Hansen v Mt Martha Community Learning Centre Inc [2015] FCA 1099 | Case summary

REASONS FOR JUDGMENT 1 The applicant, Jocelyn Hansen, was the coordinator of children's services employed by the first respondent, Mt Martha Community Learning Centre Inc ("the respondent") from 16 June 2009 until her summary dismissal from that employment on 16 September 2014. In this proceeding, she alleges that her dismissal was done in contravention of certain provisions of Pt 3-1 of the Fair Work Act 2009 (Cth) ("the FW Act") and that the second respondent, the General Manager of the respondent, Kevin Murphy, was involved in those contraventions within the meaning of s 550 of the FW Act. The applicant further alleges that her dismissal amounted to wrongful termination under her contract of employment. She also makes other allegations against the respondent to which I shall come in due course. THE FACTS 2 The respondent is an incorporated association pursuant to the Associations Incorporation Act 1981 (Vic). It is a not-for-profit body providing a range of services which, broadly, fit into three main streams: (1) kindergarten and childcare services, (2) the services of a registered training organisation, where courses are conducted for which government funding is received, and (3) other courses, covering such things as languages, crafts and hobbies. The facts of the present case related to events within the first stream of services, kindergarten and childcare. A narrative outline of those facts must commence in May 2012. 3 The respondent's operations were conducted in a heritage building with a central courtyard. The children's centre occupied an arm of the building, and the courtyard was the playground for the children. On 17 May 2012, a homeless man entered the complex through another wing of the building and went into the playground. Melissa Dewhurst, a child care assistant responsible for occasional care for 0-5 year-olds, and who also helped out with the three year-old kindergarten group, was out in the playground with the children. She called the applicant about the intruder. The applicant approached him, and he gave her to believe that he wanted an alcoholic drink. The applicant told him that there was no alcohol there, and escorted him towards the door leading out of the courtyard. As the two of them were moving in that direction, a child of about 18 months of age stepped out of the sandpit and into the path of the intruder. He picked the child up. The applicant told him to give the child to her, to which he replied, "No, he's mine." The applicant repeated her instruction, and this time the intruder did as he was told. She told the intruder to leave, and he did so. Having ensured that the child was settled, the applicant rang Mr Murphy, and explained to him what had happened. In the course of that explanation, Mr Murphy said that he could hear the intruder, and terminated the conversation with the applicant. 4 The intruder having left the courtyard meant that he was back inside the building complex of which the centre was a part. From his office, Mr Murphy noticed someone in the corridor, and went to investigate. He found the intruder wandering around. He grabbed the intruder by the arm and, as he put it in his evidence, "exited" the intruder out a side door of the building. The intruder attempted to resist this, but Mr Murphy, using some force, succeeded in getting him out the door, then closed the door behind him. The intruder, now outside the door, smashed the glass window panel in the upper part of the door, cutting his hand in the process. Having been called by someone, the police arrived very promptly and, after some searching around, found the intruder and apprehended him. 5 Meanwhile, the applicant had to deal with her staff who were, she said in her evidence, in a state of shock, and she had to communicate with the mother of the child whom the intruder had picked up, and explain to her what had happened and assure her that all was well. Later on the same day, the police obtained statements from the applicant, Mr Murphy and some other staff at the centre. At one point while the police were present, Mr Murphy passed the applicant in the corridor and requested her to come and speak to him after the police had finished with her. She did not do so: at about 6:30 pm, Mr Murphy went to find the applicant, but the children's centre, where the applicant was based, was locked and in darkness. 6 That night, the applicant (who did not know Mr Murphy's home number) rang the president of the committee of management of the respondent, Vivienne Clarke, and reported to her on the incident involving the intruder. Ms Clarke rang Mr Murphy, and asked him to call the applicant. He did so and, in the conversation which followed, the applicant agreed to complete a report of the incident to the Department of Education and Early Childhood Development ("the department"). 7 The next morning, 18 May 2012, the applicant first set herself to writing a report about the incident for the parents, who she assumed would have heard about it. Writing that report was, she said, her "key priority". Mr Murphy came to the children's centre and an argumentative conversation ensued. In their evidence, each of the two protagonists sought to paint this conversation in terms which made the other appear the more unreasonable. For present purposes, it is sufficient to say that Mr Murphy asked the applicant about the report for the department. She told him that she would prepare it as soon as she had finished her report to the parents. That indication was not well-received by Mr Murphy, who proceeded to give the applicant an unambiguous direction to attend to the report for the department. The applicant thereupon, in Mr Murphy's words, yelled that he should not tell her how to do her job, following which she went into her office and closed the door. Subject only to denying that she "yelled" that injunction, the applicant accepted that she did proceed in this way. Mr Murphy followed the applicant into the office and, according to the applicant, stood over the desk where she was seated, shook his finger at her and told her to get the report done, adding that it was "a lawful order". According to Mr Murphy, he said to her, "I will take this up with you at a later stage." According to the applicant's own written report on this matter (see para 8 below), she yelled at Mr Murphy to get out of the office. 8 At 8:32 am on 22 May 2012, the applicant sent an email to Ms Clarke. Attached to it was a letter, dated 19 May 2012, in the following terms: I am writing to express my lack of confidence in the General Manager, Mr Kevin Murphy. I do not consider that he is providing staff with leadership or support. My reasons for this are as follows: 1. We have not had a staff meeting this year. I attended the office last Wednesday for a meeting which I had been told would occur but Kevin was not available. 2. Kevin does not organize regular meetings with me. We only meet when I go to his office and ask if he is available. 3. I have requested assistance to check our budget figures but this still has not occurred. 4. My staff believe that Kevin does not know their names and say that he never acknowledges them when he sees them. 5. I asked if an annual report was required from Children's Services for the Community One Inc. annual report. He said that he did not think this was necessary. 6. After the incident of the intruder on 17th May 2012, I have no confidence in his ability to adequately support his staff in difficult situations. In 38 years as a professional educator and manager in children's services I have had only 2 occasions when a Manager has spoken to me in a raised voice, with finger pointing in my face. Both occasions have been managers at Community One. Please find attached reports of the 2 incidents, from my perspective. The "2 incidents" referred to in the last line of this letter were the subject of two appendices to the letter. The first dealt with the intruder incident itself on 17 May, and referred to Mr Murphy only in passing. It did not contain any complaint, nor even reservation, about his conduct. The second dealt with the events of 18 May described in the previous paragraph. 9 In her email to Ms Clarke, the applicant requested "that this be placed on record". She said that she had "no expectation of any specific action". Notwithstanding that request, in an email to the other members of the committee at 4:48 pm on 23 May 2012, Ms Clarke said that the email would be tabled as correspondence at the next meeting. She added that she would absent herself from all discussions about the matter, since the applicant was her sister-in-law. When the matter was being discussed, another member of the committee, John King, would preside. 10 It appears that none of the emails referred to in the two previous paragraphs was sent or copied to Mr Murphy. At the time of the events referred to in the next paragraph, he was not aware of the applicant's complaint to the committee. 11 On 23 May 2012, Mr Murphy telephoned the applicant, and left a message for her to call him back. In an email to her at 5:54 pm that day, he confirmed that he had done so, asked to have a "one on one meeting with you tomorrow sometime", and requested her to let him know her availability. At 8:29 am on 24 May, the applicant informed Mr Murphy, by email, of the times that she was available that day. At 9:06 am, Mr Murphy responded, suggesting a meeting at 4:00 pm, but added that he had had second thoughts overnight, and he now proposed to have Karen Featherstone, the receptionist, join them in the meeting "to ensure some impartiality". At 10:26 am the applicant sent another email, asking Mr Murphy to indicate what it was that he wanted to discuss. At 1:10 pm Mr Murphy replied that it related to "the issue that occurred last Friday" (ie on 18 May), adding that he needed to sit down with the applicant and identify his concerns, and to put in place "a process that maximises the chances of successfully resolving the concerns". At 1:31 pm, the applicant responded that it was important to discuss "last Friday", but stating that she was not comfortable having Ms Featherstone involved, as she worked closely with her and Mr Murphy was her manager. She said that it would be "more appropriate if it was someone objective, such as Christine the counsellor". 12 At 1:50 pm on 24 May 2012, the applicant sent an email to Mr King. She attached what she described as "the recent correspondence" she had received from Mr Murphy. She said that she was "not comfortable with it", and wondered if Mr King could give her some advice. 13 At 3:03 pm on 24 May 2012, Mr Murphy responded to the applicant's most recent email to him that day (ie at 1:31 pm), asking her for some times that she would be available the following Monday, 28 May. He added that, as the engagement of Christine would incur costs, he needed "to justify these costs by making this more formal". His email continued: To Jo Hansen Childcare Coordinator I am now giving you prior notice of a formal disciplinary procedure to discuss serious concerns relating to your recent conduct. • On Friday morning at around 9.00 am you refused a lawful directive from me to immediately notify DEECD. • You displayed unacceptable behaviour by raising your voice and demanding I leave the Childcare centre. • Both of these actions were in front of other staff members which was not appropriate. • You went into your office and closed the door you then came out and refused to discuss the matter with me and continued to tell me to go away. • I find this behaviour unacceptable as your General Manager. You have a right to be represented. The meeting is to discuss the concerns in more detail and you will have an opportunity to put your side before any further action will be taken. After a further brief email from Mr Murphy about timing, at 3:47 pm the applicant responded that she would "take the opportunity to have formal legal representation at this meeting". 14 At 4:10 pm on 24 May 2012, Mr Murphy sent a copy of all the emails referred to in paras 11-13 above to Ms Clarke and to Mr King. He said that the applicant had "escalated this issue to a legal level". He said that, normally, it would be an operational matter, but that it had the "potential to flow over into the committee's lap." Recognising that there would be "conflicts of interest issues", he asked if they were happy for him to handle the matter. Although it is not amongst the emails in the evidence, Mr Murphy said that he thought he received an email from Mr King fairly quickly, saying that he needed to speak with him (Murphy) and the applicant. He asked Mr Murphy to "hold back". 15 At 4:14 pm on 24 May 2012, Mr King responded to the applicant's email sent to him at 1:50 pm. He said that he would like talk both to the applicant and to Mr Murphy separately before he had any other meetings, and told her that he would be in touch the following day once he had worked out a time. It does not appear from the evidence whether, when he sent this email, Mr King (who did not give evidence) had read Mr Murphy's email sent at 4:10 pm. 16 On 25 May, Mr King emailed the applicant with a request that she provide the best times to meet on the following Monday, 28 May. It does not appear from the evidence whether, or if so how, the applicant responded to that, but, at 2:49 pm on 28 May, Mr King asked the applicant to give him a couple of times when she would be available the following day, 29 May. In a return email sent at 4:48 pm, the applicant did so, but Mr King did not meet with her on 29 May. His next email to her (in this chain) was dated 7 June 2012, when he noted that Mr Murphy was away for a couple of weeks, and suggested that, on his return, the three of them should "sit down and go through the issues", adding that it was his hope that all the issues would then be resolved. 17 Mr Murphy was indeed away: he took two weeks' leave in the first half of June 2012. The applicant responded to Mr King's email of 7 June on 11 June, saying that she had been in bed with the flu. She told Mr King that she had been advised that she should consider a Workcover claim of "workplace bullying" with respect to what she described as an "incident" with Mr Murphy on 18 May, and the subsequent formal disciplinary procedure. She said she was "surprised and disappointed" that Mr Murphy would have gone on two weeks' leave without first resolving this disciplinary procedure. She asked Mr King whether the foreshadowed meeting would address Mr Murphy's disciplinary notice only, or would include also "the broader issues" of her report to the committee. 18 Under cross-examination, the applicant accepted that, in the second half of June after Mr Murphy had returned from his leave, "it was just business as usual" between herself and him, that they "were communicating", and that "everything seemed to be fine." This may have been a statement of the outward indications of the working relationship between them, but it did not reflect the applicant's ongoing concerns during this extended period when the disciplinary procedure invoked by Mr Murphy against her, and her own letter to the committee about him, were, in effect, left hanging in the air. At one stage during this period, Mr King came into the applicant's office and asked, "What's this all about? Let's have a chat about this". He gave the applicant to believe that the only document that he had read was Mr Murphy's disciplinary procedure against her. He was not even aware of her complaint about Mr Murphy. Mr King's comment to the applicant was, "I get so many emails, I can't read them all". 19 It was not until 23 July 2012 that a formal meeting was held in relation to the disciplinary procedure invoked by Mr Murphy against the applicant. At that meeting, the applicant was accompanied by Lyn Davenport as her support person. According to the applicant's evidence, it was agreed that there had been what she described as a "misconstrual of behaviour" on both sides: the applicant had responded to what she had perceived to be Mr Murphy's aggression, and she could have responded differently. It was agreed that the disciplinary procedure would be removed from her file, and that they would endeavour to continue working professionally together. The applicant said that her letter of complaint was not addressed in this meeting. 20 During the cross-examination of the applicant by counsel for the respondents, it seemed that it would be Mr Murphy's evidence that the applicant's complaint about him was indeed discussed, and resolved at this meeting on 23 July. By way of example, I set out the following question and answer: Q: But from your perspective, at the end of that meeting on 23 July 2012, both your complaint to the committee and Mr Murphy's disciplinary issue with you were resolved. That's right, isn't it? A: No, I would not agree with that. My complaint to the committee about Mr Murphy was never dealt with and never resolved. The meeting with Mr Murphy, we reached agreement that there had been behaviours on both parts that had been inappropriate and unpleasant, given the duress of the incident that occurred the day before, and I put in place some measures with Mr Murphy to ensure that we were at least able to meet regularly but that did not happen. 21 In chief, Mr Murphy was asked what was the purpose of the meeting on 23 July 2012. He said that it was for him to go through the issues that he and the applicant had in the children's centre "that Friday morning". He said that "they were the areas that we covered off". He said that both he and the applicant put their "points of view of what happened". They each apologised for what had gone on between them. Mr Murphy believed that the meeting ended "quite amicably". As far as he was concerned, "the matter was over and resolved"; "it was forgotten about". 22 As it happened, the committee met that evening, 23 July 2012. An item in the minutes of that meeting was headed, "Children's Centre Incident". Under that heading, it was recorded as follows: Kevin advised he has met with Jo Hansen on several occasions and this incident has since been resolved. It was agreed that John [King] would write to Jo in response to her recent written correspondance [sic] to the committee. When asked in chief what this was a reference to, Mr Murphy said: That's [a] reference to the intruder coming in to the children's centre, and it's advising that I had met with Jo ..... of this incident and since been resolved and it would - you know, it would have been resolved. It was agreed that John would write to Jo, a response to her recent ..... so that's - that's obviously the secretary's response that - that Jo would write, but I - I was advising I had met with Jo. As is apparent, Mr Murphy had some difficulty answering his counsel's question on this subject, but the matter was not taken further, either then or in cross-examination. 23 The question of Mr Murphy's understanding of what had been discussed, and resolved, at the meeting between himself and the applicant on 23 July 2012, and of the entry in the minutes of the meeting of the committee that referred to the applicant's "recent written [correspondence]", has assumed some importance, in the following way. Late in Mr Murphy's cross-examination by counsel for the applicant, it fell out that it was not until this proceeding had been commenced, and he was obliged to search the respondent's records for documents relevant to the applicant's claims, that he (Murphy) first saw the applicant's letter to the committee dated 19 May 2012, sent by email to Ms Clarke on 22 May 2012. In his evidence under cross-examination, Mr Murphy was adamant that he had not seen the letter before the commencement of this proceeding and not, therefore, at any time that was relevant to the events of May-July 2012. He accepted that Mr King may have told him, at some point, that the applicant had made a complaint against him (although he did not accept that he had in fact been so informed), but he had not read the written complaint which was in fact sent to the committee. 24 A number of objective circumstances make sense of Mr Murphy's denial of having seen the applicant's complaint in the period May-July 2012. First, the complaint itself was sent only to the then president of the committee, and by her to the other members of the committee, not including Mr Murphy. Those recipients included Mr King, but, secondly, at some stage in the weeks that followed he made it clear to the applicant that he had not read it. The prospect that he had shown it to Mr Murphy by that stage must, therefore, be excluded. 25 Thirdly, it was the applicant's own evidence that her complaint was not dealt with at her meeting with Mr Murphy on 23 July 2012. She gave the following evidence-in-chief: Q: So did Mr Murphy express any view about your complaint, or the substance of your complaint? A: No. My complaint about him was not mentioned. It was all his complaint about me. So my - that letter of complaint was never addressed by Kevin or the committee or anyone else. …. Q: So in terms of your complaint, just coming back to document 61, where you indicate lacking confidence in the general manager, not providing staff with leadership or support, haven't had a staff meeting, doesn't organise regular meetings, requested assistance to check the budget, hasn't occurred, and never acknowledges staff, doesn't support the staff and raises his voice and points his finger, was that the subject of discussion at the meeting? A: No, it was not. Q: Did Mr Murphy indicate his awareness of those - the substance of that complaint? A: Not in my recollections of that meeting. Q: Okay. So you said he was angry initially. What was he angry about? A: I think - my interpretation of the anger was that he was having to deal with this situation, and that he had been angry with me at the time and that he was still - there was still that anger with my behaviour. Q: Was he angry that you had made a complaint? A: I don't know. For Mr Murphy not to have read her written complaint at that point makes sense of what must have struck the applicant as a curious omission. 26 There was an element of overlap between the applicant's complaint about Mr Murphy and her defence to the disciplinary procedure initiated by him. It seems tolerably clear that Mr Murphy well understood that that defence would involve issues about the robustness, to say the least, of his treatment of the applicant on 18 May 2012. He would not have needed to have read the applicant's written complaint to realise that. At some point in the week ending, for Mr Murphy (who did not work on Fridays), on Thursday 19 July 2012, he wrote his report for the committee meeting that was to be held on the evening of Monday 23 July. In that report, Mr Murphy said that he had arranged a meeting with the applicant "to close off all outstanding issues between her and myself". It is quite feasible that the "outstanding issues" to which he referred were all centred around the events of 18 May. This report need not be viewed as inconsistent with his evidence that he had not, at that stage, seen the applicant's complaint. 27 Consistently with that perspective on things, the item in the minutes of the meeting of the committee - held on the very day that Mr Murphy had had his meeting with the applicant - was headed "Children's Centre Incident" and referred only to that incident having been resolved. The reference to Mr King being charged with writing to the applicant in response to her recent correspondence was, at least according to the evidence, the first occasion upon which Mr Murphy might have become aware of the existence of any such correspondence. But there is no suggestion that the correspondence was tabled at the meeting. It is as though the applicant's complaint was treated, in effect, as a sidebar to the main problem, the satisfactory resolution of Mr Murphy's disciplinary procedure in relation to the applicant. Such a view of the matter derives some corroboration from Mr King's correspondence with the applicant in the days following, and her response. 28 On 26 July 2012, Mr King sent an email to the applicant (with a copy to Mr Murphy) acknowledging the receipt of her letter to the committee, stating that "we" (presumably the committee) had noted her concerns, and "as the issues are of an operational nature we have passed the letter over to Kevin for consideration and where possible resolution". Had that communication been made two months previously, it would have been unsurprising. However, coming when it did, it is consistent only with the committee having done nothing about the matter during those two months. Further, save for Mr King's email as such, there is no suggestion in the evidence that the committee did pass the letter on to Mr Murphy. Mr Murphy did not in fact engage with the applicant any further on the matter. The fact that Mr King was a non-executive member of the committee, and what is now known about his inaction with respect to the complaint over the first two months, make it a realistic prospect that he overlooked doing what he said he would do, or had done, in his email of 26 July. As noted above, Mr Murphy denied that he saw the complaint at any time thereabouts, and there is nothing else in the evidence to undermine that denial. 29 In her response dated 29 July (not copied to Mr Murphy), the applicant said that the disciplinary procedure against her had been withdrawn and resolved as between Mr Murphy and herself. She said that she had "not proceeded with a Worksafe claim at this stage", but her doctor had "a record of the extreme level of stress" that she had been under for the previous nine weeks. But, she said in her email, the general issues raised in her letter to the committee had not been resolved. She had expected a discussion about it with a member of the committee, but that had not occurred. She ended with a note of concern as to the absence of any grievance procedure in the case of a staff member wanting to raise with the committee an issue which she had with the general manager. To the extent that the applicant's email bespoke some underlying irritation about her complaint not having been given the priority that she thought it warranted, one may sympathise with her position. The treatment of the complaint by the committee, however, is consistent with Mr Murphy's evidence that he had not, at that stage, sighted the complaint. 30 Until the making of the applicant's allegations in this proceeding, that was the end of the events of May-July 2012. 31 Additionally to her role as coordinator of children's services, the applicant was required to coordinate the Diploma and Certificate III Children's Services courses that the respondent was conducting. That had come about in the following way. The person whose position the applicant filled on her engagement had moved from the children's centre to coordinating the Diploma and Certificate III Children's Services courses. She was solely responsible for operating those courses for the respondent. Then, at the start of one of the years, this person gave notice. At the time, courses were being conducted and/or about to start. The then general manager of the respondent (Mr Murphy's predecessor) requested the applicant to fill the void created by that departure. She had to "get the courses up and running and finish off the ones that were still in progress". The applicant agreed to do that on an interim basis, and on the proviso that it did not take too much of her time away from the children's centre. In the result, according to the applicant, she found herself teaching a diploma course at night every second week. This took up a lot of her time, so she prevailed upon the respondent to employ first one and then another teacher to assist in this area. This enabled the applicant to withdraw from actual teaching duties in these courses and to concentrate on her work in the children's centre. 32 In December 2012, the government informed the respondent that its funding for these courses for the following year had been withdrawn, amounting to a loss of income for the respondent of about a third. A series of negotiations with the responsible Minister followed, the result of which was that the respondent was permitted to enter into an arrangement with Chisholm Institute of TAFE. By this arrangement, the respondent would deliver Chisholm's courses, at its (the respondent's) premises and using its staff. The courses themselves commenced in June or July 2013, with the first half of the year being occupied with the groundwork required to put in place the detailed measures required by Chisholm. 33 For these purposes, the respondent engaged Helen Lord, whom Mr Murphy described as a very experienced person in running a registered training organisation (which, relevantly to this aspect of its activities, the respondent was). He described Ms Lord as being "very good ... at the compliance side of it to ensure that all the resources were up to standard." Upon engagement by the respondent, Ms Lord reviewed its teaching resources, and met the coordinators, including the applicant. Her meeting with the applicant led to correspondence with Mr Murphy which laid the foundation for another of the applicant's allegations in this proceeding. 34 On 5 March 2013, Mr Murphy emailed the applicant, stating that he had just met with Ms Lord, who informed him that she (the applicant) was not prepared to provide the documentation that she (Lord) had requested and which was needed to comply with Victorian Registration and Qualifications Authority requirements. He said that "under our present predicament" he needed to ensure that the respondent's house was in order, and he had asked Ms Lord to ensure that the respondent was compliant with those requirements. He said that he expected the applicant to "perform as a team member", and as such she needed to ensure that the respondent was compliant "in regard to all of your course records". His email concluded: Under your key functions and responsibilities you are required to manage the delivery of high quality vocational education and training and as such it is essential you comply with all VRQA requirements. I am now giving you a lawful directive to provide and put on file all of the necessary information requested by Helen. If you are unable or not prepared to do this please advise me before 4pm Wednesday 6 March 2013. 35 By return email sent on 6 March 2013, the applicant told Mr Murphy that she took "great offence at the threatening tone" of his email. She said that he ought to have clarified the matter with her before sending the email. She said that it was a "complete misrepresentation" to say that she was not prepared to provide the documentation required. She continued: I told Helen that I was aware of the need for the unit mapping documents and had them ready to complete but that we had not had any time to complete them nor the funds available to pay for this time. I then said, and Helen agreed, that we would have at least 2 weeks notice before an audit and would be able to complete the documentation in this time. Helen agreed that all of our other documentation was present and in good order. It will take approximately 16 hours to complete. I am not able to do this within my usual hours. If you are able to fund the additional time required to undertake the preparation of the documentation I will be very happy to complete it. 36 Mr Murphy replied to the applicant, still on 6 March 2013, stating that "there is no intended threatening tone at all, only regret that you continually take a very insular approach to our present critical situation and are not prepared to contribute without reward to the future wellbeing of the organisation as a whole." He said that the proposition that they would get two weeks' notice of an audit was not her "call to make", and it was a risk that he was not prepared to take. He said that, if there were no less costly way, the applicant would have to bring in a casual to cover her 16 hours of work on the task that he had required of her. 37 In the applicant's rejoinder sent the same day, she said that she did not have any spare hours beyond the efficient running of the centre, and was not prepared to work for nothing. She added, "As the Children's Centre is holding up all other operations at this time, I do not consider my approach to be insular." However, she said that she would comply with Mr Murphy's order and "undertake to complete this task as quickly as humanly possible, at the expense of the Children's Centre, if I can find relief staff at such short notice". Replying on the same day, Mr Murphy set out some financial figures that made it clear that the children's centre was not "holding up the other operations". 38 It was at 6:42 pm on 6 March 2013 that the applicant sent the following email to Mr Murphy: Thank you for informing me about how the finances are distributed. I was unaware of this. I wish to remind you that my role of coordinating the Children's Courses is one that I was asked to take on as a favour to the organisation when the then incumbent resigned with no notice and left the courses in a state of disarray. I worked hard to get them back to a high standard and financially viable. It is a role that is separate from my work as coordinator of the Children's Centre. I now find myself in the position of having to resign as the coordinator of the Children's Services Courses. I no longer wish to be involved with something for which I have received no appreciation and in fact I now feel that I am being abused. I will complete the Unit Mapping as prescribed by the consultant, Helen Lord and my resignation will therefore be effective from Friday 15th March. 39 At 3:13 pm on 7 March 2013, Mr Murphy replied in the following terms: The last increase you were given was in appreciation for the work you were performing so I do understand the comment of not being appreciated and for your information you are the only manager who has had an increase over that period.. [sic] I have asked you to complete a requirement that you were well aware of and I [sic] fact have previously said you would do. I have also pointed out to you that statements you were making are not correct. I do not class either of these as abuse. I can only go by your position description that I inherited and it describes one of you [sic] Functions and Responsibilities as follows "Manage the delivery and evaluation of high quality vocational education and training" During my time here you have performed that task and only been paid at a higher rate for any additional tutoring hours worked and been paid for any claim for time in lieu. I do not believe you can choose to resign from a part of your current position unless you wish to re negotiate your contract in total; however to ensure correctness I will seek advice and get back to you. In the meantime I cannot accept the conditions of your part resignation. 40 After two further brief exchanges on the subject of the source of the position description referred to by Mr Murphy, the applicant wrote to him on 8 March 2013 in the following terms: I have found my letter of appointment and the attached, "out of date" job description. I do not know if it is the same one as the one you have but it is dated 16th June 2009. It was understood at that time that the statement "Manage the delivery and evaluation of high quality vocational education and training" relates to the training of staff and students within the Children's Centre context, not running training courses. I was employed as the Children's Centre Coordinator when the previous coordinator moved to running the Cert 111 and Diploma Courses. To say that my position description included running the training courses would have been in conflict with her position. The additional role as Children's Services Course Coordinator which I undertook in 2011 was initially as a contractor, as you will be aware from the invoices I was submitting for work undertaken, as per instruction from the CEO at the time. It has always been in addition to my role as the Children's Centre Coordinator. It was also intended to be short term until the courses were in better shape. I do not understand why you are taking this response to my resignation from Coordinating the Cert 111 and Diploma Courses. This position has essentially been made redundant since the removal of funding and I assume would be taken over by any organisation with whom you develop a partnership. I do not wish to continue in this role. It is no longer enjoyable work. I will challenge your refusal to accept this partial resignation. 41 On 28 March 2013, the applicant and Mr Murphy met (with others present) with a view, according to the applicant, of renegotiating her role coordinating the courses. She agreed that the meeting was conducted in an amicable manner. The applicant said that she had sought legal advice, and wanted to resign from coordinating the courses, but not from her coordination role in the children's centre. Mr Murphy said that if the applicant did not want to work more than 30 hours a week, that was fine, but that the centre could not afford to employ someone else as a course coordinator. The applicant said that, if she had a trainer, the course coordination role would be more manageable. There was some discussion about approaching two staff members who had previously been lecturing the courses to see if they would be able to come back and continue that work. Mr Murphy said that he was not challenging the work that the applicant did. It was agreed that the course coordination role that the applicant was undertaking would continue, subject to a limit of about one hour per week, and that the matter would be reviewed again in six months' time. After the meeting, the applicant continued to perform the course coordinator duties on that agreed basis. 42 On 2 April 2013, the applicant sent an email to a former member of the committee of management, which contained the following passage: The meeting with Kevin went OK. We agreed that I would continue to provide limited support to the Courses, no more than 2 hrs per week. I will meet with him to redo my job description and agree on specific duties. This will be reviewed in 6 months. He had gone back over everything I had sent him and used some things to prove his case but the jury is still out. At least he had read them!! He will advertise for staff for the Courses and wants me to pull back my hours working with the children. This will need to be a budget decision and when I have adequate staff also. 43 Commencing in December 2012, Melanie Moore was employed as the coordinator of the occasional care centre operations of the respondent, reporting to the applicant. Additionally, she ran the three year-old kindergarten on Monday afternoons. The applicant made it her practice to meet with Ms Moore each Friday afternoon after the children and other staff had left, to discuss any issues that she (Moore) had with what was happening in the room, how her relationship with the other staff was going, and whether there were there any resources, or support from the applicant, that she required. 44 It was the applicant's desire to have this regular meeting with Ms Moore on the afternoon of Friday 11 July 2014, and Ms Moore's refusal to do so, which provoked the unhappy events leading to the summary termination of the applicant's employment. I shall refer to those events presently, but it is necessary first to lay out some background. In retrospect, it may be seen that the fuse for the events of 11 July 2014 was set over a period of a few weeks prior to that day. 45 In the last week in June 2014, Ms Moore's daughter was unwell and had to be hospitalised. During that period, Ms Moore communicated with the applicant by SMS messages, rather than, conformably with what the applicant said was the respondent's policy, by telephone. There was one occasion when Ms Moore sent a message to the effect that she would not be coming to work and that she thought, but did not confirm, that a relief teacher would be attending in her place. In the result, the applicant could not be confident that a relief teacher would attend. Although a relief teacher did in fact attend, the applicant telephoned Ms Moore and asked her to make sure that she rang her, and answered the phone when she (the applicant) rang her (Ms Moore), rather than just sending SMS messages. In her evidence, the applicant described this as "a tricky situation". 46 A week followed when the applicant was either (for one of the days) working on the children's services courses or (on the other days) on annual leave. During this week, according to the applicant, she barely saw Ms Moore. 47 On the morning of Tuesday 8 July 2014, a staff meeting was about to start when Ms Moore entered the room carrying an old kitchen sink which she had retrieved from the tip. Her idea was that it would make an interesting addition to the children's sand pit. The applicant thought that bringing the sink to the staff meeting was not appropriate, and also regarded the sink as "incredibly dangerous". It had been set on a table with its edge completely exposed presenting, as the applicant thought, "a significant danger to the children". But what was worse, as far as the applicant was concerned, was that Ms Moore did not recognise the danger, something which made the applicant "extremely disappointed". In front of the other staff in the room ready for the meeting, the applicant said to Ms Moore, "Look, I'm sorry, that is not safe. We cannot have that with the children like that." 48 From the applicant's perspective, the sink was only the last in a series of inappropriate items which Ms Moore had brought to the centre. From a written warning which the applicant issued to Ms Moore on 11 July 2014 (to which I refer further below), it is apparent that the applicant was also concerned about Ms Moore's having brought "a box and cable reel which had nails and staples sticking out" and "toadstools … not made of natural materials … [which] … were also dangerous with staples on them" and which constituted "an additional item to be packed up each day, adding to other staff workload." According to the applicant, Ms Moore became upset when she expressed her concern over the toadstools, but the problem would never have arisen if Ms Moore had discussed them with her before bringing them into the centre. 49 The applicant had to leave immediately after the staff meeting on 8 July 2014, and, over the next three days, from time to time she thought about having a word with Ms Moore about the sink, and what could be done with it. But each time, according to the applicant, Ms Moore either had her daughter with her or was leaving early. The applicant accepted that it was acceptable for a staff member to have a young child with her during school holidays (as was the situation then), but Ms Moore had not "cleared" it with the applicant before bringing her daughter to work, as would have been the normal practice. Further, that week Ms Moore was changing her shifts regularly, either "coming later or shortening the hours", none of which had been passed by the applicant as her manager. In her evidence, the applicant described these "behaviours" on Ms Moore's part as unusual, unacceptable, unreasonable and very surprising. 50 Ms Moore had indeed been changing the hours during which she worked, and doing so in the following circumstances. In her evidence, she said that her working hours were "set in stone" to the extent that they represented the hours when there were children at the centre. In addition to that, however, she was, normally, required to remain at the centre for a further two hours after the children had left, to attend to preparation, training and miscellaneous administrative tasks. There was a degree of flexibility in when these additional hours might be worked. Ms Moore's normal finishing time was 3:30 pm, that is, two hours after the children left at 1:30 pm. At times, however, she arrived at work one hour early in the morning and departed at 2:30 pm in the afternoon, for reasons of personal convenience. She accepted that she was required to secure the applicant's agreement to this arrangement, but, at least according to the applicant, this was not always done. This arrangement was particularly used by Ms Moore during school holiday periods for the children in her own family (of whom there were four), and it may be that she developed a kind of modus operandi in this regard that caused her to assume that the applicant would have no objection. However, as appears from what I have written in the previous paragraph, this practice of Ms Moore's, or at least her omission regularly to seek the applicant's approval for it, had become a source of irritation for the applicant. It was something about which she wanted to speak to Ms Moore. 51 From Ms Moore's perspective, the period leading to 11 July 2014 had been characterised by the applicant being hypercritical of her over trivial things: "nitpicking", as she described it in her evidence. There were "silly little things" that the applicant would say were not right, and Ms Moore would make them right immediately, but, according to Ms Moore's evidence, "[e]verything [she] tried to put right wasn't good enough." It may be that some or all of the issues, referred to above, which had led to the applicant's concerns were amongst the trivial things mentioned by Ms Moore, but, one way or the other, it seems clear that the applicant was concerned about Ms Moore's performance, and Ms Moore was increasingly uncomfortable about the treatment she was receiving from the applicant. 52 Which brings me to Friday 11 July 2014. As between the applicant and Ms Moore, there is a substantial factual controversy about the events of that day, but the court has the benefit of separate memoranda written contemporaneously by both, and of the evidence of a third person, Ms Dewhurst. 53 I commence by describing the layout of the room at the centre to which the witnesses referred as the children's room: it was, I gather, the main room where the kindergarten children were engaged in indoor activities. As to its shape, it is sufficient for present purposes to say that it was generally rectangular. There were three doors leading from it which became relevant in the events of 11 July 2014. The first was what may be called the main exit door, that which someone would conventionally use to proceed out of the building and to the external area where cars were parked. The second was a door to a small room which served as an office. It led off the same wall as the first door, and was only a few metres away from it. The third door was set in another wall of the room, at 90 degrees to the first wall mentioned, and led onto the playground, or courtyard. 54 The applicant spent the morning of 11 July in her office (it may have been the same "office" as that referred to above) working on course materials for a diploma and certificate course. It was, in her words, "a very intense four or five hours working on the computer." At some point after she had finished that work, which she herself placed between 12:30 and 1:00 pm, the applicant had an exchange with Ms Moore. According to the applicant, she asked Ms Moore whether she would be staying back that afternoon (ie consistently with their practice of meeting on Friday afternoons). Ms Moore replied that she would not be staying back. According to the applicant, Ms Moore said, in a "belligerent fashion", that she had arrived half an hour early that day, and would be leaving early. The applicant asked her whether she had told her about that, and Ms Moore replied, "No, I'm telling you now." The applicant said that they would catch up later, thinking that Ms Moore's leaving half an hour early would still allow enough time to have the conversation which she wanted to have with Ms Moore. 55 According to the evidence of Ms Moore, on the morning of 11 July 2014 the atmosphere in the centre was "quite tense", due to the applicant's mood. She was, Ms Moore said, very tense, uptight with staff and "quite snappy". She could feel that there was a "negative energy" in the room. She said that the applicant was aggressive with her over a number of trivial things. Ms Moore denied that the applicant asked her whether she would be staying back, but could not recall whether she had herself explained to the applicant that, having arrived at work early that day, she would be leaving early: she allowed for the possibility that she did say that. What Ms Moore did recall was that the applicant pointed a finger in her face and said, "I will see you later", or "I will meet you later." 56 A little later, the applicant noticed Ms Moore "running around cleaning things", and told her that she (the applicant) would do that, instructing Ms Moore to go and be with the children. According to the applicant, the response which she got to this was "a dirty look". Although not specifically referred to by Ms Moore in her evidence, this is consistent with what she said about the applicant troubling her with trivial things. According to the evidence of Ms Dewhurst, Ms Moore seemed "a little bit upset" on 11 July 2014. 57 After the last of the children had left for the day (which would have occurred at about 1:30 pm), the applicant, Ms Moore and Ms Dewhurst were in the children's room cleaning, packing up and getting the room and its contents ready for the following Monday. The impression I got from the evidence was that each was concerned with her own tasks, rather than, for example, the three of them working cooperatively together on a single task. In her own mind, Ms Moore was preoccupied with her concern about the meeting which she knew she would be obliged to have with the applicant after they had completed that work, and before she left for the day. In her evidence, Ms Moore said that, by this point, she had become very nervous about what it was that the applicant wanted to discuss with her. She said that she "felt quite teary". 58 At some point, Ms Dewhurst noticed that Ms Moore "seemed quite upset", so she advised her to go outside and compose herself. Taking that advice, Ms Moore went to the toilet. Ms Moore did not say so herself in her evidence, but it appears from an email sent on the following Monday by Ms Featherstone, the receptionist in the office, to Mr Murphy - received into evidence without objection - that, as Ms Moore passed by, Ms Featherstone called her into the office because she looked so upset. Ms Moore told Ms Featherstone that the applicant had demanded that she speak to her at the end of the day. Ms Moore felt that she was being "bullied" (Ms Featherstone's inverted commas in her email). Ms Moore gave Ms Featherstone to understand that the applicant was annoyed because Ms Moore came in early and was leaving earlier without asking her (the applicant) first. Ms Moore had, according to Ms Featherstone's email, "escaped for a few moments to try and get her thoughts together before going back". 59 In the toilet, Ms Moore could see that she looked "as white as a sheet". She felt "so intimidated and nervous". She thought, "This is ridiculous ... I couldn't possibly have a meeting with her [ie the applicant] in this state." Reminding herself that she was "a grown woman," she decided that she was in no fit state to meet with the applicant. After returning to the children's room, she said to the applicant, "I'm sorry, Jo, you can see I'm far too upset to have this meeting with you now. I'm going to need to reschedule the meeting when I'm in a better state to do it." 60 At this stage, the evidence of the applicant and of Ms Moore diverge one from the other so substantially that my only option is to commence by setting out the substance of each separately. According to the applicant, when Ms Moore effectively told her that she was going home rather than having the intended meeting with her, she (the applicant) said to Ms Moore, "Well, Mel, we need to catch up. You're going away next week". Ms Moore replied, "No, I'm too upset. I'm leaving". The applicant said, "Melanie, calm down. We need to have a talk". According to the applicant, as she said this, she placed her hands on the upper, front-facing, part of Ms Moore's arms in a soothing motion, adding, "Come and sit down". But Ms Moore said, "No, I'm too upset to talk to you now. I'm going home." At this point, Ms Dewhurst said (addressing the applicant), "Jo, don't touch her." The applicant removed her hands from Ms Moore's arms, and Ms Moore turned and left the room by way of the third door referred to, that leading into the courtyard. As she was leaving, she said, "I'm not staying here. You're bullying me." The applicant replied, "Melanie, this is not bullying. This is a manager trying to manage staff." 61 According to Ms Moore, when she announced that she was in no fit state to have the intended meeting, the applicant "bolted" for the first door mentioned, the main exit door, took hold of the door handle and blocked Ms Moore from leaving. Pushing Ms Moore's hand away from the door, the applicant said, "You are not leaving. You're [not] getting out of this." By this point, Ms Moore was sobbing. She said to the applicant, "Sorry, Jo, I can't. You can see you've intimidated me so much today that I am not in a fit state to have this meeting now with you. Please let me go." The applicant pointed to the office and yelled at Ms Moore, "Get in that office right now." Ms Moore said, "Sorry, Jo, you're bullying me now. I need to go. You need to let me go." Ms Moore went to take the door handle (ie of the first door), at which point the applicant, in the words of Ms Moore, "just launched at me and just started pushing my whole upper body and just sent me flying." The applicant was "coming at me and was trying to push me physically into the office and just screaming at me, 'Get in that office now'." It was at this point that Ms Dewhurst said, "Stop, Jo." The applicant then did stop pushing Ms Moore, and the latter turned and walked away from the applicant, and thus away from the first door and towards the third door. As she did so, the applicant screamed at her that, if she took one step further, she would give her a formal written warning. According to Ms Moore, by this point she was "absolutely hyperventilating", but she continued out through the third door and across the playground. 62 According to Ms Dewhurst, on Ms Moore's return from the toilet, Ms Moore told her and the applicant that she was going to grab her stuff and leave. Then the applicant went to the first door, placing herself between Ms Moore and that door, and said to Ms Moore, "We need to discuss this further. I want you to come back into the office." Ms Dewhurst said that the applicant was not screaming at this point, but she was "using a tone"; she was speaking in a louder voice than usual. Ms Moore said, "No, I don't want to discuss it any further. I'm not going to have you bullying me." At this point, according to Ms Dewhurst, "Jo put her hands on her and pushed her towards the door and then she wouldn't let her go, so Melanie then exited through the other door." The doors to which Ms Dewhurst referred here were the second and third doors respectively. When the applicant was pushing Ms Moore, Ms Dewhurst told her, twice, to take her hands off Ms Moore. 63 In her evidence, Ms Dewhurst said that the applicant's pushing of Ms Moore was sufficient to move her part of the distance from the first door towards the second door - leading to the office which the applicant wanted Ms Moore to enter - but not the whole of the way. Ms Dewhurst was unable to say how far the applicant did push Ms Moore, but she made it clear that some movement was involved. 64 After Ms Moore had left the children's room, she went to Ms Featherstone's office. According to Ms Featherstone's email of 14 July to which I have referred, Ms Moore was "incredibly upset". In that email, Ms Featherstone continued: She could barely catch her breath; she was crying so much I thought she was going to be sick. Mel explained that she tried to tell Jo she (Mel) was in no fit state to talk at that time at which point Jo insisted she was not to leave until she listened to what she had to say. Apparently Jo manhandled Mel her [sic] in to the office and would not let her leave; accused her of manipulating the other staff amongst a host of other things. She gave Mel her first official warning for, it would seem, not wanting to "talk". Clearly Mel was extremely aggrieved that she had been treated in a way that was not acceptable to her. Ms Featherstone calmed Ms Moore to an extent, at least making it feasible for her to drive home. 65 When Ms Moore arrived at her home she was still, according to her evidence, "in such a state". About five minutes later the phone rang. Suspecting that it might be the applicant, Ms Moore did not answer the phone herself, but asked her daughter to do so. It was the applicant. The only direct evidence of that call was given by her. According to that evidence, the applicant asked the daughter, "Can you ask mum to talk to me, please". The daughter replied, "No. Mum doesn't want to talk to you now." The applicant said, "Okay, love. Thank you. Goodbye." In contrast to this version of events, Ms Moore gave evidence, without objection, that, after speaking to the applicant on the phone, her daughter told her that the applicant had said to her, "Tell your mother to get back here right now. There's an emergency." Ms Moore then rang Ms Featherstone, to ask whether there was an emergency, and was told that there was not. The applicant denied telling Ms Moore's daughter that there was an emergency. The most reliable evidence about this latter aspect, however, is Ms Featherstone's email to Mr Murphy of 14 July 2014. According to that email, Ms Featherstone did receive a call from Ms Moore late on 11 July, but she was told only that the applicant had left a message with Ms Moore's daughter, asking Ms Moore to call her back "because it is important". 66 Each of the applicant, Ms Moore and Ms Dewhurst made a written record, of sorts, as to the events just described in these reasons. At 3:31 pm on the same day, the applicant sent an email to Ms Moore, in which she said that avoiding discussion did not "make issues go away". It made them worse. She said that she had tried to address the issues before the weekend, "but your avoidance of any discussion has left me with no alternative". She said that Ms Moore's behaviour had caused her to "escalate [this] into a formal performance concern". She asked Ms Moore to read the document attached to the email, "and respond to me formally by Monday". The document was headed, "My concerns re the recent performance of Melanie Moore", and laid out what those concerns were (some of which have been referred to above). Relevantly to the events of 11 July as such, the document contained the following passage: It is not reasonable for you to accuse me of bullying when I have barely spoken to you over the past 2 weeks and am trying to meet with you to resolve issues. That is not bullying, it is managing staff. You have not been available for any conversation about what is happening. Walking out when your manager is trying to discuss concerns is neither professional nor helpful. I would have preferred to resolve these matters calmly and before the weekend but you will now not even answer the phone. At 3:41 pm, the applicant sent a copy of the email, and attachment, to Mr Murphy. In the email, she said that Ms Moore had been "on another planet for the last 2 weeks". Referring to Ms Moore's plans to travel overseas the following Thursday, the applicant said, "I did try to meet with her today to clear things up but she put on the tears and accused me of bullying when all I had done was told her we would have a talk after the session." 67 At 4:12 pm, having received the applicant's email but not having read the attached warning, Ms Moore sent her own email to Mr Murphy, complaining about the way she had been treated by the applicant. That email contained the following passage, referring to the applicant: Her intimidating and patronising manner has been going on for some time and today it seemed to have escalated out of control. I felt very threatened by her today and she said she wanted to speak to me later with such anger that I was really panicking. The concerning issue can be explained later in person. I began to get very distressed and could not control myself from crying as I knew as soon as everyone was gone she was going to verbally attack me. I could not calm down and a couple of other staff members being Melissa Dewhurst and Karen witnessed this. I decided to go home as all of the children had gone home and the room was packed up and [I] was beginning to feel physically sick at the prospect. I apologised to Jo before I left saying that I was not in a fit state to talk to her now and we will have to make it another time. At this point she blocked the doorway and shouted at me; demanding that I go in the office right now. I kept my head down in a submissive manner and said no I can't be bullied by you like this, I need to go. At which she carried on threatening that I do as she say, I repeated that I couldn't as I was too upset. She then began to physically push me, nearly knocking me over. I said stop, but she didn't until Melissa then shouted at Jo to Stop. I then quickly exited the playground door. Jo carried on shouting at me saying if I left I would get a written formal warning. I carried on walking and I was in a terrible state, hardly able to catch my breath. 68 At 8:29 am on 15 July 2014, and having been requested to do so by Mr Murphy, Ms Dewhurst sent him an email containing the following passage about the events of 11 July: On Friday after the children had left, I noticed that Mel was crying and seemed upset and anxious. She expressed to me that she did not want to speak to Jo and she was too upset. I told her to go outside to compose herself and come back when she felt ready. We then continued to do the rest of the day clean up. Jo and I were putting pictures on the cupboard and Melanie had grabbed her things and said that she was going. Jo then got up and went to the door and told her to go back to the office so they could discuss this, using a firm tone with her. Melanie refused and said, 'She would not have you bullying me,' then Melanie tried to open the door to leave and Jo then started to push Melanie using her hands in the direction of the office. Melanie kept saying to Jo, 'No' 'No' I then shouted to Jo, 'Take your hands off her!' which I repeated twice. Then Melanie turned and exited the room via the playground area as Jo was blocking the other door refusing to let her leave. Then Melanie left. Then Jo left through the front door and then came back. Then I raised to Jo that there had been tension between them over the past couple of weeks. Jo seemed perplexed as she said she had not seen her over the last couple of weeks and said to me 'Well it is all my fault then', I chose not to engage further with this as it would not have gotten me anywhere. I then finished my duties and left. 69 In due course, I shall have to resolve the controversy presented by the evidence of the applicant, Ms Moore and Ms Dewhurst about the events of the afternoon of 11 July 2014. For the moment, however, I propose to continue with the narrative. 70 Mr Murphy did not work on Fridays. On the morning of Monday 14 July 2014, he read the emails which had been sent to him on 11 July by the applicant and Ms Moore. At 9:35 am, he emailed Ms Moore with a request for her to contact him before she started work. Apparently unbeknownst to Mr Murphy at this stage, Ms Moore would not be attending work at all that day: she was absent on sick leave, for an indisposition related to the events of the Friday, over the three days 14-16 July 2014, after which she commenced a period of scheduled recreational leave. 71 It was at about this time (ie around 9:30 am on 14 July) that Mr Murphy made the first of three phone calls to the children's centre. He spoke to the applicant, and told her that he had received a complaint from Ms Moore, that it was serious and that they would need to talk about it when she (the applicant) was free. The applicant said that she would not be free until after the children had gone. 72 At 10:35 am on 14 July 2014, Mr Murphy responded to the applicant's email sent to him on 11 July. He informed her that Ms Moore had made a bullying complaint against her. He said that he needed to speak to each of them separately, and asked her to let him know when she would be available. He said that he would also need to speak to Ms Dewhurst, as he believed that she was present "when this issue arose". 73 At 10:40 am on 14 July 2014, in response to the applicant's requirement for a formal response to her "performance concerns" document of 11 July, Ms Moore sent the following email to the applicant (with a copy to Mr Murphy): I am writing in response to your email and formal written warning regarding my performance at work (received Friday 11th July, 2014). After your persistent efforts to bully and intimidate me throughout the week, by Friday afternoon I advised you that I had become emotionally distressed beyond the point of being able to participate in a discussion with you. Despite the fact that I was crying and in obvious emotional distress caused by your aggressive comments throughout the day, you physically prevented me from leaving the premises and proceeded to physically assault me by means of pushing and shoving me towards the office. As you are aware this was witnessed by one other staff member who intervened in my defence. Upon review of the staff complaint policies and procedures it appears that you are in breach of the guidelines and I am seeking legal advice on how to proceed. I have cc'd the General Manager of Mt Martha Community Learning Centre in this email and am awaiting his response regarding this situation. Furthermore, I will not be attending work until further notice based upon advice from my medical practitioner and legal advisor as a result of the amount of stress I am currently experiencing. 74 Probably at this stage in the order of things (although nothing turns on the exact timing), Mr Murphy telephoned the applicant again. According to her evidence, he "snarled" down the phone, "Have you read your emails?", to which the applicant replied, "No, I haven't. I'm working with the children." Mr Murphy said to her, "Well, read them". By this stage, the applicant was aware that Ms Moore would not be coming to work, and she told Mr Murphy that she would not be available to speak to him until some time after 4:00 pm, because she herself would have to conduct both sessions with the children. Mr Murphy said that he would see her at 4:30 pm. 75 Mr Murphy then telephoned Ms Dewhurst. According to Mr Murphy, in the conversation which followed he asked Ms Dewhurst if she had been present when the altercation between the applicant and Ms Moore occurred, and she said that she had been. He asked her if Ms Moore had been pushed, and she replied, "Yes, she had." Mr Murphy asked her to put that in writing. Ms Dewhurst herself did not give evidence about this conversation, but it was probably the third of the calls from Mr Murphy that morning to which the applicant referred in her evidence. She said that Mr Murphy telephoned to speak to Ms Dewhurst. The applicant saw Ms Dewhurst on the phone to Mr Murphy and, after a period of seemingly listening to what he was saying, Ms Dewhurst simply said, "Yes". In this respect at least, the evidence of the applicant and of Mr Murphy is consistent. 76 At 11:40 am on 14 July 2014, Mr Murphy received the email from Ms Featherstone to which I have referred. 77 At some point, inferentially late in the morning of 14 July 2014, Mr Murphy telephoned "Jobs Australia", an organisation to which the respondent subscribed and which provided it with industrial relations advice as required. At 12:14 pm, he sent an email to the person at Jobs Australia with whom he had spoken by phone, Cathy Caruso, enclosing Ms Moore's complaint against the applicant. In that email, Mr Murphy said that he had spoken to Ms Dewhurst "who confirms what happened and will do so in writing tonight from home". 78 At 12:20 pm on 14 July 2014, Ms Caruso responded to Mr Murphy's email. She attached a document of Jobs Australia titled, "Disciplinary Action and Termination of Employment Guide", a 2009 publication revised in 2012. In her email, Ms Caruso drew Mr Murphy's attention to a page of the document which dealt with "the process you should follow for dealing with serious and wilful misconduct" and to another page on the subject of "summary dismissal". As to the latter, Ms Caruso said, "You could technically dismiss under this provision but I suggest having an investigation is a more appropriate approach." She said that she would draft a letter and send it to Mr Murphy. She did so in an email sent to Mr Murphy at 12:44 pm that day. 79 Upon reading Ms Caruso's email sent at 12:20 pm, Mr Murphy immediately decided that her suggestion that there be an investigation, which he understood as an "independent" investigation, was a good one, and should be adopted. From that point on, and save for a brief exchange with the applicant at about 4:30 pm that day to which I refer below, Mr Murphy withdrew from any personal involvement in the investigation of the events of 11 July 2014. 80 Because an aspect of the applicant's case in this proceeding relates to Mr Murphy's reasons for terminating her employment, I should set out the two sections of the Jobs Australia document highlighted by Ms Caruso. That which related to summary dismissal was as follows: Summary or instant dismissal effectively means dismissal "on the spot" and without the period of notice specified in the award or provided for under any applicable legislation. Summary dismissal by an employer for serious and wilful misconduct is a common law right. The Fair Work Act 2009 in its Regulations defines and codifies the common law with respect to serious misconduct: • wilful, or deliberate, behaviour by an employee that is inconsistent with the continuation of the contract of employment; or • conduct that causes imminent and serious risk to the health of [sic] safety of a person or the reputation, viability or profitability of the employer's business. Conduct that is deemed to be serious misconduct can occur when the employee, during the course of employment engages in one or more of the following: • theft; • fraud; • assault; • intoxication at work (to the extent that the employee is unfit for work); or • refusing to carry out a lawful and reasonable instruction. Effectively, the Act is stating that an employee's actions must be such that the employee has fundamentally breached an implied or express term of their contract of service with their employer. Judging whether a particular instance of misconduct constitutes serious and wilful misconduct is not always as straightforward as it sounds, and advice should be sought. As in other situations of termination of employment, if an employer is dealing with an employee where serious and wilful misconduct is alleged, the employee concerned is entitled to natural justice before a decision is made to summarily dismiss. The principles of natural justice are quite clear in the case of dismissals. Judgments have been made stating the principle that: An employee cannot lawfully be dismissed without first telling the employee what is alleged against them and hearing their defence or explanation.

Hansen v Mt Martha Community Learning Centre Inc

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Judgment (15 paragraphs)

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Legislation Cited (6)

Cases Cited (5)

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