DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Ms Linda Hanrick
v
Meridian Lawyers
(U2017/12362)

Application for unfair dismissal remedy – dismissal of Legal Secretary in a law firm – dismissal for serious misconduct – allegation of making a false bullying claim – investigation of complaints and counter complaints – interviewing of all named persons – fresh allegations – opportunities for the applicant to respond to the allegations and explain her own complaints – all of the allegations against other Principals and employees found to be unsubstantiated – complaints bizarre and unbelievable – allegations of making false bullying claims made out on balance of probabilities – no regret or contrition – insistence of denials – valid reason for dismissal – no issues of procedural unfairness – dismissal not harsh, unjust or unreasonable – application dismissed.

[1] Ms Linda Hanrick commenced employment as a Legal Secretary with Meridian Lawyers, an incorporated mid tier law firm with offices in Sydney, Melbourne, Newcastle and Brisbane, on 20 June 2016. Her employment was covered by the Legal Services Award 2010 (the ‘Award’) and she worked in the Sydney office. The firm has 156 employees Australia wide. Ms Hanrick was dismissed for serious misconduct on 9 November 2017. The letter of termination read:

Dear Linda

YOUR EMPLOYMENT

We refer to our meeting on 9 November 2017 and confirm that Meridian Lawyers (the Company) has terminated your employment for serious misconduct effective on and from the conclusion of the meeting on 9 November 2017.

As discussed with you the serious misconduct relates to your unacceptable behaviour and your recent conduct, in particular:

•  False bullying claim

We met with you on 30 October, 2 November and 9 November 2017. At our meetings you provided information about the alleged bullying, you were informed about the allegations made against you and you were provided you with an opportunity to respond. We considered your responses and took them into account as well as the statements provided by other people. We informed you at our meeting on 9 November that and (sic) in all of the circumstances we had formed the view that your complaint was not substantiated and that we had formed the view that you had in fact deliberately made a false bullying claim.

As agreed the following monies were paid to you on 10 November 2017:

(a) all outstanding salary up to 10 November 2017:

(b) all accrued annual and personal enjoyment (PED) leave up to the date of termination.

If you have any questions please contact the undersigned.

[2] On 19 November 2017, Ms Hanrick (hereafter referred to as the ‘applicant’) filed an application pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), seeking orders from the Fair Work Commission (the ‘Commission’) in the form of remedies for her alleged unfair dismissal, primarily compensation.

[3] Ms Sharlene Wellard, a Principal of Meridian Lawyers (hereafter referred to as the ‘respondent’) filed a detailed response to the application on 6 December 2017. In accordance with the Commission’s protocols, telephone conciliation was listed on 11 December 2017. However, as the applicant refused to participate (because she did not consider the employer’s response was sufficient), directions were issued for a three day hearing of the matter in Brisbane from 14-16 February 2018. Given the applicant was employed in the Sydney office and the respondent intended to call a number of Sydney based witnesses, the respondent requested the hearing be held in Sydney. As a result, the Termination of Employment Panel Head listed the matter in Sydney and remitted the matter to Johns C, who issued revised directions on 20 December 2017. The Commissioner appropriately advised the applicant that he had previously worked with Ms Wellard in a law firm of which he was a partner, and she was an employee. He also is the Treasurer of the Industrial Relations Society of New South Wales, of which Ms Wellard is President. While the Commissioner did not consider it was necessary to recuse himself on either basis, the applicant filed an application seeking to have the Commissioner removed from the case to avoid any conflict of interest. The Commissioner decided to recuse himself and the matter was remitted to me on 2 January 2018. I issued further directions for a hearing on 26 February 2018 and listed a conciliation on 11 January 2018. The hearing was subsequently relisted for 5 and 6 March 2018. On 31 January 2018, the applicant filed an application seeking to have me removed from the case, claiming I had shown ‘bias’ in favour of the respondent in respect to certain procedural matters and had ‘pressured’ her into agreeing to a settlement of her claim in the conciliation conference, notwithstanding no settlement was reached. I immediately listed the recusal application for hearing on 19 February 2018, issued directions accordingly and suspended the earlier directions and adjourned the substantive hearing dates indefinitely.

[4] However, on 13 February 2018, the applicant advised she had withdrawn her recusal application. Fresh directions were then issued and new dates set for hearing on 13 and 14 March 2018 with the applicant permitted to conduct her case via videolink from the Commission’s Brisbane premises. The applicant advised she intended to cross examine nine of the respondent’s 15 witnesses.

THE EVIDENCE

[5] The following persons provided statements and/or evidence in the proceedings:

•  Ms Sharlene Wellard – Principal;

•  The applicant;

•  Ms Nevena Brown – Principal and Practice Group Leader;

•  Mr Greg Bawden – Solicitor;

•  Mr David Partridge – Special Counsel;

•  Ms Liarne McCarthy – Solicitor;

•  Ms Lauren Jefford, Solicitor;

•  Ms Anli Roelofse – Senior HR Business Partner;

•  Mr Andrew Saxton – Principal (not required for cross examination);

•  Ms Gabrielle Parra – Solicitor (not required for cross examination);

•  Mr James Papworth – Solicitor (not required for cross examination);

•  Ms Jennifer Walsh – Legal Secretary (not required for cross examination);

•  Mr Paul Baker – Managing Principal (not required for cross examination);

•  Ms Michelle Edwards – Legal Secretary;

•  Ms Renae Kheir – Legal Secretary (not required for cross examination); and

•  Ms Julie Somerville – Principal;

Ms Sharlene Wellard

[6] Ms Wellard set out a complaint received from Special Counsel, Ms Nicole Cerisola about the applicant on 26 October 2017. It read:

Earlier today, Greg and I were talking when Linda made comments to Greg – which I understand he will be providing details of.

An hour or so later, I came back to my office from the printer and was just standing in my office sorting my printing (not talking to anyone) when Linda said some things clearly directed at me, which I found hurtful.

Linda never actually looks at or speaks to me so she said / muttered this whilst looking down at her desk. Therefore, I cannot be 100% sure as to what exactly she said, but it sounded like:

‘The poor guy married to Nicole. She’s horrible. And a bully. No-one likes her. Not even Trevor likes Nicole. How someone can sit there laughing all day (she then imitated my laugh) is absolutely beyond me’.

This is not a one-off. She frequently mutters things, seemingly to herself but clearly aimed at others (often me).

My experience in general over many, many months is basically being ignored 95% of the time but then some days, she just mutters rude and hurtful comments.

Re the ignoring, she never makes eye contact, says hello or otherwise acknowledges most of us – including if you’re in a closed space such as the bathroom, the elevator, the kitchen etc. If you’re walking in her direction in the office, she does not move an inch to let you pass and acts as though you’re not there.

In summary, it really is unpleasant having someone like that in the office and, at times, constantly being ignored or hearing snide comments about you is upsetting.

[7] Ms Wellard recorded the steps she took to begin investigating the complaint and the applicant’s complaints against other Solicitors and employees.

[8] At a meeting Ms Wellard and Principal, Ms Brown had with the applicant on 30 October 2017, Ms Wellard read out Ms Cerisola’s allegation. The applicant denied saying anything about Ms Cerisola. She also denied mumbling something about Ms Cerisola which was overheard by Mr Bawden. She denied often mumbling things to herself. The applicant accused Ms Cerisola of saying things about her which she had described as bullying. When asked for details about her claim Ms Cerisola and Mr Bawden were giggling and saying things about her, she could not elaborate. She claimed to have heard a female voice say ‘don’t get pulled into Nicole’s games’. When asked if anyone else had heard what had been said, the applicant replied:

Applicant: “No. It’s external. Everyone knows. They all know.”

Ms Wellard: “What is external, what do you mean?”

Applicant: “Everyone knows Sharlene, you know.”

Ms Wellard said she could not make sense of what the applicant was saying, so she moved on. The applicant then claimed Ms Cerisola, had said ‘we’ve got her now’ and this was about her. She added ‘It’s the rhetoric, the rhetoric’, and kept repeating this and the words ‘it’s external’. When asked for an explanation, the applicant said another Legal Secretary (Jenny) had said ‘poor Linda’ and two solicitors had said ‘we’ve got Linda now’ when she walked past them for this meeting. She also claimed that Tony (Mr Saxton) had stood behind her and said ‘You are evil, you evil girl’. Although Mr Saxton had no reason to interact at all with her, the applicant said this was the only time he had spoken to her. No one else was around. The applicant said it all happens when no one is around. It is ‘external’. When asked to explain what she meant the applicant said:

‘There’s just something going on. It’s external, controlling internal. You know Sharlene, you know. It’s all indirect.’

At the end of the meeting, Ms Wellard assured the applicant she could still come to work. In the meantime, she needed to speak to the many people the applicant had complained about.

[9] On 2 November 2017, the applicant was sent home after Ms Shiel had told Ms Somerville that she had felt uncomfortable because the applicant was ‘staring at her’ (it was ‘creepy’). Ms Wellard believed the applicant was distracted and it might be wise to send her home. She emailed her to come to the office and when she got no reply, went and told her to come to her office. The applicant denied being distracted - she was just busy. Ms Wellard sent the applicant home and proceeded to speak to all the persons she had named in the earlier meeting. Ms Wellard set out her conversations with these persons and made notes of the meetings she had with them. They were:

•  Ms Nicole Cerisola

•  Ms Hannah Shiel

•  Mr Greg Bawden

•  Mr Andrew Saxton

•  Mr David Partridge

•  Mr James Papworth

•  Ms Lauren Jefford

•  Ms Liarne McCarthy

•  Ms Jenny Walsh

•  Ms Renae Kheir

•  Ms Michelle Edwards

•  Ms Gabrielle Parra

As these conversations are recorded later in this decision, and are consistent with Ms Wellard’s evidence, I will not set out the conversations in detail at this point.

[10] Ms Wellard sent an email to the applicant on 3 November 2017. It read:

As discussed I have spoken with a number of staff in relation to the complaint made about you and the allegations you made against Nicole Cerisola and Andrew Saxton.

On Monday when we meet I will go through with you what the people I have spoken with have told me and give you a further opportunity to let me know your side of the story.

While no findings have been made, I need to let you know that Meridian considers this matter seriously and if it is determined you have acted inappropriately or deliberately made a false allegation disciplinary action may follow. Such disciplinary action may include the termination of your employment. You may wish to bring a support person with you to our meeting, at 9.30am on Monday in meeting room 1. Nevena, or if she is not available another Principal, will be in attendance with me at the meeting.

Just confirming, as discussed you are not required to attend work before our meeting at 9.30 on Monday.

The applicant replied:

Thank you for looking into this issue.

Can you please provide me with a copy of the firm’s policy on workplace harassment/bullying, and also confirm if you are treating this issue formally or informally. It wasn’t clear to me at this meeting.

Ms Wellard responded:

Attached is the policy. It is the same one I understand Anli provided to you.

An informal process is one where the complainant, sometimes with assistance, has a direct discussion with the person they are complaining about letting them know how they feel and asking for the behaviour to stop.

In this case you made a complaint and so did Nicole. The firm made the decision to get more information from each of you, and others who may have witnessed the alleged conduct (including people you mentioned when we met). Given the seriousness of the allegations we are approaching it in a formal way.

If you have any questions about the process I’d be happy to answer them when we meet in the morning.

[11] A further meeting with the applicant was held on 6 November 2017. The applicant kept saying: ‘You can’t substantiate it. No one was there. It’s all indirect and rhetoric.’ She denied the unusual behaviour reported by Mr Papworth and Mr Partridge. In any event, this was irrelevant, as she never mumbled to herself.

[12] Later that day, Ms Wellard sent the following email to the applicant:

‘We would like you to come into the office at 10.30am on Thursday to meet with Anli and myself.

At this stage we have not made any findings in relation to your complaint or the complaint against you, we anticipate doing so by Thursday. If you have any further information you would like us to consider please email it to me before Thursday.

Meridian takes this matter seriously and if it is determined that you have acted inappropriately or deliberately made a false allegation disciplinary action may follow. Such disciplinary action may include the termination of your employment. You may wish to bring a support person with you to our meeting.

You are not required to attend work before our meeting at 10.30 on Thursday.’

[13] At a meeting on 9 November 2017, after Ms Wellard informed the applicant she had determined the applicant’s allegations were false, the following exchange took place:

The applicant: You can’t say that. All you can determine is whether it is substantiated or not substantiated. If no one saw it then it is not substantiated and that’s it.

Ms Wellard: No, that’s not it. I think that, having spoken to everyone, that you made up your complaint, particularly the part about Andrew.

The applicant: You are not a court. You can’t determine that. No court would reach that conclusion [shouting].

Ms Wellard: No, I am your employer and I can determine that I think you made it up to deflect the claim that you anticipated would be made about you.

The applicant: You can’t just do that. You clearly don’t know what you are doing. It’s all external and the rhetoric.

Ms Wellard: You keep saying that. I don’t know what you mean. What is the external thing? I don’t know anyone outside this firm who knows you. I haven’t heard anything from anyone external. What do you mean?

The applicant: “You know Sharlene, you know and when it all comes out you will be embarrassed.”

Ms Wellard: I really don’t know. Have you had an experience with a previous employer that you think we somehow know about?

At that point Ms Wellard said the applicant was staring at her blankly. The meeting continued and words to the following effect were spoken:

Ms Wellard: We think the false allegation is serious and we are considering terminating your employment. What do you have to say about that?

The applicant: [yelling] you can’t do that. You’ve had it in for me from the start. My very first day here you said something to Heather [former receptionist] about me. ‘Quick chat, quick chat’ that rhetoric of the bullies and LSJ Sharlene, LSJ what does the J stand for?

Ms Wellard: Hold on. What do you say I did? You’ve never raised any of this before. I asked you to email me any other examples before today. What’s the issue with Heather?

The applicant: LSJ, LSJ, what’s the S stand for?. Quick chat that’s the rhetoric of bullies.

Ms Wellard: Hang on Linda, I need to unpack that one at a time. You haven’t raised any of this about me before and I’d asked you for any examples. What’s the issue with Heather?

The applicant: On my first day, you said something to Heather at reception, you called me a chook?

Ms Wellard: What did I say? I don’t remember saying anything about you and certainly have never called you a chook.

The applicant: I don’t know, but you know what you said and quick chat, quick chat you use the rhetoric of bullies.

Ms Wellard: When did I say that?

The applicant: In your email, telling me to come to your office for a quick chat.

Ms Wellard: Linda, I said come to my office for a quick chat about the matters we had talked about in our meeting. People can see your computer screen and your desk. I didn’t want to come around and have people wondering why I was there.

The applicant: Quick chat’ is used by bullies. LSJ, LSJ LJ are my initials, what does the ‘S’ stand for?

Ms Wellard said the applicant was using a raised voice and she really did not know what she was talking about. The conversation continued:

Ms Wellard: Linda I don’t understand the LSJ reference. Can you give me more information?”

The applicant: “In your room when you said come in for a “quick chat” you had papers with LSJ on your desk.”

Ms Wellard: “Do you mean the pile of Law Society Journals on the table in room?”

The applicant then stared at her blankly.

Ms Wellard: They are on the table for me to flip through if I ever get time. They are always there and that’s where Alison [my secretary] leaves the files she wants me to sign for closure.

The applicant: What does the ‘S’ stand for?

Ms Wellard: Society, what do you think it meant? I though your initials were LH and that pile of journals had nothing to do with you. Do you think I put them there to somehow unsettle you?

The applicant: You know Sharlene, you know.

Ms Wellard: Okay, is there anything else you want to say before we take a break and Anli and I decide what we are going to do?

The applicant: Paul Baker [Managing Principal] has it in for me and my family. He has it against my niece.

Ms Wellard: What, you’ve never raised that before. I think that’s enough, we’ll break now and come back to you shortly.

[14] As a result of the applicant’s last reference to Mr Baker, Ms Wellard and Ms Roelofse adjourned the meeting and went to his office to see him. Mr Baker denied ever speaking of the applicant’s family, and did not even know who they were. Ms Wellard and Ms Roelofse returned to the meeting. Ms Wellard informed the applicant she was dismissed for serious misconduct and told to clear her desk. (The applicant had already done so). When Ms Roelofse offered her the EAP, the applicant replied:

‘I’m not taking that. I don’t need it. I am not stressed.’

Ms Wellard concluded her statement as follows:

‘I remain of the view that, on the balance of probabilities, Linda made up allegations against Andrew Saxton. I remain of the view that she most likely said or mumbled something about Nicole or that Nicole thought was about her.

I remain of the view Nicole believed that Linda said something about her and that Linda saw and heard Hannah and Nicole talking about it. In anticipation of a complaint being made against her, Linda quickly got her complaint in first, but with no details, and went home.

It was and remains my view that Linda’s conduct was serious misconduct entirely contrary to her ability to continue being employed by the firm.’

The applicant

[15] In her statement, the applicant set out her duties as Legal Secretary. She claimed that around 17 February 2017, she informed Ms Roelofse that she was having trouble with inappropriate behaviour of other staff. As this was around the time of her six month probation/performance review, she advised Ms Roelofse and Ms Brown of being indirectly antagonised by Ms Cerisola and Ms Shiel and that Mr Partridge had made disparaging comments about her. When Ms Brown said ‘people here have problems all over the place’, the applicant queried her about incidents concerning Ms Brown’s own behaviour towards her. The applicant claimed no steps were taken to investigate her complaints. She did not discuss her concerns with Ms Shiel because she was showing ‘signs of stress’, and her mood towards her would change from friendly to surly. Around July 2017, the applicant was advised her work and conduct were ‘good’ in her yearly performance review and she received a salary increase.

[16] It was the applicant’s evidence that on numerous occasions, Ms Cerisola, who worked directly behind her, would ‘heckle’ her and engage in mimicking her personally. On Thursday 26 October 2017, she believed Ms Cerisola and Mr Bawden were engaged in ‘satirical mimicry’ of her. On the same day she claimed:

•  Mr Saxton had walked past her desk and said ‘evil girl’;

•  Ms Cerisola had said aloud to Ms Shiel ‘yeah, we’ve got her now’;

•  Ms Somerville walked past her, smirked and said ‘Hello’; and

•  she heard a female voice say in the direction where Mr Bawden was standing in the hallway, ‘Don’t get involved in Nicole’s games’. Mr Bawden said nothing in response.

[17] Around 4:30pm that day, the applicant sent the following email to Ms Roelofse:

‘I’m on my way home, as I’ve experienced a couple of bullying events today which has caused me stress. I’d like to take myself out of the situation almost straight away.’

Although she was off sick the next day, Ms Roelofse emailed and asked if she wanted to make a formal complaint.

[18] When she returned to the office on Monday 30 October 2017, the applicant said she heard Ms Brown laugh and say aloud ‘That girl made a complaint about bullying’ (she noted the voice sounded middle aged). On that day, the applicant claimed:

•  she heard Ms McCarthy say aloud ‘I knew we’d get Linda’;

•  she heard Ms Jefford laugh aloud from her office; and Ms Jefford would act negatively towards her.

•  Ms Shiel, Ms Cerisola and Ms McCarthy would sometimes have lunch together outside the office.

[19] A meeting was arranged with the applicant and Ms Brown and Ms Wellard that afternoon. Ms Wellard raised Ms Cerisola’s complaint that she had been mimicking her on 27 October 2017; noting that the word mimicking was in her comment posted on social media on 21 March 2017 (7 months earlier) ‘Listening to them mimicking is understanding how Hitler gained power’. The applicant added that some weeks earlier (before 27 October 2017) she had heard Ms Shiel say to Ms Cerisola ‘I visited the Jewish Museum but couldn’t find parking nearby’. The applicant claimed this was indicative of the ‘satirical rhetoric’ and ‘mimicry’ used by Ms Cerisola and Ms Shiel on a daily basis towards her. She did not raise this issue during the meeting, as Ms Wellard was always ‘defensive’ towards her.

[20] The applicant insisted the allegations against her were false and the circumstances ‘petty’. She then proceeded to inform Ms Wellard and Ms Brown of her examples of bullying referred to above. She then added ‘There may be an external influence’, as the attacks on her were personal. She had not disclosed aspects of her personal life to others in the office. She then accused Ms Walsh and others of ‘patronising’ her. However, she claimed she did not have a ‘strong working relationship’ with Mr Saxton (who was new to the office) or Ms Cerisola.

[21] The applicant claimed that on 31 October 2017:

•  Mr Saxton walked past her and said ‘You’re thick’;

•  later in the day, she heard Ms Brown say loudly, in a tantrum, ‘I don’t want that girl making a complaint about bullying’;

•  shortly after Mr Baker and Ms Somerville walked past her with both ‘their heads down in apparent shame’; and

•  she had not raised these matters at the time, because it would be embarrassing for Ms Brown.

[22] On 2 November 2017, she observed Ms Somerville smirk at her. Shortly after, Ms Wellard told the applicant she appeared distracted, and sent her home.

[23] The applicant’s evidence of the meeting on 6 November 2017 was that she reported Mr Saxton’s comment about her being ‘thick’ to Ms Wellard. She believed he and Ms Cerisola were ‘being encouraged by external parties to taunt me’. Ms Wellard then read out each of the statements she had obtained from other staff. The applicant claimed Mr Papworth’s and Mr Partridge’s comments were irrelevant and she noted they were ‘friendly’ with Ms Cerisola. She denied saying ‘You’re a cat’ to Mr Partridge, but conceded she occasionally swore in the office, usually out of frustration.

[24] In her statement, the applicant accused Ms Wellard of:

•  gathering evidence unrelated to Ms Cerisola’s complaint;

•  not querying anyone in the vicinity of incidents about which she complained;

•  not listening to her complaints correctly; and

•  being unsure of what she had said in the earlier meeting (30 October 2017).

[25] As to the meeting on 9 November 2017, the applicant said she was denied an opportunity to respond to the accusation that her complaints were ‘made up’. At no time, was she provided with the other witness statements. She agreed she was vocal and forthright during this meeting, but did not yell or shout. The applicant had queried why someone would put forward a bullying complaint if the result was dismissal. She questioned why she was dismissed, without the allegations being substantiated and told Ms Wellard it would be embarrassing if she and Ms Brown were involved in ‘causing her trouble’. At this point, she accused Ms Wellard of talking about her under her breath in a negative manner and of ‘strategically’ placing ‘satirical paraphernalia’ on her table (the Law Society Journals). Ms Wellard accused her of making up her complaints, because she knew Ms Cerisola would submit a complaint about her. The applicant then mentioned Mr Baker walking past her, on numerous occasions, and saying negative things about her and her family under his breath. She believed this was intended to antagonise her in a ‘subversive manner’. The applicant claimed Ms Roelofse said nothing in the meeting and cried throughout, but then ‘smiled widely’, when handing her an Employee Assistance (‘EAP’) card.

[26] The applicant attached an advice from an employment agency that a job offer she had received from another law firm, had been withdrawn, because they had found out about her dismissal. The applicant claimed that this firm had no permission, or right to conduct background checks (on her).

[27] The applicant challenged numerous aspects of the respondent’s witness statements, including by claiming Ms Wellard:

•  exaggerated the ‘evil girl’ comment made by Mr Saxton;

•  mischaracterised the comment to Mr Partridge who had said she (the applicant) had said she was ‘a cat, meow’ and held her hand up near her face, mimicking a cat;

•  repeated the ‘rhetoric’ she had complained about having been used by Ms Cerisola and Mr Saxton;

•  had said in an email of 6 February 2018 that ‘employers don’t dismiss staff they want to keep’; and

•  she made ‘no apologies’ for terminating her employment.

[28] Since her dismissal, the applicant has worked as a Legal Secretary on a casual, intermittent basis, as she continues to apply for permanent roles. She attached a redacted pay slip from her current employer.

[29] In cross examination, the applicant agreed she commenced employment with Meridian Lawyers as a temporary employee and was later offered a permanent role. She could not say if this was because there was a shortage of legal secretaries in the market. Ms Wellard took the applicant to the Level 6 floorplan of the Firm’s office and the applicant identified the location of various employees’ and principals’ offices.

[30] The applicant gave evidence that in the conversation between Mr Bawden and Ms Cerisola in the afternoon of 26 October 2017, she did not believe they were talking about her at all. As to Ms Somerville ‘smirking’ at her on 2 November 2017, the applicant believed she did so because she had knowledge of the investigation, and she (the applicant) did not. The applicant insisted that on 30 October 2017, Ms Brown stood outside her own office, laughed and said in a voice she could hear some 15 metres away ‘that girl made a bullying complaint’. The applicant also insisted she heard Ms Walsh say ‘poor Linda’ in a patronizing manner as she walked past her.

[31] The applicant still maintained that there was a link between the ‘mimicking’ of her by Ms Cerisola in her conversation with Ms Shiel, about a visit to the Jewish Museum and her own twitter comment made a year before concerning Hitler; see para [19] above. She claimed she raised this matter during the investigation in general terms, about being subject to ‘satirical’ and ‘negative rhetoric’ by Ms Cerisola, Ms Shiel and Mr Bawden. However, she could not remember all of the exact words they used. She believed that all these incidents needed to be looked at ‘in combination’. The applicant agreed that Ms Shiel had resigned her employment at this point and she had a lot of filing to do to assist Ms Shiel keep the files up to date, or close files. To do this, she was periodically turning her chair around to see if Ms Shiel was in her office.

[32] The applicant agreed that making allegations against a Principal of the Firm was a serious matter and it was a serious issue for him (Mr Saxton). The applicant explained the two incidents when he had walked past her desk and said ‘evil girl’ and ‘you’re thick’. There was no one else around, so he could only have meant it was about her.

[33] The applicant explained that what she meant by ‘external influences’ was someone outside the Firm gossiping about her to influence the behaviour of persons inside the office. She believed this to be the case because the attacks seemed to be personal from people she did not have much to do with. She still did not know who that person/s might have been, because they ‘are going to go about that in a subversive manner’.

[34] The applicant described the incident in which she observed Mr Baker and Ms Somerville with their heads down ‘in apparent shame’. She linked this to a tantrum she claimed Ms Brown had in the meeting room, when she had said ‘I don’t want this girl making a complaint about bullying’. The applicant said she was sitting at her desk at the time and she could not see Ms Brown; nor could she hear what Mr Baker and Ms Somerville were saying. However, she could hear Ms Brown’s voice.

[35] The applicant agreed Ms Wellard sent her the Firm’s policies dealing with inappropriate behaviour and complaints and she had read the policies. She agreed Ms Wellard had told her that if, after a formal investigation, she was found to have engaged in inappropriate behaviour, or making a false complaint, it might lead to disciplinary action, including dismissal. She acknowledged that Ms Wellard spoke to all the people she had raised in her complaints, and some others. She believed Ms Wellard was just adding people (Ms Parra for example) for the sake of it, so as to ‘cushion her own position’. The applicant stated that when she said she heard a female voice say ‘don’t get caught up in Nicole’s games’ the only persons in the vicinity were Ms Edwards, Ms Kheir and Ms Parra.

[36] The applicant claimed Ms Shiel did not maintain confidentiality because she found an email from her to an external solicitor, stating her secretary was in trouble, although she had only seen the external solicitor’s reply in which it was said ‘what’s happening with your secretary?’. The applicant conceded that she had not raised this matter at any time earlier. She could not recall any other breach of confidentiality, because she was suspended at the time.

[37] The applicant claimed Ms Wellard did not mention the word ‘false’ (referring to the complaint) in the final meeting. She had simply said she had ‘determined, on the balance of probabilities, that she had made it all up’. Nevertheless, she understood that what was being alleged to have been ‘made up’ was her complaint about Mr Saxton. The applicant claimed that in the final meeting, there was ‘no real opportunity for a response’. Although there was an argument about Ms Wellard’s justification for dismissing her, which she thought was unfair, she denied saying that no one saw Mr Saxton’s conduct, so Ms Wellard could not do anything about it. She denied making up the complaint and still does (‘Yes, I deny it all’).

[38] The applicant acknowledged that after she was told the Firm was considering terminating her employment for serious misconduct, she raised a number of new allegations, including the Law Society Journals being placed on Ms Wellard’s table to ‘unsettle her’. She called it ‘satirical paraphernalia strategically placed on the side desk’. As the applicant’s initials are ‘LJH’, she could not give a reason for the point she was making about LSJ. She said ‘I stand by my statement. The applicant said she could not recall making an allegation that on her very first day at Meridian, Ms Wellard told a receptionist that she (the applicant) was a ‘chook’. She did recall raising a complaint that Ms Wellard mumbled something about her, when she was filling in at reception. While she agreed she had not raised these matters before being told she was facing dismissal, she added ‘Yes, and I’m glad I did it’. She had also raised, for the first time, her allegations against Mr Baker. She had not raised this issue earlier because she was not being listened to, or acknowledged and was being treated as a ‘silly person’. She insisted when Mr Baker walked past her in the hallway, he would make disparaging comments about her family to intimidate her. He did this on numerous occasions. She had not raised this allegation at that time, or the allegations that Mr Saxton had called her ‘thick’, despite Ms Wellard in the second meeting and in an earlier email, inviting her to raise any matter she wished to put forward. The applicant’s response in cross examination (which was instructive), was:

No, I raised the matter about - see, the thing is, I raised the matter about Andrew Saxton walking past my desk and saying 'you're thick', but in the evidentiary material, you just stopped it.  You don't recall it; it was the first thing I said.  You dropped it, so now I wasn't going to be forthcoming, because I knew that you just weren't listening.  You weren't listening, you got the details wrong when I told you.  So no, I didn't raise it and that's the reason I didn't raise it.  Whereas if you're getting terminated, oh well, you know, why not?  If anything's going to come out, it's going to come out when you're terminated, isn't it?  When your job's under threat.

Ms Wellard: Well, I would have thought, Ms Hanrick, your evidence is that you raised the issues about Ms Cerisola and Mr Saxton because you just wanted things to change or be resolved.  You didn't raise the issues about Mr Baker.  I put it to you it's because they didn't happen?

The applicant: The whole concerns stemmed from one day and the incidents that happened, so that was the focus.  The focus wasn't aggregate incidents at that time.  But when you said to me, you know, I just don't believe you, you're being terminated.  You know, I just let loose, didn't I?

[39] The applicant was referred to cl 5.8 of her employment contract which states:

‘The company may suspend your employment at any time if:

(a)    By reason of circumstances beyond the control of the company cannot usefully utilise your services; or

(b)    It considers it is in its best interests to do so for reasons including but not limited to, where the company has reasonable grounds to suspect that you have breached any of the terms of employment.’

The applicant denied that this provision entitled Ms Wellard to suspend her if ‘it is considered to be in the best interests of the Firm’. She believed she could not be sent home ‘willy nilly’. Sending her home because she appeared ‘distracted’; see: para [9] above, was not a breach of any policy by her.

[40] The applicant said that the alternate employment she recently secured, was in Sydney, although she lived in Brisbane.

Respondent’s other evidence

Ms Wellard’s reply

[41] In an extensive reply statement, Ms Wellard responded to the applicant’s evidence as follows.

(a) the applicant did not raise her allegation of Ms Cerisola walking close to her desk and heckling her, at any time during the investigation. No employee had ever complained to her, as the firm’s Human Resource representative, that Ms Cerisola had heckled or mimicked them. At no time, did the applicant raise a complaint that Ms Somerville ‘smirked ‘at her or Ms Jefford had displayed negativity towards her. This was despite her being asked to provide any further information as to her complaints against staff.

(b) At no time, did the applicant raise the linking of her Twitter post about Hitler to Ms Shiel’s comment about visiting the Jewish Museum. Ms Wellard found this evidence difficult to understand.

(c) Ms Wellard denied acting defensively towards the applicant. The applicant did not raise any concerns about her, until the 9 November 2017 meeting, when she raised the Law Society Journal issue. Ms Wellard denied calling the applicant a ‘chook’ or that she mumbled anything about her. Rather than accusing Ms Walsh of patronising her, the applicant just said she ‘just thinks it’ (about ‘poor Linda’).

(d) Ms Wellard identified other complaints not raised with her during the investigation including her allegations that:

•  Mr Saxton called her ‘thick’;

•  Ms Brown had a tantrum and said ‘I don’t want that girl making a bullying complaint’; and

•  Ms Somerville and Mr Baker walked past her desk with ‘their heads down in apparent shame’. Although strongly denied, Ms Wellard did not understand how this had anything to do with bullying.

(e) Ms Wellard said that at the 6 November 2017 meeting, she did not read out any witness statements, because she had never sought any statements. She had made notes of her discussions with each person and read from her notes. Moreover, the applicant did ask for any copies of statements, because there wasn’t any.

(f) The applicant did not raise any issues about Mr Papworth or Mr Partridge. Ms Wellard insisted that Mr Partridge had told her the applicant had said to him ‘I am a cat’.

(g) Ms Wellard denied not listening to the applicant’s complaints or being unsure about what she had said at the previous meeting.

(h) While not expressly saying the applicant was ‘suspended’ on 2 November 2017, Ms Wellard told her she was not required to attend work and would be paid, while she interviewed the large number of people involved.

(i) Ms Wellard denied not giving the applicant an opportunity to respond to the finding that she had ‘made up’ her complaint. The applicant expressly responded to this finding on 9 November 2017.

(j) Ms Wellard did not, and still does not know, who the person/s or ‘external forces’ are the applicant kept referring to. Ms Wellard repeated that she did not strategically place the Law Society Journals on the table to annoy her, or for any other purpose than to read them later.

(k) Ms Wellard said the applicant did not raise the allegations against her and Mr Baker, until she was told the Firm was considering terminating her employment.

(l) Ms Wellard formed the view that these complaints were further examples of her ‘throwing mud’ at others to avoid the consequences of her own behaviour.

(m) Ms Wellard denied Ms Roelofse cried in the 9 November 2017 meeting.

[42] In cross examination, Ms Wellard was asked about the nature and scope of her investigation into the complaints. While she did not ‘offer’ witnesses an opportunity to participate, she had asked questions of those she thought might have knowledge of the matters raised, or had been mentioned by both Ms Cerisola and the applicant. Ms Wellard characterised both complaints as alleged bullying, or at the least, inappropriate conduct. She did not take into account any other earlier investigations. Ms Wellard did not have any guide or interview questions to be asked of people, nor did she give the witness any material about the process. She did not ask any witness to write up a statement.

[43] Faced with the applicant’s complete denial of all the allegations against her and her insisting on her own allegations against Ms Cerisola and Mr Saxton, Ms Wellard said she did not consider alternative options to dismissal. Ms Wellard understood that ending someone’s employment, particularly close to Christmas, has an impact. However, the applicant had never apologised or indicated she had a change of position. Moreover, the applicant continued to make new allegations, after she knew termination of her employment was being considered.

Ms Nevena Brown

[44] Ms Brown, as the Head of the Sydney Insurance Group, had raised performance issues with the applicant during a meeting with her in February 2017. Ms Roelofse was also involved in this meeting. During the meeting the applicant said she had issues about her (Ms Brown) sometimes referring to her as ‘Little Lin’ or ‘mate’. Ms Brown agreed she would sometimes use familiar names with solicitors, but she denied ever calling the applicant ‘Little Lin’. In June 2017, Ms Brown was informed that the applicant had approached the Special Counsel, David Partridge and referred to him as a ‘cat’. Around the same time, Ms Brown was informed that the applicant was observed in the tea room aggressively muttering to herself and saying ‘fuck off’, when no one was there.

[45] On 26 October 2017, Ms Julie Somerville advised her of an altercation between the applicant and Ms Nicole Cerisola, Special Counsel and Greg Bawden, Solicitor. Ms Cerisola alleged that the applicant had made snide comments to her which she found to be hurtful, rude and upsetting. Mr Bawden corroborated the incident. Ms Brown knew the applicant would ignore people completely, to the point of not even getting out of their way. A meeting was arranged with the applicant and Ms Wellard on 30 October 2017. The applicant denied the accounts from Ms Cerisola and Mr Bawden and made her own complaints about inappropriate comments from other staff members towards her. Ms Wellard stated she would investigate these issues and they would meet again.

[46] Ms Brown said that on 2 November 2017, Ms Hannah Shiel informed her that the applicant was exhibiting concerning behaviour, by staring at her from her desk. The applicant was directed to go home and attend a meeting with her and Ms Wellard on 6 November 2017. At the meeting, Ms Wellard told the applicant she had spoken to all of the persons she had made allegations against. They all denied her allegations. The applicant responded by denying the allegations earlier raised against her by Ms Cerisola and Mr Bawden. Ms Brown recalled the following conversation between the applicant and Ms Wellard:

Applicant: You are both being influenced by external sources.

Ms Wellard: What external sources, what you mean?

Applicant: I can tell by your face, Sharlene, you know what I mean.

[47] After the meeting, Ms Wellard and Ms Roelofse took over managing the applicant’s issues and Ms Brown was no longer involved in the investigation.

[48] In a reply statement, Ms Brown responded to the applicant’s evidence as follows:

a) The meeting around February 2017, with the applicant, Mr Trevor Yang and Ms Roelofse was not a probation/performance review, but was convened by Mr Yang on Ms Shiel’s request, to discuss the applicant’s performance issues.

b) At the meeting, the applicant had raised issues as to the staff being boisterous and unprofessional (Ms Cerisola and Ms Shiel). However, the applicant had conceded their behaviour was not directed to her and it was not unprofessional. She made no mention of Mr Partridge at the time.

c) She did not say anything about ‘problems all over the place’. However, she did take steps to remind staff to act professionally at all times.

d) She denied laughing and saying ‘that girl made a complaint about bullying’, on 30 October 2017.

e) She refuted the applicant’s claim about Ms Wellard’s demeanour in the meeting on 30 October 2017. Ms Wellard was open and respectful. Ms Wellard provided the applicant with opportunities to respond and raise any further concerns she may have had.

f) She denied saying aloud in a ‘tantrum’, ‘I don’t want that girl making a complaint about bullying’ on 30 October 2017.

g) She believed that when the applicant referred to ‘influence by third parties’ it was directed to her and Ms Wellard. The applicant did not say anything about Mr Saxton having called her ‘thick’.

[49] In cross examination, Ms Brown could not recall any probation/performance review of the applicant. The meeting with Mr Yang, Ms Roelofse and the applicant in February 2017 was to discuss concerns with the applicant’s performance.

Mr Greg Bawden

[50] Mr Bawden recorded his version of the incident on October 2017 when he was sitting at his desk and speaking to Ms Cerisola. He noticed the applicant was at her desk and appeared to be listening to their conversation. He recalled her saying:

Applicant: You shouldn’t refer to things you don’t like in your language when you speak.

Mr Bawden: Sorry Linda

He had said sorry because he thought the conversation might have been noisy and bothering the applicant. Shortly thereafter, he heard the applicant muttering aggressively. Mr Bawden then sent an email to Ms Somerville which reads:

Hi Julie,

Further to our discussion, the background to what I might call the first incident of the day (which was possibly directed at me) was that it was around lunchtime, maybe 13:15 or so, and I was talking to Nicole while we were both at our desks just about bits and pieces – I think it started with Christmas jumpers and advent calendars and ended up about Rowan Atkinson’s stand up and Christmas cards – trivial sorts of things.

Nicole had mentioned she’d picked up lunch in Australia Square and I was just going to lunch so I asked where she got it from etc.

At that point Linda said something – it was mumbled, but along the lines of [you shouldn’t refer to thing you don’t like in your language/when you speak]. I’m not sure what she meant cos that’s not what was happening. Anyway, not really knowing who was being spoken to, and because it was unexpected and out of context, when said I hadn’t quite heard what she’d said, she said something else but again I didn’t catch it because it was also quite mumbled (but loud mumbling)

So afterwards, I left to get lunch shortly afterwards, had lunch in the kitchen and I’d been back at my desk for a few minutes when Linda started up again but this to me it seemed directed at Nicole, and kind of aggressive.

[51] Mr Bawden recalled his meeting with Ms Wellard on 2 November 2017. He confirmed to her what had happened on 26 October, but could not recall the words ‘don’t get caught in Nicole’s games’. He told her that he had never seen Mr Saxton near the applicant’s desk that day, or at any other time:

Ms Wellard: Did you see Andrew Saxton near Linda’s desk that day? Have you ever seen Andrew near Linda’s desk?”

Mr Bawden: “No? I haven’t.”

[52] In a reply statement, Mr Bawden insisted that in the incident alleged on 26 October 2017, he and Ms Cerisola were discussing Christmas jumpers and Rowan Atkinson, not the applicant. Rather than Ms Cerisola mocking the applicant, it was she who mimicked Ms Cerisola’s laugh, which he believed was ‘unfriendly’. Mr Bawden could not recall any other conversations with the Secretaries on 27 October 2017, as alleged by the applicant.

[53] In cross examination, when Mr Bawden was asked if he could see the applicant’s desk when he was talking to Ms Brown on 26 October 2017, he said he could see her desk in the reflection of the glass in Ms Cerisola’s office.

Mr David Partridge

[54] Mr Partridge said that the applicant was not his Secretary and he did often not speak to her. He recalled an incident involving the applicant on 23 June 2017 as follows. Around 5:00 pm as he was leaving work, he went to the bathroom adjacent to the lift well, before going home. As he walked towards the bathroom, the applicant was standing at the lift well. No one else was around. The applicant made eye contact with him and said ‘You’re a cat’. He did not respond and went to the bathroom. He waited to hear the lift bell before exiting the bathroom. He told Ms Wellard the incident was ‘really strange’. I record their conversation as follows:

Ms Wellard: David, can I have a quick chat with you. I’ve been looking into a matter that involves Linda mumbling things. I wanted to ask you about an interaction you had with her, about a cat?

Mr Partridge: Yes, I can’t recall when, I think it was at the end of June or early July this year. It was really strange. Linda was standing near the lifts it must have been around 5 o’clock. I was just ducking into the toilet before leaving myself. As I went past her she said ‘You’re a cat!’.

Ms Wellard: What did you do?

Mr Partridge: I went into the bathroom and I confess I waited until I heard the lift bell so that she would get in it and be gone before I came out.

[55] In a reply statement, Mr Partridge denied making disparaging comments or behaving inappropriately towards the applicant. He was not aware of any other allegation about him until he read the applicant’s statement for these proceedings. Mr Partridge reaffirmed his version of the incident at the lift and reiterated he found her behaviour strange and it made him feel uncomfortable.

[56] In cross examination, Mr Partridge was asked a number of questions about the lift incident going to the time, the direction he walked, the location of various offices, the lift well, the wash room and the kitchen by reference to the office floor plan. He said he exited the door adjacent to the lift and the applicant was standing at the lift well at the time.

Ms Liarne McCarthy

[57] Ms McCarthy said that the applicant was assigned to her as her Personal Secretary shortly after she commenced employment as a Solicitor in the Sydney Insurance Litigation Team on 3 October 2016. Despite this, Ms McCarthy had minimal contact with her during work hours and their interactions were exclusively work related. Ms McCarthy said the applicant occasionally did some filing and emailing of documents for her. She denied ever saying ‘We’ve got Linda now’ and she and Ms Jefford never discussed the applicant. She had told Ms Wellard:

Ms Wellard: Liarne, do you recall a conversation with Lauren sometime last week between your desk and the hallway, where one of you said to the other words to the effect of: “We’ve got Linda now”.

Ms McCarthy: “No. Lauren and I have never discussed Linda.”

[58] In a reply statement, Ms McCarthy denied ever having any conversation with Ms Jefford about the applicant.

[59] Ms McCarthy confirmed she was friends with Ms Shiel and they would chat from time to time. This was not uncommon in such a collegiate atmosphere of the Firm. While the applicant was her Secretary, she believed the applicant did not even know her name until this case and rarely did any work for her. Ms McCarthy denied that she was confused by Ms Wellard’s question on 2 November 2017. Neither she, nor Ms Jefford said the words attributed to them by the applicant ‘We’ve got Linda now’.

[60] In cross examination, Ms McCarthy confirmed her office was close to the meeting rooms, the hallway and the kitchen. It does not have a door. On 2 November 2017, she and Ms Wellard, had a conversation near her desk. Ms McCarthy could not recall the applicant ever using her first name and would usually just respond ‘yes’ or ‘no’ when asked to do any task.

Ms Lauren Jefford

[61] Ms Jefford confirmed that the applicant was not her Secretary and they had no interactions either in, or outside work, except for saying good morning/afternoon, when they passed - which the applicant never responded to. When Ms Jefford was asked by Ms Wellard if she had ever made a comment ‘we’ve got Linda now’ she strongly denied ever saying these words. Her statement read:

Sharlene asked me if I recalled saying the words “We’ve got Linda now” to Lauren, or if I recall Lauren saying those words to me. I told Sharlene that I did not say those words and Lauren had not said them to me.

[62] In a reply statement, Ms Jefford said that she and Ms McCarthy have never had a conversation about the applicant. They did not discuss her, and neither of them said ‘I knew we’d got Linda’ on 30 October 2017. They were not standing in the doorway looking at the applicant and the only conversation they had that day was in Ms McCarthy’s office. (The only cross examination of Ms Jefford concerned where she and Ms McCarthy had been standing on 30 October 2017, when it was alleged they were staring at the applicant and having a conversation about her).

[63] Ms Jefford denied acting negatively towards the applicant. To her recollection they had never spoken. She reiterated that while she would say hello when passing her office, the applicant never responded.

Ms Anli Roelofse

[64] On 27 October 2017, Ms Roelofse was phoned by Ms Brown who had said:

‘Nicole Cerisola, is extremely upset with the events involving Linda on Thursday and Nicole is considering raising a formal complaint against Linda for bullying. As a result of these complaints from Nicole and some other staff members that were involved or overheard the Thursday event, I will set up time to discuss with Linda the events and allegations on her return. Sharlene will attend the meeting with me.’

[65] After the meeting between the applicant, Ms Brown and Ms Wellard on 30 October 2017, Ms Roelofse and Ms Wellard met the applicant on 9 November 2017. Ms Wellard had said:

Ms Wellard: “Linda, I have done an investigation with all parties as I mentioned in our previous meeting. I think you made up your complaint. I don’t think that Greg and Nicole were talking about you. No one told Greg not to get pulled into Nicole’s games. It seems that you probably did say something at your desk about Nicole. I think Nicole was upset. I think Hannah saw that Nicole was upset and that you heard Hannah something (sic) about it. Because of what you saw that I think you made your complaint to Anli and that you later added the false allegation against Andrew. Andrew is new, no one saw the alleged conduct and Andrew has no reason to engage in that conduct.”

Applicant: “I have not made this up, your perspective is unfounded. It is their word over my word. All you can determine is that is it (sic) unsubstantiated.”

Ms Wellard: “On the balance of probability it looks like you have made this up. This is something that the firm considers to be serious misconduct.”

Applicant: “I feel that I have been attacked. Andrew Saxton calling me an “Evil girl” were (sic) an indirect harassment.”

[66] Ms Roelofse recounted as follows:

Applicant: “You have had it in for me from the start! You called me a “chook” on my first day in front of Heather. Last week you asked me for a “quick chat” last week before you asked me to go home. That’s the rhetoric of bullying.”

….

I know that a lot of this is from an external influence. You and the other Principals talk to outside people and are influenced by this outside information.”

Ms Wellard: “Who is this outside influence? Who do you think you are talking to? Is there something in the past that happened to you Linda?”

Applicant: Nothing happened, you know who you are talking to is talking to. Paul Baker, whispers about me, my niece and family under his breath. He has it in for my niece.”

[67] Ms Roelofse said the applicant was getting more and more upset, loud, unreasonable and irrational. The meeting adjourned and she and Ms Wellard went to speak to Mr Baker who confirmed that he did not know the applicant’s family or her niece. They decided to dismiss the applicant for serious misconduct. They returned and told the applicant of the decision. The applicant said she ‘would sue the firm, everything was a lie and [she was] the victim’. Ms Roelofse knew she had already cleared her desk. As she left, she rejected an Employee Assistance Program (EAP) form.

[68] In response to the applicant’s statement, Ms Roelofse recalled that in February 2017 the applicant had raised a problem she had with another Secretary (Janet) who she claimed had interfered with her work. She requested a move away from her. The applicant appeared happy to be moved. The applicant had also complained about noise in the office and mentioned Ms Cerisola and Ms Shiel specifically. She said nothing about Mr Partridge. The applicant was moved as per her request and told to use her head phones, if she was bothered by office noise. Ms Roelofse said that this was a performance meeting concerning the applicant’s filing not being up to date. Ms Roelofse insisted the applicant did not raise Ms Cerisola and Ms Shiel antagonising her or Mr Partridge making disparaging comments. Had she done so, there would have been an investigation. Ms Roelofse could not recall Ms Brown saying ‘people have problems all over the place’, or the applicant raising other complaints about Ms Brown.

[69] As to the meeting on 9 November 2017, Ms Roelofse denied the applicant’s version of events. Ms Wellard had given her several opportunities to respond, but the applicant would not engage in a realistic conversation. She was not given copies of statements, as Ms Wellard was reading from her notes. Ms Roelofse believed the applicant was behaving irrationally and talking nonsense in a loud, raised voice. It was hard to make sense of her. There was no mention of incidents involving Ms Brown. During the meetings, the words ‘external influences’ were used by the applicant several times, but she did not explain what she meant. She also mentioned the Law Society Journals. Ms Roelofse recalled the following conversation:

Applicant: “LSJ. On your desk Sharlene.”

Ms Wellard: “What are you talking about.”

Applicant: LSJ Sharlene. On your desk. They are my initials.”

Ms Wellard: “Do you mean the stack of Law Society Journals? They are always on my side table.”

[70] Ms Roelofse emphatically denied she was crying at any time, during the meeting. She denied ‘smiling widely’ when handing the applicant the EAP card. Rather, the applicant ‘very harshly and rudely interrupted’ her and said ‘I am not stressed and do not need help’. She did not leave peacefully. She was very upset and said ‘I am going to sue the firm’.

[71] In cross examination, Ms Roelofse agreed she had not provided any evidence of the meeting she had with the applicant in February 2017 about ‘Janet’ interfering with her work. Ms Roelofse said she did not advise Ms Wellard on any aspect of the complaints process or the investigation of this matter. Ms Roelofse reaffirmed her evidence of the applicant’s behaviour as she was leaving the termination meeting.

Mr Andrew Saxton

[72] On 1 November 2017, Mr Saxton was asked by Ms Wellard to respond to the applicant’s complaint of bullying by him. The allegation was he had stood behind her at her desk, with his arms extended, and said ‘You are evil, you evil girl’. He told Ms Wellard ‘definitely not’. He did not believe he had ever spoken to her, and did not even know who she was. When reminded where she had sat, he said he may have been near her desk, two or three times, when talking to Ms Brown. However, he knew nothing about the applicant, nor had he ever spoken to her, or about her.

[73] Ms Wellard asked if he had been talking about someone else. Mr Saxton said he does not use the word ‘evil’ to describe any person. When asked about the applicant’s reference to the words being said by ‘Tony’, Mr Saxton said he had never been known as ‘Tony’.

[74] In a reply statement Mr Saxton:

•  adamantly denied saying ‘evil girl’ or ‘you’re thick’ to the applicant. This was completely inconsistent with how he conducts himself as a lawyer of 32 years standing. He had no reason to utter those words and did not do so;

•  insisted he had no working relationship with the applicant and did not speak to her at all during her employment at the Firm;

•  said he did not work with Ms Cerisola and she was not part of his team;

•  knew nothing of the applicant’s personal or professional life and had no interest in her, or those matters;

•  denied being encouraged by ‘external parties’ to ‘taunt’ the applicant and did not ‘taunt’ her at any time;

•  agreed he attempted to make eye contact as a courtesy when they passed each other, but the applicant always looked down. She never spoke to him, nor he to her; and

•  said he had not read any of the other witness affidavits filed by the respondent.

[75] Mr Saxton was not required for cross examination.

Ms Gabrielle Parra

[76] Ms Parra gave evidence of her meeting with Ms Wellard on 2 November 2017. She had never said ‘Don’t get involved with Nicole’s games’ and had never heard anyone else use those words.

[77] Ms Parra was not required for cross examination.

Mr James Papworth

[78] Mr Papworth’s evidence dealt with him observing and hearing the applicant in the kitchen on 23 June 2017. He had heard ‘mumbling’ coming from the kitchen. As his office was directly adjacent to the kitchen, he could see through the glass directly inside. There was no one else present except the applicant. He noticed her leaning over the sink talking to herself. She turned towards the wall and had said ‘shut up you fucking idiot’ in a loud and aggressive voice, as if shouting at someone. On 2 November 2017, Mr Papworth told Ms Wellard of this incident.

[79] In a reply statement, Mr Papworth said he had never said ‘You’re a cat’ to anyone. He agreed he had never raised the incident of 23 June 2017, until questioned by Ms Wellard. However, he insisted the applicant had been mumbling to herself in the kitchen. He was alarmed by her weird behaviour.

Ms Jennifer Walsh

[80] Ms Walsh worked with the applicant as a Legal Secretary in the Insurance Litigation Team. Their relationship was work based only. When questioned by Ms Wellard on 2 November 2017 as to whether she had ever said ‘Poor Linda’, Ms Walsh recalled she may have said this to other secretaries in the context of recognising the applicant had inherited work from another employee who had left, meaning she had extra work.

[81] In a reply statement Ms Walsh said she understood the applicant’s reference to ‘Jennifer Brown’ was to her. Ms Walsh denied patronising the applicant. She only worked with her for around three months. They had little work related contact and no personal contact at all.

[82] Ms Walsh was not required for cross examination.

Mr Paul Baker

[83] Mr Baker was aware (around 27 October 2017) of a complaint made by Ms Cerisola against the applicant. He was also aware of the applicant’s complaints against Ms Cerisola and other employed Solicitors and Principal, Mr Saxton. Mr Baker left the matter to be handled by Ms Brown, Ms Wellard and Ms Roelofse.

[84] On 9 November 2017, Ms Wellard had advised him that she considered the applicant had made up her bullying complaint, particularly concerning Mr Saxton, and she intended meeting the applicant that day. Subject to the applicant’s response, Ms Wellard intended to recommend disciplinary action. Later that day, after meeting the applicant, Ms Wellard told him that she had now raised new allegations about him. She had claimed he had ‘it in for her family’, particularly her niece. Mr Baker did not know what she was talking about. He did not know the applicant’s family and had never spoken to her about her family. He certainly had no issue with the applicant, or her family. He believed her complaint was ‘quite bizarre’.

[85] Mr Baker deposed that Ms Wellard had told the applicant the Firm was considering ending her employment for serious misconduct. He understood the applicant had also raised an issue about Ms Wellard; being that she left the Law Society Journal (LSJ) on a table in her room to ‘unsettle’ her, as the ‘S’ in ‘LSJ’ stood for Sharlene. She claimed ‘external forces were at play’. Mr Baker told Ms Wellard that he was very concerned with the applicant’s conduct and the impact it was having on the mental health and wellbeing of other staff. Ms Wellard informed him that when she told the applicant that, on the balance of probabilities, she believed she had made up her bullying claim against Mr Saxton, she responded by asserting that as no one else witnessed the incident, the allegation could not be substantiated. Ms Wellard believed these comments added to her belief that the applicant’s allegation had been made up. Mr Baker and Ms Wellard then agreed that steps should be taken to end the applicant’s employment that day.

[86] In a reply statement, Mr Baker said he was disappointed, surprised and bewildered when he read what the applicant had asserted about his conduct and the conduct of others. Meridian Lawyers has a wonderful and collaborative culture with Principals and staff; all of whom are caring and compassionate. He strenuously denied the allegations about him. He categorically rejected the applicant’s assertion that he ever behaved in a way to antagonise her. He had never said anything about her, or her family. Indeed, he knows nothing about her, or her family. In addition, Mr Baker rejected the allegation that on 31 October 2017, he had walked around in the office with his head down in ‘apparent shame’.

[87] Mr Baker added that he has known Mr Saxton for 34 years and has a close relationship with him and his family. As he is a moral person of good character and fortitude, he had never known him to use the language of a kind the applicant alleges. Mr Baker concluded:

‘There has been a serious loss in my personal and the firm’s trust and confidence in Linda such that it would not be feasible to re-establish the working relationship.

Linda has raised allegations against myself, a number of our senior leadership team and also against a number of our employees. None of the allegations made by Linda have been in any way supported or corroborated by any employee of Meridian Lawyers. As a result and (sic) I am of the view that those allegations were made dishonestly and with a deliberate intention to mislead.’

Mr Baker was not required for cross examination.

Ms Michelle Edwards

[88] It was Ms Edward’s evidence that around 2 November 2017, Ms Wellard had asked her and Ms Renae Kheir (another Secretary) if, on the previous Thursday they had heard a female voice from the kitchen say ‘Don’t get caught up in Nicole’s games’, being an allegation of the applicant, (although she did not know who had said it). Both Ms Edwards and Ms Kheir denied saying anything of this kind.

[89] In cross examination, Ms Edwards said that when she was approached by Ms Wellard, Ms Wellard was standing in front of Ms Kheir’s desk in the corridor.

Ms Renae Kheir

[90] On 2 November 2017, Ms Wellard asked Ms Kheir and another Secretary, who sits next to her (Ms Edwards), if, on the previous Thursday they had heard a female voice say ‘don’t get caught up in Nicole’s games’. Neither she, or Ms Edwards heard these words. Ms Kheir agreed Mr Bawden sometimes comes to their work area, but she had never spoken to him about Ms Cerisola.

[91] Ms Kheir was not required for cross examination.

Ms Julie Somerville

[92] Ms Somerville’s evidence dealt with Ms Cerisola advising her of a complaint against the applicant on 26 October 2017; which she had put in writing; see: paragraph [6] above. Mr Bawden also emailed his version of events; see paragraph [50] above.

[93] Ms Somerville was present on 2 November 2017, when Ms Shiel came into Ms Wellard’s office and said:

‘What is happening with Linda, she is freaking me out, she is just sitting in her chair and staring directly at me. I feel really uncomfortable.’

When Ms Somerville returned to her own office (about 10 metres from the applicant’s desk) she observed the applicant sitting with her back to her computer, swivelling her chair from side to side and staring directly at the Solicitors in their offices behind her. In cross examination, Ms Somerville was asked where she was standing when she observed the applicant swivelling in her chair and staring at other persons in the offices.

[94] In a reply statement, Ms Somerville denied ever smirking at the applicant. She had never walked down a hallway with ‘her head down in apparent shame’, as claimed by the applicant.

SUBMISSIONS

For the respondent

[95] Ms Wellard set out the background to the applicant’s dismissal by reference to the evidence adduced in the case. Following an investigation into the complaint lodged by Ms Cerisola and counter complaints made by the applicant against Ms Cerisola, Mr Saxton and others, it was determined, on the balance of probabilities, that the applicant had made false bullying complaints, which constituted serious misconduct. Such conduct caused a serious and imminent risk to:

(a) the health and safety of other employees; and

(b) the reputation, viability and profitability of the respondent’s business.

[96] Ms Wellard dealt with each of the subsections under s 387 of the Act which are required to be taken account by the Commission in an unfair dismissal case. She submitted that making a false bullying claim, is a valid reason for dismissal (s 387(a)). It is a reason which is ‘sound, defensible and well founded’; see: Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371.

[97] Ms Wellard said the applicant was notified of the reason for her dismissal on 9 November 2017 (s 387(b)) and was given an opportunity to respond to the allegation in three meetings – 30 October, 6 November and 9 November 2017. Her only response was to deny the allegations and say that as no one witnessed the incidents, they could not be proven. The applicant was invited to bring a support person to each of the meetings, but declined to do so (s 387(d)). Section 387(e) going to unsatisfactory performance, is not a relevant factor in this case. As to s 387(f) and (g) the applicant was afforded procedural fairness in the process which led to her dismissal. The applicant’s dismissal was not ‘harsh, unjust or unreasonable’ within the meaning of s 387 of the Act. Given the risk the applicant posed to the safety and wellbeing of others in the Firm, reinstatement would be inappropriate.

For the applicant

[98] In her submission, Ms Hanrick referred to her good mid year performance review which indicated her conduct and performance to be sound. Ms Hanrick submitted that there was no evidence that her allegations of bullying were deliberate or deceptive and the reasons for her dismissal were not ‘objectively valid’; see: DiAngelo v Auto Classic (WA) Pty Ltd [2016] FWC 1966. Further, Ms Hanrick claimed that she had not been provided with a reasonable opportunity to respond, because no findings were made in the first two meetings and she was then terminated immediately in the meeting on 9 November 2017. Nor was she provided copies of the witness statements; see: Cannan v Nyrstar Hobart Pty Ltd [2014] FWC 5072. Ms Hanrick said the witness evidence of the respondent was ‘non probative’, because it turns on subjective allegations made by other staff; see: Walker v The Salvation Army [2017] FWC 32, Colby and Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52.

[99] Ms Hanrick asserted that the respondent did not provide any direct evidence of dishonesty or untruthfulness which was contrary to her Letter of Offer of 14 June 2016. She had met her duties by keeping the Principal properly informed and by reporting incidents as required by cl 1.3(e) of her Terms of Employment. Further, the respondent’s investigation does not mean her complaints were false. A decision was made on ‘inexact proofs, indefinite testimony or indirect inferences’; see: Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’). The employer did not meet the high standard required for a finding of serious misconduct.

[100] Ms Hanrick submitted that the other matters the Commission can take into account (s 387(h)) were:

(a) the failure of the respondent to follow their own policies, by not providing procedural fairness. This was contrary to the Human Resources Policy and Procedure and the Inappropriate Workplace Behaviour and Complaints Policy;

(b) she was not given an opportunity to submit her complaints in writing;

(c) Ms Roelofse, as the HR Manager, did not participate in the meetings on 30 October and 6 November 2017 and only took notes in the 9 November 2017 meeting;

(d) she was on special leave and not suspended while the investigation took place, which is contrary to the Policy. Sending her home because she appeared ‘distracted’ did not amount to suspension.

(e) she was suspended and dismissed for ‘being encouraged to take action if there was inappropriate behaviour either experienced or witnessed’;

(f) the respondent did whatever it pleased in breach of the Policy;

(g) she was not given sufficient notice of the disciplinary meeting on 30 October 2017 and it was only referred to as being about ‘work related matters’. She did not know it was a disciplinary meeting. The respondent’s intentions were ‘obscured’;

(h) HR was largely ignored in the investigation and the entire process was overseen and conducted by Ms Wellard, without her seeking proper HR advice and support;

(i) at the 30 October 2017 meeting, she was informed the respondent was formally investigating the complaints;

(j) by sending her home on 30 October 2017, she was barred from social interactions and excluded from the workplace during the investigation; see: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v Visy (No 3) [2013] FCA 524.

(k) it was unclear if ‘confidentiality protocols’ were adhered to during the investigation, which compromised the veracity of the information obtained by the respondent. Ms Wellard also allowed ‘leading answers’ from witnesses and took a casual approach to her questioning of them;

(l) the respondent did not investigate the complaints promptly. Given Ms Wellard’s bias and lack of independence, she should have opted for an external investigator; see: Farmer v KDR Victoria Pty Ltd [2014] FWC 6539.

(m) she was the only person suspended - Ms Cerisola and Mr Saxton were not suspended.

[101] In summary, Ms Hanrick submitted her dismissal was ‘unreasonable’, because it was decided upon inferences which could not be drawn from the material before the respondent, was ‘unjust’, because she was not guilty of making a false complaint and was ‘harsh’, in its consequences for her as described by McHugh and Gummow JJ in Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24; (1995) 185 CLR 410 at [465] and referred to in Mary Conelius v Southern Suburbs Football Club Inc. [2017] FWC 485 (14 February 2017) at [70].

[102] Ms Hanrick added that her dismissal was ‘harsh’ because there was no evidence of her making a false bullying allegation, meaning her reputation had been damaged and it had impaired her ability to obtain permanent employment; see: Emmerson v Housing Industry Association Ltd [1999] FCA 500. Moreover, the allegations were paltry, she received no warnings and had no issues in her employment.

[103] Ms Hanrick maintained that her direct evidence verified her complaints against Ms Cerisola, Ms Shiel, Ms McCarthy and Mr Saxton. The applicant claimed the respondent did not consider her personal circumstances, or the business operational requirements. The Firm simply terminates staff they do not wish to keep, without sufficient objective evidence.

[104] Ms Hanrick said it was difficult to discern how her conduct was a serious risk to the health and safety of employees, or the viability of the business. There was no evidence of physical or emotional harm to anyone, and the respondent was simply inconvenienced by her making a complaint.

[105] The applicant had mitigated her losses by seeking, and obtaining suitable employment after her dismissal.

[106] In reply, Ms Wellard submitted there was no evidence supporting the applicant’s complaints against other employees; in fact, all of the evidence of numerous employees was to the contrary. It was the applicant who provided no evidence to substantiate her claims. except her say so, and then when it appeared her own original allegations were not sustainable, she raised a number of new allegations against other persons. When she understood her position was in jeopardy, she raised more new allegations (Mr Baker). All of her allegations were investigated and found to be false and unbelievable.

[107] Ms Wellard said that taking all the evidence into account, the respondent formed the view, on the balance of probabilities, that the applicant anticipated Ms Cerisola’s complaint and ‘got in first’. She claimed to have been bullied and went home then made up a false allegation against Mr Saxton. The decision was not based on ‘inexact proofs, indefinite testimony or indirect inferences’, rather it was based on very direct and clear statements from all the respondent’s witnesses. It was also the respondent’s view that the applicant is a person who makes false and new allegations against others when ‘she feels things are going against her’. Moreover, she ‘inflated’ her claims by making numerous false allegations for the first time in her statement, which were never raised before her dismissal.

[108] As to the applicant’s claims of procedural unfairness, Ms Wellard submitted:

(a) It was appropriate that no findings were made during the investigation. The applicant was not only given opportunities to respond, she simply denied the allegations and said the respondent could not prove them, because no one witnessed them.

(b) Rather than a hasty decision to end the applicant’s employment, the respondent met with her on three occasions. She was given opportunities to respond and she did so.

(c) The respondent was entitled to send the applicant home on pay, and Ms Wellard was authorised to do so. The applicant was not prejudiced by being sent home.

(d) Clause 5.8 of the applicant’s contract of employment states that the applicant could be suspended at any time, ‘if it considers it is in its best interests to do so’. There was nothing done contrary to Policy or her Contract of Employment.

(e) The applicant was not given access to any witness statements, because none were taken. She had never asked for any statements and had she done so, she would have been told none were taken. Ms Wellard relied on her notes to inform the applicant of the allegations against her by Ms Cerisola. She readily denied the allegations.

(f) The respondent repeatedly told the applicant to provide any further information. Contrary to her claim of regularly keeping the respondent informed of incidents, she plainly did not do so, because she raised new allegations in the termination meeting, never before raised.

(g) Even though the respondent’s policies are not incorporated in the applicant’s Contract of Employment, the Policy she cited does not proscribe how complaints must be made or investigated. Indeed, it expressly states:

‘Given the situational context and variability in severity are important in understanding and responding to inappropriate behaviour, this Policy should not be viewed as an exhaustive document.’

(h) There is no requirement for complaints to be in writing.

[109] Ms Wellard submitted that the applicant’s complaint that HR was excluded from the process was unfounded. She was the HR Representative. The claim Ms Wellard was biased was also unfounded and rejected. As the HR Representative, Principal and shareholder in the Firm, she had legitimate and professional interests in ensuring complaints and misconduct are appropriately investigated and dealt with, regardless of the position of the employee in the Firm.

[110] Ms Wellard reaffirmed the respondent’s submissions as to the outcome in this case and emphasised Mr Baker’s evidence as to the Firm’s loss of trust and confidence in the applicant, arising from her misconduct and dishonesty.

CONSIDERATION

Preliminary findings

[111] There are no jurisdictional objections to the applicant’s application being determined by the Commission. Specifically, I am satisfied that:

(a) Ms Hanrick was dismissed at the initiative of the employer on 9 November 2017 (ss 385(a) 386(1)(a));

(b) her unfair dismissal application was lodged within the 21 day statutory time limitation set out at s 394(2)(a) of the Act;

(c) Ms Hanrick was a person protected from unfair dismissal in that:

i. she had completed the minimum employment period set out in ss 382 and 383 of the Act, being a period of one year and five months; and

ii. a Modern Award applied to her employment; see: para [2] above (s 382(3)(b)(ii));

(a) her dismissal was not a case of genuine redundancy (s 385(d)); and

(b) her dismissal was not a case involving the Small Business Fair Dismissal Code, as the respondent employs around 156 employees Australia wide (s 385(c)).

[112] Section 385 of the Act defines an unfair dismissal based on the four criteria there set out; each of which must be satisfied if the person seeking a remedy from unfair dismissal is to succeed. The section reads:

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.

[113] As I have just concluded that three of the above criteria have been satisfied ((a)(c) and (d)), this only leaves the question of whether Ms Hanrick’s dismissal was ‘harsh, unjust or unreasonable’ and therefore an unfair dismissal. To this end, one must direct attention to s 387 of the Act, which deals with the matters to be taken into account by the Commission in determining whether a dismissal was unfair. It is trite to observe that each of the matters must be considered and a finding made on each of them, including whether they are relevant or not; for example whether a person was (d) refused an opportunity to have a support person present may be irrelevant (neutral), if the request was not made, or the employee declined to take up the offer.

[114] The matters to be taken into account under s 387 of the Act are:

(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.

[115] All of the criteria in s 387 of the Act must be taken into account when the Commission considers whether a particular dismissal is unfair. The notion of ‘taking into account’ a matter (such as those described in s 387 of the Act) connotes a genuine consideration of the relevant section and the apportionment of the appropriate weight in the circumstances. In Construction, Forestry, Mining and Energy Union v Hamberger and Another (2011) 195 FCR 74, Katzmann J pointed out that ‘[t]o take a matter into account means to evaluate it and give it due weight’ and that ‘mere advertence will not be enough’. That said, it must also be steadily borne in mind that no one matter is to be attributed any greater weight than another. That this is so is obvious from the Explanatory Memorandum to the Fair Work Bill 2008 where at para 1541, it reads:

‘1541. FWA must consider all of the above factors in totality. It is intended that Fair Work Act 2009 will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.’ (My emphasis)

Allegation of serious misconduct

[116] It is uncontested that Ms Hanrick was summarily dismissed for serious misconduct; noting that the epithet ‘wilful’ was not used in the termination letter. ‘Serious misconduct’ is defined in the Act’s Regulations. Regulation 1.07 sets out the definition as follows:

1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3)  For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee's employment, engaging in:

(i)  theft; or

(ii)  fraud; or

(iii)  assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment [my emphasis].’

[117] It may be comfortably assumed that Meridian Lawyers relies on ss (2)(b) of the Regulation. However, that in itself, is not necessarily determinative. In Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033, the Full Bench of the Commission said at para [33]-[34]:

[33] The relevance of the definition of “serious misconduct” in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of “serious misconduct” for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression “serious misconduct” is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is “satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person”. However, it is clear that conduct may constitute “misconduct” for the purpose of s.392(3) without necessarily being “serious misconduct”. The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.

[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd  Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice” and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. “Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd Buchanan J said:

“[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful misconduct’ are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term ‘serious misconduct’ is under consideration an evaluation of what conduct represents ‘serious’ misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).” (footnotes omitted)

[118] The notion of wilful or deliberate behaviour amounting to serious misconduct is conduct which strikes at the heart of the employment relationship. That concept has been considered in a number of well known authorities (although characterised in slightly different terms). In North v Television Corporation Ltd, (1976) 11 ALR 599 Franki J said at p 616:

‘It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions.’

[119] Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 (referred to in the quote above) makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be ‘wilful’:

‘... I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions (P288).’

[120] In Concut Pty Ltd v Worrell (2000) 103 IR 160, His Honour, Kirby J, dealt with the ordinary relationship of the employer and employee at common law and said at para [51]:

‘The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law:

“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. ...[T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.”

In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the “confidence” essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer’s counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company’s service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee’s summary dismissal.

It is, however, only the exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to ‘isolated’ acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal.’

[121] In cases of summary dismissal, the onus rests on the respondent to prove, to the Commission’s satisfaction, that the misconduct, has in fact, occurred. This is why I have adopted the practice of requiring the employer to file and serve its evidence first when I issue directions in preparation for a serious misconduct unfair dismissal case. While this evidentiary onus must be discharged on the civil onus of proof (on the balance of probabilities); Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (‘Briginshaw’), the more serious the allegation, the higher the burden on the employer to prove the allegation. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, the High Court said:

‘The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.’ (footnotes omitted)

[122] That the Commission, for itself, must be satisfied that the misconduct occurred, is well established by the authorities of the Commission and its predecessors. In King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019, a Full Bench of the AIRC said at paras [24], [26], [28] and [29]:

‘[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.

...

[26] As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved.

...

[28] It is apparent from the above extract that his Honour answered the question of whether the alleged misconduct took place on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. This is not the correct approach. The Commission's obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved.

[29] In our view the Senior Deputy President failed to determine for himself whether Mr King was guilty of misconduct in the way alleged by Freshmore and he should have done so as part of determining whether the termination had been harsh, unjust or unreasonable. When the reason for a termination is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The absence of such a finding leads us to conclude that the member below failed to properly determine whether there was a valid reason for the termination of Mr King's employment.’ (my emphasis)

[123] Even accepting that a finding of serious misconduct was open to Meridian Lawyers, it must not be confused with the statutory language. The statute still requires the Commission to find that there was, or was not, a valid reason for dismissal (s 387(a)). In Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200, a Full Bench of Fair Work Australia (as the Commission then was) held at para [16]:

‘[16] In the circumstances of this matter the University purported to terminate Dr Asher’s employment for serious misconduct within the meaning of that term in the University’s enterprise agreement. If it successfully established that Dr Asher had engaged in serious misconduct it would necessarily follow that there was a valid reason for the dismissal. However, the converse is not true. As established by Annetta, the question that needed to be considered was whether there was a “valid reason” in the Selvachandran sense – whether the reason was sound, defensible or well founded. Whether it also amounted to serious misconduct may well be a factor relating to the overall characterisation of the termination but it was not an essential requirement in the determination of whether a valid reason exists.’

Meaning of ‘harsh, unjust or unreasonable’?

[124] I earlier set out at para [114] the matters the Commission is required to take into account under s 387 of the Act when determining this question. I commence with ‘valid’ reason.

[125] The meaning of valid reason in s 387(a) is drawn from the judgement of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’). This meaning has been considered and applied by members of the Commission and its predecessors for many years. For example, in Rode v Burwood Mitsubishi Print R4471, a Full Bench of the then Australian Industrial Relations Commission (AIRC) discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and by citing Selvachandran . The following is an extract from the Full Bench’s decision at para [17]-[19]:

[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. 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 reason 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 each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.

See also: Nettleford v Kym Smoker Pty Ltd (1996) 69 IR 370.

[126] In B, C and D v Australian Postal Corporation, a majority of the Full Bench (Lawler VP and Cribb C) dealt with breaches by a number of employees of Australia Post’s IT policies, in respect to the sending, receiving and sharing of pornographic material. The majority said at paras [34] to [35]:

‘[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.’

Was there a valid reason for the applicant’s dismissal?

[127] The answer to this question necessarily requires consideration of the competing and conflicting evidence between the applicant and all of the respondent’s witnesses. It will be immediately apparent that the applicant’s version of numerous incidents said to involve a number of Solicitors and other employees, is difficult to reconcile with the evidence of those persons the applicant had named. Accordingly, findings of witness credit must be made by the Commission to resolve this evidentiary conflict.

[128] In determining a case of the scope of this matter, involving numerous claims and counter claims, it is unnecessary for the Commission to make findings on every conflict of evidence. The evidence must be considered as a whole. In Parker v Garry Crick’s (Nambour) Pty Ltd as The Trustee for Crick Unit trust T/A Cricks Volkswagen [2018] FWCFB 279, a senior Full Bench of the Commission, with the President presiding, said at [132]:

‘[132] As we have mentioned, the Commissioner considered the evidence as a whole, including the corrobative effect of that evidence and how that evidence internally relates to itself. The Appellant has not established an arguable case of error in the way in which the Commissioner approached her task.’

Observations and findings on the evidence

[129] At the outset, I am bound to say the applicant had a novel, but fanciful defence of her case. Her view was that if there were no witnesses to the complaints/incidents she was accused of, then the respondent could not prove they were substantiated. In a breathtaking, and irreconcilable turnaround, she claimed that her allegations/complaints must be true, because she had been the only person who had witnessed them. In a further conflicting submission, the applicant claimed that the incidents she was accused of were deliberate and intentional, because they always occurred when no one else was around. Of course, the applicant completely misapprehends the nature of evidentiary proceedings in civil cases, such as those in which the Commission is frequently called on to make findings on ‘word against word’ evidence, where there are no witnesses. This was the entirely proper and orthodox approach undertaken by Ms Wellard when arriving at her decisions based on the ‘balance of probabilities’ (Briginshaw). It is the approach the Commission must adopt in cases of this kind under the legal standards of proof in civil matters. The applicant’s submission as to the standard of proof required in her case, is circular and makes no sense.

[130] As the transcript reveals, the applicant engaged in no serious cross examination of the respondent’s witnesses. Apart from Ms Wellard, the applicant’s questioning of the witnesses was very brief and made no impact. While I accept the applicant was unrepresented, as a Legal Secretary of some years experience, she must have at least some rudimentary understanding that cross examination of witnesses is an opportunity to test a witness whose evidence is directly contrary to her own. Unfortunately, the applicant did not explore with any witness, the detail of the complaints she had asserted against them. Moreover, other witnesses against whom she had made allegations, were not even required at all for questioning, most notably Ms Cerisola and Mr Saxton. Accordingly, their evidence is accepted. Moreover, Ms Hanrick had a consistent, but rather odd method of introducing her questioning of each witness. She would ask each of them who they swore their affidavit before, and whether they knew when they signed it, the contents were true and correct; notwithstanding they had just sworn to that effect. If there was some point to this, it was lost on me.

[131] It would be fair to observe that Ms Wellard’s approach of questioning all the persons the applicant had named (and others she had not) in an informal way, and without warning them of what they had been accused of, ensured that their responses were honest and transparent and not open to any suggestion of collusion. In some cases, the persons questioned were taken completely by surprise and said that they had no idea what the applicant was talking about. I will say more about Ms Wellard’s investigation a little later.

[132] In my view, all of the respondent’s witnesses gave truthful evidence and were not motivated by any mala fides, either directly or indirectly, towards the applicant. Where their evidence is in conflict with that of the applicant’s, it is the respondent’s witness evidence which is to be preferred. This must be particularly so, given some of the more absurd and utterly implausible allegations the applicant raised both during the respondent’s investigation and then when she raised new allegations after she became aware her employment was in jeopardy in the meeting of 9 November 2017. I shall return to some of these allegations shortly. That said, the applicant was a forthright and unaffected witness. She was eerily confident when describing nonsensical and ludicrous propositions. However, in my opinion the applicant’s evidence disclosed a gaping disconnect between reality and fiction.

[133] On 26 October 2017, Ms Cerisola made a bullying complaint about the applicant to Ms Somerville, alleging she had made hurtful, derogative and upsetting comments about her. That same day, the applicant informed Ms Roelofse that she had felt bullied and left the office. When interviewed by Ms Wellard and Ms Roelofse, upon her return to work on 30 October 2017, the applicant made further allegations about the conduct of Ms Cerisola and others, including against a Principal in the Firm, Mr Saxton. She claimed he had stood behind her desk and said ‘You’re evil, you evil girl’. These initial allegations formed the basis of Ms Wellard’s investigation and ultimate findings that the applicant had made false bullying allegations against both Ms Cerisola and Mr Saxton.

[134] In my view, the making of false bullying allegations by an employee against other employees, including a senior Principal of a law firm, will ordinarily be a valid reason for dismissal for serious misconduct. I am satisfied from the evidence adduced in this case, that the applicant made false allegations against both Ms Cerisola and Mr Saxton and that the respondent has proved the allegations to the requisite standard (Briginshaw). The onus on the respondent to prove the allegations for which the applicant was dismissed, has been discharged. That conclusion was reasonably open to Ms Wellard and I expressly agree that the proven allegations constituted a valid reason for the applicant’s dismissal.

[135] That said, some further observations on the applicant’s allegations are apposite.

[136] The applicant was not content with merely retaliatory complaints against Ms Cerisola and Mr Bawden. As quick as a flash, she set out to cast her net of complaints far and wide across the Firm, to accuse many other employees, including Senior Principals, as perpetrators of bullying, or at the very least, inappropriate behaviour towards her. She did so by drawing nonsensical conclusions from totally unrelated events, or she simply made up allegations which were utterly implausible or preposterous. A few glaring examples, which are by no means exhaustive, were:

(a) Alleging that her twitter comment about Hitler in March 2017 was somehow linked to Ms Shiel and Ms Cerisola having a private discussion in October 2017 about Ms Shiel’s visit to the Jewish museum. The relevance of any link between these two matters, months apart, escapes me.

(b) Ms Wellard’s Law Society Journals were somehow strategically placed on her side table to ‘unsettle her’ because LSJ, were the initials of her name. Apart from the obvious, that is, her initials are LJH, to claim Ms Wellard had used copies of the Law Society Journals, which the applicant described as ‘satirical paraphernalia’ to intimidate her, was bizarre and fanciful.

(c) The applicant maintained her view that there were ‘external influences’, being person/s outside the Firm who knew things about her and her family, which they had conveyed to employees of the Firm. Despite being repeatedly asked by Ms Wellard during the investigation, and in cross examination, what she meant by this extraordinary claim, the applicant merely repeated it. She provided no evidence of any such ‘external influences’, and did not ask any witness if they were ‘influenced’ by persons outside the Firm. She offered no details of what she meant, or why anyone would be the least bit interested in causing her grief at Meridian Lawyers.

(d) The applicant was prone to use her own colourful misplaced descriptions of what people were saying to her, or what she had overheard. She described this as ‘satirical rhetoric’ which was designed to harass and intimidate her.

(e) The applicant claimed her confidentiality was breached because she had ‘discovered’ an email to Ms Shiel from an unnamed solicitor from another law firm, who had asked about the trouble she was having with her Secretary. No such email was produced, no names were mentioned, yet the applicant thought this was an important matter to raise. In my view, this was a diversionary fabrication.

[137] In my assessment, all of these allegations and more, were intended to create an image of bullying, antagonism and inappropriate behaviour across the Firm, of which she was the sole victim. I am bound to say nothing could be further from the truth. In some cases, the persons she complained about, had little or no contact with her, and did not even know who she was. We have here a classic example of a disgruntled and disaffected employee whose own behaviour was in question, deflecting attention from their behaviour, by making false allegations against others. Ms Wellard’s responses were entirely appropriate and necessary in the circumstances. She was obliged to investigate all of the examples of alleged bullying or inappropriate behaviour; indeed she repeatedly invited the applicant to provide any other examples of inappropriate behaviour.

[138] To my mind, what was more troubling was when the applicant became aware her employment was in jeopardy in the meeting on 9 November 2017, she launched into a series of new farfetched allegations. Her rationale was extraordinary – ‘I just let loose, didn’t I?’. These involved the allegations against Mr Baker, a new allegation against Mr Saxton that he called her ‘thick’, the Law Society Journal allegation and a claim Ms Wellard called her a ‘chook’ on the first day of her employment. I reject all of these allegations as false and fabricated and intended for an ulterior purpose; namely, to deflect attention from her own false allegations. Let me elaborate.

[139] The applicant submitted that Mr Baker had made disparaging comments about her and her family on numerous occasions throughout her employment. Mr Baker vehemently denied the allegations; see: para [84] above. Apart from being utter nonsense, it is difficult to imagine what interest the Managing Principal would have in the applicant, or her family, let alone what possible motive he would have for disparaging her family, who he had never met and did not know anything about. The applicant’s reason for not raising this matter earlier was just as absurd and improbable (that Ms Wellard was not listening). This was a person who within a few months of employment, complained about a noisy office and an interfering person who worked near her. She was moved away from her. Given her propensity to complain about inconsequential matters and make false allegations, it makes no sense at all that she would not have complained about the more serious behaviour of the most senior person in the Firm for almost 17 months. This clearly demonstrates to me that this allegation was patently false and the applicant knew it to be so.

[140] In my opinion, if a valid reason for dismissal had not already been well established by 9 November 2017 (which it had), these new false complaints against Mr Baker, Mr Saxton and Ms Wellard - without a scrap of evidence to back them up - must have crystallised the decision to dismiss her, beyond a shadow of a doubt. In my judgement, Ms Wellard was entitled to view this ongoing misconduct as entirely consistent with her earlier behaviour and firmly grounded a valid reason for her dismissal.

[141] Sadly, if ever there was a case where a dismissed employee was the foolish and misguided choreographer of their own downfall, this must be it. Pursuant to s 387(a) of the Act, I am satisfied the applicant’s conduct was a valid reason for her dismissal.

Further matters to be considered under s 387 of the Act

[142] Subsections (b)-(e) of s 387 are generally grouped under the rubric of ‘procedural fairness’ or ‘natural justice’ issues. To highlight the importance of procedural fairness issues, in unfair dismissal cases, I cite four authorities on the subject. In Crozier v Palazzo Corporation Pty Limited t/as Noble Storage and Transport (2000) 98 IR 137 (‘Crozier v Palazzo’), a Full Bench of the AIRC said at para [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 170CG(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.’

[143] In Wadey v YMCA Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations concerning an employee’s conduct. His Honour said:

‘In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.’

[144] Nevertheless, procedural fairness steps should be applied in a commonsense and practical way. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1 (‘Gibson’), Wilcox CJ said at [7]:

‘Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.’

[145] It goes without saying that any issue/s of procedural unfairness may not be of such significance as to outweigh the substantive reason/s for an employee’s dismissal, particularly in cases of misconduct where the proven misconduct is of such gravity as to outweigh any other considerations in respect to ‘harshness’, such as age, length of service, employment record, contrition or personal and family circumstances. In Bostik Australia Pty Ltd v Gorgevski (No 1) [1992] FCA 271; 36 FCR 20, the Federal Court of Australia Industrial Division said at [37]:

‘Harsh, unjust and unreasonable

37. These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee’s misconduct.’ [my emphasis]

Whether the person was notified of that reason (s 387(b))

[146] The applicant was notified of the reasons for her dismissal at the meeting on 9 November 2017. Written confirmation of her dismissal, and the reasons for it, were set out in a letter, dated 10 November 2017. The applicant claimed that in the meeting of 9 November 2017, Ms Wellard never used the word ‘false’ in connection with the allegation for which she was dismissed. Ms Wellard had only said she had determined, on the balance of probabilities, that the applicant had made up the allegations. It followed - as I understand the applicant’s submissions - that she was not told the real reasons for her dismissal and therefore could not respond to them; thereby denying her procedural fairness. This submission was absurd and pure semantic chicanery. There is no conceptual difference between making a ‘false’ allegation and ‘making up’ an allegation. They are the same thing. In any event, two further considerations arise in this context:

(1) At all relevant times, the applicant was fully aware of the precise nature of the allegations against her from meetings on 30 October and 7 November 2017 and in emails to her. There could have been no confusion or uncertainty in her mind as to what was alleged against her.

(2) In any event, the applicant’s own evidence was that in the 9 November 2017 meeting she had a wide ranging argument about the unfairness of her dismissal. This was an argument about Ms Wellard not being able to substantiate the allegations, as there were no witnesses to corroborate Mr Saxton’s denials of his alleged behaviour. To my mind, there was little for Ms Wellard to consider when the applicant flatly denied the allegations against her.

[147] This factor tells against a finding of unfairness.

Whether the person was given an opportunity to respond to any reasons related to the conduct of the person (s 387(c))

[148] The applicant was provided an opportunity to respond to the allegations against her and provide further information of any other complaints in meetings on 30 October, 6 November and 9 November 2017. She was not pressured into responding in an untimely manner. She was invited to provide any other information by email at various points from 30 October to 9 November 2017. In addition, the applicant was aware of the possibility that if she had made false allegations, she may face disciplinary action, including the termination of her employment. The applicant had a reasonable period of time from 30 October to 9 November to reflect on her behaviour and her allegations and withdraw her allegations, particularly those against Mr Saxton. She did not do so. This factor tells against a finding of unfairness.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal (s 387(d))

[149] The applicant was invited to bring a support person to the three meetings with Ms Wellard, Ms Browne and Ms Roelofse. She did not take up this opportunity. This is a neutral factor in this case.

If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal (s 387(e))

[150] As this was a case of summary dismissal for serious misconduct, this factor is not relevant in this case.

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 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 (ss 387(f) and (g))

[151] The respondent is a medium tier, well known law firm, with a specialist employment and industrial relations team. As might be expected, the procedures followed by Ms Wellard in the investigation of the complaints by the applicant and counter complaints against her, the communications with the applicant and the meetings held with her, demonstrate a thorough and impeccable adherence to ensuring the applicant was afforded procedural fairness and natural justice. There can be no criticism of the processes leading up to, and including the applicant’s dismissal. In passing, to claim that Ms Roelofse, an experienced HR and IR professional, cried throughout the 9 November 2017 meeting, was errant nonsense. In any event, whatever the point the applicant was attempting to make, is not at all apparent.

Any other matters the Commission considers relevant (s 387(h))

[152] Given the variety and multiplicity of the applicant’s false allegations against numerous persons, it is beyond belief that she did not back down from any one of them. She denied them all, even in the face of reflection on the contrary evidence in this case, and the objective implausibility of most of her complaints. Her defiance and hubris in the 9 November 2017 meeting and her raising further new allegations for the first time, (because she had nothing to lose), was for me a most disturbing and unfathomable feature of this case.

[153] Section 381(2) of the Act sets out an overarching objective in the exercise of the Commission’s powers in its unfair dismissal jurisdiction. The section reads:

Object of this Part

(1)  The object of this Part is:

(a)  to establish a framework for dealing with unfair dismissal that balances:

(i)  the needs of business (including small business); and

(ii)  the needs of employees; and

(b)  to establish procedures for dealing with unfair dismissal that:

(i)  are quick, flexible and informal; and

(ii)  address the needs of employers and employees; and

(c)  to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a

"fair go all round" is accorded to both the employer and employee concerned.

Note:  The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.

[154] In applying the ‘fair go all round’ test to the facts and circumstances of this case, leads to only one conclusion which now follows.

CONCLUSION

[155] For the aforementioned reasons, I do not intend to interfere with Meridian Lawyers’ decision to dismiss Ms Linda Hanrick on 9 November 2017. Her dismissal was not ‘harsh, unjust or unreasonable’, either substantively or procedurally, within the meaning of s 387 of the Act. Ms Hanrick’s proven serious misconduct and her complete lack of contrition or regret for her conduct was incompatible with the continuation of her contract of employment. In short, her dismissal was not unfair. Accordingly, her application for an unfair dismissal must be dismissed. An order to that effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Ms L Hanrick for herself.

Ms S Wellard, Solicitor for the respondent.

Hearing details:

2018.

Sydney:

March 13.

Printed by authority of the Commonwealth Government Printer

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