Industrial Relations Commission of New South Wales CITATION : Harris and Youth Action Policy Association [2001] NSWIRComm 125 APPLICANT PARTIES : Letetia Louise Harris RESPONDENT Youth Action Policy Association FILE NUMBER: 4857 of 2000 CORAM: Sams DP Termination of employment - unfair dismissal - allegations against applicant - whether allegations proven to requisite standard - whether dismissal "harsh unreasonable or unjust" - procedural fairness - principles considered. CATCHWORDS : Held, allegations did not constitute misconduct - allegations of poor performance not proven - allegations not properly investigated - applicant denied procedural fairness - dismissal "unjust and unreasonable" - reinstatement impractical - compensation ordered. LEGISLATION CITED : Industrial Relations Act 1996 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70 Franklins v Webb, 72 IR 257 Shop Distributive and Allied Employees' Association v Jewel Food Stores, 22 IR 2 Bigg and Anor v New South Wales Police Service, 80 IR 434 CASES CITED : Byrne and Anor v Australian Airlines (1995) 185 CLR 310 Outboard World v Muir (1993) 51 IR 167 Bankstown City Council v Paris (1999) 93 IR 209 Antanakopoulos v State Bank of New South Wales (1999) 91 IR 385 Helprin v Westfield, 68 IR 25 HEARING DATES: 03/19/2001; 03/20/2001 DATE OF JUDGMENT: 06/15/2001 APPLICANT Mrs L Coe, Solicitor Louise Coe & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr K Godfrey, Agent Jobs Australia Ltd JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 15 June 2001 Matter No IRC00/4857 LETETIA LOUISE HARRIS AND YOUTH ACTION POLICY ASSOCIATION Application by Letetia Louise Harris re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION 1 This is an arbitrated decision upon an application, pursuant to s84 of the Industrial Relations Act 1996 ("the Act"), filed by Ms Letetia Louise Harris ("the applicant"), alleging that she was unfairly dismissed by the Youth Action Policy Association (YAPA) ("the respondent") on 14 September 2000. 2 The applicant's former position was that of Aboriginal Community Development Officer, with a salary of $746.20 per week. She had been employed by the respondent from 24 May 1999 until she was dismissed, and paid two weeks' wages in lieu of notice. 3 The dismissal arose following allegations made against her of "inappropriate behaviour". The allegations were first raised verbally by Mr Alan Kirkland, the Association's Executive Officer, on 25 July 2000. Following a committee meeting of the Association on 28 July, the applicant was placed on "restricted duties" and told "not to contact any person outside of YAPA unless authorised in advance" by Mr Kirkland. She was advised of this on 31 July and it was confirmed in writing on 9 August 2000 (annexure AK11 - Ex'A'). The letter stated that, as this was a management direction, no reasons needed to be given. 4 Despite five attempts to obtain details of the allegations, the applicant was not advised, until 24 August, of the employer's "areas of concern". They were expressed as follows: Inappropriate contact with a young person outside work hours about work-related events and issues; inappropriate disclosure of sensitive personal information concerning a young person; misleading statements and/or disregard for a management direction concerning the abovementioned disclosure; inappropriate advice (eg palm reading) to young people from your position of authority as a YAPA employee; absences from work without notice. 5 At this point it is convenient to note that the first four "areas of concern" arise from, or are in connection with, a YAPA organised event, the Aboriginal Youth Gathering, held at Lake Burrendong, near Wellington, New South Wales, on 6-18 May 2000 (hereinafter I shall refer to the event as "the Gathering"). The applicant had helped organise the Gathering and had attended as an employee of YAPA. 6 In a letter of 30 August, the applicant sought further details of the matters. A letter, from Mr Kirkland, dated 1 September provided further information. 7 A disciplinary meeting was scheduled for 4 September. For the employer, the meeting was attended by: Peter Kembrey (Chairperson YAPA) Leizsha Clissold (Committee member, YAPA) Alan Kirkland (Executive Officer, YAPA) and the applicant was supported by Mr Paul Coe. All those present, except for Ms Leizsha Clissold, gave evidence in the Commission proceedings. 8 This meeting recommended to the Co-ordinating Committee that the applicant's employment be terminated, due to the seriousness of the allegations against her, which it claimed had been proven. She was advised of her dismissal, by letter, dated 14 September 2000. Proceedings 9 The application was first listed for directions and conciliation on 8 November 2000, at which time the applicant was represented by Mrs L Coe (Solicitor) and the respondent was represented by Mr K Godfrey (Agent). 10 Following preliminary submissions, the Commission directed the parties to confer. Upon resumption, the Commission's assistance was sought in conciliation. Private conferences proceeded forthwith. No settlement could be reached and the Commission formed the view, pursuant to s87 of the Act, that the matter should proceed to arbitration. Directions for the filing and service of evidentiary material were issued and four days of hearing were listed for 19 to 22 March 2001. Case for the Applicant 11 Mrs Coe submitted that the applicant's dismissal was "harsh, unreasonable and unjust", as it was based on allegations which were never proven. The employer relied on unsigned complaints and fourth hand information concerning allegations made by an unnamed young person. No attempt was made to contact the complainants and no formal complaint was lodged by anyone, or any organisation. Other persons said to be involved were not contacted. 12 She said Mr Kirkland informed the Disciplinary Committee of the allegations, but did not investigate them. The Committee, in dismissing the applicant, acted solely on Mr Kirkland's information. 13 Mrs Coe said the applicant had consistently sought details of the allegations, and the reasons why she could not speak to anyone. These requests were ignored, or treated peremptorily. 14 As it transpired, the 4 September meeting was regarded by the respondent as the entire investigation - notwithstanding there was no evidence of inappropriate contact with a young person, nor any evidence that the matters were work related. There was ambiguous evidence of a verbal instruction from Mr Kirkland and the only evidence of the applicant's excessive absences, amounted to one day. 15 Mrs Coe submitted that the applicant was given no opportunity to defend herself. She was not provided with sufficient detail to respond to the allegations until three days before the disciplinary meeting. At the meeting, she denied the allegations and no evidence was presented against which the allegations could be tested. Indeed, other matters were relied upon by the respondent, about which the applicant could not defend herself. 16 Mrs Coe claimed there was no formal warning process put into place. In addition, there was no breach of the employment contract, no deliberate or persistent disobedience and no breach of any company policy. The applicant was entitled to procedural fairness; she received none. Mrs Coe speculated that, had the applicant been given an opportunity to address the issues earlier, they may well have been satisfactorily resolved. 17 The applicant seeks the maximum compensation available and not reinstatement, as she has obtained alternative employment - albeit on a lesser salary. Case for the Respondent 18 Mr Godfrey, for the respondent, submitted that the case was fairly simple and straightforward. Complaints had been received concerning the applicant's conduct. The respondent considered the complaints serious enough to be investigated, which it did, and then the respondent took disciplinary action. 19 In defence of the claim of not directly contacting the complainants, Mr Godfrey said the Co-ordinating Committee did not do so for reasons of confidentiality and concern for the young person's welfare. 20 Mr Godfrey submitted that the applicant was made aware of the allegations and advised of a proposed disciplinary meeting. She was advised of the purposes of the meeting and her right to be represented. When the applicant requested further details of the allegations, additional information was provided. She was given every opportunity to respond to each of the allegations, and did so in the meeting. 21 The Disciplinary Committee considered what options were available. As there was a risk to the employer's relationship with other organisations and to its reputation, it had no alternative but to dismiss the applicant. The application for relief from alleged unfair dismissal should be dismissed. 22 In the alternative, Mr Godfrey, submitted, if the Commission finds the dismissal to be unfair, reinstatement was impractical. As the applicant had secured alternative employment three weeks later, she had suffered little, or no loss and compensation should be minimal. 23 Mr Godfrey also foreshadowed an application for costs. 24 In reply, Mrs Coe rejected the proposition that the applicant should be penalised for securing alternative employment soon after dismissal. It was, she said, one of many matters the Commission may take into account in the exercise of it's discretion. Relevant Principles 25 It seems to me that the applicant's dismissal cannot be regarded in stricto sensu, as a summary dismissal for misconduct. It is to be observed that there was no haste in investigating the allegations, she was not suspended during the so-called investigation and at dismissal she was paid two weeks in lieu of notice. The allegations can be properly characterised as performance related issues. This observation leads me to conclude that this was not a dismissal for serious misconduct. It was a dismissal for alleged serious performance issues. When closely tested against the evidence however, the allegations bear little relationship to the serious language in which they were couched. Moreover, the employer, having made the allegations, is still obliged to investigate the allegations, and prove them to the requisite standard. See Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70; Franklins v Webb 72 IR 257; Shop Distributive & Allied Employees' Association v Jewel Food Stores, 22 IR 2 and Bigg and Anor v New South Wales Police Service, 80 IR 434. It follows that a dismissal based on unproven allegations, will almost invariably be found to be unfair. 26 The provisions of the statute - Pt 6, ch 2 of the Act - describe an unfair dismissal by the express words "harsh, unreasonable or unjust". It is now well settled that each of these words has its own discrete meaning and has different implications in an industrial context. The lead authority for this proposition is to be found in Byrne and Anor v Australian Airlines (1995) 185 CLR 310, where the High Court considered the expression "harsh, unreasonable and unjust"; albeit in the context of an Award provision. In their joint judgment, McHugh and Gummow JJ said at p465: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequence for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 27 The principle was further discussed in Outboard World v Muir (1993) 51 IR 167, where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session (Perrignon, Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'. It has been said that those words are a 'tautological trinity' ( Davis v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power. In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made. 28 A more recent authority for the same proposition is to be found in Bankstown City Council v Paris (1999) 93 IR 209: The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made. 29 It is trite to observe that no two cases will ever be exactly alike. Hence the Commission is required to give consideration to each of the words in the expression "harsh, unreasonable and unjust" in the context of the particular facts and circumstances of each case. 30 Here, as will soon become evident, the Commission finds, this dismissal was "unjust and unreasonable" within the meaning of Pt 6 ch 2 of the Act. Procedural Considerations 31 The legislative mandate for considering whether an employee has been denied procedural fairness is plainly expressed in s88 of the Act: 88 In determining the applicant's claim, the Commission may, if appropriate take into account: a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and c) whether the warning of unsatisfactory performance was given before the dismissal, and d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and e) whether or not the applicant requested reinstatement or re-employment with the employer, and f) such other matters as the Commission considers relevant. 32 There is abundant authority for the proposition that unfairness might be visited upon a dismissed employee, both as to substance and procedure. Logically, it follows that a dismissal might be held to be fair, but the employee was denied due and fair process. Alternatively, the process leading to dismissal might be beyond reproach, but the decision to dismiss might be held to be "harsh". 33 Two passages from Antanakopoulos v State Bank of New South Wales (1999) 91 IR 385, are sufficient to make the point: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. … While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust . 34 Having regard for the relevant facts and circumstances of this case, I have found the comments expressed by Marks J in Helprin v Westfield, 68 IR 25, particularly apposite: In these circumstances it is my opinion that fairness dictates that the applicant's employer should have afforded him some regular feedback as to his performance in terms of how that performance was measuring up against what was reasonably expected of him by the employer. This could be accommodated either by means of a formal assessment process or by means of an informal regular review. In order to render the employment situation fair if(sic) would also have been necessary for the applicant's employer to counsel him about any perceived failure to measure up to any performance criteria, to warn him if his employment prospects were in jeopardy and to give him a reasonable time in which to take such steps as were open to him to improve his performance. As I have said above, all of these conclusions are arrived at by reference to the particular circumstances of this particular applicant as an employee of the first respondent . CONSIDERATION The Allegations 35 A convenient way of dealing with this matter is to examine each of the allegations made against the applicant in the context of the evidence advanced in the proceedings. I propose to adopt this course and consider the allegations seriatim: 36 1) Inappropriate contact with a young person outside work hours about work related events and issues Mr Kirkland received an unsigned letter of complaint about the applicant from a Kacy Toomey. It was passed to him from Ms Marcia Ella-Duncan, the Chair of the Steering Committee which had organised the Gathering. The letter is reproduced from Ex'A' annexure AK5: Dear Marcia SUBJECT Complaint against Letetia Harris This letter is in relation to events post-Aboriginal Youth Gathering 2000; the matter is in regards to the behaviour of Letetia Harris. I had been invited to Sydney by Letetia to come and stay with her, upon arriving; there was no room for me to stay with Letetia at the Bat and Ball Hotel where she resides. Letetia said that we would stay at a friend's house but instead we had to sit up all night on the steps of the pub. This was because the promised accommodation was not available. Letetia Harris informed me of the following: That she had heard rumour about me being in a lesbian relationship. Then proceeded to tell me about her bi-sexual relationship and describing how she slept with these individuals. This lead(sic) onto Letetia informing me that she had heard this rumour and took it upon herself to tell a Youth worker from my community of the rumours. Coupled with Letetia informing the(sic) me of other community workers sexual preference. Letetia indicated in the very beginning that the rumour was started by another young women(sic), which I now know was a lie. I believe that this information was presented in a way to make me feel angry and upset. Letetia was also drunk at the time that she was informing me of this information in which I now know to be lies. In which Letetia later excused her behaviour by saying she would've handled it better if she had been sober. These events has(sic) disturbed me greatly, I have losted(sic) my appetite and am extremely stressed by these events. In view of my circumstances and belief that Youth Workers are for young people and our rights, I believe this not to be the behaviour of Letetia Harris and wish to make this my formal complaint. Thank you. (unsigned) KACY TOOMEY Mr Kirkland expressed the inappropriate contact as " a conversation on the steps of a pub in the middle of the night where she confronted Kacy with rumours of being in a lesbian relationship " (T.p55). In evidence Mr Kirkland accepted that Kacy was over sixteen and he did not control the social life of his employees. The applicant gave evidence that the employer denied her any opportunity to discuss the matter with Ms Toomey in an effort to resolve it. She said Ms Toomey was a friend and distant relative and the issue could have been resolved. The employer accepted Ms Toomey's word without consulting the applicant, although at the time, the applicant was on sick leave. Mr Kirkland confirmed that between receiving the complaint on 7 July and the disciplinary meeting on 4 September, he had not spoken to Ms Toomey. She subsequently confirmed to him the complaints against the applicant. Mr Kirkland said the matter was work related because it involved a rumour emanating from the Gathering. This rumour concerned Ms Toomey and a female consultant engaged by YAPA. However, it emerged that the rumours may have started when the two women were observed, walking arm in arm, in the Reconciliation Walk over Sydney Harbour Bridge. He confirmed that after taking advice from the Child Protection Agency and the Ombudsman, there was no need to investigate the rumours. In reference to this matter, Mr Kembrey described the issues as " very cloudy " T.p77. 37 Finding Ms Toomey's complaint was that the applicant was drunk and discussing her sexuality with her. This occurred outside of work time and nowhere near the workplace. The applicant knew Ms Toomey well - they were friends and distant relatives. Viewed in this context, I am less than convinced that the substance of this allegation was properly a matter of concern for the employer. It most certainly could not be regarded as a sound basis for disciplining an employee, let alone dismissing her from employment. In any event, Ms Toomey's complaint was undated and unsigned. She did not give evidence in the proceedings. Moreover, Mr Kirkland did not, at any time prior to the applicant's dismissal, speak to Mr Toomey about the allegations. In her letter, she claims to have been " greatly disturbed " and " extremely stressed ". However, no medical or counselling evidence was provided to substantiate these claims. Accordingly, I am not satisfied, on the balance of probabilities, that this allegation has been made out. 38 2) Inappropriate disclosure of sensitive personal information concerning a young person Mr Kirkland gave evidence that the applicant raised with him on 28 June 2000, the rumour that Kacy Toomey and Monique Bhatta were seen kissing at the Gathering. Ms Bhatta was a consultant employed by Arrilla Aboriginal Training and Development ("Arrilla"), another organisation involved in the Gathering. The applicant had told two other YAPA employees, Myriam and Lisa, about the rumours. Mr Kirkland learnt from the Director of Arrilla, Ms Shelley Reys, that it was the applicant who was spreading these rumours. Ms Reys said she was considering suing YAPA over the matter. The applicant said she " never ever spread rumours " about Kacy Toomey. She admitted discussing the matter with another youth worker, Cheryl, in Wellington, New South Wales. She said she had done so in absolute confidence so that Cheryl could quash any rumours if she heard of them. An employee of Arrilla, Jennifer Stanford, had told Cleonie Quayle, an employee of YAPA, while the applicant was present. The applicant believed it was Ms Stanford who started the whole thing because Ms Toomey had stayed with her in Sydney. Mr Kirkland made no contact with Ms Stanford, despite the applicant telling him she had been aware of the rumour and discussed it with others (Cleonie Quayle). Mr Kirkland made no attempt to seek legal advice in respect to the threats of defamation made by Ms Reys. 39 Finding In my view, the Committee and Mr Kirkland panicked when Ms Reys made the threat of defamation. Mr Kirkland even drafted an apology which was to be widely publicised (it never was). To resolve this threat, the applicant's dismissal was a quick, convenient and public expression of its decisiveness in addressing the problem. It was, however, neither fair or reasonable to do so. It was an appalling over-reaction. Most workplaces are a hotbed of gossip and rumour, particularly where sexual connotations are involved. However, it does not follow that gossip-mongering and rumour spreading are to be condoned. The person who was the subject of the rumour was neither an employee of the respondent, nor was she under the age of consent. Whether, or not, there was any substance to the rumours is utterly beside the point. The applicant was dismissed, inter alia , for starting and propagating the rumours. The evidence reveals that it was the applicant herself who raised the matter with her employer. There was no evidence that the rumours emanated from the Youth Gathering. Mr Kirkland gave evidence that the rumours may have arisen when the two women were observed walking arm in arm on the Reconciliation Walk, over Sydney Harbour Bridge. Based on this evidence, I am not satisfied that the applicant was the source of the rumours, or that she was actively promoting and spreading such rumours. This allegation is not made out. 40 3) Misleading statement and/or disregard for a management direction concerning the above disclosure It was alleged that the applicant had discussed the rumours with two other YAPA employees, Cheryl and Cleonie Quayle. She said she was too stressed to remember speaking to Cheryl and was unable to explain why she discussed it with Cleonie. Mr Kirkland said that the applicant disobeyed a direction not to speak to other people, and misled him by saying she had not done so. He said this direction was designed to protect the applicant as much as the organisation. Mr Kirkland did not intend the direction to prevent the applicant from seeking advice. She had never asked him for approval to contact any person. 41 Finding The words of the direction are unequivocal. It was that she talk to no-one - without Mr Kirkland's expressed permission. While Mr Kirkland might well have meant something quite different, he did not tell her so, nor could it be inferred by the unequivocal language used. While I am satisfied that the applicant may have discussed the matter with a number of other persons, and may have done so in breach of the employer's direction, I am of the view that the employer's direction was so oppressive as to not be a valid, or reasonable exercise, of management prerogative. Even if this allegation had been of merit, and notwithstanding my observations, I doubt it would be of sufficient gravity to justify dismissal. 42 4) Inappropriate advice (eg palm reading) to young people from your position of authority as a YAPA employee. Mr Kirkland was informed by Ms Marcia Ella-Duncan of feedback received from a number of young aboriginal people who had attended the Gathering. She said she received complaints that the applicant had caused distress to some young women by engaging in "spiritual readings" or palm readings. On 25 July, Ms Ella-Duncan reported that one young woman was experiencing personal difficulties, requiring counselling as a consequence of the applicant reading her palm at the Youth Gathering. Ms Ella-Duncan wanted to know what support YAPA might be able to provide the aggrieved young person. The applicant gave evidence that the Youth Gathering had taken place on Widridjuri land and, as a Widridjuri aboriginal herself, she had sought permission from a tribal elder to speak to the young attendees on aboriginal cultural and spiritual issues. In oral evidence, she acknowledged she was under the direction of her employer and had not sought permission to engage in such activities. She said she did not engage in palm reading, nor did she give any advice to any young person. She acknowledged that on one occasion she was directed by Mr Kirkland to leave the room of a young person who was distressed and crying. The applicant said the young person wanted her to stay. She did so, until the young person had calmed down. 43 Finding Mr Kirkland had acted on second hand information received from Ms Ella-Duncan. For reasons of confidentiality he sought no details of the complainant, the nature of the complaint or the extent of counselling. He did not know how Ms Ella-Duncan acquired the information, but assumed a counsellor had reported it to her. Of all the allegations, this one appears to me, to be of the least merit and substance. The respondent's own evidence disclosed that there was no palm reading, but rather it was described as "holding of hands". Mr Kirkland conceded as much in cross examination (T.p50). Ms Ella-Duncan described it as palm reading and Ms Tahija, a member of the disciplinary meeting, even went so far as describing it as " self assessed fortune telling ". Based on this belief, Ms Tahija accepted the applicant's guilt. Even more troubling for the Commission was the paucity of evidence concerning the young person said to have been distressed by the applicant's behaviour. There was no evidence of the young person's specific complaint - indeed her identity was unknown. No one knew what she was being counselled for, or the extent and need for on-going counselling. Significantly, no one bothered to inquire. In my opinion, it is simply not good enough to make serious allegations and make no authoritative investigation. To claim that no thorough investigation was made because of reasons of confidentiality is unsustainable and risks the outcome of a less than thorough investigation being declared nugatory. I have no hesitation in doing so. The Commission accepts that allegations involving youth workers, and improper conduct at work, will require sensitive and delicate handling. It will necessitate thoughtful and thorough investigation. However, just because a young person makes an allegation doesn't mean it should be more believable than an allegation made by anyone else. Moreover, given the emotional immaturity and life inexperience of a sixteen year old, it is likely that closer attention to, and scrutiny of the allegation will be necessary. While the applicant was somewhat naive in respect to conducting certain inappropriate spiritual interaction at the Youth Gathering and possibly went beyond her obligations as an employee, I cannot attribute any sinister or rebellious motivation in her behaviour. What she did went no way near striking at the heart of, or fidelity to, the employment relationship. In saying this, a balance should be made with the gravity of the behaviour and its consequences, ie dismissal. I do not believe that this behaviour, of itself, constituted reasonable grounds for dismissal. A warning or counselling would have been sufficient. I have also taken into account the applicant's youth and inexperience. In this regard, I rely on Shop Distributive & Allied Employees' Association v Jewel Food Stores , where the former Industrial Commission in Court Session said: We consider in cases where dishonesty is alleged as the reason for summary dismissal, management should only summarily dismiss if it is fully satisfied after careful investigation that the accusation has been made out. In coming to such a conclusion, a prudent and fair employer will take into account, where relevant, as part of the circumstances of the case, an employee's youth or inexperience, the nature and effect of any interrogation and any admissions or denials made . We consider that this same standard should be applied by industrial tribunals when considering reinstatement (my emphasis). The Commission makes this additional observation. Marcia Ella-Duncan demanded to know if the YAPA Committee would support the counselling of the young person. Taken together with Ms Reys' threat of defamation, it seems to me that both Ms Ella-Duncan and Ms Reys had to be appeased. Dismissal of the applicant would do the trick - or so it was believed. 44 5) Absences from work without notice Mr Kirkland gave evidence that there were a number of occasions where the applicant failed to attend work without notice. On other occasions, she left the office to attend meetings, and did not return for many hours. He said these absences were not the principle grounds for dismissal - but formed part of the reasons for dismissal. He agreed there was only one absence after the warning of 25 July (T.p64). 45 Finding The applicant was not given the times and dates of her alleged absences. Thus, she could not give any explanation for them (except for one where she overslept after taking a sleeping tablet). Indeed, the specific details were never put in evidence during the proceedings. In the absence of such specifics, the applicant was not given a fair and reasonable opportunity to respond to the details of this allegation. The allegation is, therefore, not made out. The Process 46 The Commission identifies a host of defects in the procedure leading up to, and including, the dismissal. They include, inter alia, and not in any order of priority: 1) At the time, the organisation had no policy, or procedure to deal with complaints from young people against YAPA employees. Mr Kirkland gave evidence to this effect (T.p53) and said that the organisation was intending to address this deficiency by developing and implementing such a policy. 2) The time between being placed on restrictive duties (31 July) and the disciplinary meeting was far too long; particularly as little seemed to have been occurring in respect to investigating the allegations. Mr Kembrey said the delay was due to Mr Kirkland gathering further information and it was difficult to get the Committee all together at one time. I am less than impressed with these excuses. Firstly, there was not much being investigated over these five weeks. Secondly, the applicant was on restricted duties and threatened with further disciplinary action. It was unreasonable and disingenuous for the Committee not to give some priority to resolving the matter. 3) The letter placing the applicant on restricted duties and directing her not to speak to anyone was harsh and oppressive. To be told that no reasons were necessary, as it was a management direction, was unfair and unreasonable. It effectively prevented her from trying to resolve the complaint from Ms Toomey. 4) The applicant made numerous unanswered requests for details of the allegations (five times on 1, 7, 8, 14 and 23 August). Limited details were not provided until 1 September and only after the applicant agreed to keep the details confidential. 5) There was no thorough, let alone conclusive, investigation of the allegations against the applicant. For example: a) Ms Toomey's complaint was unsigned and undated. No one contacted her to confirm her allegations until after the applicant was dismissed. b) The young person said to be distressed by the applicant's conduct at the Youth Gathering was unknown, her allegations were not specific and her counselling and follow up were not investigated. c) The employer did not investigate Ms Jennifer Stanford's role in the rumours, even though the applicant had informed Mr Kirkland that Ms Stanford was involved. 6) Mr Kirkland admitted that the disciplinary procedure in the applicant's contract was not followed (T.p29). He reasoned that as the contract had expired, he was not obliged to. This is a ridiculous explanation. 7) There was no evidence of any damage done, or likely to be done to the organisation arising from the applicant's conduct. 8) Mr Kirkland says he was influenced by the cabcharge and petty cash issues (T.p59). There was no evidence of any fraud, or financial gain to the applicant. Moreover, these issues were not even raised in the disciplinary meeting. 9) No details of the applicant's alleged absences were ever provided to her, or during the proceedings. 10) Mr Kirkland raised the issue of the applicant's participation in aboriginal Olympic protests, but this matter was never raised with her at the disciplinary meeting. 11) The applicant was never provided with the complaints from other organisations or individuals. 12) Mr Kirkland's letter to the applicant directed her to attend a disciplinary meeting about "areas of concern". He said that to his mind the disciplinary meeting was the investigation. This was an extraordinary admission. 13) The applicant was led to believe that the matters had been resolved in the 4 September meeting. She was genuinely shocked to learn of her dismissal. 47 The Commission has found the most disturbing aspect of this case to be the failure of the employer to properly investigate the allegations against the applicant and its failure to afford her procedural fairness. 48 I hasten to add my conviction that Mr Kirkland was open and honest with his evidence. He was relatively new to the Executive Officer's position and he presented as a sincere and sympathetic employer. In my judgement, he believed he was " doing the right thing " with the complaints, the investigation, the disciplinary meeting and the dismissal. However, I find the employer overreacted to a set of circumstances that were not properly investigated. As already observed, the Commission believes that there are just too many flaws in the process, which lead inevitably to a conclusion that the dismissal was unfair. OTHER MATTERS Mr Kirkland's Views 49 Mr Kirkland gave evidence that the applicant had "shown reckless disregard for the wellbeing of at least two young people". He was concerned about the damage which might be done to the organisation. As I noted earlier, there was no evidence of any damage done, or likely to be done. 50 He said the applicant had shown no contrition, absented herself while subject to disciplinary proceedings and informed him she would not be directed by management concerning aboriginal Olympic protests. The Committee was influenced by the applicant lying to Mr Kirkland, concerning cabcharge dockets and petty cash. He felt that all trust in her was destroyed. Her continued employment was untenable and the funding of the project under which she was employed, was put in jeopardy. As to the cabcharges, the applicant had sought the cabcharges from the administration manager and believed they would be approved by Mr Kirkland. It involved taking a group of young aboriginal people to Darling Harbour. There was no suggestion of any personal gain to the applicant. Other Committee Members 51 I accept and appreciate that the Committee members are not full time and have other jobs and commitments. By relying almost exclusively on the information and advice from the Executive Officer, Mr Kirkland, the Committee was little more than a rubber stamp for Mr Kirkland's decision. The Commission did not find Ms Tahija's evidence particularly helpful. Ms Tahija seems to have arrived at all her conclusions on what she was told and even placed her own interpretation on what she was told. For example, she described the spiritual experience as " self confessed fortune telling ". On the respondent's own evidence, it was never described as fortune telling. However, I do not attribute any malice or vindictiveness from Ms Tahija towards the applicant. CONCLUSIONS 52 1) The Commission finds that the dismissal of the applicant on 14 September 2000 was "unjust and unreasonable" within the meaning of Pt 6 ch 2 of the Act. 2) Reinstatement would be impractical and is not sought by the applicant. 3) Compensatory relief should be ordered. 4) In determining the amount of compensation to be ordered, the Commission has taken into account, inter alia : a. The applicant's age b. The alternative employment secured three weeks after dismissal. c. The lesser salary paid in the alternative employment. d. The contractual terms of the former employment relationship, based on securing ongoing Government funding. ORDERS 53 Pursuant to s89(5) of the Industrial Relations Act 1996, the Commission orders that: 1) The respondent, Youth Action Policy Association, shall pay to the applicant, Letetia Harris, an amount equivalent to ten (10) weeks' salary, calculated at $746.20 per week. 2) The amount so ordered shall be payable within twenty-one (21) days of today. 3) These proceedings are now concluded. Peter Sams Deputy President 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.