Industrial Relations Commission of New South Wales CITATION: Charity v Catholic Education Office [2005] NSWIRComm 1047 APPLICANT Faith Hope Charity PARTIES: RESPONDENT Catholic Education Office FILE NUMBER(S): 6224 of 2004 CORAM: McLeay C CATCHWORDS: Termination of employment - unfair dismissal - teacher - casual - whether dismissed by employer - reasonable expectation of continuing employment - date of dismissal unclear - whether application made out of time - application accepted - incident in staff room - verbal abuse of colleague - agreed strategies not followed - occupational health and safety - seriousness of incident ignored - professional reputation - application dismissed Industrial Relations Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 2000 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 CASES CITED: McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 HEARING DATES: 02/17/2005 DATE OF JUDGMENT: 04/12/2005 APPLICANT Faith Hope Charity In person LEGAL REPRESENTATIVES: RESPONDENT Mr E Leahy Senior Employment Relations Adviser Catholic Commission for Employment Relations DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: McLEAY C 12 April 2005 Matter No IRC 6224 of 2004 Faith Hope Charity and Catholic Education Office Application by Faith Hope Charity re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1047 Background 1 This is an application by Faith Hope Charity for unfair dismissal against the Catholic Education Office, Parramatta ("the CEO"). Ms Charity was employed as a teacher at Patrician Brothers College, Blacktown ("the College"). 2 Ms Charity was employed as a temporary teacher in Terms 1 and 2, 2003 and as a casual teacher with the College until the termination of her employment. She had previously been employed at the College on a full time basis from 3 August 1989 until her resignation in November 1999. 3 During Term 2 of 2004, Ms Charity agreed that she had been employed on a casual basis, attending most days in what she referred to as a full time pattern of employment. An incident occurred on the Friday of the second last week of term, whereby she was asked not to come in on the following Monday and Tuesday. She understood that the incident would be investigated and she would receive a call on the Tuesday evening as to her teaching classes for the rest of the week. That call did not eventuate. She has not been called for any further teaching since that time. 4 Ms Charity did not believe she was dismissed at the end of Term 2. Rather, she continued to seek a reconciliation between herself and the relevant people at the College, in order to resume her casual work there. In February 2005 she was informed by an officer of the CEO that she would be offered no more work. Out of time application 5 In her application, Ms Charity gave 25 June 2004 as the date of threatened dismissal. On that basis her application made on 21 October would be out of time. However, given that no dismissal was in place at the time - and Ms Charity expected reconciliation of the parties and further work to be forthcoming - she argued that the application was made within time. If her application was out of time, she submitted that there were a number of reasons why the Commission should exercise its discretion to accept her application: (a) The two weeks that followed the end of term were school holidays, when no-one was available for her to discuss her ongoing employment status. The school holiday period also meant she was unaware that there was any difficulty regarding continuing employment. (b) She made numerous attempts to contact relevant people by telephone and in writing, all of which attempts were frustrated by the respondent. (c) She was left without income and with a need to depend on other family members for financial support. (d) She had done nothing to deserve dismissal. She acknowledged a disagreement with another teacher as the incident which precipitated all that followed, but described that incident as "a storm in a teacup". 6 The CEO, on the other hand, submitted that Ms Charity had been effectively dismissed when told by the Principal, Br Patrick Lovegrove, during a telephone conversation on 29 June, that she was not to come in for the last week of Term 2, 2004. It is noted that Ms Charity denied that any conversation took place between herself and Br Lovegrove on or about 29 June 2004. On the basis of the conversation described in evidence by Br Lovegrove, Mr Leahy for the respondent said that the applicant was dismissed from her casual position, there being no agreement in place about any work in the following term. It follows that the application was made 114 days after the dismissal, or 93 days out of time. 7 Mr Leahy relied on s 85(3) of the Industrial Relations Act 1996 ("the Act"), the principles as outlined in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and, in particular, McClymont and Thomson Financial Pty Ltd [2002] NSWIRComm 283 where Deputy President Sams commented, in regard to a 56 day delay in that case: On any view of it, this was a significant delay... The length of the delay adds height to the hurdle almost in an exponential relationship. That is, the further that the delay extends, the more difficult it will be to obtain the discretion to extend time. 8 The hardship to the respondent resulting from accepting the claim out of time was also outlined in submissions and, in part, was the subject of evidence. Mr Leahy referred to His Honour's further observations in McClymont as to the relevance of the applicant's claim about hardship. 9 In addition, Ms Charity was represented by her union, the Independent Education Union, at least for some time immediately following her dismissal. The Union provided correspondence to the CEO up until September 2004, requesting certain payments be made to Ms Charity. The Union did not raise the issue of an unfair dismissal. She also had the benefit of advice from other family and friends including a lawyer, and should have made her claim within the time limit prescribed by the Act, submitted Mr Leahy. 10 I have given consideration to all of the issues outlined above. I am mindful also of the evidence of Br Lovegrove that, when he had determined that Ms Charity would not be offered any further work at the College, he did not inform Ms Charity of his decision. She gave evidence that she had still been hopeful of continuing her casual work at the College at this time. However, her correspondence to the then Acting Area Administrator on 8 September included a request to be reinstated, a request which, of itself, usually carries the presumption of prior termination of employment. It was in the following February that Ms Charity was finally informed that she was no longer an employee of the CEO. 11 The argument that a casual employee's employment is terminated at the end of each engagement does not arise in this case where the applicant held a reasonable expectation, in my view, that her employment would be ongoing. Mr O'Connell, the Assistant Principal of the College, confirmed the reasonableness of that expectation by giving evidence that she would have been offered further casual work at the College in Terms 3 and 4, but for the incident in June. Mr Peter White, Area Administrator of the CEO gave evidence that a casual teacher would be informed in writing if she was to be dismissed. In other words, while it may not otherwise be necessary, it was reasonable that Ms Charity would have expected written notice of dismissal from the CEO. However, I am satisfied, on the uncontested evidence of Ms Charity, that she was informed verbally that she was no longer an employee of the CEO. 12 While she had not received written notice in accordance with the CEO's usual practice, I am satisfied that Ms Charity had not resigned her position. Further, the rights of long-term casual employees are well established. In all, I find that there was a dismissal at the initiative of the employer. 13 In doing so, I am mindful that the employer was the CEO, not the College, and that while she was not offered work at the College, neither the applicant nor the respondent sought to maintain the employment relationship via work at any school other than the College where the incident occurred. Rather, Ms Charity continued to seek to "return to work" "at the College" after mediation between the relevant parties, or the payment of "monies owed". 14 There are two options available, depending on what date is considered to be the date of dismissal. Either the application was in time, in which case it would now proceed, or it was out of time. If the application was out of time, I find that there is sufficient reason to accept it, having regard to all of the facts and submissions raised in the proceedings. It follows that it is not necessary for me to determine the actual date of dismissal and whether or not the applicant, subsequently, was out of time, Merits 15 The incident which precipitated the termination of the applicant's employment at the College was one described by Ms Charity as "a storm in a teacup". On the day, she said she referred to it as "a tiff". Indeed, it was a discussion in the staff room between herself and another teacher, Ms Scalone, which was sufficient to cause Ms Scalone to break down and need comforting by a number of fellow teachers, and to cause another teacher, Mr Domars, to move students some 15 to 20 meters away from the door of the staff room so they could not overhear Ms Charity talking to Ms Scalone. Mr Domars and another teacher, Mr Cullen, both witnesses to the incident, supported Ms Scalone's description of the incident. They both gave evidence that Ms Charity spoke in a raised voice while Ms Scalone remained speaking in a quiet voice. Ms Charity described the conversation as "heated" but claimed the heat was on Ms Scalone's side. Specifically, Ms Charity said that Ms Scalone "certainly did" raise her voice, in direct contradiction of the evidence of Ms Scalone and the two witnesses to the event. 16 In fact, Mr Domars described the incident as "the worst case of verbal abuse in a professional setting I have ever witnessed". He was impressed by Ms Scalone's restraint in the circumstances. Mr Cullen was embarrassed by Ms Charity's behaviour, especially as it was a personal attack on Ms Scalone and her husband, in the presence of other staff members and students. Ms Scalone said she was severely shaken by Ms Charity's attack. Br Lovegrove observed a number of colleagues attempting to comfort Ms Scalone after the incident. 17 Ms Charity said that the incident was not as serious as was made out. As evidence, she cited the fact that both she and Ms Scalone taught their normally scheduled classes in the period immediately following lunch on the day in question. However, I am satisfied on the evidence of the respondent's witnesses that the version of the incident described by Ms Scalone was accurate and the version described by Ms Charity was not. In fact, I am satisfied that Ms Charity's behaviour was appropriately described by Mr Domers as verbal abuse. 18 In particular, Ms Charity described as "crucial" her contention that Ms Scalone physically stopped her from picking up a tennis racquet from another teacher's desk, prior to the verbal interchange. Ms Scalone denied that she touched the racquet or physically hindered Ms Charity in any way. Consistent with my acceptance of Ms Scalone's testimony regarding the conversation between herself and Ms Charity, supported as it was by other witnesses, I accept her evidence in this regard also. In any event, I do not accept that the action, if it did occur, was crucial, in that it would not justify Ms Charity's subsequent behaviour. 19 In a meeting that took place later the same day, it was agreed between Mr Stewart and Ms Charity that Mr Stewart would try to arrange mediation between Ms Charity and Ms Scalone on the following Wednesday, and that Ms Charity would not attend the College until then. Mr Stewart was to telephone Ms Charity on the Tuesday evening in regard to mediation and her work for the rest of the week. However, Ms Charity saw Ms Scalone on the same day as the incident occurred, offering her an apology of sorts, which inflamed the situation. She also telephoned Mr Stewart stating she did not accept what was agreed, and asked to speak with the Principal, Br Lovegrove. For these reasons, Mr Stewart felt that it was inappropriate for him to continue his role in trying to resolve the issue. I accept that he made an appropriate decision not to call Ms Charity on the Tuesday as previously arranged. 20 In all of the correspondence to the College and the CEO by or on behalf of Ms Charity, a request for further casual teaching was not clearly made until September when she wrote to the Acting Area Administrator with a request to be reinstated. At no time did she seek any work at any other school operated by the CEO. She refused to meet with CEO personnel in September/October or prior to the hearing, although she wrote to the CEO's Executive Director of Schools in November that: I am happy and willing to discuss the case with you at anytime [ sic ] between now and the hearing. 21 The CEO's response dated 3 December included the following: While I understand that not all the parties have since been prepared to participate in a mediation, I would like to confirm my sincere desire for resolution of the matters which you have raised. As such, I would invite you to attend a meeting on a without prejudice basis with Peter White and a representative of the Employment Relations Unit as soon as possible. This meeting would discuss the outstanding issues, in an attempt to move toward a mutually acceptable outcome. Given the Commission's timeline, it would be appropriate to schedule a meeting for the week commencing 6 December 2004. Please contact Peter White's office on [number provided] to arrange a convenient date to meet. 22 Ms Charity's ongoing proclamations about her own efforts to reconcile the matter are at odds with her lack of positive response to the CEO's offers. 23 In my view, there were two critical aspects to the events of June 2004. The first was Ms Charity's behaviour during the incident in the staff room with Ms Scalone. The second, equally important, was the total lack of recognition and consequent remorse, then or at any time after, of the intensity of her attack or its impact, not only on Ms Scalone, but on other members of the College community also. The effect on Ms Scalone, and the difficulty in arranging mediation to attempt to resolve the issue, was exacerbated by Ms Charity's attitude expressed to Ms Scalone on the afternoon of the incident, and reiterated during the hearing by the constant use of the expression "a storm in a teacup". It was a storm created by Ms Charity and fanned by her refusal to acknowledge the effect of her behaviour. 24 The College subsequently became aware of the ongoing effect of the incident on Ms Scalone. It was reasonable that they considered this employee and others and their responsibilities under the Occupational Health and Safety Act 2000, in determining whether or not Ms Charity would be offered further casual teaching at the College. 25 Br Lovegrove, in his written evidence, said: On Friday, 6th August, the Acting Area Administrator, Patricia Crennan, happened to be at our school on another matter, and informed me that Ms Charity had appealed to CEO Parramatta to reimburse her for the week lost at the end of Term 2. Ms Crennan pointed out that even though it was not a block casual period, Ms Charity was claiming that she could reasonably have expected to have worked under normal situations. Even though the amount of $1500 compensation was paid it seemed to me strange given that her very public actions, witnessed by a number of staff members, and her failure to follow reasonable and prudent directives by Mr Stewart, had clearly compromised her continuing role as casual teacher at the College. My initial response was to provide distance to allow healing before mediation could commence. It became increasingly apparent that this outburst was highly unprofessional and a vindictive attack on a colleague. The strength and feeling in a staff that is impartial has surprised me and further convinced me that a return to our College for Ms Charity in any capacity would be seen as an OH&S issue for both Mrs Scalone and many of the staff. Ms Charity has claimed that I admitted to acting in haste and with one sided information. I categorically deny having ever said anything of the kind. I have thought carefully about the actions, rights and responsibilities of all persons involved. I have publicly praised Ms Charity on several occasions for her expertise. I have also seen first hand the highly developed leadership skills possessed by Mr Phil Stewart and I believe he acted with maturity and good judgement in dealing with this unfortunate incident and its aftermath. 26 I accept Br Lovegrove's evidence as a true representation of his actions and his reasons for that action. Nothing raised in evidence gave me reason to doubt it, even though some of it was denied by Ms Charity. On the other hand, Ms Charity gave evidence that was inconsistent and, at times, untrue. An example of untruth was the description of Ms Scalone raising her voice. An example of inconsistency was in stating that she worked every day of Term 2 when, during cross-examination, and on being confronted with evidence to the contrary, she conceded that she had not worked on several days during Term 2. Reputation 27 I am reluctant to make any comment about Ms Charity's professional reputation in the context that Ms Charity has foreshadowed a potential future claim against the College for damages in regard to her professional reputation. However, I feel compelled to make some limited comments that arise directly from the evidence before me, and which need to be considered in light of my obligation to determine whether any aspect of the dismissal was harsh, unreasonable or unjust. 28 Throughout these proceedings, Ms Charity referred to the need for the College to compensate her for damage to her reputation, or to take actions to restore her damaged reputation. It would appear from the evidence that no damage to her professional reputation has been done by the College or its officers. Indeed, Mr Stewart, the Acting Assistant Principal at the time of the incident, spoke highly of Ms Charity's skills as a classroom teacher and of her contribution to the College generally. The Principal has provided her with a written reference. It is my concern that Ms Charity damaged her own reputation by her outburst in the staff room in June 2004, and her subsequent lack of remorse. 29 Unfortunately, in attempting to defend herself, Ms Charity made disparaging remarks to Mr Stewart about other teachers who had witnessed the incident. Such comments, while not affecting her own reputation at large, may have influenced those responsible for the decision making process. If so, Ms Charity can only blame herself for any detriment she has suffered as a result. Costs 30 At the conclusion of the hearing of this matter Mr Leahy for the respondent raised the question of costs. In subsequent correspondence to the Commission, he confirmed that the respondent is not seeking a costs order. Conclusion 31 Ms Charity was dismissed from her employment as a casual teacher with the CEO, by way of the lack of offer of work to her after a long term period of regular and systematic employment as a casual teacher. The date of the dismissal does not need to be determined. If the application was made late, there is sufficient reason to accept it out of time, and I do so, for reasons already outlined in this decision. 32 Ms Charity's behaviour toward her colleague at work was indefensible, and her subsequent attempts to resolve the issue have been made in a context of her refusal to acknowledge her own behaviour during the incident in the staff room and the total lack of recognition, then or at any time after, of the intensity of her attack or its impact on members of the College community. 33 Because of Ms Charity's behaviour and the effect it had on the College generally, it was reasonable that she was not offered any more work at the College where the incident occurred. She made no attempt to seek work at any other school operated by the CEO. 34 On the evidence before me, the College has not acted in a way that was intended to, or could reasonably have been found to damage Ms Charity's reputation within or outside the College community. 35 On these bases and for all the reasons set out above, I find the dismissal of Ms Charity was not harsh, unreasonable or unjust. 36 I make no order as to costs. 37 The application is dismissed. 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.