Industrial Relations Commission of New South Wales CITATION: Walters & Tamworth Aboriginal Respite Care Committee Inc [2006] NSWIRComm 1004 APPLICANT Christine Margaret Walters PARTIES: RESPONDENT Tamworth Aboriginal Respite Care Committee Inc FILE NUMBER(S): 1214 of 2005 CORAM: Macdonald C CATCHWORDS: Unfair dismissal - Tamworth - applicant barricaded herself in respondent's premises - police and media involvement - refusal to vacate - adverse publicity for respondent - applicant's allegation of mismanagement of funds - no evidence - unfair dismissal application rejected LEGISLATION CITED: Industrial Relations Act 1996 Blythe Chemical Ltd v Bushnell (1933) 49 CLR 66 CASES CITED: Byrnes v Treloar & Ors No 40607/95 Concut Pty Ltd v Worrell [2000] HCA 64 HEARING DATES: 12/12/2005; 13/12/2005 DATE OF JUDGMENT: 02/16/2006 APPLICANT Mr P Schmidt, solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr J Curtis, Solicitor DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 16 February 2006 Matter No IRC 1214 of 2005 Christine Margaret Walters and Tamworth Aboriginal Respite Care Committee Inc Application by Christine Margaret Walters re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 _____________________________________________________________________________ DECISION [2006] NSWIRComm 1004 1 The Commission has before it an application by Christine Margaret Walters ("the Applicant") for unfair dismissal against Tamworth Aboriginal Respite Care Committee Inc ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The matter was set down for Teleconference/Conciliation and Directions on 14 April, 12 and 27 May 2005. On the latter date, the matter was set down for a Hearing. 3 The Hearing took place in Tamworth Court House on 12 and 13 December. 4 At the Hearing, the Applicant was represented by Mr P. Schmidt, solicitor, who called the following witnesses: · Christine Walters - the Applicant · Samantha Moss - former employee (Finance Officer) · Leonard Waters - founding member of the Respondent · Patricia Kearton - former committee member of Respondent The Respondent was represented by Mr J. Curtis, solicitor, who called the following witnesses: · Gloria Leigh- chairperson of the Respondent · Neville Sampson - director of the Respondent · Louella Dennison - employee (trainee administration officer) BACKGROUND 5 The Applicant had been in the employ of the Respondent since 1987 - as Co-ordinator and latterly as the Area Manager. 6 The relationship between the Applicant and certain persons seems to have soured in the latter part of 2004. 7 In August 2004, a meeting of the full members of the Respondent took place. A motion was moved calling for the dismissal of the Applicant over her handling of a particular matter. Questions were raised about the legality of such a motion. 8 Elections for officers of the Respondent took place. The first meeting of the new office bearers took place on 18 October 2004. Questions were raised about the staffing arrangements and other matters at the place of business of the Respondent. The Applicant responded to these questions but deposed she became upset at this meeting. 9 The Applicant attended another meeting on 2 November and she said she left that meeting upset as well. The Applicant attended her doctor. 10 On 30 November, the management committee had all locks changed in the office. The Applicant said she was not given new keys to access the office and deposed she had been locked out of the office and no longer had a job. 11 Matters deteriorated for the Applicant. 12 The Applicant filed a workers compensation application. 13 The Applicant filed an unfair dismissal application on 30 December 2004 (IRC 04/7602). The matter was set down for Conciliation and Directions in Tamworth Court House on 14 February 2005. Ms Bailey, solicitor, represented the Applicant and described the unfair dismissal application as really more a threatened dismissal. The parties were directed to confer. 14 A Teleconference/Report Back was held on 21 February: (myself in my Sydney court and the parties advocates on line in Tamworth). The Applicant was now represented by Ms Proudford, solicitor. The Respondent was still represented by Mr Maclean, solicitor. Ms Proudford advised the Commission of a development that had taken place and was still taking place that day. The Applicant was still not sure whether she had been terminated or not. In any event, the Applicant was now locked in the office (the business premise of the Respondent); the Tamworth police had been called to the scene but the Applicant was refusing to leave the premises. Mr MacLean advised that he understood that the Applicant had gone to the office. A person accompanying her, had an electric drill and drilled out the locks. The Applicant, accompanied by two other ladies entered the office - along with a cattle dog and doonas. The police were called - negotiations took place - but the Applicant still occupied the offices. Mr MacLean advised that the Applicant had not been dismissed and was still being paid wages. However, his client (the Respondent) would need to reconsider the employ of the Applicant. (For the record, the Commission notes that the Applicant's occupancy of the office and her preventing any person entering the same, was reported in the local press and television news. The television news footage - which included an interview with the Applicant - was played in the Tamworth Court on the second day of the Hearing.) 15 On that same day as the occupancy referred to above, the Commission received a facsimile from Mr MacLean advising of a resolution passed at a Board of Directors meeting, and which resulted in a decision to dismiss the Applicant's services. 16 By correspondence of 3 March 2005, Ms Proudford advised that her legal firm were no longer representing the Applicant. 17 The Applicant filed her unfair dismissal application on 8 March 2005. 18 The Commission issued a Determination of Proceedings (closed the file) for the unfair dismissal application lodged on 30 December 2004. The basis for doing so was the Applicant's request to discontinue those proceedings. The Determination of Proceedings was issued on 31 March 2005. FINAL SUBMISSIONS For the Applicant 19 Mr Schmidt, for the Applicant made the following submissions: (a) The Respondent carried the onus to prove the Applicant engaged in such conduct to warrant summary dismissal. (b) The Applicant was denied procedural fairness. (c) The Applicant had not been given a reason for her dismissal. (d) The Applicant had an unblemished 18 years of service. (e) The Applicant was a hard-working and loyal member of the Respondent and been awarded the Order of Australia Medal. (f) The Applicant had been severely stressed and on WorkCover at the time of her dismissal. For the Respondent 20 Mr Curtis for the Respondent made the following submissions: (a) The Applicant had been dismissed because of her conduct on 21 February 2005. The Applicant had been asked by a representative of the Respondent and by the police, to leave the premises but failed to do so. The Applicant secured the premises to prevent anyone else from coming in. (b) The Applicant's defence as to her conduct (see (a) above) that Neville Sampson (director of the Respondent) had misappropriated funds and caused the downfall of four other organisations, was not supported by evidence. (c) The Applicant raised concerns about the Respondent with the Department of Health and Ageing and was given advice to refer her concerns to the police and ASIC, but did not do so. (d) The Applicant's conduct on 21 February was designed to give her plight publicity and to bring the Respondent and its management committee into disrepute. (e) The Applicant had lodged an unfair dismissal application (the first one) and this allowed the Applicant to vent her concerns during that conciliatory process, but despite that, then took matters into her own hands. (f) The Applicant was accompanied by two persons when entering the premises on 21 February. Neither of these persons appeared as witnesses in these proceedings but were in attendance in the court room. The fact they did not give evidence allows for the inference they would not have supported the Applicant's evidence (where there is conflict) as to what was said or transpired on that day. (g) The Applicant's conduct on that day amounted to a repudiation of her contract. (h) The Applicant's serious allegations against Neville Sampson are destructive of the confidence between an employer and employee. Applicant in Reply 21 Mr Schmidt in reply put that the Applicant's conduct on 21 February, could be explained by the defence of provocation. In that regard he referred to the events that took place that impacted on the Applicant, so as to produce a stressful state within her. CONSIDERATION 22 The Applicant was summarily dismissed by the Respondent. The summary dismissal letter (ex. 1 - annex 9) is undated but was provided to the then Applicant's solicitor on 21 February 2005. This is the same date as the Applicant's occupancy of the Respondent's business premise: the Applicant's place of work. 23 The summary dismissal letter advised that a Board of Directors meeting had taken place in consequence of the Applicant's conduct that day, 21 February. That letter set out the reasons for the decision to terminate the Applicant's services. Thus: (a) The Applicant, along with her husband, Rhonda Laurence and Louise Slater had entered the office premises of the Committee armed with sleeping equipment, a blue cattle-dog and seemingly an electric drill and other apparatus designed to gain access and secure the premises and hold same against all comers. (b) Threats to the Committee's employee Louella Denison were likewise reported. (c) The Chairperson of the Committee (Gloria Leigh) had asked the Applicant to remove herself from the office premises but the Applicant maintained her ongoing physical possession of the same. (d) The work of the Respondent was entirely disrupted because of the foregoing. (e) Because-of the forgoing, the Applicant's conduct was such that she had repudiated the contract of employment with the Respondent. 24 The Commission has extracted the reasons for the summary dismissal, in order to record that the Applicant was aware of the reasons for her summary dismissal. The Commission finds that there could be no doubt in the Applicant's mind that her dismissal for misconduct was because of her conduct that day, 21 February 2005. Onus 25 The Respondent conceded it carried the onus to prove that the Applicant had engaged in such conduct as to warrant summary dismissal. By and large, this onus was satisfied by the evidence of the Applicant, herself, as to what had happened on that day. There was some evidence of conflict to be resolved as to what transpired that day. The Events of 21 February 2005 26 The Commission will now reconstruct the events of 21 February 2005. (The evidence as to those events is taken from the cross-examination of the Applicant - 12 December 2005 and witness statements.) 27 The Applicant denied she entered the office by force. She, her husband, two ladies and the husband's dog: a red cattle dog, entered the office through an unlocked door. The front door lock was taken out by the husband, so that they could not be locked in. This lock was taken out with a drill. The back door was also secured so that no one could gain entry that way. The motive, she said, in carrying out the lock alterations, was to keep certain people (like Mr Tighe) out of the building. (Tr p21, line 2 to p22, line 6) The alterations to the door were changed back once the Applicant and her party left the premises. (Tr p23, lines 35 - 38) 28 The Applicant and her party had sleeping bags with them. The Applicant said she might have to sleep overnight, and was not going to sleep it rough. (Tr p22, lines 33 - 35) 29 At some point in time, the husband left the office and sat in a vehicle outside the office, watching over the others. The Applicant said he was assaulted by a Brian Tighe, partner of Louella Dennison. (Ex 1 - para 200) 30 At some point in time, Mr Harry Cutmore told the Applicant to leave the premises. The Applicant responded to him: "I'm the area manager sir, I don't have to leave" (Tr 27, lines 20 - 22) Harry Cutmore is the aboriginal police liaison officer. (Tr 34, lines 55 - 57) 31 At some point in time, a conversation took place between the Applicant and Louella Dennison (the partner of Brian Tighe). Ms Dennison was in the office that particular day. The Applicant confirmed that Ms Dennison did not leave the office at first, but had said (to the Applicant) that she would stay and protect the organisation's interests. The Applicant told Harry Cutmore to get Ms Dennison out of the office because Ms Dennison was harassing the Applicant and her party. The Applicant said to Mr Cutmore: "Remove the bitch before I kill her." (Tr 34, lines 29 to 53) Apparently Ms Dennison left the office and waited outside. 32 At some point in time, the police and the media arrived. The Applicant confirmed that they were in attendance at her arrangement. (Tr 22, lines 23 to 27) (Tr 25, lines 1 to 8) 33 The media comprised the local newspaper (The Northern Daily Leader) and Prime News. The Applicant posed for a photograph, along with the two women who formed part of her party. She gave an interview as well. The front page (full page) article is headed: "Barricaded in for being forced out." (Ex: 4) The Applicant was also interviewed by Prime News and that story went to air that day. The video was played during proceedings on the second day of the Hearing. The audio of the media coverage forms part of the transcript of that second day. 34 At some point in time, Gloria Leigh, chairperson of the Respondent's management committee became involved in the incident that day. She deposed she became aware of the incident through a call to her mobile phone from the Applicant's husband. Ms Leigh spoke to Neville Sampson (the director of the Respondent) and then both spoke to their solicitor, Mr MacLean. All three drove to the office to investigate. Ms Leigh said she saw Harry Cutmore and two other police officers standing outside of the office. Also in attendance, were Prime News and a reporter for the local newspaper. Ms Leigh deposed she asked the Applicant to leave the office, but the Applicant declined. (Ex. 8 - paras 53 to 59) 35 The Applicant deposed she left the office at 9:30 pm on 21 February 2005. (Ex 8 - para 227) The Incident and the Applicant's Motivation 36 The Applicant explained her conduct on that day and as such, this showed her motivation and hence defence for that conduct. In a nutshell, there had been a new management committee put in place in the latter half of 2004. The new office bearers (some of) had said or done things that caused the Applicant to be stressed. The Applicant was a long serving faithful employee of eighteen years and had a responsible position - area manager. As she saw it, the new office bearers were ignorant of policies and procedures and award obligations and their conduct was unacceptable and irresponsible. When she took over the office on 21 February, she did so in order to attract the attention of the entire management committee. She wanted to sit down and have a talk with them. 37 The issues of concern to the Applicant included: (a) The new management committee was not a "legal committee" because the Annual General Meeting of 15 October 2004, was not a properly convened meeting. This was so as the new secretary (Gloria Leigh) had never been a member of the Respondent. The Applicant wrote to the "incorporations associations people and the ombudsman's office" and she had "written letters to the funding bodies", in order to have the new management committee not recognized. (Tr 16, lines 3 to 33) (b) The new treasurer (Neville Sampson) demanded that all staff be returned to their original positions of 12 months prior. The Applicant reminded him that he had to have regard to Awards, policies and procedures and that his proposed staff changes were outside the parameters of the Award. (Ex l, paras 69 to 78) (c) The Applicant said a motion had been moved by Neville Sampson for the dismissal of herself. This was moved at the August 2004 committee meeting. (Ex 1, paras 15 to 28) This upset the Applicant and she became stressed and went on Workers Compensation. Her uncertainty as to whether she was still an employee or not, led to her filing her first unfair dismissal application. (d) The Applicant suspected that money was going missing from the Respondent's custody. (Tr 16, line 57 to Tr 17, line 2) She said she wrote to the Australian Investment Security Commission of her concerns; and to the funding bodies; she talked to the management committee. (Tr 17, lines 7 to 13) She also wrote to the Department of Health and Ageing (a funding body) as to how money was being managed. (Tr 18, lines 4 to 29) 38 The foregoing issues going to the Applicant's concerns about the new (and negative) directions of the organisation is not an exhaustive list of her concerns but demonstrate the seriousness of her concerns - and hence, she says, explain her conduct on 21 February 2005. Was the Dismissal Justified? 39 The Commission has set out above the written reasons for dismissal (para. 23 and the Applicant's explanation/defence of her conduct (paras 36 to 38 inclusive). 40 Having considered all of the evidence, the Commission has concluded that the summary dismissal of the Applicant for misconduct was justified. The breadth of the evidence considered in coming to that conclusion, is not just that evidence known to the Respondent at the time of writing the summary dismissal letter, but as well, subsequent evidence such as the Prime TV News coverage and The Leader newspaper. An employer is entitled, as a matter of law, to rely upon subsequent evidence to justify a dismissal already taken: Concut Pty Ltd v Worrell [2000] HCA 64 (14 December 2000) per McHugh J. 41 In considering all of the evidence, the Commission came to its conclusion that summary dismissal was justified, by having regard to a statement on the duty of an employee to an employer, found in the following passage of Dixon and McTiernan JJ in Blythe Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 81-82: "Conduct which in important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground for dismissal. " 42 The conduct of the Applicant relied upon by the Commission to support that statement of law above, is set out below. The conduct fell into two categories: (a) the occupation of the office on 21 February; and (b) the Applicant's allegation of misappropriation of funds. 43 The Applicant's occupation of the office was premeditated. All up there was a party of four, equipped with an electric drill, sleeping bags, a cattle dog, a piece of timber and an iron bar. The electric drill was used to dissemble the front door lock so that an entry key was rendered useless. The timber was used as a brace, on the floor and behind the front door, in order to prevent the front door from being opened. The iron bar was used as a brace against the back door to prevent entry from the rear. The occupation was complete and the Respondent's officers could not gain entry. And the Respondent's business could not be undertaken. The sleeping bags implied that the Applicant and her party were in for a long occupation and hence business would be further disrupted - from the Respondent's point of view. 44 The Applicant came across an employee in the premises, Louella Dennison, who was already on site. The Applicant said to Harry Cutmore (the Aboriginal police liaison officer): "Remove the bitch before I kill her". No remorse was shown by the Applicant for having made this statement. It is difficult for the Commission to view it as having been made in the heat of the moment. This is so given the context of the statement. It was made in the context of a premeditated plan of occupation. The Respondent as an employer, has a duty of care for the safety of all employees. This public statement by the Applicant (heard by the police officer outside the premise) was obviously issued with a voice of seriousness. It seems to the Commission, that the Respondent was obligated to deal with this threat of serious violence by one employee against another and this conduct by the Applicant, in itself, would justify the summary dismissal. 45 The Applicant was asked by Gloria Leigh, chairperson of the management committee to vacate the premises. This was a lawful and reasonable direction by Ms Leigh. (The Commission notes that the Applicant said that the committee was not a "legal committee" but the Commission does not have the jurisdiction to determine that issue.) This lawful and reasonable direction was refused by the Applicant. Given that refusal, the Respondent had another ground for deciding on summary dismissal - given the context of the occupation. 46 The second category of conduct is the Applicant's allegation of misappropriation. Under cross-examination, she said she suspected that money had been used for a purpose which she disputed. She wrote to the Department of Health and Aging ("the Department") about the mismanagement of funds. The Commission notes that the Department provides funds to the Respondent. The Department responded in writing to the Applicant, that allegations of fraud should be raised with the police. The Applicant did not do so. (Tr 16, line 57 to Tr 17, line 41) 47 The Applicant agreed she had no evidence of fraud or misappropriation. (Tr 17, lines 43 to 53) Later, the Applicant said she did have evidence and was asked to produce it in court. She said that the management committee were in office no more than three or four days, when they wrote a cheque out to Louella Dennison ("Remove the bitch before I kill her" identity) for services at a higher grade. How could this be, the Applicant asked, when Ms Dennison was only a trainee. The cheque was for $1,507.60 in back pay. (Tr 18, lines 35 to 46) The Applicant also saw as "misappropriation" (but as explained under cross-examination by her to be "mismanagement of funds") the granting of an extra three weeks holiday to staff. She had also raised this concern with the Department. (Tr 26, lines 3 to 45) This concern of the Applicant was explored further under cross-examination but now she named Neville Sampson (director of the Respondent) as part of that concern. In answer to a question as to whether she thought the management committee corrupt, she responded: "Mr Sampson has been on four organisations in this town and one other that I'm aware of. All those organisations are in the hands of receivership or being de-funded. " (Tr 28, lines 17 to 21) She said he was doing whatever he liked with the organisation's money. "He walked in the door and backpaid somebody who didn't need to be backpaid and gave the staff an extra three weeks holiday each." 48 The Commission sees two observations being made by the Applicant. One goes to the "mismanagement of funds". The other goes to suitability of Mr Sampson to be the director of the organisation. 49 As to the "mismanagement of funds", this was a major concern for the Applicant and a major, if not principal, defence to explain her conduct on 21 February. When one looks at the examples of "mismanagement of funds", these are clearly work related matters: back pay and quantum annual leave for staff. Why the Applicant described these work related matters as "mismanagement of funds" was not explained, except to the extent that she explained that Louella Dennison was a trainee and how could she be entitled to back pay. But for the Applicant to ask this question and not answer it in order to show that there is a "mismanagement of funds" is another thing. At the end of the day, if any employer decides to give wage increases or increase the quantum of annual leave, then so be it. It is not against the law for an employer to do so. In this case, no evidence was produced by the Applicant to show that those benefits conferred on staff, were such as to be classified as "mismanagement of funds". For the record, Neville Sampson deposed that no staff were given unjustified pay rises. (Ex 9, para 34) 50 The second observation made by the Commission about the Applicant's allegation of "misappropriation", was that that allegation reflected on the suitability of Mr Sampson to be the director of the organization. No evidence was produced by the Applicant that other organizations with which Mr Sampson was associated were as a matter of fact " in the hands of receivership or being de-funded" , - as claimed by her. Nor did she then prove (if such organizations were in receivership or being de-funded) that they were because of Mr Sampson. The Applicant's allegation about Mr Sampson, as a director, is a serious one and, all the more so, because it was made publicly. That unsupported, public allegation is capable of bringing Mr Sampson and the Respondent generally, into disrepute. It was not lost on the Commission, that the Applicant made this association between Mr Sampson and de-funding and yet she made a serious allegation, unsupported, to the Department which is a body that provides funds to the Respondent. Might her unsupported allegation have brought further funding from the Department into question? 51 Finally, the Commission turns to the Prime TV New coverage. A video of the office occupation was played in court. The audio was transcribed onto transcript. In her interview, which went to air, the Applicant said: "I won't take people lying and cheating, misappropriating money. I'm an honest person; I don't believe in that." (Tr 13/12/05, p.1 and 2) There was no explanation by the Applicant that " misappropriation " meant "mismanagement of funds". To the layperson, it is reasonable to believe that that term meant something akin to "theft". Should there be any doubt about that, one only has to look at the other descriptors used by her: " lying and cheating ". Such inflammatory language, if not defamatory, was given to the TV News people whilst she was barricaded in the office. The context of her remarks was directed at the management committee (broadly put) or in the alternate, at Messrs Sampson and Leigh (narrowly put) but the latter are still the representatives of the Respondent. Either way, the Applicant has publicly brought her organisation and her employer into public disrepute. Under that circumstance alone (the media coverage on television), the Respondent was justified in summarily dismissing the Applicant. CONCLUSION 52 The Commission has before it, an application by Ms Christine Walters that she had been unfairly dismissed. 53 Having considered all of the evidence, the Commission has concluded that the summary dismissal of the Applicant for misconduct was justified. The conduct of the Applicant, that supported the above finding of the Commission, fell into two categories: (a) the occupation of the Respondent's office on 21 February; and (b) the Applicant's allegation of misappropriation of funds. 54 The Applicant's premeditated occupation of the Respondent's office was unlawful. The Applicant disobeyed the reasonable and lawful direction of an officer of the Respondent to vacate the premises. The Applicant physically threatened a fellow employee, Louella Dennison (" Remove the bitch before I kill her "). The employer has a duty of care to maintain the safety of employees in its care and this serious physical threat (made publicly and to a police officer) and the context of a takeover occupation, would require the employer to sever the employer - employee relationship with the Applicant. 55 The Applicant made public unsupported allegations of misappropriation of funds against the Respondent at large or more narrowly against Mr Sampson, a director of the Respondent. The Applicant made this serious allegation, very publicly, by her use of the media. But she produced no evidence to support this allegation. She directed, publicly, an attack on Mr Sampson himself as to his suitability to be in control of the organisation. As well, by her public utterances, she brought the organisation into the limelight and in an unfavourable way. The Applicant concurred under cross-examination, that her occupation of the premises was designed to publicly denigrate the management committee. (Tr p 25, lines 25 to 28) 56 The above summary of the Applicant's conduct was not conduct that could be regarded as merely trivial or a mild form of insubordination: Byrnes v Treloar & Ors No.40607/95 (10 December 1997) Supreme Court of New South Wales, Court of Appeal. The Applicant's conduct was incompatible with her duty to her employer and was in a manner destructive of the confidence required in an employer - employee relationship: Blythe Chemicals Ltd. 57 Accordingly, the Applicant's unfair dismissal application is dismissed. A Macdonald Commissioner 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.