1
Fair Work Act 2009
s.394—Unfair dismissal
Brenda Kearns
v
St Vincent de Paul Society Victoria Ltd
(U2024/13204)
DEPUTY PRESIDENT COLMAN MELBOURNE, 29 JANUARY 2025
Unfair dismissal application – breach of code of conduct – dismissal not unfair
[1] Brenda Kearns has made an application for an unfair dismissal remedy under s 394 of
the Fair Work Act 2009 (Act). Mrs Kearns was employed by St Vincent de Paul Society
Victoria Ltd (SVDP) as the shop manager of its Bayswater store. On 15 October 2024, SVDP
dismissed Mrs Kearns after concluding that numerous allegations of inappropriate behaviour
towards other workers were substantiated and that she had contravened SVDP’s code of
conduct. Mrs Kearns denies that she breached the code of conduct or that she did anything
wrong. She submits that her dismissal was unfair.
[2] Mrs Kearns’ evidence was that on 1 July 2024, she received a letter from SVDP accusing
her of inappropriate conduct. No details were provided. The letter stated that she was suspended
for 2 weeks or until such time as an investigation was completed. The investigation continued
for several months. It was not until early September 2024 that Mrs Kearns received a list of 8
principal allegations about her conduct towards other workers, together with 46 sub-allegations
cited as examples. Allegations 1 to 7 related to her supposed inappropriate conduct towards or
about 7 workers in the course of 2023 and 2024. The 7 workers were Amanda Yosiffidis,
Christine Sullivan, Colleen Moir, Marian Hartland, Melanie Te Ao-Simpson, Paula Moro, and
Shannon Helm. Allegation 8 concerned alleged inappropriate comments that she had made
towards or about other staff and volunteers. The 46 sub-allegations generally concerned
occasions when Mrs Kearns was said to have made rude, offensive or otherwise inappropriate
remarks to or about employees and volunteers.
[3] Mrs Kearns believed that the allegations were without foundation. In early September
2024, she met with an investigator who had been appointed by SVDP and gave oral responses
to the allegations. She maintained generally that she had done nothing wrong. In late September
2024, Mrs Kearns received a copy of the investigator’s findings, which were that all of the 46
sub-allegations were substantiated. On 1 October 2024, Mrs Kearns gave SVDP a two-page
written response to the allegations. She denied certain allegations and provided context and
explanations in respect of others. She did not accept any wrongdoing on her part. On 8 October
2024, Mrs Kearns and her union representative met with Jani Goh, SVDP’s human resources
partner, to discuss her responses to the allegations. On 15 October 2024, Mrs Kearns and her
[2025] FWC 255
DECISION
AUSTRALIA FairWork Commission
[2025] FWC 255
2
union representative attended a further meeting with Ms Goh, at which she was told that her
employment was terminated. The same day, she received a letter from the area support manager,
Grant Stutsel, stating that the allegations against her were substantiated, that she had
contravened SVDP’s code of conduct and its workplace bullying policy, that her employment
was terminated with immediate effect, and that she would receive 5 weeks’ pay in lieu of notice.
[4] Mrs Kearns said that in February 2023, her previous area manager, Peter
Kalogeropoulos, resigned, and that from that time she had felt bullied, harassed, victimised and
unfairly treated. She said that in December 2023 she was given a written warning about various
matters including disrespecting her new area manager, Paula Moro, where the complaint was
that she was not starting her emails with ‘hello Paula’. Then later in 2024 she was the subject
of numerous complaints from various coworkers, all around the same time. Mrs Kearns said
that she believed that SVDP had ‘witch-hunted’ her by seeking to have different people make
complaints against her. She said that it was improbable that so many different people would
complain about her in a short period. She said that she and her union representative had
responded to the allegations but that their responses were ignored. Mrs Kearns said that she did
not do anything wrong. She said that the complaints had come from employees, but that none
of the volunteers she had worked with were asked about her conduct, and none of them had any
concerns about her. Mrs Kearns submitted a statement from Mr Kalogeropoulos, stating that
she had been a good employee for the 6 years that she had worked with him, and that no one
had complained about her. Mrs Kearns also submitted a statement from a former volunteer at
SVDP who said that she had been a friend and a great support.
[5] Mrs Kearns said that her dismissal was unfair because there was no good reason for it.
She said that it was not appropriate that SVDP had used an external investigator to make
findings about the allegations, and that contrary to the findings of the investigator the
allegations had not been proved and were instead just one person’s word against another. Mrs
Kearns also said that at the time of her dismissal, she had almost qualified for her pro rata long
service leave, which made the dismissal especially unfair. Mrs Kearns said that she should be
paid compensation for past loss of income, and also for future income that she would not now
receive, and which she had factored into her retirement plans.
[6] Ms Goh gave evidence that in May and June 2024, SVDP’s human resources department
received complaints from 5 employees about Mrs Kearns’ behaviour towards other workers.
The complainants were Amanda Yosiffidis, Colleen Moir, Melanie Ao-Simpson, Shannon
Helm, and Christine Sullivan. On 14 June 2024, SVDP engaged a consultant to conduct an
investigation. On 1 July 2024, Mrs Kearns was told that she was suspended pending an outcome
of the investigation into allegations of inappropriate behaviour. She was told that the suspension
would last for 2 weeks or until the investigation concluded. Mrs Kearns was later given a series
of further letters extending the suspension.
[7] Ms Goh said that on 2 September 2024, Mr Stutsel sent Mrs Kearns a letter attaching a
list of the allegations against her. Each allegation cited a number of incidents. Mrs Kearns was
told that if the allegations were substantiated, her conduct would be in contravention of SVDP’s
code of conduct. The code states that SVDP ‘seeks to create an environment where all persons
are treated equitably, with dignity and with respect’, and that staff shall not behave in a manner
which may reasonably be perceived as ‘intimidating, overbearing or bullying’. Mrs Kearns was
told that such breaches can lead to serious disciplinary action, including termination of
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employment. She was invited to respond to the allegations in writing by 5 September 2024 and
was directed to attend a subsequent meeting with its investigator. Ms Goh said that on 9
September 2024, Mrs Kearns met with the investigator and gave oral responses to the
allegations and many of the individual examples. She denied various matters and provided
further context in relation to others. She did not acknowledge that she had done anything wrong.
A record of the meeting was attached to Ms Goh’s statement.
[8] Ms Goh said that on 23 September 2024, the investigator submitted her final report to
SVDP. It found all of the 46 sub-allegations to be substantiated. It concluded that Mrs Kearns’
behaviour had made staff feel intimidated, anxious, unsettled and unwilling to work with her.
On 30 September 2024, Ms Goh and Mr Stutsel met with Mrs Kearns to discuss the report. Mrs
Kearns was given a copy of the allegations and the findings and was told to take her time before
responding. Ms Goh’s evidence was that Mrs Kearns disputed the findings and said that the
investigation was a ‘witch hunt’, and that someone must have asked the workers to complain
about her.
[9] Ms Goh said that on 1 October 2024, Mrs Kearns provided her with a written response
to the allegations. She denied most of them and said that many of her statements to the
investigator had been misconstrued. On 8 October 2024, Mrs Kearns attended the disciplinary
meeting with her support person. Ms Goh’s evidence was that she and Mr Stutsel asked Mrs
Kearns if she would do anything differently in light of the allegations and she answered
‘nothing’, without hesitation. In her evidence to the Commission, Mrs Kearns denied this and
said that she had reflected and then stated that she had been a manager for over 30 years and
that she did not believe that she needed to change. Ms Goh said that Mrs Kearns blamed others
for what had occurred and said again that the investigation was a witch hunt. When Mrs Kearns
was asked how she would reintegrate with the team at Bayswater if she returned to work, her
representative said that she would not pursue any action against them and would continue to
work with volunteers. Ms Goh said that Mrs Kearns showed no remorse or awareness of how
her actions might have affected other people. Ms Goh and Mr Stutsel then considered her
responses and concluded that her behaviour contravened various policies, including the code of
conduct, and that given this, together with her lack of remorse or self-awareness, dismissal was
appropriate. Ms Goh said that at a meeting on 15 October 2024, she and Mr Stutsel told Mrs
Kearns that her employment was terminated.
[10] Shannon Helm is a duty manager at SVDP’s Bayswater store. Ms Helm’s evidence to
the Commission was that on 26 June 2024, she made a complaint about Mrs Kearns to Mr
Stutsel, after Mrs Kearns questioned her ability to price items, and did so in front of volunteers,
which she found upsetting. SVDP then asked her to meet with an investigator who was
examining Mrs Kearns’ conduct. Ms Helm told the investigator that on her first day of work,
which was 26 May 2024, she met the volunteers, one of whom was ‘Jack’, who was on the
autism spectrum. She heard Mrs Kearns say to Jack, ‘You need to move from behind the counter,
I look at the cameras … and you don’t ever leave the counter.’ Ms Helm said that Mrs Kearns’
tone was condescending, and that her comment was made loudly, and in front of customers.
She said that the other customers were in shock, and that it was clear that Jack was embarrassed.
In her evidence to the Commission, Ms Helm said that Jack recoiled and slumped over. Mrs
Kearns then said to her, ‘Jack is not quite right.’ Mrs Kearns denied saying these words, when
she was asked about it by the investigator. But in her evidence to the Commission, Mrs Kearns
said that she had told Ms Helm that Jack ‘had issues’.
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[11] Christine Sullivan is an assistant manager at the Bayswater store. Her evidence was that
on 2 July 2024 she made a complaint to Mr Stutsel about Mrs Kearns’ conduct towards her and
others at the store. She told Mr Stutsel that Mrs Kearns had allowed the store to become an
unpleasant, ‘toxic’ place to work. She informed him that Mrs Kearns was treating volunteers
with disrespect and reprimanding them in front of other staff and customers if they made a
mistake. In her evidence to the Commission, Ms Sullivan said that she could cite many
examples. One involved Jack, who had special needs and liked to stand in a particular spot
behind the cash register. Mrs Kearns did not want him to stand there. Ms Sullivan said that
when she asked Mrs Kearns why this was, she replied, ‘Because he is lazy.’ In her meeting with
the investigator, Mrs Kearns agreed that she had said that Jack was lazy and that she said that
Jack would just stand behind the register and do nothing. Ms Sullivan said that another example
concerned a volunteer, Carmel, who asked Mrs Kearns whether she could take time off to go
to Cairns for her daughter’s operation, but Mrs Kearns said no, and told her that her work was
more important. Ms Sullivan said that the volunteer was upset by this. In her evidence to the
Commission, Mrs Kearns said that she could not recall the incident with Carmel, but that if she
did make this remark, it was in jest, and that volunteers were not required to come to work. In
her evidence, Ms Sullivan said that there was always a big turnover of volunteers in the store
and that this was because volunteers did not like working with Mrs Kearns. She said that in late
June 2023 Mrs Kearns had been complaining about not having enough volunteers and had
remarked that volunteers ‘cracked the shits with (her) and just left.’ Mrs Kearns’ evidence was
that the volunteers did not have any problem with her. She denied that volunteers left the store
because of her; she said that volunteers left of their own accord.
[12] Ms Sullivan also said that Mrs Kearns made rude and derogatory remarks about other
workers. She said that she heard Mrs Kearns refer to Ms Moro as ‘the bitch’ and ‘the pit bull’
on multiple occasions. In her interview with the investigator, Mrs Kearns said that she did not
call Ms Moro a bitch. But in her evidence to the Commission, she said that she might have said
this in private conversation with Ms Sullivan. She told the investigator that she had referred to
Ms Moro as a pit bull, but only in a text message. Ms Sullivan also said that she heard Mrs
Kearns say nasty things about Shannon Helm, including that she had mental health issues and
that nobody liked her. To the investigator, Mrs Kearns denied saying that Ms Helm had mental
health issues or that nobody liked her. In her evidence to the Commission, she said that she had
remarked that Ms Helm had ADHD.
[13] Colleen Moir is a casual duty manager at the Bayswater store. Ms Moir gave evidence
that on 2 June 2024 she sent a complaint to Ms Moro about the conduct of Mrs Kearns towards
her and other individuals at the store. She was concerned that Mrs Kearns had been making
negative comments about staff, including Ms Moro, in front of customers, volunteers and other
employees. Ms Moir said that she had witnessed Mrs Kearns behaving inappropriately to a
volunteer, Morgan, who was socially awkward and intellectually challenged. Ms Moir said that
she heard Mrs Kearns say to Morgan that she could see that he was back at work, and that he
had put on weight because he had been off work with a back injury, emphasising the words
‘back injury’ to suggest that it may not have been a genuine injury. Ms Moir said that the remark
seemed to go over Morgan’s head, but other volunteers were present, and customers may have
been within earshot. Ms Moir said that Mrs Kearns made no other comment to Morgan, such
as ‘hello, good to see you, hope you are feeling better’. In her interview with the investigator,
Mrs Kearns denied that she had made the remark about Morgan’s weight. But in her evidence
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to the Commission, she acknowledged that she had made this statement and said that she had a
close relationship with Morgan and suggested that Morgan would not have minded. Mrs Kearns
denied that the remark was made in a place where others would hear it.
[14] Amanda Yosiffidis, a duty manager at Bayswater, gave evidence that on 2 May 2024
she made a complaint to Ms Moro about Mrs Kearns’ behaviour towards herself and others at
the Bayswater store, which she said had involved threats and bullying-like behaviour. Ms
Yosiffidis stated that from her first shift Mrs Kearns treated her with hostility and unkindness.
She said that Mrs Kearns told her that she was not to talk to other people about her or about her
store, and that she did not want to find out that her name had come out of Ms Yosiffidis’ mouth.
Ms Yosiffidis said that on one occasion Mrs Kearns had telephoned her regarding a new
volunteer, Jack, and remarked that she ‘always seems to get stuck with those kinds’. Ms
Yosiffidis asked her what she meant and Mrs Kearns replied, ‘You know, those kinds, which
Ms Yosiffidis understood to mean people with special needs. Ms Yosiffidis said that the
comments struck her because she believes that there should be no gap between those with
disabilities and others, and that she told her husband about Mrs Kearns’ remark. Mrs Kearns
said in her evidence that she would not have said this. In her meeting with the investigator, Mrs
Kearns said that she did not say these things to Ms Yosiffidis. She also said that she had raised
concerns about Ms Yosifiddis’ performance.
[15] Mrs Kearns did not accept that she had behaved inappropriately towards employees or
volunteers. She denied treating volunteers with disrespect and reprimanding them in front of
other staff and customers. She denied Ms Sullivan’s suggestion that there was a big turnover of
volunteers in the store because they did not like working with her. She did not consider that she
had done anything wrong.
[16] After the Commission proceedings had concluded, Mrs Kearns sent a message to
chambers in which she stated that she had not been ‘privy’ to the interview records until the day
of the determinative conference. This is not the case. All of the materials filed by SVDP were
served on Mrs Kearns in accordance with my directions, including the interview records, which
are exhibits to witness statements. Mrs Kearns said that she believed that the witnesses for
SVDP, as well as a person who would have been a witness for her, Denise Witts, had been
‘approached’, presumably by SVDP. She did not say what the alleged approaches had entailed.
Mrs Kearns also stated that she had mostly worked by herself and indicated that she had little
to do with the employees who gave evidence for SVDP.
Consideration
[17] A large volume of material was filed by the parties in this matter, as one might expect
in a case where 46 separate allegations have been put to an employee and each and every one
of them has been found by the employer to be substantiated. However, it will not be necessary
for me to refer to the vast bulk of this material. Many of the allegations concern relatively minor
matters. However, some of the allegations are grave. The findings of fact that I make below
provide a sound evidentiary basis for me to conclude that Mrs Kearns’ dismissal was not unfair.
This is so, even if all of the remaining allegations are taken not to be substantiated.
[18] I found Ms Goh, Ms Helm, Ms Sullivan, Ms Moir and Ms Yosiffidis to be credible
witnesses who gave evidence candidly and to the best of their recollections. It was clear that
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they felt strongly that Mrs Kearns had behaved inappropriately in various respects, both directly
in her dealings with workers and indirectly in conversations with others. However, I do not
consider that their strong feelings distorted their recollections of what they saw and heard. Nor
do I consider that their complaints to SVDP or their evidence to the Commission was affected
by the fact that in some cases Mrs Kearns had been critical of them in her role as the store
manager. Contrary to the suggestion of Mrs Kearns, the concerns that they raised were genuine.
They were not the product of some artificial process or ‘witch hunt’, or personal resentment.
Their evidence was clear, detailed and convincing. I prefer and accept their testimony to that of
Mrs Kearns where their evidence conflicts with hers. In this regard, I note that Mrs Kearns’
evidence to the Commission differed in a number of respects from the information that she
provided to the investigator, and that the witnesses of SVDP gave evidence that was consistent
and credible.
[19] First, I find that Mrs Kearns was disrespectful towards Jack. I find that Mrs Kearns
criticised Jack for not leaving the counter, and that she did so in a condescending tone, in front
of customers, causing Jack to be visibly embarrassed. I accept Ms Helm’s evidence about this.
I find that Jack had an intellectual disability. Mrs Kearns did not dispute that this was the case
or that she was aware of this. I find that there was a special spot where he liked to stand. I find
that it was humiliating for Jack to be publicly criticised for standing behind the counter. In my
view, it would have been humiliating for anyone to be criticised in this way, but that this was
especially so for Jack. I also find that Mrs Kearns was disrespectful about Jack when referring
to him in discussion with others. I accept Ms Helm’s evidence that Mrs Kearns told her that
Jack was ‘not quite right’. I prefer her account to that of Mrs Kearns who said that she remarked
that Jack had ‘issues’. This comment was not made to Jack but it was still inappropriate. It was
disparaging. It could have been overheard by others, including by Jack. And it is not an
acceptable way to refer to a worker or volunteer who has a disability. I further find that Mrs
Kearns told Ms Yosiffidis that she always seemed to get stuck working with ‘those kinds’, and
that by this she meant people who have intellectual disabilities. I accept the evidence of Ms
Yosiffidis. It was clear, detailed and convincing. Ms Yosiffidis was sufficiently concerned
about it to tell her husband. She was clearly upset by it. This comment was made in a private
conversation but Ms Yosiffidis quite reasonably found it offensive. It was not an acceptable
thing to say in a work conversation. I further find that Mrs Kearns told Ms Helm that Jack was
lazy. Part of a manager’s job is to be concerned with a worker’s productivity and work ethic.
But it is not acceptable for a manager to use derogatory language about a worker to other
employees, particularly in a store environment where others, including customers, might hear
this. Mrs Kearns’ comments to and about Jack were inconsistent with the requirement of the
code that staff not behave in a manner that is intimidating or overbearing. It was contrary to the
code’s purpose of creating an environment where people are treated with dignity and respect.
[20] Secondly, I find that Mrs Kearns behaved inappropriately towards Morgan. I accept Ms
Moir’s evidence that Morgan presents as having social and intellectual challenges. I accept her
evidence that Mrs Kearns said to Morgan that she could see that he had put on weight because
he had been off work with a back injury, emphasising the words ‘back injury’ to suggest that it
may not have been a genuine injury. Ms Moir was a credible witness. Her evidence was
convincing. Mrs Kearns on the other hand told the investigator that she had not made this
remark, but then told the Commission that she had done so, but that it was justified because of
her close relationship with Morgan. I do not accept that this comment can be explained away
by a close relationship, or that it can be brushed off as banter. A person’s weight and injuries
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should not be the subject of humour in the workplace. On any view, this remark was highly
inappropriate, and particularly so given that Morgan is a vulnerable person. It contravened the
code of conduct.
[21] Thirdly, I infer from the findings above that Mrs Kearns was insensitive to people with
special needs such as Jack and Morgan.
[22] Fourthly, I find that Mrs Kearns reprimanded volunteers in front of other staff and
customers. Ms Sullivan’s evidence about this was convincing. It is consistent with the evidence
of Ms Helm about Mrs Kearns’ comments to Jack. I also find that at least some volunteers left
the store because of Mrs Kearns. This was not just the hypothesis of Ms Sullivan. It was what
Mrs Kearns herself said to Ms Sullivan, when remarking that volunteers would ‘crack the shits
with [her] and leave’. I accept that Ms Sullivan heard Mrs Kearns say this.
[23] Fifthly, I accept Ms Sullivan’s evidence that Mrs Kearns made rude and derogatory
remarks about other workers, including that she referred to Ms Moro as ‘the bitch’ and the ‘pit
bull’ on numerous occasions. This evidence too was clear, detailed and convincing. It is also
consistent with Ms Moir’s evidence that Mrs Kearns made negative comments about other staff
at the store, including about Ms Moro. Mrs Kearns did not call Ms Moro a bitch or a pit bull to
her face. But it is not acceptable to use terms of abuse about others in the workplace. Such
comments may get back to their target. They can also cause offense to those that hear them.
They are corrosive of the working environment. I accept Ms Sullivan’s evidence that Mrs
Kearns said nasty things about Shannon Helm, including that nobody likes her.
[24] Sixthly, I accept Ms Goh’s evidence that at the meeting on 8 October 2024, Mrs Kearns
was asked what she would do differently in light of the allegations, and that Mrs Kearns replied
‘nothing’, and stated that the claims against her were a witch hunt. Mrs Kearns’ evidence to the
Commission of what she said was not very different: that after 30 years’ experience as a
manager she did not need to change. I further find that Mrs Kearns lacks perspective on the
effect of her conduct on other people, as well as empathy for her colleagues. A person with
perspective, when confronted with the complaints of numerous coworkers, would at least pause
to reflect and consider whether perhaps they were to blame, even partly so, and show concern
about the fact that they had upset other people. Instead of a comprehensive rejection of any
responsibility, and a strident statement that she would do nothing differently, a person with
perspective and empathy would express a desire to get along with her colleagues and not cause
them upset or distress. I also note that at no point did Mrs Kearns express concern that Jack
might have been embarrassed by her remarks, despite Ms Helm’s vivid account in her evidence
of him recoiling at her remarks. Mrs Kearns did not show any remorse for or awareness of how
her actions may have affected the workers whom she was responsible for managing at the
Bayswater store.
[25] In her correspondence to chambers after the proceeding, Mrs Kearns did not state what
she meant by her claim that witnesses had been ‘approached’. If she meant that SVDP had
asked the witnesses to give evidence, this is perfectly acceptable and normal. If she meant that
SVDP sought to influence the witnesses about the content of their evidence, I find that this is
not the case. The witnesses gave sworn evidence that their testimony was true and correct. I
found them to be credible witnesses. Any suggestion of interference with witnesses is baseless
speculation and I reject it. Finally, even if Mrs Kearns did not have extensive interactions with
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SVDP’s witnesses, as she contended, those interactions nevertheless entailed the conduct by
Mrs Kearns that is set out in my factual findings above.
[26] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable,
the Commission is required to take into account the matters in s 387 of the Act. Based on my
factual findings above, it is clear that SVDP had a valid reason to dismiss Mrs Kearns (s 387(a)).
Each of these findings provided such a reason: Mrs Kearns’ remarks to and about Jack; her
comment to Morgan; her interactions with volunteers which made at least some of them leave
SVDP; and her comments about Ms Moro and Ms Helm. By each of these actions, Mrs Kearns
contravened the code of conduct. Each of them was in any event unacceptable. Taken together,
the existence of a valid reason for dismissal cannot be in any doubt at all.
[27] I find that Mrs Kearns was notified of a valid reason for her dismissal (s 387(b)). She
was given an opportunity to respond to this reason (s 387(c)). She was not unreasonably refused
a support person at discussions relating to the dismissal (s 387(d)). The dismissal related to
conduct rather than performance; but to the extent that it might be regarded as pertaining to
both, she was not specifically warned about this poor performance (s 387(e)). In this regard, the
warning of December 2023 is short on detail in respect of how Mrs Kearns had been
disrespectful to her manager. The considerations in ss 387(f) and (g) carry no particular weight.
As to any other matters that the Commission considers relevant (s 387(h)), I note that Mrs
Kearns was dismissed with immediate effect, but that she received payment in lieu of notice. I
take account of the fact that she was suspended for a long time, and that it took several months
to put the allegations to her. I note that Mrs Kearns was close to becoming eligible for long
service leave and that the timing of her dismissal was unfortunate for her in this regard. She has
experienced poor mental health following the dismissal. The statement from her previous
manager stated that she had been a good worker for the years when he supervised her. On the
other hand, Mrs Kearns has not expressed any remorse for or insight into the conduct that I
have found to have occurred.
[28] A number of Mrs Kearns’ coworkers found her to be a difficult person to work with, but
an employee is not required to be friendly or easy to get along with. However, an employee is
required to act civilly and observe the policies of her employer. Mrs Kearns failed to do so. In
various respects her conduct was unacceptable. Remarks that are critical of other workers’
personal attributes such as weight or disability are not to be tolerated in the workplace. Neither
are terms of abuse such as ‘bitch’ and ‘pit bull’. This is so regardless of whether the remarks
are said to the persons concerned or are made about them to others, firstly because the persons
concerned may come to learn of the remarks, secondly because others might reasonably find
them offensive, and thirdly because of their potential adverse effect on the working
environment. In this case, the remarks were incompatible with SVDP’s code of conduct. They
were also incompatible with its operational requirements. I accept SVDP’s submission that it is
reliant on the assistance of volunteers in order to deliver its charitable mission, and that many
volunteers are vulnerable members of the community who seek community engagement and
social interaction. It is particularly important for SVDP to have high standards of behaviour,
and not to tolerate inappropriate conduct towards others, as this can reasonably be expected to
deter volunteers from working at SVDP, especially volunteers who have special needs.
[29] Mrs Kearns believed that there was a concerted effort by SVDP to identify any and all
concerns that existed about her conduct and performance. No doubt that was the case. But this
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was motivated by a concern to identify the full extent of any problems that might exist in
relation to Mrs Kearns’ conduct and the effect that it might have had on others in the workplace.
SVDP cast the net widely. It was somewhat overzealous in the number of allegations that it
chose to put to Mrs Kearns. Nevertheless, among these allegations were a number of serious
matters, which are the subject of my factual findings. These allegations are substantiated to the
civil standard, which is the balance of probabilities. I am satisfied that my findings reflect what
occurred. I have not proceeded to make factual findings about the other allegations. I assume
for the purposes of my decision that they are not substantiated.
[30] Taking into account all of the circumstances, I conclude that SVDP’s dismissal of Mrs
Kearns was not harsh, unjust or unreasonable. It was a proportionate response to her conduct.
It was not unfair. The application is dismissed.
DEPUTY PRESIDENT
Determinative conference details:
2025
Melbourne
22 January
Appearances:
B. Kearns for herself
M. Simpson for St Vincent de Paul Society Victoria Ltd
Printed by authority of the Commonwealth Government Printer
PR783743
WORK COMMISSION THE SEAL OF THE F
