Mullan v Catholic Education Office as agent for the Diocese of Wollongong

Industrial Relations Commission (NSW)|2002-05-23|Before: Grayson DP, Mr J

CITATION : Mullan v Catholic Education Office as agent for the Diocese of Wollongong [2003] NSWIRComm 4 PARTIES : Bridget Mullan Catholic Education Office FILE NUMBER: IRC 689 of 2002 and IRC 2125 of 2002 CORAM: Grayson DP Victimisation allegation, unfair dismissal allegation, concurrent hearing, evidence in one taken as evidence in both, rebuttable presumption in favour of victimisation relevantly alleged, rebuttal onus on employer, role of elected representative of employees, obligation to act with propriety, obligation on disputing parties to reasonably attempt resolution, victimisation perceived unsupported by evidence, disproportionate intemperate reaction to relatively innocuous remarks, failure to accept consequences and attempt amelioration when afforded ample opportunity CATCHWORDS : Held, presumption in favour of victimisation allegations successfully rebutted, manifest absence of evidnce in support, none of matters alleged substantially or operatively responsible for detriment to applicant, applicant responsible for own detriment, no unfairness in dismissal, no warrant for Commission's intervention, applications dismissed. LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Newcastle Steel Workers Case (1961) AR 48 HEARING DATES: 05/23/2002; 05/30/2002; 05/31/2002; 06/19/2002; 08/15/2002; 12/20/2002 DATE OF JUDGMENT: 02/11/2003

Mr R Moore of counsel instructed by Access Business Lawyers LEGAL REPRESENTATIVES: Mr J Murphy of counsel instructed by the Catholic Commission for Employment Relations

JUDGMENT: - 13 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES Coram: Grayson DP

Tuesday, 11th February 2002 Matter IRC 689 of 2002

BRIDGET MULLAN AND CATHOLIC EDUCATION OFFICE AS AGENT FOR THE DIOCESE OF WOLLONGONG

Application by Bridget Mullan for relief from victimisation pursuant to s 213 of the Industrial Relations Act 1996

BRIDGET MULLAN AND CATHOLIC EDUCATION OFFICE AS AGENT FOR THE DIOCESE OF WOLLONGONG

Application by Bridget Mullan for relief from unfair dismissal pursuant to s 84 of the Industrial Relations Act 1996 DECISION [2003] NSWIRComm 4

1 These proceedings involve two applications which, by consent, were heard concurrently with evidence in one matter being taken to be evidence in both.

2 The first application which was filed prior to the date of dismissal is made under s 213 of the Industrial Relations Act 1996 (the Act) and alleges that Bridget Mullan (the applicant) was victimised during her employment at St Pius X Catholic School, Unanderra (SPX). The victimisation is said to arise among other things, from the applicant's involvement as an elected representative of employees (known as the Chapter Representative) at SPX.

3 The second application is made under s 84 of the Act and alleges that the applicant's dismissal on the 25 March 2002 was harsh, unreasonable or unjust or all of those things such that the Commission should intervene and grant the relief sought namely, reinstatement or in the alternative, re-employment and/or compensation.

4 The Catholic Education Office (CEO) as agent for the Diocese of Wollongong (the respondent) vigorously resists the applications and asserts that the applicant's inappropriate manner of conducting herself in her public dealings with the Principal of SPX, and later with the respondent's authorised officers, justified the decision ultimately taken to bring the employment relationship to an end.

5 The matters, having been the subject of attempted conciliation on a number of occasions both before and after the dismissal, ultimately proceeded to hearing on 23 May 2002, 30 May 2002, 31 May 2002, 19 June 2002 and 15 August 2002 and were thereafter adjourned for submissions which concluded with the filing of the applicant's submissions in reply on 20 December 2002.

6 The applicant gave evidence on her own behalf and relied upon that of Ms Janet Bowater, SPX librarian, who was not required for cross-examination. In addition thereto, the applicant tendered documentary evidence in various forms in support of the propositions for which she contended.

7 Evidence on the respondent's side of the record was taken from the following witnesses:

· Mr Terry Westblade, SPX Principal · Mr Glenn Fontana, SPX teacher · Mr Stephen Thorne, SPX teacher · Mr Graham Maynard, Diocesian Property Manager · Ms Jennifer Werakso, SPX teacher · Mr Gregory Whitby, Director of Schools Wollongong Diocese · Mr J Gamble, Head of Employee Services Wollongong Diocese · Mr William Corbishley, CEO solicitor · Ms Pat Gamble, SPX Assistant Principal · Ms Catherine Zamroz, SPX teacher · Mr Barbara Ryan, general assistant, SPX · Mr Gerard Tancred, SPX ex-teacher · Mr John Tubridy, CEO Head of Cluster Services (Primary) New South Wales · Ms Christine McCormack, CEO Manager Employee Support Services, Rehabilitation and Return to Work Co-ordinator

8 The respondent also relied on documentary evidence in various forms which for convenience, may be broadly described as business records.

9 The sequence of events leading up to the applicant's dismissal from employment began in the practical sense with a staff meeting described as a "communication meeting" at SPX on 2 August 2001. The meeting was attended by Mr Westblade, the School Principal, and by the applicant and other members of the teaching staff.

10 Towards the end of the meeting which had been otherwise uneventful, Mr Westblade made reference to a matter to which the applicant took exception. The applicant berated him in front of those present namely, the teaching staff of the school.

11 I describe the applicant's conduct in that way because I am comfortably satisfied on the overwhelming preponderance of evidence and notwithstanding the applicant's attempt to characterise it differently, that she behaved in a confrontational, aggressive and intemperate manner towards Mr Westblade. In doing so as a professional teacher of many years experience and a member of the school executive subordinate only to the Principal and the Assistant Principal, it can fairly be said that her behaviour was unprofessional and inappropriate and that her public haranguing of Mr Westblade in the company of other members of the teaching staff of the school was a matter warranting the high level of concern it received.

12 Clearly on the evidence, there was an underlying dissatisfaction on the applicant's part with Mr Westblade's leadership style. The applicant made no secret of this and when one comes to deal as objectively as one can on the totality of the evidence with the formulation in the applicant's mind of the basis of such dissatisfaction, there are manifest shortcomings in my opinion.

13 I am satisfied and accept the evidence in support of this proposition to the exclusion of other evidence, that Mr Westblade's interaction with teaching staff at SPX was open and frank, that it was well-intentioned, communicative and responsive to the needs of the school community and the staff and that his primary motive in raising the issue he did on 2 August 2001 was to encourage teaching staff to raise their concerns with him at any time rather than to constrain or limit them in what they could discuss at union meetings.

14 To the extent that, by his own candid concession, he may have chosen better words to express himself on 21 August 2001 and to the extent that his remarks caused at least one other teacher at the meeting to comment adversely about them, the fact remains that the other teacher later approached Mr Westblade and resolved her differences with him. In those circumstances, the contention that the applicant was somehow singled out for special treatment lacks substance as I am disposed.

15 Put simply, the applicant's hostility towards Mr Westblade on 2 August 2001 was unwarranted and out of all proportion to any concern she may have had about Mr Westblade's remarks. It was and remains in every sense, the unstable platform upon which her case rests.

16 It cannot with every respect to her, be passed off as the justifiable and justified actions of an elected representative of teaching staff at SPX. The evidence, again in its overwhelming preponderance, is against such a proposition and the applicant in my judgment should have faced the consequences of her actions at the time and attempted to ameliorate them when she was afforded the opportunity.

17 Notwithstanding the distress and embarrassment caused to him, Mr Westblade shortly after the incident, attempted to resolve the matter with the applicant and was told by her that he was predisposed unfavourably towards her and other teaching staff at SPX on the basis that they were "a bunch of militant rebels". He denied this at the time and continued to do so throughout his lengthy cross-examination by Mr Moore of counsel for the applicant. I accept his evidence in that and other respects.

18 What next occurred, that is to say following the incident of 2 August 2001, was that Mr Westblade continued to seek to resolve the matter with the applicant and in the process sought advice and appropriately so in my view, from the CEO.

19 For her part, and except for a brief and unproductive encounter on 3 August 2001 about which I will say more shortly, the applicant declined to speak to Mr Westblade in the absence of a witness. It is more probable than not that she did so on advice from her union but given that the union did not act for her in the proceedings and given that no evidence was adduced from that source, it is difficult to know what position the union adopted. There is sufficient in the evidence however, to indicate that the union was involved at a senior level in discussions with its teacher members at SPX and with the CEO in an attempt to resolve the issue.

20 There is also sufficient in the evidence to indicate that it was the preferred course of those involved, with the exception of the applicant, to see the matter dealt with by the union. For reasons which were not explained however, and to be fair to the applicant which do not strictly need to be, she chose to retain the services of a private mediator and then the lawyers who thereafter acted for her to the exclusion of the union.

21 The applicant contends that she felt it necessary to terminate the meeting with Mr Westblade on 3 August 2001 because he commenced reading to her from a piece of paper. She told him that she did not wish to be spoken to as a child and that if he continued to read she would leave. Mr Westblade said the piece of paper, which became Exhibit C in the proceedings was prepared at the suggestion of the CEO for use as an aide memoire in the course of his meeting with the applicant. Mr Westblade said he was very apprehensive about meeting her and that having the points he wished to make written down on a piece of paper was intended to assist him so that he would not be distracted by nerves. This does not seem to me to be an act of intimidation or discourtesy as was suggested but rather in the converse, the act of someone who was attempting to conduct himself in an orderly and objective manner in an atmosphere of tension and acrimony.

22 Returning then to the sequence of events as it unfolded, Mr Westblade again asked the applicant to meet him on Monday 6 August 2001 and was twice refused. Mr Tubridy of the CEO came out to the school and attempted without success to facilitate a meeting. The applicant was informed after earlier refusals in this regard, that she could bring someone with her if she wished. She sent word through colleague, Mr Fontana, that she was unwell and would be going home.

23 The next morning following an executive meeting, Mr Westblade again asked the applicant to meet him. She declined and acting on advice he had received from Mr Gamble at the CEO, he then asked the applicant to leave the premises.

24 I do not accept as the applicant contends, that Mr Westblade displayed hostility, rudeness or aggression towards her in making that request. Rather, I accept his version of events in that regard. Much was made in the course of the debate about Mr Westblade's request, acting as he did on the advice of the CEO, that the applicant leave the workplace on 6 August 2001. It was submitted by the applicant in citing that and other things as examples of her mistreatment, that such a course of action was highly inappropriate and that it was ordinarily reserved for the most serious class of cases involving for example, an accusation of sexual or physical abuse including paedophilia. To my mind, however, the respondent's action in requesting the applicant to leave the workplace needs to be viewed against the high level of prevailing tension in the workplace and against a seemingly intractable position taken by the applicant viz a viz Mr Westblade. In such circumstances, the respondent's action may properly be viewed in my opinion as the act of a prudent employer seeking to provide some much needed breathing space and scope for quiet and sober reflection rather than as a punitive sanction against the applicant.

25 At all events, the matter then progressed with meetings conducted by the CEO on 17 August 2001 and 21 August 2001, which were attended by the applicant and the private mediator she had retained and by Mr Whitby and Mr Westblade.

26 I am satisfied on the evidence as it stands that the CEO was at all times genuine in its stated endeavours to find a way through the impasse which had developed and to facilitate the applicant's return to school at the earliest practicable time.

27 I do not consider, as the applicant contends, that she was abandoned by her employer or left to her own devices as the case may be.

28 Settlement proposals involving apologies from Mr Westblade to the applicant and to the staff were put by the applicant, or on her behalf, on 17 August 2001.

29 On 21 August 2001, counter proposals were put by the CEO involving an expression of regret by Mr Westblade that his comments on 2 August 2001 had been interpreted by the applicant in the way they had and further, involving the applicant and Mr Westblade meeting to finalise matters between them.

30 Mr Whitby indicated that he was not prepared to ask Mr Westblade to apologise and although he considered it, he would not in the spirit of moving forward, seek an apology from the applicant for her behaviour on 2 August 2001.

31 The issues between the parties did not resolve by this means and the applicant, who was by this time under medical care and pursuing a claim for workers compensation, placed the matter in the hands of solicitors.

32 The CEO then placed the matter in the hands of the Catholic Education Commission for Employment Relations.

33 Self-evidently, things had by this time escalated from a significant but in the light of what was to follow, a relatively minor incident which set the parties on ever-diverging paths to the regrettable point where the employment relationship ended.

34 It is important in that context to observe that the resolution of disputes of this type requires disputing parties to bring to the process in ample measure, notions of good faith and willingness to see matters from the other's perspective and perhaps above all, a genuine wish to avoid rather than promote disputation.

35 The evidence, in particular but by no means only that of Ms Werakso, whom I accept unreservedly as a truthful and candid witness, is strongly suggestive of an absence of such notions on the part of the applicant who appeared to adopt and to maintain an almost vendetta-like approach from the outset and to the extent that she had previously enjoyed the friendship, loyalty and support of her colleagues prior to the incident and perhaps for some little time afterwards, those things were effectively lost to her as the matter progressed and objective minds were brought to bear. There can be little doubt that the hard-line position she took and maintained did not devolve from the collective wish of those she purported to represent and it needs to be said in any event, as was observed in the Newcastle Steel Works Case (1961) AR 48 that: …while the Commission will be vigilant to protect the position of any delegate unjustly dealt with by an employer for legitimate activity on behalf of his union, it certainly will not regard delegateship as a magic cloak conferring upon the wearer immunity from liability for wrongful actions…

36 Equally clearly in the light of the continuing failure of the matter to resolve, it became necessary for the respondent to consider the appropriateness or otherwise of returning the applicant to her teaching position in SPX. It did not act capriciously in that regard but rather examined in a careful and measured way, options which may be available for alternative placement of the applicant within the Wollongong Diocese.

37 In the result, the applicant was offered, through her solicitors, a choice of teaching positions at either St Paul's Albion Park or St Columbkille's Corrimal with a view to commencing duties at the start of term 2002, subject to the state of her health. It was pointed out that return to SPX was in all the circumstances untenable and that, given the imminence of the end of term 2001 and the need for the CEO to finalise staffing arrangements for the following year, an early indication as to the applicant's intention was sought.

38 It was also pointed out that the applicant would maintain her salary and conditions of employment according to the relevant award; that she would continue to be paid as although not be required in the new school to perform the duties of Religious Education Co-ordinator and that the CEO had a genuine wish to maintain her employment.

39 Through her solicitors, the applicant indicated that she was not prepared to accept a position at any school other than her original position at SPX and further, that she knew of no provision within her employment contract which permitted interschool transfer without her consent. The latter is an issue which was raised in correspondence from the applicant's solicitors and in the particulars accompanying the victimisation application but which was not agitated in the course of the proceedings. It may be that it was on reflection, considered to be an issue lacking in substance given the hierarchical structure of administration of diocesan schools, but there was no evidence upon which such an assertion might be tested and the Commission is not called upon to decide it.

40 The regrettable but plain fact is, however, that by her solicitor's response and the adoption thereby of an all or nothing approach to the resolution of the matter, the applicant had placed herself on a collision course with the respondent, which had only one likely outcome.

41 Following that response, and its repetition in subsequent correspondence from her solicitor to the respondent to the further effect that she was not prepared to transfer to another school "even with consent", the applicant was informed by the respondent on 20 December 2001 and again on 10 January 2002 that she had been assigned to St Paul's Albion Park. She was asked to collect or authorise the collection of her personal belongings from SPX and to return her keys. Again through her solicitors, she declined.

42 On 8 February 2002 she commenced victimisation proceedings which came on for conciliation and directions on 14 February 2002. The matter did not resolve.

43 On 28 February 2002, the respondent wrote to her seeking yet again her acceptance of the position at St Paul's Albion Park. She was advised that should there be no response or a negative response from her by 13 March 2002, then a decision would be made with respect to her ongoing employment.

44 Again, through her solicitors, the applicant responded inter alia with the novel proposition in the light of earlier correspondence, that if the respondent had a lawful right to unilaterally appoint her to any school within the Diocese, no acceptance or otherwise by her was necessary. This response, as I am disposed, has a pettifogging character to it and is one which inappropriately overlooks the fact that the respondent was clearly affording the applicant an opportunity to reconsider her earlier expressly stated refusals to be employed anywhere but SPX.

45 The respondent was equally clearly aware of the applicant's medical condition and simply put, was seeking from her an indication of her availability for work at St Paul's Albion Park. None was given.

46 On 25 March 2002, the respondent wrote to the applicant terminating her employment and on 12 April 2002, the applicant commenced unfair dismissal proceedings. On 24 April 2002, the applicant filed an amended application for relief from victimisation including in it the additional contention that the dismissal was a detriment within the meaning of s 210(2) of the Act which along with other detriments, was caused severally or collectively by her union activities; by her claim for a benefit to which she is entitled under the industrial relations legislation or an industrial instrument; by her allegation of breach by her employer of the legislation or by her participation in these proceedings.

47 The applicant relies on numerous particulars most but not all of which were canvassed in evidence and I am bound to say notwithstanding the statutory presumption in favour of the applicant's allegations, that the presumption is comfortably rebutted by the respondent.

48 Apart from a perception in the applicant's mind the basis for which is steadfastly denied by the respondent and manifestly absent in the evidence, it is clearly the case that such misfortune or detriment as befell the applicant began with her unwarranted and inappropriate personal attack on the School Principal on 2 August 2001 and continued with her obdurate refusal to accept and deal with the consequences of her actions when she was afforded the opportunity. I am comfortably satisfied that none of the matters alleged by the applicant were substantially and operatively responsible for the detriment to her and I dismiss the application in IRC 2002/689 accordingly.

49 Turning then to the question whether the applicant's dismissal was harsh, unreasonable or unjust, I am acutely aware of the circumstances in which the applicant would be placed if she is refused the relief she seeks. I am also aware of the fact that she is a teacher of approximately 30 years experience in the Catholic education system and as such, has doubtlessly made a significant contribution in her own right.

50 Furthermore, and as emerged in the course of proceedings, her formal training and qualifications may not be such as would enable her to seek employment in the State education system. I am not to know that as a matter of certainty and the evidence as it stands does not permit such a conclusion but clearly, the consequences for her of dismissal from employment are as best one can predict, potentially in the higher order of gravity.

51 Having said that, I am also acutely aware that in many ways the applicant was the architect of her own downfall and that the respondent was placed in the invidious position of being repeatedly rebuffed in its attempts to relocate the applicant at no or minimal disadvantage to her. In that regard I agree with the submission of Mr Murphy of counsel for the respondent that the applicant's attempts in opening her case, to characterise her responses to offers of alternative placement as other than rejections have a hollow ring to them indeed.

52 Notably though and again in opening her case, the applicant shifted her ground in that regard and as the following extract of transcript reveals she is now amenable to an order of the Commission absent reinstatement that she be re-employed in an alternative suitable position: HIS HONOUR: …I suppose that the application for relief from alleged unfair dismissal at para 26 should for completeness indicate alternative remedies in the light of what you've said.

MOORE: Yes, for completion that would be correct that she would seek to amend it, your Honour the applicant to not only give reinstatement to the former position as described but re-employment to another position or monetary compensation.

HIS HONOUR: Any difficulty with that Mr Murphy from your side?

HIS HONOUR: Very well then, the application for relief from unfair dismissal in proceedings numbered 02/2125 is amended accordingly. (T23.05.02 pp9,10)

53 To the extent that prior to opening her case, the applicant doggedly maintained that nothing but return to her previous position at SPX would be accepted by or acceptable to her, clearly by the foregoing extract she now contemplates alternative remedies.

54 One may observe as doubtlessly the respondent would, that if such a result were to emerge from these proceedings, it would be a mere reiteration of the respondent's position prior to a lengthy and protracted process of litigation and furthermore, that it was a position which prior to then had been roundly and repeatedly rejected by the applicant.

55 It is also the case of course, that no such remedy would be ordered or imposed upon the respondent absent the prerequisite finding that the applicant was unfairly dismissed and grave though the consequences for her may be, I could not in all good conscience find in her favour on the evidence as it stands.

56 I might say before leaving the matter that such a conclusion does not preclude the parties from entering into negotiations in a non-adversarial or non-litigious environment in an attempt to explore any avenues which may still remain by which the applicant may be returned to or re-employed in a teaching position commensurate with her extensive experience. That is a matter for the parties however, and is not something which the Commission would or arguably could, seek to impose upon them in the context of these proceedings.

57 The application in IRC 2002/2125 is dismissed and these proceedings are concluded accordingly.

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