Isabelle Dumas v Industrial Relations Secretary on behalf of the Department... [2019] NSWIRComm 1018 | Case summary

Industrial Relations Commission (NSW)|2018-11-28

Solicitors: McNally Jones Staff Lawyers (applicant) File Number(s): 2018/83952

Decision

The matter before the Commission is an unfair dismissal application by Isabelle Dumas brought pursuant to s 84 of the Industrial Relations Act 1996 (NSW) ("the IR Act") filed on 15 March 2018 ("the Application"). Prior to her dismissal, the applicant was employed as a Case Worker with the Child Protection Helpline of Family and Community Services ("FACS") in Parramatta.
On 1 March 2018, the applicant was informed that pursuant to s 69 of the Government Sector Employment Act 2013 ("the GSE Act"), as a consequence of a sustained finding of misconduct against her, her employment would be terminated if she did not resign. The applicant did not resign and the applicant's employment was terminated on 8 March 2018 (the "Dismissal").
The applicant asserts that the Dismissal was harsh, unjust and unreasonable.

Background facts and assertions

The applicant commenced employment with FACS on 3 November 2008 as a Case Worker with the Child Protection Hotline in Parramatta.
As a Case Worker, the applicant dealt with matters of risk of significant harm to children, including matters involving child sexual abuse, taking telephone calls from mandatory reporters and members of the public. The phone calls the applicant received were in relation to child protection issues which included risks of: physical harm, sexual abuse, neglect. The applicant dealt with matters involving drug and alcohol abuse and domestic violence perpetrated by parents or carers towards children.
In 2009 or 2010, Ms Rae-Minshall began supervising the applicant. Ms Rae-Minshall's evidence, which is not contradicted by the applicant, is that the applicant was to consult with Ms Rae-Minshall on any critical or significant child protection issues.
Between 2009 and 2014, the applicant had a number of issues with her co-workers, in particular those in the Crisis Response Team ("CRT") about the noise levels in the workplace, which she said affected her and others' ability to do their work, and her health. In 2014, the Helpline staff, including the applicant, were moved from Level 8 to Level 9. The applicant says that this move was as a consequence of the noise levels from the CRT. The evidence of Ms Rae-Minshall is that the "noise issues" were one factor in the decision to relocate the Helpline. The applicant says her health improved after this transfer.
On 23 January 2014, Ms Simpson sent an email to Mr Matthew McFarlane, the Helpline Director and Ms Kelly Hetherington, Assistant Director, headed "Staff Morale Issues Level 8.Doc". The email contained details of issues raised by approximately 13 staff members and included suggestions/recommendations to deal with these issues.
After the Helpline team moved to Level 9 there were issues between the applicant and other staff, including with Ms Rae-Minshall, and Ms Palmer. Grievances were raised by and against the applicant.
The applicant asserts that issues arose with Ms Rae-Minshall and Ms Palmer around 2015 and states in Exhibit A1: [19] Due to the issues I had raised about the unethical conduct of some employees, I had put a number of people offside, including my former Team Leader, Kara Rae-Minshall. … [24] It was in about 2015 that issues began to arise for no apparent reason between me and … [Ms] Palmer. She had reported me for using my iphone during work time, even though 90% of the staff had done so also. I then submitted to Kara that Judith had made 70 outbound phone calls using the work phone and on work time to make personal calls, mainly to her grandchildren. This had occurred in a 2 week period. When I reported this to Kara, she threatened me with "breach of confidentiality" and my report went nowhere.
Ms Palmer asserts that in the period 2015 to 2016, the applicant engaged in various inappropriate and/or intimidating behaviours against her and she raised complaints to management in respect of these behaviours which she attested to in her statement.
On 1 March 2015, the applicant and Ms Palmer attended a briefing meeting. The applicant and Ms Palmer give different accounts of the applicant's conduct at this briefing. Following the briefing, Ms Palmer made an "anonymous" complaint to Helpline management about the applicant's behaviour at the briefing.
On 13 May 2015, the applicant was issued with a letter from Mr Matt McFarlane confirming issues raised about the applicant's conduct, primarily but not solely, at the briefing meeting which took place on 1 March 2015. This letter is later referred to as the "corrective counselling letter".
Ms Palmer says she was not made aware of the outcome of the complaint about the applicant's behaviour at the briefing meeting on 1 March 2015.
Ms Palmer says that around this period she became aware of the applicant targeting her and that she noticed that the applicant would stare at her and in some instances other staff. The applicant denies targeting Ms Palmer.
On 1 June 2015, an incident involving the applicant and Ms Palmer occurred in the tea room at the applicant's workplace in which the applicant referred to Ms Palmer being the source of the anonymous complaint in relation to the applicant's conduct at the briefing on 1 March 2015. The applicant and Ms Palmer give different accounts as to whom the comments were directed.
The applicant was moved back to Level 8 in May or June 2016.
Ms Palmer says that Mr Richard Monte told her to stay away from the applicant but that the applicant continued to behave in a manner that made Ms Palmer feel unsafe. Ms Palmer says that, amongst other things, the applicant stared at her, smiled at her and bumped into her. On 1 July 2016 Ms Palmer lodged a complaint about the applicant's conduct, the basis for which Ms Palmer says in her statement was: Ms Dumas continued to intimidate me in the workplace even though assurances had been given that actions had been taken by management.
The applicant asserts that no action was taken against her in relation to the complaint by Ms Palmer made on 1 July 2016. The applicant received an email from Mr Monte dated 22 August 2016 containing the following: During our discussion, you had indicated that you have not engaged in any staring behaviour with staff in the workplace. This was recorded as your response to the allegation and will be included in the assessment of the allegation. As is the expectation of all staff, please continue to act within guidance and rules of the Respectful workplace policy and procedure … Your openness in discussing the allegation was appreciated, and as you agreed, please continue to raise any identified workplace or individual staff issues with Robert Severin or myself.
Ms Palmer received a letter dated 6 November 2016 from Mr Monte, stating: I would like to assure you that your concerns raised were taken seriously by Helpline management and have been resolved through appropriate management actions. These actions include directly raising the grievance with Isabelle and attainment of specific agreement from Isabelle that she would not continue to stare at or intimidate staff members in our workplace.
On 18 July 2016 Ms Moore of the Public Service Association ("the PSA") wrote to Ms Grace Romeo, Acting Director Helpline about a complaint made by Ms Rae-Minshall about the applicant's behaviour. In this letter Ms Moore stated: The Association contends that this pattern of behaviour exhibited by Ms Dumas is a breach of the Code of Conduct. As such Family and Community Services should refer this matter to the Professional Conduct Ethics and Performance Unit to determine how the matter should be handled.
On 1 August 2016 Ms Romeo wrote to Ms Moore informing Ms Moore: The concerns regarding the other party's conduct have been reviewed in accordance with FACS Policy. Kara has since requested a review of her complaint. … Kara was offered to work from another location close to her home in the same role at no financial detriment to her whilst the issue is being reviewed. She has also been offered mediation. Kara declined both of these options. These options are still available and Kara has recently expressed that she is now considering the offer to work from another location.
On 23 December 2016 Ms Moore met with approximately five or six FACS employees about allegations in respect of the applicant's behaviour.
On 23 December 2016 Ms Moore wrote to Ms Donnellan about the applicant's behaviour stating: … Whilst the concerns regarding Ms Rae-Minshall have and are being addressed, the broader concerns regarding work health and safety within the Child Protection Helpline have not been addressed. The Association acknowledges that Ms Rae-Minshall has been offered alternatives to provide her with respite from the behaviour of Ms Isabelle Dumas, however the behaviour of this particular individual is not limited to Ms Rae-Minshall. Ms Dumas has been shown to exhibit this nonverbal and aggressive behaviour towards others, to the point of this being [a] pattern and work health and safety concern. The Association are aware of:  Approximately five (5) hazard reports being lodged since July 2016 regarding Ms Dumas  At least one other accepted workers compensation claim relating to Ms Dumas's behaviour exhibited to them  The behaviour of Ms Dumas has continued since the alternatives were offered to Ms Rae-Minshall and Ms Dumas was advised to go onto level 9  Four (4) members, we are aware of, whom have been psychologically intimidated and bullied by this individual. As you would appreciate the Department of Family and Community Services have a duty of care to their employees to as reasonably as practical provide a safe workplace for their employees. There has been no change in Ms Dumas's behaviour, rather it has continued and is affecting several employees and, placing others employees whom she works with, at risk of being exposed to the intimidatory behaviour and possibly her. The Association requests, as per cl 49 of the Work Health and Safety Act 2011, for the Department … to consult with employees regarding work health and safety risks posed by the behaviour exhibited by Ms Dumas.
On 27 December 2016, there was an incident involving the applicant and Ms Palmer at Parramatta. There is little dispute as to the facts of this incident. The applicant admits that she was walking along the road and saw Ms Palmer coming from the opposite direction on the same side of the road as her and then she followed Ms Palmer when Ms Palmer crossed to the other side of the street, which Ms Palmer asserts, and the applicant accepts, was in order to avoid the applicant. The applicant admits that she did this twice more. There is significant dispute about the effect of the applicant's behaviour on Ms Palmer, the reasons for Ms Palmer crossing the road to avoid the applicant, and whether the applicant's behaviour was misconduct at all, or misconduct justifying the Dismissal.
On 8 February 2017, Mr Bale, Director, Helpline, engaged Ms Thane of Train Reaction Pty Ltd "to conduct a fact-finding investigation into claims and counter-claims involving [the applicant], Ms Rae-Minshall and Ms Palmer" over several years.
The "Fact Finding Investigation" prepared by Ms Thane dated 26 April 2017 ("the Thane Report") was provided to Mr Bale on or about 26 April 2017. In preparing the Thane Report, Ms Thane interviewed the applicant, Ms Rae-Minshall and Ms Palmer. The Executive Summary of the Thane Report states: 1.3 The investigator is satisfied, …, that Ms Dumas has engaged in a lengthy campaign of bullying and intimidation towards Helpline staff, and in particular, against Ms Rae-Minshall and Ms Palmer. 1.4 The investigator considers that the fact that Ms Dumas has acted vindictively towards Ms Palmer and Ms Rae-Minshall on many occasions and appears to have no appreciation of the distress that her conduct caused, makes her a very dangerous individual to have in the workplace. For this reason, the investigator does not consider that she can be permitted to be in the workplace unless she has undergone coaching to significantly enhance her interpersonal skills and self-awareness. 1.5 It is also considered that the present problems have been exasperated by management's failure to properly address Ms Dumas' inappropriate conduct over many years. The investigator is of the view that this highlights the clear need for training for senior staff in dealing with staff interpersonal conflict and misconduct in the workplace, with a focus on management of high conflict personalities. [p. 3 of the Thane Report]
On 29 September 2017, Ms Donnellan, Executive Director, Community Services Statewide Services of FACS, wrote to the applicant referring to two allegations of misconduct against the applicant contained in a "Fact Finding Investigation" (the Thane Report). These allegations were in respect of purported conduct by the applicant directed toward Ms Palmer. Ms Donnellan informed the applicant: that she had appointed an investigator to prepare a report in relation to the allegations; that the applicant was suspended with pay while the investigation was being undertaken; and the actions that may be taken against the applicant, including termination of the applicant's employment, if the allegations of misconduct were sustained. The allegations against the applicant were as follows: 1. Despite a previous direction to cease any type of intimidating behaviour towards other staff, on 27 December 2016 Ms Dumas deliberately followed Ms Judith Palmer across the road three times, in what could be interpreted as intimidating behaviour towards her. 2. On 27 December 2016, Ms Dumas confronted Ms Judith Palmer in the street after following her across the road three times and used words to the effect of "What's the game? Are you scared of me? What's the game" and/or "Stop your childish behaviour" which could be interpreted as intimidating behaviour. (collectively "the Allegations").
On 29 September 2017, Ms Donnellan instructed Dave Madden of DBM Investigations Consultants to investigate and prepare an investigation report into the Allegations.
On or about 10 October 2017, Ms Donnellan became aware that Mr Madden was not able to complete the investigation into the Allegations and Ms Donnellan engaged Ms Klaassen to undertake the investigation into the Allegations. Ms Klaassen's investigation was carried out over a period of eight weeks.
On 6 December 2017, Ms Klaassen provided a copy of her report on the investigation into the Allegations to FACS ("the Klaassen Report").
Ms Klaassen made the following findings in relation to the Allegations: The facts in relation to allegation 1 are substantiated, however the allegation is not sustained as there is no evidence that Ms Dumas was given an written direction to cease any type of intimidating behaviour towards other staff. Allegation 2 is sustained. [p 3 of the Klaassen Report]
The facts referred to by Ms Klaassen in her finding in respect of Allegation 1 are those relevant to the applicant's behaviour on 27 December 2016 in "crossing the road three times after spotting Ms Palmer walking toward her and then attempting to avoid her by crossing the road": p 20 of the Klaassen Report. Ms Klaassen formed the view that: "such conduct is a failure by [the applicant] to show dignity and respect to Ms Palmer and was in breach of the Code of Ethical Conduct" and "that, by her actions, [the applicant] did harass Ms Palmer": p 21 of the Klaassen Report.
Ms Klaassen also stated: The investigator has been unable to find evidence that Ms Dumas was issued with a written direction to cease any type of intimidating behaviour toward other staff. Whilst there was a written notation on a Grievance Finalisation Letter that was issued to Judith Palmer on 6 November 2016 that indicated an agreement had been obtained from Ms Dumas that she would not continue to stare at or intimidate staff members in the workplace, I accept Ms Dumas' evidence that she neither saw the Grievance Finalisation Letter when it was issued to Ms Palmer, nor that she did in fact agree to cease intimidating behaviour as she had not in fact admitted to deliberately intimidating any staff member. [p 21 of the Klaassen Report]
Ms Klaassen made the following recommendations in relation to the Allegations: 1. That the delegate make a finding of misconduct against Ms Dumas in relation to allegation 2. 2. Whilst it is open to the delegate to continue to treat the matter (allegation 2) as a disciplinary matter, given the findings and recommendations in relation to allegation 1, both matters could be dealt with by way of remedial action. Such remedial action could include:  A written direction, counselling and final warning to Ms Dumas  On-going monitoring of Ms Dumas' conduct toward other staff for a fixed period  A direction that Ms Dumas participate in mediation with Ms Palmer and that she extend a written apology to Ms Palmer for her actions [p 3 of the Klaassen Report]
"The findings and recommendations in relation to allegation 1" referred to by Ms Klaassen in the recommendations set out above are those set out at paragraph [2.4.1] of the Klaassen Report which include: 1. there was a written notation on a Grievance Finalisation Letter issued to Ms Palmer indicating an agreement had been obtained from the applicant that she would not continue to stare at or intimidate staff members in the workplace; 2. Ms Klaassen's acceptance that the applicant did not see the Grievance Finalisation letter and did not agree to cease intimidating behaviour as she had not admitted to such conduct; 3. Ms Klaassen could not reach a finding that the applicant was issued with a written or verbal direction to cease any intimidating behaviour toward staff; 4. Ms Klaassen's conclusion that "at best it would appear" the applicant "had been counselled by management in relation to her being perceived by some staff as aggressive and threatening and had been directed to demonstrate respect toward staff and to comply with the Code of Ethical Conduct (letter dated 13 May 2015)" and "warned that failure to abide by the Standards of Ethical Behaviour could result in formal action being taken against her"; 5. Ms Klaassen not accepting that the applicant's behaviour on 27 December 2016 could be classified as "stalking" as depicted in the Thane Report because the incident occurred due to a chance encounter; 6. Ms Klaassen's finding that the applicant's conduct was "inappropriate and unprofessional"; 7. Ms Klaassen's conclusion that "due to the fact that the allegation cannot be sustained in its current form … it is not recommended that the matter continue to be dealt with as a disciplinary matter"; and 8. Ms Klaassen's recommendation that the applicant be directed to apologise and desist from any form of harassment toward staff and mediation be considered.
On 10 January 2018, Ms Donnellan wrote to the applicant, as the delegate of the employer, to inform the applicant that: the investigation into the allegations had been completed and one of the allegations of misconduct was sustained; she was considering imposing a penalty against the applicant, ranging from a caution or reprimand to termination of employment; and the severest action that she would conceivably take was termination of the applicant's employment after giving her an opportunity to resign. The applicant was given an opportunity to request a meeting with Ms Donnellan and was given seven days to make a submission and to provide any additional information which she considered should be taken into account in relation to the actions being considered by Ms Donnellan before a final decision was made. The applicant was not provided with a full copy of the investigation report but was given a contact at FACS from whom the applicant could obtain documentation.
By letter dated 10 January 2018, Ms Donnellan notified the applicant that she adopted the findings of Ms Klaassen and was considering imposing a penalty on the applicant and "the most severe penalty [she] would conceivably impose is: termination with the opportunity to resign". Ms Donnellan gave the applicant seven days to make a written submission to Ms Melissa Burgess in relation to the penalty being considered.
On 16 January 2018, the applicant wrote to Ms Burgess providing a response to the misconduct allegations. This letter contained: a statement that she had changed over the period of the suspension; an offer to apologise to Ms Palmer and to engage in mediation with Ms Palmer; and matters that the applicant submitted, explained or mitigated her conduct and supported a reduction of the penalty proposed to be imposed on her.
On 19 January 2018, the applicant, supported by Mr Greg Shaw, met with Ms Donnellan and Ms Burgess. During the meeting the applicant put her case as to why her employment should not be terminated and according to the meeting notes annexed to Ms Donnellan's statement the following exchange occurred: The applicant: … "There has been a misunderstanding between JP & myself, while she believed measures had been taken by management & agreed by me to stay away from her & that was not the case …. I sincerely regret the incident and over the past 8 months, I have made personal changes in my behaviour & attitude to respond better to challenging situations in the future." Do you have any questions? Ms Donnellan: I don't so much have any questions but there's kind of nothing new in what you are reading to me. I've already got that information, I think if anything there'd be some commentary that I have about it, one is that it isn't management's responsibility to modify staff's behaviour in a sense of whether JP was ignoring you or not. There is a personal responsibility in the workplace & respectful relationships need to occur. If they can't be sorted out between individuals because there's lots of workplaces where we don't particularly like one another, but that doesn't mean we search & expect that there are people who are going to mediate any interaction you have with that other person. Usually what adults do is realise there is some tension between themselves and others, & if there is, try to address it, if it doesn't work you work out ways of getting on with it in the workplace rather than have management intervention to do something about it. So that's one comment, the other comment is that perhaps JP got a letter, I've not seen the letter that JP allegedly got from the Director & you may not have got one & that could be a process issue but I don't have any of that correspondence. The third thing I read it in your submission was about the notion of treating it as a joke, it does puzzle me that in your defence you saw this as being flippant or you were joking & I find that a little bit challenging in that, it sort of tells me you may not have sufficient insight to know the impact of your behaviour on others, & that it's a consideration we need to hold here & that whether or not it was a joke or not, it is unacceptable to repeatedly cross a road, to follow & abuse another person in the street & that's been sustained as you know, it's not on any level acceptable behaviour. . The applicant: I did not abuse her, so you think JP when she sees me, look on the floor, avoids me, you think this is acceptable, do you think this is basically a professional woman of a certain age, do you think this is acceptable behaviour? I've described it many times & I've asked for intervention from my Team Leader. Ms Donnellan: I haven't seen the behaviour but that's not something that we should intervene in as Managers & if that's the way JP is trying to cope … The applicant: But nobody told me about that … Ms Donnellan: They don't need to tell you, you should be able to see with your own eyes if someone's not feeling comfortable. The applicant: I'm not a fortune teller, I don't read minds, so I don't know if someone avoids me on purpose. Ms Donnellan: Many people have insight into their own behaviour. The applicant … when I talk to management about it they don't want to get involved with it, to me it is serious because it is not normal behaviour on somebody in the workplace to avoid somebody, making me feel ostracised … for reasons I have no idea … so I have to disagree with that & again I haven't abused her in the street, it was in a, how can you abuse somebody if you say in a joking manner, it's not abuse, maybe it was offensive, she didn't like the comment but I haven't abused JP & to me there is a failure of management to address the situation … …. Ms Burgess: So you're referring to the Fact Finding Investigation which Kathy Thane conducted for Helpline. This matter is about an incident which occurred between you & JP & out of that Fact Finding there was one incident which the department felt was worth investigating, so basically [the] Fact Finding Investigation report was put … aside … & … today is about … that isolated incident… what's being considered in this is your actions on the day & as part of Clare's initial decision, she's going to look at your previous employment or conduct history. … Ms Burgess: … for your peace of mind …. [the] Fact finding [investigation] is not being considered in this process. … [T]he Investigation report … by Wendy Klaassen, … is being considered & your conduct history that's held by the department. Ms Burgess: …. any conduct issues that occurred in [the] timeframe [of 2008 up until 2018] is considered. … The applicant: And what specifically are the others? Ms Burgess: That can be provided to you., I can provided that to you. The applicant: Ok, I would like you to, that's fine.
On 14 February 2018, Ms Burgess sent an email to the applicant the content of which included a table of the applicant's "previous conduct history" commencing with an incident on 28 April 2010.
On 1 March 2018, Ms Donnellan wrote to the applicant to advise the applicant of the decision that she had made, being to terminate the applicant's employment after giving the applicant an opportunity to resign. The applicant was directed to resign within seven days, failing which her employment would be terminated. Enclosed with this letter was a table of what the respondent referred to as "previous inappropriate conduct concerns relating to Isabelle Dumas".
The applicant did not resign and, as a consequence, the applicant's employment was terminated pursuant to s 69 of the GSE Act on 8 March 2018 ("the Dismissal").

Applicant's case

The applicant asserts that the Dismissal was harsh, unjust and unreasonable.
The applicant asserts that the Dismissal was unreasonable because her conduct, that is the established Allegation 2: On 27 December 2016, Ms Dumas confronted Ms Judith Palmer in the street after following her across the road three times and used the words to the effect of "What's the game? Are you scared of me? What's the game" and/or "Stop your childish behaviour" which could be interpreted as intimidating behaviour. did not amount to misconduct, having regard to the context of the consistent management failure to deal appropriately and reasonably with relevant ongoing issues.
The applicant notes that there was only one ground of misconduct made out which "actuated the dismissal" and "the department didn't find that it was intimidating behaviour", only that it could be "interpreted as intimidating behaviour" and asserts that Ms. Palmer's passive aggression towards the applicant "was probably as much to blame for what happened" as the applicant pursuing the matter in the street.
The applicant contends that the penalty imposed upon her was not for the misconduct alleged against her, but for other things that were at no time the subject of disciplinary action against her and she at no time had any opportunity to respond to these matters.
The applicant submits that the Dismissal was unjust because the decision-maker took into account matters on which the applicant had not been given an opportunity to be heard or, which the applicant asserts had no foundation in fact, or for which [the applicant] had provided an explanation, which mitigated the seriousness of the Allegations. The applicant's written submissions contend at [14]: Ms. Dumas was led to believe that the only other issue that was relevant to the process being undertaken against her was the 'corrective counselling' letter she had received some time earlier (in 2015) and nothing else. It is also relevant that the table Ms. Donnellan enclosed with her letter when she advised Ms. Dumas that she was dismissing her (after giving her an opportunity to resign), which she considered and relied upon, was not referred to in any of the previous correspondence or meetings (despite Ms. Dumas having made a request for 'everything you've based your final decision on'). The decision to dismiss Ms. Dumas was overwhelmingly procedurally unfair such that it rendered her dismissal unjust.
Further, the Dismissal was harsh because dismissing her from employment was disproportionate to the misconduct that was found against her. The applicant asserts at [16] of her written submissions: … The appropriate or measured management response to that conduct should have been to deal with the issue by speaking to both employees and perhaps by encouraging them to mend their differences by recourse to mediation. Ms. Klaassen, the independent investigator retained by the Department, considered the appropriate response to the 'misconduct' to be a written direction, counselling and final warning with ongoing monitoring and mediation and an apology. Even Ms. Klaassen's 'punishment' would have been a disproportionate response to the alleged misconduct. This is particularly so given that there was nothing to suggest that Ms. Dumas' actual performance of work was not of a high standard. (footnotes omitted)
The applicant contends that the Dismissal was also harsh having regard to the personal financial and reputational consequences of the Dismissal for the applicant.
The applicant says that the Dismissal is harsh, and unreasonable, because it failed to take into account the applicant's contrition and her commitment to change her approach to work. Having regard to the nature of the 'misconduct' her call for a second chance should not have fallen on deaf ears. This was especially so given that she had about ten years of service and had never demonstrated anything other than a first-rate level of performance of the job she was employed to do. Viewed objectively, the conduct was not so serious as to strike at the core of the employment relationship such that it necessitated dismissal.
It is the applicant's position that there is no reason why reinstatement was impracticable. The applicant seeks an order re-instating her together with consequential orders for lost pay and maintaining continuity of service.

Respondent's Case

The respondent concedes that, as the applicant's employment was terminated for misconduct pursuant to s 69 of the GSE Act, he must establish, on the balance of probabilities as framed in Briginshaw v Briginshaw (1938) 60 CLR 336 ("Briginshaw"), that the conduct amounts to misconduct. The respondent submits however, that misconduct in the GSE Act is not the same as "serious misconduct" justifying summary dismissal at common law.
The respondent submits that there has been compliance with the statutory obligations under the GSE Act and the Government Sector Employment (General) Rules 2014 (NSW) ("the GSE Rules") including: 1. the applicant was advised of the details of the allegation of misconduct, and the action that may be taken under section 69(4) of the GSE Act against her; 2. the applicant was given a reasonable opportunity to make a statement in relation to the allegation; 3. the applicant was notified of the respondent's decision; 4. the applicant was notified in writing of the finding of misconduct; 5. the applicant was notified of the proposed action to be taken; 6. the applicant was given a reasonable opportunity to make submissions in relation to the proposed action; and 7. the respondent considered those submissions.
However, the ultimate question for the Commission is not whether the Dismissal was lawful but whether the Dismissal was "harsh, unreasonable or unjust".
The respondent asserts that the applicant was informed of a reason which was set out in the letters of 10 January 2018 and 1 March 2018 and that the evidence, including that of: the applicant; Ms Donnellan; Ms Klaassen and Ms Palmer establishes that the reason has a basis in fact.
Further, the respondent asserts that the reasons justified termination of employment because: 1. the applicant's conduct was misconduct as defined in the GSE Act; 2. the applicant's conduct was "bullying" of Ms Palmer because it "intimidated and offended Ms Palmer"; 3. the applicant's conduct was in breach of the "Respectful Workplace Policy - No bullying, harassment or discrimination" ("the Policy"); and 4. intimidatory conduct can justify dismissal.
The respondent submits that although the applicant characterises her comments and conduct as being "done in fun" and not "intended to cause offence" that the effect of these was unmistakable; there can be no question on the evidence that Ms Palmer was offended and shocked. There could be no mistake the comments were intended to be intimidatory and offensive.
The respondent submits that the Dismissal cannot be unjust because the applicant is clearly guilty of the misconduct on which the employer acted. The respondent refutes the applicant's contention that the Dismissal was unjust because the applicant was not given an opportunity to be heard on matters or the matters had no foundation in fact. The respondent says that the applicant was informed by Ms Donnellan in her correspondence of 10 January 2018 that prior to making her final decision the respondent would consider the applicant's previous employment matters. The applicant responded to those matters in her response of 16 January 2018 including a critique of the findings of Ms Thane. The applicant's employment history and her past interactions with staff were also raised and discussed and the applicant was given an opportunity to respond to such matters in her interview on 19 January 2018.
The respondent further submits: 88. prior to 1 March 2018 Ms Donnellan had formed the view that the Applicant had engaged in misconduct and the correspondence sets out those matters that were considered by Ms Donnellan. The Applicant's conduct in respect to Ms Palmer on 27 December 2016 was the end point of such inappropriate behaviour which amounted to intimidating aggressive behaviour. Further, despite the Applicant's assertion to the contrary, the Applicant had an opportunity to respond to such matters and did in fact respond to them.
The respondent denies the applicant's assertion that she was led to believe that the only other issue that was relevant to the process being undertaken against her was the "corrective counselling" letter. The respondent says that the applicant was not given such a belief and that the matters in the table were put to the applicant in the interview of 19 January 2018 and the applicant responded to these matters at that time.
The respondent submits that the Dismissal cannot be unreasonable because it was not decided upon inferences which could not reasonably have been drawn from the material before the Respondent but upon clearly factual matters. The only issue is whether the dismissal was harsh.
The respondent refutes the applicant's contention that as a consequence of purported management failures her conduct was not misconduct or not misconduct justifying the Dismissal, and the respondent asserts at paragraph [81] of his written submissions: [t]he Respondent's management was not out on the street directing the Applicant or Ms Palmer. The behaviour of the Applicant was entirely self-centred and motivated by her frustration and was later categorised by her belief that such conduct was fun. The cause of the conduct was not the Respondent's management but the Applicant's character.
The respondent submits that the Dismissal was not harsh because: 1. the assessment of harshness involves a balancing exercise between the gravity of the misconduct and any mitigating circumstances: Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 at [35]-[47]; 2. the applicant's experience meant she should have been aware of the impact of her conduct; 3. the applicant's conduct was contrary to the core values in the GSE Act and the Policy; 4. the applicant does not appreciate the gravity of her misconduct; and 5. the applicant had a history of incidents.
The respondent asserts that the fact that the applicant seeks to explain her behaviour as a response to not understanding the behaviour of Ms Palmer on 27 December 2016 undermines the applicant's contrition, and describes the applicant's behaviour on the day as "simply bizarre".
The respondent submits that reinstatement is impracticable and inappropriate in light of the following: 1. the nature of the misconduct; 2. the applicant's continued failure to recognise the serious nature of her conduct; 3. the applicant's failure to accept the matters amount to misconduct; 4. the difficulty in restoring the applicant's relationships with fellow employees and in particular Ms Palmer and Ms Rae-Minshall; 5. the applicant's experience in working with some fellow employees; 6. the applicant's loss of faith in the management of the respondent; 7. the applicant's conduct was contrary to the core values in the GSE Act and the Policy; and 8. the respondent has lost confidence in the applicant.
The respondent does not take issue with the standard of the applicant's work and relies on the applicant's conduct.
The respondent submits that if the Commission determines that reinstatement is impracticable that there is no evidence before the Commission to support an order for re-employment to another suitable position that the respondent has available.

Was the Dismissal harsh, unjust and/or unreasonable?

The Commission must determine whether the Dismissal was harsh and/or unreasonable and/or unjust, having regard to section 88 of the IR Act, and make a positive finding to that effect: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 and Bankstown City Council v Paris (1999) 100 IR 363.
If the Commission determines that the Dismissal was harsh, unreasonable or unjust, it must then determine the appropriate remedy. As the primary remedy is reinstatement, and the applicant seeks reinstatement, the Commission must also determine whether reinstatement or re-employment is impracticable: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. If reinstatement or re-employment is impracticable, the Commission may decide to order compensation and, if so, must determine the amount of that compensation.
The major issue in dispute between the parties is whether the conduct of the applicant on 27 December 2016 was misconduct justifying the Dismissal. There are also issues relating to procedural fairness in dispute, including whether matters other than the substantiated Allegation were properly considered by Ms Donnellan in deciding the appropriate action to take pursuant to s 69(4) of the GSE Act, as well as the impact of the Dismissal on the applicant in the circumstances.
The Commission is obliged to determine any issues before it on the civil standard of proof, that is, the balance of probabilities. The Commission is also obliged to approach the matter in a manner consistent with the principles in Briginshaw; and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALJR 170.
The Commission has carefully weighed and considered all of the written material and oral evidence before it. The oral evidence and the demeanour when giving such evidence, of certain witnesses, including the applicant, Ms Palmer, Ms Rae-Minshall and Ms Donnellan are matters which are relevant to the Commission's consideration and determination of this matter.
Counsel for the respondent described the responses of the applicant when cross-examined as "not specific", "vague" and "they didn't show insight into her previous behaviour and the need to change".
The applicant presented in the witness box as a strong personality with fixed views about her conduct and that of others. It was evident that the applicant harboured antipathy towards certain of her colleagues at FACS and, in particular, those employees who, as far as the applicant is concerned, were part of a group which she considered engaged in a campaign against her. It was also evident that the applicant considered that the treatment of her when compared with that of Ms Palmer and others was unequal and unfair.
The applicant has been consistent in her interviews with Ms Thane and Ms Klaassen and her evidence to the Commission that her behaviour on 27 December 2016 was not intended to be threatening and/or intimidating. The applicant acknowledged that Ms Palmer's conduct leading up to the incident on 27 December 2016 may indicate that Ms Palmer was afraid of her but that her view of Ms Palmer's behaviour was that it was exaggerated and not genuine and this was relevant to the applicant's decision to act in the manner in which she did on 27 December 2016. The Commission accepts that the applicant genuinely believes her own view as to her conduct which she presented to the Commission and that she did not intend to mislead her employer or the Commission. The Commission does not agree that the applicant's evidence was vague or not specific. The applicant's understanding of the effects of her conduct on others, and whether she shows awareness, insight or contrition is dealt with below.
Counsel for the applicant submitted that Ms Palmer exaggerated her fear of the applicant to her employer and to the Commission and that the Commission should approach Ms Palmer's evidence with "a great deal of caution".
Ms Palmer presented in the witness box as, at times, a difficult and unhelpful witness, with a fixed view as to the applicant's conduct. On a number of occasions, when asked a direct question by counsel for the applicant, and being requested by me to answer the question put to her, Ms Palmer did not provide a response to the question.
In her statement, Ms Palmer says that she "bore [the applicant] no grudge". However, it was apparent from her demeanour in the witness box and her oral evidence that Ms Palmer harboured ill-will towards the applicant. Despite her assertions of being intimidated by the applicant, it was not readily apparent to the Commission, from Ms Palmer's demeanour in the witness box, that she was afraid of the applicant at all.
Ms Rae-Minshall also failed at times to answer the questions put to her. It was similarly apparent from Ms Rae-Minshall's evidence that she harboured ill-will towards the applicant and she gave evidence that she would not participate in mediation with the applicant should the applicant be reinstated because she said "you cannot mediate violence".
Given the ill-will displayed by both Ms Palmer and Ms Rae-Minshall towards the applicant, the Commission has adopted a cautious approach when considering the evidence of Ms Palmer and Ms Rae-Minshall.
Ms Donnellan took with her into the witness box an email from Ms Burgess which is Exhibit A12. This document has the appearance of an "aide-memoire" for Ms Donnellan when giving evidence. The content of this email deals with matters that were raised in the opening submissions for the applicant. In closing submissions, counsel for the applicant said in respect of this email which is Exhibit A12: ... Ms Donnellan told you yesterday that this was not prepared in response to my opening where I identified deficiencies in procedural fairness and it was just a coincidence that it was at 2.13pm on 26 November that Ms Burgess wrote to Ms Donnellan. I don't question that evidence ... .
While counsel for the applicant may not question that evidence, it appears to the Commission that this was more than coincidental. Further, Ms Donnellan was unable to give a clear and direct response when asked about the reason for the Dismissal. As a consequence of these matters, a cautious approach is also appropriate when considering the evidence of Ms Donnellan, particularly about the reason for the Dismissal.

Reason for the Dismissal - the "conduct issues"

Section 88 of the IR Act sets out matters that the Commission "may, if appropriate, take into account" in determining the Application. These matters include whether a reason was given for the Dismissal, and whether such reason "had a basis in fact, and whether the applicant was given an opportunity to make out a defence for his or her behavior or to justify his or her reinstatement or re-employment": sub-ss 88(1) and 88(2) of the IR Act.
There is no doubt that the applicant was provided with a reason for her termination. The question is whether the reasons given to the applicant for the Dismissal properly extend beyond the substantiated Allegation which was determined to be "misconduct" in accordance with the GSE Act and GSE Rules to include "a pattern of inappropriate workplace behavior, dating back to 2010" particularised in the table attached to the letter from Ms Donnellan to the applicant dated 1 March 2018 and the email to the applicant from Ms Burgess on 14 February 2018.
The respondent asserts that the evidence demonstrates that the applicant was provided with a number of opportunities to make out a defence to this pattern of behaviour or "the conduct issues" as they are otherwise described. The respondent refers to the content of the Application for Relief and the evidence of the applicant in respect of the letters to her from Ms Donnellan dated 10 January 2018 and 1 March 2018.
The applicant was informed in the letter from Ms Donnellan to the applicant dated 10 January 2018 that before making a final decision, Ms Donnellan would be considering "previous employment matters" (such as past remedial actions, warning or discipline matters or alternatively, previous satisfactory work history). The respondent also relies on the fact that the applicant responded to the previous employment matters in her written response of 16 January 2018 and in her interview on 19 January 2018.
At the meeting of 19 January 2018, Ms Burgess told the applicant that the meeting was about "that isolated incident" between the applicant and Ms Palmer. Ms Burgess also said "for your peace of mind [the] Fact finding [investigation] is not being considered in this process … the Investigation report … by Wendy Klaassen, … is being considered & your conduct history that's held by the department". The applicant asked about whether the conduct at the 2015 meeting was being considered and was told "any conduct issues that occurred in [the] timeframe" of 2008 up until 2018 would be considered. The applicant asked for specific details and was told these would be provided to her: see Transcript of 19 January 2018 Meeting p. 4.
The applicant was told that the Thane Report was irrelevant to the disciplinary actions that were being considered. However, at pp 21-27 and pp 77, 67 and 80-81 of the Thane Report Ms Thane deals with all of the other matters that Ms Donnellan considered and that are included in the table annexed to the letter of termination and the email from Ms Burgess except the allegation dated 13 June 2016.
Specific details of the conduct matters were provided to the applicant by email from Ms Burgess on 14 February 2018 and in the table enclosed with the final letter dated 1 March 2019 offering the applicant the opportunity to resign. In the email from Ms Burgess enclosing the specific conduct history, Ms Burgess stated "You will shortly receive correspondence from the Delegate with her Final Decision" and she did not offer the applicant an opportunity to be heard on the particularised "conduct history".
it was reasonable for the applicant to conclude on the basis of the information given to her at the meeting on 19 January 2018, that if matters other than the established Allegation and the "corrective counselling" letter were to be considered by Ms Donnellan in determining the appropriate penalty, that she would receive specific details of these other matters, and be given an opportunity to be heard about these specific matters, prior to the final decision being made, which she was not.
The applicant should have been given sufficient particulars of the matters on which a decision to end her employment would be made so that she could provide a proper response in defence to those matters. In the circumstances, it is not enough that the applicant, through her own deductive processes, or by accident, addressed the decision-maker in writing or in person on all or some of the conduct matters in the table before being given the table.
The applicant, despite the information that she volunteered in her written response of 16 January 2018 and at the meeting on 19 January 2018, did not have a proper opportunity to make out a defence to the additional matters in the table as reasons for the Dismissal.
Many of the matters contained in that table were not subject to investigation, or at least the Commission heard no evidence on any such investigations. When asked about investigations into a matter listed in the table of conduct issues by counsel for the applicant Ms Donnellan said she was not aware of an investigation into the specific matter and said "I have as much information as you have".
If the employer intends to rely on any matter against the applicant as a reason for termination of employment, then the matter must be proven in evidence before the Commission. Where a claim is made that something occurred and the evidence of the applicant is that she denies it or explains the conduct, and there is no other evidence in relation to an allegation the Commission must accept the applicant's evidence that the allegation did not occur or the applicant's explanation for the conduct.
Finally, as admitted by Ms Donnellan in cross-examination, none of the matters in the table were the subject of formal disciplinary action.
It is also relevant that the respondent's reliance on the conduct matters as reasons for Ms Donnellan's decision to terminate the applicant's employment, should she not resign, is contradicted by the contents of Exhibit A12 in which Ms Burgess points out to Ms Donnellan:  You had made a decision re Termination/Resignation based on Ms Dumas' highly inappropriate behaviour & her lack of understanding of the impact of her actions (she still thought it was a joke).  So regardless of Ms Dumas' previous employment history, you were terminating/offering resignation because of the incident not the past.
As the respondent has not provided a fair opportunity for the applicant to be heard on the conduct issues and the email from Ms Burgess to Ms Donnellan confirms that the respondent is also confused about whether the reasons extend beyond the sustained Allegation, the only reason for termination properly conveyed to the applicant as the reason justifying the dismissal is the sustained Allegation.
The question is whether the omission of the procedural step by the respondent in respect of the conduct issues resulted in substantial prejudice to the applicant such as to render the Dismissal harsh, unjust and/or unreasonable: Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392.
In Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 ("Humphries"), a case that dealt with the procedural requirements set out in the relevant award requiring that an employee had an opportunity to answer any allegations put to him or her, and be represented by a union, the Full Bench said: 118 This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. 119 …[W]here procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust. 120 We are also mindful of the comments of a Full Bench of this Commission in Rich River Golf Club Ltd v Power [1995] NSWIRComm 75 that: This denial of procedural fairness may not have been sufficient for us to support the finding by the Commissioner that Ms Power should be re-instated except that the provision was an actual award provision binding the parties in its terms. 121 In upholding the first instance decision in that case (requiring strict adherence to the relevant provisions), the Full Bench gave an indication of the significance that must attach to the terms of an instrument such as an award. … 123 We consider that the obligation reposing in the employer by this sub-clause, to ensure that an employee has an opportunity to answer any allegations put to the employee, by implication requires the employer to furnish the employee with such information as would reasonably enable the employee to understand and respond to the allegations made against her or him. We consider that the Club failed in that obligation. 124 In these circumstances we consider that the dismissal of the appellant was harsh, unjust and unreasonable. We turn then to the question of whether the appellant should be granted the relief sought by her.
The question of whether additional matters, such as the "conduct issues" which have the appearance of findings of "misconduct", which were considered by the employer's delegate when determining the appropriate penalty pursuant to s 69(4) of the GSE Act following a finding of misconduct on another matter pursuant to the relevant provisions of the legislative scheme, must be dealt with in accordance with the provisions of the GSE Act and the GSE Rules dealing with misconduct, was not explicitly dealt with by the applicant or the respondent in submissions.
Relevantly though, the respondent argued that the applicant had been given the opportunity to make submissions in respect of the conduct issues in order to make out a defence to these, and asserted that "the Commission in s 84 proceedings is primarily focused on those matters in s 88 of the [IR] Act and not compliance with the provisions of the GSE Act" (although I note that elsewhere in his submissions the respondent asserts that there was compliance with s 69(4) of the GSE Act in respect of the substantiated Allegation).
The Commission has determined that the respondent's assurances that certain matters would not be considered by Ms Donnellan in her determination of the penalty resulted in procedural unfairness to the applicant and, that as a consequence, these matters could not be relied upon as reasons for the Dismissal. Accordingly, it is not necessary to form a concluded view on the matters set out in paragraph [108] above in this matter.
The procedural unfairness to the applicant in respect of her ability to respond to the conduct issues and a failure to comply with the legislative scheme would have made any decision to terminate on the basis of the "conduct issues" alone harsh, unjust and unreasonable. However, the respondent contends that the applicant's behaviour on 27 December 2016, on its own, justified the Dismissal.

Reason for the Dismissal - the incident on 27 December 2016

The respondent asserts that the conduct of the applicant on 27 December 2016 was bullying of Ms Palmer and that the applicant's conduct was misconduct which intimidated and offended Ms Palmer and this was in breach of the "Respectful Workplace Policy - No bullying, harassment or discrimination" (the "Policy") and such intimidatory conduct justifies the Dismissal.
The Policy defines "bullying" as: Generally, workplace bullying is any behaviour or series of behaviours that intimidate, denigrate, humiliate or undermine a person or group of people. Bullying is:  Usually repeated behaviour  Less favourable treatment of a person - either directly or indirectly - by one or more people in the workplace which may be considered unreasonable or inappropriate  Behaviour that intimidates, offends, degrades or humiliates a person  Not based on any of the grounds of discrimination  Behaviour that causes a risk of injury or an actual injury to the person targeted.
The Policy defines "misconduct" as: Misconduct involves improper, wrong, or potentially unlawful conduct that is outside of policy, directions or the law. Examples include assault, theft, blatant disregard for policies, or other serious actions that may require investigation. Misconduct is dealt with in section 69 of the Government Sector Employment Act 2013.
The Policy does not define "intimidate". The Macquarie Dictionary definition of "intimidate" is "to force into or deter from some action by inducing fear".
The Policy defines "harassment" as: any form of behavior that is not wanted and:  offends humiliates or intimidates the person; and  targets a person because of sex, pregnancy, race age, marital or domestic status, homosexuality, disability, transgender (transsexual) status or carers' responsibilities".
The Macquarie Dictionary definition of "harass" is "to disturb persistently".
The respondent refutes the applicant's contention that her comments and conduct did not constitute misconduct because they were done in fun and she had not intended to cause offence. The respondent says the applicant was not joking and her comments were not made as a "throwaway line" but rather were made against the background of the incidents between Ms Palmer and herself and the applicant knew well what the effect of her conduct and comments would be when she made them as she intended them to be intimidatory and offensive and there is no question that Ms Palmer was offended and shocked.
Whether the applicant's comments to Ms Palmer might be regarded as offensive, insulting, harassing or intimidatory depends on the context in which they were said and the demeanour of the person making the comments.
The applicant says that Ms Palmer's passive aggression towards the applicant was probably as much to blame for what happened as the applicant pursuing the matter in the street.
The applicant says her conduct did not warrant the Dismissal and submits that the appropriate or measured management response to that conduct should have been to deal with the issue by speaking to both employees and perhaps by encouraging them to mend their differences by recourse to mediation, particularly as there was nothing to suggest that her performance of work was not of a high standard. The disproportionality of the conduct to its consequence is obvious. The consequences for the applicant, which aside from the financial hardship of being unemployed and the reputational damage sustained including losing the job she loved also rendered the sanction of dismissal harsh.
It is clear to the Commission that the applicant's conduct was unnecessary and inflammatory. The applicant was frustrated by the circumstances in which she was working. She was frustrated by years of conflict at the workplace which was unresolved. She was also frustrated by her perception of unequal treatment at the workplace. The Commission accepts that in the applicant's mind she wanted to bring things into the open with Ms Palmer in an attempt to bring about a change in the relationship. The applicant thought that Ms Palmer's behaviour was childish and exaggerated and that her own conduct on 27 December 2016 had, by the time she had followed Ms Palmer across the street for the third time, taken on the appearance of an absurd joke. Thus she was "making fun" of the situation and did not intend to bully Ms Palmer.
However, given the applicant's own evidence in relation to Ms Palmer's conduct and attitude toward her, an objective and clear-thinking person, with the knowledge, skills, qualifications and experience of the applicant, would not think, that by "mirroring" Ms Palmer's behaviour, particularly after it was clear that Ms Palmer was crossing the road deliberately to ignore her, there would be a positive impact on her relationship with Ms Palmer, but rather the opposite effect was very likely.
The Commission accepts that Ms Palmer believed that the applicant had signed a written agreement not to engage with her as Ms Palmer had been given a letter from Mr Monte stating that a "specific agreement" "not [to] continue to stare at or intimidate staff members" had been given to the applicant. The fact that Ms Palmer believed this agreement was in place would have contributed to what the applicant perceived to be the "passive aggression" and/or "exaggerated" behaviour by Ms Palmer when the two came into contact. It also explains Ms Palmer's outrage at the applicant's behaviour on 27 December 2016. The Commission accepts that Ms Palmer was offended and humiliated, even though the applicant had not intended this to occur.
It is clear from the notes of the meeting on 19 February 2018 that Ms Donnellan accepted that the applicant had not only offended Ms Palmer but had also "abused" Ms Palmer. The Commission does not accept that the applicant was abusive, nor that the applicant intended to induce fear in Ms Palmer, nor that Ms Palmer was afraid. As set out above, Ms Palmer's demeanour in the witness box did not display fear of the applicant. Further, Ms Palmer gave evidence, for example working overtime on the weekends on the same floor as the applicant which was inconsistent with her being generally afraid of, or intimidated by, the applicant.
The Commission is not satisfied, on the balance of probabilities as framed in Briginshaw, that the applicant intended to intimidate Ms Palmer that is "to force into or deter [her] from some action by inducing fear", or to bully, offend, degrade, or humiliate Ms Palmer.
However, it is not the applicant's own view, or intention, in relation to her conduct, nor the view of Ms Palmer that is relevant. It is necessary to determine the matter from the perspective of the reasonable person appraised with the facts that there was no "specific agreement" but rather an acceptance by management, as articulated by Ms Donnellan, that certain matters may need to be dealt with as they arise and that the applicant should sort out her interpersonal relationships without the help or intervention of management by way of mediation or otherwise.
The sustained Allegation, that is the reason given to the applicant for the Dismissal, was not that the behaviour was intimidating but rather that it "could be interpreted as intimidating". In order to support a sustained finding of misconduct, the consequence of which is the termination of employment, the question cannot be whether something "could be interpreted" as intimidatory, it must be whether on the balance of probabilities as set out in Briginshaw, the reasonable person would interpret the conduct as intimidatory. The Commission has approached the determination of whether the reason for the Dismissal has a basis in fact from this perspective.
The reasonable person, without the misapprehension that the applicant had agreed not to engage with Ms Palmer, and who was aware of the frustration of the applicant and the behaviour of Ms Palmer over many years, including her obvious avoidance of the applicant over a long period of time, would consider that the applicant's behaviour was offensive to Ms Palmer and that Ms Palmer would be humiliated by the conduct. Such conduct falls within the definition of "bullying" in the Policy, and as Ms Klaassen found, was a failure "to show dignity and respect to Ms Palmer [that] was in breach of the Code of Ethical Conduct".
The Commission does not accept that the reasonable person with the information available to them as set out in paragraph [127] and [129] would consider that what the applicant was doing was intending to instil fear into Ms Palmer, and thus find the behaviour intimidating, nor as Ms Klaassen found "that, by her actions, [the applicant] did harass Ms Palmer".
The question next to be determined is whether the breach of the Policy, in the manner determined by the Commission is of sufficient seriousness to justify the Dismissal of the applicant, or whether the Dismissal was harsh.
The assessment of harshness involves a balancing or weighing exercise whereby an evaluation is required to be made, on the one hand, of the gravity of any misconduct giving rise to the Dismissal against, on the other hand, any mitigating circumstances.
On 27 December 2016, the applicant acted in breach of the Policy in an attempt to bring the conflict with Ms Palmer into the open and as a response to being ignored by Ms Palmer and being frustrated with management responses. The applicant knew that Ms Palmer actively ignored her, had complained about her, and did not like her; the applicant's case being that Ms Palmer deliberately exaggerated avoidance of the applicant in an effort to demean the applicant. The applicant's behaviour on 27 December 2016 does not reflect any understanding of Ms Palmer's feelings towards her or Ms Palmer's desire to avoid her.
In her Bachelor of Applied Science degree, the applicant studied conflict management; interpersonal skills; mental health issues and managing ambiguity and change, amongst other subjects. The applicant should have apprehended that the chances of her behaviour bringing about a happy or peaceful resolution to the conflict between her and Ms Palmer were very low. The applicant displayed a lack of insight into her own behaviour and that of her colleagues, and the likely consequences of her actions, particularly for a person with the qualifications and experience of the applicant.
The Helpline employees deal with matters of child protection which involve risks of serious harm to children. It is important that they are able to operate as a team and have insight into their own behaviours. It is also important that the applicant's supervisor is ready, willing and able to supervise the applicant and assist in complex or difficult matters.
The Commission agrees with counsel for the applicant's submission that if you accept Ms Palmer's evidence that she was told as early as 1 March 2015, that she should avoid, or ignore, the applicant in the workplace and elsewhere and that if Mr Monte or Mr Severin had said to Ms Dumas, "We have told [Ms Palmer] to ignore you or to have nothing to do with you or to avoid you and we think that's the best way of dealing with it" then the incident of 27 December 2016 may not have occurred.
Ms Thane, after interviewing Ms Palmer, Ms Rae-Minshall and the applicant, described the applicant as "dangerous" and found that the applicant had engaged in a "lengthy campaign of bullying and intimidation towards Helpline staff". Relevantly though, even after making this finding, Ms Thane did not recommend termination of employment but stated that she considered that the applicant should not be permitted to enter the workplace without coaching "to significantly enhance her interpersonal skills and awareness". Ms Thane agreed in cross-examination that the management response to the issues that were going on over the period of 2015 and 2016 involving the applicant, Ms Rae-Minshall and Ms Palmer was far from satisfactory and that there should have been a nipping in the bud of the issues at the outset. This is contrasted with Ms Donnellan's attitude to management's responsibility to deal with inter-personal issues expressed at the meeting with the applicant on 19 February 2018.
However, the management failures do not absolve the applicant of all responsibility for her conduct on 27 December 2016. The Commission also agrees with the respondent's submission that the applicant continues to deny that there was anything wrong with her conduct or behaviour believing instead that what she did was right, justifiable or excusable or it was the fault of the respondent. The applicant's experience and qualifications meant she should have been aware of the impact of her conduct on others. The applicant had also been warned that future breaches of the Code of Ethical Conduct and/or failure to abide by the Standards of Ethical Behaviour could result in formal action being taken against her. The applicant still does not accept that she offended, or humiliated Ms Palmer.
In balancing the matters set out above, the Commission finds the Dismissal was harsh in the sense that the punishment was "too harsh a consequence" for the misconduct of the applicant in offending and humiliating Ms Palmer in breach of the Policy, in the sense that this expression was used by Watson J. in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at p 233.
Accordingly, the applicant is entitled to relief pursuant to s 84 of the IR Act.

Is reinstatement or re-employment impracticable?

In her application for relief, the applicant did not seek reinstatement, rather she sought re-employment. This was amended at the hearing and she now seeks reinstatement as her primary remedy.
The respondent referred, in his submissions as to the appropriateness of reinstatement, to Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 ("Perkins") which was applied by the Commission in Hollingsworth v Commissioner of Police (1999) 88 IR 282 ("Hollingsworth"), in which the Industrial Relations Court of Australia (per Wilcox, CJ, Marshall and North, JJ) said at p 191: Each case must be decided on its own merits. These may be cases where any ripple on the surface of the employment relationship wilI destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about the discretion of an employee who is required to handle highly confidential information. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether the standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.
In Perkins, the Industrial Court continued at p 191: It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.
In Youssef v Western Sydney Area Health Service [2003] NSWIRComm 284 ("Youssef") the Full Bench, overturned on appeal the refusal of Sams DP to re-instate, re-employ or order monetary compensation. In doing so the Full Bench said at paragraphs [27]-[28]: 27 The determination of an appropriate remedy in this matter is not without difficulty. The relationship between the appellant and those charged with the management of the section of respondent's operation where she worked became quite strained. As we have noted, this was partially a result of the procedure adopted by the appellant to deal with her employer and, in large measure, in consequence of the approach of the respondent in managing its employees after the trauma of the assault. On balance, and having regard to the principles stated in Burge v BHP Steel at [35], we consider that reinstatement is not impractical for two reasons: 1. The relationship between the parties may be quickly restored by a changed management of the problem and a modified approach by the appellant in dealing with the management of the respondent; and 2. The employer is of sufficient size and diversity to sensibly accommodate the reinstatement of the appellant. Hence, we order the reinstatement of the appellant without loss of continuity of service which shall be effective on and from 15 September 2003.
The Commission has considered whether reinstatement is practicable in the applicant's circumstances in light of the Full Bench's decisions in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 ("Burge") and Youssef and the Industrial Relations Court of Australia's guidance in Perkins. It is clear that each case must be decided on its own merits and the level of mutual trust and confidence needed in each employment relationship will depend on the circumstances.
As in Youssef, the determination of an appropriate remedy in this matter is not without difficulty. The respondent is sufficiently large to accommodate reinstatement of the applicant but the size of the employer is not the only consideration. In assessing whether the relationship between the parties may be quickly restored and whether reinstatement is practicable the Commission must examine the rationality of any attitude taken by a party.
The applicant, despite giving evidence to the Commission that she would act differently in hindsight, effectively denies personal responsibility. There are other examples of the applicant's lack of insight in the applicant's evidence including her evidence regarding her interaction with Ms Rae-Minshall's husband. The applicant maintained a lack of insight into her behaviour during the hearing thereby underscoring the respondent's submission that she is unable to view her conduct from the perspective of others and therefore remains unable to appreciate the adverse impact of her conduct on her colleagues such as Ms Palmer. The lack of insight of the applicant weighs significantly against reinstatement to a role in Child Protection where the need for insight and a co-operative and professional relationship with one's supervisors and peers in this environment is patent.
The applicant points to the sixty references from people with whom the applicant worked who have a very different view of her to Ms Rae-Minshall and Ms Palmer as a reason weighing significantly in favour of reinstatement. The Commission has taken these references into account.
The Commission notes Ms Palmer's concessions that when she and the applicant were on different floors there was a period of twelve months when there was no difficulty between them at all, and the only times that they came together were on weekends and, even then with appropriate management or supervision in place, there were no difficulties working or consulting with the applicant when their work required it, but it is clear that Ms Palmer and Ms Rae-Minshall would not want to work with the applicant again. Ms Rae-Minshall said under cross-examination that she would not participate in mediation if the applicant was reinstated.
In considering the practicability of reinstatement, the Commission has given weight to those matters addressed by the applicant herself in the applicant's history of incidents or what has been referred to by the respondent as the "conduct issues". The Commission has also considered the concerns about Work Health and Safety raised by the PSA in the correspondence in the period July to December 2016.
The Commission accepts Ms Moore's evidence that she made no independent inquiries in relation to the allegations in the correspondence, the Commission has determined that the conduct issues were not matters properly relied on for the termination of the applicant's employment, and there have been failures by management in dealing with the complaints by and against the applicant. Nevertheless, when considering whether reinstatement is practicable, the Commission cannot ignore the difficulties in the employment relationship which led to the Dismissal.
The applicant has herself displayed a loss of confidence in the management at the Helpline. The Commission has had regard to the applicant's evidence about her perception of exclusion from groups at the Helpline, the impact of working at the Helpline on the applicant's physical and mental health, the evidence of Ms Donnellan about the applicant's consideration of self-harm, and the applicant's evidence that she has received treatment for this.
The Commission has considered whether the incident that occurred on 27 December 2016 may not have occurred if Mr Monte or Mr Severin had informed the applicant that Ms Palmer was going to ignore her such that the applicant should not be penalised by the consequences of fractured relationships which could have been mended by early and appropriate intervention by supervisors and managers.
The Commission has considered the applicant's stated contrition and her stated commitment to change her approach to work having regard to the nature of the misconduct. The applicant's call for a second chance has not "fallen on deaf ears", nor has her almost ten years of service or her satisfactory performance. The sustained Allegation alone was not so serious as to strike at the core of the employment relationship such that it necessitated dismissal. However, for a substantial length of the applicant's period of service she has been in dispute with colleagues and supervisors and she had previously been warned that failure to abide by the Standards of Ethical Behaviour could result in formal action being taken against her.
Given the Commission's view about the applicant's lack of insight it is relevant to consider whether the applicant can be generally contrite in these circumstances. The applicant responds to questions about her conduct with a response that she is not scary, displaying a lack of understanding of Ms Palmer's and Ms Rae-Minshall's perspectives. The Commission does not accept that the applicant's contrition can be entirely genuine without such an understanding.
The applicant submits that the Commission could place conditions or terms on the reinstatement. Examples of conditions on reinstatement given by the applicant included: the parties participating in a mediation; one of the parties attending some training or one of the parties attending some coaching; or the parties being returned to the situation that they were in at Parramatta by being placed on different floors with FACS being required to put in place conditions in respect of the way in which the employees interact with each other. The applicant submitted that there may very well be a case where there are some matters of difficulty that attend reinstatement but it is not a case where it is impracticable to reinstate.
The Commission has considered the helpful submissions of counsel for both parties about the Commission's ability to impose conditions pursuant to s 89(9) of the IR Act.
The conditions able to be imposed pursuant to s 89(8) of the IR Act must be attached to something capable of constituting an "order" within s 89(1)-(5). Section 89(8) is not a power enabling the Commission to do whatever it thinks is fair and/or reasonable.
Subsection 89(8) in the context of s 89(7) only permits an order of an ancillary nature that is necessary for the proper and effectual performance of the primary order.
Orders that make an order for reinstatement or re-employment conditional would be ultra vires. However, conditions that do not make reinstatement or re-employment conditional would be within jurisdiction: Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales 2010 NSWCA 47 at [23].
It would be extremely difficult, if not impossible, for a viable working relationship to be re-established between the applicant and Ms Donnellan, Ms Palmer, Ms Burgess, Mr Severin, and Mr Monte, as well as between the applicant and the other employees of FACS who provided the PSA with information which was adverse to the applicant. An order for reinstatement could be made that requires FACS to put in place conditions in respect of the way in which the employees interact with each other, such as an order that the applicant not present herself on a specific floor or specific area.
The Commission has taken into account each of the matters submitted by the applicant and the respondent as to whether reinstatement is practicable and whether the imposition of conditions on such an order may be appropriate in these circumstances.
After weighing each of these matters, and in particular, the applicant's lack of insight and acceptance of personal responsibility, I am compelled to determine that it would be impracticable to make an order for reinstatement in this case, regardless of whether orders limiting the applicant's movement within the workplace, or other conditions are matters within the Commission's powers.
There was insufficient evidence before the Commission to support re-employment at Campbelltown or elsewhere to enable the Commission to be satisfied that another suitable position is available: Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales 2010 NSWCA 47 at [20]. Accordingly, the Commission is unable to make an order for re-employment.

Compensation

The Commission has found the Dismissal was unfair and that reinstatement and re-employment are impractical. Accordingly, the consideration in this matter is of compensation only.
Sub-section 89(5) of the Act provides that the maximum compensation that may be awarded is "six months' remuneration of the applicant at the average rate received over the period of six months immediately before being dismissed".
Sub-section 89(6) provides: When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant had succeeded in obtaining alternative employment.
The Commission's task in assessing compensation was summarised in Bartlett and Cini v Mario's Fresh and Frozen Foods [2006] NSWIRComm 1084: [27] Section 89(5) is concerned with loss of income, not any assessment of damages. It is fairly settled law now in this State that such monetary compensation is neither punitive, punishing an employer for any wrongdoing on his part, nor designed to enrich the dismissed employee at the expense of his former employer: Henderson v Rural Lands Protection Board (1997) 74 IR 142 at p.150. [28] Nevertheless, there is still a level of speculation in determining the appropriate level of remuneration for the two employees. Section 89(6) does not prescribe a simple mathematical formula in the assessment of monetary compensation - a sum representing the amount of income over the period of six months immediately prior to the dismissal, compared and contrasted with the remuneration received in the alternative employment and considered against the length of time that an employee was out of work: D and R Commercial Pty Limited v Flood (2002) 113 IR 344 at p.363. The only jurisdictional limitation is the six month ceiling in s 89(5): the rest is a matter for the Commission's discretion.
All cases must be decided on their own merits, but the Commission has had regard to the quantum of compensation awarded in the Commission's earlier decisions, and in particular to the Full Bench's determinations in Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48; Dissanayake v State Transit Authority [2016] NSWIRComm 10, Department of Health v Kaplan (No 3) [2010] NSWIRComm 170 and Commissioner Murphy's decision in Paulson v Industrial Relations Secretary (Department of Justice) [2017] NSWIRComm 1037 which the Full Bench determined was not infected with error: see Paulson v Industrial Relations Secretary (Department of Justice) [2018] NSWIRComm 1004, in order to determine the quantum of compensation that is appropriate.
The evidence before the Commission was that the applicant was employed by Chrisco from 24 September 2018 (more than six months after the Dismissal was effected) until 5 March 2019 although the Commission notes that the applicant's written submissions stated that the applicant commenced "short term, full time employment since June 2018". The applicant gave evidence that she did not look for work immediately after the Dismissal as she was seeking to be re-employed with FACS and had expected this would occur quickly. Once she realised, after the mediation in May 2018 that the process would take some time, she then commenced her search for work. Once she commenced her search for work, the applicant looked only for temporary positions because "She intended to go back to [her] previous position".
In addition to the matters outlined above, and the matters which the Commission has determined rendered the Dismissal harsh, the Commission has taken into account the following in determining the appropriate amount of compensation: 1. the failure of management to deal properly with the issues between the applicant, Ms Rae-Minshall and Ms Palmer and in particular the misinformation provided to Ms Palmer about the existence of a specific agreement from the applicant that "she would not continue [to] stare at or intimidate staff members"; 2. the length of time between the incident the subject of the sustained Allegation (27 December 2016) when the applicant was made aware of the findings of the fact-finding investigation (29 September 2017), and then the further time that elapsed before the applicant was made aware of the outcome of the Klaassen Report (10 January 2018) and the Dismissal (8 March 2018); 3. the applicant's age (50) and length of service (over 9 years); 4. the level of harshness attaching to the Dismissal of the applicant, including that the sustained Allegation on its own did not support termination of employment and neither Ms Donnellan nor Ms Klaassen recommended termination and in fact suggested other ways of dealing with the incident; 5. the applicant was offered the opportunity to resign before her employment was terminated; and 6. the length of time that has elapsed since the dismissal (approximately 12 months).
The Commission orders compensation in favour of the applicant in an amount equivalent to 14 weeks' pay at the rate which the applicant was being paid at the time of her dismissal, as just and fair in all of the circumstances of this case.

Proper name of the Respondent

A final matter is the proper description of the respondent in proceedings before the Industrial Relations Commission. The correct name of the respondent, for the purposes of industrial proceedings, is the Industrial Relations Secretary: GSE Act s 50. The title of the respondent for these proceedings will be amended to: "Industrial Relations Secretary on behalf of Family and Community Services" and the title of the proceedings will therefore be "Isabelle Dumas v Industrial Relations Secretary on behalf of the Department of Family and Community Services".

Orders

The Department is ordered to pay to the applicant, within 21 days of today's date, a sum equivalent to 14 weeks' pay calculated at the rate of pay applicable to the position occupied by the applicant immediately before the termination of her employment on 8 March 2018. N J Constant Commissioner

Amendments 12 March 2019 - Amendment to Cover Sheet - "termination unjust" removed from Catchwords. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2019

Isabelle Dumas v Industrial Relations Secretary on behalf of the Department of Family and Community Services

At a glance

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Decision date

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Judgment (14 paragraphs)

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Legislation Cited (3)

Cases Cited (21)

Cited By (1)