Laboratory Technicians provide practical support and assistance to science teachers; and accept primary responsibility for the preparation and setting up of Practicals. They are accountable to [the Head of Science], the Head of Science. It is irrelevant that [Louise] may have considered a Laboratory Technician’s role and pay, and some of those she worked with, to be inferior. 4.2 [Louise] also accepted behavioural requirements, which were summarised in a Position Description [document reference omitted]. She was required to understand how her personal contributions impact the School; to have strong interpersonal skills; to treat fellow staff with dignity and respect; to act professionally; to display resilience, a calm and mature disposition, and an ability to adapt and operate effectively in a demanding environment; to have a strong moral and ethical compass; to cultivate credibility and honesty; and to demonstrate a high level of confidentiality and discretion. She was required to demonstrate full awareness of work health and safety obligations, and take responsibility for her own health and safety.”171 (names removed) [135] The position held by Louise, a part-time laboratory technician, is subject to a position description which sets out a number of matters pertaining to the operations of The School, its purpose and then the purpose, outcomes, responsibilities, relationships and competencies to be expected of the position itself. It is not necessary to refer to the entire document in this decision, however there is no doubt from its contents that the core propositions put forward by the Respondent regarding the place of a laboratory technician position both within the science department and The School itself as well as the need for good and productive working relationships to be fostered and developed, are amply made out. The position description outlines the key purpose and outcomes of the position as follows: “KEY PURPOSE The key purpose of this role is to provide practical support and assistance to teachers In the Science Faculty, with a key focus on supporting the effective and efficient operation of the program. The incumbent is primarily responsible for the preparation and setting up the classroom inclusive of equipment and the provision of practical support to staff and students. The Laboratory Technician works in partnership with teaching staff in providing effective learning outcomes for students at the School. KEY OUTCOMES The outcomes are the high level expectations of the role that the School expects to be achieved. These are the things that will be visible should the person in the role be operating effectively. 170 Respondents Outline of Submissions, 30 September 2019. 171 Respondent's Closing Submissions, 5 February 2020. [2020] FWC 758 42 Safe and well maintained workshop area and equipment/resources within the School and preparation areas where the technician Is working. Commitment to, and effective contribution to, the Science Faculty. Contribution to the effective outcomes and support for classes, students and staff. Effective communication with, and transfer of knowledge to, students and staff regarding technical aspects of Science teaching. The timely preparation, set-up and removal of materials and equipment for classes. Effective, professional and timely support to the Science teaching area. Prompt, accurate and professional response to staff, student and parent queries. Treat all in the School community with dignity and respect and allow for individual differences.”172 [136] The competencies required of the position include these:173 Strong interpersonal skills, with demonstrated ability to build rapport and interact effectively at all levels of an organisation. Strong organisational and time management skills, with an ability to prioritise tasks, meet prescribed deadlines, and concurrently manage a number of competing tasks. High level planning and organisational skills. Participates as a collaborative team member and operates effectively in a collaborative team environment. Displays empathy, commitment and resilience. Possesses sound judgment and a calm and mature disposition. [137] The totality of the evidence confirms that by May 2019, Louise was not displaying many of these important attributes. While even in 2018 there was a question about whether some of these were being demonstrably performed, it was really in 2019 that it became inescapably clear that Louise was not working in accord with these expectations and likely was not about to do so. There were at least four occasions on which Louise was counselled on these subjects: On 19 November 2018, the Head of Science endeavoured to – politely and not disrespectfully or peremptorily – “clarify a few points so that we can continue to work effectively together”, advising Louise task requirements may change; that she needed to work together with other laboratory technicians as a team; and that in order to facilitate the Head’s needs, Louise needed to take her directions, check emails at work and update a spreadsheet so that the Head may ask other staff to undertake tasks otherwise set for Louise;174 On 7 December 2018, the Director of People and Strategy communicated at length the need for Louise to work in accordance with The School’s values, needs and directions. The terms of that correspondence – also respectful and polite – are summarised elsewhere, with it admonishing Louise “that management requests and meetings are a reasonable part of work and designed to support you to meet the requirements of your role”, with her inability to attend meetings with The School 172 Exhibit R13, Attachment 2. 173 Ibid. 174 Exhibit R10, Attachment 7. [2020] FWC 758 43 as advised by her General Practitioner meaning “that you have been unable to fulfil your current role as a Laboratory Technician in its entirety as meetings with colleagues and managers, as defined by The School, are a frequent requirement”.175 On 22 February 2019, when it reminded Louise of the need for a detailed response to its December correspondence, The School advised her of further concerns it held, which reasonably would be viewed as its concern that Louise was either failing to perform work as instructed, or follow directions it had legitimately given her.176 On 29 March 2019, The School sent Louise its warning letter, the details of which are referred to elsewhere. The terms of the letter were explicit – The School was not happy with Louise’s work performance, and its concerns encompassed her willingness to follow directions and safe working procedures; her conformity with directions given to her; the work she performed and her practice of unilaterally deciding to either take on the work of others, or to disregard tasks given to her.177 [138] Ordinarily in a matter such as this in which instances of misconduct are put forward as the reasons for termination of employment I would not be disposed to place much weight upon an argument that in any event the employee was not competently performing their inherent duties. In the absence of misconduct allegations, it would also ordinarily follow there would be a detailed analysis of whether adequate warnings of a consequence of poor performance had been given and understood and adequate time and assistance given for corrective action. This case though is far from the usual. Concerns had been expressed to Louise on several occasions in late 2018 and early 2019 and a warning had been issued to her in March 2019 about the consequences of remedial action. The warning letter explicitly canvassed matters of work performance, adherence to directions given to her and The School’s policies. Louise demonstrably did not accept the criticisms of her performance and did little to heed them, with there being no or insufficient remedial action on her part. Instead, what occurred after the concerns were raised with her and the warning issued is that her performance and adherence to the performance of directions and The School’s policies did not improve and in key respects deteriorated. [139] The arguments mounted by Louise that she was the victim of disaffection and bullying directed her way by those around her and principally the Co-worker and the Head of Science are largely arid. The Co-worker and Head of Science may be criticised about some of the things said or done in 2018, and especially around September and October, however those matters are at most exasperated or intemperate commentary. In the case of the Co-worker, she was properly admonished for her overly critical reaction to the events which occurred on 4 September 2018 and shortly after. The Head of Science endeavoured to retrieve circumstances after that point by engaging with the People and Strategy Department and offering opportunities for discussion. [140] In any event, there is little doubt that by 17 May 2019 Louise was not competently performing the duties of her role. I find this was a valid reason for Louise’s termination of employment. 175 Ibid, Attachment 11. 176 Exhibit R4, Attachment 45. 177 Exhibit R10, Attachment 30. [2020] FWC 758 44 Misconduct associated with the events on and from 9 May 2019 [141] Of the matters relied upon in the 17 May 2019 termination letter, the first element is the allegation that Louise attended The School to remove school property without permission. That allegation is made out. [142] It is likely that Louise’s intention when she went to The School on 9 May 2019 was to retrieve her diary for the purpose of showing it to a lawyer in an appointment she had at the Fair Work Commission’s premises relating to her anti-bullying application. However, having observed Louise at length during the process of the hearing I am satisfied that she is easily distracted and that it is likely when she could not readily find the diary her attention then turned to items that she thought may be useful to her and started gathering them up without having regard to whether they were her property or that of The School’s. I am satisfied that at some point during the morning of 9 May 2019 before she left The School at about 8:50 AM that Louise was intent upon removing school property and had not sought permission to do so. The evidence is unclear as to whether Louise actually did remove school property without permission; in all likelihood and after reviewing the evidence on the subject, she did not do so to any meaningful extent after being challenged on the subject by the People and Strategy Manager. [143] The second of the allegations relied upon in the termination letter, which is effectively a subset of the second “valid reason” summarised in the Respondent’s Closing Submissions (the School’s loss of trust and confidence in Louise by 17 May 2019) is the more substantive of the matters, asserting that Louise argued with the Head of Science in the vicinity of students and other staff. There is no doubt from the evidence that there was an unseemly commotion caused by Louise’s own conduct. She emptied the contents of drawers onto the floor without tidying up and moved in an agitated stated between adjacent rooms. She did not meaningfully or calmly respond to questions asked of her about what was happening. The reasonable person observing what went on would be concerned and distressed, considering the behaviour as unacceptable in a workplace. In a school, in which young people, students, are moving around in preparation for their day and staff members doing the same, such behaviour would be seen at the very best as alarming. I have no doubt that what took place on the day was a meltdown of very significant proportions by Louise with no reciprocity in unacceptable behaviour by the Head of Science, the Manager People and Strategy or any of the others involved. [144] Having described what transpired as unacceptable and alarming to observers, did it become a significant concern or create a serious reputational and legal risk to the school? Objectively, Louise’s conduct met both limbs of this allegation, with me accepting the evidence of the Head of Science and the People and Strategy Manager about what they observed and who was present. Louise offers on the subject that because of her condition, her mind wasn’t clear and that she does random things.178 While that may be so, with it potentially explaining what happened, it does not excuse it and does not detract from the Respondent’s core contention, that what Louise did was wholly inappropriate with it creating a serious reputational and legal risk for The School. 178 Ibid, PN 3102. [2020] FWC 758 45 [145] There is no question that the altercation took place broadly as alleged by the Head of Science and the Manager People and Strategy, with their recollection being supported in important respects by the File Notes of other staff. While Louise’s evidence is that she went to The School in order to remove the diary and not do otherwise, such is almost a moot point as to whether that was her intention since at some time that intention shifted to taking other things from The School’s premises. [146] There is no discernible legitimate purpose for removing school property from The School. No explanation of any substance or coherence has been put to the Commission as to why or how such materials as may have been gathered by Louise might be necessary to support her anti-bullying application. If she were to say to the Commission that she was gathering an email or two which demonstrated bullying in order to show the pro bono lawyer it may then be possible to accept there was a legitimate purpose for gathering documents, whether or not there may be a policy against such actions or whether or not The School directed that they not be removed. The mere fact that there is a policy that things may not be removed does not mean that the Commission would not accept that there are occasions on which things could be removed. However, the lack of explanation within Louise’s evidence about the documents she sought to retrieve; her complete inability to concentrate on a task for more than a short period; and the fact that things were being grabbed with no real regard as to purpose means that any argument that there was a reasonable explanation as to why the documents should be removed from The School, perhaps contrary to policy, is not sustainable. [147] Instead, the evidence resolves with a finding that it was Louise’s intention to remove school property without permission. It also indicates that Louise collected a significant amount of material to take away from The School’s premises but with no real knowledge as to what it contained, let alone having regard for whether it contained confidential or other material which should not be removed from The School’s premises. [148] As noted earlier, Louise did not locate the diary at The School. She says the diary was later retrieved by someone else and given to her in private.179 [149] There is also no question that there was a public argument with the Head of Science overheard by other staff and students. The Head of Science’s evidence includes several descriptions about the tone of the altercation. At first, after recording that Louise was agitated and repeating herself, she says that Louise’s voice was increasingly loud until she was shouting.180 She reports that The School’s media technician came over and asked Louise to “keep the noise down” with Louise shouting by this stage.181 Her File Note records Louise as “screaming and shouting”.182 Later in the day another teacher said to the Head of Science that she had heard Louise “screeching” from outside her office” and that “there were quite a few students in the atrium area” who would have heard Louise.183 179 Transcript, PN 3019. 180 Exhibit R4, [166]. 181 Ibid, [172]. 182 Ibid, Attachment 68. 183 Ibid, [178]; Attachment 68. [2020] FWC 758 46 [150] The Head of Science concedes in her evidence that she may have raised her voice in an attempt to have Louise listen to her but that she was not shouting.184 The Manager, People and Strategy does not report shouting or yelling either in her evidence or File Note. [151] I accept the broad thrust of the Head of Science’s characterisation of the events of 9 May 2019. There was at least shouting on Louise’s part and this was not restricted to a single incident. Her shouting was overheard by other staff and students. There is no question that the events would likely have caused significant concern for those overhearing what took place. These things together mean that there is little question that the alleged events took place and that they amounted to misconduct on Louise’s part. [152] The fact of the events links with The School’s assessment that they created a serious reputational and legal risk to The School. Human nature being what it is, it is readily foreseeable that staff and students would relay to their colleagues, friends and family what took place in an unfiltered manner and that the events would not remain sealed or confidential. To some extent The School could rely upon its employees to be discreet about what occurred, however I doubt that discretion or confidentiality could be presumed to be either watertight or uniform. The students however could not be assumed to be subject to any confidentiality requirements. When they reported what took place to their parents those people in turn would undoubtedly be concerned – what on earth is going on at this place to which I am paying significant fees? [153] The Head of School also took into account in her decision to dismiss Louise what had been told to her by the Director of People and Strategy who had been contacted initially by the Head of Science when the commotion commenced and believed that she needed assistance. After the initial phone call the Director of People and Strategy was rung by the Head of Science again, this time as a mistaken dialling. In this second call the Director of People and Strategy could hear for a period of about five minutes what was going on between Louise and the Head of Science.185 The Director later reported to the Head of School about this second phone call that she was shocked by the way Louise was speaking.186 The Director’s report included that she: “… heard [Louise] in a very agitated, aggressive and very loud voice, repeatedly shouting at [the Head of Science] about taking some files, the reasons for taking the files and being concerned about a diary and getting to the Fair Work Commission on time. I heard [the Head of Science] say things like, “that's ok, leave them with me” and trying to call [Louise’s] name to get her to calm her voice down. 102 During this time, I was upset and shocked by what I was hearing. While I have encountered difficult people in the workplace before, [Louise’s] angst, aggression and shouting towards [the Head of Science] was like nothing I had encountered before. It was completely unprofessional, and entirely disrespectful towards [the Head of Science] as [Louise’s] manager. In my opinion, it was a clear case of misconduct and warranted dismissal. Worse, it happened in an area frequented by students. 184 Ibid, [172]. 185 Exhibit R10, [101]. 186 Exhibit R1, [85]. [2020] FWC 758 47 103 Eventually, I could tell from the voices that [the People and Strategy Manager] had arrived. I then heard [the Head of Science] say something to [the People and Strategy Manager], and the call on my phone ended.”187 (names removed) [154] Louise sent an email shortly after the fracas at 9:11 AM to the Head of School and others, including the Commission’s anti-bullying email address, WorkSafe, and the Head of Science.188 In that email she puts forward several justifications for what took place but ultimately shows no insight whatsoever either as to the events that occurred, her participation in them or that her own behaviour was in any way wanting. Louise says that the Head of Science aggressively attempted to prevent her from leaving in a lift; that she was taking home with her some things to tidy up and bring back the following day; that she needed to leave for an urgent appointment at the Commission; that it was the Head of Science’s aggressive refusal to allow her to leave which made her highly emotionally distressed and anxious; and that her response to her distress was to take antidepressants while at school which eventually enabled her to calm down. [155] The Head of School’s evidence is that she considered all of this material and considered it likely that Louise had been acting erratically with the Head of Science being entitled to be concerned that she was attending for the purpose of trying to remove files.189 [156] Accepting as I do the evidence of the Respondent’s witnesses about the events of 9 May 2019, I regard Louise’s explanation in her email sent immediately after the events as being the self-serving justification of someone who knows they have overstepped the mark and needs to retrieve what they can from the situation, by blaming others and without accepting a scintilla of responsibility for their own actions or contribution to events. [157] With considerable justification the Head of School decided to suspend Louise’s employment and investigate what had occurred with a view to dismissing her. The correspondence set out the allegations referred to above and advises that if the Head decides the “allegations of misconduct are substantiated, or that mutual trust and confidence has been lost, I will need to then decide what action is now appropriate (if any). Such action may, regrettably, include the termination of your employment. However, I have made no decisions yet about such matters, as I would first like to give you an opportunity to respond to the concerns in this letter.”190 The same letter required Louise to attend a meeting with the Head of School at 3.00 PM on Friday, 17 May 2019. [158] With calm reflection Louise could and should have gone to the meeting on 17 May 2019 with an explanation as to what took place together with an acceptance that her conduct was unacceptable and out of control and to give an expression of regret for her part in what took place. [159] Louise may well have gone to The School on 9 May 2019 with the intention of obtaining her diary; she may well have then through forces out of her own control associated with her mental illness lost the capacity to conduct herself civilly and rationally. Those things of themselves are quite capable of explanation and an expression of regret, in the same way 187 Exhibit R10, from [101]. 188 Exhibit R1, Attachment 22 189 Ibid, [87]. 190 Ibid, Attachment 27. [2020] FWC 758 48 that a person with a physical injury finds that they are unable to undertake some essential task of their work and needs to explain to their supervisor why that may be so and why their performance then suffered. Had she accepted in the meeting on 17 May 2019 that her conduct was unacceptable and expressed regret and committed to remedial or other action which might reasonably lead to the conclusion that what took place was a one-off event never to be repeated, she may have been able to anticipate The School would earnestly consider a different outcome to dismissal. As it is, what The School heard were denials giving no insight as to her conduct or how it may have affected others as well as a blanket denial that she had any responsibility for what took place. [160] Louise said in the meeting that she had read the 9 May 2019 allegations letter only the day before, and denied in her evidence to the Commission that the contrary was the case.191 While she remembered her conversation with the Head of Science’s husband, she categorically denied The School’s allegations about what happened.192 She argues that at the time she was “very calm”.193 She denied threatening to the husband that she would sue The School.194 Pertinent to the events of 9 May 2019 she denied having not been truthful to the School Head about what actually happened.195 While Louise accepts that when she was told she would be dismissed she became angry, she denies her response was extreme and denied being unprofessional or screaming or saying that “you cannot sack me”.196 Finally, Louise denied throwing documents at the School Head, although agreed she gave documents to the Head.197 [161] It is well accepted that an employee accused of misconduct has an obligation to assist and be truthful to their employer in the course of an investigation. It follows that truthfulness in the course of an investigation may potentially impact on the outcome of the investigation. The School’s Head alludes to this in the course of her witness statement, considering that Louise’s responses about her interaction with the Head of Science’s husband were untruthful. The Head of School records that Louise: “… denied the allegations emphatically, aside from the fact that they had spoken. I had been open to the possibility that she may complain that [the Head of Science’s husband] had misconstrued aspects of their conversation. But I was quite taken aback by her denials. I had no reason to disbelieve [the Head of Science’s husband], and I was concerned that [Louise] was now answering questions in a way that was highly unusual. I did not believe she was being truthful. However, [Louise] was also informing me that she was approached by [the Head of Science’s husband], whereas [the Head of Science’s husband] had indicated it was the other way around.”198 (names removed) 191 Transcript, PN 3573 – 3576; 3583 - 3585. 192 Ibid, PN 3609 – 3612. 193 Ibid, PN 3625. 194 Ibid, PN 3631. 195 Ibid, PN 3677 – 3683. 196 Exhibit R1 [124]; Transcript 3696 – 3701. 197 Transcript PN 3702; 3723. 198 Exhibit R1, [117]. [2020] FWC 758 49 [162] Louise’s further responses then convinced the Head of School she was being untruthful, despite her narrative about the commotion of 9 May 2019 being directly contradicted by each of the other eyewitnesses: “… when [Louise] provided her response to what happened with [the Head of Science] on 9 May 2019, she left me with no trust and confidence that her employment could continue. Again, [Louise’s] responses were unusually brief and direct, and she denied doing anything wrong, to the point that again I did not believe she was being truthful. By and large, I accepted the accounts I had received from [the Head of Science], [the Director of People and Strategy], [the People and Strategy Manager] and others. I was satisfied that the incident had been brought about by [Louise’s] own actions. I was satisfied that [Louise] had such little insight into what happened that I had no confidence she understood the way her actions could have played a part in what happened, let alone that she may have done something wrong. There was no insight into what had happened, and I could not trust that she would not behave that way again.”199 (names removed) [163] The evidence allows the findings, which I make, that by the time of the break in the meeting on 17 May 2019 Louise had committed several forms of misconduct. She had failed to disclose to The School at the start of or before her employment relevant employment and medical history, despite an obligation to do so. She had also inappropriately engaged in discussion with the Head of Science’s husband and breached confidentiality, making threats relevant to her employment relationship (although I have not found that to be a valid reason for termination of employment). [164] In relation to the events on 9 May 2019, she had either gone to The School with the intent of removing its property from the premises or had opportunistically decided to do so once on the premises. She had unreasonably argued on that day with the Head of Science in the vicinity of students and other staff, with no regard for what they may hear or think or feel about the situation, or the need to be discreet or confidential about their discussion. Her conduct on 9 May 2019 caused significant concern to those around her and had the potential to create a serious reputational risk for The School. [165] Louise’s failure to acknowledge either the facts of her conversation with the Head of Science’s husband on 29 May 2019 or what happened on 9 May 2019 or to show contrition about her conduct is fully consistent with her earlier conduct and behaviour. [166] More significantly, her failure to either acknowledge what occurred or to show remorse were dishonest actions on her part. These were not moments of mere embarrassment or oversight, but a deliberate scheme on her part not to acknowledge her notoriously obvious conduct and thereby attempt to mislead her employer. Louise’s deliberate endeavour to mislead her employer were contrary to her obligation to be truthful in the course of an investigation. The School was entitled to honest responses from Louise when it probed what had occurred, and the fact that Louise did not answer in the way she should inexorably meant that The School could not be confident she would be honest with it in the future.200 The same comments must be made in respect of Louise’s failure to disclose her employment or medical history to The School, despite her obligation to do so. 199 Ibid, [118]. 200 Streeter v Telstra Corporation [2008] AIRCFB 15, (2008) 170 IR 1, [14] – [17]; [19]. [2020] FWC 758 50 [167] Despite the obvious ever-presence of her mental illness, Louise consistently refused to accept responsibility either for the conduct which could flow from the illness, or the need to control the illness, at least as it manifests itself in the workplace. Her last meaningful opportunity to do any of those things was in the meeting with the Head of School on 17 May 2019. She had the opportunity to go into the meeting and say “yes, as a matter of fact my behaviour was beyond the pale, and I am really sorry for what occurred”. She could have coupled that with an explanation of why she was so anxious on the day. She could have offered attendance by her at an independent medical examiner to put in place future controls. But she did not. Instead, she chose simply to deny what were by that point notoriously evident facts. Worse, when she was informed that she would be dismissed, she resorted to type; she became angry, flailed around and made threats against The School. [168] I find that the actions of Louise on 9 May 2019 were misconduct. She acted in a way which was not only inappropriate, but unprovoked and thereby created the potential for serious reputational and legal risk to The School. When she was given the opportunity to respond to The School’s allegations about those events her responses dissembled, lacked honesty and were generally inconsistent with established facts as well as being an endeavour to shift blame. Those matters are a valid reason for The School to have dismissed Louise. [169] In the dismissal meeting Louise demonstrated further misconduct by keeping from The School the first of two WorkCover Certificates of Capacity dated 17 May 2019, which contained information that was relevant to The School’s decision making. After being dismissed there was further misconduct in the form both of her display of anger and aggression in the meeting itself, as well as sending two generally distributed emails attacking what The School had done. [170] These forms of misconduct, on and after 9 May 2019, are particularly egregious on Louise’s part. Her lack of control and lack of preparedness to work within the norms of behaviour and conduct established by The School strike at the heart of the employment relationship. Having been counselled repeatedly about her behaviour and conduct since November 2018 and warned explicitly in March 2019 about the consequences of repetition, the possibility that Louise would temper her conduct and find ways to work with The School had long since evaporated. She likely went into the meeting on 17 May 2019 realising her position was perilous and chose not to be entirely accurate and honest. I therefore find that Louise’s misconduct in relation to the events on and after 9 May 2019 are a valid reason for her dismissal. [171] In forming a view of whether there was a valid reason for an employee’s dismissal, s.387(a) also invites consideration of a person’s capacity or conduct in relation to its effect on the safety and welfare of other employees. Serious misconduct may include conduct which causes serious and imminent risk to the health or safety of a person.201 [172] Although there is no evidence which would suggest a serious and imminent risk from Louise’s behaviour or conduct or her continued employment to the health or safety of any person, there is evidence which would suggest those matters would likely have an effect on the health or safety of other people at The School. In particular, her ways of dealing with challenges to her, in the form of erratic behaviour, raised and shouting voice, relentless verbal 201 See Fair Work Act 2009, s.12; Fair Work Regulations 2009, r.1.07(2). [2020] FWC 758 51 and written over-communication all compound to what would be at best a grinding and very difficult relationship. That things were not getting better but worse by May 2019 leads to the finding that the health and safety of others would likely be further affected by Louise’s behaviour and conduct. [173] Further, the absence of honesty by Louise about her conduct brings into consideration of the effect of her likely future conduct, if retained in employment, on the safety and welfare of other employees. Her lack of acceptance even that she behaved as she did allows a finding that repetition of her conduct would be highly likely if she remained in employment. Leaving aside for a moment whether by mid-May 2019 Louise deserved to be dismissed, taking the employment relationship at its most benign characterisation, Louise was by that time in serious, probably irretrievable conflict with her employer and senior people within The School. Short of absolute withdrawal on their part, allowing her simply to work as she wanted, there was no way imaginable that further meltdowns on her part would not occur. Any endeavour to meet and discuss matters would likely lead to conflict. Significant pieces of the employment law apparatus – an anti-bullying application; a medical certificate purporting to prevent otherwise legitimate meetings from taking place; a workers’ compensation application; occupational health and safety inspectorate complaints; and a general protections application – had already been engaged and deployed by that date and would likely be further engaged and turned on her employer or people associated with it. By 17 May 2019, such a situation was already taking its safety and welfare toll on other employees.202 The state of the situation in May means that in the absence of even the most basic recognition by Louise of how her conduct and behaviour was perceived or how it must be changed, allowing Louise to continue in employment would likely further and potentially unjustifiably compromise the safety and welfare of other employees. [174] I am therefore satisfied on the evidence that The School held valid reasons for Louise’s dismissal related to her person’s capacity or conduct (including its effect on the safety and welfare of other employees). Those reasons, as set out above, were her failure to disclose prior to or shortly after employment relevant previous employment disciplinary and medical history; that she was not competently performing the duties of her role; and her misconduct associated with the events on and after 9 May 2019. (b) whether the person was notified of that reason [175] Louise was notified of only one set of the reasons held by The School for her termination of employment, with that matter being set out in a letter to her, dated 17 May 2019. The set of reasons notified to Louise were three matters of direct misconduct, being the grounds for dismissal, namely Louise’s attendance at The School on 9 May 2019 “to remove school property without permission”; by arguing with the Head of Science in the vicinity of students and other staff; and that those actions caused significant concern for others and created a serious reputational and legal risk to The School. [176] Subsequent to dismissal, The School relied upon other matters as well, namely; that Louise was dishonest about her health and previous employment when she applied for employment; misconduct associated with her interactions with the Head of Science’s husband on 29 April 2019; and that by 17 May 2019, Louise was no longer performing her role competently. While the reason of misconduct associated with her interactions with the Head 202 See, for example, Exhibits R3, [57] – [60]; R4, [188], [197] – [202], [204] – [210]; R10, [127] – [128]. [2020] FWC 758 52 of Science’s husband on 29 April 2019 was not explicitly stated within the termination of employment letter as a reason for termination, it is to be noted that Louise’s responses on the subject in the termination meeting, and its conclusion the responses were not truthful, were taken into account by The School in making its decision to dismiss her. [177] In relation to the reasons disclosed to an employee at the time of dismissal, the Full Bench has observed that an employer may rely on such reasons as it wishes in a hearing, although the lack of pre-dismissal disclosure may be relevant to the Commission’s consideration of other subsections of s.387: “[51] Section 387(a) of the FW Act requires FWA to consider “whether there was a valid reason for the dismissal”. This language directs attention to whatever reason or reasons for dismissal emerge from the evidence and are relied upon by the employer. The tribunal is not confined to a consideration only of the reason or reasons given by the employer at the time of the dismissal. An employer is entitled at the hearing of an application for an unfair dismissal remedy to rely upon whatever reason(s) the employer wishes to rely upon at that time, albeit that in relation to any reason not relied upon at the time of dismissal the employer will have to contend with the consequences of not giving the employee an opportunity to respond to such reason (see s.387(b) and (c) of the FW Act).”203 [178] That reasoning builds on the earlier authority of the Full Bench in Crozier v Palazzo Corporation Pty Ltd in which it was put that “a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified”.204 [179] I find that Louise was notified of the reasons set out in the termination letter, and not notified before her dismissal of further reasons now put to the Commission, namely; that Louise was dishonest about her health and previous employment when she applied for employment; misconduct associated with her interactions with the Head of Science’s husband on 29 April 2019; and that by 17 May 2019, Louise was no longer performing her role competently. (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person [180] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal.205 While so, it is also accepted that “an opportunity to respond” amounts to an opportunity to provide reasoning to a decision maker that would, all things being equal, allow a reasoned explanation to cause the decision maker to accept what is proffered and to change from their foreshadowed path. [181] At least in relation to the matters disclosed in the termination of employment letter, such an opportunity was afforded to Louise, with The School having informed on 9 May 2019 203 AGroup Placements Pty Ltd v O’Loughlin [2011] FWAFB 5230, [51] per majority. 204 AIRCFB (2000) Print S5897; (2000) 98 IR 137, [73]. 205 Chubb Security Australia Pty Ltd v Thomas (2000), unreported, AIRCFB, Print S2679 [41]. [2020] FWC 758 53 of the allegations it wished to explore and their consequences, if established. Louise was then invited to attend, and did attend, a meeting with The School’s Head on 17 May 2019. She attended the meeting with her former husband and the School Nurse as support people. The School arranged for an interpreter to be in the meeting, provided at its expense. The Head of School’s evidence, which I unreservedly accept, is that she listened to Louise’s responses, and that she was taken aback by Louise’s denials about her conversation with the Head of Science’s husband; that she did not think Louise was being truthful on that and other subjects.206 The evidence establishes, and I accept, that Louise was given an opportunity to respond in the meeting to The School’s allegations. [182] There were then three groups of reasons relied upon by The School which were not disclosed in the termination of employment letter and which Louise had not been put on notice that it was considering terminating her employment for reason of the matters; Louise was dishonest about her health and previous employment when she applied for employment; misconduct associated with her interactions with the Head of Science’s husband on 29 April 2019; and that by 17 May 2019, Louise was no longer performing her role competently. [183] I note again, in relation to Louise’s conversation with the Head of Science’s husband that while that matter was not explicitly stated within the termination of employment letter as a reason for termination, it is to be noted that Louise’s responses on the subject in the termination meeting, and its conclusion the responses were not truthful, were taken into account by The School in making its decision to dismiss her. I also note that while established by me as misconduct on Louise’s part, I have not found that particular interaction to be a valid reason for dismissal. [184] In relation to the other matters, misleading the employer on pre-employment disciplinary action and medical history, and performance of her role. I doubt that any further or formal opportunity to respond would have either brought forward any useful material that would have persuaded The School to move in a different direction or that such opportunity would have been meaningfully responded to. Certainly, there had been significant engagement with Louise by May about the competence of her work performance but which had neither been accepted or positively responded to. Both matters, of disclosures at the time of employment, as well as competence of work performance were discussed at length in the hearing, with there being no meaningful resolution of either; Louise neither accepts the subjects as something over which she could be called to account, or that she failed in any respect. [185] While the Respondent can be said to have been procedurally unfair in not disclosing these reasons to Louise and giving her an opportunity to respond, such does not ultimately sway the decision to be given in this matter. (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 [186] Louise attended the meeting in question with her husband as a support person. The School also arranged and paid for the attendance of an interpreter and had the School Nurse attend as a support person for Louise as well. There was no unreasonable refusal by The 206 Exhibit R1, [117] – [118]. [2020] FWC 758 54 School to allow Louise to have a support person present to assist at any discussions relating to her dismissal. (e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal [187] One of the reasons given for Louise’s dismissal relates to her competent performance of her work. She had been warned in some detail in March 2019 about her conduct and work performance, however she did not either accept the warning as legitimate or do anything to ensure the identified problems were not repeated. (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 [188] There is no evidence before the Commission that the size of the employer’s enterprise impacted on the procedures it followed in effecting Louise’s dismissal. (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 [189] The evidence shows that The School had access to dedicated human resource management specialists or expertise about the procedures to be followed in effecting Louise’s dismissal. (h) any other matters that the FWC considers relevant [190] Section 387(h) requires taking account of any other matters to be relevant in my determination of this application. One such matter is Louise’s mental illness. The formal evidence before the Commission on the subject is scant, with the high point being the assessment given in several of the General Practitioner’s certificates and worker’s compensation certificates and to a certain extent within the Psychologist’s communications. The most they say is that Louise was suffering from “depression and anxiety”; that those matters affected her attention/concentration, her memory (short and/or long term) and her judgement (ability to make decisions); and that those matters combined manifested themselves with “lowered mood, increased distress”.207 [191] The informal evidence though would show that such diagnosis was hardly profound. All but the matter of depression was likely constantly conspicuous to all concerned at The School from at least 4 September 2018, and was most definitely evident to the Commission throughout the pre-hearing and hearing phases of dealing with Louise’s application. Mental illness is a modern calamity and deserves to be taken seriously. People afflicted with mental illness deserve reasonable accommodations to be made by their employer for them to deal with the consequences of the illness. However, what is required is no more than would be required of the employer of someone suffering from any number of other illnesses; employees may be entitled to have lighter duties while they undertake chemotherapy, or it may be reasonable to move a person’s starting time and working days because of a permanent 207 Ibid, Attachment 46. [2020] FWC 758 55 incapacity. What is not required for anyone is for a wall to be built around the employee so that employing them means doing things their way and not otherwise. [192] Louise’s mental illness and conduct has affected not only herself but those around her. The Co-worker reports being upset by the relationship and no longer has trust in Louise and believes that her conduct greatly affected the Head of Science.208 For her part, the Head of Science has been unambiguously affected by a totally toxic supervisory relationship. She has had her integrity called into question and has been threatened without any justification of a report to be made to the teaching registration authorities. She has had cause to go back over in her mind whether her decision to engage Louise in the first place was the right one and whether the Head of School, who came along after Louise’s engagement will think badly of her. Her witness statement provides raw evidence about the effect on her personally; she has not been able to attend to a disabled son as much as she would like and, worse, those caring responsibilities were dreadfully impacted by the email Louise sent staff after being dismissed. At the time she was at a dinner with her son and husband: “Because of his disability, [my son] is easily distressed. I have to keep my emotions contained around him at all times, for his wellbeing. So, I had to put aside my shock at [Louise’s] email, and continue dinner as if nothing had occurred. It was very hard for me.”209 (names removed) [193] I have also taken into account in forming my decision whether, despite my findings of there being several valid reasons for Louise’s dismissal, the fact that the Respondent relies upon some matters that were not disclosed to Louise at the time of her dismissal may mean that her dismissal is an unfair dismissal. I do not make that finding. As discussed above, had each of the matters relied upon been put to Louise for response prior to dismissal, the likely result would be further denials and claims of bullying. Her dismissal is not unfair because of any procedural fairness defects on the part of The School. [194] After considering each of the criteria within s.387, I am satisfied that there was a valid reason for Louise’s dismissal and that there were no substantial procedural defects or other matters which would cause me to find that notwithstanding their being a valid reason for her dismissal that the dismissal was otherwise unfair. [195] As a result, I am unable to find that Louise was unfairly dismissed. [196] As a result, Louise’s application for unfair dismissal is dismissed and an order to that effect is issued at the same time as this decision. COMMISSIONER Appearances: 208 Exhibit R3, [59] – [60]. 209 Exhibit R4, [186]. [2020] FWC 758 56 Louise, the Applicant, for herself (other than 4-5 December and closing submissions); Mr Bruce Shaw, Counsel for the Applicant (for 4-5 December and closing submissions only). Mr Ben Tallboys, Solicitor for the Respondent. Hearing details: 2019. Melbourne; 4-5 December; 11-13 November; 9-11 October. 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