Louise v The School [2020] FWC 758

[2020] FWC 758 [Note: An appeal pursuant to s.604 (C2020/2651) was lodged against this decision.]

Louise v The School [2020] FWC 758 | Case summary | Zoe

[5]

[1] Louise (a pseudonym) worked for her former employer, a Melbourne private school (referred to in this decision as The School) as a part-time laboratory assistant and was dismissed for several reasons, including trying to remove some of The School's property without permission and that in the course of the ruckus surrounding that event, she argued with her supervisor, The School's Head of Science and was untruthful both about the events of the day in question as well as about other matters. The School characterises those matters as misconduct, being actions, which caused significant concern for others and created a serious reputational and legal risk to The School. It alleges other matters surrounding Louise's employment join with the first mentioned matters and are to be taken as its valid reasons for Louise's dismissal.

[2] Louise worked for The School as a part-time laboratory technician, with her first day at work being 8 March 2018. After her dismissal by The School on 17 May 2019, Louise commenced an unfair dismissal action against The School on 7 June 2019.

[3] This decision concerns Louise's application, with me finding that she was not unfairly dismissed.

[4] Louise relied to a significant degree in the hearing on several grounds for a finding that her dismissal was unfair; what has been said by the employer witnesses and others who support them is wrong; she was bullied at work by a number of people, and in particular the Head of Science to whom she reported; and further, the state of her mental health is so fragile as to explain what occurred. Her closing submissions developed two further themes; the fact that she was better qualified than staff around her may have caused tension, and that her lack of comprehension of nuanced English may have influenced some of the difficulties she experienced.[1]

[5] The Head of Science accepts that there was a poor working relationship between all concerned, but reports in her evidence that Louise threatened her, denigrated her and consistently made false accusations against her.[2] A Co-worker reports Louise as liking her way of doing things and only that way and lashing out without regard for the consequences if her way did not happen.[3] She said to the Head of Science that Louise would talk over the top of her and not listen.[4]

[6] Both parties point to events from around 4 September 2018 as the start of a deteriorating relationship. Over the ensuing months The School's Head of Science, Director of People and Strategy and others tried without success to engage with Louise about their concerns and to have her take corrective action. The School's concerns were first drawn to Louise's attention in November 2018 and more formally so in December 2018, with other correspondence being sent with increasingly formal tone in February, March, April and May 2019. A "formal written first and final warning" was issued to Louise on 29 March 2019. The School's Head gave evidence that had she known that Louise was not accepting of the concerns raised with her in March 2019 she may have seriously considered dismissing her at the time, instead of giving a warning (noting that on 29 March 2019 people reporting to the Head issued Louise with a written warning).

[7] There is no question that what transpired in the period between March 2018 when Louise was employed by The School and May 2019 when she was finally dismissed is a very distressing state of affairs; and most of all for Louise. However the employer witnesses are credible and their evidence of poor conduct and behaviour in the workplace is to be accepted, with much of the poor behaviour alleged in their evidence - yelling, failing to listen, failing to follow reasonable and reasoned directions, making false or overblown accusations without a credible base - being repeated in the hearing before me. The matter of mental illness relied upon by Louise was amply evident including during the conduct of the hearing.

[8] The circumstances of Louise's mental illness may explain what went on in the workplace and may even call for reasonable accommodations to be given to her, when reviewing events or requests made of her. In the end though, Louise's circumstances do not excuse what occurred and it is for her conduct and behaviour she was ultimately held accountable by her former employer, which reasonably formed the view that the egregious nature of her conduct and behaviour was misconduct warranting dismissal. My findings, set out in detail below in this decision, find that the conduct alleged occurred and that it was misconduct. I further find that the misconduct, and other matters, accrue to a valid reason for Louise's termination of employment.

[9] I am satisfied that Louise was, with one exception, accorded procedural fairness in the steps leading to dismissal. Given that the Respondent relied in the hearing upon reasons for termination which had not featured in its letter of termination, it follows that a question of procedural fairness arises in relation to those additional reasons. That subject is dealt with in detail below with me finding that certain of the additional reasons were valid reasons for termination, and that even though the matters were first indicated as reasons for dismissal after Louise was terminated, that fact does not disturb my primary finding that there were valid reasons for her dismissal.

[10] For the detailed reasons set out below and having regard to the proper application of s.387 of the Fair Work Act 2009 (the Act), being the criteria for considering harshness, etc I do not find that Louise was unfairly dismissed.

[11] I have chosen of my own motion to de-identify this decision. Louise is already considerably distressed by The School's decision to dismiss her. She is unlikely to accept the conclusions I have reached in this decision and it is likely she will be distressed beyond the norm with my findings. I do not want to add to her distress with publication of the decision which necessarily canvasses a very sorry employment relationship. On the other side of the ledger, I consider The School and several of its employees are also likely to be distressed with publication of a fully open decision. A Confidentiality Order will also be issued by me, restricting access to the file to the parties, their legal representatives and Members and staff of the Fair Work Commission.

[21]

[19] Louise was employed by The School as a part-time science laboratory technician, with her first day of work being 8 March 2018.[12] She was initially contracted to work hours equivalent to 0.4 full-time.

[20] The School argues that Louise was not truthful with it when she applied for employment. It says that when she applied to work at The School she failed to disclose that she had been subjected to disciplinary action at her most recent employer;[13] and that she also failed to disclose that she had a history both of mental illness and physical injury,[14] each of which should have been disclosed. It also argued that while Louise had disclosed during the recruitment process one name by which she was known (in addition to her actual name) she had not disclosed another, and that had she done so the disclosure may have pointed The School to some of her previous employment history, saying that it believes the name was deliberately withheld.[15]

[21] Because of a particular need on the part of The School, Louise's hours increased from 23 July 2018 until late September 2018[16] after which she dropped back to part-time employment, working part-time on Mondays and Fridays. Her contract of employment referred to a six-month probationary period, which ended on 5 September 2018[17]

[22] On 4 September 2018, Louise was involved in an altercation with a Co-worker, (another laboratory technician) and her supervisor, the Head of Science. Later that day the Head of Science attempted unsuccessfully to resolve the two's differences. After perceiving a number of workplace concerns, including the September dispute, the Head of Science emailed Louise on 16 November seeking to "clarify a few points so that we can continue to work effectively together" and on 7 December 2018 the School provided Louise with a letter addressing concerns about her recent performance. Two further performance concern letters were issued to Louise (on 22 February 2019 and 29 March 2019). Louise claims there is a connection between the last of these letters which was a first and final warning and the fact that she made complaints to The School about bullying on 22 March 2018.[18] Louise was warned specifically about the consequences of repeated behavioural and other matters in the 29 March 2019 warning letter.

[23] A conflict which arose on 9 May 2019 led to Louise being suspended with pay while her conduct was investigated by The School. The correspondence about that last event also put to Louise a number of allegations of misconduct, with her being informed that if they were substantiated her employment may be terminated. Investigation of the 9 May 2019 incident involved allegations that Louise had attempted to remove The School's property without authorisation and entered into an altercation with a fellow colleague in front of staff and students.[19] Being dissatisfied with her responses, The School dismissed Louise with immediate effect on 17 May 2019,[20] in a face-to-face meeting with the Head of School.[21] The dismissal was indicated as being for reasons of misconduct associated with the events on 9 May 2019.[22]

[24] Louise argues that these and other steps taken by The School amounted to bullying. In particular, she argues that the bullying commenced after the first incident on 4 September 2018, after which she was continually micromanaged for performance and conduct management purposes in order to isolate her from voicing her opinions during weekly science staff meetings and team meetings further disadvantaging her in the workplace. Louise believes she was treated differently than other staff as a result on this incident including increasing her workload and misrepresenting her to other staff.[23] She believes her previous experiences at two other Melbourne private schools and her psychological status had been discussed by other staff at The School.[24] She also argues, including in her originating application, that she was bullied by the Head of Science after lodging a WorkCover claim on 19 March 2019 for the aggravation of a psychological condition and elbow soft tissue injury[25] (noting that The School contends that the elbow soft tissue injury was not known to The School until well after Louise's dismissal). She argues as well that her dismissal was engineered by The School for having made allegations of bullying in a meeting held on 22 March 2019 with the People and Strategy Manager and the Associate Head of School.[26] Louise also believes she has been unfairly treated by two other staff whom she names, the Co-worker and another.[27] Louise believes the making of her bullying complaints is the real reason for her dismissal with the subsequent allegations being fabricated to hide this fact.[28]

[25] Separate to her unfair dismissal application, it is to be noted that Louise commenced an anti-bullying application in the Fair Work Commission on 20 April 2019 naming the Head of Science as the person responsible for the alleged bullying conduct. The School opposed the bullying allegations submitting that its actions were reasonable management action.[29] The anti-bullying application was the subject of two conferences before another Member of the Commission on 16 and 28 May 2019, which did not resolve the application. Louise also commenced a general protections application against The School on 17 May 2019. The general protections application was lodged in the morning of the day of Louise's dismissal, but before the dismissal meeting took place. The application was made pursuant to s.372 of the Act, relating to an alleged contravention not involving a dismissal, but did not progress to a conciliation conference since The School declined, as is its right,[30] to attend a conciliation conference.

[22]

[26] Except where the context requires a different interpretation, I accept without reservation the evidence of the Respondent's witnesses and prefer their evidence to that of Louise.

[27] Louise's evidence is not accepted by me. Bearing in mind both that English is not her first language and that she suffers to some degree at least from a mental illness it would be appropriate to ordinarily make allowances for minor inconsistencies in recollection or narrative. However, much of what Louise had to say to the Commission was repetitive and self-serving and designed to display a narrative at odds with events that demonstrably occurred. My observation of Louise was that her oral English proficiency is quite high when calm and collected and probably what one would expect of a speaker at upper-high school level. It may be further observed that her oral English is frequently better than her written English. During the hearing she repeatedly took and answered questions in English and frequently did not rely on the interpreter for translation in either direction. However, when she became agitated her English proficiency reduced. She was assisted in the hearing by two very capable interpreters whom she took to criticising on different occasions.

[28] Beyond the question of language proficiency it is to be observed that much of Louise's reasoning to the Commission, in whichever language, was an endeavour on her part to merely repeat in the best favourable light for her what she desired to say and to avoid the question or propositions being put to her. That could well be a product of her mental illness and in that regard it needs to be noted that there is no substantive formal evidence before me about the nature of her illness beyond a few medical and other certificates providing only a basic insight into her illness. It is also to be noted that the sheer volume of what Louise had to say to the Commission would suggest that whatever the nature of her illness she has had a full opportunity to put forward her case. Because of these observations I find myself unable to accept her narrative or reasoning about events which took place.

[29] In forming my views about Louise's evidence generally I also take into account two matters of honesty raised by the Respondent, both of which bookend her employment. The first is the contention that Louise was not truthful with The School when she commenced employment. The second is associated with documents given by her to The School after being told she was dismissed. On that occasion, she gave documents to the Head of School, which included a WorkSafe Certificate of Capacity. Material which Louise provided to The School well after having been dismissed revealed the existence of a physical injury as well as mental illness, which had not previously been disclosed to The School. As detailed below, both these contentions are generally made out, with my finding being that Louise kept the relevant knowledge from The School, despite knowing of her obligation to provide the information.

[23]

[30] Until 4 September 2018, the relationship between Louise and other employees was mostly uneventful. On that day though two things occurred which Louise saw as affecting her employment relationship. First, the Head of Science cut herself and was bleeding and Louise offered assistance and second, there was an unpleasant exchange between Louise and the Co-worker, another laboratory assistant.

[31] The first matter, the Head of Science cutting herself and Louise offering assistance, is seen by Louise as a matter of social and workplace significance. Her submissions on the subject are ambiguous and could be taken either as a submission that the event then played into and heightened the reaction of all concerned to the workplace dispute which is the subject of the second matter, or they could be taken as her holding the view that the event either had the potential to skew the employment relationship, or that it actually did skew the relationship. The Head of Science does not mention the event in her witness statement.

[32] Louise recollects that somewhere near to 8:40 AM she saw the Head of Science bleeding from the leg and asked if the latter needed help, which elicited the reply that she might need first aid, such as a band aid. Louise went to obtain assistance and it was shortly after that point the second event took place.[31] Such evidence as is before me on the subject indicates the bleeding was minor at worst.

[33] The Co-worker had a need for a particular chemical solution and asked Louise whether she knew where it was.[32] The two got into an argument in which personal views about each other were exchanged. The Co-worker was in tears after what transpired.[33] Later in the day the Head of Science asked both Louise and the Co-worker to meet about what had occurred with the meeting not meaningfully resolving the dispute between the two. There was finger-pointing and hostility as well as an accusation by Louise that the Co-worker had locked her out of the Prac Room. Louise was referring to points written down by her in a diary she kept and in the course of the debate became upset and had difficulty communicating. The Head of Science offered to read out Louise's diary notes, which was consented to. One of the sentences referred to the Co-worker bullying Louise.[34] The Co-worker found the things referred to confronting and asked the Head of Science to stop reading them.[35] After the Co-worker asked the Head of Science to stop reading the document, she left the meeting.[36] The meeting between Louise and the Head of Science continued with accusations being made by Louise about the Co-worker's motives. After trying but failing to resolve matters the Head of Science ended the meeting, and Louise followed her making further accusations including that she was "trying to fire me".[37] The Head of Science reports the exchanges involving Louise as "shouting at me".[38]

[34] While this dispute between the two employees went unresolved in its substance, a truce of sorts was achieved with a change in the working pattern of the two protagonists meaning that the two did not have much, if anything, to do with each other. In particular, Louise resumed working part-time, working only on Mondays and Fridays, with the Co-worker working on Tuesdays, Wednesdays and Thursdays.[39] Even so, the Co-worker remained aggrieved by what she saw as Louise's lack of accountability. Shortly after these events the Co-worker sent the Head of Science an email with her reflections and some criticisms of Louise.[40] She had noticed and was irritated by Louise's practice of sending group emails on subjects which probably did not require being sent to the science department generally but instead should have been sent only to one or two people.

[35] Following these events, the Head of Science queried Louise's employment status with the People and Strategy team, including whether she had passed her probationary period; she had done this since Louise had mentioned about being fired and was puzzled why this was so. She also noticed that Louise was gossiping about the events and speaking negatively about the Co-worker.[41] The Head of Science counselled the Co-worker about her dealings with Louise in another incident.[42] In mid-September the Head of Science invited Louise to a meeting with her and the then Director of People and Strategy. At around the same time Louise took umbrage with a union poster in the staff room which she thought was directed at her own conduct and defended her character by attaching sticky notes to the poster[43] and by sending an email to the Head of Science with the subject line "Do you persist my conduct to [the Co-worker] is a "REPORTABLE CONDUCT" as attached which I just saw on the whiteboard at my office?"[44] The poster itself was relatively innocuous, giving advice about "reportable conduct" and advising that;

[25]

[36] The Head of Science responded to Louise in reassuring terms.[46] Later, Louise confirmed that she no longer had concerns which led to the cancellation of the meeting, however in doing so the Head of Science took the opportunity to advise Louise that if she had concerns, either then or in the future they should be discussed with an appropriate person.[47]

[37] When she commenced work with The School, Louise had not disclosed either that she had a minor physical injury or a mental illness and she claims, erroneously, that The School did not ask. She claimed in evidence that her General Practitioner and Psychologist had advised her it was not necessary to do so.[48] However, on 12 September 2018 Louise wrote to the Head of Science about her state of mind, attaching a copy of an undated open communication from her Psychologist saying that he had seen Louise and that she was "very upset because of issues with her colleague whom she believes is attempting to undermine her. Despite my experience and familiarity with [Louise] I was unable to understand the issue she was attempting to explain. Unfortunately, when she becomes upset, she tells her story in a rambling way that is both tangential and over-inclusive. Her emotional state affects adversely her ability to explain herself and her lack of command of the English language exacerbates the situation markedly".[49] This communication was sent by Louise on the same day that the "sticky notes" problem had arisen and the day on which the Head of Science first invited Louise to a formal meeting, later cancelled, with the Director of People and Strategy.

[38] In relation to the claims made by The School that Louise had not been entirely candid with it when it employed her by not disclosing relevant background facts it should also be noted that The School's reference checking or due diligence about Louise was likely significantly inadequate. A single referee, nominated by Louise, had been consulted about her application. The person had worked at a previous school at which Louise was also employed, but had since moved her employment elsewhere and gave an overall positive reference (noting that the evidence is unclear whether the person concerned had worked at the school with Louise at the time she had disciplinary action taken against her, or even knew about the circumstance).[50] With the Applicant's own evidence in this matter indicating work related difficulties in two other private schools before this one, it is frankly unlikely that detailed and objective reference checking would not have disclosed obvious concerns about Louise's work and capabilities before an offer of employment was made.

[39] During September and October 2018, the Head of Science noticed a number of concerns about Louise's performance and conduct. She said she was too busy to take breaks; she worked back late in the laboratory by herself contrary to policy; the supervisor thought Louise was performing unnecessary work and some contrary to safety requirements; and she had observed that Louise was failing to comply with chemical labelling standards. Louise had also told her "she had tested chemical on her skin, and that the chemical was therefore fine for students to use on their arms". The Head of Science considered the "chemical in question, potassium thiocyanate, is known to be toxic and absorbed by the skin".[51] Louise had also taken issue with the Head of Science intervening in an exchange between Louise and another staff member; she says that when Louise remonstrated with her about the subject the tone of her voice was "yelling".[52] The Head of Science was also aware that the new Director of People and Strategy had unsuccessfully attempted to meet with Louise.

[40] The Head of Science endeavoured to facilitate a meeting between the two and received a response from Louise refusing to do so; she did not "trust any meeting which is against my wish" and seemed to have a difficulty with the day of the week which had been proposed and putting forward the view that an unexpected meeting may be a potential political game contrary to her interests.[53] On 2 November 2018, Louise sent a medical certificate to the Associate Head of School stating that she "is psychologically unwell and is therefore is unable to attend any meetings that are scheduled at this time until further notice".[54] The Head of Science and the Director of People and Strategy decided that as a result of this medical certificate they could not pursue a face-to-face meeting with Louise about the concerns either of them held at that time.[55] Amongst other things the People and Strategy team had been endeavouring without success during this period to obtain verification of Louise's educational qualifications which she said included a PhD in Biomedical Engineering. During this period the Head of Science was also concerned about Louise's failure to complete an assignment task updating the ChemWatch database.[56]

[41] In November the Head of Science had reported to her by the Co-worker that Louise had swapped her working days in order to attend a non-compulsory conference for laboratory technicians. The request had not been discussed with the Head of Science which led to the Head advising Louise that she must attend work on her usual days and attend the conference on her days off.[57] In the same period other matters of concern to the Head of Science arose as well. Probably of most concern was a worry expressed by Louise in an email to the Head of Science that she may have hidden from Louise the key for a cabinet to which she needed access. That subject had been brewing as a concern to Louise for a few days. Also in November, Louise presented a medical certificate to The School which stated she was "unable to attend any meetings that are scheduled at this time until further notice"[58] (a matter discussed in greater detail at a later point in this decision).

[42] In December 2018, a further matter arose when Louise requested advice from the Head of Science about whether she could have a delayed first working day for 2019, namely 2 February 2019. While the Head of Science initially thought that the leave may be permissible, she was notified by The School that all staff were required to be back to work on 24 January 2019 and that the absence could not be approved.[59] She sent an email to Louise on 11 December 2018 saying that she could not approve the requested absence.[60] Louise points to some confusion within The School about approval of the absence, with the leave having been approved on 14 December 2018 by another Senior Manager in The School. That leave approval was given on an online application initially made by Louise on a date earlier than 5 December 2018, and had been escalated to the Senior Manager by another staff member on 5 December 2018 with the note that "this has been discussed with [the Director of People and Strategy] and [the Head of Science] and approved".[61] While it could be said by The School that Louise should have taken the word of her direct supervisor as the accurate and final word on whether the leave was approved and could be taken, the obvious confusion on the subject removes it as a criticism of Louise to be relied upon by The School.

[43] Louise attended for work on Tuesday, 11 December 2018 even though it was not a scheduled working day. The Co-worker was rostered to work and was upset to see Louise at work on that day; that situation led the Head of Science to communicate with the Head of People and Strategy about the circumstance.

[44] Relevant to the contentions about her conduct in late 2018, Louise believes there is a double standard between how she has been treated and how other staff are treated:

[28]

[48] Louise's first rostered working day for 2019 was 25 January 2019, however she did not attend as directed by the Head of Science, relying on the leave approval by another Senior Manager.

[49] On 3 February 2019, the Director of People and Strategy requested from Louise's union a formal response to The School's 7 December 2018 correspondence. The following day the union advised the Director that Louise no longer wanted union representatives to communicate with The School on her behalf.[66] Because a response was not provided by late February the Director made a further written request for a response. Louise's conduct over this period was viewed as erratic, perhaps in response to The School pressing for a response to its December correspondence. She sent an email to all staff in the science department and others couched as an apology as well as an explanation for some of her conduct as well as providing a video of her daughter involved in activities not related to Louise's work (noting that the video is not before the Commission). Further, she advised the Head of Science that in future she is "not willing to receive the School any more letter in hard copies since I have enough suffering from the 1st discipline letter which showed non of your concerns were making sense".[67] Some in The School saw the distribution of an email to a wide audience as a breach of The School's policy and potentially a form of bullying to them.

[50] A further complaint was made to the Head of Science and Director of People and Strategy by the Co-worker about Louise with concerns that she had not finished work which was having to be picked up by other staff.[68]

[51] On 1 March 2019, Louise's union responded to The School about its December and February correspondence. That correspondence records that its earlier letter of 13 December 2018 should be taken as Louise's formal response to the December "concerns" letter, with the addition of a supplementary response, which addresses 5 allegations:

In relation to the allegation that Louise was instructed to work on inventory for a particular project which was not prioritised or completed, Louise responds that she was awaiting further instruction on the final location of equipment which she did not receive; that she has email exchanges and a spreadsheet which demonstrates her attempts to complete this work; and she has received competing instructions on the work to be completed.

In response to the allegations that Louise spread unsolicited personal views to staff; and that she forwarded confidential messages to staff, Louise claims she was not informed of The School's email policy and that when she became aware of the policy, she apologised to the affected staff.

In response to the allegation that Louise made changes to the team calendar for assignment of duties, Louise puts forward as a defence that during the weeks commencing 22 October 2018, she was the only laboratory technician available so took on the unassigned work.

• In relation to the allegation that Louise advised a teacher that she would work on her classes' practicals without obtaining approval, Louise responded that she only took on the unassigned tasks so that classes could proceed but acknowledges she should have sought approval.[69]

[52] The earlier response, in December 2018, had defended the allegations against Louise. She denied testing potassium thiocyanate on her skin, and that she took regular breaks when a named colleague was at work. She thought her chemical labelling and storage was compliant. She committed to providing a transcript of her academic qualifications which she would obtain in her forthcoming holiday. It was said she has invested time and energy to follow every instruction from science staff, and especially her supervisor. She apologised for copying family members into her work emails; having used that practice when employed elsewhere she was not aware this would be a concern at The School as it has never previously been raised with her.[70]

[53] Commencing in February, Louise endeavoured to engage with the Associate Head of School about her disputes. The Associate Head thought that Louise was attempting to bypass the Head of Science and Director of People and Strategy by coming to him directly, however responded by suggesting they meet, which eventually took place in March. Part of the communication with the Associate Head was from Louise on 5 February 2019 which included reference to her psychological condition. She referred to her "psychological state clearance from my clinic Psychologist", attaching a copy of a short report from her Psychologist. That report, dated 31 January 2019, provided to The School within a week of it being prepared, included advice that Louise "is now prepared and willing to attend a meeting with the school to address any and all concerns they may have", but with the qualification that any meeting not include either the Head of Science or the Director of People and Culture and that instead the meeting or meetings be held with the Associate Head and two nominated support people.[71]

[54] Importantly, in the Respondent's case, is that another report, obtained by Louise from her General Practitioner and dated 30 January 2019, provides an unconditional clearance for the attendance of meetings, making no reference to the limitation indicated by the Psychologist. That certificate did not become known to The School until 5 April 2019, when it was provided to the Head of School by Louise attached to an email. Amongst other things Louise saw it as a clearance for a meeting "as long as I will not have the meeting with either of [the Head of Science or the Director of People and Strategy] but (sic?) without independent person onsite"[72]. The certificate itself states that "[t]his certificate certifies that [Louise]is now psychologically well enough to attend all meetings as required by the school".[73] The School sees the two month delay in its provision as a calculated and dishonest attempt to withhold important information from The School.[74]

[55] The Associate Head's recollection of the meeting he had with Louise on 22 March 2019 is that she read from a statement and that at the beginning she was quite respectful and calm, however, became more agitated as she read from the statement. Louise was obviously unhappy with the Head of Science; however, the specifics of her grievances were unclear, and her recounting of events was "very long-winded, and did not appear to be in any specific order". He recalls having spoken for less than 2 minutes in a meeting which lasted an hour and a half. When he ended the meeting to go to another, Louise was "visibly upset" and said "the meeting was "a waste of time, because you've already made up your mind and you're already against me...I can tell by your body language".[75]

[56] Also, during March 2019, the Director of People and Strategy and Head of Science decided to issue a warning letter to Louise. This was motivated by a concern on their part that the correspondence from Louise through her union did not adequately address The School's concerns about her conduct or behaviour.[76] Key matters communicated to Louise in the warning letter included these:[77]

She was not taking sufficient rest breaks and was working alone in the laboratory, and otherwise not following required work processes or occupational health and safety obligations. The School considered that in some respects Louise's responses to the matters it had raised were not adequately addressed and drew her attention to her obligations to follow procedures and directions on these subjects.

Louise's denial of having tested a chemical on her skin was contradictory to what she had said to the Head of Science. In any event, in the future, testing of chemicals on her skin was not to occur.

The School noted that Louise had now provided documentation of her qualifications, but that it had taken 10 months for her to do so.

The School also referred to the concerns it had raised about Louise's adherence to its procedures and direction including her not following reasonable directions, failing to notify The School of absences, completing other employees work, changing working days without permission and showing a mistrust of management. It noted that some of The School's concerns had been addressed by Louise in her responses, some had not been addressed, and in particular she had not given a response on The School's concern that she may at times complete other employee's work. The School also sought further clarification from Louise on what it saw was its failure to follow reasonable direction and the mistrust of management concerns.

The letter instructed Louise on three particular matters; her preparedness to follow directions and what it perceived as her mistrust of management and her habit of copying staff and family members into what The School saw as confidential emails.

[57] Finally, the letter cautioned Louise that:

[31]

[60] At the start of Term 2 WorkSafe attended The School and determined Louise's complaint to them could not be substantiated.[82] At around the same time, the School Head agreed to meet with Louise, which led to further communication with her office and others about Louise's grievances and her state of health. Because of one of Louise's communications, the School Head learned for the first time that Louise had a psychological injury, from six years earlier when she worked at another school.[83]

[61] The School Head as well as the Director of People and Strategy overheard a phone conversation with Louise and the Head's Executive Assistant, when at least part of the call was played on a speaker. The call had come about as a result of the Executive Assistant's attempts to arrange a meeting between Louise and the School Head. The Executive Assistant's File Note records that the call itself lasted for almost an hour.[84] The Head recollects Louise as yelling and shouting.[85] The Director of People and Strategy gave evidence that it was her view that Louise's "behaviour during that conversation was entirely inappropriate, particularly as it was towards someone who was merely trying to arrange a meeting. She clearly had no self-regulation".[86]

[62] The Head gave evidence that had it come to her attention at the time of considering the March warning, as it did at the end of April, that Louise did not accept any aspect of the concerns raised by the Head of Science and the Director of People and Strategy she may have seriously considered whether dismissal was appropriate instead of being dealt with through a warning.[87]

[63] Louise's complaint of workplace bullying was investigated by The School through a process delegated to the Associate Head and the People and Strategy Manager. Separate to this process but related, Louise commenced an anti-bullying application in the Fair Work Commission in late April 2019. As part of the School's investigation into the bullying allegations, it sought to meet with the Head of Science, since at least some of the allegations were pertinent to her conduct. That meeting took place on 29 April 2019 and the Head of Science invited her husband to attend as a support person, who later reported to his wife and The School and gave evidence to the Commission about an approach made to him by Louise in the hour or so prior to the meeting involving his wife. Louise denies that the conversation took place in the form reported by the husband. The evidence of a number of people is that the husband sent himself a written message about the interaction, subsequently seen by others. The written message, sent electronically, was the subject of minor revision within a short period of the interaction, with it stating:

[42]

[64] On 9 May 2019 Louise was not scheduled to work at The School and had an appointment in the morning with a Fair Work Commission arranged pro bono lawyer. Louise's evidence is that she was concerned she did not have a diary which recorded a number of workplace interactions and she wanted to show the lawyer what was contained within the diary. Her evidence is that because of the situation she went to The School to obtain the diary. What took place was an unseemly commotion which started with the Head of Science being alarmed to see Louise at work on the day, at about 7:45 AM.[89] This was followed by Louise searching through a variety of drawers and emptying them out.[90] She asked a colleague "to make sure the cleaners clean up the mess left".[91] She then started moving in an agitated manner between different rooms in the science block. The Head of Science was alarmed about the situation and asked for assistance from the Director of People and Strategy's team. The People and Strategy Manager then attended and told Louise that she was not to remove things that were The School's property from its premises. Other staff members as well as school students were drawn into or observed what was happening. Close to 8:30 AM the Head of Science believed that Louise was electronically recording the interaction with her.[92] Shortly afterward, Louise left the premises to take a tram to the Commission's office.

[65] Louise's evidence is that she had not been able to retrieve the diary from The School; that she left empty-handed with the diary later being retrieved by someone else and given to her in private.[93] It is unclear whether this is actually true or when the diary may have been given to her.

[66] File Notes were prepared for The School by the Head of Science and the People and Strategy Manager and three other people who had peripheral involvement in the matter, the Director of People and Strategy as well as two other staff members, the school's media technician and a teacher. The File Note from the Head of Science is the most comprehensive of the two with its contents being broadly supported by the People and Strategy Manager, bearing in mind that the latter was present only for a part of the events on 9 May 2019. The File Note from the Head of Science records that she entered a lift with another staff member at about 7:45 AM and saw Louise already in the lift, who said that she was in to pick up something. The File Note then records the following:

[64]

[69] The Head of School received reports about the incident from a number of staff. Not only were reports provided by the Head of Science and the People and Strategy Manager, two other staff members, the schools media technician and a teacher, all of whom were present, and the Director of People and Strategy, who was not. She also had the benefit of a written communication provided to her by email sent by Louise at 9:11 AM. Neither of the other two staff members gave evidence about their File Notes on the subject, however I am prepared to accept the File Notes as essentially an accurate record of what took place. The media technician is more critical of the Head of Science in his record than the teacher, making the point that both Louise and the Head of Science "were having and (sic) heated conversation regarding her employment in front of [a nominated lift]. It is my understanding that [Louise] was trying to leave the school with a bag" and after some time he "then explained to [Louise and the Head of Science] that this was inappropriate as it was taking place in front of students. I then tried to calm [Louise as] she was highly stressed".[97]

[70] It flows from the media technician and the teachers File Notes that the Head of Science was likely to be perceived by others as angry and speaking with an unduly raised voice. While certainly that observation must be made, it does not particularly undermine the core finding to be made about the altercation that the fault, or misconduct, associated with it rests with Louise and not with the Head of Science. While the Head of Science may be criticised for reciprocating to a limited extent the unacceptable behaviour of Louise, that does not of itself undermine the findings to be made about Louise's conduct and that such conduct was misconduct.

[71] Later on 9 May 2019, The School suspended Louise with pay pending an investigation into what took place earlier that day. The Head of School's evidence is that she had decided on a suspension the night before the 9 May incident, but that her decision had been reinforced by the incident that day.[98] While she does not particularise her reasons for having decided to suspend Louise the night before, it is to be noted that there had been an escalation of tensions and communications from Louise to The School and the Head of School between the date when the Commission notified The School an anti-bullying application had been made, on 26 April 2019, and 8 May 2019. The Head considered that Louise was weaponising her complaints by making applications on the same subject to both the Commission and WorkSafe, while "actively thwarting the School's attempts to deal with both its and her concerns (including by avoiding meetings)".[99] Her witness statement recollects about the period between the two dates:

• Louise did not attend a meeting scheduled with the Head on 26 April 2019, instead telling the Head in an email on 29 April 2019 that she was sorry to have commenced the formal complaints before she had a chance to meet with the Head, but was scared to do so and that she had commenced the formal actions on the basis of legal advice.[100]

[68]

• The first two are internally repetitive as well as repeating complaints which had already been made to The School. The first, sent at 7:18 AM to the Head and others, restates Louise's complaints and takes issue with the Head of Science's written response to the FWC about Louise's anti-bullying application calling the response a "nonsense" which provoked an episode of shaking on her part. The second, sent at 7:52 AM to WorkSafe and copied to the Head of School asks WorkSafe to come to The School and investigate since it would not undertake itself a proper investigation of her complaints. [102]

• The third email on 7 May 2019 is from Louise's union to her, providing reassurance to Louise about The School's 29 March 2019 warning letter. The email was sent to The School by Louise and says to her that "I hope you can see from this letter that you are not going to be terminated".[103]

[72] I accept that the Head of School had justification, by the evening of 8 May 2019 to suspend Louise with pay; to call her conduct to account; and, in effect, call her to show cause in the meeting scheduled for 17 May 2019 as to why she should not be dismissed or disciplined. After the reports of what occurred on 9 May 2019 were made to the Head of School, she not only had ample justification, she had little effective choice. To do otherwise would likely show her as unsupportive of other employees or as a weak manager, unwilling to call bad conduct to account as well as failing to model good conduct and governance to the wider school community. Louise was plainly not someone who would make her complaint, wait patiently for it to be investigated and then move on. Her complaints would likely become more erratic and the working relationship, such as it was by that time, would likely become even more stymied and ineffective. The only way through the matter was to endeavour to hold Louise to account.

[73] Louise's suspension was notified to her through a letter sent by The School with the letter particularising a number of allegations about her conduct, broader than the 9 May incident. The letter is lengthy and does not require repeating in this decision; however so far as is relevant, it raises concerns about the allegation that Louise approached the Head of Science's husband on 29 April 2019, and that the Head of School was concerned about the incident on 9 May 2019. The correspondence started by directly addressed the possibility that it would be seen as undermining Louise's right to make complaints to The School, with the Head expressing these views:

[85]

[80] During the first part of the meeting, Louise provided the School Head with a letter from her Psychologist, dated 15 May 2019. The letter refers to Louise's bullying allegations, and the associated Commission application as well as her mental state, which the Psychologist referred to as fragile. The Psychologist's letter offered the opinion that The School was "not equipped to make a determination as to whether or not [Louise] has been harmed by the "alleged unreasonable behaviour''" being the subject of the matters within the anti-bullying application and that termination of employment "would constitute a significant loss of face and would further damage [Louise's] already fragile psychological state".[112]

[81] After hearing Louise's responses, the School Head adjourned the meeting to consider what should be done. When she returned, she informed Louise that she had decided to terminate her employment and that a letter would be sent to her informing her of the decision. She advised Louise that she needed to keep these matters confidential. The Head's recollection is that Louise "immediately became angry, and screamed something to the effect "[y]ou cannot do this". She tried to hand me some documents, but when I refused she threw them at me and screamed "Take them!"."[113] The Head of School felt threatened by Louise's physical conduct, which included her shouting, threatening to sue The School and "gesticulating and moving towards me aggressively".[114] Louise had to be encouraged to leave by her husband and the translator. Another School staff member and a security officer came to the room to assist. Louise left The School at about 5.50pm.

[82] The documents Louise sought to provide to The School Head in the meeting included material relating to her former employment at other schools as well as a WorkSafe Certificate of Capacity, dated 17 May 2019.

[83] Louise denies she was untoward in the meeting. In relation to the documents, while she accepts that she endeavoured to give documents to the Head of School at the end of the meeting,[115] she denies that she threw them at the Head of School, saying that she merely left them on the table[116] and that she did not throw them at the Head and that the Head accepted them[117]. Her husband's evidence on the subject was in some ways at variance to Louise's. On the one hand he stated in his witness statement that Louise did not throw any documents at anyone either during or after the meeting,[118] but elaborating in cross-examination that he did not recall Louise providing any documents to the Head of School in the meeting.[119] In relation to whether she had been shouting in the meeting, his witness statement claims that Louise did not display "any unprofessional or improper conduct ... let alone any level of either screaming or yelling", but then conceded in cross-examination that, while not screaming "[p]erhaps she was speaking at a good volume".[120]

[84] Plainly the question of throwing documents and yelling or screaming are matters of adjectival degree; one may lightly throw a tennis ball to a toddler or one may throw a brick in an act of aggression; and what may be screaming in an office may not raise any concern at all at the Melbourne Cricket Ground on match day. I have considered whether the Respondent's choice of the adjectives used to describe these events and others may be over-reach or embellishment and whether allowances should be made for whether Louise was simply angry and uncontrolled. My observation, formed through the many days of hearing, is that Louise regularly raises her voice and displays anger. I have no doubt, not only from my findings about the evidence, but from my own observations of Louise that the allegations made by The School about her conduct in the meeting on 17 May 2019 actually took place. The conduct reported is both consistent with that of other witnesses both about this event and others, as well as conduct exhibited before me. The Head of School's File Note about the 17 May 2019 meeting records her impressions of what happened, and I accept these matters as fact; in particular, in relation to her narrative of what occurred after informing Louise that her employment was ended:

[113]

[96] In this case, some of the reasons given by The School to Louise at the time of dismissal are different from the reasons the Respondent now says were the actual reasons for dismissal.

[97] The termination letter sent by The School asserts three matters of direct misconduct, being the grounds for dismissal. The grounds set out in the termination letter were Louise's attendance at The School on 9 May 2019 "to remove school property without permission"; by arguing with the Head of Science in the vicinity of students and other staff; and that those actions caused significant concern for others and created a serious reputational and legal risk to The School.

[98] The School's written submissions, filed at the start of proceedings, refer to a number of valid reasons justifying her dismissal, such that by 17 May 2019 it contends it would have been "irresponsible" to not dismiss her.[133] In this regard, it relied upon the contention that by that date she had not been performing her duties competently, or in conformity with its expectations or with personal insight;[134] that she engaged in serious misconduct on 29 April 2019 when she spoke with the Head of Science's husband;[135] and that she was dishonest both about her employment history and when she provided responses in the 17 May 2019 meeting with the Head of School.[136]

[99] Grounds said to form part of The School's valid reasoning for dismissal are stated differently in the Respondent's Closing Submissions. Those submissions were stated as The School having no trust and confidence in Louise by 17 May 2019; the interactions Louise had with the Head of Science's husband on 29 April 2019; and Louise's dishonesty about her health and previous employment.

[100] After reviewing the grounds set out in the documents in support of these contentions, it may be ascertained that these various elements distil into four broad groups of grounds for dismissal:

The School believes Louise was dishonest about her health and previous employment when she applied for employment;

the interactions Louise had with the Head of Science's husband on 29 April 2019 were misconduct and she was dishonest to The School about what had happened;

by 17 May 2019, Louise was no longer performing her role competently; and

by 17 May 2019 The School had no trust and confidence in Louise; by that date her conduct on 9 May 2019 had been established as misconduct by trying to remove The School's property against direction, she had publicly argued, and those things together created serious legal and reputational risk to The School; finally she was dishonest to The School about what had happened.

[101] What is required is that The School have a valid reason. It need not be the reason given to the Applicant at the time of dismissal.[137] However, the fact that The School did not rely on this reason at the time of dismissal means that the Respondent will have to "contend with the consequences of not giving the employee an opportunity to respond to such reason..."[138]

[117]

[104] While not directly relied upon by The School as a ground for dismissal the first stages of employment until the issuing of the warning letter at the end of March 2019 are relevant since they show an employment relationship which became dysfunctional as time went by, and seriously so by March.

[105] The events which took place in late 2018 would not of themselves justify dismissal, and Louise cannot be held entirely responsible for what took place that year; although it must be observed that by the end of 2018 her behaviour was at best problematic and more likely setting herself on a path of inevitable departure.

[106] In early September, near to the time her probation period ended, both Louise and key people within The School were still learning about each other. Either Louise or the Co-worker or both were mistaken in the cause as well as the consequence of their interaction in September. Certainly, the Co-worker cannot be regarded as blameless in the situation. She accepts about her interaction with Louise on 4 September 2018 that when Louise asked her the whereabouts of a particular chemical solution she was frustrated with Louise's lack of helpfulness, but maintains through her evidence that Louise had lost her temper.[146] The Head of Science notes that she had to counsel the Co-worker about another conversation in which the Co-worker had been observed by another to be "unusually curt" with Louise.[147] The Head of Science may have made a mistake in reading aloud Louise's diary in the meeting on 4 September 2018, however it was an innocent mistake.

[107] Despite Louise seeing the cut sustained by the Head of Science to her leg having some significance either in the overall narrative or relationship, I am unable to discern that it has any particular significance. At best for Louise's case it may have put all on edge and caused the Co-worker to be a little sharper in her responses to Louise when she was not assisted in locating the chemical solution she needed.

[108] The strength of Louise's responses to The School and people in its management structure after 4 September 2018 were unjustified and she was equally unjustified in avoiding meeting with the Head of Science or the Director of People and Strategy. She could and should have met with them to discuss their concerns. The fact that she did not immediately placed her employment relationship on thin ice, whether she or The School actually recognised that at the time. Her provision of a medical certificate to The School as a means to avoid meetings on unpleasant subjects she did not wish to discuss probably entrenched her lack of employment security because there was no means by which The School could discuss with her its concerns.

[109] Louise's submission that "her lack of comprehension of some of the unique nuances of the English language ... [and her] limited understanding of the finer points of English have influenced some of the difficulties" experienced at The School[148] is not accepted by me. While she may suffer from a lack of insight about how to assimilate, control and overcome work related problems identified about her by others, it would not be consistent with the evidence to accept that she did not comprehend the complaints being made, or the significance of them. Neither do I accept that a workplace culture of dealing with problems by email made things harder.[149] The submissions are self-serving for someone who turned constant, extensive, repetitive, attacking communication, verbally, by email and in English, into a weapon of choice against anyone who questioned her. Granted, English is not Louise's first language and her skill reduces appreciably when she is agitated; however the sheer volume of what was being said, the volume at which it was spoken when it was verbal, and the unambiguously hostile tone of much of it, written or spoken, removes a capacity on my part to accept this submission.

[110] Louise's submission that "the lack of face to face discussion is a handicap in developing an understanding of a person's position, especially a person with less than optimum proficiency in English"[150] is at odds with her actions of refusing to meet to discuss The School's early concerns and then having her General Practitioner state in November 2018 that she was "unable to attend any meetings that are scheduled at this time until further notice".[151] She was offered the opportunity for face to face discussions but actively avoided them. The endeavours by The School to raise with Louise concerns about the employment relationship were justified but were blocked by her. If what The School tried to arrange in its various attempts to meet with her and the Director of People and Strategy starting in October 2018 was not for the purpose of face to face discussion, what were they for? She was content enough to pepper targets in The School with her own complaints, but was reluctant to entertain feedback from others, taking elaborate measures to ensure it was never given, or at least not received.

[111] By late October 2018, The School was forming adverse views about Louise and wanted to discuss things with her. The Head of Science wanted to raise with Louise a number of concerns and discussed these matters with the incoming Director of People and Strategy who suggested a meeting with Louise on the subject, and then sent a meeting invitation to Louise proposing a discussion. There was an extensive communication between the two on the subject, running between Monday, 29 October 2018 and Friday, 2 November 2018, with Louise finding numerous reasons why she could not meet when proposed.[152] She was either too busy or did not have free time on the indicated dates. However, she had time enough to go to her General Practitioner, who saw her on 2 November 2018. From that appointment, Louise's General Practitioner provided a certificate stating that Louise was "unable to attend any meetings that are scheduled at this time until further notice".[153] Nothing within his certificate actually indicates the basis of his opinion or how he reasonably concluded that Louise was able to continue to attend for work safely but not attend meetings. There is nothing within the certificate that would satisfy a reasonable person that there was a proper basis upon which "meetings" could not be attended. There is no clarity in the certificate about which "meetings" could be attended and which could not.

[112] The restriction that meetings could not be had for the purpose of discussing legitimate concerns The School had about their employment relationship with Louise would in time have the effect of ensuring the relationship would be unlikely ever to recover. It was a crude attempt by Louise to avoid accountability, and one which both worked against her interests since she was seen as avoiding discussing problems and it even only worked for her in the short term, since by March she had to find a different conduit to raise her complaints, which she chose to pursue through the Associate Head.

[113] The history of what then took place over the next few months in early 2019 reinforces that Louise liked her way of doing things and only that way.

[114] Significantly, Louise had to be prompted to provide a response to the "concerns" correspondence from December 2018 and even then, failed to actually acknowledge any need for improvement on her part. When she was formally warned about her conduct she literally refused to accept the letter, running a charade, rather like avoiding a troublesome process-server, of not physically accepting the letter, insisting it be delivered to her pigeon-hole, saying further that she did not want to read the letter and would not read it.[154] The theme of Louise not reading things is then repeated elsewhere in her conduct both with The School and the Commission; she refused to open the further concerns letter the Head of Science tried to give her on 22 February 2019 and claimed in evidence to the Commission to have not read it (or at least not read it at the time).[155] However, given that a communication from Louise a short time after the concerns letter was issued used the same language as within the letter, the claim she would not read the letter seems only to be a rhetorical flourish. The School's correspondence to Louise informed her that her practice of broadly distributing to staff messages containing confidential information caused them to feel uncomfortable.[156] Yet, allegedly without reading the correspondence, two days later Louise referred to being admonished about the practice in an email to a widely distributed audience and asking their forgiveness if her practice caused them discomfort.[157] Louise also claimed to not have read many of the Respondent's materials filed in these proceedings.[158]

[115] Whether or not Louise actually read these documents or read the warning letter at the time is likely a moot point since in any event she did not act upon or acknowledge the failings indicated within The School's correspondence. The evidence before me leaves me amply satisfied that it was reasonable for The School to draw these matters to her attention and require remedial action on Louise's part. After the warning letter was issued the Head of Science's evidence is that there was a string of transgressions by Louise on matters dealt with in the warning letter:

• Despite being requested to assist, Louise did not assist with setting up for a "Junior School Science Circus" being hosted on 3 April 2019;[159]

• On 5 April 2019, she failed to undertake as requested a tidy up of science equipment left in a food technology classroom;[160]

• A further request given on 26 April 2019 and connected with the short notice cancellation of a science practical led to aggression on Louise's part;[161] and

• On 8 May the Head of Science received complaints from the Co-worker and a teacher that Louise had incorrectly prepared a practical and had interfered with what had been prepared.[162]

[116] I accept that these omissions, inattentions to duty, or errors occurred. These things arose despite the warning letter of 29 March 2019 being clear that it considered Louise to not be willing to amend her work in accordance with reasonable management direction. While these matters are not relied upon by The School as the basis for dismissal, they suggest a lack of attention by Louise to the things about which she had been warned.

[117] I now consider each of the reasons for dismissal advanced by The School.

[134]

[125] While the termination letter did not rely upon Louise's contact with the Head of Science's husband as a ground for dismissal, it was relied upon as a reason in the Respondent's initial written submissions and its closing submissions.

[126] The Head of Science's husband records his interactions with Louise on 29 April 2019 in the way set out above. I am satisfied both that Louise initiated the conversation and that left to his own devices he would not have spoken with her. The husband was at The School for the purpose of providing assistance to his wife, the Head of Science, who was being asked to answer the bullying claim made against her by Louise. I am satisfied on the evidence that once he knew who she was the husband did not want to engage in a conversation with Louise and likely considered a conversation with her on any subject, let alone Louise's bullying complaints, to be inappropriate given that she was the complainant against his wife. I am satisfied that he accurately recorded what transpired in the conversation in the messages sent by him at the end of that day. Those messages were prepared and sent by him well prior to sustaining the injury referred to in his oral evidence and do not suffer from any concern they may not be substantially accurate.

[127] What flows from the communication initiated by Louise is most obviously an intemperate and ill-considered discourse lacking in appropriate confidentiality. After advocating in its Closing Submissions that the husband's recollection of the conversation should be accepted as credible the Respondent puts forward that Louise's version of events on the subject is not credible. When she was asked about the subject on 17 May 2019 she denied the allegations, saying both that she did not approach the husband, but that he approached her and that it was only later, after the exchange, that another employee told her who she had been talking to.[166] Her Closing Submissions put forward that she "denies that the alleged altercation with [the Head of Science's husband] took place at all".[167]

[128] The Respondent also puts forward that Louise's alleged conduct in respect of this conversation is consistent with her other behaviour. The husband recorded Louise as saying that she has the:

[150]

• Treat all in the School community with dignity and respect and allow for individual differences."[172]

[136] The competencies required of the position include these:[173]

Strong interpersonal skills, with demonstrated ability to build rapport and interact effectively at all levels of an organisation.

Strong organisational and time management skills, with an ability to prioritise tasks, meet prescribed deadlines, and concurrently manage a number of competing tasks.

High level planning and organisational skills.

Participates as a collaborative team member and operates effectively in a collaborative team environment.

Displays empathy, commitment and resilience.

Possesses sound judgment and a calm and mature disposition.

[137] The totality of the evidence confirms that by May 2019, Louise was not displaying many of these important attributes. While even in 2018 there was a question about whether some of these were being demonstrably performed, it was really in 2019 that it became inescapably clear that Louise was not working in accord with these expectations and likely was not about to do so. There were at least four occasions on which Louise was counselled on these subjects:

• On 19 November 2018, the Head of Science endeavoured to - politely and not disrespectfully or peremptorily - "clarify a few points so that we can continue to work effectively together", advising Louise task requirements may change; that she needed to work together with other laboratory technicians as a team; and that in order to facilitate the Head's needs, Louise needed to take her directions, check emails at work and update a spreadsheet so that the Head may ask other staff to undertake tasks otherwise set for Louise;[174]

• On 7 December 2018, the Director of People and Strategy communicated at length the need for Louise to work in accordance with The School's values, needs and directions. The terms of that correspondence - also respectful and polite - are summarised elsewhere, with it admonishing Louise "that management requests and meetings are a reasonable part of work and designed to support you to meet the requirements of your role", with her inability to attend meetings with The School as advised by her General Practitioner meaning "that you have been unable to fulfil your current role as a Laboratory Technician in its entirety as meetings with colleagues and managers, as defined by The School, are a frequent requirement".[175]

• On 22 February 2019, when it reminded Louise of the need for a detailed response to its December correspondence, The School advised her of further concerns it held, which reasonably would be viewed as its concern that Louise was either failing to perform work as instructed, or follow directions it had legitimately given her.[176]

• On 29 March 2019, The School sent Louise its warning letter, the details of which are referred to elsewhere. The terms of the letter were explicit - The School was not happy with Louise's work performance, and its concerns encompassed her willingness to follow directions and safe working procedures; her conformity with directions given to her; the work she performed and her practice of unilaterally deciding to either take on the work of others, or to disregard tasks given to her.[177]

[138] Ordinarily in a matter such as this in which instances of misconduct are put forward as the reasons for termination of employment I would not be disposed to place much weight upon an argument that in any event the employee was not competently performing their inherent duties. In the absence of misconduct allegations, it would also ordinarily follow there would be a detailed analysis of whether adequate warnings of a consequence of poor performance had been given and understood and adequate time and assistance given for corrective action. This case though is far from the usual. Concerns had been expressed to Louise on several occasions in late 2018 and early 2019 and a warning had been issued to her in March 2019 about the consequences of remedial action. The warning letter explicitly canvassed matters of work performance, adherence to directions given to her and The School's policies. Louise demonstrably did not accept the criticisms of her performance and did little to heed them, with there being no or insufficient remedial action on her part. Instead, what occurred after the concerns were raised with her and the warning issued is that her performance and adherence to the performance of directions and The School's policies did not improve and in key respects deteriorated.

[139] The arguments mounted by Louise that she was the victim of disaffection and bullying directed her way by those around her and principally the Co-worker and the Head of Science are largely arid. The Co-worker and Head of Science may be criticised about some of the things said or done in 2018, and especially around September and October, however those matters are at most exasperated or intemperate commentary. In the case of the Co-worker, she was properly admonished for her overly critical reaction to the events which occurred on 4 September 2018 and shortly after. The Head of Science endeavoured to retrieve circumstances after that point by engaging with the People and Strategy Department and offering opportunities for discussion.

[140] In any event, there is little doubt that by 17 May 2019 Louise was not competently performing the duties of her role. I find this was a valid reason for Louise's termination of employment.

[152]

[141] Of the matters relied upon in the 17 May 2019 termination letter, the first element is the allegation that Louise attended The School to remove school property without permission. That allegation is made out.

[142] It is likely that Louise's intention when she went to The School on 9 May 2019 was to retrieve her diary for the purpose of showing it to a lawyer in an appointment she had at the Fair Work Commission's premises relating to her anti-bullying application. However, having observed Louise at length during the process of the hearing I am satisfied that she is easily distracted and that it is likely when she could not readily find the diary her attention then turned to items that she thought may be useful to her and started gathering them up without having regard to whether they were her property or that of The School's. I am satisfied that at some point during the morning of 9 May 2019 before she left The School at about 8:50 AM that Louise was intent upon removing school property and had not sought permission to do so. The evidence is unclear as to whether Louise actually did remove school property without permission; in all likelihood and after reviewing the evidence on the subject, she did not do so to any meaningful extent after being challenged on the subject by the People and Strategy Manager.

[143] The second of the allegations relied upon in the termination letter, which is effectively a subset of the second "valid reason" summarised in the Respondent's Closing Submissions (the School's loss of trust and confidence in Louise by 17 May 2019) is the more substantive of the matters, asserting that Louise argued with the Head of Science in the vicinity of students and other staff. There is no doubt from the evidence that there was an unseemly commotion caused by Louise's own conduct. She emptied the contents of drawers onto the floor without tidying up and moved in an agitated stated between adjacent rooms. She did not meaningfully or calmly respond to questions asked of her about what was happening. The reasonable person observing what went on would be concerned and distressed, considering the behaviour as unacceptable in a workplace. In a school, in which young people, students, are moving around in preparation for their day and staff members doing the same, such behaviour would be seen at the very best as alarming. I have no doubt that what took place on the day was a meltdown of very significant proportions by Louise with no reciprocity in unacceptable behaviour by the Head of Science, the Manager People and Strategy or any of the others involved.

[144] Having described what transpired as unacceptable and alarming to observers, did it become a significant concern or create a serious reputational and legal risk to the school? Objectively, Louise's conduct met both limbs of this allegation, with me accepting the evidence of the Head of Science and the People and Strategy Manager about what they observed and who was present. Louise offers on the subject that because of her condition, her mind wasn't clear and that she does random things.[178] While that may be so, with it potentially explaining what happened, it does not excuse it and does not detract from the Respondent's core contention, that what Louise did was wholly inappropriate with it creating a serious reputational and legal risk for The School.

[145] There is no question that the altercation took place broadly as alleged by the Head of Science and the Manager People and Strategy, with their recollection being supported in important respects by the File Notes of other staff. While Louise's evidence is that she went to The School in order to remove the diary and not do otherwise, such is almost a moot point as to whether that was her intention since at some time that intention shifted to taking other things from The School's premises.

[146] There is no discernible legitimate purpose for removing school property from The School. No explanation of any substance or coherence has been put to the Commission as to why or how such materials as may have been gathered by Louise might be necessary to support her anti-bullying application. If she were to say to the Commission that she was gathering an email or two which demonstrated bullying in order to show the pro bono lawyer it may then be possible to accept there was a legitimate purpose for gathering documents, whether or not there may be a policy against such actions or whether or not The School directed that they not be removed. The mere fact that there is a policy that things may not be removed does not mean that the Commission would not accept that there are occasions on which things could be removed. However, the lack of explanation within Louise's evidence about the documents she sought to retrieve; her complete inability to concentrate on a task for more than a short period; and the fact that things were being grabbed with no real regard as to purpose means that any argument that there was a reasonable explanation as to why the documents should be removed from The School, perhaps contrary to policy, is not sustainable.

[147] Instead, the evidence resolves with a finding that it was Louise's intention to remove school property without permission. It also indicates that Louise collected a significant amount of material to take away from The School's premises but with no real knowledge as to what it contained, let alone having regard for whether it contained confidential or other material which should not be removed from The School's premises.

[148] As noted earlier, Louise did not locate the diary at The School. She says the diary was later retrieved by someone else and given to her in private.[179]

[149] There is also no question that there was a public argument with the Head of Science overheard by other staff and students. The Head of Science's evidence includes several descriptions about the tone of the altercation. At first, after recording that Louise was agitated and repeating herself, she says that Louise's voice was increasingly loud until she was shouting.[180] She reports that The School's media technician came over and asked Louise to "keep the noise down" with Louise shouting by this stage.[181] Her File Note records Louise as "screaming and shouting".[182] Later in the day another teacher said to the Head of Science that she had heard Louise "screeching" from outside her office" and that "there were quite a few students in the atrium area" who would have heard Louise.[183]

[150] The Head of Science concedes in her evidence that she may have raised her voice in an attempt to have Louise listen to her but that she was not shouting.[184] The Manager, People and Strategy does not report shouting or yelling either in her evidence or File Note.

[151] I accept the broad thrust of the Head of Science's characterisation of the events of 9 May 2019. There was at least shouting on Louise's part and this was not restricted to a single incident. Her shouting was overheard by other staff and students. There is no question that the events would likely have caused significant concern for those overhearing what took place. These things together mean that there is little question that the alleged events took place and that they amounted to misconduct on Louise's part.

[152] The fact of the events links with The School's assessment that they created a serious reputational and legal risk to The School. Human nature being what it is, it is readily foreseeable that staff and students would relay to their colleagues, friends and family what took place in an unfiltered manner and that the events would not remain sealed or confidential. To some extent The School could rely upon its employees to be discreet about what occurred, however I doubt that discretion or confidentiality could be presumed to be either watertight or uniform. The students however could not be assumed to be subject to any confidentiality requirements. When they reported what took place to their parents those people in turn would undoubtedly be concerned - what on earth is going on at this place to which I am paying significant fees?

[153] The Head of School also took into account in her decision to dismiss Louise what had been told to her by the Director of People and Strategy who had been contacted initially by the Head of Science when the commotion commenced and believed that she needed assistance. After the initial phone call the Director of People and Strategy was rung by the Head of Science again, this time as a mistaken dialling. In this second call the Director of People and Strategy could hear for a period of about five minutes what was going on between Louise and the Head of Science.[185] The Director later reported to the Head of School about this second phone call that she was shocked by the way Louise was speaking.[186] The Director's report included that she:

[156]

[154] Louise sent an email shortly after the fracas at 9:11 AM to the Head of School and others, including the Commission's anti-bullying email address, WorkSafe, and the Head of Science.[188] In that email she puts forward several justifications for what took place but ultimately shows no insight whatsoever either as to the events that occurred, her participation in them or that her own behaviour was in any way wanting. Louise says that the Head of Science aggressively attempted to prevent her from leaving in a lift; that she was taking home with her some things to tidy up and bring back the following day; that she needed to leave for an urgent appointment at the Commission; that it was the Head of Science's aggressive refusal to allow her to leave which made her highly emotionally distressed and anxious; and that her response to her distress was to take antidepressants while at school which eventually enabled her to calm down.

[155] The Head of School's evidence is that she considered all of this material and considered it likely that Louise had been acting erratically with the Head of Science being entitled to be concerned that she was attending for the purpose of trying to remove files.[189]

[156] Accepting as I do the evidence of the Respondent's witnesses about the events of 9 May 2019, I regard Louise's explanation in her email sent immediately after the events as being the self-serving justification of someone who knows they have overstepped the mark and needs to retrieve what they can from the situation, by blaming others and without accepting a scintilla of responsibility for their own actions or contribution to events.

[157] With considerable justification the Head of School decided to suspend Louise's employment and investigate what had occurred with a view to dismissing her. The correspondence set out the allegations referred to above and advises that if the Head decides the "allegations of misconduct are substantiated, or that mutual trust and confidence has been lost, I will need to then decide what action is now appropriate (if any). Such action may, regrettably, include the termination of your employment. However, I have made no decisions yet about such matters, as I would first like to give you an opportunity to respond to the concerns in this letter."[190] The same letter required Louise to attend a meeting with the Head of School at 3.00 PM on Friday, 17 May 2019.

[158] With calm reflection Louise could and should have gone to the meeting on 17 May 2019 with an explanation as to what took place together with an acceptance that her conduct was unacceptable and out of control and to give an expression of regret for her part in what took place.

[159] Louise may well have gone to The School on 9 May 2019 with the intention of obtaining her diary; she may well have then through forces out of her own control associated with her mental illness lost the capacity to conduct herself civilly and rationally. Those things of themselves are quite capable of explanation and an expression of regret, in the same way that a person with a physical injury finds that they are unable to undertake some essential task of their work and needs to explain to their supervisor why that may be so and why their performance then suffered. Had she accepted in the meeting on 17 May 2019 that her conduct was unacceptable and expressed regret and committed to remedial or other action which might reasonably lead to the conclusion that what took place was a one-off event never to be repeated, she may have been able to anticipate The School would earnestly consider a different outcome to dismissal. As it is, what The School heard were denials giving no insight as to her conduct or how it may have affected others as well as a blanket denial that she had any responsibility for what took place.

[160] Louise said in the meeting that she had read the 9 May 2019 allegations letter only the day before, and denied in her evidence to the Commission that the contrary was the case.[191] While she remembered her conversation with the Head of Science's husband, she categorically denied The School's allegations about what happened.[192] She argues that at the time she was "very calm".[193] She denied threatening to the husband that she would sue The School.[194] Pertinent to the events of 9 May 2019 she denied having not been truthful to the School Head about what actually happened.[195] While Louise accepts that when she was told she would be dismissed she became angry, she denies her response was extreme and denied being unprofessional or screaming or saying that "you cannot sack me".[196] Finally, Louise denied throwing documents at the School Head, although agreed she gave documents to the Head.[197]

[161] It is well accepted that an employee accused of misconduct has an obligation to assist and be truthful to their employer in the course of an investigation. It follows that truthfulness in the course of an investigation may potentially impact on the outcome of the investigation. The School's Head alludes to this in the course of her witness statement, considering that Louise's responses about her interaction with the Head of Science's husband were untruthful. The Head of School records that Louise:

[160]

[163] The evidence allows the findings, which I make, that by the time of the break in the meeting on 17 May 2019 Louise had committed several forms of misconduct. She had failed to disclose to The School at the start of or before her employment relevant employment and medical history, despite an obligation to do so. She had also inappropriately engaged in discussion with the Head of Science's husband and breached confidentiality, making threats relevant to her employment relationship (although I have not found that to be a valid reason for termination of employment).

[164] In relation to the events on 9 May 2019, she had either gone to The School with the intent of removing its property from the premises or had opportunistically decided to do so once on the premises. She had unreasonably argued on that day with the Head of Science in the vicinity of students and other staff, with no regard for what they may hear or think or feel about the situation, or the need to be discreet or confidential about their discussion. Her conduct on 9 May 2019 caused significant concern to those around her and had the potential to create a serious reputational risk for The School.

[165] Louise's failure to acknowledge either the facts of her conversation with the Head of Science's husband on 29 May 2019 or what happened on 9 May 2019 or to show contrition about her conduct is fully consistent with her earlier conduct and behaviour.

[166] More significantly, her failure to either acknowledge what occurred or to show remorse were dishonest actions on her part. These were not moments of mere embarrassment or oversight, but a deliberate scheme on her part not to acknowledge her notoriously obvious conduct and thereby attempt to mislead her employer. Louise's deliberate endeavour to mislead her employer were contrary to her obligation to be truthful in the course of an investigation. The School was entitled to honest responses from Louise when it probed what had occurred, and the fact that Louise did not answer in the way she should inexorably meant that The School could not be confident she would be honest with it in the future.[200] The same comments must be made in respect of Louise's failure to disclose her employment or medical history to The School, despite her obligation to do so.

[167] Despite the obvious ever-presence of her mental illness, Louise consistently refused to accept responsibility either for the conduct which could flow from the illness, or the need to control the illness, at least as it manifests itself in the workplace. Her last meaningful opportunity to do any of those things was in the meeting with the Head of School on 17 May 2019. She had the opportunity to go into the meeting and say "yes, as a matter of fact my behaviour was beyond the pale, and I am really sorry for what occurred". She could have coupled that with an explanation of why she was so anxious on the day. She could have offered attendance by her at an independent medical examiner to put in place future controls. But she did not. Instead, she chose simply to deny what were by that point notoriously evident facts. Worse, when she was informed that she would be dismissed, she resorted to type; she became angry, flailed around and made threats against The School.

[168] I find that the actions of Louise on 9 May 2019 were misconduct. She acted in a way which was not only inappropriate, but unprovoked and thereby created the potential for serious reputational and legal risk to The School. When she was given the opportunity to respond to The School's allegations about those events her responses dissembled, lacked honesty and were generally inconsistent with established facts as well as being an endeavour to shift blame. Those matters are a valid reason for The School to have dismissed Louise.

[169] In the dismissal meeting Louise demonstrated further misconduct by keeping from The School the first of two WorkCover Certificates of Capacity dated 17 May 2019, which contained information that was relevant to The School's decision making. After being dismissed there was further misconduct in the form both of her display of anger and aggression in the meeting itself, as well as sending two generally distributed emails attacking what The School had done.

[170] These forms of misconduct, on and after 9 May 2019, are particularly egregious on Louise's part. Her lack of control and lack of preparedness to work within the norms of behaviour and conduct established by The School strike at the heart of the employment relationship. Having been counselled repeatedly about her behaviour and conduct since November 2018 and warned explicitly in March 2019 about the consequences of repetition, the possibility that Louise would temper her conduct and find ways to work with The School had long since evaporated. She likely went into the meeting on 17 May 2019 realising her position was perilous and chose not to be entirely accurate and honest. I therefore find that Louise's misconduct in relation to the events on and after 9 May 2019 are a valid reason for her dismissal.

[171] In forming a view of whether there was a valid reason for an employee's dismissal, s.387(a) also invites consideration of a person's capacity or conduct in relation to its effect on the safety and welfare of other employees. Serious misconduct may include conduct which causes serious and imminent risk to the health or safety of a person.[201]

[172] Although there is no evidence which would suggest a serious and imminent risk from Louise's behaviour or conduct or her continued employment to the health or safety of any person, there is evidence which would suggest those matters would likely have an effect on the health or safety of other people at The School. In particular, her ways of dealing with challenges to her, in the form of erratic behaviour, raised and shouting voice, relentless verbal and written over-communication all compound to what would be at best a grinding and very difficult relationship. That things were not getting better but worse by May 2019 leads to the finding that the health and safety of others would likely be further affected by Louise's behaviour and conduct.

[173] Further, the absence of honesty by Louise about her conduct brings into consideration of the effect of her likely future conduct, if retained in employment, on the safety and welfare of other employees. Her lack of acceptance even that she behaved as she did allows a finding that repetition of her conduct would be highly likely if she remained in employment. Leaving aside for a moment whether by mid-May 2019 Louise deserved to be dismissed, taking the employment relationship at its most benign characterisation, Louise was by that time in serious, probably irretrievable conflict with her employer and senior people within The School. Short of absolute withdrawal on their part, allowing her simply to work as she wanted, there was no way imaginable that further meltdowns on her part would not occur. Any endeavour to meet and discuss matters would likely lead to conflict. Significant pieces of the employment law apparatus - an anti-bullying application; a medical certificate purporting to prevent otherwise legitimate meetings from taking place; a workers' compensation application; occupational health and safety inspectorate complaints; and a general protections application - had already been engaged and deployed by that date and would likely be further engaged and turned on her employer or people associated with it. By 17 May 2019, such a situation was already taking its safety and welfare toll on other employees.[202] The state of the situation in May means that in the absence of even the most basic recognition by Louise of how her conduct and behaviour was perceived or how it must be changed, allowing Louise to continue in employment would likely further and potentially unjustifiably compromise the safety and welfare of other employees.

[174] I am therefore satisfied on the evidence that The School held valid reasons for Louise's dismissal related to her person's capacity or conduct (including its effect on the safety and welfare of other employees). Those reasons, as set out above, were her failure to disclose prior to or shortly after employment relevant previous employment disciplinary and medical history; that she was not competently performing the duties of her role; and her misconduct associated with the events on and after 9 May 2019.

[166]

[180] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal.[205] While so, it is also accepted that "an opportunity to respond" amounts to an opportunity to provide reasoning to a decision maker that would, all things being equal, allow a reasoned explanation to cause the decision maker to accept what is proffered and to change from their foreshadowed path.

[181] At least in relation to the matters disclosed in the termination of employment letter, such an opportunity was afforded to Louise, with The School having informed on 9 May 2019 of the allegations it wished to explore and their consequences, if established. Louise was then invited to attend, and did attend, a meeting with The School's Head on 17 May 2019. She attended the meeting with her former husband and the School Nurse as support people. The School arranged for an interpreter to be in the meeting, provided at its expense. The Head of School's evidence, which I unreservedly accept, is that she listened to Louise's responses, and that she was taken aback by Louise's denials about her conversation with the Head of Science's husband; that she did not think Louise was being truthful on that and other subjects.[206] The evidence establishes, and I accept, that Louise was given an opportunity to respond in the meeting to The School's allegations.

[182] There were then three groups of reasons relied upon by The School which were not disclosed in the termination of employment letter and which Louise had not been put on notice that it was considering terminating her employment for reason of the matters; Louise was dishonest about her health and previous employment when she applied for employment; misconduct associated with her interactions with the Head of Science's husband on 29 April 2019; and that by 17 May 2019, Louise was no longer performing her role competently.

[183] I note again, in relation to Louise's conversation with the Head of Science's husband that while that matter was not explicitly stated within the termination of employment letter as a reason for termination, it is to be noted that Louise's responses on the subject in the termination meeting, and its conclusion the responses were not truthful, were taken into account by The School in making its decision to dismiss her. I also note that while established by me as misconduct on Louise's part, I have not found that particular interaction to be a valid reason for dismissal.

[184] In relation to the other matters, misleading the employer on pre-employment disciplinary action and medical history, and performance of her role. I doubt that any further or formal opportunity to respond would have either brought forward any useful material that would have persuaded The School to move in a different direction or that such opportunity would have been meaningfully responded to. Certainly, there had been significant engagement with Louise by May about the competence of her work performance but which had neither been accepted or positively responded to. Both matters, of disclosures at the time of employment, as well as competence of work performance were discussed at length in the hearing, with there being no meaningful resolution of either; Louise neither accepts the subjects as something over which she could be called to account, or that she failed in any respect.

[185] While the Respondent can be said to have been procedurally unfair in not disclosing these reasons to Louise and giving her an opportunity to respond, such does not ultimately sway the decision to be given in this matter.

[176]

[190] Section 387(h) requires taking account of any other matters to be relevant in my determination of this application. One such matter is Louise's mental illness. The formal evidence before the Commission on the subject is scant, with the high point being the assessment given in several of the General Practitioner's certificates and worker's compensation certificates and to a certain extent within the Psychologist's communications. The most they say is that Louise was suffering from "depression and anxiety"; that those matters affected her attention/concentration, her memory (short and/or long term) and her judgement (ability to make decisions); and that those matters combined manifested themselves with "lowered mood, increased distress".[207]

[191] The informal evidence though would show that such diagnosis was hardly profound. All but the matter of depression was likely constantly conspicuous to all concerned at The School from at least 4 September 2018, and was most definitely evident to the Commission throughout the pre-hearing and hearing phases of dealing with Louise's application. Mental illness is a modern calamity and deserves to be taken seriously. People afflicted with mental illness deserve reasonable accommodations to be made by their employer for them to deal with the consequences of the illness. However, what is required is no more than would be required of the employer of someone suffering from any number of other illnesses; employees may be entitled to have lighter duties while they undertake chemotherapy, or it may be reasonable to move a person's starting time and working days because of a permanent incapacity. What is not required for anyone is for a wall to be built around the employee so that employing them means doing things their way and not otherwise.

[192] Louise's mental illness and conduct has affected not only herself but those around her. The Co-worker reports being upset by the relationship and no longer has trust in Louise and believes that her conduct greatly affected the Head of Science.[208] For her part, the Head of Science has been unambiguously affected by a totally toxic supervisory relationship. She has had her integrity called into question and has been threatened without any justification of a report to be made to the teaching registration authorities. She has had cause to go back over in her mind whether her decision to engage Louise in the first place was the right one and whether the Head of School, who came along after Louise's engagement will think badly of her. Her witness statement provides raw evidence about the effect on her personally; she has not been able to attend to a disabled son as much as she would like and, worse, those caring responsibilities were dreadfully impacted by the email Louise sent staff after being dismissed. At the time she was at a dinner with her son and husband:

At a glance

Court

Decision date

Source

Judgment (235 paragraphs)

Louise v The School [2020] FWC 758 (1 April 2020)

Parties

Legislation Cited (5)

Cases Cited (13)