respondent. Application dismissed. Claim for denied contractual entitlements dismissed as out of time and because the Coordinator contract had been terminated; dismissal from Level 4 position found not harsh,...
Key principles
A dismissal is not unfair where the employee persistently disregards clear directions of the employer about rostered hours and organises her work to her own advantage,...
A termination of a role (the Coordinator position) is a dismissal of that contract even if the employer intended the appointment to be temporary or imperfectly documented; an...
Procedural fairness was satisfied where the management committee gave notice of concerns, conducted a disciplinary process including written correspondence, allowed the employee...
Issues before the court
Whether the applicant was unfairly dismissed from her Level 4 Support Worker position on 24 November 2000.
Whether the applicant was denied contractual benefits (a claim for $22,272 less wages from 31 July 2000) arising from alleged continuation in the...
Whether procedural fairness was denied in the decision-making process leading to dismissal.
Plain English Summary
Ms Niblett, who held overlapping roles at a refuge and at a domestic violence council, was demoted and later dismissed after repeated warnings about conflicts in rostered hours and alleged attendance at the council during Koolkuna hours. The Commission found the employer had given warnings, allowed responses, and properly dismissed her for persistently failing to follow directions about hours; the contractual claim about the Coordinator role was out of time. The application was dismissed.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,516 words · generated 18/06/2026
What happened
Andrea Niblett had worked at the Koolkuna refuge since March 1999. In March 2000 she was appointed to a 12‑month Coordinator position at Koolkuna while simultaneously holding a coordinator role with the Eastern Region Domestic Violence Prevention Council (the Council). Tensions arose between Ms Niblett and another senior staff member, Ms Pranee Pawaboot, and the committee became concerned that the applicant’s rostered hours at Koolkuna conflicted with her Council duties. The committee issued warnings and conducted a review (for example, correspondence and a review meeting in June 2000 and a formal warning on 12 May 2000). After Ms Pawaboot was dismissed on 31 July 2000, the Commissioner found that the Coordinator contract for Ms Niblett was terminated and she was demoted to a Level 4 Support Worker. The committee continued to raise concerns about Ms Niblett’s communication with clients and, critically, about her attendance at Council during rostered Koolkuna hours, in some instances while reportedly on sick leave from Koolkuna. The committee met on 12 November 2000, resolved to dismiss, sent a letter of concerns on 16 November, received Ms Niblett’s response on 20 November, and issued a dismissal letter on 24 November 2000 effective 27 November. Ms Niblett lodged an application in the WA Industrial Relations Commission under s29(1)(b)(i) and (ii) alleging harsh/unfair dismissal and a denied contractual benefit. Commissioner S Wood heard the matter and dismissed the application (result recorded as Application dismissed).
Cited legislation
No linked legislation citations have been extracted yet.
Why the court decided this way
The Commission applied the familiar 'fair go all round' approach from Undercliffe Nursing Home, the inquiry focused on whether the employee had been given a fair opportunity and whether the employer’s reasons and process justified dismissal. The Commission made several interlocking factual findings supporting the employer:
There was documentary and credible witness evidence (Mrs Day, Ms Avezzu, Ms Rose) that the employer had sought to accommodate the dual roles only on the basis that there be no conflict with Koolkuna duties; that condition was repeatedly emphasised in correspondence and in rostering discussions (see the May and June letters and Document 12 setting conditions on the appointment).
The Commission rejected the applicant’s evidence that she continued in the Coordinator role after 31 July 2000 or that she had an unfettered agreement to attend Council during Koolkuna hours. The judge characterised her evidence as self‑serving and unconvincing.
There was a documented disciplinary trail: warning letter(s), a review meeting, explicit direction about roster compliance, a management committee resolution to dismiss, an opportunity to respond (the 16/20 November exchange), and then termination. The Commission held procedural fairness requirements were satisfied.
The decisive factual conclusion was that the applicant persistently failed to take proper regard of employer directions about rostered hours and organised her hours to her own advantage (the Commission accepted she was stressed, but concluded that stress derived from circumstances the applicant created). Given those facts, dismissal from the Level 4 role was not unfair or disproportionate.
On the separate contractual entitlement claim, the Commission accepted that the Coordinator contract was terminated on 31 July 2000 and held that the applicant had not pursued a timely unfair dismissal claim in respect of that earlier termination; accordingly that claim was dismissed.
Before and after state of the law
Before this decision, the Commission relied on established Undercliffe principles: the dismissal must be considered against whether the employee had a fair opportunity to respond and whether the employer’s action was reasonable in the circumstances. This decision applies those principles to a factual matrix where an employer had previously accommodated a secondary employment arrangement, then withdrew or limited that accommodation when it caused operational conflict.
After this decision, the case reinforces two points in the WAIRC canon:
Accommodation of dual employment is conditional; an employer may lawfully require adherence to rostered hours even if some accommodation was initially made.
Evidence of prior accommodation will not immunise an employee who persistently contravenes roster directions and organises hours in their own favour; such conduct may justify dismissal if the employer follows a fair process.
It is not a novel expansion of legal principles; it is an application of Undercliffe in employment circumstances involving overlapping roles and rostering conflicts.
Key passages with plain-English translation
"I do not accept Ms Niblett's evidence that she continued to do some of the duties of the Coordinator's position at Koolkuna post 31 July 2000. The evidence was self‑serving and quite unconvincing. In contrast it is clear that her contract as the Coordinator was terminated consequential to Ms Pawaboot being dismissed from the position of Manager."
Plain English: The Commissioner did not believe the applicant’s claim that she kept working as Coordinator after 31 July 2000; the contract ended then.
"The very clear view that I have formed ... is that Ms Niblett persistently failed to take proper regard of the concerns and directions of her employer. I am convinced that Ms Niblett was stressed by the matters arising at Koolkuna but I am also convinced that those matters were of her own making and that she consistently engineered her hours of work to her own advantage."
Plain English: The Commissioner found the employee repeatedly ignored employer directions about hours and organised her schedule for her own benefit; although she was stressed, the stress resulted from her own choices.
"I am also not convinced that there was an absence of procedural fairness ... Ms Niblett had an opportunity to put her case."
Plain English: The Commissioner was satisfied the committee gave the employee a fair chance to respond before dismissing her.
These passages show the combination of credibility assessments, findings of fact about conduct, and procedural evaluation that determine the result.
What fact patterns trigger this precedent
This decision is most directly relevant where:
An employee holds two roles (or has secondary employment) and the primary employer initially accommodates that arrangement on the basis of no conflict with rostered duties.
The employer later imposes or re‑emphasises rostering constraints because operational needs or interpersonal conflict make the arrangement untenable.
The employee continues to attend to secondary employment during rostered hours for the primary employer, including instances where timesheets indicate attendance at the primary employer while the employee is elsewhere.
The employer issues warnings and follows a documented disciplinary process, allows the employee to respond, and then terminates employment for continued non‑compliance.
If those facts are present, this decision supports the employer where it can show conditional accommodation, repeated warnings, credible witnesses, and an opportunity for the employee to answer allegations.
How later courts have treated it
This judgment operates as a state industrial commission decision applying existing Commission principles; it does not create a novel statewide principle but applies Undercliffe. In practice, later WAIRC panels and practitioners would treat it as a persuasive application of Undercliffe in dual‑role/rostering contexts. The Commission relied on precedent (E.J. Richardson) to reject revival of an out‑of‑time contractual claim. Legal practitioners should cite this decision when arguing that (a) conditional accommodation does not license persistent non‑compliance, or (b) an employer who documents warnings and allows responses has satisfied procedural fairness.
Note: this deep dive does not catalogue subsequent citations of the case. Users seeking how appellate courts or other tribunals have expressly followed or distinguished the decision should conduct citator searches (e.g., LawCite or other citators) for later judicial or tribunal treatment.
Still-open questions
Where an employer's initial appointment documentation is imperfect (e.g., a 12‑month appointment given without full committee authority), how readily will a tribunal treat the appointment as a binding fixed‑term contract for entitlement purposes? In this decision the Commissioner treated the March appointment as a 12‑month contract but found it terminated by operation of changed circumstances; other fact patterns with clearer documentation or different responses by the committee might lead to different outcomes.
How strong must documentary proof be to displace an employee’s account that a roster change made it impossible to meet both roles? Here the Commissioner accepted management witnesses and documents over the applicant’s testimony. In closer cases, contemporaneous diary, email or roster evidence may be decisive.
What is the boundary between legitimate disciplinary action for attendance breaches and adverse action that is tainted by interpersonal conflict or managerial inconsistency? The decision emphasises the importance of procedural steps and documented warnings; nevertheless, where the disciplinary process itself is inconsistent or applied selectively, tribunals may be less ready to find fairness.
Where an employee attends secondary employment during a period of sick leave from the primary employer, how should tribunals approach medical evidence of incapacity or fitness for work? This decision treated attendance elsewhere while on sick leave as strong evidence of non‑compliance; different factual patterns involving partial capacity or reasonable alternative duties may require closer assessment.
Practical takeaway for practitioners: maintain contemporaneous records of roster directions, warnings and responses; when accommodating secondary employment, make the accommodation explicit and conditional in writing; and when disciplinary action is taken, ensure a documented, stepwise process that gives the employee a real opportunity to respond on specific allegations.
Judgment (34 paragraphs)
[1]
Andrea Niblett v Koolkuna Eastern Region Domestic Violence ServicesNetwork [2001] WAIRComm 3652 (20 August 2001)
[2]
KOOLKUNA EASTERN REGION DOMESTIC VIOLENCE SERVICES NETWORK
This is an application pursuant to section 29(1)(b)(i) and (ii) of the Industrial Relations Act, 1979 (the Act). The applicant, Ms Andrea Niblett alleges in her application that she was unfairly dismissed from her position at the (Koolkuna) refuge on 24 November 2000. The reasons given were:
Conflict of hours between Koolkuna and the Eastern Region Domestic Violence Prevention Council (the Council)
Poor performance in regard to communication
Attending work for another employer whilst on sick leave from Koolkuna.
The applicant also claims a denied contractual benefit of $22,272 less wages paid from 31 July 2000 for what she says is the remainder of her contract as the Coordinator of Koolkuna.
The respondent, the Eastern Region Domestic Violence Services Network, is an organisation run by a voluntary committee of management, an incorporated body, and is primarily set up to receive funding through the Family and Children's Services Department to operate domestic violence services. In particular the respondent operates a refuge known as Koolkuna where the applicant was employed.
The applicant commenced work with the respondent on a part time basis on 23 March 1999. She was employed as a support worker to assist with the administrative and general domestic duties at the women's refuge. On 11 March 2000 she says she was appointed to the position of refuge Coordinator and another employee, Ms Pranee Pawaboot, was employed as the Manager of the refuge. These staffing changes arose when the then Manager, Ms Lorena Rose, left to take up a temporary position with Department of Family and Children Services. As a consequence of difficulties in the working relationship between Ms Pawaboot and Ms Niblett, and the consequent effect on services, Ms Pawaboot was dismissed from her position on 31 July 2000 and Ms Niblett was demoted to the position of support worker effective from the same date. At that time a Ms Avezzu took over the management of the refuge. Ms Pawaboot filed two applications in the Commission for unfair dismissal and denied contractual benefits. These applications were dealt with by Commissioner Smith and orders issued on 4 May 2001.
[7]
"The clear intention of the committee was that this was to be a temporary assignment but unfortunately the way on which the appointments were made by the manager did not properly reflect the intentions of the committee and there's no doubt that the appointments that were given to the two employees were purported to be for a 12 month term and didn't state sufficiently accurately that this was clearly in the absence of the manager or whilst they appropriately performed the duties of the position." (Transcript Pg 224-225)
[8]
The position which Ms Niblett held as Coordinator was a Level 6 position under the Crisis Assistance Supported Housing Award (a federal award). The award was used as the benchmark for funding and employment of staff. The appointment was for a full-time position.
Ms Niblett was removed from the position of Coordinator on 31 July 2000 and, although this is in contention, then performed as a Level 4 Support Worker at Koolkuna until she was ultimately dismissed on 24 November 2000. The respondent says that the applicant accepted the change of contract from Coordinator to Support Worker until such time as she was ultimately dismissed from Koolkuna. The respondent says the demotion related in part to Ms Niblett's own actions but was primarily due to the dismissal of Ms Pawaboot and not being able to have two people perform the Coordinator role, which in any event was finally removed as a position.
The applicant says that she was not dismissed from the position of Coordinator but that there was a variation of the contract; she continued to work full-time and only the designation of the position changed. Ms Niblett says that she continued to do some of the duties of the Coordinator.
I will deal with this matter first as the evidence is clear. I do not accept Ms Niblett's evidence that she continued to do some of the duties of the Coordinator's position at Koolkuna post 31 July 2000. The evidence was self-serving and quite unconvincing. In contrast it is clear that her contract as the Coordinator was terminated consequential to Ms Pawaboot being dismissed from the position of Manager. The contract was for a twelve month period and clearly a dismissal from the position of Coordinator took place. That was the full-time contract operative at the time, regardless of whether the respondent intended the contracts to operate otherwise. I make no finding as to whether the dismissal at that time was unfair or harsh as it is not necessary to do so. Ms Niblett's remedy would have been to lodge a claim for unfair dismissal. She did not do so and cannot successfully make such a claim now as she is out of time (E.J.Richardson v Cecil Bros Pty Ltd74 WAIG 1018). I also have no doubt that Ms Niblett accepted the change until she was dismissed from the Level 4 position many months later. A complaint was raised on her behalf by Mr Bibby, a union official, but was not pursued with vigour. For these reasons I would dismiss the claim relating to denied contractual entitlements.
[9]
"I must apologise for the delay in confirming our verbal discussions on 26 June 2000.
[10]
This letter is to confirm the outcome of the review meeting held on Monday 26 June 2000 regarding two final performance concerns outlined in my letter of 12 May 2000.
[11]
We discussed and agreed that the level of improvement in your communication style and support and cooperation with the Manager during the review period, has demonstrated the standards required were achieved.
[12]
On behalf of the Management Committee, I would like to say that I am pleased that the matters of concern have been resolved.
[13]
It is also the expectation of the Management Committee that now you have demonstrated these performance standards, they will continue to be met in the future."
[14]
This is document 27. A bundle of documents was provided to the Commission as agreed by the parties, albeit they varied on the weight to be attached to some of the documents (Transcript pg 302). The respondent challenges that this letter also related to the resolution of the time-keeping concerns.
[15]
In addition, Mr Ward on Ms Niblett's behalf says that there was a history of management taking issue with Ms Niblett's dual performance of her Koolkuna and Council responsibilities and then acquiescing. He characterises this as acceptance by management, which would alter, when they had other complaints that they sought to raise with Ms Niblett. At such times concerns regarding a conflict of roles would be resurrected. Mr Ward says that nothing of concern appeared in Ms Niblett's performance from 10 July 2000 until her dismissal on 24 November 2000 except for a report from one of the residents which he says is unreliable. He says also that the special committee meeting of 12 November 2000 made it clear that the applicant was to be dismissed and that nothing she could do or say to Mrs Day after that committee meeting could have changed the course of her dismissal. Hence he alleges that her dismissal was both procedurally and substantively harsh and unfair.
The letter of dismissal of 24 November 2000 (Document 45) states:
[16]
I acknowledge receipt of your written response to the above
[17]
The Management Committee have carefully considered your response and have determined that it does not adequately address our concerns over your performance and behaviour. Despite previous disciplinary action by the committee, issues and concerns consistent with the initial disciplinary action have continued. You have clearly failed to accept that the Committee, being the legal employer, has not sanctioned the manipulation of your working hours to allow you to work for two organisations concurrently.
[18]
The Committee believes that your actions in obtaining medical justification for your absence from duty at Koolkuna whilst brazenly attending for work with another organisation reflects the degree of non commitment to Koolkuna and its clients and is indicative of the extent to which you have gone to defy the wishes of the Committee.
[19]
Further, your response to the written complaints received from clients did not adequately address the concerns of the Committee. There is consistency in complaints received from clients which demonstrates that your communication style is inappropriate in an agency dedicated assisting women in crisis.
[20]
Your statement that the Management Committee 'not side with clients so readily" has been considered. Whilst it is accepted that "clients are often extremely sensitive". It is the case that whilst there are numerous written and verbal complaints on record from clients, staff and other organisations regarding your behaviour, there are none concerning other staff of Koolkuna with similar roles.
[21]
After serious consideration of all the issues involved and with regard to the consistency of concerns, and your continual non-compliance to the behaviour expected of a staff member of this organisation the Committee has unanimously determined that your employment with Koolkuna be terminated as of Monday 27 November 2000 on the grounds of unsatisfactory service.
[22]
Under these circumstances you will not be required to serve a period of notice. You will be paid in lieu of the notice period and will be paid all accrued and pro rata annual leave to which you are entitled. A separation certificate and cheque together with a statement outlining leave entitlements will be mailed to you within the next three days."
[23]
The final payments to Ms Niblett are not challenged. Ms Rose was Ms Niblett's manager on appointment and was part of the selection panel which recommended her for the Coordinator's position. She was also the Chairperson of the Council for half of 1999 and for the year 2000 and was on the selection panel which recommended Ms Niblett for the coordinator's job with the Council. Her evidence is that Ms Niblett was a conscientious worker who worked well with the women and the children and in the court support programme. She says that the applicant's work at Koolkuna and with the Council was complementary. The issue of Ms Niblett's dual responsibilities at Koolkuna and the Council were raised at the interview for the Koolkuna Coordinator. The roster was drawn up to accommodate Ms Niblett's dual role. She says that Pranee, Andrea and her worked together on the roster.
I have no difficulty accepting the evidence given by Ms Rose. She was direct in her evidence and under cross-examination and the importance of what she had to say is that in her view there was full knowledge of Ms Niblett's dual positions at the time she was offered the Koolkuna Coordinator's position, both by Pranee and at least one member of the committee. Ms Niblett's dual role in her view was of relevance to Koolkuna and was accommodated through rostering changes. It is clear from her evidence also that the dual role was accepted on the basis of no conflict with her duties at Koolkuna (Document 7).
Ms Avezzu, similar to Ms Rose, is now outside the operations of Koolkuna and gave a clear and objective account of matters arising during her time as Manager. I accept her evidence. I accept also the evidence of Mrs Day who was involved in much of the activities designed to correct the staffing or other problems that were being experienced at Koolkuna. I was impressed with her as a witness. I have no difficulty accepting as credible the evidence provided by Dr Wilson and Ms Wright, albeit the evidence of Ms Wright was accompanied by a degree of hesitancy under cross examination.
I am less convinced that the evidence of Ms Niblett can be accepted without question. She was neither consistent nor direct in parts of her evidence. In particular, I doubt greatly her evidence surrounding whether she continued to perform the duties of the Koolkuna Coordinator after 31 July 2001. I also found her evidence concerning her application to hours quite unconvincing. An example of this is clearly seen at Transcript pg 65-67 where she indicates that she was allowed one afternoon a month off for the Council meeting but also was aware of substantial day time hours required for Council work. I would prefer the evidence of Mrs Day and Ms Avezzu to that of Ms Niblett.
[24]
"Availability of the Co-ordinator for 20 hours per week. The Co-ordinator clarified that she was based at the office in the old Midland Library on the following days and times:
[25]
"(MR O'CONOR): Yes. How was it possible that you were able to indicate to that organisation they were the times you could work for them when they were certainly some of the times in which you would have to work at Koolkuna?
[26]
(MS NIBLETT)---I will have to repeat again that in September, around this date I thought? - - our roster was done. Up - - and we were informed in that meeting - - I can't remember what's the date, that that will be the roster for 3 weeks. So when I received that and I was asked by my other management committee what are the days that I could work for them, because they have agreed that they could accommodate month to month changes to help me be able to do what jobs. But as soon as I have already submitted this schedule the time that the - - what do you call it, the roster has been changed again."
[27]
Mrs Day was part of the selection panel who appointed the applicant as Coordinator for Koolkuna. She says that the issue of a potential for conflict between the two jobs was raised and discussed at interview. Document 12 raises the concerns of the committee soon after Ms Niblett started in the Coordinator's role. The letter is clear and supported by the evidence of Ms Rose in that she says that there should not have been conflict in the roles and Monday was left free in the roster for Ms Niblett's Council business. The Commission can only surmise from the evidence and the letter that the whole situation was not clarified to everyone's common understanding and agreement prior to Ms Niblett taking on the Koolkuna Coordinator's role. Document 12 says:
[28]
I am writing to inform you that your letter of appointment to the position of Refuge Co-Ordinator, written on 11 March 2000, was written without the authorisation of the full Board of Management of Koolkuna.
[29]
The Board of Management accepted your appointment to this position conditional on an immediate review of the conditions of employment a) and b).
[30]
The non-interference of your role as ERDVPC Co-Ordinator within this organisation
Your availability between 7.30am and 6pm Tuesday to Friday
[31]
At the Management Committee Meeting of 4 April 2000 your joint roles as Coordinator and ERDVPC Co-ordinator was discussed at great length. It was the consensus of all Members present that the above situation is untenable as both positions held by you, require duties to be performed during 7.30am to 6pm Monday to Friday.
[32]
An option put forward by the Members present who are representatives of both Boards is that you may need to consider resigning from one of the positions.
[33]
We feel that an urgent solution needs to be found to meet the requirements of both your positions and request that a meeting be held as soon as possible to discuss this further.
[34]
The evidence of Mrs Day is that Ms Niblett continued to work for the Council during times when she should have been working for Koolkuna and when her time sheet said she had worked for Koolkuna. Her evidence is also that Pranee Pawaboot was not capable of managing the situation, the conflict between Ms Niblett and Ms Pawaboot was affecting staff and Koolkuna's services and that Mrs Day had to take over the disciplinary action involving Ms Niblett. This led to Mrs Day issuing Ms Niblett with a warning letter on 12 May 2000 which she says was the first in the formal disciplinary process. Again the terms of the letter are clear, and without citing the letter, it directed Ms Niblett to comply with a strict roster to avoid conflict with her two roles, to communicate professionally with other staff and to comply with management instructions. Ms Niblett replied to that letter stating that she had been put in an untenable position of having to choose between the two roles, she had sought legal advice and that Mrs Day's position was unfair.
There followed a period where Ms Niblett either did not attend to the Council because she was instructed not to, did attend but was on sick leave from Koolkuna or simply attended. There followed a meeting of the management committee of Koolkuna on 12 November 2000 where they resolved to dismiss Ms Niblett. They made their decision against a backdrop of concerns about inappropriate behaviour by Ms Niblett to clients and her attendance at the Council whilst on sick leave from Koolkuna. There followed a discussion between Ms Niblett, Mrs Day and Mr Bibby, a union official who represented Ms Niblett. The concerns of the management committee were put into a letter of 16 November 2000. Ms Niblett replied on 20 November 2000. The management committee considered the response, decided to go through with the dismissal and Ms Niblett was advised by letter on 24 November 2000, as previously cited.
The issue which is clear from all of the evidence is that Ms Niblett did not respond appropriately to the direction of the committee, through Mrs Day, to not allow her working hours at Koolkuna to be adversely affected by her attending to Council business. Ms Niblett appeared to take the view that she should have been allowed to continue her Council work as required. She says there was an agreement to allow her to do this. The evidence speaks strongly against this and only displays a conditional accommodation of Ms Niblett's dual roles subject to no conflict with her Koolkuna work. Ms Niblett also says that the arrangements she had for her Council work were fully known by the respondent and if not endorsed, as per Ms Rose's evidence, were accepted by the respondent in that these arrangements were not hidden in any way. Koolkuna had at all times a representative on the Council; i.e. they knew what she was doing.
Parties
Applicant/Plaintiff:
Andrea Niblett
Respondent/Defendant:
Koolkuna Eastern Region Domestic Violence ServicesNetwork [2001] WAIRComm 3652
AI Analysis
Outcomerespondent
Disposition:
Application dismissed. Claim for denied contractual entitlements dismissed as out of time and because the Coordinator contract had been terminated; dismissal from Level 4 position found not harsh, unjust or unreasonable.
It is clear that the conflict between the parties stemmed from the poor working relationship engendered between Ms Pawaboot and the applicant and the concern of the committee for the services operated due to the friction between these two senior staff, who had previously been friends. Secondly, and most importantly, the conflict revolved around the absence of the applicant from Koolkuna to attend to her duties with the Council. Thirdly, the respondent expressed ongoing concern about Ms Niblett's communication skills vis-à-vis clients and staff.
When Ms Lorena Rose was seconded to a 12 month position in the Family and Children Services Department, both Ms Pawaboot and the applicant, following a selection process, were given twelve month contracts in their respective roles of Manager and Coordinator. Mr O'Connor for the respondent says:
This leaves the issue as to whether Ms Niblett was harshly, unfairly or oppressively dismissed from her full-time position as a Level 4 Support Worker. The principles applied in Undercliffe Nursing Home -v- Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch65 WAIG 385 are what must guide the Commission in these circumstances. That is did Ms Niblett receive a fair go all round? Mr Ward for the applicant says that as of 10 July 2000 Ms Niblett had a clean bill of health. The letter of Mrs Day (the Chair of the Koolkuna management committee) to her says:
The two issues of most significance relate to the allegation that Ms Niblett failed to follow the directions of the respondent by attending to the work of the Council during her hours of work for Koolkuna. There is also the allegation that Ms Niblett failed to communicate properly with clients. I do not consider this latter point to be of equal importance in determining whether the termination of the applicant's services was fair or otherwise. Whilst I accept the evidence of Mrs Day in respect of client conflicts with Ms Niblett, the investigation of the matters cannot be said to be conclusive, or given Ms Niblett's otherwise record of service to Koolkuna, sufficient to lead to her dismissal. This is not to say that I do not accept that they were ongoing issues of concern.
Ms Niblett says that she had an arrangement with Koolkuna to accommodate her work with the Council. This is consistent with the evidence given by Ms Rose and the evidence also is that the arrangement was that there was not to be conflict with her work at Koolkuna. I find that there was initially an arrangement with Koolkuna to accommodate Ms Niblett's work at the Council, on the basis of no conflict with her work at Koolkuna. Ms Niblett says that the problem was that conflict arose as the rosters were changed regularly and this made it hard for her to fulfil both roles. She also says that she was told to put down regular hours on her time sheets rather than the actual hours worked. This evidence is in direct contrast to a direction from Ms Pawaboot of 20 March 2000, which was initialled by the applicant (Document 9). It is also in contrast to very early concerns raised on behalf of the committee about her conflict in hours (Documents 10, 12 and 19 as examples).
Ms Niblett says that Ms Avezzu prevented her from attending the Council during Koolkuna's hours, that on 6 September and 11 October 2000 she attended the Council while on sick leave from Koolkuna and that the specification of the hours she was to work for the Council was challenged and clarified. Document 35, the minutes of the Council, in part state:
Weighed against this is the evidence of Ms Avezzu and Mrs Day of the corrective action which they undertook to ensure that Ms Niblett complied with her hours of work for Koolkuna. It is quite clear from this evidence, which I accept, that Ms Niblett could have been left with no other impression than she needed to apply herself to her duties at Koolkuna during her rostered hours, albeit these rostered hours did change to a degree. The impression gained is not one of acceptance by the employer but that Ms Niblett had a continual disregard of her employer's concerns and organised her working arrangements to her own advantage against the instruction of her employer.
The very clear view that I have formed after listening to the evidence of Mrs Day and Ms Niblett in particular, after reading the train of correspondence between Ms Niblett and Mrs Day, after checking the hours to be worked in the two jobs and the hours recorded by Niblett, and after hearing the evidence of Dr Wilson concerning Ms Niblett's stress induced by the situation at Koolkuna, is that Ms Niblett persistently failed to take proper regard of the concerns and directions of her employer. I am convinced that Ms Niblett was stressed by the matters arising at Koolkuna but I am also convinced that those matters were of her own making and that she consistently engineered her hours of work to her own advantage. At all times at hearing she sought to give the impression that the employer had acted unreasonably in the concerns they raised continually. The impression Ms Niblett wished to leave the Commission with was that she was entitled to do as she wished because she was a conscientious employee in the face of an unfair employer. This is far from how I view the matter. I find that Ms Niblett engineered her hours of work to her own advantage against the expressed concerns and directions of her employer. It is on this basis alone, leaving aside the other history of conflicts at the workplace between Ms Niblett and Ms Pawaboot and the concerns about communication with clients, I would find that Ms Niblett's dismissal to be fair (Undercliffe Nursing Home -v- FMWU).
I am also not convinced that there was an absence of procedural fairness arising from the management committee's decision of 12 November 2000. Ms Niblett had an opportunity to put her case. She simply wanted to continue doing what she had been doing against the understandable concerns of the committee.
For the above reasons I would dismiss the application.