Roche, Lorraine v Trustees of the Roman Catholic Church for the Diocese of Wagga Wagga - [2018] FWC 3933

1

Fair Work Act 2009 
s.394—Unfair dismissal

Lorraine Roche

v

Trustees of the Roman Catholic Church for the Diocese of Wagga Wagga
(U2017/13136)

DEPUTY PRESIDENT DEAN SYDNEY, 14 AUGUST 2018

Application for an unfair dismissal remedy – whether valid reason – dismissal unfair.

[1] Ms Lorraine Roche commenced employment with the Catholic Schools Office Wagga 

Wagga (the CSO) on or about 23 April 2012 and was dismissed on 22 November 2017. Ms 

Roche had held the position of School Support Officer at St Patrick’s Primary School (the 

School) in Griffith from May 2013. Ms Roche’s dismissal followed an investigation into an 

incident that occurred on 17 August 2017 involving her and another staff member of the 

School, Ms Culla (the Incident).

[2] On 11 December 2017, Ms Roche made an application to the Fair Work Commission 

pursuant to s.394 of the Fair Work Act 2009 for a remedy in respect of her dismissal. Ms 

Roche seeks compensation and reinstatement to her former position.

[3] The respondent was identified in the Employer Response to Unfair Dismissal 

Application (Form F3) as ‘Trustees of the Roman Catholic Church for the Diocese of Wagga 

Wagga’ (the Diocese), rather than ‘Catholic Schools Office Wagga Wagga’ as stated in the 

application. The Diocese operates 26 primary and 5 secondary schools through the CSO. In 

the circumstances, I have amended the named respondent on the application to reflect the 

legal entity identified in the Form F3, pursuant to s.586 of the Act, however I will refer to the 

respondent as ‘the CSO’ in this decision as this was how the respondent was referred to 

during the proceedings.

[4] The hearing was held in Wagga Wagga on 28 and 29 March 2018 and in Sydney on 

21, 22 and 23 May 2018. The parties made their closing submissions in writing, which were 

filed by 19 June 2018.

[5] Both parties were granted permission to be represented pursuant to s.596 of the Act.

Mr A Aleksov of counsel with Mr C Ni, solicitor, appeared for Ms Roche. Mr D O’Sullivan 

[2018] FWC 3933

DECISION


E AUSTRALIA FairWork Commission




 



[2018] FWC 3933

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of counsel with Mr S Cooper of the Catholic Commission for Employment Relations 

appeared for the CSO.

[6] For the reasons set out below, I find that Ms Roche’s dismissal was unfair and I have 

decided to reinstate Ms Roche to her former position. 

Factual background 

[7] The background and facts set out below are agreed or not contested.

[8] Ms Roche worked in the front office of the School with around 5 other persons,

including Ms Culla. From 2017, apart from her role as a School Support Officer, Ms Roche 

also performed duties as the assistant to the Principal.

[9] Ms Culla was a Senior School Support Officer and held that position from 7 October 

2014 until her resignation on or about 22 November 2017.

[10] Ms Roche and Ms Culla had a problematic working relationship and each was the

subject of complaints made against the other. 

[11] In 2015 Ms Culla made a formal complaint against Ms Roche and another front office 

staff member. An investigation into Ms Culla’s allegations was undertaken. Following the 

investigation, Ms Roche was issued with a formal warning (the 2015 warning). Ms Roche 

disagreed with the investigation findings and objected to the written warning.

[12] In May 2016 Ms Culla made a workers compensation claim and took leave between 

May and July 2016. The problematic working relationship between Ms Roche and Ms Culla

continued after Ms Culla’s return, causing several meetings and discussions initiated by the 

CSO in an attempt to resolve the issues between the two.

[13] In around March 2017, both Ms Roche and Ms Culla were warned by Ms Price, the 

CSO’s Employee Services Manager, that any further incidents between them would affect 

their continued employment and may result in their dismissal (the Price warning).

[14] On 17 August 2017 the Incident occurred between Ms Roche and Ms Culla, the details 

of which are set out later in this decision. Ms Roche reported the Incident to the Griffith 

station of the New South Wales Police.

[15] Following the Incident, both Ms Roche and Ms Culla were stood down with pay. They 

were both advised by letter dated 18 August 2017 that Ms Sue Delaney (Senior Employee 

Services Officer) would investigate the Incident. 

[16] In the period between 21 and 30 August 2017, Ms Delaney conducted interviews with 

relevant persons and obtained statements from witnesses. The scope of the investigation at the 

time was limited to allegations against Ms Culla.








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[17] On or about 19 September 2017 Ms Delaney provided Ms Price  with an investigation 

report, together with proposed findings. Her proposed findings concluded that three out of 

five allegations against Ms Culla were sustained.

[18] Ms Delaney commenced leave on 20 September 2017 and had no further involvement 

with the investigation. Ms Price then took over the investigation process.

[19] On 27 September 2017 Ms Roche received a letter written by Ms Price which 

indicated that as a result of the ongoing investigation, the CSO became aware that the Incident 

involved alleged inappropriate conduct by Ms Roche. The letter set out details of Ms Roche’s 

alleged inappropriate conduct and stated that these allegations, if substantiated, could 

constitute a breach of the CSO’s Guidelines for Professional Conduct. The letter went on to 

invite Ms Roche to attend an interview with Ms Virginia Pattison, an Employee Services 

Officer, on 5 October 2017 to respond to the allegations. 

[20] The Incident was described by way of background in the investigation report1 as 
follows:

“On 17 August 2017 at approximately 8:40am in the school staffroom Ms Culla, Senior 

School Service Assistant was speaking to Ms Donna Cavanagh, School Administration 

Assistant, about training. In the course of this conversation Ms Roche, School 

Administration Assistant, suggested that Ms Culla train another member of staff, Ms 

Maree Puntoriero, in handling administrative finance in anticipation of Ms Culla 

talking leave in September.

The conversation between Ms Culla and Ms Roche became heated and Ms Cavanah 

left the room. After Ms Cavanagh left the room a conflict between Ms Roche and Ms 

Culla developed in which Ms Culla was heard to repeatedly yell ‘get away from me’ at 

Ms Roche. It is alleged that during the course of the interaction between Ms Culla and 

Ms Roche, Ms Culla closed a door when Ms Roche’s arm (or hand) was still in the 

door and that she pushed Ms Roche into a cabinet when leaving the staffroom. 

Following the incident with Ms Roche, Ms Culla spoke to Mr Morrell the Assistant 

Principal. It is alleged that, during and after her conversation with Mr Morrell, Ms 

Culla shouted and swore and later re-entered the staff room and smashed a drinking 

glass in the sink before leaving.”

[21] The allegations of misconduct put against Ms Roche, arising from the Incident on 

17 August 20172, were:

“1. Without the consent or confirmation of the Principal, you advised [Ms Culla] that 

a staff member, Maree Puntoriero, was being employed to do some of Ms Culla’s 

work while she was on leave.








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2. Despite being told by Ms Culla that she would not discuss Ms Punteriero’s 

employment with you, you followed Ms Culla and stood in the doorway of her 

office and continued to raise the issue of Ms Punteriero’s employment and 

training.

3. When Ms Culla tried to close her office door, you pulled on the door from the 

other side and placed your arm and leg in the doorway in an attempt to prevent Ms 

Culla from closing the door and this resulted in an injury to Ms Roche’s hand.

4. Ms Culla repeatedly told you to go away and to leave her alone but you refused to 

do so essentially preventing Ms Culla from being able to easily exit her office, 

despite it being apparent that Ms Culla was in considerable distress regarding the 

situation.”

[22] On 5 October 2017 Ms Roche attended the interview with Ms Pattison. She was 

accompanied by Ms Groom of the Independent Education Union of Australia (IEU). Ms Price 

was also present.

The Show Cause letter – 10 November 2017

[23] Ms Roche was advised of the findings of the investigation in a show cause letter of 

10 November 2017. In that letter, the CSO made reference to its serious concerns about Ms 

Roche’s workplace conduct and stated the following:

“… the CSO considers that your conduct has fallen seriously short of the standard it 
reasonably requires of an employee in your position. Your conduct is inconsistent with 
the Guidelines which in turn is a breach of the express term in your contract of 
employment which requires you to comply with the policies of the CSO. Specifically, 
your conduct is inconsistent with the following provisions of the Guidelines:

5 Expectations of Workers

1.1 Workers are expected to:
…
v. be mindful of their duty to the safety of themselves and others
vi. be aware that if their conduct has the potential to damage the 

reputation of the Diocese, parish and/or school, even if it is in a 
private capacity, this could lead to disciplinary action

…
vii. model effective leadership and respect in interactions with 

students, children and young people, colleagues and others
ix. treat others with care. Rude or insulting behaviour, including 

verbal and non-verbal aggression, abusive, threatening or 
derogatory language and physical abuse or intimidation towards 
others is unacceptable.








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Further your conduct constitutes a breach of your obligations under work health and 
safety legislation and your general duty of care to others.”

[24] The show cause letter went on to detail Ms Roche’s formal warning issued on 
16 November 2015 and stated:

“… You were reminded of the requirements set out in the warning letter of 16 
November 2015 to work cohesively and follow directions from Ms Culla and to work 
within the school/office protocols. You were again advised that any further incidents, 
failure or issues with your performance may result in a review of your ongoing 
employment, including termination.
…
I am seriously considering terminating your employment with the CSO … To avoid 
doubt, your employment would be terminated on the basis that you have engaged in 
behaviour considered to be in breach of your contractual obligations to abide by the 
policies of the CSO and that this behaviour threatens the health and safety of others.”

The Show Cause meeting – 20 November 2017

[25] Ms Roche prepared a written statement3 and read it out at the show cause meeting on 
20 November 2017. In summary, Ms Roche said:

 She appreciated and acknowledged the importance of her role in maintaining 

reasonable and appropriate standards in the workplace.

 She regretted the situation and, upon reflection, it may have been better for all 

involved if she had handled it differently.

 She acted at the time in what she thought was a reasonable manner and in the best 

interests of the School and Ms Culla.

 As the Personal Assistant to Ms Campbell, and as the person whom Ms Campbell 

asked to get Ms Puntoriero onto ‘the system’ for finance work, she did not consider 

her inquiry about training inappropriate. “Upon reflection, I acknowledge this was 

probably not my business and not my place to discuss with [Ms Culla]. However, 

the question was certainly not intended to antagonise or upset [Ms Culla]”.

 She had not immediately ‘followed’ Ms Culla to her room and it was about 10 

minutes later that she went to see Ms Culla to “clear the uncertainty and explain 

that [Ms Campbell] had asked me to put Maree [Puntoriero] on the system for 

training.”

 Ms Culla screamed ‘get away from me’ only after seeing she had caused injury to 

her hand. 

 Ms Culla became very heightened after she was told that Ms Campbell had asked 

Ms Roche to put Ms Puntoriero on the system for training, to which Ms Culla said 

‘well you train her then’ and she replied ‘but it’s for finance, I can’t do that’. 

 It was her intention to leave the doorway when Ms Culla’s heightened behaviour 

became apparent.

 She did not threaten Ms Culla or at any stage make any advances towards her to 

make her feel unsafe. 








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 It was not her intention to make Ms Culla feel she was trapped in her office. She 

moved further into her office only to try and calm her down and stop her 

screaming. She felt at the time she could only do this by being able to see her. In 

this regard she said: “I trust that you will take into consideration that this incident 

was a unique, confronting and challenging situation for me. I was acting on instinct 

trying to calm [Ms Culla], for the safety of all persons at the school. Also, a

common First Aid practice for a person in distress states that it is important to help 

them try to keep calm.”

 She has an excellent rapport and working relationship with the staff at the School. 

“I am respected in the school community and liked by my peers and colleagues. I 

bring more to my role than just an administration assistant, helping out where 

possible in extra curricular activities run by the school and parish. I take pride in 

my work and diligently carry out my duties in a professional and helpful manner. I 

commit to and have carried out unpaid overtime when needed.

 Her interactions with students in her administrative role, first aid duties and student 

well-being has always been consistent and a priority.

 She also has an excellent relationship with parents, many of whom she knows 

personally having grown up in the school community. 

 It was never her intention for this situation to escalate as it did.

 It was never her intention to antagonise Ms Culla and she certainly did not foresee 

the outcome that transpired.

 She loves her job and the School is a big part of her life both past and present. She 

said: “I, along with my brother and sister, nieces and nephews and recently my son 

attended the school. My grandmother used to cook for Fr Beltrame and other clergy 

in the presbytery, clean the church and sewed many of the altar tablecloths and 

vestments that are still in use today. All of the major events in my life have been in 

this parish of which St Patrick’s is a part. I would never intentionally sully its 

reputation.”

 She acknowledges that she needs improvement in her interactions with others and 

needs to take into greater consideration the diversity of all colleagues. In this 

regard she said: “I did not read this particular situation well and have learnt from 

this.”

 The Incident and subsequent time of uncertainty has caused much anxiety and 

distress to her and her family. She is a single mother and sole breadwinner and 

working full-time is a necessity. 

The Termination letter – 22 November 2017

[26] The Termination Letter4 of 22 November 2017 issued to Ms Roche was signed by Mr 

Bowyer. The letter states, under the heading of ‘Reasons for Termination’, the following:

“I have carefully considered and assessed your Response.








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You have expressed regret regarding the incident with Ms Culla, however, this is not 

the first time your conduct has been of concern as it pertains to your relationship with 

Ms Culla. You received a written warning in November 2015 for conduct in breach of 

the CSO Guidelines and the CSO’s Preventing Discrimination, Harassment and 

Bullying Policy. You were also specifically directed to work cohesively and follow 

direction from Ms Culla. I note that your response to this warning was to disagree with 

the investigation’s findings and that you refused to acknowledge the warning. 

The relationship between yourself and Ms Culla has continued to be problematic. 

During 2016 and 2017 the CSO and the School leadership have put considerable effort 

into working directly with you and Ms Culla to resolve your conflict issues and 

engender a harmonious working relationship at the School. You have been reminded 

that you need to maintain a professional relationship and that a failure to do so may 

result in a review of your employment. Despite this, the relationship has not improved 

as evidenced by the incident on 17 August 2017.

You maintain that your actions were intended to calm Ms Culla. However, I prefer the 

findings of the investigation that you would have been well aware that persisting in 

interacting with Ms Culla would antagonise her and certainly that it would have been 

apparently very quickly during the incident that your continued presence in Ms Culla’s 

office was inflaming rather than calming the situation. This leads me to the conclusion 

that your actions were deliberate and intended to provoke Ms Culla.

Your recent conduct towards Ms Culla, coupled with your attitude regarding the 

validity of the 2015 warning means that I have no confidence that the situation 

between yourself and Ms Culla will improve.

In light of the earlier warning and the subsequent support you have been provided, it is 

reasonable to expect that you would exhibit a much higher standard of conduct than 

what has occurred.

Your actions are in breach of the CSO Guidelines, your obligations under health and 

safety legislation and your general duty of care to others. You are also in breach of the 

express term in your contract of employment which requires you to comply with the 

policies of the CSO. Furthermore, the CSO has lost trust and confidence in your 

judgement and ability to act in the best interests of the CSO and to meet the 

professional standards the CSO reasonably requires of an employee in your position.”

[27] Ms Roche was given five weeks’ pay in lieu of notice.

Key issues for determination








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[28] The CSO’s case primarily relies on a finding that Ms Roche engaged in misconduct 
arising from the Incident. The conduct that was determined to constitute the misconduct was 
in relation to two allegations, those being:

a. Allegation 2 - “Despite being told by Ms Culla that she would not discuss Ms 
Ponteriero’s employment with you, you followed Ms Culla and stood in the doorway 
of her office and continued to raise the issue of Ms Ponteriero’s employment and 
training”; and

b. Allegation 4 - “Ms Culla repeatedly told you to go away and leave her alone but you 
refused to do so essentially preventing Ms Culla from being able to easily exit her 
office, despite it being apparent that Ms Culla was in considerable distress regarding 
the situation”.

[29] The CSO also asserted that Ms Roche was afforded procedural fairness in relation to 
the manner in which her dismissal was effected.

Evidence

[30] Oral and/or written evidence was given by the following persons:

a. Ms Lorraine Roche;

b. Ms Kathryn Grant – Teacher;

c. Mr Michael Morrell – Assistant Principal;

d. Ms Susan Delaney – Senior Employee Services Officer.

e. Ms Julie Price – Employee Services Manager;

f. Mr Nouran Tawfiq – Workplace Investigator; and

g. Ms Sandra Campbell – Principal;

h. Mr Alan Bowyer – Director of Schools (now retired); and

i. Ms Ornella Murray – Teacher.

[31] I have carefully considered all of the evidence and submissions made by both parties. 

The matters set out below are confined to the issues I need to determine.

Ms Roche

[32] Ms Roche’s version of events of the Incident was set out in detail in her statement5:

“On 17 August 2017, I overhead [Ms Culla] in the staffroom asking Donna Cavanagh 

when she would be free to undertake training with her. I asked [Ms Culla] whether 

Maree could also join.

[Ms Culla] asked me who Maree was. I explained that I was referring to Maree 

Puntoriero. [Ms Culla] replied that she told Sandra she would not train anyone from 

scratch, that Maree did not know anything and that there was not enough time.








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As [Ms Culla] left the staffroom she stated in an aggressive and abrupt manner ‘I don’t 

take directives from you, Lorraine’. …

Approximately 10 minutes later, I heard [Ms Culla] opening the safe in her office. I 

decided to go to her office and explain the instructions Sandra gave me and update 

[Ms Culla] on the status of Maree’s paperwork. I thought this would be a good way to 

resolve the heated discussion that had just taken place.

I entered [Ms Culla]’s office. [Ms Culla] was bent down opening the safe. I told [Ms 

Culla] that I was not trying to direct her and that Sandra had instructed me to set 

Maree up on the system in order for her to receive training.

[Ms Culla] threw her arm out at me and told me to train Maree instead. I told [Ms 

Culla] that Sandra would like Maree trained in finance in order to cover her leave, 

which I was not capable of doing.

[Ms Culla] replied that this was news to her, that she would not take directions from 

me, to get out and leave her alone. As [Ms Culla] spoke, she shoved me in the chest 

with her hand and started to close the door.

I lost my balance from [Ms Culla]’s shove and grabbed onto the edge of the closing 

door in order to regain my balance. [Ms Culla] attempted to close the door again, 

however my hand was still in the doorway. 

I called out that my hand was stuck in the doorway and pulled it out. I was in pain and 

realised that my hand was bleeding. [Ms Culla] also saw that my hand was bleeding.

[Ms Culla] then started screaming ‘get away from me’ repeatedly after she saw my 

hand bleeding and realised she had caused my injury. I remained in the same position 

by the door, holding onto my hand.

At the time I was confused, bewildered and shocked that [Ms Culla] was screaming 

given I was the one who had been injured.

[Ms Culla] walked to the other side of the desk and continued to scream for me to get 

away from her. At the time I lost sight of [Ms Culla] because of a filing cabinet that 

was next to the entrance of her office.

[Ms Culla] was obviously in distress and I was the only person around at the time. By 

reaction I moved into [Ms Culla]’s office so that I can see her and to try and calm her 

down. I was acting on what I thought was the right thing to do for the safety of

students, parents and staff at the school as they were arriving at school around that 

time of 8.30am.








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I knew from my first aid training that a common first aid practice to deal with a person 

in distress was to try and help them keep calm, talk to them in a low register and ask 

that they stop yelling because of how it could make that person or others feel.

I told [Ms Culla] to calm down and asked why she was yelling. I asked her if we could 

talk about this civilly.

It was not my intention at all to make [Ms Culla] feel like she was trapped in her office 

or to antagonise her.

[Ms Culla] continued to scream. She picked up her phone and faced away from me. 

She turned back around and put the phone down. She opened the backdoor and then 

tried to open the gauze door but it would not open.

I could see students and parents walking past the gauze door hearing [Ms Culla]

yelling. I again asked [Ms Culla] to calm down and told her that people could hear her. 

[Ms Culla] stopped yelling and walked around the desk. I was afraid and started 

backing out of the door. [Ms Culla] reached me just outside her office door at the sick 

bay and shoulder barged me. I fell against the first aid cupboard.

At that moment, Michael Morrell arrived on the scene and asked what was going on.”

[33] Ms Roche said she explained to Mr Morrell what had happened and was later advised 

by him that she was required to go home. 

[34] Ms Roche attended the hospital that afternoon and subsequently reported the Incident 

to the New South Wales Police. She provided a statement to the Police on 24 August 20176.

The 2015 warning

[35] In relation to the 2015 warning, the allegations found to be sustained were as follows: 

a. on 6 August 2015 Ms Roche was asked by Ms Culla to return to her desk and answer 

phones, however she refused to do so (Allegation 5); 

b. on more than one occasion Ms Roche did not take her lunch between 12pm and 1pm 

as she had been directed to do (Allegation 7(b)); 

c. on more than one occasion Ms Roche did not go to Ms Culla to request leave as she 

had been directed to do, and instead made a request to the Principal (Allegation 7(c)); 

and 

d. Ms Roche had failed to appropriately use the central diary system (Allegation 7(f)).

[36] Ms Roche gave evidence that in relation to Allegation 5, she had only just commenced 

a lunch break and was still heating up her lunch when Ms Culla asked her to return to answer 








[2018] FWC 3933

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the phones. Further, the School had in place a telephone answering system which had been 

authorised by the Principal.

[37] In relation to Allegation 7(b), Ms Roche’s evidence was that this practice had been 

abandoned in favour of a practice whereby Ms Roche and Ms Culla worked out between 

themselves when to take lunch.

[38] In relation to Allegation 7(c), Ms Roche submitted that this was a low level issue that 

did not justify the issuing of the 2015 warning.

[39] In relation to Allegation 7(f), Ms Roche asserted that she had not been appropriately 

trained in the use of the diary system, and that once trained, there was no suggestion that she 

had failed to use it correctly.

Ms Culla

[40] Ms Culla was not employed by the CSO at the time of the hearing, and was not called 

to give evidence in these proceedings. Her version of events of the Incident, to the extent it

involved her interaction with Ms Roche, can be found in a statement she provided to Ms 

Delaney on 28 August 20177:

“I arrived to work at approximately 8.20am.

As I was organising my bag I heard Michael Morrell’s voice in the staff room. I 

walked out to speak to him regarding the groundsman. He then walked out of the staff 

room through the rear door. 

Donna Cavanagh was also in the staff room and I then spoke to her regarding the 

training we needed to get started for my sick leave in two weeks. As we were 

discussing this, Lorraine Roche interrupted our conversation, saying ‘I thought Maree 

Punteriero was going to be trained to do the finance’. I turned around to see her 

standing at the kitchen bench making a coffee. 

I replied, ‘no Donna is doing it. I don’t know anything about Maree coming in’. 

Lorraine then said, ‘that is what Sandra said will be happening’. I replied, ‘it has 

nothing to do with you Lorraine. Besides, she would need to learn the front office 

first’, I then walked out of the room to my office.

As I turned to close my office door, Lorraine was standing there and started speaking 

again about this matter saying, ‘Sandra said that Maree will be doing the finance’, I 

said, well that’s not going to happen. I then went to close the door saying please go 

away, leave me alone, she kept repeating these words and said, ‘that is what Sandra 

directed me to do’. 








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I said to Lorraine, please leave me alone and I started shaking and a panic attack came 

over me as I was trying to close the door. I couldn’t work out why the door wouldn’t 

close. Then I realised that Lorraine had her hand inside the door and was pulling it 

outwards preventing me to close it. She also had her right leg in the doorway at the 

same time. I felt very frightened and intimidated by the look in Lorraine’s eyes and her 

determination in stopping me close the door. I kept saying ‘go away, leave me alone’ 

over and over.

I let go of the door and ran around my desk to my mobile phone to ring Michael 

Morrell to ask him to come back to the office and help me. His phone was engaged so 

I hung up. (My mobile phone shows that I made this call at 8.40am). Lorraine walked 

further into my room, still talking. I didn’t know what to do, I was panicking and 

crying, I remember the old door behind my desk. I turned and unlocked the wooden 

door and then I couldn’t unlock the screen door. I kept turning and turning the key 

crying but the door wouldn’t open. I was saying ‘leave me alone, let me out, let me 

out.’ All I could hear at this time was Lorraine standing behind me on the other side of 

the desk talking in a really sweet patronizing voice, ‘I only want to talk to you …” 

repeating this several times.

I had to get away from her and I walked fast around my desk and pushed past her in 

front of the filing cabinets and ran out of my office, through the sick bay, through the 

staff room into the ladies toilets. I broke down crying on the floor near the basin. I had 

pains in my chest and up the back of my head, and could not control my breathing. I 

felt like I was going to vomit.”

Ms Grant

[41] Ms Grant provided a statement8 in these proceedings.

[42] Ms Grant has been a first grade teacher at the School for about five and a half years 

and has been working for the CSO for more than twenty years.

[43] According to her, she was in the staff room making a coffee when she heard Ms Culla

shouting ‘Get away from me, get away from me’. She could not see Ms Culla from where she 

was but from her tone of voice she sounded extremely distressed. She heard Ms Roche 

saying: “I’m just trying to have a conversation with you.” Ms Roche’s voice was not raised.

[44] Ms Grant said that within seconds she walked into the front office. She could not see 

anyone but continued to hear Ms Culla shouting: “Get away from me, get away from me ... 

please leave me alone.” As Ms Culla’s voice was becoming louder and more hysterical, she 

went to find the Assistant Principal, Mr Morrell. She and Mr Morrell then headed back 

towards the staff room. As they entered the staff room, she saw Ms Culla running across the 

staff room into the ladies toilet. She seemed visibly shaken and had tears running down her 

face. She later found Ms Culla inside the ladies toilet “on her knees, crying and shaking”.








[2018] FWC 3933

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[45] Ms Grant disagreed with Ms Roche’s statement that Ms Culla started shouting “get 

away from me” after Ms Roche called out that her hand was stuck in the doorway. Ms Grant 

believed that Ms Roche’s injury took place after Ms Culla had shouted “get away from me” a 

number of times.

Mr Morrell

[46] Mr Morrell witnessed part of the Incident and provided a statement9 for these 

proceedings. In his statement, Mr Morrell said, in part:

“At approximately 8:45AM on 17 August 2017, I was walking alongside Ms Kate 

LeBrocque (Teacher) along the pathway leading up to the door that opens into the 

staffroom. …

I then saw Ms Katherine Grant (Teacher) exit the staffroom door and walk towards me 

along the same pathway in the opposite direction to me. Ms Grant said to me words to 

the effect of: ‘You’d better get up to the office now, there’s a screaming match going 

on’. I responded by immediately running to the public entrance to the Front Office …

As I was running to the Front Office …, I heard Ms Culla scream, at least twice, words 

to the effect of: “Get out, get out!” or “Get away from me!”. I heard Ms Culla scream 

these words before I saw her and Ms Roche.

When I arrived in the foyer, I immediately approached the reception desk. I looked 

over the reception desk, through the Reception Area, and saw Ms Roche being pushed 

back by Ms Culla towards the middle of the Corridor by Ms Culla. It appeared that Ms 

Culla was pushing past Ms Roche so that she could get away from her. Ms Roche was 

standing in or just out of Ms Culla’s office doorway when Ms Culla had used her 

shoulder to make contact with Ms Roche on her left hand side causing her to be 

pushed into the cupboard. I could not see from where I was standing if the door to Ms 

Culla’s office was closed or if Ms Culla was trying to close the door to Ms Roche.

Within a few seconds of my arrival and after observing the physical contact between 

the two ladies I said words to the effect of: ‘what’s going on?’ I then heard Ms Culla

screaming words to the effect of: ‘Get this woman away from me!’ as she exited the 

corridor and headed towards the staffroom and into the ladies toilets. She continued to 

sob loudly as she moved towards the ladies toilets. Ms Roche then turned to me and 

said words to the effect of: ‘She’s just pushed me’.

From what I saw, based on Ms Roche’s reaction, the impact of the shoulder contact 

from Ms Culla against Ms Roche’s body was forceful enough to have the effect of 

moving Ms Roche’s body involuntarily back and to the side in the narrow confines of 








[2018] FWC 3933

14

the Corridor. It appeared that Ms Culla forced her way past Ms Roche in a panicked 

attempt to get away from her.

[47] Mr Morrell also provided a witness statement to the New South Wales Police on 

30 August 201710.

Ms Delaney

[48] The investigation into the Incident was initially undertaken by Ms Delaney, which 

only involved allegations against Ms Culla.

[49] Ms Delaney provided a primary and a supplementary statement11 in these proceedings

but was not required for cross examination. Ms Delaney said that she became aware of the 

incident on 18 August 2017 when Mr Morrell forwarded an email from Ms Roche of 17 

August 2017 in which she raised allegations that she was physically assaulted at the School 

that day. She later received a further email from Ms Roche in relation to the Incident and 

responded to Ms Roche that she would commence an investigation. Ms Delaney said that 

based on the information provided to her at that point in time, she considered Ms Roche to be 

the complainant and accordingly her investigation was limited in scope to allegations of 

misconduct against Ms Culla.

[50] Ms Delaney then sent an email to Ms Culla on 18 August 2017, attaching a letter from 

the CSO about the investigation into the Incident12. The letter also set out the following 

alleged inappropriate conduct by Ms Culla:

“• Shouting and swearing at Ms Roche.

• Closing your office door on Ms Roche’s arm.

• Pushing Ms Roche into a first aid cupboard, resulting in a cut on Ms Roche’s 
hand.

• Shouting and swearing at Mr Michael Morrell.

• Throwing a drinking glass into the staffroom sink where it shattered over the 
bench, sink and floor.”

[51] Ms Delaney travelled to the School on 21 August 2017 and conducted interviews with 

Ms Roche and Ms Culla. Ms LeBroque, Ms Grant and Ms Campbell were interviewed as 

potential witnesses.

[52] During her interviews, Ms Delaney was provided with a statement from Ms Roche. 

She also took notes from other witnesses. She was also provided with copies of the statement 

of Mr Morrell and his statement given to the New South Wales Police. 

[53] On or around 13 September 2017 she met with Ms Price to discuss the progress of her 

investigation report. During this meeting Ms Price offered to assist in managing the process 

due to Ms Delaney’s fairly high overall workload.








[2018] FWC 3933

15

[54] On or around 19 September 2017 Ms Delaney completed an investigation report and 

her proposed findings13, which she provided to Ms Price for her consideration. The 

recommended findings made by Ms Delaney in relation to Ms Culla’s conduct were:

a. Shouting and swearing at Ms Roche – Sustained 

b. Closing your office door on Ms Roche’s arm – Not Sustained – Insufficient 

Evidence

c. Pushing Ms Roche into a first aid cupboard, resulting in a cut on Ms Roche’s hand –

Sustained

d. Shouting and swearing at Mr Michael Morrell – Sustained

e. Throwing a drinking glass into the staffroom sink where it shattered over the bench, 

sink and floor – Not Sustained – Insufficient Evidence.

[55] Ms Delaney commenced a period of leave from 20 September 2017 to 4 October 

2017.

Ms Price

[56] Ms Price provided a primary and a supplementary statement14 in these proceedings.

[57] Ms Price was on leave at the time of the Incident and did not return to work until 

11 September 2017. She took over the investigation into the Incident when Ms Delaney went 

on leave. 

[58] Ms Price said that on or around 19 September 2017, Ms Delaney provided her with a 

copy of her investigation report of the Incident. 

[59] Having read the investigation report and the witness statements collected by Ms 

Delaney, Ms Price decided to engage an independent external investigator to review the 

investigation report and “critically evaluate its findings before the CSO made any final 

decisions”. 

[60] Ms Price’s explanation for her decision to engage an external investigator was that the 

matter was of a highly serious nature, particularly given the involvement of the New South 

Wales Police; and that she was also conscious of Ms Delaney’s previous dealings with respect 

to behavioural concerns about Ms Roche and Ms Culla and that Ms Roche had previously 

alleged Ms Delaney was biased in favour of Ms Culla. Ms Price felt that the insights and 

contribution of a specialist workplace investigator would be valuable.

[61] Ms Price said that Ms Delaney agreed with her suggestion to engage an external 

investigator. Ms Delaney also accepted her offer to take carriage of any further involvement 

in the matter.








[2018] FWC 3933

16

[62] Ms Price said that although she was aware that Ms Delaney’s investigation report was 

limited to allegations of misconduct against Ms Culla, she understood from materials that, 

during the investigation, allegations had also arisen as to Ms Roche’s conduct during the 

incident and that these allegations were never put to Ms Roche for her response. She said: “I 

therefore formed the view that to ensure the investigation was complete and that any findings 

and outcomes were balanced and afforded procedural and substantive fairness to both parties, 

it was important that allegations that relate to Ms Roche’s conduct were included within the 

final scope of the investigation.”

[63] On 27 September 2017 Ms Price put allegations to Ms Roche in a letter which also 

invited Ms Roche and her representative to attend an interview at which she would be 

provided with an opportunity to respond to the allegations in relation to her conduct.

[64] Ms Price later engaged Mr Tawfiq, an external workplace investigator, to assist the 

CSO with the investigation by “conducting a review of the statements and findings and 

provide any advice…..to the CSO in terms of the investigation process”.

[65] Subsequent discussions took place between Ms Price and Mr Tawfiq and, according to 

Ms Price, the following observations and advice were provided by Mr Tawfiq:

“Given the internal investigation is limited to the original allegations against [Ms 

Culla], and that you’ve now put allegations to Lorraine and we’re waiting for her 

response, I think you’re going to need to re-interview some of the witnesses to gain 

additional information about the incident.”

“I’ve noticed the witness statements are unsigned. My recommendations is that we 

ensure each of the witnesses have been given the opportunity to review their 

statements and have approved them.”

[66] Ms Price said she followed Mr Tawfiq’s recommendations and later provided him 

with the requested witness statements and relevant amendments. She directly interviewed Ms 

Roche on 5 October 2017, Ms Campbell on 11 October 2017, and Ms Culla on 24 October 

2017. Each person was provided with the opportunity to make amendments and the 

amendments to the statements were provided by her to Mr Tawfiq.

Mr Tawfiq

[67] Mr Tawfiq provided a statement15 in these proceedings.

[68] Mr Tawfiq is an external workplace investigator, trading as Workplace Consulting 

Services (WCS). 








[2018] FWC 3933

17

[69] In or about 2015 WCS was engaged by the CSO to investigate allegations made by Ms 

Culla, Ms Roche and Ms Woodhouse. This involved making factual findings in relation to the 

alleged conduct and the preparation of investigation reports.

[70] In cross examination, Mr Tawfiq made concessions in relation to the reliability of the 

report which arose from 2015 investigation.  It was this report that led to the written warning 

issued to Ms Roche in 2015. 

[71] On 12 October 2015 Mr Tawfiq provided the CSO with three separate investigation 

reports and summaries of analysis and findings for each report. In relation to Ms Roche, the 

allegations found to be sustained included that on 6 August 2015 Ms Roche was asked by Ms 

Culla to return to her desk and answer phones in circumstances where she had just 

commenced a lunch break, however refused to do so (Allegation 5). The further allegations

found to be sustained were that on more than one occasion Ms Roche did not take her lunch 

between 12pm and 1pm as she had been directed to do (Allegation 7(b)); that on more than 

one occasion Ms Roche did not go to Ms Culla to request leave as she had been directed to 

do, and instead made a request to the Principal (Allegation 7(c)); and finally, that Ms Roche 

had failed to appropriately use the central diary system (Allegation 7(f)).

[72] According to Mr Tawfiq, WCS was engaged by the CSO in early October 2017:

a. to prepare an investigation report in relation to a complaint made by Ms Culla about 

the conduct of Ms Roche on 17 August 2017 at the School, including the 

determination of recommended factual findings in relation to the alleged conduct; and

b. to review a preliminary internal investigation report produced by the CSO in relation 

to Ms Culla’s conduct towards Ms Roche in relation to the incident on 17 August 

2017, and to prepare a separate investigation report with respect to the complaint, 

including the determination of recommended factual findings in relation to the alleged 

conduct.

[73] Mr Tawfiq stated that he provided the CSO with the final investigation reports and 

summaries of analysis and findings with respect to Ms Roche and Ms Culla on 2 November 

2017. Mr Tawfiq stated that in preparing these documents, he relied on the interviews 

conducted by the CSO.

Ms Campbell

[74] Ms Campbell provided a statement16 in these proceedings.

[75] Ms Campbell is the Principal of the School and has held the position since April 2016. 

Prior to this role, Ms Campbell had been the Teacher Librarian at the School for 

approximately 15 years.








[2018] FWC 3933

18

[76] Ms Campbell gave evidence that she was aware of the long standing friction between 

Ms Roche and Ms Culla and that they had an acrimonious relationship. Ms Campbell said that 

she had on numerous occasions spoken to both Ms Roche and Ms Culla about their behaviour 

in the workplace.

[77] Ms Campbell agreed that she had a conversation with Ms Roche about Ms Puntoriero. 

She said that although she did not remember whether she had asked Ms Roche not to raise the 

issue of training with Ms Culla, it was not Ms Roche’s role to raise the matter.

[78] Ms Campbell was not present at the School when the Incident occurred on 17 August 

2017.

[79] Ms Campbell said that she did not think that reinstatement of Ms Roche was in the 

best interests of the School. She was of the view that Ms Roche struggled with her 

interpersonal relationships and would struggle to take direction from anyone given her 

behaviour.

[80] However in cross examination, Ms Campbell:

 was asked her opinion of Ms Roche as an employee and said: “I have always said and 

I will maintain that she was an amazing front of house person”17

 said that Ms Roche “had a very amazing knowledge of our families and of their 

parents and of the students”18 and Ms Roche had contributed to making parents feel 

welcome. “I had a lot of parents commenting about how welcoming she was in the 

front office to anyone that came to our school.”19

 said that the list of duties that Ms Roche was required to perform was extensive.20

 said that: “I think Lorraine [Roche] is an honest person. I think she is honest to her 

beliefs and I think she acts accordingly.”21

 agreed that she personally had no difficulties working with Ms Roche.22

 said that Ms Culla is a very volatile person and is predictably volatile.23

 agreed that she had sent Ms Culla home on more than one occasion, and that Ms Culla

often attended work in an emotionally unstable state.24

[81] A bundle of documents attached to Mr Tawfiq’s witness statement, provided by the 
CSO for the purpose of preparing the investigation reports, included notes taken for the 
interview with Ms Campbell on 11 October 2017. According to the notes, Ms Campbell 
said the following with respect to the support she had provided to both Ms Culla and Ms 
Roche: 

 “I have found it very difficult, often, there have been occasions when [Ms Culla] 

has come to work very heightened, and I have asked her a couple of times to go 

home, because of issues at home. When she has complained about Lorraine I have 

met with Lorraine and gone through these with her and I have asked her to be 

compliant with fixing these things.”








[2018] FWC 3933

19

 She had regular weekly meetings with Mr Morrell, Ms Culla and Ms Roche to 

“support the office ladies and provide a semi controlled environment where the two 

could communicate more effectively and respectfully towards one another. … [Ms

Culla] set the agenda and Lorraine was reluctant to speak.” These meetings stopped 

as she thought things were going well and she felt that the relationship had 

improved to a point where Ms Culla and Ms Roche were communicating in their 

own work space. “Both [Mr Morrell] and I continued to meet with [Ms Culla] at her 

request so that she could share the administrative matters for that week.”

 “Julie Price had made it very clear to all of us that if anything further happened 

between the two ladies they would be dismissed. I told them that and that they knew 

the consequences and I couldn’t fix their relationships, it is up to them.”

[82] In relation to her views of Ms Culla, Ms Campbell’s notes reveal the following:

 “… to be honest I was very wary about approaching [Ms Culla] she was very 

aggressive towards me. There was an incident just the week before that happened. 

There was a directive given to Lorraine by the previous principal. It was about her 

child being in the office after school. However, [Ms Culla’s] child had been in the 

office after school. David [formal principal] had told Lorraine not to have her child 

in the office. [Ms Culla] became very heightened, and said if that applies to me it 

applies to all staff. I said to [Ms Culla], I just want to clarify if that directive was 

given to both of you not only Lorriane.”

 “[Ms Culla’s] voice raised, yelling at me, even had the finger pointed in my face on 

one occasion. … When she has been heightened I have sent her home. When she 

comes in sometimes it is very visible, head down, not wanting to engage with 

anyone, very noticeable when she arrives at work on quite a few occasions. We 

knew to take a step back, as did everyone who was working in this area. On some 

occasions, raising of the voice, swearing very loudly at staff members, I have been 

sworn at, she has a very aggressive manner, I have experienced it. Staff members 

have come to me and made complaints.”

 “Lorraine often complained about [Ms Culla] leaving early and taking long lunch 

breaks off site. I am very understanding when people have to go to appointments, if 

they have to go they have to go. I say yes, they can go. I would say yes. There were 

lots of occasions [Ms Culla] left early and I wasn’t informed. I was frightened to 

follow that up with [Ms Culla] … I was afraid of the reaction I would get, … I was 

very frightened of her and the aggressive response I would get.”

 “Staff members have complained about the way they have been spoken to and 

treated [by Ms Culla] about budgets. They were very afraid to approach her.”

Mr Bowyer








[2018] FWC 3933

20

[83] Mr Bowyer was the Director of Schools of the CSO and held this position from 2007 
until his retirement in December 2017. He provided a statement25 and gave evidence in these 
proceedings as to his role in the dismissal of Ms Roche. 

[84] According to Mr Bowyer, his role as Director was the most senior one in the CSO and 

matters were only escalated for his attention when there had already been significant 

interventions at both the school level and from Human Resources.

[85] He became aware of the Incident and subsequently read investigation reports produced 

by Mr Tawfiq which he said “made it clear that both Ms Roche and Ms Culla had behaved 

inappropriately.”

[86] He met with Ms Price in or about November 2017 and asked her for a 

recommendation as to what steps the CSO should take next. Ms Price recommended that both 

Ms Culla and Ms Roche be asked to show cause as to why their employment should not be 

terminated. He recalled saying: “I agree. We can’t just give another warning, I can’t see how 

we can sustain or tolerate this. There is a huge amount of damage being done.” Ms Price then 

prepared show cause letters for him to sign which were issued on 10 November 2017 to Ms 

Culla and Ms Roche.

[87] He later attended separate show cause meetings with respect to Ms Culla and Ms 

Roche. In this regard, he said: “Overall, I felt that Ms Roche attempted to paint a picture 

underestimating the severity of the incident and her part in it. I was concerned that she stated 

she had an ‘excellent’ rapport and working relationships with staff at the School and failed to 

acknowledge in any way the long standing conflict with Ms Culla.”

[88] Mr Bowyer said that he told Ms Price after the show cause meeting with Ms Roche the 

following:

“This matter has been going for years. It has to stop now for the sake of all other 

employees and for the sake of Ms Roche, she has to be terminated. There is no 

empathy and no notion that she played a part in this irretrievable breakdown of 

relationships.”

[89] Mr Bowyer said that he did not take the decision to dismiss Ms Roche lightly. Despite 

being mindful of Ms Roche’s history of service with the CSO and her personal circumstances, 

Mr Bowyer said that he felt the termination of her employment was “the appropriate outcome 

and the only possible outcome”.

[90] Mr Bowyer confirmed that he read and signed the Termination Letter prepared by Ms 

Price.

Ms Murray








[2018] FWC 3933

21

[91] Counsel for Ms Roche made an application during hearing for the Commission to hear 

oral evidence from Ms Murray as to the reintegration into the School of Ms Roche if she were 

to be reinstated.

[92] Ms Murray had attended the hearing as a support person for Ms Roche. Ms Murray 

was a grade one teacher at the School, and had been employed there for around 32 years (with 

some time off during this period).

[93] The CSO opposed the application to allow Ms Murray to give evidence. I agreed to 

allow Ms Murray’s evidence subject to there being a sufficient opportunity for the CSO, over 

the remaining hearing dates, to call any rebuttal evidence it saw fit. Counsel for Ms Roche 

appropriately made a concession that if the evidence of Ms Murray proved to be procedurally 

unfair to the CSO that it would be appropriate that I ruled the evidence inadmissible.

[94] Ms Murray gave evidence that she was an IEU representative at the School. She said 

that a number of staff members had expressed concerns for Ms Roche and said: “I get the 

feeling that … if she were to come back that wouldn’t be a problem. It would just be Lorraine 

doing her job again, that she obviously did very, very well to begin with.”26

[95] In cross examination, Ms Murray said that two of the front office staff had expressed 

support for Ms Roche, and one of those two staff members had provided a written statement 

in support of Ms Roche, which was not produced during the hearing.27

The Findings in relation to Ms Roche arising from the Incident

[96] The investigation reports produced by Mr Tawfiq concluded that allegations 1, 2 and 4 

against Ms Roche were sustained and allegation 3 was not. While allegation 1 was found to 

be sustained, it was not found to have involved a breach of any CSO policies or requirements.

[97] All of the allegations against Ms Culla were found to be sustained.

[98] The document titled ‘Summary of Analysis and Findings – Lorraine Roche’28 provides 

the following comments with respect to each of the allegation:

“Allegation 1 - Without the consent or confirmation of the Principal, Ms Roche advised 

Ms Culla that a staff member, Maree Puntoriero, was being employed to do some of 

Ms Culla’s work while she was on leave.

‘It is not considered that there is sufficient evidence to demonstrate that Ms Roche’s 

actions were in contravention to the Guidelines for Professional Conduct. The 

evidence suggests that Ms Culla was already aware of Ms Punteriero’s potential 

employment. There was no evidence provided to suggest that Ms Punteriero’s 

potential employment was to be kept confidential from Ms Culla. As Ms Roche was 

not knowingly breaking a confidence or providing false information to Ms Culla it is 








[2018] FWC 3933

22

difficult to demonstrate that her suggestion that Ms Culla train Punteriero was a breach 

of the guidelines for Professional Conduct, although further evidence in Allegation 2-4 

suggests that Ms Roche may have been attempting to antagonize Ms Culla by raising 

the subject.’

Finding - Sustained

Allegation 2 - Despite being told by Ms Culla that she would not discuss Ms 

Punteriero’s employment with you, you followed Ms Culla and stood in the doorway 

of her office and continued to raise the issue of Ms Punteriero’s employment and 

training.

‘The evidence does not say specifically that Ms Culla said she would not discuss Ms 

Punteriero’s employment with Ms Roche but this was essentially implied by Ms 

Culla’s comment that she does not take directives from Ms Roche, when Ms Roche 

raised the issue of training Ms Punteriero. It would be reasonable for Ms Roche to 

understand that Ms Culla did not wish to continue the conversation with Ms Roche, 

particularly in light of their history of having a highly strained working relationship.

Ms Roche has denied in her interview that she followed Ms Culla but she contradicts 

her own evidence when she states that in an attempt to ‘smooth things over’ she went 

from her office to Ms Culla’s office door which was 3/4 closed and continued to 

discuss Punteriero’s training. Ms Roche stated: ‘I went from my office to her office 

door. The door was ¾ of the way closed. [Ms Culla] was opening the safe, I said [Ms 

Culla] I am not trying to direct you but Sandra has asked me to get Maree on the books 

for some training.’

It is considered that based on Ms Roche’s own evidence there is sufficient information

to recommend a sustained finding. It is further considered that Ms Roche continuing a 

discussion about training Ms Punteriero when Ms Roche was aware (based on her own 

evidence) that Ms Culla had told Ms Campbell that she did not have time to train Ms 

Punteriero. It is considered that Ms Roche’s actions were likely a deliberate attempt to 

antagonize Ms Culla.

It is considered that Ms Roche pursuing the issue of Ms Culla training Ms Punteriero 

in a context in which (1) they had a strained relationship (2) Ms Culla had indicated 

that she was not inclined to discuss the matter and (3) Ms Roche knew that Ms Culla

had already indicated to the Principal that she did not have the time to train Punteriero, 

her actions represent a failure to model respect in her interaction with a colleague and 

therefore a potential contravention of the Guidelines of Professional Conduct.’

Finding - Sustained








[2018] FWC 3933

23

Allegation 3 - When Ms Culla tried to close her office door, you pulled on the door 

from the other side and placed your arm and leg in the doorway in an attempt to 

prevent Ms Culla from closing the door and this resulted in an injury to Ms Roche’s 

hand.

‘It is clear from the evidence of both Ms Culla and Ms Roche that Ms Culla attempted 

to close her office door during their conversation and that, at least, Ms Roche’s hand 

or arm was in it (if not her leg) and Ms Culla attempted to close the door at this time. 

There is, however, significant disparity to a number of aspects of the evidence. Ms 

Culla maintains that she was initially unaware that she had closed the door on Ms 

Roche’s hand, arm or leg. Ms Culla states that Ms Roche was pulling back on the door 

preventing Ms Culla from closing it.

Ms Roche’s version is that she was ‘shoved’ in the chest by Ms Culla and she grabbed 

the side of the door to regain her balance and this is when Ms Culla closed the door on 

her hand causing it to bleed.

There were no witnesses to the alleged incident and it is considered that both 

employees were behaving unreasonably at the time and therefore it is not possible to 

draw a safe conclusion as to which version is more likely to be true. It is considered 

that a not sustained – insufficient evidence finding should be made for this allegation 

as it cannot be said with sufficient certainty that Ms Roche was pulling the door open 

or had grabbed it to prevent herself from falling when Ms Culla closed it.’

Finding – Not Sustained – Insufficient Evidence

Allegation 4 - Ms Culla repeated told you to go away and to leave her alone but you 

refused to do so essentially preventing Ms Culla from being able to easily exit her 

office, despite it being apparent that Ms Culla was in considerable distress regarding 

the situation.”

‘It is clear from the evidence of both Ms Roche and Ms Culla that despite Ms Culla

repeatedly shouting at Ms Roche to leave her alone, Ms Roche continued to enter the 

room and attempt to speak to Ms Culla in an apparent calm voice. It is considered that 

Ms Roche’s choice to not leave the room when Ms Culla repeatedly shouted at her to 

do so was a remarkably unreasonable one. Her decision was made even more 

remarkable by the various aspects of the interaction, most notably was (according to 

Ms Roche) that Ms Culla shoved Ms Roche in the chest causing her to have to grab 

onto the door in order to retain her balance and then Ms Culla (according to Ms 

Roche) closed the door on her hand hard enough to make it bleed. Ms Roche saw the 

blood and felt pain but instead of leaving, as she was being repeatedly shouted at to do 

so, she continued to calmly talk to Ms Culla and walk further into Ms Culla’s office.








[2018] FWC 3933

24

Whilst this was happening Ms Culla continued to shout at her to leave her alone. Ms 

Roche corroborates Ms Culla’s evidence that she attempted to use her phone and then 

threw it down and attempted to leave through a back door but was unable to get it 

open. Remarkably in this time Ms Roche never leaves the office. Ms Roche’s choice 

to stay under such circumstances in an attempt (according to Ms Roche) to calm Ms 

Culla down is not considered credible, particularly in circumstances in which Ms 

Roche and Ms Culla have had a history of animosity and poor communication.

It is clear from the evidence of both Ms Roche and Ms Culla that Ms Culla attempted 

to leave from another door but was unable to do so. It is considered likely that Ms 

Culla chose to try and leave through a back door as she could not easily get past Ms 

Roche to leave through the front door of the office. It is considered likely that Ms 

Roche essentially prevented Ms Culla from being able to easily exit her office and the 

allegation should be sustained.

It is considered likely that Ms Roche was aware that her continuing into the office in 

circumstances in which Ms Culla was screaming at her to leave and attempted to leave 

through another door would have caused Ms Culla more anxiety. Particularly in light 

of the strained relationship between the two. It is considered more likely than not that 

Ms Roche continued into Ms Culla’s office in order to antagonize rather than calm Ms 

Culla, as Ms Roche has suggested.

It is considered that Ms Roche’s actions in this allegation represent a failure to model 

respect in her interaction with Ms Culla and therefore a potential contravention of the 

Guidelines of Professional Conduct.’

Finding – Sustained”

Submissions on behalf of Ms Roche

[99] Submissions made on behalf of Ms Roche argue that there was no valid reason for her 

dismissal for the followings reasons:

1. The 2015 warning was unjustified, in light of Ms Roche’s evidence in relation to 

the allegations, and concessions made by the CSO’s witnesses in cross 

examination in relation to these matters.

2. Although Ms Roche’s conduct might not have been blemish free, it is apparent that 

the aftermath of the 2015 warning and upon Ms Culla returning to work following 

a period of leave, Ms Roche and Ms Culla had found a way to work together 

peacefully. This was supported by the fact that there were no incidents of material 

concern involving Ms Roche and Ms Culla during that period.








[2018] FWC 3933

25

3. In issuing the Price warning, in unqualified terms, that any further incidents 

involving Ms Roche and Ms Culla would result in both being dismissed, the CSO 

did not give sufficient regard to the concept of differential culpability.

4. The evidence before the Commission demonstrates that Ms Culla was ‘predictably 

volatile’, often arrived at work in a heightened state or developed such a state 

during the course of the day, often acted in a manner that was highly 

unprofessional and had to be sent home from work on many occasions. Ms 

Roche’s ‘disengaging’ manner in dealing with Ms Culla was a reasonable response 

in these circumstances.

5. In relation to allegation 2, in circumstances where there was not any material 

disciplinary problem with Ms Roche having approached Ms Culla in the lunch 

room to raise the issue of training for Ms Puntoriero, it is unrealistic that the 

investigation concluded that Ms Roche’s subsequent approach to Ms Culla

involved any breach of policy, or misconduct.

6. In the context of the Price warning, Ms Roche was justified in approaching Ms 

Culla in her office to discuss what had happened in the lunch room. Her action in 

engaging with Ms Culla was probably the sort of action that the CSO would have 

wished Ms Roche to take in her dealing with Ms Culla.

7. There was a window of time between the discussion in the lunch room and the 

later approach by Ms Roche to Ms Culla and “it is nonsense to suggest that Ms 

Roche ‘followed’ Ms Culla”.

8. As such, Allegation 2 should not have been sustained and in any event did not 

justify dismissal.

9. At the time when Ms Culla had become heightened, and had started yelling at Ms 

Roche, Ms Roche was left with little option but to remain there and try diffuse Ms 

Culla’s heightened state. This is particularly so given the Price warning. Leaving 

alone any person who was experiencing distress at that level would be an 

inhumane thing to do and the fact of Ms Culla’s anxiety attack alone justified Ms 

Roche remaining there, at least until Ms Culla had settled.

10. The allegation that Ms Roche had ‘blocked’ Ms Culla’s exit is untenable. Ms 

Roche had approached her supervisor in her office, whose door was not closed, 

and stood in reasonable position when speaking with Ms Culla. Ms Roche did not 

intrude into the office any further than might be expected in the circumstances and 

that this happened also to be in the pathway that Ms Culla wished to use to exit the 

room is mere coincidence, and did not justify a characterisation of ‘blocking’ Ms 

Culla’s exit.








[2018] FWC 3933

26

11. More importantly, the speed with which the situation escalated was entirely a 

result of Ms Culla becoming heightened and must not be overlooked, or assessed 

with the benefit of hindsight.

12. Ms Roche approached her supervisor to discuss a workplace issue and suddenly

Ms Culla became intensely distressed, was shouting and then caused a scuffle. Ms 

Roche, having been warned that any further incident with Ms Culla spelled 

immediate dismissal, remained calm despite being physically injured and did not 

seek to retaliate. Nothing more could have reasonably been expected of Ms Roche 

in dealing with that situation. She is not an expert in de-escalating emotionally 

unstable people.

13. It is apparent that after a period of disharmony between Ms Roche and Ms Culla, 

the issuing of the warnings had achieved their purpose in ending the squabble 

between the two. Having understood from that perspective, and from the 

perspective of Ms Culla’s significant personal issues including her ‘predictable 

volatility’, Ms Roche’s role in the Incident, even when combined with the other 

issues raised against her, did not justify dismissal.

14. The failure to address these contextual features means that Mr Tawfiq’s findings 

involve an extravagant contortion of the Incident, in a manner that portrays Ms 

Roche’s involvement as far more serious than it was. That contortion was best 

demonstrated in cross examination of Mr Tawfiq when he gave evidence that the 

fact that Ms Culla was in a heightened state in his opinion did not count as a 

mitigating factor in relation to Ms Roche’s situation.

15. In these circumstances, Allegation 4 should not have been sustained, and in any 

event, did not justify dismissal.

16. Despite stating in the termination letter that a further reason for dismissal was that 

“… I have no confidence that the situation between yourself and Ms Culla will 

improve”, Mr Bowyer conceded in cross examination that he knew Ms Culla had 

resigned prior to Ms Roche’s dismissal. Accordingly, this further purported reason 

justifying dismissal was disingenuous and invalid.

[100] Submissions on behalf of Ms Roche further argued that procedural fairness was not 

afforded in her case. It was submitted that:

1. From the time of the ‘extraordinary warning’ issued by Ms Price, Ms Roche’s fate was 

linked with that of Ms Culla, and that once the Incident occurred, the employment of 

both would have ended no matter what they said. Had the CSO been prepared to keep 

an open mind, Ms Roche may have persuaded them not to dismiss her, particularly in 

circumstances when Ms Culla had already resigned.








[2018] FWC 3933

27

2. By not informing Ms Roche that Ms Culla had resigned, the CSO had deprived Ms 

Roche of a significant argument in her defence, being that there would not be any 

future difficulties because the main antagonist would no longer be present at the 

school. 

[101] It was submitted that the dismissal was harsh and unjust in Ms Roche’s particular 

circumstances, given that she had attended the School, her child had attended the School, and 

that her position in the local community was integrated with her employment at the School.

[102] As for remedy, it was submitted that:

1. Reinstatement of Ms Roche was not inappropriate. The evidence of Ms Campbell, 

Mr Morrell and Ms Murray all suggest that Ms Roche could be expected to 

successfully reintegrate back to the School.

2. There is no basis in the evidence to suggest the existence of any risks which would

render reinstatement inappropriate.

3. The Commission should order Ms Roche be reinstated to the position of School 

Support Officer and Principal’s Assistant at the School and that an order be made 

to restore lost pay.

Submissions on behalf of the CSO

[103] Mr O’Sullivan gave an overview of the CSO’s case at the outset of the hearing29 as 

follows:

“… ultimately, the evidence will disclose that the behaviours of the applicant had 

occurred over the entire period of the time from when Ms Culla had started through to 

the dismissal and what had occurred on 17 August 2017 was, in fact, an act by which 

the applicant had provoked Ms Culla in circumstances where she was aware of the 

volatility, she was aware of the CSO's view as to her appropriate behaviour, she had 

been directed on a number of occasions on the behaviour expected of her and, 

notwithstanding that, she breached those directions, she breached the guidelines and, in 

those circumstances, the dismissal was not unfair and it was for a valid reason.

… in terms of remedy, the CSO holds a number of concerns about the practicability of 

reinstatement and those concerns.… stem from the applicant's behaviour during the 

period of time from Ms Culla commencing employment through to the dismissal of 

the applicant, that she had failed to act in an appropriate manner and, notwithstanding 

the fact that Ms Culla is on longer employed by the respondent, there is a real concern 

that the applicant will continue to behave in a similar manner.”








[2018] FWC 3933

28

[104] The CSO submitted that Ms Roche was dismissed on the basis of misconduct as a 

result of the Incident on 17 August 2017 and her conduct which was said to justify the 

dismissal was as follows:

Allegation 2: Despite being told by Ms Culla that she would not discuss Ms Ponteriero’s 
employment with you, you followed Ms Culla and stood in the doorway of her office 
and continued to raise the issue of Ms Ponteriro’s employment and training.

Allegation 4: Ms Culla repeatedly told you to go away and to leave her alone but you 
refused to do so essentially preventing Ms Culla from being able to easily exit her 
office, despite it being apparent that Ms Culla was in considerable distress regarding 
the situation.

[105] In relation to Allegation 2, the CSO’s final written submissions say that the term 

‘followed’ in the context of the conduct included a period of approximately 10 minutes 

between the commencement of the Incident in the staff room and the time at which Ms Roche 

approached Ms Culla in her office.

[106] In relation to Allegation 4, the CSO argued that given Ms Roche’s admission that she 

was standing in the doorway of Ms Culla’s office and remained there when she was asked to 

‘get out and leave her alone’ and “the fact that Mr Morrell observed that Ms Culla had to push 

past the applicant to get out of her office, coupled, with the concessions provided by the 

applicant provides a more than comfortable basis to determine that the applicant had 

‘blocked’ Ms Culla’s exit.”

[107] The CSO drew attention to the Full Bench decision in Diaz v Anzpac Services 

(Australia) Pty Limited30 and submitted that consideration of whether the conduct is of 

sufficient seriousness or gravity to constitute a valid reason for dismissal includes contextual 

matters as well as previous conduct and warnings in relation to similar conduct. It argued it 

was therefore relevant to consider the CSO’s expressed views as to the conduct expected, as 

well as the attempts to support/coach Ms Roche to achieve the expected standard of conduct.

[108] The CSO argued that submissions made on behalf of Ms Roche attacking the findings 

of Mr Tawfiq in the investigation which led to the 2015 warning, and limiting the contextual 

matters to the immediate circumstances of the Incident, ignored the following matters:

1. the repeated inappropriate behaviour of Ms Roche over the previous 3 years before the 

Incident; 

2. the warnings given to her concerning this behaviour; 

3. the type of behaviour required of Ms Roche in the workplace; and 

4. the support given to Ms Roche to achieve these expectations.

[109] The CSO also argued that Ms Roche’s submissions ignored: “the broader contextual 

issues concerning Mr Roche’s knowledge of the potential for her interactions with Ms Culla 

to cause Ms Culla to become heightened and the extensive support provided by the 

respondent to the applicant about how to deal with such situations as and when they arose”.








[2018] FWC 3933

29

[110] The CSO said the evidence discloses that prior to the Incident, Ms Roche had 

conducted herself in a manner that could only be described as a pattern of unacceptable 

behaviour in relation to her interactions with others, including Ms Culla, at the workplace. It 

attached to its closing submissions a Schedule of events/issues which it asserted showed a 

history of interpersonal conflict involving Ms Roche and inappropriate behaviour by her 

between 2014 and the date of her dismissal (the Schedule).

[111] The CSO submitted that as a result of this conduct, Ms Roche was spoken to, provided 

coaching, informed of the CSO’s expectations as to appropriate conduct and issued warnings, 

both formal and informal.

[112] Following Ms Culla’s return to work after a period of workers compensation leave in 

July 2016, the CSO said it reiterated its expectations in relation to professional behaviour by 

Ms Roche, and on 30 March 2017 provided her with the oral warning that any further incident 

involving her and Ms Culla would lead to her dismissal (ie. the Price warning). This was 

reinforced with Ms Roche in a meeting on 6 April 2017 where she was informed that she was 

to work effectively with Ms Culla as her ongoing employment depended on it.31

[113] The CSO submissions assert that the Schedule discloses a common theme, that being 

Ms Roche’s difficulty in accepting the authority of others to issue directions to her, and her 

failure to follow such directions. The directions relied upon by the CSO primarily involve 

taking of her lunch break at a particular time as well as the process by which requests for 

leave ought be managed.

[114] In relation to the Incident, the CSO submitted that:

“It is difficult to conceive of a situation where any reasonable person would think it 
appropriate to continue to engage with a co-worker who was pleading to be left alone 
and visibly distressed from the ongoing presence of that person. Moreover, the 
applicant gave evidence as to her knowledge of Culla’s volatility, unpredictability and 
that she had been directed by Campbell to “take special care around her” and to “tread 
carefully” around Culla when she was in these moods”. Furthermore, Campbell gives 
evidence that she was aware, based on her own direct observations of the applicant, 
that the applicant, as well as everyone else, knew “to take a step back” when Culla was 
heightened. Campbell explained that take a step back meant to not engage Culla and a 
failure to not take a step back when Culla was heightened would lead to things 
escalating, as it most certainly did on 17 August 2017”.32

[115] The CSO contended that the Commission should reject Ms Roche’s submissions that 

because of the Price warning, she had no choice other than to approach Ms Culla to ‘discuss’

or ‘smooth things over’ following the initial part of the Incident in the lunchroom. The CSO 

submitted that this should be rejected for the following reasons:








[2018] FWC 3933

30

a. Ms Roche should have taken ‘an apologetic approach’, rather than being 

“argumentative in trying to drive home the point that Maree Ponteriro needed to be 

trained”;

b. the argumentative approach taken by Ms Roche was inconsistent with her knowledge 

that the CSO had concerns regarding her challenges to Ms Culla’s authority; and

c. Ms Roche did not posit her view that she ‘had no choice’ in needing to approach Ms 

Culla in her application for unfair dismissal, her witness statement in these 

proceedings, or in her response to the show cause letter.

[116] In relation to allegation 4, the CSO submitted that the Commission should take 

account of the evidence of Ms Grant and Mr Morrell to the effect that neither heard words 

from Ms Roche during the Incident which would have the effect of ‘calming down’ Ms Culla.

It argued that Ms Roche’s evidence to the effect that she was attempting to calm down Ms 

Culla did not ring true having regard to the evidence that Ms Roche knew she should ‘take a 

step back’ when Ms Culla became heightened.

[117] The CSO submitted that Ms Roche’s approach to Ms Culla in her office and her 

refusal to leave and block the exit after “numerous distressed cries by Culla constitute a 

breach of the respondent’s policies, in particular clause 5 of the Guidelines for Professional 

Conduct in the Protection of Children and Young People, obligations under the Work Health 

and Safety Act 2011, the numerous directions to the applicant regarding the appropriate level 

of professional conduct and warnings”.33

[118] In relation to the other criteria the Commission must have regard to in determining 

whether a person has been unfairly dismissed, the CSO made the following submissions:

a. Ms Roche was notified of reasons for her dismissal, and was given an opportunity to 
explain the circumstances relating to her conduct;

b. Ms Roche was not refused the opportunity to have a support person during the 
process;

c. the dismissal was not related to Ms Roche’s performance (as opposed to conduct);
d. the CSO’s size did not impact on the procedures it followed in effecting the dismissal;
e. in relation to other matters the Commission may consider relevant, the CSO submitted 

that there were no other factors that would render the termination unfair for the 
purposes of the Act.

[119] In relation to remedy, the CSO submitted the application should be dismissed, 

however if the Commission found the dismissal was harsh, unjust and/or unreasonable, then it 

submitted that reinstatement would not be appropriate for the following reasons:

a. Ms Roche posed a safety risk. In this regard the CSO referred to the conclusions 
reached by the New South Wales Police that Ms Roche was the instigator of the 
Incident, and was significantly harassing Ms Culla. Exposing other staff to such a risk 
could constitute a contravention of the Work Health and Safety Act 2011; and








[2018] FWC 3933

31

b. there was a loss of trust and confidence based on concern expressed by teachers to Ms 
Campbell that Ms Roche had ignored them in public following her dismissal, the 
improbability of re-establishing the necessary relationship between Ms Roche and 
other staff members, the CSO’s concern that based on past experience Ms Roche 
would be unlikely to meet the appropriate levels of conduct and professionalism, and
the likelihood of Ms Roche having difficulties interacting in an appropriate manner 
with employees who are in a position to give her direction.

[120] The CSO also submitted that reinstatement was inappropriate because Ms Roche’s 

position at the School had been filled and there were no other vacancies at the School.

Consideration

Protection from Unfair Dismissal

[121] There is no dispute and I am satisfied that Ms Roche is a person protected from unfair 

dismissal by virtue of s.382 of the Act.

[122] I will now consider if the dismissal of Ms Roche was unfair within the meaning of the 

Act.

Was the dismissal unfair?

[123] A dismissal is unfair if the Commission is satisfied on the evidence before it that the 

circumstances set out at s.385 of the Act existed. Section 385 provides the following:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal 

Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal 

Code: see section 388.

[124] There is no dispute that Ms Roche was dismissed and that subsections (c) and (d) do 

not apply. 

Was the dismissal harsh, unjust or unreasonable?

[125] The criteria the Commission must take into account when assessing whether the 

dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

387 Criteria for considering harshness etc.








[2018] FWC 3933

32

In considering whether it is satisfied that a dismissal was harsh, unjust or 

unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the 

person’s capacity or conduct (including its effect on the safety and 

welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason 

related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a 

support person present to assist at any discussions relating to dismissal; 

and

(e) if the dismissal related to unsatisfactory performance by the person—

whether the person had been warned about that unsatisfactory 

performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be 

likely to impact on the procedures followed in effecting the dismissal; 

and

(g) the degree to which the absence of dedicated human resource 

management specialists or expertise in the enterprise would be likely to 

impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[126] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or 

unreasonable’ was explained in Byrne v Australian Airlines Ltd34 as follows:

‘... 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 

consequences 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.’

[127] In Blyth Chemicals Ltd v Bushnell35 (Blyth Chemicals), Dixon and McTiernan JJ said:

‘Conduct which in respect of 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 

of dismissal… But the conduct of the employee must itself involve the incompatibility, 

conflict, or impediment, or be destructive of confidence. An actual repugnance 








[2018] FWC 3933

33

between his acts and his relationship must be found. It is not enough that grounds for 

uneasiness as to future conduct arises.’36

[128] I am required to consider each of these criteria in reaching my conclusion37, which I 

now do.

Valid reason - s.387(a)

[129] This criteria requires consideration as to whether there was valid reason for the 

dismissal of Ms Roche related to her conduct, although it need not be the reason given to her

at the time of the dismissal.38

[130] The meaning of ‘valid reason’ in s.387(a) is drawn from the judgement of Northrop J 

in Selvachandran v Peteron Plastics Pty Ltd39. This meaning has been applied by this 

Commission and its predecessors for many years:

‘…, the adjective ‘valid’ should be given the meaning of sound, defensible or well-

founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a 

valid reason for the purposes of s.170DE(1). At the same time the reasons must be 

valid in the context of the employee’s capacity or conduct or based upon the 

operational requirements of the employer’s business. Further, in considering whether a 

reason is valid, it must be remembered that the requirement applies in the practical 

sphere of the relationship between an employer and an employee where each has rights 

and privileges and duties and obligations conferred and imposed on them. The 

provisions must ‘be applied in a practical, commonsense way to ensure that’ the 

employer and employee are treated fairly, ...’40

[131] In other words, the reasons should be justifiable on an objective analysis of the 

relevant facts.

[132] In cases concerning conduct, the Commission must determine whether, on the balance 

of probabilities, the conduct allegedly engaged in by the employee actually occurred41. The 

test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that 

the employee was guilty of the conduct and therefore acted in the belief that the termination 

was for a valid reason. The Commission must make a finding as to whether the conduct 

occurred based on the evidence before it42.

[133] Further, the Commission does not ‘stand in the shoes’ of the employer but will need to 

be satisfied that the termination of the employee was for a valid reason43.

Did the conduct occur, and was the reason for dismissal valid in the context of Ms Roche’s 

employment history?








[2018] FWC 3933

34

[134] In this case, it was the Incident that led to Ms Roche’s dismissal. The conduct in 

question comprises the two allegations found to be sustained (i.e. Allegation 2 and 4) which 

are outlined in the Termination Letter and are set out at paragraph 21 above.

[135] In relation to Allegation 2, as the investigation report correctly identifies, the evidence 

did not demonstrate that Ms Culla told Ms Roche that she would not discuss Ms Punteriero’s 

employment with her. 

[136] In relation to whether Ms Roche ‘followed’ Ms Culla, I accept that in all likelihood 

there was a period of approximately 10 minutes between the initial conversation in the 

lunchroom, and the further conversation in Ms Culla’s office. 

[137] I disagree with the findings in the investigation report that Ms Roche contradicted her 

own evidence by denying in her interview that she ‘followed Ms Culla’ while at the same 

time saying that she went to Ms Culla’s office in an attempt to ‘smooth things over’. The 

word ‘followed’ in this context suggests no time lapse between the time of the conversation in 

the lunchroom and the conversation in Ms Culla’s office. Given the 10 minute or so 

difference, it is easy to understand why Ms Roche would say that she did not ‘follow’ Ms 

Culla.

[138] Accordingly, I find that the conduct, as put to Ms Roche in Allegation 2, did not occur 

in the manner specified in the allegation.

[139] In relation to Allegation 4, the evidence is clear that Ms Culla told Ms Roche to go 

away and leave her alone. The evidence does not support a finding that in not ‘going away’, 

Ms Roche prevented Ms Culla from being able to easily exit her office. The evidence does 

support a finding that Ms Culla was in considerable distress at the time. Accordingly, I find 

that only a part of the conduct put to Ms Roche in Allegation 4 occurred.

[140] In light of the evidence, however, there is no basis to find that either allegation was a 

contravention of the Guidelines of Professional Conduct nor any other requirement of the 

CSO. 

[141] There is no doubt there was interpersonal conflict between Ms Roche and Ms Culla. It 

is clear from the evidence outlined above that Ms Culla was often in a ‘heightened’ state, and 

that in Ms Campbell’s words: “we knew to take a step back [i.e. avoid engaging with Ms 

Culla], as did everyone who was working in this area”.

[142] More importantly, that Ms Culla was often in a ‘heightened’ state seems to be 

accepted by the CSO, and its submissions in this regard refer to Ms Culla as volatile and 

unpredictable, and that Ms Roche had been directed to ‘take special care around Ms Culla’.

[143] The fact that the CSO continued to tolerate such behaviour from Ms Culla over such a 

long period of time is surprising. 








[2018] FWC 3933

35

[144] The evidence discloses that Ms Culla’s difficulties were not confined to her interaction 

with Ms Roche. It is unreasonable in my view to attribute so much of the responsibility for the

quality of the interaction between Ms Culla and Ms Roche to Ms Roche, such as to warrant 

her dismissal.

[145] Ms Roche was criticised for her lack of engagement with Ms Culla, which was 

described at during the hearing as “passive-aggressive”, and “disengaged and dismissive”. 

However when she did engage with Ms Culla during the Incident, it led to her dismissal. It is 

hard to see what could possibly have been expected of Ms Roche in circumstances where Ms 

Culla’s behaviour was, on any reasonable view, often irrational and inappropriate. 

[146] I accept Ms Roche’s explanation that following the conversation about training Ms 

Punteriero, she was concerned that she was on final warning and that any further incident 

would lead to her dismissal. Ms Roche went to Ms Culla’s office with the intention to 

‘smooth things over”. I accept there was no ill intent on Ms Roche’s part and what happened 

afterwards was beyond her control.

[147] There is absolutely nothing inappropriate, in my view about Ms Roche approaching 

her supervisor to discuss a workplace issue. There is no evidence to suggest that Ms Roche’s 

approach to Ms Culla was undertaken in an inappropriate manner. Ms Grant’s evidence in this 

regard is consistent with Ms Roche’s, that being that she heard Ms Roche saying: “I’m just 

trying to have a conversation with you.” Ms Grant’s evidence was that Ms Roche’s voice was 

not raised during the Incident. 

[148] I accept the evidence of Ms Roche that at the time she was “confused, bewildered and 

shocked that Ms Culla was screaming”. I do not consider it unreasonable for Ms Roche to try 

to calm Ms Culla down when she started yelling ‘stay away from me’. It may have been 

unwise with the benefit of hindsight that Ms Roche did not leave, but I do not accept the 

CSO’s contention that Ms Roche had intended to deliberately antagonise Ms Culla. On the 

contrary, I accept Ms Roche’s evidence that given the speed at which the situation escalated, 

she acted in a manner that she thought appropriate, that being to try to calm down Ms Culla 

and diffuse the situation.

[149] Further, I do not accept the CSO’s argument that I should reject Ms Roche’s evidence 

to the effect that she was attempting to calm down Ms Culla because Ms Roche knew she 

should ‘take a step back’ when Ms Culla became heightened. It is clear that the situation 

escalated rapidly and that Ms Culla’s behaviour was completely irrational.

[150] I find that Ms Roche’s conduct in relation to the Incident was nowhere near sufficient 

to breach the relevant CSO policies, as asserted by it.

Conduct in context

[151] The Schedule suggests that Ms Roche had a long history of inappropriate behaviour. 
However, a closer consideration of the contents of the Schedule, combined with the evidence 








[2018] FWC 3933

36

adduced during the hearing (and in particular the cross examination of the CSO’s witnesses 
by Counsel for Ms Roche), supports the submissions made by Ms Roche and confirmed by 
Ms Campbell that subsequent to the 2015 warning, Ms Roche and Ms Culla had found a way 
to work together. The matters listed in the Schedule from the time of the 2015 warning are on 
any reasonable view of it minor in nature, and there is no evidence of any incidents of 
significance involving Ms Culla and Ms Roche during this period. 

[152] The requirement by the CSO that Ms Roche “work effectively with Ms Culla” in 
circumstances where Ms Culla was ‘predictably volatile’ and regularly ‘heightened’ was an 
unreasonable one in my view. This is particularly so given Ms Campbell’s evidence that (as 
Ms Culla’s manager) she found Ms Culla difficult to work with and was wary about 
approaching her. Ms Campbell also described Ms Culla a very volatile person who often 
attended work in an emotionally unstable state.

[153] In relation to 2015 warning, I agree with the submissions made on behalf of Ms Roche 
the allegations found to be sustained were not of sufficient substance as to warrant the 
warning she received.

[154] I agree with the characterisation of the Price warning by Counsel for Ms Roche as 

‘extraordinary’, in that it was issued in unqualified terms that if there were any further 

incidents involving Ms Roche and Ms Culla, both would be dismissed. Clearly, this is what 

occurred as a result of the Incident, however the culpability of Ms Culla compared to that of 

Ms Roche should have been obvious, and should not have resulted in Ms Roche’s dismissal.

[155] Accordingly, I am satisfied that Ms Roche’s conduct did not amount to misconduct. 

The reason for her dismissal was not justifiable on an objective analysis of the relevant facts. 

Accordingly, I am satisfied that there was no valid reason Ms Roche’s dismissal as the reason 

for her dismissal was not sound, defensible and well-founded.

[156] In finding that there was no valid reason for Ms Roche’s dismissal, I note that there is 

no issue that the CSO is entitled to set standards of conduct, with which employees can be 

required to comply. Nor is there any issue with requiring an employee to follow a reasonable 

and lawful direction. Ms Roche should be under no illusion that these requirements will apply 

to her on her return to the School. However, in this case the CSO did not demonstrate that Ms 

Roche’s conduct amounted to a breach of its policies nor did the conduct amount to 

misconduct. Even if all of the contextual matters the CSO relied on were found to have 

provided a valid basis for the prior warnings, the conduct of Ms Roche in relation to the 

Incident was appropriate and reasonable in the circumstances, and the criticism of her conduct 

in this regard was unfounded. 

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

[157] Notification of a valid reason for termination must be given to an employee protected 

from unfair dismissal before the decision is made,44 in explicit terms45 and in plain and clear 

terms.46 In Crozier v Palazzo Corporation Pty Ltd47 a Full Bench of the Australian Industrial 








[2018] FWC 3933

37

Relations Commission dealing with similar provision of the Workplace Relations Act 1996

stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be 

notified of a valid reason for their termination before any decision is taken to terminate 

their employment in order to provide them with an opportunity to respond to the 

reason identified. Section 170(3)(b) and (c) would have very little (if any) practical 

effect if it was sufficient to notify employees and give them an opportunity to respond 

after a decision had been taken to terminate their employment. Much like shutting the 

stable door after the horse has bolted.”48

[158] An employee protected from unfair dismissal must also be provided with an 

opportunity to respond to any reason for dismissal relating to the conduct or capacity of the 

person. This criterion is to be applied in a common sense way to ensure the employee is 

treated fairly and should not be burdened with formality.49

[159] The requirement to notify of the reason, together with the requirement to provide an 
opportunity to respond to the reason, involves consideration of whether procedural fairness 
was afforded to Ms Roche before her dismissal was effected.

[160] Satisfaction of these requirements will usually require a straightforward factual inquiry 
to be made, namely: what was Ms Roche told about the reason for the dismissal, before the 
dismissal took place, and was she given the opportunity to respond?

[161] There were two procedural fairness complaints made on behalf of Ms Roche. The first 

of these was that from the time of the Price warning, Ms Roche’s fate was linked to that of Ms 

Culla, and that once the Incident occurred, the employment of both Ms Roche and Ms Culla

would have ended no matter what either said in response. The second complaint was that Ms 

Roche was not informed that Ms Culla had resigned, thereby depriving Ms Roche of a 

significant argument in her defence, that being that there would not be any future difficulties 

because Ms Culla would no longer be present at the School.

[162] There is no satisfactory reason as to why the CSO would withhold from Ms Roche the 

fact that Ms Culla had resigned. I agree that this would have been an argument in Ms Roche’s 

favour that there would not be future issues because Ms Culla was not there. However the 

evidence supports a finding that the CSO (in part because of the Price warning) would not 

have come to a different view. 

[163] Notwithstanding, it is clear on the evidence that Ms Roche was notified of a reason for 

her dismissal relating to her conduct and was given an opportunity to respond. This is 

evidenced by the process undertaken by the CSO, including the Show Cause letter and 

meeting. 

Unreasonable refusal by the employer to allow a support person - s.387(d)








[2018] FWC 3933

38

[164] Where an employee protected from unfair dismissal has requested a support person be 

present to assist in discussions relating to the dismissal, the employer should not unreasonably 

refuse that person being present.

[165] There is no dispute that Ms Roche was provided with the opportunity to have a 

support person.

Warnings regarding unsatisfactory performance - s.387(e)

[166] Ms Roche was not dismissed for unsatisfactory performance and so this consideration 

is neutral. 

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of 

dedicated human resources management specialist/expertise on procedures followed 

(s.387(g))

[167] I am satisfied that the size of the CSO and its dedicated human resource expertise did 

not impact on the procedures followed by the CSO in effecting the dismissal, and so this 

consideration is neutral.

Other relevant matters - s.387(h)

[168] Section 387(h) provides the Commission with a broad scope to consider any other 

matters it considers relevant.

[169] The CSO submitted that there were no other factors that would otherwise render the 

dismissal “unfair” for the purposes of the Act.

[170] Ms Roche submitted that there were “special features” of her employment that tended 

to suggest the dismissal was especially harsh or unjust. Those special features were that Ms 

Roche and her child had attended the School, and that her position in Griffith society was 

integrated with her employment at the School.

[171] While relevant, I do not consider that these features are of significance in determining 

whether her dismissal was unfair.

Conclusion

[172] Having considered each of the matters specified in s.387 of the Act and for the reasons 

set out above, I am satisfied that the dismissal of Ms Roche was harsh, unjust and

unreasonable. Accordingly, I find the Applicant’s dismissal was unfair.

Remedy








[2018] FWC 3933

39

[173] Section 390 of the Act sets out the circumstances in which I may make an order for 

reinstatement or compensation:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the 

payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal 

(see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The Commission may make the order only if the person has made an 

application under section 394.

(3) The Commission must not order the payment of compensation to the person 

unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in 

all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

[174] I have already dealt with the issues at s.390(1)(a)–(b) above. I am satisfied Ms Roche

was protected from unfair dismissal pursuant to s.382 of the Act and that she was dismissed 

unfairly. Accordingly, I am required to determine whether to order the reinstatement or, in 

circumstances where reinstatement is inappropriate, to order for compensation if I am 

satisfied such an order is appropriate in all the circumstances.

[175] Notwithstanding the submissions of the CSO, there was no evidence to suggest that 

there has been an irretrievable breakdown of trust and confidence. In particular I rely on the 

evidence of Ms Campbell in this regard. Ms Campbell’s evidence supports a finding that the 

working relationship between the parties can be restored. I have also considered the evidence 

of Mr Bowyer and Ms Price to the effect that they no longer trusted Ms Roche. Given both 

are no longer employed with the CSO, I do not consider their views should outweigh that of 

Ms Campbell.

[176] In relation to the CSO’s assertion of a loss of trust and confidence arising from Ms 

Roche ‘ignoring’ teachers in public following her dismissal, I am satisfied that even if this did 

occur, it is not a sufficient basis to not award reinstatement given it is the primary remedy for 

unfair dismissal.

[177] Nor was there evidence that Ms Roche would pose a risk to the safety of others in the 

workplace. I reject the CSO’s submission that I should have regard to any findings by the 








[2018] FWC 3933

40

New South Wales Police in relation to the Incident, given that police officers involved in the 

Incident were not called to give evidence.

[178] Accordingly, I find that the reinstatement of Ms Roche is appropriate in all the 

circumstances.

[179] Orders providing for reinstatement with continuity of employment, and backpay, will 

be issued separately.

DEPUTY PRESIDENT

Appearances:

A Aleksov of counsel with C Ni, solicitor for Lorraine Roche.

D O’Sullivan of counsel with S Cooper of Catholic Commission for Employment Relations 

for the Trustees of the Roman Catholic Church for the Diocese of Wagga Wagga.

Hearing details:

2018.

Wagga Wagga:

March 28, 29.

Sydney:

May 21, 22, 23.

Final written submissions:

19 June 2018.

Printed by authority of the Commonwealth Government Printer

PR608681

                                               
1 Attachment AT-1 to Exhibit R9.
2 Attachment JP-28 to Exhibit R5.
3 See attachment LR-18 to Exhibit A1.
4 See attachment JP-35 to Exhibit R5.
5 Exhibit A1.
6 Exhibit R1.


R OUMISSION THE FAIR THE SEALO




 



[2018] FWC 3933

41

                                                                                                                                                  
7 See Attachment AT-3 to Exhibit R9.
8 Exhibit R3.
9 Exhibit R4.
10 Exhibit R1.
11 Exhibit R7 and R8 respectively.
12 See attachment SD-18 to Exhibit R7.
13 See attachment SD-30 to Exhibit R7.
14 Exhibit R5 and R6 respectively.
15 Exhibit R9.
16 Exhibit A4.
17 Transcript PN1973.
18 Transcript PN1974.
19 Transcript PN1977.
20 Transcript PN1985.
21 Transcript PN2001.
22 Transcript PN2002.
23 Transcript PN2026 and PN2032.
24 Transcript PN2033-2042.
25 Exhibit R2.
26 Transcript PN3497.
27 Transcript PN3557-PN3567.
28 See attachment JP-30 to Exhibit R5.
29 See Transcript PN26-27.
30 [2016] FWCFB 7204.
31 See CSO final submissions at paragraph 19.
32 Ibid at paragraph 24.
33 Ibid at paragraph 29.
34 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
35 (1993) 49 CLR 66.
36 Ibid at 81-82.
37 Sayer v Melsteel [2011] FWAFB 7498.
38 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
39 (1995) 62 IR 371.
40 Ibid at 373.
41 Edwards v Giudice (1999) 94 FCR 561.
42 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213

[24].
43 Miller v University of New South Wales (2003) 132 FCR 147.
44 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
45 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
46 Previsic v Australian Quarantine Inspection Services Print Q3730.
47 (2000) 98 IR 137.
48 Ibid at 151.
49 RMIT v Asher (2010) 194 IR 1, 14-15.

Cases cited by this decision: