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[2003] NSWIRComm 4
defendant. The Commission dismissed the victimisation application in IRC 2002/689 and the unfair dismissal application in IRC 2002/2125 (paras 48, 57).
The Commission found that the conflict began when Mullan confronted the School Principal at a staff meeting and escalated because she did not accept or try to resolve the consequences of that incident. It was not persuaded that her union or representative activities, or the other matters she relied on, caused the alleged detriment. The employer had offered other teaching positions, which she declined. The Commission therefore dismissed both the victimisation and unfair dismissal applications. It did not decide whether the employer had a contractual right to transfer her to another school without consent.
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The decision concerns two applications by Bridget Mullan against the Catholic Education Office as agent for the Diocese of Wollongong. The first was a victimisation application under s 213 of the Industrial Relations Act 1996, filed before her dismissal. The second alleged that her dismissal on 25 March 2002 was harsh, unreasonable or unjust under s 84 of that Act. By consent, the two matters were heard together, with evidence in one treated as evidence in both [1]–[3].
No linked legislation citations have been extracted yet.
The Commission identified the practical starting point as a staff communication meeting at St Pius X Catholic School, Unanderra, on 2 August 2001. Principal Terry Westblade made a remark that Mullan took exception to. The Commission accepted evidence that she responded in a confrontational, aggressive and intemperate manner in front of teaching staff, describing her conduct as unprofessional and inappropriate [9]–[11]. It found that Mullan already had dissatisfaction with Westblade's leadership style, but accepted that he had been open, frank and communicative with staff and had intended to encourage staff to raise concerns [12]–[14].
The events after the meeting were important to the Commission's reasoning. Westblade tried to resolve the issue, but Mullan declined to meet with him unless a witness was present. The Commission did not accept that his use of a written aide memoire was intimidating or discourteous. It considered it an effort to conduct the meeting in an orderly way in a tense situation [17]–[22]. The respondent later arranged meetings and put forward proposals, including an expression of regret by Westblade and a meeting to finalise matters. Those efforts did not produce agreement [25]–[33].
The respondent concluded that returning Mullan to St Pius X was untenable and offered teaching positions at St Paul's Albion Park or St Columbkille's Corrimal. The judgment records that her salary and conditions would be maintained, and that she would not be required to perform the Religious Education Co-ordinator duties at the new school [36]–[38]. Mullan, through her solicitors, declined to work at any school other than St Pius X. The respondent repeatedly sought an answer about the alternative placement and, after receiving no acceptance, terminated her employment on 25 March 2002 [39]–[46].
The Commission dismissed both applications. It found the victimisation presumption rebutted and concluded that the alleged protected matters were not substantially and operatively responsible for the detriment. It also found no basis to intervene in the dismissal [48], [55], [57].
The Commission's factual evaluation of the 2 August meeting was central. It was “comfortably satisfied” that Mullan had berated Westblade in front of colleagues and found her response disproportionate to the concern she had about his remarks [10]–[16]. The Commission described that incident as the “unstable platform” on which her case rested [15]. It did not accept her account that the principal had behaved in a way that justified her response.
The Commission then examined the employer's conduct after the incident. It accepted that Westblade and the Catholic Education Office genuinely tried to resolve the impasse and facilitate Mullan's return to work [18], [25]–[27]. The request that she leave the workplace was considered against the high tension then prevailing, and described as a measure to create “breathing space” rather than a punitive sanction [22]–[24]. The decision did not treat every step by the employer as automatically correct; it assessed the steps against the events and evidence before it.
For victimisation, the judgment says that a statutory presumption favoured Mullan's allegations, but the respondent rebutted it [47]. The key finding was causal: “none of the matters alleged by the applicant were substantially and operatively responsible for the detriment to her” [48]. Instead, the Commission attributed the deterioration to Mullan's initial conduct and her continued refusal to address its consequences despite opportunities to do so [48]. The judgment does not reproduce the full text of s 213 or provide a general test beyond that description and its application to the facts.
Mullan's position as an elected representative did not change the Commission's assessment of her conduct. It quoted the Newcastle Steel Workers Case (1961) AR 48 for the proposition that the Commission protects delegates unjustly treated for legitimate union activity but does not regard delegateship as a “magic cloak” against responsibility for wrongful actions [35]. The Commission concluded that the conduct in this instance was not justified by her representative role [16], [35].
On unfair dismissal, the Commission expressly recognised the seriousness of the consequences for Mullan. She had about 30 years' experience in Catholic education, and dismissal could have consequences of “the higher order of gravity” [49]–[50]. However, the Commission balanced this against what it saw as the respondent's repeated attempts to retain her in teaching work, including offers of alternative school placements on maintained salary and conditions [36]–[38], [51]. It considered her repeated insistence on returning only to St Pius X, and later refusal of alternative placement, important to the outcome [39]–[45], [51]–[55].
The judgment applies the Industrial Relations Act 1996, identifying s 213 as the provision for relief from victimisation and s 84 as the provision for relief from unfair dismissal [2]–[3]. It also records that Mullan relied on s 210(2) in alleging that her dismissal was a detriment caused by union activities and other specified matters [46]. The decision does not reproduce the full text of these provisions, so it does not, on its own, supply a comprehensive account of their statutory elements.
For the victimisation claim, the decision's relevant legal proposition is limited but significant: it describes a statutory presumption in favour of the allegations and finds that the employer rebutted it on the evidence [47]–[48]. It does not describe a change to the statute, nor does it state that it is formulating a new test. Its contribution in this dispute is the application of that presumption to the Commission's factual findings about the cause of the detriment.
For employee representatives, the decision reiterates the distinction between protection for legitimate representative activity and immunity for wrongful conduct. The cited Newcastle Steel Workers Case is used to support that distinction [35]. The judgment does not say that representative activity was irrelevant in all cases; rather, it found that Mullan's conduct at this meeting could not be justified by her role on the evidence before the Commission [16], [35].
For unfair dismissal, the decision records the statutory question as whether the dismissal was “harsh, unreasonable or unjust” [3]. It does not set out a general multi-factor test. The Commission's application focused on the particular history: the seriousness of the consequences for the applicant, the employer's offers of alternative placements, and her responses to those offers [49]–[55].
There is no “after” state of the law established in this judgment in the sense of a statutory amendment or a newly announced general doctrine. It is a first-instance decision resolving these applications on their evidence. The supplied judgment does not contain subsequent judgments or legislative developments that would show how the law changed afterward.
At [15], the Commission said Mullan's hostility was “unwarranted and out of all proportion” to her concerns. In plain English, it regarded the manner and scale of her response as unjustified by what Westblade had said.
At [16], the Commission rejected the idea that her actions were justified because she was an elected staff representative. It considered that an employee representative could still be accountable for inappropriate conduct.
At [35], the Commission quoted the Newcastle Steel Workers Case: delegateship was not a “magic cloak” conferring immunity from liability for wrongful actions. In plain English, legitimate union or employee representation attracts protection against unjust treatment, but does not excuse conduct that is otherwise wrongful. The quotation is from the cited case, not an independent factual finding about every representative.
At [47]–[48], the Commission said the statutory presumption favouring Mullan's victimisation allegations was rebutted, and that the matters she alleged were not substantially and operatively responsible for her detriment. In plain English, the Commission accepted that the presumption applied but considered the respondent's evidence sufficient to show that the alleged protected matters were not the operative cause of the disadvantage she experienced.
At [55], the Commission said it could not, “in all good conscience”, find in Mullan's favour on the evidence. This expresses its conclusion on the unfair dismissal claim after acknowledging the potential seriousness of dismissal and considering the respondent's offers of alternative employment.
At [56], the Commission said the parties could still negotiate about returning Mullan to, or re-employing her in, a teaching position suited to her experience. It made clear that this possibility was not an order of the Commission and was left to the parties.
The decision is most relevant where an employee representative alleges victimisation after workplace conflict and the employer argues that the consequences arose from the employee's own conduct rather than representative activity. It shows the importance, in this Commission's reasoning, of evidence about the specific alleged protected matters, the events leading to the detriment, and whether those matters were substantially and operatively responsible for it [46]–[48].
It may also be relevant where an employee's representative status is relied on to explain or justify conduct directed at a manager or principal. The case illustrates that the Commission distinguished legitimate employee representation from personal conduct it found confrontational and unprofessional [11], [16], [35]. It does not establish that every strongly expressed workplace objection is wrongful; the finding depended on the evidence of what happened at the meeting and the Commission's assessment of the parties.
The decision may also be relevant to disputes in which an employer offers alternative work after a breakdown in the original placement, and the employee refuses those options. The Commission considered the content of the proposed positions, maintenance of salary and conditions, the reason the original placement was considered untenable, and the applicant's repeated responses [36]–[45]. The case does not determine the contractual power to transfer an employee without consent. That issue was raised but not pursued at hearing, and the Commission expressly declined to decide it [39].
For unfair dismissal analysis, the judgment illustrates that serious personal consequences do not, by themselves, resolve the statutory question. The Commission acknowledged the impact of dismissal but considered the surrounding conduct and attempts to retain the applicant in employment [49]–[55]. Its reasoning is confined to the case's facts and should not be treated as a universal outcome for employees who reject alternative placements.
The supplied judgment does not refer to later decisions, and the material provided contains no subsequent judicial treatment of Mullan. It is therefore not possible, from this source alone, to say whether later courts or tribunals followed, distinguished, approved or criticised it.
The only cited authority within the decision is the Newcastle Steel Workers Case (1961) AR 48, quoted at [35]. The Commission used it to support the proposition that employee representatives are protected against unjust treatment for legitimate union activity but are not immune from responsibility for wrongful acts. The decision does not provide paragraph references for that earlier authority or discuss a line of later cases.
The judgment's own citation is [2003] NSWIRComm 4. Its header records a judgment date of 11 February 2003, while the body heading states “Tuesday, 11th February 2002”. That is an apparent internal date inconsistency in the supplied text. It does not alter the outcome recorded at [57], but it is a source detail to check against an authoritative version if precise chronology is material.
The Commission did not decide whether Mullan's contract permitted the employer to assign her unilaterally to another diocesan school. It noted that the issue had been raised in correspondence and victimisation particulars but was not pursued in evidence or submissions, and said it was not called on to decide it [39]. Accordingly, this judgment does not establish the contractual scope of any transfer power.
The judgment does not reproduce the full text of ss 213, 210(2) or 84. It therefore leaves open, for a broader account of the statutory law, the precise elements and operation of those provisions beyond what the Commission said and applied in this dispute [2]–[3], [46]–[48].
The decision also does not resolve whether Mullan could have been re-employed through later agreement. The Commission expressly left possible non-adversarial negotiations to the parties and stated that it would not impose such an arrangement in the proceedings [56]. Nor does it determine whether her qualifications would have enabled her to seek employment in the State education system; the Commission said the evidence did not permit it to reach a conclusion on that point [50].
Finally, the supplied text offers no information about any appeal or later treatment of the decision. Any assessment of its present precedential status, or of how later courts have applied its reasoning, would require sources beyond the judgment provided here.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
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.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Mullan
Catholic Education Office as agent for the Diocese of Wollongong
The Commission dismissed the victimisation application in IRC 2002/689 and the unfair dismissal application in IRC 2002/2125 (paras 48, 57).