Anley and Department of Education and Training - Western Sydney Institute of TAFE [2010] NSWIRComm 140

Industrial Relations Commission of New South Wales

CITATION: Anley and Department of Education and Training - Western Sydney Institute of TAFE [2010] NSWIRComm 140

APPLICANT Bronwyn Helen Anley PARTIES: RESPONDENT Department of Education and Training - Western Sydney Institute of TAFE

FILE NUMBER(S): 2132 of 2008

CORAM: Sams DP

TERMINATION OF EMPLOYMENT - applicant directed to resign - constructive dismissal - no dispute as to jurisdiction - unfair dismissal application - dismissal of TAFE Counsellor - applicant highly qualified and experienced psychologist - significant absences - referral to HealthQuest - allegations of unsatisfactory performance - inappropriate behaviour - poor communication skills - failure to satisfy annual reviews in 2005, 2006 and 2007 - appeals against failures rejected - applicant's medical condition - Type 1 diabetes - difficulty with applicant's interpersonal relationships with staff and supervisors - discrimination claim - request for a transfer - request for new supervisor - complaints against supervisors - no complaints upheld - applicant placed on formal Performance Improvement Program (PIP) - failure to satisfy PIP - independent review - 'reasonable adjustment' policy - applicant given various reasonable adjustments - not possible to transfer employee with unresolved performance issues to another College - whether respondent failed to take action to address interpersonal difficulties - Australian Psychological Society (APS) Guidelines for supervision - whether APS Guidelines apply - whether respondent failed to take proper account of medical condition - whether respondent failed to provide reasonable adjustment by not transferring applicant to another College with a different supervisor - applicant given opportunity to put her position and mitigating factors - applicant unlikely to improve performance - applicant directed to resign - procedural fairness - whether dismissal 'harsh, unreasonable or unjust' - practicality of re-employment - principles considered. CATCHWORDS: UNFAIR DISMISSAL - applicant an unhelpful witness - applicant's toxic relationship with supervisor - unprofessional and unacceptable behaviour - supervisor was not biased, unfair or prejudiced against applicant - unwillingness of applicant to act with courtesy, dignity and respect towards supervisors and colleagues - sound basis for dismissal - applicant considered supervision unnecessary - numerous examples of applicant having relationship difficulties with supervisors and colleagues - transfer to another College inappropriate - supervision appropriate - no evidence of supervisor reciprocating the applicant's disdain of him - annual review processes fair and reasonable - independent reviews - PIP fair and reasonable - no issues of procedural unfairness - APS Guidelines on supervision not relevant - psychologist's supervision not of ordinary character - no breach of professional guidelines - respondent aware of applicant's medical condition - 'reasonable adjustments' made - applicant only wanted transfer and new supervisor - doubt as to medical reasons for her poor performance - medical evidence did not conclude transfer necessary or medical condition unstable - HealthQuest review not in doubt - applicant could have requested HealthQuest review - applicant's duties and requests to her not more onerous than other Counsellors - willingness to accept Counsellor-in-Charge allowance - management sought to assist and support applicant - three unsatisfactory annual reviews - unsatisfactory PIP - independent reviews - applicant given every opportunity to defend her position - numerous submissions in mitigation - direction to resign the only option in all the circumstances - dismissal not 'harsh, unreasonable or unjust' - application dismissed - further hearing as to costs.