Fair Work Act 2009

s.394 - Unfair dismissal

Trustees of the Roman Catholic Church for the Diocese of Wagga Wagga

Application for an unfair dismissal remedy - whether valid reason - dismissal unfair.

[1] Ms Lorraine Roche commenced employment with the Catholic Schools Office Wagga Wagga (the CSO) on or about 23 April 2012 and was dismissed on 22 November 2017. Ms Roche had held the position of School Support Officer at St Patrick's Primary School (the School) in Griffith from May 2013. Ms Roche's dismissal followed an investigation into an incident that occurred on 17 August 2017 involving her and another staff member of the School, Ms Culla (the Incident).

[2] On 11 December 2017, Ms Roche made an application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 for a remedy in respect of her dismissal. Ms Roche seeks compensation and reinstatement to her former position.

[3] The respondent was identified in the Employer Response to Unfair Dismissal Application (Form F3) as 'Trustees of the Roman Catholic Church for the Diocese of Wagga Wagga' (the Diocese), rather than 'Catholic Schools Office Wagga Wagga' as stated in the application. The Diocese operates 26 primary and 5 secondary schools through the CSO. In the circumstances, I have amended the named respondent on the application to reflect the legal entity identified in the Form F3, pursuant to s.586 of the Act, however I will refer to the respondent as 'the CSO' in this decision as this was how the respondent was referred to during the proceedings.

[4] The hearing was held in Wagga Wagga on 28 and 29 March 2018 and in Sydney on 21, 22 and 23 May 2018. The parties made their closing submissions in writing, which were filed by 19 June 2018.

[5] Both parties were granted permission to be represented pursuant to s.596 of the Act. Mr A Aleksov of counsel with Mr C Ni, solicitor, appeared for Ms Roche. Mr D O'Sullivan of counsel with Mr S Cooper of the Catholic Commission for Employment Relations appeared for the CSO.

[6] For the reasons set out below, I find that Ms Roche's dismissal was unfair and I have decided to reinstate Ms Roche to her former position.

[7] The background and facts set out below are agreed or not contested.

[8] Ms Roche worked in the front office of the School with around 5 other persons, including Ms Culla. From 2017, apart from her role as a School Support Officer, Ms Roche also performed duties as the assistant to the Principal.

[9] Ms Culla was a Senior School Support Officer and held that position from 7 October 2014 until her resignation on or about 22 November 2017.

[10] Ms Roche and Ms Culla had a problematic working relationship and each was the subject of complaints made against the other.

[11] In 2015 Ms Culla made a formal complaint against Ms Roche and another front office staff member. An investigation into Ms Culla's allegations was undertaken. Following the investigation, Ms Roche was issued with a formal warning (the 2015 warning). Ms Roche disagreed with the investigation findings and objected to the written warning.

[12] In May 2016 Ms Culla made a workers compensation claim and took leave between May and July 2016. The problematic working relationship between Ms Roche and Ms Culla continued after Ms Culla's return, causing several meetings and discussions initiated by the CSO in an attempt to resolve the issues between the two.

[13] In around March 2017, both Ms Roche and Ms Culla were warned by Ms Price, the CSO's Employee Services Manager, that any further incidents between them would affect their continued employment and may result in their dismissal (the Price warning).

[14] On 17 August 2017 the Incident occurred between Ms Roche and Ms Culla, the details of which are set out later in this decision. Ms Roche reported the Incident to the Griffith station of the New South Wales Police.

[15] Following the Incident, both Ms Roche and Ms Culla were stood down with pay. They were both advised by letter dated 18 August 2017 that Ms Sue Delaney (Senior Employee Services Officer) would investigate the Incident.

[16] In the period between 21 and 30 August 2017, Ms Delaney conducted interviews with relevant persons and obtained statements from witnesses. The scope of the investigation at the time was limited to allegations against Ms Culla.

[17] On or about 19 September 2017 Ms Delaney provided Ms Price with an investigation report, together with proposed findings. Her proposed findings concluded that three out of five allegations against Ms Culla were sustained.

[18] Ms Delaney commenced leave on 20 September 2017 and had no further involvement with the investigation. Ms Price then took over the investigation process.

[19] On 27 September 2017 Ms Roche received a letter written by Ms Price which indicated that as a result of the ongoing investigation, the CSO became aware that the Incident involved alleged inappropriate conduct by Ms Roche. The letter set out details of Ms Roche's alleged inappropriate conduct and stated that these allegations, if substantiated, could constitute a breach of the CSO's Guidelines for Professional Conduct. The letter went on to invite Ms Roche to attend an interview with Ms Virginia Pattison, an Employee Services Officer, on 5 October 2017 to respond to the allegations.

[20] The Incident was described by way of background in the investigation report[1] as follows:

"On 17 August 2017 at approximately 8:40am in the school staffroom Ms Culla, Senior School Service Assistant was speaking to Ms Donna Cavanagh, School Administration Assistant, about training. In the course of this conversation Ms Roche, School Administration Assistant, suggested that Ms Culla train another member of staff, Ms Maree Puntoriero, in handling administrative finance in anticipation of Ms Culla talking leave in September.

The conversation between Ms Culla and Ms Roche became heated and Ms Cavanah left the room. After Ms Cavanagh left the room a conflict between Ms Roche and Ms Culla developed in which Ms Culla was heard to repeatedly yell 'get away from me' at Ms Roche. It is alleged that during the course of the interaction between Ms Culla and Ms Roche, Ms Culla closed a door when Ms Roche's arm (or hand) was still in the door and that she pushed Ms Roche into a cabinet when leaving the staffroom. Following the incident with Ms Roche, Ms Culla spoke to Mr Morrell the Assistant Principal. It is alleged that, during and after her conversation with Mr Morrell, Ms Culla shouted and swore and later re-entered the staff room and smashed a drinking glass in the sink before leaving."

[21] The allegations of misconduct put against Ms Roche, arising from the Incident on 17 August 2017[2], were:

"1. Without the consent or confirmation of the Principal, you advised [Ms Culla] that a staff member, Maree Puntoriero, was being employed to do some of Ms Culla's work while she was on leave.

1. Despite being told by Ms Culla that she would not discuss Ms Punteriero's employment with you, you followed Ms Culla and stood in the doorway of her office and continued to raise the issue of Ms Punteriero's employment and training.

2. When Ms Culla tried to close her office door, you pulled on the door from the other side and placed your arm and leg in the doorway in an attempt to prevent Ms Culla from closing the door and this resulted in an injury to Ms Roche's hand.

3. Ms Culla repeatedly told you to go away and to leave her alone but you refused to do so essentially preventing Ms Culla from being able to easily exit her office, despite it being apparent that Ms Culla was in considerable distress regarding the situation."

[22] On 5 October 2017 Ms Roche attended the interview with Ms Pattison. She was accompanied by Ms Groom of the Independent Education Union of Australia (IEU). Ms Price was also present.

[23] Ms Roche was advised of the findings of the investigation in a show cause letter of 10 November 2017. In that letter, the CSO made reference to its serious concerns about Ms Roche's workplace conduct and stated the following:

"... the CSO considers that your conduct has fallen seriously short of the standard it reasonably requires of an employee in your position. Your conduct is inconsistent with the Guidelines which in turn is a breach of the express term in your contract of employment which requires you to comply with the policies of the CSO. Specifically, your conduct is inconsistent with the following provisions of the Guidelines:

v. be mindful of their duty to the safety of themselves and others

1. be aware that if their conduct has the potential to damage the reputation of the Diocese, parish and/or school, even if it is in a private capacity, this could lead to disciplinary action

1. model effective leadership and respect in interactions with students, children and young people, colleagues and others
2. treat others with care. Rude or insulting behaviour, including verbal and non-verbal aggression, abusive, threatening or derogatory language and physical abuse or intimidation towards others is unacceptable.

Further your conduct constitutes a breach of your obligations under work health and safety legislation and your general duty of care to others."

[24] The show cause letter went on to detail Ms Roche's formal warning issued on 16 November 2015 and stated:

"... You were reminded of the requirements set out in the warning letter of 16 November 2015 to work cohesively and follow directions from Ms Culla and to work within the school/office protocols. You were again advised that any further incidents, failure or issues with your performance may result in a review of your ongoing employment, including termination.

I am seriously considering terminating your employment with the CSO ... To avoid doubt, your employment would be terminated on the basis that you have engaged in behaviour considered to be in breach of your contractual obligations to abide by the policies of the CSO and that this behaviour threatens the health and safety of others."

[25] Ms Roche prepared a written statement[3] and read it out at the show cause meeting on 20 November 2017. In summary, Ms Roche said:

• She appreciated and acknowledged the importance of her role in maintaining reasonable and appropriate standards in the workplace.

• She regretted the situation and, upon reflection, it may have been better for all involved if she had handled it differently.

• She acted at the time in what she thought was a reasonable manner and in the best interests of the School and Ms Culla.

• As the Personal Assistant to Ms Campbell, and as the person whom Ms Campbell asked to get Ms Puntoriero onto 'the system' for finance work, she did not consider her inquiry about training inappropriate. "Upon reflection, I acknowledge this was probably not my business and not my place to discuss with [Ms Culla]. However, the question was certainly not intended to antagonise or upset [Ms Culla]".

• She had not immediately 'followed' Ms Culla to her room and it was about 10 minutes later that she went to see Ms Culla to "clear the uncertainty and explain that [Ms Campbell] had asked me to put Maree [Puntoriero] on the system for training."

• Ms Culla screamed 'get away from me' only after seeing she had caused injury to her hand.

• Ms Culla became very heightened after she was told that Ms Campbell had asked Ms Roche to put Ms Puntoriero on the system for training, to which Ms Culla said 'well you train her then' and she replied 'but it's for finance, I can't do that'.

• It was her intention to leave the doorway when Ms Culla's heightened behaviour became apparent.

• She did not threaten Ms Culla or at any stage make any advances towards her to make her feel unsafe.

• It was not her intention to make Ms Culla feel she was trapped in her office. She moved further into her office only to try and calm her down and stop her screaming. She felt at the time she could only do this by being able to see her. In this regard she said: "I trust that you will take into consideration that this incident was a unique, confronting and challenging situation for me. I was acting on instinct trying to calm [Ms Culla], for the safety of all persons at the school. Also, a common First Aid practice for a person in distress states that it is important to help them try to keep calm."

• She has an excellent rapport and working relationship with the staff at the School. "I am respected in the school community and liked by my peers and colleagues. I bring more to my role than just an administration assistant, helping out where possible in extra curricular activities run by the school and parish. I take pride in my work and diligently carry out my duties in a professional and helpful manner. I commit to and have carried out unpaid overtime when needed.

• Her interactions with students in her administrative role, first aid duties and student well-being has always been consistent and a priority.

• She also has an excellent relationship with parents, many of whom she knows personally having grown up in the school community.

• It was never her intention for this situation to escalate as it did.

• It was never her intention to antagonise Ms Culla and she certainly did not foresee the outcome that transpired.

• She loves her job and the School is a big part of her life both past and present. She said: "I, along with my brother and sister, nieces and nephews and recently my son attended the school. My grandmother used to cook for Fr Beltrame and other clergy in the presbytery, clean the church and sewed many of the altar tablecloths and vestments that are still in use today. All of the major events in my life have been in this parish of which St Patrick's is a part. I would never intentionally sully its reputation."

• She acknowledges that she needs improvement in her interactions with others and needs to take into greater consideration the diversity of all colleagues. In this regard she said: "I did not read this particular situation well and have learnt from this."

• The Incident and subsequent time of uncertainty has caused much anxiety and distress to her and her family. She is a single mother and sole breadwinner and working full-time is a necessity.

[26] The Termination Letter[4] of 22 November 2017 issued to Ms Roche was signed by Mr Bowyer. The letter states, under the heading of 'Reasons for Termination', the following:

"I have carefully considered and assessed your Response.

You have expressed regret regarding the incident with Ms Culla, however, this is not the first time your conduct has been of concern as it pertains to your relationship with Ms Culla. You received a written warning in November 2015 for conduct in breach of the CSO Guidelines and the CSO's Preventing Discrimination, Harassment and Bullying Policy. You were also specifically directed to work cohesively and follow direction from Ms Culla. I note that your response to this warning was to disagree with the investigation's findings and that you refused to acknowledge the warning.

The relationship between yourself and Ms Culla has continued to be problematic. During 2016 and 2017 the CSO and the School leadership have put considerable effort into working directly with you and Ms Culla to resolve your conflict issues and engender a harmonious working relationship at the School. You have been reminded that you need to maintain a professional relationship and that a failure to do so may result in a review of your employment. Despite this, the relationship has not improved as evidenced by the incident on 17 August 2017.

You maintain that your actions were intended to calm Ms Culla. However, I prefer the findings of the investigation that you would have been well aware that persisting in interacting with Ms Culla would antagonise her and certainly that it would have been apparently very quickly during the incident that your continued presence in Ms Culla's office was inflaming rather than calming the situation. This leads me to the conclusion that your actions were deliberate and intended to provoke Ms Culla.

Your recent conduct towards Ms Culla, coupled with your attitude regarding the validity of the 2015 warning means that I have no confidence that the situation between yourself and Ms Culla will improve.

In light of the earlier warning and the subsequent support you have been provided, it is reasonable to expect that you would exhibit a much higher standard of conduct than what has occurred.

Your actions are in breach of the CSO Guidelines, your obligations under health and safety legislation and your general duty of care to others. You are also in breach of the express term in your contract of employment which requires you to comply with the policies of the CSO. Furthermore, the CSO has lost trust and confidence in your judgement and ability to act in the best interests of the CSO and to meet the professional standards the CSO reasonably requires of an employee in your position."

[27] Ms Roche was given five weeks' pay in lieu of notice.

[28] The CSO's case primarily relies on a finding that Ms Roche engaged in misconduct arising from the Incident. The conduct that was determined to constitute the misconduct was in relation to two allegations, those being:

1. Allegation 2 - "Despite being told by Ms Culla that she would not discuss Ms Ponteriero's employment with you, you followed Ms Culla and stood in the doorway of her office and continued to raise the issue of Ms Ponteriero's employment and training"; and

2. Allegation 4 - "Ms Culla repeatedly told you to go away and leave her alone but you refused to do so essentially preventing Ms Culla from being able to easily exit her office, despite it being apparent that Ms Culla was in considerable distress regarding the situation".

[29] The CSO also asserted that Ms Roche was afforded procedural fairness in relation to the manner in which her dismissal was effected.

[30] Oral and/or written evidence was given by the following persons:

1. Ms Lorraine Roche;

2. Ms Kathryn Grant - Teacher;

3. Mr Michael Morrell - Assistant Principal;

4. Ms Susan Delaney - Senior Employee Services Officer.

5. Ms Julie Price - Employee Services Manager;

6. Mr Nouran Tawfiq - Workplace Investigator; and

7. Ms Sandra Campbell - Principal;

8. Mr Alan Bowyer - Director of Schools (now retired); and

9. Ms Ornella Murray - Teacher.

[31] I have carefully considered all of the evidence and submissions made by both parties. The matters set out below are confined to the issues I need to determine.

[32] Ms Roche's version of events of the Incident was set out in detail in her statement[5]:

"On 17 August 2017, I overhead [Ms Culla] in the staffroom asking Donna Cavanagh when she would be free to undertake training with her. I asked [Ms Culla] whether Maree could also join.

[Ms Culla] asked me who Maree was. I explained that I was referring to Maree Puntoriero. [Ms Culla] replied that she told Sandra she would not train anyone from scratch, that Maree did not know anything and that there was not enough time.

As [Ms Culla] left the staffroom she stated in an aggressive and abrupt manner 'I don't take directives from you, Lorraine'. ...

Approximately 10 minutes later, I heard [Ms Culla] opening the safe in her office. I decided to go to her office and explain the instructions Sandra gave me and update [Ms Culla] on the status of Maree's paperwork. I thought this would be a good way to resolve the heated discussion that had just taken place.

I entered [Ms Culla]'s office. [Ms Culla] was bent down opening the safe. I told [Ms Culla] that I was not trying to direct her and that Sandra had instructed me to set Maree up on the system in order for her to receive training.

[Ms Culla] threw her arm out at me and told me to train Maree instead. I told [Ms Culla] that Sandra would like Maree trained in finance in order to cover her leave, which I was not capable of doing.

[Ms Culla] replied that this was news to her, that she would not take directions from me, to get out and leave her alone. As [Ms Culla] spoke, she shoved me in the chest with her hand and started to close the door.

I lost my balance from [Ms Culla]'s shove and grabbed onto the edge of the closing door in order to regain my balance. [Ms Culla] attempted to close the door again, however my hand was still in the doorway.

I called out that my hand was stuck in the doorway and pulled it out. I was in pain and realised that my hand was bleeding. [Ms Culla] also saw that my hand was bleeding.

[Ms Culla] then started screaming 'get away from me' repeatedly after she saw my hand bleeding and realised she had caused my injury. I remained in the same position by the door, holding onto my hand.

At the time I was confused, bewildered and shocked that [Ms Culla] was screaming given I was the one who had been injured.

[Ms Culla] walked to the other side of the desk and continued to scream for me to get away from her. At the time I lost sight of [Ms Culla] because of a filing cabinet that was next to the entrance of her office.

[Ms Culla] was obviously in distress and I was the only person around at the time. By reaction I moved into [Ms Culla]'s office so that I can see her and to try and calm her down. I was acting on what I thought was the right thing to do for the safety of students, parents and staff at the school as they were arriving at school around that time of 8.30am.

I knew from my first aid training that a common first aid practice to deal with a person in distress was to try and help them keep calm, talk to them in a low register and ask that they stop yelling because of how it could make that person or others feel.

I told [Ms Culla] to calm down and asked why she was yelling. I asked her if we could talk about this civilly.

It was not my intention at all to make [Ms Culla] feel like she was trapped in her office or to antagonise her.

[Ms Culla] continued to scream. She picked up her phone and faced away from me. She turned back around and put the phone down. She opened the backdoor and then tried to open the gauze door but it would not open.

I could see students and parents walking past the gauze door hearing [Ms Culla] yelling. I again asked [Ms Culla] to calm down and told her that people could hear her.

[Ms Culla] stopped yelling and walked around the desk. I was afraid and started backing out of the door. [Ms Culla] reached me just outside her office door at the sick bay and shoulder barged me. I fell against the first aid cupboard.

At that moment, Michael Morrell arrived on the scene and asked what was going on."

[33] Ms Roche said she explained to Mr Morrell what had happened and was later advised by him that she was required to go home.

[34] Ms Roche attended the hospital that afternoon and subsequently reported the Incident to the New South Wales Police. She provided a statement to the Police on 24 August 2017[6].

[35] In relation to the 2015 warning, the allegations found to be sustained were as follows:

1. on 6 August 2015 Ms Roche was asked by Ms Culla to return to her desk and answer phones, however she refused to do so (Allegation 5);

2. on more than one occasion Ms Roche did not take her lunch between 12pm and 1pm as she had been directed to do (Allegation 7(b));

3. on more than one occasion Ms Roche did not go to Ms Culla to request leave as she had been directed to do, and instead made a request to the Principal (Allegation 7(c)); and

4. Ms Roche had failed to appropriately use the central diary system (Allegation 7(f)).

[36] Ms Roche gave evidence that in relation to Allegation 5, she had only just commenced a lunch break and was still heating up her lunch when Ms Culla asked her to return to answer the phones. Further, the School had in place a telephone answering system which had been authorised by the Principal.

[37] In relation to Allegation 7(b), Ms Roche's evidence was that this practice had been abandoned in favour of a practice whereby Ms Roche and Ms Culla worked out between themselves when to take lunch.

[38] In relation to Allegation 7(c), Ms Roche submitted that this was a low level issue that did not justify the issuing of the 2015 warning.

[39] In relation to Allegation 7(f), Ms Roche asserted that she had not been appropriately trained in the use of the diary system, and that once trained, there was no suggestion that she had failed to use it correctly.

[40] Ms Culla was not employed by the CSO at the time of the hearing, and was not called to give evidence in these proceedings. Her version of events of the Incident, to the extent it involved her interaction with Ms Roche, can be found in a statement she provided to Ms Delaney on 28 August 2017[7]:

As I was organising my bag I heard Michael Morrell's voice in the staff room. I walked out to speak to him regarding the groundsman. He then walked out of the staff room through the rear door.

Donna Cavanagh was also in the staff room and I then spoke to her regarding the training we needed to get started for my sick leave in two weeks. As we were discussing this, Lorraine Roche interrupted our conversation, saying 'I thought Maree Punteriero was going to be trained to do the finance'. I turned around to see her standing at the kitchen bench making a coffee.

I replied, 'no Donna is doing it. I don't know anything about Maree coming in'. Lorraine then said, 'that is what Sandra said will be happening'. I replied, 'it has nothing to do with you Lorraine. Besides, she would need to learn the front office first', I then walked out of the room to my office.

As I turned to close my office door, Lorraine was standing there and started speaking again about this matter saying, 'Sandra said that Maree will be doing the finance', I said, well that's not going to happen. I then went to close the door saying please go away, leave me alone, she kept repeating these words and said, 'that is what Sandra directed me to do'.

I said to Lorraine, please leave me alone and I started shaking and a panic attack came over me as I was trying to close the door. I couldn't work out why the door wouldn't close. Then I realised that Lorraine had her hand inside the door and was pulling it outwards preventing me to close it. She also had her right leg in the doorway at the same time. I felt very frightened and intimidated by the look in Lorraine's eyes and her determination in stopping me close the door. I kept saying 'go away, leave me alone' over and over.

I let go of the door and ran around my desk to my mobile phone to ring Michael Morrell to ask him to come back to the office and help me. His phone was engaged so I hung up. (My mobile phone shows that I made this call at 8.40am). Lorraine walked further into my room, still talking. I didn't know what to do, I was panicking and crying, I remember the old door behind my desk. I turned and unlocked the wooden door and then I couldn't unlock the screen door. I kept turning and turning the key crying but the door wouldn't open. I was saying 'leave me alone, let me out, let me out.' All I could hear at this time was Lorraine standing behind me on the other side of the desk talking in a really sweet patronizing voice, 'I only want to talk to you ..." repeating this several times.

I had to get away from her and I walked fast around my desk and pushed past her in front of the filing cabinets and ran out of my office, through the sick bay, through the staff room into the ladies toilets. I broke down crying on the floor near the basin. I had pains in my chest and up the back of my head, and could not control my breathing. I felt like I was going to vomit."

[41] Ms Grant provided a statement[8] in these proceedings.

[42] Ms Grant has been a first grade teacher at the School for about five and a half years and has been working for the CSO for more than twenty years.

[43] According to her, she was in the staff room making a coffee when she heard Ms Culla shouting 'Get away from me, get away from me'. She could not see Ms Culla from where she was but from her tone of voice she sounded extremely distressed. She heard Ms Roche saying: "I'm just trying to have a conversation with you." Ms Roche's voice was not raised.

[44] Ms Grant said that within seconds she walked into the front office. She could not see anyone but continued to hear Ms Culla shouting: "Get away from me, get away from me ... please leave me alone." As Ms Culla's voice was becoming louder and more hysterical, she went to find the Assistant Principal, Mr Morrell. She and Mr Morrell then headed back towards the staff room. As they entered the staff room, she saw Ms Culla running across the staff room into the ladies toilet. She seemed visibly shaken and had tears running down her face. She later found Ms Culla inside the ladies toilet "on her knees, crying and shaking".

[45] Ms Grant disagreed with Ms Roche's statement that Ms Culla started shouting "get away from me" after Ms Roche called out that her hand was stuck in the doorway. Ms Grant believed that Ms Roche's injury took place after Ms Culla had shouted "get away from me" a number of times.

[46] Mr Morrell witnessed part of the Incident and provided a statement[9] for these proceedings. In his statement, Mr Morrell said, in part:

"At approximately 8:45AM on 17 August 2017, I was walking alongside Ms Kate LeBrocque (Teacher) along the pathway leading up to the door that opens into the staffroom. ...

I then saw Ms Katherine Grant (Teacher) exit the staffroom door and walk towards me along the same pathway in the opposite direction to me. Ms Grant said to me words to the effect of: 'You'd better get up to the office now, there's a screaming match going on'. I responded by immediately running to the public entrance to the Front Office ...

As I was running to the Front Office ..., I heard Ms Culla scream, at least twice, words to the effect of: "Get out, get out!" or "Get away from me!". I heard Ms Culla scream these words before I saw her and Ms Roche.

When I arrived in the foyer, I immediately approached the reception desk. I looked over the reception desk, through the Reception Area, and saw Ms Roche being pushed back by Ms Culla towards the middle of the Corridor by Ms Culla. It appeared that Ms Culla was pushing past Ms Roche so that she could get away from her. Ms Roche was standing in or just out of Ms Culla's office doorway when Ms Culla had used her shoulder to make contact with Ms Roche on her left hand side causing her to be pushed into the cupboard. I could not see from where I was standing if the door to Ms Culla's office was closed or if Ms Culla was trying to close the door to Ms Roche.

Within a few seconds of my arrival and after observing the physical contact between the two ladies I said words to the effect of: 'what's going on?' I then heard Ms Culla screaming words to the effect of: 'Get this woman away from me!' as she exited the corridor and headed towards the staffroom and into the ladies toilets. She continued to sob loudly as she moved towards the ladies toilets. Ms Roche then turned to me and said words to the effect of: 'She's just pushed me'.

From what I saw, based on Ms Roche's reaction, the impact of the shoulder contact from Ms Culla against Ms Roche's body was forceful enough to have the effect of moving Ms Roche's body involuntarily back and to the side in the narrow confines of the Corridor. It appeared that Ms Culla forced her way past Ms Roche in a panicked attempt to get away from her.

[47] Mr Morrell also provided a witness statement to the New South Wales Police on 30 August 2017[10].

[48] The investigation into the Incident was initially undertaken by Ms Delaney, which only involved allegations against Ms Culla.

[49] Ms Delaney provided a primary and a supplementary statement[11] in these proceedings but was not required for cross examination. Ms Delaney said that she became aware of the incident on 18 August 2017 when Mr Morrell forwarded an email from Ms Roche of 17 August 2017 in which she raised allegations that she was physically assaulted at the School that day. She later received a further email from Ms Roche in relation to the Incident and responded to Ms Roche that she would commence an investigation. Ms Delaney said that based on the information provided to her at that point in time, she considered Ms Roche to be the complainant and accordingly her investigation was limited in scope to allegations of misconduct against Ms Culla.

[50] Ms Delaney then sent an email to Ms Culla on 18 August 2017, attaching a letter from the CSO about the investigation into the Incident[12]. The letter also set out the following alleged inappropriate conduct by Ms Culla:

• Closing your office door on Ms Roche's arm.
• Pushing Ms Roche into a first aid cupboard, resulting in a cut on Ms Roche's hand.
• Shouting and swearing at Mr Michael Morrell.
• Throwing a drinking glass into the staffroom sink where it shattered over the bench, sink and floor."

[51] Ms Delaney travelled to the School on 21 August 2017 and conducted interviews with Ms Roche and Ms Culla. Ms LeBroque, Ms Grant and Ms Campbell were interviewed as potential witnesses.

[52] During her interviews, Ms Delaney was provided with a statement from Ms Roche. She also took notes from other witnesses. She was also provided with copies of the statement of Mr Morrell and his statement given to the New South Wales Police.

[53] On or around 13 September 2017 she met with Ms Price to discuss the progress of her investigation report. During this meeting Ms Price offered to assist in managing the process due to Ms Delaney's fairly high overall workload.

[54] On or around 19 September 2017 Ms Delaney completed an investigation report and her proposed findings[13], which she provided to Ms Price for her consideration. The recommended findings made by Ms Delaney in relation to Ms Culla's conduct were:

1. Shouting and swearing at Ms Roche - Sustained

2. Closing your office door on Ms Roche's arm - Not Sustained - Insufficient Evidence

3. Pushing Ms Roche into a first aid cupboard, resulting in a cut on Ms Roche's hand - Sustained

4. Shouting and swearing at Mr Michael Morrell - Sustained

5. Throwing a drinking glass into the staffroom sink where it shattered over the bench, sink and floor - Not Sustained - Insufficient Evidence.

[55] Ms Delaney commenced a period of leave from 20 September 2017 to 4 October 2017.

[56] Ms Price provided a primary and a supplementary statement[14] in these proceedings.

[57] Ms Price was on leave at the time of the Incident and did not return to work until 11 September 2017. She took over the investigation into the Incident when Ms Delaney went on leave.

[58] Ms Price said that on or around 19 September 2017, Ms Delaney provided her with a copy of her investigation report of the Incident.

[59] Having read the investigation report and the witness statements collected by Ms Delaney, Ms Price decided to engage an independent external investigator to review the investigation report and "critically evaluate its findings before the CSO made any final decisions".

[60] Ms Price's explanation for her decision to engage an external investigator was that the matter was of a highly serious nature, particularly given the involvement of the New South Wales Police; and that she was also conscious of Ms Delaney's previous dealings with respect to behavioural concerns about Ms Roche and Ms Culla and that Ms Roche had previously alleged Ms Delaney was biased in favour of Ms Culla. Ms Price felt that the insights and contribution of a specialist workplace investigator would be valuable.

[61] Ms Price said that Ms Delaney agreed with her suggestion to engage an external investigator. Ms Delaney also accepted her offer to take carriage of any further involvement in the matter.

[62] Ms Price said that although she was aware that Ms Delaney's investigation report was limited to allegations of misconduct against Ms Culla, she understood from materials that, during the investigation, allegations had also arisen as to Ms Roche's conduct during the incident and that these allegations were never put to Ms Roche for her response. She said: "I therefore formed the view that to ensure the investigation was complete and that any findings and outcomes were balanced and afforded procedural and substantive fairness to both parties, it was important that allegations that relate to Ms Roche's conduct were included within the final scope of the investigation."

[63] On 27 September 2017 Ms Price put allegations to Ms Roche in a letter which also invited Ms Roche and her representative to attend an interview at which she would be provided with an opportunity to respond to the allegations in relation to her conduct.

[64] Ms Price later engaged Mr Tawfiq, an external workplace investigator, to assist the CSO with the investigation by "conducting a review of the statements and findings and provide any advice.....to the CSO in terms of the investigation process".

[65] Subsequent discussions took place between Ms Price and Mr Tawfiq and, according to Ms Price, the following observations and advice were provided by Mr Tawfiq:

"Given the internal investigation is limited to the original allegations against [Ms Culla], and that you've now put allegations to Lorraine and we're waiting for her response, I think you're going to need to re-interview some of the witnesses to gain additional information about the incident."

"I've noticed the witness statements are unsigned. My recommendations is that we ensure each of the witnesses have been given the opportunity to review their statements and have approved them."

[66] Ms Price said she followed Mr Tawfiq's recommendations and later provided him with the requested witness statements and relevant amendments. She directly interviewed Ms Roche on 5 October 2017, Ms Campbell on 11 October 2017, and Ms Culla on 24 October 2017. Each person was provided with the opportunity to make amendments and the amendments to the statements were provided by her to Mr Tawfiq.

[67] Mr Tawfiq provided a statement[15] in these proceedings.

[68] Mr Tawfiq is an external workplace investigator, trading as Workplace Consulting Services (WCS).

[69] In or about 2015 WCS was engaged by the CSO to investigate allegations made by Ms Culla, Ms Roche and Ms Woodhouse. This involved making factual findings in relation to the alleged conduct and the preparation of investigation reports.

[70] In cross examination, Mr Tawfiq made concessions in relation to the reliability of the report which arose from 2015 investigation. It was this report that led to the written warning issued to Ms Roche in 2015.

[71] On 12 October 2015 Mr Tawfiq provided the CSO with three separate investigation reports and summaries of analysis and findings for each report. In relation to Ms Roche, the allegations found to be sustained included that on 6 August 2015 Ms Roche was asked by Ms Culla to return to her desk and answer phones in circumstances where she had just commenced a lunch break, however refused to do so (Allegation 5). The further allegations found to be sustained were that on more than one occasion Ms Roche did not take her lunch between 12pm and 1pm as she had been directed to do (Allegation 7(b)); that on more than one occasion Ms Roche did not go to Ms Culla to request leave as she had been directed to do, and instead made a request to the Principal (Allegation 7(c)); and finally, that Ms Roche had failed to appropriately use the central diary system (Allegation 7(f)).

[72] According to Mr Tawfiq, WCS was engaged by the CSO in early October 2017:

1. to prepare an investigation report in relation to a complaint made by Ms Culla about the conduct of Ms Roche on 17 August 2017 at the School, including the determination of recommended factual findings in relation to the alleged conduct; and

2. to review a preliminary internal investigation report produced by the CSO in relation to Ms Culla's conduct towards Ms Roche in relation to the incident on 17 August 2017, and to prepare a separate investigation report with respect to the complaint, including the determination of recommended factual findings in relation to the alleged conduct.

[73] Mr Tawfiq stated that he provided the CSO with the final investigation reports and summaries of analysis and findings with respect to Ms Roche and Ms Culla on 2 November 2017. Mr Tawfiq stated that in preparing these documents, he relied on the interviews conducted by the CSO.

[74] Ms Campbell provided a statement[16] in these proceedings.

[75] Ms Campbell is the Principal of the School and has held the position since April 2016. Prior to this role, Ms Campbell had been the Teacher Librarian at the School for approximately 15 years.

[76] Ms Campbell gave evidence that she was aware of the long standing friction between Ms Roche and Ms Culla and that they had an acrimonious relationship. Ms Campbell said that she had on numerous occasions spoken to both Ms Roche and Ms Culla about their behaviour in the workplace.

[77] Ms Campbell agreed that she had a conversation with Ms Roche about Ms Puntoriero. She said that although she did not remember whether she had asked Ms Roche not to raise the issue of training with Ms Culla, it was not Ms Roche's role to raise the matter.

[78] Ms Campbell was not present at the School when the Incident occurred on 17 August 2017.

[79] Ms Campbell said that she did not think that reinstatement of Ms Roche was in the best interests of the School. She was of the view that Ms Roche struggled with her interpersonal relationships and would struggle to take direction from anyone given her behaviour.

[80] However in cross examination, Ms Campbell:

• was asked her opinion of Ms Roche as an employee and said: "I have always said and I will maintain that she was an amazing front of house person"[17]

• said that Ms Roche "had a very amazing knowledge of our families and of their parents and of the students"[18] and Ms Roche had contributed to making parents feel welcome. "I had a lot of parents commenting about how welcoming she was in the front office to anyone that came to our school."[19]

• said that the list of duties that Ms Roche was required to perform was extensive.[20]

• said that: "I think Lorraine [Roche] is an honest person. I think she is honest to her beliefs and I think she acts accordingly."[21]

• agreed that she personally had no difficulties working with Ms Roche.[22]

• said that Ms Culla is a very volatile person and is predictably volatile.[23]

• agreed that she had sent Ms Culla home on more than one occasion, and that Ms Culla often attended work in an emotionally unstable state.[24]

[81] A bundle of documents attached to Mr Tawfiq's witness statement, provided by the CSO for the purpose of preparing the investigation reports, included notes taken for the interview with Ms Campbell on 11 October 2017. According to the notes, Ms Campbell said the following with respect to the support she had provided to both Ms Culla and Ms Roche:

• "I have found it very difficult, often, there have been occasions when [Ms Culla] has come to work very heightened, and I have asked her a couple of times to go home, because of issues at home. When she has complained about Lorraine I have met with Lorraine and gone through these with her and I have asked her to be compliant with fixing these things."

• She had regular weekly meetings with Mr Morrell, Ms Culla and Ms Roche to "support the office ladies and provide a semi controlled environment where the two could communicate more effectively and respectfully towards one another. ... [Ms Culla] set the agenda and Lorraine was reluctant to speak." These meetings stopped as she thought things were going well and she felt that the relationship had improved to a point where Ms Culla and Ms Roche were communicating in their own work space. "Both [Mr Morrell] and I continued to meet with [Ms Culla] at her request so that she could share the administrative matters for that week."

• "Julie Price had made it very clear to all of us that if anything further happened between the two ladies they would be dismissed. I told them that and that they knew the consequences and I couldn't fix their relationships, it is up to them."

[82] In relation to her views of Ms Culla, Ms Campbell's notes reveal the following:

• "... to be honest I was very wary about approaching [Ms Culla] she was very aggressive towards me. There was an incident just the week before that happened. There was a directive given to Lorraine by the previous principal. It was about her child being in the office after school. However, [Ms Culla's] child had been in the office after school. David [formal principal] had told Lorraine not to have her child in the office. [Ms Culla] became very heightened, and said if that applies to me it applies to all staff. I said to [Ms Culla], I just want to clarify if that directive was given to both of you not only Lorriane."

• "[Ms Culla's] voice raised, yelling at me, even had the finger pointed in my face on one occasion. ... When she has been heightened I have sent her home. When she comes in sometimes it is very visible, head down, not wanting to engage with anyone, very noticeable when she arrives at work on quite a few occasions. We knew to take a step back, as did everyone who was working in this area. On some occasions, raising of the voice, swearing very loudly at staff members, I have been sworn at, she has a very aggressive manner, I have experienced it. Staff members have come to me and made complaints."

• "Lorraine often complained about [Ms Culla] leaving early and taking long lunch breaks off site. I am very understanding when people have to go to appointments, if they have to go they have to go. I say yes, they can go. I would say yes. There were lots of occasions [Ms Culla] left early and I wasn't informed. I was frightened to follow that up with [Ms Culla] ... I was afraid of the reaction I would get, ... I was very frightened of her and the aggressive response I would get."

• "Staff members have complained about the way they have been spoken to and treated [by Ms Culla] about budgets. They were very afraid to approach her."

[83] Mr Bowyer was the Director of Schools of the CSO and held this position from 2007 until his retirement in December 2017. He provided a statement[25] and gave evidence in these proceedings as to his role in the dismissal of Ms Roche.

[84] According to Mr Bowyer, his role as Director was the most senior one in the CSO and matters were only escalated for his attention when there had already been significant interventions at both the school level and from Human Resources.

[85] He became aware of the Incident and subsequently read investigation reports produced by Mr Tawfiq which he said "made it clear that both Ms Roche and Ms Culla had behaved inappropriately."

[86] He met with Ms Price in or about November 2017 and asked her for a recommendation as to what steps the CSO should take next. Ms Price recommended that both Ms Culla and Ms Roche be asked to show cause as to why their employment should not be terminated. He recalled saying: "I agree. We can't just give another warning, I can't see how we can sustain or tolerate this. There is a huge amount of damage being done." Ms Price then prepared show cause letters for him to sign which were issued on 10 November 2017 to Ms Culla and Ms Roche.

[87] He later attended separate show cause meetings with respect to Ms Culla and Ms Roche. In this regard, he said: "Overall, I felt that Ms Roche attempted to paint a picture underestimating the severity of the incident and her part in it. I was concerned that she stated she had an 'excellent' rapport and working relationships with staff at the School and failed to acknowledge in any way the long standing conflict with Ms Culla."

[88] Mr Bowyer said that he told Ms Price after the show cause meeting with Ms Roche the following:

"This matter has been going for years. It has to stop now for the sake of all other employees and for the sake of Ms Roche, she has to be terminated. There is no empathy and no notion that she played a part in this irretrievable breakdown of relationships."

[89] Mr Bowyer said that he did not take the decision to dismiss Ms Roche lightly. Despite being mindful of Ms Roche's history of service with the CSO and her personal circumstances, Mr Bowyer said that he felt the termination of her employment was "the appropriate outcome and the only possible outcome".

[90] Mr Bowyer confirmed that he read and signed the Termination Letter prepared by Ms Price.

[91] Counsel for Ms Roche made an application during hearing for the Commission to hear oral evidence from Ms Murray as to the reintegration into the School of Ms Roche if she were to be reinstated.

[92] Ms Murray had attended the hearing as a support person for Ms Roche. Ms Murray was a grade one teacher at the School, and had been employed there for around 32 years (with some time off during this period).

[93] The CSO opposed the application to allow Ms Murray to give evidence. I agreed to allow Ms Murray's evidence subject to there being a sufficient opportunity for the CSO, over the remaining hearing dates, to call any rebuttal evidence it saw fit. Counsel for Ms Roche appropriately made a concession that if the evidence of Ms Murray proved to be procedurally unfair to the CSO that it would be appropriate that I ruled the evidence inadmissible.

[94] Ms Murray gave evidence that she was an IEU representative at the School. She said that a number of staff members had expressed concerns for Ms Roche and said: "I get the feeling that ... if she were to come back that wouldn't be a problem. It would just be Lorraine doing her job again, that she obviously did very, very well to begin with."[26]

[95] In cross examination, Ms Murray said that two of the front office staff had expressed support for Ms Roche, and one of those two staff members had provided a written statement in support of Ms Roche, which was not produced during the hearing.[27]

The Findings in relation to Ms Roche arising from the Incident

[96] The investigation reports produced by Mr Tawfiq concluded that allegations 1, 2 and 4 against Ms Roche were sustained and allegation 3 was not. While allegation 1 was found to be sustained, it was not found to have involved a breach of any CSO policies or requirements.

[97] All of the allegations against Ms Culla were found to be sustained.

[98] The document titled 'Summary of Analysis and Findings - Lorraine Roche'[28] provides the following comments with respect to each of the allegation:

"Allegation 1 - Without the consent or confirmation of the Principal, Ms Roche advised Ms Culla that a staff member, Maree Puntoriero, was being employed to do some of Ms Culla's work while she was on leave.

'It is not considered that there is sufficient evidence to demonstrate that Ms Roche's actions were in contravention to the Guidelines for Professional Conduct. The evidence suggests that Ms Culla was already aware of Ms Punteriero's potential employment. There was no evidence provided to suggest that Ms Punteriero's potential employment was to be kept confidential from Ms Culla. As Ms Roche was not knowingly breaking a confidence or providing false information to Ms Culla it is difficult to demonstrate that her suggestion that Ms Culla train Punteriero was a breach of the guidelines for Professional Conduct, although further evidence in Allegation 2-4 suggests that Ms Roche may have been attempting to antagonize Ms Culla by raising the subject.'

Allegation 2 - Despite being told by Ms Culla that she would not discuss Ms Punteriero's employment with you, you followed Ms Culla and stood in the doorway of her office and continued to raise the issue of Ms Punteriero's employment and training.

'The evidence does not say specifically that Ms Culla said she would not discuss Ms Punteriero's employment with Ms Roche but this was essentially implied by Ms Culla's comment that she does not take directives from Ms Roche, when Ms Roche raised the issue of training Ms Punteriero. It would be reasonable for Ms Roche to understand that Ms Culla did not wish to continue the conversation with Ms Roche, particularly in light of their history of having a highly strained working relationship.

Ms Roche has denied in her interview that she followed Ms Culla but she contradicts her own evidence when she states that in an attempt to 'smooth things over' she went from her office to Ms Culla's office door which was 3/4 closed and continued to discuss Punteriero's training. Ms Roche stated: 'I went from my office to her office door. The door was ¾ of the way closed. [Ms Culla] was opening the safe, I said [Ms Culla] I am not trying to direct you but Sandra has asked me to get Maree on the books for some training.'

It is considered that based on Ms Roche's own evidence there is sufficient information to recommend a sustained finding. It is further considered that Ms Roche continuing a discussion about training Ms Punteriero when Ms Roche was aware (based on her own evidence) that Ms Culla had told Ms Campbell that she did not have time to train Ms Punteriero. It is considered that Ms Roche's actions were likely a deliberate attempt to antagonize Ms Culla.

It is considered that Ms Roche pursuing the issue of Ms Culla training Ms Punteriero in a context in which (1) they had a strained relationship (2) Ms Culla had indicated that she was not inclined to discuss the matter and (3) Ms Roche knew that Ms Culla had already indicated to the Principal that she did not have the time to train Punteriero, her actions represent a failure to model respect in her interaction with a colleague and therefore a potential contravention of the Guidelines of Professional Conduct.'

Allegation 3 - When Ms Culla tried to close her office door, you pulled on the door from the other side and placed your arm and leg in the doorway in an attempt to prevent Ms Culla from closing the door and this resulted in an injury to Ms Roche's hand.

'It is clear from the evidence of both Ms Culla and Ms Roche that Ms Culla attempted to close her office door during their conversation and that, at least, Ms Roche's hand or arm was in it (if not her leg) and Ms Culla attempted to close the door at this time. There is, however, significant disparity to a number of aspects of the evidence. Ms Culla maintains that she was initially unaware that she had closed the door on Ms Roche's hand, arm or leg. Ms Culla states that Ms Roche was pulling back on the door preventing Ms Culla from closing it.

Ms Roche's version is that she was 'shoved' in the chest by Ms Culla and she grabbed the side of the door to regain her balance and this is when Ms Culla closed the door on her hand causing it to bleed.

There were no witnesses to the alleged incident and it is considered that both employees were behaving unreasonably at the time and therefore it is not possible to draw a safe conclusion as to which version is more likely to be true. It is considered that a not sustained - insufficient evidence finding should be made for this allegation as it cannot be said with sufficient certainty that Ms Roche was pulling the door open or had grabbed it to prevent herself from falling when Ms Culla closed it.'

Allegation 4 - Ms Culla repeated told you to go away and to leave her alone but you refused to do so essentially preventing Ms Culla from being able to easily exit her office, despite it being apparent that Ms Culla was in considerable distress regarding the situation."

'It is clear from the evidence of both Ms Roche and Ms Culla that despite Ms Culla repeatedly shouting at Ms Roche to leave her alone, Ms Roche continued to enter the room and attempt to speak to Ms Culla in an apparent calm voice. It is considered that Ms Roche's choice to not leave the room when Ms Culla repeatedly shouted at her to do so was a remarkably unreasonable one. Her decision was made even more remarkable by the various aspects of the interaction, most notably was (according to Ms Roche) that Ms Culla shoved Ms Roche in the chest causing her to have to grab onto the door in order to retain her balance and then Ms Culla (according to Ms Roche) closed the door on her hand hard enough to make it bleed. Ms Roche saw the blood and felt pain but instead of leaving, as she was being repeatedly shouted at to do so, she continued to calmly talk to Ms Culla and walk further into Ms Culla's office.

Whilst this was happening Ms Culla continued to shout at her to leave her alone. Ms Roche corroborates Ms Culla's evidence that she attempted to use her phone and then threw it down and attempted to leave through a back door but was unable to get it open. Remarkably in this time Ms Roche never leaves the office. Ms Roche's choice to stay under such circumstances in an attempt (according to Ms Roche) to calm Ms Culla down is not considered credible, particularly in circumstances in which Ms Roche and Ms Culla have had a history of animosity and poor communication.

It is clear from the evidence of both Ms Roche and Ms Culla that Ms Culla attempted to leave from another door but was unable to do so. It is considered likely that Ms Culla chose to try and leave through a back door as she could not easily get past Ms Roche to leave through the front door of the office. It is considered likely that Ms Roche essentially prevented Ms Culla from being able to easily exit her office and the allegation should be sustained.

It is considered likely that Ms Roche was aware that her continuing into the office in circumstances in which Ms Culla was screaming at her to leave and attempted to leave through another door would have caused Ms Culla more anxiety. Particularly in light of the strained relationship between the two. It is considered more likely than not that Ms Roche continued into Ms Culla's office in order to antagonize rather than calm Ms Culla, as Ms Roche has suggested.

It is considered that Ms Roche's actions in this allegation represent a failure to model respect in her interaction with Ms Culla and therefore a potential contravention of the Guidelines of Professional Conduct.'

[99] Submissions made on behalf of Ms Roche argue that there was no valid reason for her dismissal for the followings reasons:

1. The 2015 warning was unjustified, in light of Ms Roche's evidence in relation to the allegations, and concessions made by the CSO's witnesses in cross examination in relation to these matters.

2. Although Ms Roche's conduct might not have been blemish free, it is apparent that the aftermath of the 2015 warning and upon Ms Culla returning to work following a period of leave, Ms Roche and Ms Culla had found a way to work together peacefully. This was supported by the fact that there were no incidents of material concern involving Ms Roche and Ms Culla during that period.

3. In issuing the Price warning, in unqualified terms, that any further incidents involving Ms Roche and Ms Culla would result in both being dismissed, the CSO did not give sufficient regard to the concept of differential culpability.

4. The evidence before the Commission demonstrates that Ms Culla was 'predictably volatile', often arrived at work in a heightened state or developed such a state during the course of the day, often acted in a manner that was highly unprofessional and had to be sent home from work on many occasions. Ms Roche's 'disengaging' manner in dealing with Ms Culla was a reasonable response in these circumstances.

5. In relation to allegation 2, in circumstances where there was not any material disciplinary problem with Ms Roche having approached Ms Culla in the lunch room to raise the issue of training for Ms Puntoriero, it is unrealistic that the investigation concluded that Ms Roche's subsequent approach to Ms Culla involved any breach of policy, or misconduct.

6. In the context of the Price warning, Ms Roche was justified in approaching Ms Culla in her office to discuss what had happened in the lunch room. Her action in engaging with Ms Culla was probably the sort of action that the CSO would have wished Ms Roche to take in her dealing with Ms Culla.

7. There was a window of time between the discussion in the lunch room and the later approach by Ms Roche to Ms Culla and "it is nonsense to suggest that Ms Roche 'followed' Ms Culla".

8. As such, Allegation 2 should not have been sustained and in any event did not justify dismissal.

9. At the time when Ms Culla had become heightened, and had started yelling at Ms Roche, Ms Roche was left with little option but to remain there and try diffuse Ms Culla's heightened state. This is particularly so given the Price warning. Leaving alone any person who was experiencing distress at that level would be an inhumane thing to do and the fact of Ms Culla's anxiety attack alone justified Ms Roche remaining there, at least until Ms Culla had settled.

10. The allegation that Ms Roche had 'blocked' Ms Culla's exit is untenable. Ms Roche had approached her supervisor in her office, whose door was not closed, and stood in reasonable position when speaking with Ms Culla. Ms Roche did not intrude into the office any further than might be expected in the circumstances and that this happened also to be in the pathway that Ms Culla wished to use to exit the room is mere coincidence, and did not justify a characterisation of 'blocking' Ms Culla's exit.

11. More importantly, the speed with which the situation escalated was entirely a result of Ms Culla becoming heightened and must not be overlooked, or assessed with the benefit of hindsight.

12. Ms Roche approached her supervisor to discuss a workplace issue and suddenly Ms Culla became intensely distressed, was shouting and then caused a scuffle. Ms Roche, having been warned that any further incident with Ms Culla spelled immediate dismissal, remained calm despite being physically injured and did not seek to retaliate. Nothing more could have reasonably been expected of Ms Roche in dealing with that situation. She is not an expert in de-escalating emotionally unstable people.

13. It is apparent that after a period of disharmony between Ms Roche and Ms Culla, the issuing of the warnings had achieved their purpose in ending the squabble between the two. Having understood from that perspective, and from the perspective of Ms Culla's significant personal issues including her 'predictable volatility', Ms Roche's role in the Incident, even when combined with the other issues raised against her, did not justify dismissal.

14. The failure to address these contextual features means that Mr Tawfiq's findings involve an extravagant contortion of the Incident, in a manner that portrays Ms Roche's involvement as far more serious than it was. That contortion was best demonstrated in cross examination of Mr Tawfiq when he gave evidence that the fact that Ms Culla was in a heightened state in his opinion did not count as a mitigating factor in relation to Ms Roche's situation.

15. In these circumstances, Allegation 4 should not have been sustained, and in any event, did not justify dismissal.

16. Despite stating in the termination letter that a further reason for dismissal was that "... I have no confidence that the situation between yourself and Ms Culla will improve", Mr Bowyer conceded in cross examination that he knew Ms Culla had resigned prior to Ms Roche's dismissal. Accordingly, this further purported reason justifying dismissal was disingenuous and invalid.

[100] Submissions on behalf of Ms Roche further argued that procedural fairness was not afforded in her case. It was submitted that:

1. From the time of the 'extraordinary warning' issued by Ms Price, Ms Roche's fate was linked with that of Ms Culla, and that once the Incident occurred, the employment of both would have ended no matter what they said. Had the CSO been prepared to keep an open mind, Ms Roche may have persuaded them not to dismiss her, particularly in circumstances when Ms Culla had already resigned.

2. By not informing Ms Roche that Ms Culla had resigned, the CSO had deprived Ms Roche of a significant argument in her defence, being that there would not be any future difficulties because the main antagonist would no longer be present at the school.

[101] It was submitted that the dismissal was harsh and unjust in Ms Roche's particular circumstances, given that she had attended the School, her child had attended the School, and that her position in the local community was integrated with her employment at the School.

[102] As for remedy, it was submitted that:

1. Reinstatement of Ms Roche was not inappropriate. The evidence of Ms Campbell, Mr Morrell and Ms Murray all suggest that Ms Roche could be expected to successfully reintegrate back to the School.

2. There is no basis in the evidence to suggest the existence of any risks which would render reinstatement inappropriate.

3. The Commission should order Ms Roche be reinstated to the position of School Support Officer and Principal's Assistant at the School and that an order be made to restore lost pay.

[103] Mr O'Sullivan gave an overview of the CSO's case at the outset of the hearing[29] as follows:

"... ultimately, the evidence will disclose that the behaviours of the applicant had occurred over the entire period of the time from when Ms Culla had started through to the dismissal and what had occurred on 17 August 2017 was, in fact, an act by which the applicant had provoked Ms Culla in circumstances where she was aware of the volatility, she was aware of the CSO's view as to her appropriate behaviour, she had been directed on a number of occasions on the behaviour expected of her and, notwithstanding that, she breached those directions, she breached the guidelines and, in those circumstances, the dismissal was not unfair and it was for a valid reason.

... in terms of remedy, the CSO holds a number of concerns about the practicability of reinstatement and those concerns.... stem from the applicant's behaviour during the period of time from Ms Culla commencing employment through to the dismissal of the applicant, that she had failed to act in an appropriate manner and, notwithstanding the fact that Ms Culla is on longer employed by the respondent, there is a real concern that the applicant will continue to behave in a similar manner."

[104] The CSO submitted that Ms Roche was dismissed on the basis of misconduct as a result of the Incident on 17 August 2017 and her conduct which was said to justify the dismissal was as follows:

Allegation 2: Despite being told by Ms Culla that she would not discuss Ms Ponteriero's employment with you, you followed Ms Culla and stood in the doorway of her office and continued to raise the issue of Ms Ponteriro's employment and training.

Allegation 4: Ms Culla repeatedly told you to go away and to leave her alone but you refused to do so essentially preventing Ms Culla from being able to easily exit her office, despite it being apparent that Ms Culla was in considerable distress regarding the situation.

[105] In relation to Allegation 2, the CSO's final written submissions say that the term 'followed' in the context of the conduct included a period of approximately 10 minutes between the commencement of the Incident in the staff room and the time at which Ms Roche approached Ms Culla in her office.

[106] In relation to Allegation 4, the CSO argued that given Ms Roche's admission that she was standing in the doorway of Ms Culla's office and remained there when she was asked to 'get out and leave her alone' and "the fact that Mr Morrell observed that Ms Culla had to push past the applicant to get out of her office, coupled, with the concessions provided by the applicant provides a more than comfortable basis to determine that the applicant had 'blocked' Ms Culla's exit."

[107] The CSO drew attention to the Full Bench decision in Diaz v Anzpac Services (Australia) Pty Limited[30] and submitted that consideration of whether the conduct is of sufficient seriousness or gravity to constitute a valid reason for dismissal includes contextual matters as well as previous conduct and warnings in relation to similar conduct. It argued it was therefore relevant to consider the CSO's expressed views as to the conduct expected, as well as the attempts to support/coach Ms Roche to achieve the expected standard of conduct.

[108] The CSO argued that submissions made on behalf of Ms Roche attacking the findings of Mr Tawfiq in the investigation which led to the 2015 warning, and limiting the contextual matters to the immediate circumstances of the Incident, ignored the following matters:

1. the repeated inappropriate behaviour of Ms Roche over the previous 3 years before the Incident;

2. the warnings given to her concerning this behaviour;

3. the type of behaviour required of Ms Roche in the workplace; and

4. the support given to Ms Roche to achieve these expectations.

[109] The CSO also argued that Ms Roche's submissions ignored: "the broader contextual issues concerning Mr Roche's knowledge of the potential for her interactions with Ms Culla to cause Ms Culla to become heightened and the extensive support provided by the respondent to the applicant about how to deal with such situations as and when they arose".

[110] The CSO said the evidence discloses that prior to the Incident, Ms Roche had conducted herself in a manner that could only be described as a pattern of unacceptable behaviour in relation to her interactions with others, including Ms Culla, at the workplace. It attached to its closing submissions a Schedule of events/issues which it asserted showed a history of interpersonal conflict involving Ms Roche and inappropriate behaviour by her between 2014 and the date of her dismissal (the Schedule).

[111] The CSO submitted that as a result of this conduct, Ms Roche was spoken to, provided coaching, informed of the CSO's expectations as to appropriate conduct and issued warnings, both formal and informal.

[112] Following Ms Culla's return to work after a period of workers compensation leave in July 2016, the CSO said it reiterated its expectations in relation to professional behaviour by Ms Roche, and on 30 March 2017 provided her with the oral warning that any further incident involving her and Ms Culla would lead to her dismissal (ie. the Price warning). This was reinforced with Ms Roche in a meeting on 6 April 2017 where she was informed that she was to work effectively with Ms Culla as her ongoing employment depended on it.[31]

[113] The CSO submissions assert that the Schedule discloses a common theme, that being Ms Roche's difficulty in accepting the authority of others to issue directions to her, and her failure to follow such directions. The directions relied upon by the CSO primarily involve taking of her lunch break at a particular time as well as the process by which requests for leave ought be managed.

[114] In relation to the Incident, the CSO submitted that:

"It is difficult to conceive of a situation where any reasonable person would think it appropriate to continue to engage with a co-worker who was pleading to be left alone and visibly distressed from the ongoing presence of that person. Moreover, the applicant gave evidence as to her knowledge of Culla's volatility, unpredictability and that she had been directed by Campbell to "take special care around her" and to "tread carefully" around Culla when she was in these moods". Furthermore, Campbell gives evidence that she was aware, based on her own direct observations of the applicant, that the applicant, as well as everyone else, knew "to take a step back" when Culla was heightened. Campbell explained that take a step back meant to not engage Culla and a failure to not take a step back when Culla was heightened would lead to things escalating, as it most certainly did on 17 August 2017".[32]

[115] The CSO contended that the Commission should reject Ms Roche's submissions that because of the Price warning, she had no choice other than to approach Ms Culla to 'discuss' or 'smooth things over' following the initial part of the Incident in the lunchroom. The CSO submitted that this should be rejected for the following reasons:

1. Ms Roche should have taken 'an apologetic approach', rather than being "argumentative in trying to drive home the point that Maree Ponteriro needed to be trained";

2. the argumentative approach taken by Ms Roche was inconsistent with her knowledge that the CSO had concerns regarding her challenges to Ms Culla's authority; and

3. Ms Roche did not posit her view that she 'had no choice' in needing to approach Ms Culla in her application for unfair dismissal, her witness statement in these proceedings, or in her response to the show cause letter.

[116] In relation to allegation 4, the CSO submitted that the Commission should take account of the evidence of Ms Grant and Mr Morrell to the effect that neither heard words from Ms Roche during the Incident which would have the effect of 'calming down' Ms Culla. It argued that Ms Roche's evidence to the effect that she was attempting to calm down Ms Culla did not ring true having regard to the evidence that Ms Roche knew she should 'take a step back' when Ms Culla became heightened.

[117] The CSO submitted that Ms Roche's approach to Ms Culla in her office and her refusal to leave and block the exit after "numerous distressed cries by Culla constitute a breach of the respondent's policies, in particular clause 5 of the Guidelines for Professional Conduct in the Protection of Children and Young People, obligations under the Work Health and Safety Act 2011, the numerous directions to the applicant regarding the appropriate level of professional conduct and warnings".[33]

[118] In relation to the other criteria the Commission must have regard to in determining whether a person has been unfairly dismissed, the CSO made the following submissions:

1. Ms Roche was notified of reasons for her dismissal, and was given an opportunity to explain the circumstances relating to her conduct;

2. Ms Roche was not refused the opportunity to have a support person during the process;

3. the dismissal was not related to Ms Roche's performance (as opposed to conduct);

4. the CSO's size did not impact on the procedures it followed in effecting the dismissal;

5. in relation to other matters the Commission may consider relevant, the CSO submitted that there were no other factors that would render the termination unfair for the purposes of the Act.

[119] In relation to remedy, the CSO submitted the application should be dismissed, however if the Commission found the dismissal was harsh, unjust and/or unreasonable, then it submitted that reinstatement would not be appropriate for the following reasons:

1. Ms Roche posed a safety risk. In this regard the CSO referred to the conclusions reached by the New South Wales Police that Ms Roche was the instigator of the Incident, and was significantly harassing Ms Culla. Exposing other staff to such a risk could constitute a contravention of the Work Health and Safety Act 2011; and

2. there was a loss of trust and confidence based on concern expressed by teachers to Ms Campbell that Ms Roche had ignored them in public following her dismissal, the improbability of re-establishing the necessary relationship between Ms Roche and other staff members, the CSO's concern that based on past experience Ms Roche would be unlikely to meet the appropriate levels of conduct and professionalism, and the likelihood of Ms Roche having difficulties interacting in an appropriate manner with employees who are in a position to give her direction.

[120] The CSO also submitted that reinstatement was inappropriate because Ms Roche's position at the School had been filled and there were no other vacancies at the School.

[121] There is no dispute and I am satisfied that Ms Roche is a person protected from unfair dismissal by virtue of s.382 of the Act.

[122] I will now consider if the dismissal of Ms Roche was unfair within the meaning of the Act.

[123] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[124] There is no dispute that Ms Roche was dismissed and that subsections (c) and (d) do not apply.

Was the dismissal harsh, unjust or unreasonable?

[125] The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

1. Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[126] The ambit of the conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained in Byrne v Australian Airlines Ltd[34] as follows:

'... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.'

[127] In Blyth Chemicals Ltd v Bushnell[35] (Blyth Chemicals), Dixon and McTiernan JJ said:

'Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that grounds for uneasiness as to future conduct arises.'[36]

[128] I am required to consider each of these criteria in reaching my conclusion[37], which I now do.

[129] This criteria requires consideration as to whether there was valid reason for the dismissal of Ms Roche related to her conduct, although it need not be the reason given to her at the time of the dismissal.[38]

[130] The meaning of 'valid reason' in s.387(a) is drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd[39]. This meaning has been applied by this Commission and its predecessors for many years:

'..., the adjective 'valid' should be given the meaning of sound, defensible or well-founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must 'be applied in a practical, commonsense way to ensure that' the employer and employee are treated fairly, ...'[40]

[131] In other words, the reasons should be justifiable on an objective analysis of the relevant facts.

[132] In cases concerning conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred[41]. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct and therefore acted in the belief that the termination was for a valid reason. The Commission must make a finding as to whether the conduct occurred based on the evidence before it[42].

[133] Further, the Commission does not 'stand in the shoes' of the employer but will need to be satisfied that the termination of the employee was for a valid reason[43].

Did the conduct occur, and was the reason for dismissal valid in the context of Ms Roche's employment history?

[134] In this case, it was the Incident that led to Ms Roche's dismissal. The conduct in question comprises the two allegations found to be sustained (i.e. Allegation 2 and 4) which are outlined in the Termination Letter and are set out at paragraph 21 above.

[135] In relation to Allegation 2, as the investigation report correctly identifies, the evidence did not demonstrate that Ms Culla told Ms Roche that she would not discuss Ms Punteriero's employment with her.

[136] In relation to whether Ms Roche 'followed' Ms Culla, I accept that in all likelihood there was a period of approximately 10 minutes between the initial conversation in the lunchroom, and the further conversation in Ms Culla's office.

[137] I disagree with the findings in the investigation report that Ms Roche contradicted her own evidence by denying in her interview that she 'followed Ms Culla' while at the same time saying that she went to Ms Culla's office in an attempt to 'smooth things over'. The word 'followed' in this context suggests no time lapse between the time of the conversation in the lunchroom and the conversation in Ms Culla's office. Given the 10 minute or so difference, it is easy to understand why Ms Roche would say that she did not 'follow' Ms Culla.

[138] Accordingly, I find that the conduct, as put to Ms Roche in Allegation 2, did not occur in the manner specified in the allegation.

[139] In relation to Allegation 4, the evidence is clear that Ms Culla told Ms Roche to go away and leave her alone. The evidence does not support a finding that in not 'going away', Ms Roche prevented Ms Culla from being able to easily exit her office. The evidence does support a finding that Ms Culla was in considerable distress at the time. Accordingly, I find that only a part of the conduct put to Ms Roche in Allegation 4 occurred.

[140] In light of the evidence, however, there is no basis to find that either allegation was a contravention of the Guidelines of Professional Conduct nor any other requirement of the CSO.

[141] There is no doubt there was interpersonal conflict between Ms Roche and Ms Culla. It is clear from the evidence outlined above that Ms Culla was often in a 'heightened' state, and that in Ms Campbell's words: "we knew to take a step back [i.e. avoid engaging with Ms Culla], as did everyone who was working in this area".

[142] More importantly, that Ms Culla was often in a 'heightened' state seems to be accepted by the CSO, and its submissions in this regard refer to Ms Culla as volatile and unpredictable, and that Ms Roche had been directed to 'take special care around Ms Culla'.

[143] The fact that the CSO continued to tolerate such behaviour from Ms Culla over such a long period of time is surprising.

[144] The evidence discloses that Ms Culla's difficulties were not confined to her interaction with Ms Roche. It is unreasonable in my view to attribute so much of the responsibility for the quality of the interaction between Ms Culla and Ms Roche to Ms Roche, such as to warrant her dismissal.

[145] Ms Roche was criticised for her lack of engagement with Ms Culla, which was described at during the hearing as "passive-aggressive", and "disengaged and dismissive". However when she did engage with Ms Culla during the Incident, it led to her dismissal. It is hard to see what could possibly have been expected of Ms Roche in circumstances where Ms Culla's behaviour was, on any reasonable view, often irrational and inappropriate.

[146] I accept Ms Roche's explanation that following the conversation about training Ms Punteriero, she was concerned that she was on final warning and that any further incident would lead to her dismissal. Ms Roche went to Ms Culla's office with the intention to 'smooth things over". I accept there was no ill intent on Ms Roche's part and what happened afterwards was beyond her control.

[147] There is absolutely nothing inappropriate, in my view about Ms Roche approaching her supervisor to discuss a workplace issue. There is no evidence to suggest that Ms Roche's approach to Ms Culla was undertaken in an inappropriate manner. Ms Grant's evidence in this regard is consistent with Ms Roche's, that being that she heard Ms Roche saying: "I'm just trying to have a conversation with you." Ms Grant's evidence was that Ms Roche's voice was not raised during the Incident.

[148] I accept the evidence of Ms Roche that at the time she was "confused, bewildered and shocked that Ms Culla was screaming". I do not consider it unreasonable for Ms Roche to try to calm Ms Culla down when she started yelling 'stay away from me'. It may have been unwise with the benefit of hindsight that Ms Roche did not leave, but I do not accept the CSO's contention that Ms Roche had intended to deliberately antagonise Ms Culla. On the contrary, I accept Ms Roche's evidence that given the speed at which the situation escalated, she acted in a manner that she thought appropriate, that being to try to calm down Ms Culla and diffuse the situation.

[149] Further, I do not accept the CSO's argument that I should reject Ms Roche's evidence to the effect that she was attempting to calm down Ms Culla because Ms Roche knew she should 'take a step back' when Ms Culla became heightened. It is clear that the situation escalated rapidly and that Ms Culla's behaviour was completely irrational.

[150] I find that Ms Roche's conduct in relation to the Incident was nowhere near sufficient to breach the relevant CSO policies, as asserted by it.

[151] The Schedule suggests that Ms Roche had a long history of inappropriate behaviour. However, a closer consideration of the contents of the Schedule, combined with the evidence adduced during the hearing (and in particular the cross examination of the CSO's witnesses by Counsel for Ms Roche), supports the submissions made by Ms Roche and confirmed by Ms Campbell that subsequent to the 2015 warning, Ms Roche and Ms Culla had found a way to work together. The matters listed in the Schedule from the time of the 2015 warning are on any reasonable view of it minor in nature, and there is no evidence of any incidents of significance involving Ms Culla and Ms Roche during this period.

[152] The requirement by the CSO that Ms Roche "work effectively with Ms Culla" in circumstances where Ms Culla was 'predictably volatile' and regularly 'heightened' was an unreasonable one in my view. This is particularly so given Ms Campbell's evidence that (as Ms Culla's manager) she found Ms Culla difficult to work with and was wary about approaching her. Ms Campbell also described Ms Culla a very volatile person who often attended work in an emotionally unstable state.

[153] In relation to 2015 warning, I agree with the submissions made on behalf of Ms Roche the allegations found to be sustained were not of sufficient substance as to warrant the warning she received.

[154] I agree with the characterisation of the Price warning by Counsel for Ms Roche as 'extraordinary', in that it was issued in unqualified terms that if there were any further incidents involving Ms Roche and Ms Culla, both would be dismissed. Clearly, this is what occurred as a result of the Incident, however the culpability of Ms Culla compared to that of Ms Roche should have been obvious, and should not have resulted in Ms Roche's dismissal.

[155] Accordingly, I am satisfied that Ms Roche's conduct did not amount to misconduct. The reason for her dismissal was not justifiable on an objective analysis of the relevant facts. Accordingly, I am satisfied that there was no valid reason Ms Roche's dismissal as the reason for her dismissal was not sound, defensible and well-founded.

[156] In finding that there was no valid reason for Ms Roche's dismissal, I note that there is no issue that the CSO is entitled to set standards of conduct, with which employees can be required to comply. Nor is there any issue with requiring an employee to follow a reasonable and lawful direction. Ms Roche should be under no illusion that these requirements will apply to her on her return to the School. However, in this case the CSO did not demonstrate that Ms Roche's conduct amounted to a breach of its policies nor did the conduct amount to misconduct. Even if all of the contextual matters the CSO relied on were found to have provided a valid basis for the prior warnings, the conduct of Ms Roche in relation to the Incident was appropriate and reasonable in the circumstances, and the criticism of her conduct in this regard was unfounded.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

[157] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[44] in explicit terms[45] and in plain and clear terms.[46] In Crozier v Palazzo Corporation Pty Ltd[47] a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

"[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted."[48]

[158] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[49]

[159] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Ms Roche before her dismissal was effected.

[160] Satisfaction of these requirements will usually require a straightforward factual inquiry to be made, namely: what was Ms Roche told about the reason for the dismissal, before the dismissal took place, and was she given the opportunity to respond?

[161] There were two procedural fairness complaints made on behalf of Ms Roche. The first of these was that from the time of the Price warning, Ms Roche's fate was linked to that of Ms Culla, and that once the Incident occurred, the employment of both Ms Roche and Ms Culla would have ended no matter what either said in response. The second complaint was that Ms Roche was not informed that Ms Culla had resigned, thereby depriving Ms Roche of a significant argument in her defence, that being that there would not be any future difficulties because Ms Culla would no longer be present at the School.

[162] There is no satisfactory reason as to why the CSO would withhold from Ms Roche the fact that Ms Culla had resigned. I agree that this would have been an argument in Ms Roche's favour that there would not be future issues because Ms Culla was not there. However the evidence supports a finding that the CSO (in part because of the Price warning) would not have come to a different view.

[163] Notwithstanding, it is clear on the evidence that Ms Roche was notified of a reason for her dismissal relating to her conduct and was given an opportunity to respond. This is evidenced by the process undertaken by the CSO, including the Show Cause letter and meeting.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[164] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[165] There is no dispute that Ms Roche was provided with the opportunity to have a support person.

Warnings regarding unsatisfactory performance - s.387(e)

[166] Ms Roche was not dismissed for unsatisfactory performance and so this consideration is neutral.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[167] I am satisfied that the size of the CSO and its dedicated human resource expertise did not impact on the procedures followed by the CSO in effecting the dismissal, and so this consideration is neutral.

Other relevant matters - s.387(h)

[168] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.

[169] The CSO submitted that there were no other factors that would otherwise render the dismissal "unfair" for the purposes of the Act.

[170] Ms Roche submitted that there were "special features" of her employment that tended to suggest the dismissal was especially harsh or unjust. Those special features were that Ms Roche and her child had attended the School, and that her position in Griffith society was integrated with her employment at the School.

[171] While relevant, I do not consider that these features are of significance in determining whether her dismissal was unfair.

[172] Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I am satisfied that the dismissal of Ms Roche was harsh, unjust and unreasonable. Accordingly, I find the Applicant's dismissal was unfair.

[173] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The Commission may make the order only if the person has made an application under section 394.

(3) The Commission must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

[174] I have already dealt with the issues at s.390(1)(a)-(b) above. I am satisfied Ms Roche was protected from unfair dismissal pursuant to s.382 of the Act and that she was dismissed unfairly. Accordingly, I am required to determine whether to order the reinstatement or, in circumstances where reinstatement is inappropriate, to order for compensation if I am satisfied such an order is appropriate in all the circumstances.

[175] Notwithstanding the submissions of the CSO, there was no evidence to suggest that there has been an irretrievable breakdown of trust and confidence. In particular I rely on the evidence of Ms Campbell in this regard. Ms Campbell's evidence supports a finding that the working relationship between the parties can be restored. I have also considered the evidence of Mr Bowyer and Ms Price to the effect that they no longer trusted Ms Roche. Given both are no longer employed with the CSO, I do not consider their views should outweigh that of Ms Campbell.

[176] In relation to the CSO's assertion of a loss of trust and confidence arising from Ms Roche 'ignoring' teachers in public following her dismissal, I am satisfied that even if this did occur, it is not a sufficient basis to not award reinstatement given it is the primary remedy for unfair dismissal.

[177] Nor was there evidence that Ms Roche would pose a risk to the safety of others in the workplace. I reject the CSO's submission that I should have regard to any findings by the New South Wales Police in relation to the Incident, given that police officers involved in the Incident were not called to give evidence.

[178] Accordingly, I find that the reinstatement of Ms Roche is appropriate in all the circumstances.

[179] Orders providing for reinstatement with continuity of employment, and backpay, will be issued separately.

A Aleksov of counsel with C Ni, solicitor for Lorraine Roche.

D O'Sullivan of counsel with S Cooper of Catholic Commission for Employment Relations for the Trustees of the Roman Catholic Church for the Diocese of Wagga Wagga.

[12] See attachment SD-18 to Exhibit R7.

[13] See attachment SD-30 to Exhibit R7.

[28] See attachment JP-30 to Exhibit R5.

[30] [2016] FWCFB 7204.

[31] See CSO final submissions at paragraph 19.

[34] (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

[35] [1933] HCA 8; (1993) 49 CLR 66.

[37] Sayer v Melsteel [2011] FWAFB 7498.

[38] Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 at 373, 377-378.

[39] (1995) 62 IR 371.

[41] Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561.

[42] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

[43] Miller v University of New South Wales [2003] FCAFC 180; (2003) 132 FCR 147.

[44] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

[45] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[46] Previsic v Australian Quarantine Inspection Services Print Q3730.

[47] (2000) 98 IR 137.

[49] RMIT v Asher (2010) 194 IR 1, 14-15.

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