2012 WAIRC 00340
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CITATION : 2012 WAIRC 00340
CORAM / : Commissioner S M MaymanHEARD / : / wednesday, 7 september 2011, Thursday, 8 september 2011, FRIDAY, 9 SEPTEMBER 2011, THURsday, 20 OCTOBER 2011
DELIVERED : WEDNESDAY, 6 JUNE 2012
FILE NO. : U 173 OF 2010
BETWEEN / : / Kylie WoodApplicant
AND
Rainbow Coast Neighbourhood Centre Inc
Respondent
CatchWords : Termination of employment - Harsh, oppressive and unfair dismissal claim - Industrial Relations Act 1979 (WA) s 29(1)(b)(i) - Procedural fairness - Was the investigation and inquiry reasonable in the circumstances - Condonation - Principles for compensation for injury - Principles for compensation for loss - Occupational Health and Safety Act 1984 - Improvement notice - Code of practice Violence, aggression and bullying at work - Commission for Occupational Safety and Health - 2010
Legislation : s 23A, s 23A(b), 23A(6), s 29(1)(b)(i) Industrial Relations Act 1979 (WA)
s 4(3), s 6(3), s 8(3) Long Service Leave Act 1958 (WA)
Legal Profession Act 2008 (WA)
s 23K, s 43, pt VI div 1 s 48 Occupational Safety and Health Act 1984 (WA)
s 4(3), s 6(3), s 8(3) Long Service Leave Act 1958 (WA)
s 74 United Kingdom Employment Protection (Consolidated) Act 1978 (UK)
Result : Minute issued
Representation:
Applicant : Ms J Price
Respondent : Mr G McCorry (as agent)
Case(s) referred to in reasons:
Associated Dominion Assurance Society Pty Ltd v Andrew & Haraldson (1949) 49 SR (NSW) 351
AWI Administration Services Pty Ltd v Birnie [2001] WAIRC 04015, [2001] 81 WAIG 2849
Babcock Fata Ltd v Addison (1987) IRLR 173
Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224
Bogunovich v Bayside Western Australia Pty Ltd [1998]) 78 WAIG 3635
Bone Densitometry Australia Pty Ltd trading as Perth Bone Densitometry v Lenny [2005] WAIRC 02081 [2005] 85 WAIG 2981
British Home Stores Ltd v Burchell (1978) IRLR 379, 380
Browne v Dunn [1894] 6 R 67
Burazin v Blacktown City Guardian Pty Ltd 142 ALR 144
Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430
C v Quality Pacific Management Pty Ltd (1993) 73 WAIG 988, 997
Hill v Minister for Local Government Territories and Roads PR946017 26 April 2004 Lacy SDP
John Lysaght (Australia) Ltd v Federated Iron Workers' Association; Re York (1972) AILR 517
Lynham v Lataga Pty Ltd (2001) 81 WAIG 986
Max Winkless Pty Ltd v Bell (1986) 66 WAIG 847
McCasker v Darling Downs Co-operative Bacon Association Ltd (1998) 25 IR 107
Miles v The Federated Miscellaneous Workers' Union of Western Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385
Murray Irrigation Limited v Balsdon [2006] NSWCA 253Hill v Minister for Local Government Territories and Roads (Lacy SDP) (PR 946017)
Phillips v Foxall (1872) 7 LRQB 666
Portilla v BHP Billiton Iron Ore Pty Ltd [2005] WAIRC 2604; [2005] 85 WAIG 3441 [166]
Robe River Iron Associates v The Association of Draughting, Supervisory and Technical Employees of Western Australia [1987] 68 WAIG 11
Shire of Esperance v Mouritz (1990) 71 WAIG 891
Smith v Penrhos College (2002) WAIRC 04854
Smith v Saracen Management Pty Limited (2002) 82 WAIG 1050
Timms v Phillips Engineering Pty Ltd (1977) 70 WAIG 1318
Wadey v YMCA Canberra [1996] IRCA 568
Reasons for Decision
1 The substantive proceedings in this application relate to a claim pursuant to s 29(1)(b)(i) of the Industrial Relations Act 1979 (WA) (the Act) by MsKylie Wood (the applicant) against the Rainbow Coast Neighbourhood Centre Inc (the respondent). Specifically, the applicant's claim relates to an assertion that she was unfairly dismissed by the respondent. The substantive claim was filed on 22 October 2010. Following a series of conciliation conferences the WesternAustralian Industrial Relations Commission (the Commission) referred the matter for hearing and determination in Albany and subsequently in Perth with final submissions being received on a date fixed by consent, on 20October 2011.
2 The question the applicant sought to have determined was whether the respondent exercised their legal right to dismiss the applicant in such a way that the right was exercised harshly, unjustly or oppressively against the applicant, as to amount to an abuse of that right.
Preliminary Matter (Primary Issue)
3 Prior to the substantive matter being dealt with the respondent sought an application that the arbitration by the Commission be adjourned due to the unfortunate death of MsIreland's mother. MsKarenIreland (Ms Ireland), was a member of the respondent's board and was due to give evidence at the hearing the following week as the respondent’s primary witness.
4 The application for adjournment was opposed by the applicant. The applicant submitted the view that the respondent’s board was made up of a number of members and therefore, whilst the applicant extended her sympathy to the family of MsIreland, it was not necessary to vacate the hearing.
5 The Commission had regard for the applicant’s and the respondent’s submissions and issued a declaration vacating the hearing listed on 2, 3 and 4 August 2011. Furthermore, the declaration rescheduled the matter in Albany on 16, 17 and 18 August 2011 at the Albany Courthouse [2011] WAIRC 00780; [2011] 91 WAIG 1896. The Commission indicated reasons for decision would issue later.
6 The declaration earlier referred to was appealed to the Full Bench and a decision was issued [2011] WAIRC 00821; [2011] 91 WAIG 1831.
Preliminary Matter (Secondary Issue)
7 Prior to the proceedings commencing MrGraham McCorry (Mr McCorry), agent for the respondent, raised the issue of potential bias between MsJanelle Price (Ms Price) being the applicant’s witness in addition to seeking to act as her advocate.
8 The respondent submitted where a party may be self-represented the Commission recognises there can be conflict between the two roles. The procedure that is normally adopted is that witnesses are excluded from the hearing of other evidence until such time as a witness has concluded their evidence. Similarly the Commission instructs a witness not to discuss any evidence they may have given to other potential witnesses. Such instructions are integral to protect the process of the trial which is adversarial in nature. If witnesses are permitted to remain in court before giving their evidence then they may receive evidence previously unknown to them in cross-examination from other witnesses.
9 The Commission must rule on both the credibility of the applicant as a witness and the merit of the evidence put in or omitted by the applicant. The respondent submitted that neither the Act, nor the Legal Profession Act 2008 (WA) limits the rights of appearance of advocates who are not registered agents or practitioners. Nor is it an offence under the Legal Profession Act 2008 (WA) for a person to appear for another party providing they are not directly or indirectly paid for doing so.
10 An applicant is able to, without any objection from the respondent appoint any other person to be her advocate in the proceedings. The respondent submitted in such circumstances MsPrice should not be permitted to be both a witness and the advocate for the applicant.
11 In reply the applicant outlined she understood the differentiated role between an advocate and a witness. It was submitted that MsPrice’s witness statements and such evidence provided by her as a witness were limited to those matters addressed in her statement and such matters that may arise through cross-examination. The Commission may only consider knowledge available to the respondent up to and inclusive of the date of termination, that being 18September 2010.
12 The apparent partiality of MrMcCorry is within the Commission’s power also to consider having regard for Industrial Relations Commission Regulations 2005 (WA) pt 4 and 6 (div2, 63) to not place any restriction on an applicant's nominated agent with respect to appearing as a witness.
13 The applicant submitted Ms Price is neither being directly or indirectly paid by the applicant or any representative of her family as an advocate. The respondent's application should therefore be dismissed.
14 The Commission considered the submissions of the respondent and the applicant and considered that MsPrice would be able to act as the applicant’s advocate following the giving of her evidence having regard to equity, good conscience and the substantial merits pursuant to s 26 of the Act, recognising that Ms Price is not an agent registered pursuant to the Act.
Background
15 The applicant and the respondent’s advocate submitted a statement of agreed facts signed by the applicant and MrMcCorry representing the respondent:
1. The respondent operates a community centre in Albany that includes a crèche for persons using the services of the respondent.
2. The applicant was employed by the respondent as crèche supervisor from May 2003 until 18September 2010.
3. The applicant's employment was on a permanent part time basis until November 2006, and on a casual basis of 17 hours per week from 12 October 2007 onward.
4. On 21 May 2010 the applicant was suspended from her duties on full pay.
5. Between 21 May 2010 and early June 2010 an investigation into allegations made against the applicant was carried out by Mrs Bridget Green.
6. On 1 June 2010 the applicant lodged a complaint with the respondent and requesting copies of the respondent’s Grievance Procedure and Workplace Bullying policies.
7. On or about 1 June 2010 the applicant lodged a complaint with WorkSafe WA.
8. On or about 10 June 2010 the applicant lodged with the respondent a worker’s compensation first medical certificate claiming she suffered an injury commencing on 22March 2010 and the onset of the disability occurred on 21 May 2010.
9. On 14 June 2010 the respondent's industrial advisors wrote to the applicant acknowledging her letter dated 1 June 2010 and seeking particulars of the complaint to the benefit of insurers.
10. On 14 June 2010 the respondent held an extraordinary ordinary meeting of board members to discuss Mrs Green’s Report.
11. On 15 June 2010 the respondent wrote to the applicant requesting the applicant ‘Show Just Cause’ in writing by 18 June 2010 as to why her employment should not be terminated.
12. On 16 June 2010 the applicant's legal representative wrote to the respondent's industrial advisor advising that the applicant declined to ‘Show Just Cause’ and requesting the respondent provide full details of the alleged incidents upon which it was relying.
13. On 14 July 2010 the respondent's industrial advisor wrote to the applicant's legal representative withdrawing the applicant's requirement to ‘Show Just Cause’.
14. On 6 September 2010 the respondent’s industrial advisor provided the applicant’s legal representative with a second ‘Investigation Report’, prepared by Mr Graham McCorry.
15. The applicant's employment was terminated effective as of 18 September 2010. The applicant received such advice on 24 September 2010.
16. The applicant was paid during the period of suspension from 21 May 2010 to 18September 2010.
17. The applicant was paid 4 weeks pay in lieu of notice.
Applicant’s Submissions
16 The applicant's employment was terminated on 18 September 2010 as her conduct, in the view of the respondent, had destroyed the relationship of trust and confidence. In the view of the respondent, having considered alternative options, the respondent concluded that termination was most appropriate.
17 The applicant submitted that any alleged conduct by the applicant failed the objective tests. In particular in Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224; 229 the Full Bench of the SouthAustralian Commission observed in circumstances where employees were alleged to have failed to have cooperated with their employer:
An employee is entitled to both substantive and procedural fairness in respect of a dismissal. Substantive fairness will be satisfied if the grounds upon which dismissal occurs are fair grounds. Broadly speaking a dismissal will be procedurally fair if the manner or process of dismissal and the investigation leading up to the decision to dismiss is just.
18 The applicant submitted that the manner and the process of the dismissal were unwarranted and unfair particularly in relation to the process used by the respondent having regard to the process that had been conducted by the respondent leading up to the termination of the applicant.
19 On 3 May 2010 the respondent's centre manager, MsCate Ham (Ms Ham), held discussions with the applicant relating to her conduct. The discussions were initiated without prior notice and without the offer of a support person. The meeting was later minuted by MsHam. On 5May 2010 the applicant was directed in writing to meet with the respondent’s board members on 10 May 2010 for both issue resolution and a performanceappraisal. On 10 May 2010 the minutes of the 3 May 2010 meeting were produced for the applicant’s immediate response without prior notice or perusal. During the course of the meeting the applicant was not made aware of any written allegations against her.
20 On 21 May 2010 the respondent’s board convened and decided to stand the applicant down as a result of some written complaints about the applicant, allegations which were denied by the applicant. The substance, nature and particulars of these allegations were known to the respondent but were not provided to the applicant. The applicant was stood down from the workplace that same afternoon. The bullying incidents alleged by other employees occurred in early 2009.