DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Saraspathy Sookanathan
v
Victoria Police
(U2019/5138)

Application for an unfair dismissal remedy.

Introduction

[1] Ms Saraspathy Sookanathan commenced working with Victoria Police as an Occupational Health Practitioner on 12 July 2018 after arriving in Australia from South Africa in 2014. However, she was dismissed from her employment on 2 May 2019 on grounds that she had breached a Code of Conduct applicable to Victorian Public Servants and the Victoria Police Manual, as a consequence of her failure to follow a lawful direction. Ms Sookanathan subsequently filed an unfair dismissal application and this decision deals with that application.

[2] Mr A Aleksov of Counsel appeared on behalf of Ms Sookanathan. Ms D Siemensma of Counsel appeared on behalf of Victoria Police. Both were given permission to appear under s.596(2)(a) of the Fair Work Act 2009 (Cth) (the Act) as the matter involved a degree of complexity and their involvement might enable it to be dealt with more efficiently.

The Issue to be Determined

[3] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied “the dismissal was harsh, unjust or unreasonable.” Section 387 continues to provide that the Commission must take into account the following considerations in determining whether a dismissal was harsh, unjust or unreasonable. It states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

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

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.” 1

[4] The Commission is therefore now required to determine whether Ms Sookanathan’s dismissal was “harsh, unjust or unreasonable” taking into account the matters set out in s.387.

The Applicant’s Evidence and Submissions

Ms Saraspathy Sookanathan

[5] Ms Sookanathan commenced employment with Victoria Police as an Occupational Health Practitioner on 12 July 2018. However, she was dismissed from her employment on 2 May 2019 for having breached the Code of Conduct applying to Victorian Public Servants and the Victoria Police Manual. The alleged breach concerned her failure to follow a lawful directive, namely that she ceased to have any further contact with another employee, Doctor Lui.

[6] Ms Sookanathan states that during the time she was employed she had an excellent relationship with Doctor Lui, and they were regularly in contact by text and email and would have lunch together on occasions. There was nothing unusual or uncommon about their relationship and nothing was said about it during the time she was employed.

[7] In early October 2018 Doctor Lui broke down in her office. She was dealing with a difficult matter at the time and Ms Sookanathan responded by providing support and comfort to her. She reported the incident to the Senior Police Medical Officer, who thanked her and confirmed that Doctor Lui was going through a difficult time. Ms Sookanathan also gave her chocolates and received an email in response thanking her for her kind words and support.

[8] Ms Sookanathan gave flowers to Doctor Lui on another occasion and noticed a change in her mood from that time, whereas she had previously appeared sad and dejected and reluctant to greet other staff. She also gave her a Christmas gift and received a gift in return from her as well. They continued to have lunch together on regular occasions over the Christmas/New Year period. Doctor Lui also spoke to her about the plans for her forthcoming birthday, and told Ms Sookanathan that if she wished to message her she could get her mobile phone number from the front desk. Ms Sookanathan later gave Doctor Lui a birthday present and received a “quick hug” in response as a gesture of appreciation.

[9] They also had other conversations in the period leading up to Christmas. On one occasion they spoke about Doctor Lui’s parents who were travelling down to Melbourne by bus from Canberra. On another occasion they talked about Doctor Lui’s brother who was a pharmacist and was considering opening his own business. Ms Sookanathan’s husband also has his own business and they spoke about some of the issues involved in running a small business. They also discussed their different music tastes, as well as Ms Sookanathan’s daughter and her potential future career choices.

[10] Sometime around the third week of January Inspector Michelle Henderson walked into the office and bragged about how she had sent a message to Doctor Lui for her birthday and how grateful she was for having received the message. She spoke in a loud voice and made a point of making sure that Ms Sookanathan could hear what she was saying. On another occasion Inspector Henderson made a point of letting everyone in the office know she was taking Doctor Lui out for a Valentines’ Day dinner. Ms Sookanathan understood that these comments were made so that she could overhear them. It subsequently became evident that Doctor Lui would only talk to Ms Sookanathan when Inspector Henderson was not around.

[11] In the third week of February Inspector Henderson met with Ms Sookanathan to discuss some drug testing conducted earlier that month. Ms Sookanathan claims Inspector Henderson touched her inappropriately during the course of this discussion and subsequently made a formal complaint about the behaviour which is currently under investigation by the Professional Standards Unit at Victoria Police. Inspector Henderson has totally ignored her since that time.

[12] On 7 March 2019 Doctor Lui went on leave for a few days. The Acting Operations Manager, Mr Charles Hewitt, called Ms Sookanathan into a meeting on that day and asked her to stop texting and giving gifts to Doctor Lui. She asked whether Doctor Lui had made a complaint about this but received no response. She also asked that he pass on an apology to Doctor Lui on her behalf if she had done anything to upset her but could not understand why she might be upset. She denied that she admitted to any misconduct during this meeting and states that she was not given a legitimate reason as to why the texting and gifting should stop. She later assumed that the complaint about her had been made by Inspector Henderson.

[13] She was confused and stressed by what was happening at this point and decided to write a letter of apology to Doctor Lui to make clear she did care about her and was unsure about what she had done to upset her. She was also sorry for any ill feeling that might have been created. A copy of the handwritten letter was attached to her witness statement. It stated:

“Hi Themis

I am not sure if an apology was Passed [sic] onto you.

Since I don’t have the opportunity to apologise in Person [sic] (face-to-Face), thought that I would do this in writing.

It’s a huge risk, as I was asked not to discuss this with you.

I never meant to cause you any emotional harm. I do care a lot about you and sincerely apologise for any discomfort caused.

Please discard this after reading and don’t discuss this with anyone.

Especially M. Henderson.

I promise to stay out of your way.

I have been threatened with further HR action should I discuss this with you, so Please discard all of this paper trail.

I am not scared of losing my job, I needed you to know just how sorry I am. 2”

[14] Mr Hewitt apparently became aware that the note been left and again met with Ms Sookanathan and told her that the matter had now been referred to the Workplace Relations Division of the Human Resources Department (Workplace Relations) for further consideration. She was then told she had been suspended and the circumstances were under further investigation. On 1 April 2019 she was advised by Workplace Relations that she was to be given a final warning and the matter would not be investigated further, given she had acknowledged leaving the letter for Doctor Lui. However, it stated that it had been left in Doctor Lui’s office, which was not correct. It had instead been left in her tray in the shared office space. Ms Sookanathan accordingly decided to provide a further response to correct this discrepancy.

[15] On 2 May 2019 she received a further email from HR indicating that it had now been decided to terminate her employment. After contacting HR, she was told that “…the apology letter had an element of threat to it 3” and as a consequence it had been decided that her employment was to be terminated. She received a formal termination letter on 2 May 2019.

[16] Ms Sookanathan denied that the note contained any threat and she had instead emphasised to Doctor Lui that she cared about her well-being.

[17] She also indicated in her examination-in-chief that she was now employed on a casual basis with a not-for-profit organisation since the first week of June. She had not been employed prior to that time after leaving Victoria Police. She was earning an hourly rate of $38 per hour but was uncertain about how long this employment would continue. This equated to around $65,000 per year compared to her earnings of $93,000 per annum plus superannuation at the time she left Victoria Police.

[18] She also denied in cross-examination that she had left flowers and chocolates on Doctor Lui’s desk as often as once a fortnight, and this happened on only three or four occasions. She also denied that she would regularly go into Doctor Lui’s office and discuss her family and personal issues with her and stated instead that these conversations were more about both of them sharing and exchanging information about their family and personal lives. She also denied that when she gave Doctor Lui a Christmas present she told her she could not accept the gift.

[19] She also denied that she had obtained Doctor Lui’s private mobile phone number without her knowledge and had instead obtained it from “the front desk” as Doctor Lui had suggested. She also denied she was upset because Doctor Lui did not respond to the birthday message she sent her, or that she had sent her a picture of herself in bathers because she hoped Doctor Lui might find her physically attractive 4. She also denied that in the early part of this year she was actively looking for another job. However, she had been approached by another employer about a possible job offer and had asked Doctor Lui for advice about what she should do. However, she had not decided to remain at Victoria Police because she was hoping to pursue a romantic relationship with Doctor Lui.

[20] She also denied she had been critical of Doctor Lui because she did not respond to the messages sent to her. She also denied that Doctor Lui appeared to be ignoring her after she had sent her a gift in February, however, she did acknowledge that when Inspector Henderson was in the office Doctor Lui appeared reluctant to talk to her. She also denied she was infatuated with Doctor Lui, or had strong feelings about her, but they had become good friends and she was someone whom she could confide in.

[21] She also acknowledged that when called into the meeting with Mr Hewitt on 7 March 2019 she might have said that she had been trying too hard in terms of her relationship with Doctor Lui. He had also told her to stop giving gifts to Doctor Lui, and to stop sending messages to her mobile phone. She was instead asked to maintain what he described as a professional work focus in her interactions. She asked whether she could send Doctor Lui an apology, but he said he would apologise instead at an appropriate time. However, she was confused at this point because she could not understand what she had done to upset Doctor Lui and could not understand why Mr Hewitt was asking her to follow his directions because of his responsibility for the safety and welfare of all employees.

[22] She also agreed that on 18 March 2019 she left the handwritten note in Doctor Lui’s tray at work, together with two additional email attachments, and acknowledged in retrospect that this was not a professional, work focused communication. She also stated that there appeared to be a page of the note missing because she recalled making reference to giving her the note because of her concern for Doctor Lui’s health and well-being. She also understood that she had been told by Mr Hewitt to not be in direct contact with Doctor Lui but thought that the note was a way of communicating that avoided direct contact. However, she acknowledged that she may have misunderstood the nature of the instruction given to her by Mr Hewitt. However, she did not go into Doctor Lui’s office after that time and did not make direct contact with her and accordingly believed that she had not disobeyed the instruction given to her. She also believed that the complaint that led to her meeting with Mr Hewitt had been made by Inspector Henderson, rather than Doctor Lui. She had accordingly asked Doctor Lui to keep the content of the note confidential as she did not want her to discuss it with Inspector Henderson because she was concerned about the degree of power she had in the department.

[23] She also denied that she was aware that her employment might be terminated as a result of leaving the note for Doctor Lui, and the reference in the note to that possibility was about trying to emphasise to Doctor Lui that her health and well-being was more important than hers. She also did not believe that she had disobeyed the direction given to her by Mr Hewitt but acknowledged that she might have misinterpreted what he had intended. However, she understood that she was to stop giving gifts or sending any further texts to Doctor Lui, although she also believed that this request had not been made by her.

[24] She was also very confused at this point because there had been two meetings with Mr Hewitt, “…and he had not given me clear instructions and guidelines on what this entire thing was about 5.” She was also not aware about what conduct was being referred to when she received the letter on 1 April 2019, particularly because it did not indicate how she had actually transgressed, and it was never made clear that she had been accused of harassing Doctor Lui. She also still believed that the complaints about her had come from Inspector Henderson.

[25] Ms Sookanathan also acknowledged that she had not made the allegations about Inspector Henderson that are referred to in her witness statement, prior to her employment being terminated, because she felt too embarrassed to do so at the time. However, she had made mention of it to another employee after the incident occurred. However, she denied that she was jealous of Inspector Henderson because of her friendship with Doctor Lui but believed that she had made a complaint about her because of her interaction with Doctor Lui.

The Applicant’s Submissions

[26] Ms Sookanathan submits, in conclusion, that she and Doctor Lui initially had a friendly relationship, however, that changed from February after Doctor Lui attempted to place some boundaries around their relationship. The situation escalated following the incident on 4 March 2019 but at this point it was only considered necessary to provide a direction to Ms Sookanathan. She accordingly remained in a position where she had an ongoing working relationship with Doctor Lui, and it can therefore be concluded that she was not considered to be a threat to Doctor Lui. It is also submitted that the suggestion that Doctor Lui felt intimidated by her is an exaggeration and is not borne out by the evidence.

[27] However, Ms Sookanathan does acknowledge that giving the handwritten note to Doctor Lui was a breach of the direction she had been given, particularly given the content of the note. However, the proposed disciplinary outcome decided upon constituted a final warning and this was a correct and proportionate response. It is also submitted that when an employee is invited to provide a response to a proposed disciplinary outcome it can only reasonably understood that they are being given an opportunity to make submissions in mitigation of the proposed outcome. Conversely, it would not reasonably be contemplated that the outcome might be elevated to a more severe disciplinary outcome as in this case.

[28] This accordingly requires consideration of the letter from Ms Sookanathan dated 15 April. It is acknowledged that the content of the letter was not Ms Sookanathan “…putting forward her best case,” however, there was nothing in it which justified the final warning being elevated to a decision to terminate her employment. She continues to submit that in the letter she acknowledged that it was wrong to give Doctor Lui the handwritten note, but at no stage did she state that she would not comply with the directions given to her. She also emphasised how the situation had impacted on her, and she was confused at the time, given what had occurred. However, she was not refusing to comply with the directions given to her about how to conduct her relationship at work with Doctor Lui in the future.

[29] Ms Sookanathan submits, in conclusion, that the letter did not provide a valid reason to change the disciplinary outcome from a final warning to the termination of her employment. She also submits that the Commission is only required, in essence, to have regard to what occurred after 1 April because what occurred up to that point can be said to have involved a proportionate response by Victoria Police to the behaviour that it was dealing with.

[30] Ms Sookanathan continues to emphasise in her submissions that after receiving the letter on 1 April, and after being invited to provide a response, the only reasonable conclusion that could be arrived at was that she was going to be given a final warning or some lesser outcome. The proposed outcome was in effect a final outcome, subject to anything pleaded in mitigation, and her response to that letter did not provide a valid reason for her employment to be terminated. She continues to submit that in terms of procedural fairness after Victoria Police decided that the 15 April letter warranted a more significant response it should have provided her with a further opportunity to respond to what was now being proposed, and it was procedurally unfair that it did not do so.

[31] She also emphasised in her submissions that she seeks to be reinstated by way of remedy and the Commission can be satisfied that if she does return to the workplace she will act in an acceptable manner. She continues to submit that Doctor Lui’s threatened resignation if she does return is immaterial and that is a choice she is entitled to make. However, it should not prejudice Ms Sookanathan in regard to the outcome of the present matter. There are also a number of measures that could be put in place if they are again working in close proximity. It is also noted that there have not been any performance issues raised about her at any time. However, in the alternative, if the Commission finds that reinstatement is not an appropriate outcome by way of remedy than the maximum amount of compensation is sought instead.

The Respondent’s Submissions and Evidence

Doctor Themis Tsing-Fung Lui

[32] Doctor Lui is employed by Victoria Police in the position of Police Medical Officer in its Medical Advisory Unit and has been in this role since November 2014. She is employed on a part-time basis and works four days a week.

[33] In November 2018 she came into her office and found flowers in a vase on her desk with no note. Ms Sookanathan then walked into her office and told her that she had bought the flowers for her. Doctor Lui was surprised by this as she had not previously had much interaction with Ms Sookanathan. Ms Sookanathan told her that she wanted to cheer her up because she seemed a bit upset. From that point on flowers or chocolates would be left on her desk at least once a fortnight, sometimes with a note, but often not. Doctor Lui initially thought this was a nice thing for a colleague to do as she had been feeling stressed because of some issues at work she was dealing with.

[34] However, from around November 2018 Ms Sookanathan began to regularly walk into her office uninvited and unannounced and begin to talk about her personal circumstances and other non-work-related matters. This generally occurred during the end of the nurses’ usual workday at around 3:00 p.m.

[35] A Christmas event was organised in late November 2018 and there was to be an exchange of Kris Kringle presents prior to the lunch. However, prior to this Ms Sookanathan came into Doctor Lui’s office and gave her a separate Christmas present. Doctor Lui told her that she was unable to accept it as it was only intended that the staff would exchange Kris Kringle presents. However, Ms Sookanathan refused to take the present back, and because Doctor Lui felt awkward she gave her a pack of face masks worth $2.00 in return. From this point on Doctor Lui began to feel that the situation was becoming uncomfortable and that she was being singled out by Ms Sookanathan. She found the attention to be unwanted and unnecessary and it made her feel uneasy.

[36] She had then arranged to take a period of annual leave in January 2019. On the day before she left to go on leave Ms Sookanathan came into her office and gave her a bracelet. She had apparently found out when her birthday was. Doctor Lui again told her that she could not accept the present and did not like being the focus of her attention in this way. However, Ms Sookanathan was insistent and Doctor Lui was aware from previous dealings with her that she could get agitated and upset if things did not go her way, so she reluctantly decided to accept the present. At this point she was very worried about what Ms Sookanathan’s intentions were, and she felt increasingly uncomfortable.

[37] She then received a WhatsApp message on her birthday, wishing her a happy birthday. It did not contain the name of the sender and she did not recognise the sender’s number. However, she subsequently learned that it had been sent by Ms Sookanathan. She did not understand how she had obtained her personal mobile number, as she had never asked for it, and Doctor Lui had never given it to her.

[38] She returned from leave on 21 January 2019 and immediately noticed that Ms Sookanathan appeared to be avoiding making eye contact and would turn away when she walked past. On the following day she came into her office and asked in an upset and accusatory tone about why she had not responded to the birthday message. Doctor Lui told her that she did not know who the message was from and did not respond to telephone numbers that she did not know. However, Ms Sookanathan kept repeating that she did not understand why she had not responded and that she was offended by not having received a response. She then left her office. However, around 30 minutes later she sent a further message asking why Doctor Lui had not given her a “birthday wish hug.” She responded with words to the effect of “I am not usually the hugging type,” and now felt very uncomfortable about the situation that was developing.

[39] Ms Sookanathan then went on a period of annual leave and Doctor Lui continue to receive further messages from her, including photographs of her wearing bikinis and referring to her sunburn. She did not comment about the images but responded with words to the effect that she should get some aloe vera for her sunburn.

[40] Doctor Lui continue to receive WhatsApp messages from Ms Sookanathan during the latter part of January 2019 and generally responded to avoid any confrontation or a recurrence of the negative behaviour she had experienced previously. However, she attempted to confine her responses to work-based matters and indicated that she “…tried to respond politely but impersonally. 6”

“Ms Sookanathan then began telling her that she was finding work boring and was looking for another job elsewhere. On 20 January 2019 she sent a WhatsApp message saying: “Help me make a decision 7”, which Doctor Lui took to mean that she was considering leaving Victoria Police. Ms Sookanathan continued to send further messages and Doctor Lui observed that when she failed to respond Ms Sookanathan would avoid her and refrain from speaking to her for a period of time. She said, “I felt intimidated by her behaviour and it made me think that I needed to respond to her messages just to keep things smooth at work.8”

[41] However, the ongoing content of the messages and the demands for responses caused her to feel that Ms Sookanathan was expecting more than what would normally be expected of a work colleague and she became increasingly nervous, unsure and stressed at work when Ms Sookanathan was around. She also found it difficult to talk to others about what was occurring and how she felt. She continued to state:

“I recognised that my approach of trying to reset professional boundaries and stop Sara’s behaviour, by telling her I did not want her gifts and responding to her messages and behaviour in a polite, impersonal, arms-length manner or not at all, was not effective. 9”

[42] On 4 February 2019 Doctor Lui decided to speak to another colleague, Doctor Sue Teh, about her concerns and what she might be able to do in response. She then decided to speak to Ms Sookanathan in an endeavour to make clear that she did not want any further gifts or personal messages and wanted their relationship to exist as one involving colleagues at work.

[43] On 4 February 2019 Ms Sookanathan again came into her office, uninvited and unannounced, and Doctor Lui decided to use this opportunity to discuss her behaviour. She spoke in a firm but polite tone and told her that she did not want to receive any further gifts or messages and simply wanted them to exist as work colleagues, and for their communications to be limited to work matters. Ms Sookanathan said that she understood, and Doctor Lui felt relieved that “…this terrible, uncomfortable situation had finally ended. 10” However, she then received a series of text messages later that afternoon from Ms Sookanathan which made it clear that she had not taken on board what they had discussed. However, there was minimal interaction between them in the weeks that followed, and Ms Sookanathan would avoid eye contact whenever she walked by the office area or passed her in the corridor.

[44] On 21 February 2019 she received a further text message from Ms Sookanathan. She decided not to open it, but the fact she had resumed sending messages made her again feel uneasy and unsafe. She was also concerned that Ms Sookanathan would again walk into her office uninvited and attempt to initiate private conversations with her.

[45] On 4 March 2019 Doctor Lui had a discussion with Ms Sookanathan about a file that she was looking for. Ms Sookanathan then sent her a message stating that she “…didn’t have to be so cold about the file … Do you despise me that much. 11” She decided not to respond but Ms Sookanathan’s behaviour was again impacting negatively on her well-being and she felt harassed by her. She then received a further email from her that afternoon stating that she felt humiliated by the way Doctor Lui had spoken to her in a public area, and that her tone was uncalled for. She again decided not to respond because she was concerned that Ms Sookanathan was attempting to draw her into further interaction.

[46] Doctor Lui then spoke again to Doctor Teh and explained that the situation had become very uncomfortable and she was at a loss as to how to continue working with Ms Sookanathan. Doctor Teh told her that she should now escalate the issue to a management level, as she had attempted to deal with the situation directly, without success. She then received a further series of WhatsApp messages later that evening which again left her very disturbed. She stated:

“These messages confirmed to me that Sara’s expectations of our interactions was much more intense, some sort of infatuation; that she was trying to create a bond that was more than a work relationship.

This made me feel more unsafe about attending MAU, as I did not know how I would be able to work with Sara as a colleague after my requests to remain within the boundaries of the colleague had not been respected and she made me feel harassed and so uncomfortable. 12”

[47] When she arrived to work on the following day, she found several gifts on her desk and immediately decided to speak with Doctor Blaher about the situation. Mr Charles Hewitt subsequently joined the meeting and Doctor Lui explained what had been occurring and how she was now feeling. The meeting concluded on the basis that Doctor Blaher and Mr Hewitt would now discuss how best to manage the situation. She also worked with Inspector Henderson to develop a chronology of events 13. Mr Hewitt then told her that he was going to meet with Ms Sookanathan and it was agreed this meeting would take place while Doctor Lui was away on a period of annual leave she was about to take.

[48] Doctor Lui returned from leave on 13 March 2019 and was told by Mr Hewitt that he had met with Ms Sookanathan and told her what was now expected of her. He also told her that Ms Sookanathan had wanted him to pass on her apologies.

[49] At around 12 noon on 18 March 2019 Doctor Lui noticed that there was an envelope with her name on it in the tray. She recognised Ms Sookanathan’s handwriting on the envelope and was concerned about what the envelope contained. She decided to leave it for the time being and eventually collected it later that afternoon. It contained a handwritten note and copies of some emails. She then went and spoke with Mr Hewitt about the letter and its contents and told him that it had again made her feel unsafe and apprehensive, as Ms Sookanathan had apparently decided to find a way of getting around the direction not to contact her via WhatsApp or any other electronic means. She felt nauseous and had physical feelings of anxiety and ended up staying at a friend’s house for a period of time because she was felt unsafe and was concerned Ms Sookanathan might now turn up at her house.

[50] Doctor Lui also responded to some of the statements in Ms Sookanathan’s witness statement. She denied they ever had an excellent relationship. She rejected the suggestion that she had never said anything about feeling uncomfortable when they were together. She also denied bursting into tears on one occasion when they were together and did not tell her that she was overwhelmed after receiving the Christmas gift from her. She also did not tell her that she could obtain her phone number from the front desk if she wanted to. She also denied she had ever given her a hug, or that she had not asked her to stop giving gifts or sending messages.

[51] Doctor Lui also stated that if Ms Sookanathan was reinstated to her position at Victoria Police she would resign because the prospect of working with her again made her feel extremely unsafe and anxious. She had also become extremely upset and distressed by her conduct and believed her denial of any wrongdoing was another example of her refusal to accept any boundaries. She had also sought the assistance of a psychologist in dealing with the stress associated with what had occurred.

[52] Doctor Lui also denied in her examination-in-chief that she had ever spoken to Ms Sookanathan about her brother wanting to start his own business, or that she had given her earphones last Christmas to let her listen to some music. She also could not recollect any discussion about Ms Sookanathan’s daughters’ career and had not shown her any photographs or discussed a trip to Queenstown. She also denied there was a page missing from the handwritten note she received from Ms Sookanathan.

[53] She also acknowledged in cross-examination that when she first received the flowers from Ms Sookanathan, she found this to be encouraging support from a work colleague, particularly because she was stressed at the time as a consequence of dealing with an AHPRA complaint. She also acknowledged that she did not initially complain about Ms Sookanathan coming into her office but did so later when she found this to be occurring more frequently.

[54] She had not complained about Ms Sookanathan obtaining her personal mobile phone number but did ask where she got the number from. She was surprised she had been able to obtain the number and the only people she generally interacted with by text were those that she had given her telephone number to. She also denied she had been engaged in friendly banter in her text exchanges with Ms Sookanathan and she was instead simply responding to her communications.

[55] In her view Ms Sookanathan had failed to respect the boundaries that should exist between work colleagues and continually stepped over those boundaries. Her behaviour left her feeling intimidated and upset. She also believed that from January onwards Ms Sookanathan was pursuing some form of romantic interest in her, however, she acknowledged that she had not made unwanted physical contact with her at any time.

Doctor Suzanne Teh

[56] Doctor Teh is employed by Victoria Police as a Police Medical Officer and has been in this position since 2013. Doctor Lui first spoke to her in February 2019 about Ms Sookanathan’s behaviour and explained that she had been sending her numerous personal text messages, as well as buying gifts and leaving them on her desk. She told her that behaviour was making her feel increasingly uncomfortable. She had also sent her a photograph of herself in bathers, but she had not downloaded the whole message because she did not want to see it. She had also tried to establish some boundaries with Ms Sookanathan, but this was not working.

[57] Doctor Teh suggested that she should stop responding to the messages and should tell her to stop giving the gifts. However, after Doctor Lui told her about again receiving gifts on 5 March she suggested that she discuss the situation with the Senior Police Medical Officer, Doctor Foti Blaher. She then had a further discussion with her in mid—March 2019 about what was occurring. Doctor Lui appeared visibly distressed at that time and told her that she felt unsafe and was concerned that Ms Sookanathan was going to discover where she lived.

Mr Charles Hewitt

[58] Mr Hewitt is a psychologist employed by Victoria Police. He is currently seconded to a project team that is undertaking a mental health review. In March 2019 he was appointed to the position of Acting Operations Manager of the Medical Advisory Unit. It was a temporary appointment to fill a four-week vacancy while the Operations Manager was on leave.

[59] Mr Hewitt first had involvement in issues concerning Ms Sookanathan when he was called into a meeting by Doctor Blaher on 5 March 2019. Doctor Lui recounted her recent experiences with Ms Sookanathan in that meeting and Mr Hewitt observed that she appeared shaky and apprehensive and felt that the behaviour she was experiencing was repeated and unwanted. He decided that he needed to take time to consider how the matter should be dealt with before responding. He was also aware that Doctor Lui had sought some initial advice from Inspector Henderson, and she was assisting her to prepare a chronology of what had occurred.

[60] Mr Hewitt subsequently decided that management intervention was required, while other measures were put in place to support for Doctor Lui. He became increasingly concerned about the alleged behaviour after reviewing the draft chronology. After further discussions with the Workplace Relations unit it was decided that Mr Hewitt should meet with Ms Sookanathan to address, among other things, the professional boundaries that should exist between her and Doctor Lui.

[61] The meeting was arranged for 7 March 2019 and Ms Sookanathan attended with a support person. She enquired about whether a complaint had been made about her and Mr Hewitt indicated in response that he was not in the position to disclose whether there had been a complaint or not. He was instead concerned about the interactions that had taken place between her and Doctor Lui and wanted to ensure that she conducted herself in the future in accordance with his expectations. He suggested in this context that the gift giving and contact on a personal mobile phone should stop, and she should maintain a work focus in her interactions. Any direct contact should also take place, as far as possible, in the open plan area. He also told her that their discussions were confidential, and she was not to approach anyone who might have been involved. He also told her that if she had any future concerns they should be raised with him, rather than her taking them up directly with Doctor Lui.

[62] At the conclusion of the discussion Ms Sookanathan asked whether she could apologise to Doctor Lui, which Mr Hewitt understood meant that she was aware her behaviour had had an impact. He told her that this would not be appropriate and that he would convey her apology. He also told her that he would continue to monitor and review the situation over the coming weeks. He then sent her an email later that morning reiterating the content of their discussions. At no stage did Ms Sookanathan indicate that she was confused or unsure about what she was being directed to do. That email stated as follows:

“Hi Sara,

As discussed, my primary concern in speaking with you is and will continue to be the safety of all MAU employees, including yourself.

Following our conversation this morning my expectations moving forward are:

•  All gift giving will cease

•  All contact via personal mobile phone with Doctor Lui will cease

•  In the workplace you will maintain a work focused and professional working relationship Doctor Lui

We agreed that you will not approach anyone you feel may have contributed to my decision to meet with you this morning.

I expect that you will direct any concerns regarding the conduct/behaviour of any MAU employees to myself in the first instance.

I will continue to check in with you and review these arrangements over the coming weeks and will hand over to Dan on his return.

Please utilise the supports available to you. I will pass on your apology to Doctor Lui at an appropriate time.

Kind regards,

Charles 14”

[63] Mr Hewitt then met with Doctor Lui on 13 March 2019 after she returned from a period of leave to update her on his discussions with Ms Sookanathan. He also indicated that she wanted to apologise to Doctor Lui. On 18 March 2019 at 1.21 p.m. Ms Sookanathan sent an email to Mr Hewitt stating, “Just checking in to see if an apology was passed on to Themis? 15” He responded at 1.23 p.m. by indicating “Yes, the day Themis return from leave. Apologies, that had slipped my mind. Thank you for the reminder.” Ms Sookanathan then then sent another email at 1.34 p.m. stating “No problem, what was her response?” Mr Hewitt did not respond to this email.

[64] Later that afternoon Doctor Lui again requested to meet with him, and they met in her office. She told him that she had received a handwritten note which was enclosed with copies of the emails to Ms Sookanathan confirming the matters discussed in the meeting on 7 March 2019. Doctor Lui spoke directly and there was a degree of urgency in her manner. He indicated in response that he would seek advice about the letter and then act on that advice.

[65] He was concerned at this point that Ms Sookanathan was not respecting the boundaries put in place and he considered that the potential threat to Doctor Lui had escalated. He also considered that she was attempting to exert power and control over Doctor Lui by urging her not to discuss the letter with anyone, and to discard it after reading it. She also indicated that she cared about Doctor Lui a lot which was not a work focused communication. While she appeared to understand the nature of the boundaries that had been put in place she had chosen to ignore them, and this was emphasised by her reference in the note to her actions being “a huge risk,” and her acknowledgement that they could lead to her losing her job.

[66] Mr Hewitt also carried out an audit of Ms Sookanathan’s emails and was particularly concerned about conversations between her and a private spiritual advisor named Pravenchy. The chat log included what appeared to be a spiritual ritual with crystals and cards directed towards Doctor Lui and others in the advisory unit.

[67] He met again with Ms Sookanathan on 19 March, together with her support person, to discuss the handwritten note and whether she had left it for Doctor Lui. She confirmed that she had left the note but claimed that she had no choice but to apologise by means of leaving the note because she was unsure about whether he had passed on her apology to Doctor Lui. He told her that her behaviour fell outside of what they had agreed to, and he had specifically requested that she not approach Doctor Lui about anything other than necessary work-related matters. He also told her he had referred the matter to Workplace Relations for further assessment and would advise her of the next steps as soon as possible.

[68] On 22 March 2019 Ms Sookanathan sent him an email which indicated that she had not intended to threaten anyone’s health or safety. He responded by indicating that he was not in a position to comment further while Workplace Relations was making its assessment of the situation. He then advised her on 22 March 2019 that on advice from Workplace Relations she was being suspended from duty while the disciplinary process occurred, and she was not to make contact with anyone in the workplace while this process was taking place.

[69] Mr Hewitt denied in cross-examination that there was only a minimal safety risk resulting from Ms Sookanathan behaviour, or that he had made reference to a safety risk in order to make the situation appear more serious. He believed instead that the threat was significant.

Inspector Michelle Henderson

[70] Inspector Henderson commenced as the Acting Operations Manager of the Medical Advisory Unit at Victoria Police on 12 March 2018. On 4 March 2019 Doctor Lui asked to speak with her and told her about the situation with Ms Sookanathan and how it was making her feel very uncomfortable. She also said she felt embarrassed about raising the issue, but Inspector Henderson told her it was right to raise her concerns with management, given that the behaviour had continued despite her requests for it to stop. She also told her she had engaged the services of an external psychologist to help her deal with the situation. However, Inspector Henderson had no involvement in the decision to terminate Ms Sookanathan’s employment and had no involvement in the disciplinary process, apart from assisting Doctor Lui to draw up a chronology of events.

[71] Inspector Henderson also denied the allegations of sexual harassment made against her by Ms Sookanathan and said she felt sickened and offended by them. While she met with her on 1 March 2019 to discuss changes to the manner in which drug and alcohol testing was to occur, she did not touch her or encroach on her personal space during the course of that discussion. She also indicated in her examination-in-chief that the office where this incident was alleged to have occurred has floor-to-ceiling clear glass and anyone can see in if they walk past. There are generally people in the surrounding area, and it would be very rare for no one to be in the office. She also had no knowledge about the interactions between Doctor Lui and Ms Sookanathan until the discussions with Doctor Lui on 4 March 2019.

Doctor Foti Blaher

[72] Doctor Blaher was the Senior Police Medical Officer at the Medical Advisory Unit of Victoria Police until April 2019. On 5 March 2019 Doctor Lui asked to meet with him and told him that she had been receiving unwanted text messages from Ms Sookanathan for some time. Doctor Blaher decided to involve the Acting Operations Manager, Mr Hewitt, in the discussion. Doctor Lui continued to explain what had been occurring, including that Ms Sookanathan had obtained her personal mobile phone number without her knowledge. She also indicated that she had asked Ms Sookanathan to stop messaging her, but to no avail. She also spoke about the gift giving and the uninvited visits to her office. It was subsequently decided that Mr Hewitt would meet to discuss the situation with Ms Sookanathan.

Ms Carryl Fenner

[73] Ms Fenner is the Director of the Workplace Relations Division in the Human Resource Department with Victoria Police and has been in this role since October 2016.

[74] In March 2019 she was made aware of the matter relating to Ms Sookanathan and Doctor Lui and received a verbal briefing about in late March. The purpose of the briefing was to enable her to decide whether or not it was appropriate to suspend Ms Sookanathan while a further investigation took place. She was briefed about the directions given to Ms Sookanathan by Mr Hewitt on 7 March, and her failure to follow these directions, as well as the note she then left for Doctor Lui. She decided it was appropriate to suspend her in order to ensure Doctor Lui’s safety and well-being while disciplinary process played out. She sent a letter to Ms Sookanathan on 22 March 2019 confirming this decision.

[75] After reviewing what had occurred, and the content of the so-called “apology note,” she concluded that Ms Sokanathan had admitted to engaging in conduct that constituted misconduct and she decided to proceed to the discipline outcome stage provided for under the Victorian Public Service Enterprise Agreement 2016 16 (the Agreement). She accordingly forwarded the letter on 1 April setting out why she considered that Ms Sookanathan had engaged in conduct that was unprofessional and inappropriate and constituted misconduct.

[76] She also concluded that the apology note was the culmination of the behaviour complained of. It also demonstrated that the previous conduct had not been innocent. Ms Sookanathan was also not prepared to respect Doctor Lui’s requests to cease the conduct or comply with directions from her Manager that the conduct cease in order to ensure the health and safety of staff in the Medical Advisory Unit. She also considered that her conduct breached the Code of Conduct for Victorian Public Sector Employees of Special Bodies, as well as constituting breaches of the Victoria Police Manual. It contains instructions from the Chief Commissioner that all Victoria Police employees must comply with.

[77] Ms Fenner proposed that a disciplinary outcome of a final warning was appropriate and invited Ms Sookanathan to provide a response to this proposal within 10 business days. She also indicated that any response would be taken into account in determining the final disciplinary outcome. Her response was provided on 15 April.

[78] Ms Sookanathan again sought to defend her actions in that letter, including the gift giving and text messaging. She attempted to portray the conduct as merely collegiate and having occurred with other work colleagues in what was nothing more than friendship. She also admitted having written and left the apology note for Doctor Lui and stated that she did not believe that this contravened the directions given to her by Mr Hewitt.

[79] Ms Fenner was concerned by this response as it appeared that rather than acknowledging her behaviour and the harm it had caused Ms Sookanathan was attempting to project the blame onto others and Doctor Lui, in particular. Ms Fenner stated:

“I had been prepared to provide a final warning. However, the Applicant’s letter, in particular, a lack of insight into the inappropriateness of her conduct and its consequences, her failure to take responsibility for her conduct and her attempts to justify disobeying Charles’ directions, caused me to have no trust or confidence in her.

I had no confidence that the Applicant would cease the conduct, which was serious and unwelcome; it caused Dr Lui significant distress and posed a serious risk to Dr Lui’s health and safety. This was unacceptable.

Given her attempts to justify her conduct, I also had no confidence that she would comply with reasonable directions from her manager.

This caused me to consider the termination of employment, rather than final warning, was the appropriate final disciplinary action.

In making that determination I also took into account the Applicant’s role. She had been employed by Victoria Police for less than 10 months. The Applicant was in a role that involved needing to work in a small unit, to be trustworthy and to do demonstrate sound judgement. VPS employees are required to comply with the Code and public service values, including the need to demonstrate accountability, integrity and respect for colleagues. I had no trust or confidence in the Applicant’s ability to do so after reading her response. 17”

[80] She then notified Ms Sookanathan by letter dated 2 May 2019 that she had decided to terminate her employment. The decision was based on her concerns about the serious nature of the conduct, her concern for the safety of other Victoria Police employees, and her lack of insight into her conduct and its consequences. She was not summarily dismissed and received four weeks’ pay in lieu of notice.

[81] She also indicated in cross-examination that she did not consider it to be unusual for a disciplinary outcome to be increased following a response from the employee involved. However, she acknowledged that if Ms Sookanathan had not responded to the letter then it was likely that she would simply have received the final warning, as proposed initially. She also acknowledged that a person receiving a letter indicating that, on a preliminary view, it had been decided to provide them with a final warning was not likely to consider that their employment was then going to be terminated if they provided an explanation in response.

Doctor Melissa Sullivan

[82] Doctor Sullivan is currently the Senior Police Medical Officer at Victoria Police. In March of this year Ms Sookanathan spoke to her about a file that was apparently missing and also indicated that she felt uncomfortable about issues between her and Doctor Lui and that she had been ignoring her. Doctor Sullivan found this to be strange as she was unaware that Doctor Lui and Ms Sookanathan were friends, based on her observations of their interactions. She subsequently advised that Ms Sookanathan had been suspended and that her employment was then terminated, but she had no involvement in any of those processes.

The Respondent’s Submissions

[83] Victoria Police submits at the outset that Ms Sookanathan was not a credible witness and made a number of statements that were not true. For example, when challenged about the content of the handwritten note she claimed there was missing a page, despite having included a copy of the same note in the materials attached to her witness statement. She had also attempted to deny that her reference in the chat log to “love” was not romantic love directed toward Doctor Lui, but this had been contradicted by her statements in the log. She had also lied about when she had given the handwritten note to Doctor Lui and claimed she gave it to her because Mr Hewitt had not passed on her apology to Doctor Lui. However, at the time she first admitted to giving Doctor Lui the letter she was not aware about whether the apology had been passed on or not.

[84] It is also submitted that there were a number of inconsistencies in her evidence. For example, she acknowledged at one point that the directions given to her by Mr Hewitt were straightforward and designed to ensure the safety of those in the workplace. However, she later claimed they were not clear and she was confused about what had been meant. She also denied that she had been told by Mr Hewitt that it was not appropriate for her to apologise to Doctor Lui, but then acknowledged in the note that she left for Doctor Lui that she was taking “a huge risk” in giving the note to her and that she had been asked not to discuss the matter with her.

[85] Victoria Police also notes that despite the serious allegations made by Ms Sookanathan about Inspector Henderson, which Ms Sookanathan claims were relevant to her employment being terminated, Inspector Henderson’s emphatic denial of these allegations was not challenged and she was not cross-examined at all in regard to her evidence.

[86] It submits that its witnesses in contrast were credible witnesses of truth who were prepared to make reasonable concessions, when necessary.

[87] Victoria Police also addressed the statutory considerations that the Commission is required to have regard to. It submits, firstly, that it had a valid reason to dismiss Ms Sookanathan because of her inappropriate behaviour in regard to Doctor Lui in the period between November last year and March of this year. That behaviour constituted misconduct and justified her employment being terminated. It relies, in particular, on the following circumstances in support of this submission.

[88] Ms Sookanathan singled out Doctor Lui and attempted to establish a special bond with her. This continued despite her becoming aware that these advances were unwelcome. There was nothing in Doctor Lui’s responses to this behaviour that encouraged the approaches and her responses were simply social politeness. It also rejects the suggestion that Ms Sookanathan was simply being a supportive and caring colleague and treated all of her colleagues at work in the same way. She also made clear by her own behaviour at different times that she was aware Doctor Lui was not responding to her advances and was instead trying to put some distance between them. This is evidenced by her complaints at different times about being ignored.

[89] This situation initially culminated in the discussion on 4 February when Doctor Lui told Ms Sookanathan she was feeling uncomfortable and overwhelmed by what was going on, and she was to stop sending the gifts and messages. However, this request was not heeded, leading to the meeting with Mr Hewitt and the directions given to Ms Sookanathan.

[90] The conduct was unwelcome and was not confined to an isolated case. It was in breach of the directions given to Ms Sookanathan and constituted a breach of Victoria Police’s Code of Conduct and the provisions in the Police Manual. It also had a significant impact and Doctor Lui’s evidence indicates that she suffered significant mental and emotional distress as a consequence.

[91] In summary, it is submitted that Victoria Police had a valid reason to dismiss Ms Sookanathan because:

•  In the period between November 2018 and March 2019 she engaged in inappropriate conduct that caused Doctor Lui to feel mental distress, anxiety and significant discomfort.

•  Despite being told by Doctor Lui on 4 February that the conduct was unwelcome and requesting that she cease Ms Sookanathan continued to persist with this conduct.

•  On 7 March she was given a lawful and reasonable direction by her Manager. Despite this request, and the previous request from Doctor Lui, the inappropriate conduct continued. It was known to be unwelcome and in breach of that the directions given to her.

•  Her response in claiming that her conduct was innocuous and merely collegiate was dishonest and a fundamental breach of the relationship of trust and confidence.

[92] In regard to Ms Sookanathan being notified of the reason for her dismissal Victoria Police refers to the decision in RMIT v Asher 18 and submits that similar circumstances exist in this matter. The note that she left for Doctor Lui makes clear that she realised she was in serious trouble and could be dismissed as a consequence of making contact with Doctor Lui in this way. She was then suspended from her employment which again highlighted the potential consequences of the behaviour she had engaged in. She then received the letter of 1 April and acknowledged in cross-examination that she was aware about what the letter was concerned with, and the issues associated with her failing to comply with the direction given to her by Mr Hewitt. The letter also made clear that any response provided by Ms Sookanathan would be taken into account before a final decision was confirmed. This was made clear when the letter stated “…Any response to the proposal will be taken into account as part of the consideration of the appropriate final discipline outcome in this matter…19”

[93] Victoria Police also rejects the suggestion that Ms Sookanathan’s response was in the nature of an apology and submits instead that it demonstrated that she continued to refuse to take responsibility for her actions and had instead again tried to defend them. It also made clear that she was not in any way contrite and lacked insight into the nature of her conduct and its impact. It also demonstrated her unwillingness to comply with a lawful direction given to her.

[94] Victoria Police also rejects the suggestion that having finally decided to terminate Ms Sookanathan’s employment it should have provided her with a further opportunity to respond to this proposed course of action. It submits instead that its letter of 1 April made clear that any response she provided would be taken into account, and at that point all possible outcomes were still being considered and a final decision was still to be confirmed.

[95] Victoria Police submits in the alternative that if the Commission finds that the dismissal was harsh, unjust or unreasonable then reinstatement is not an appropriate option by way of remedy as it no longer has confidence and trust in Ms Sookanathan, including her preparedness to comply with either the directions given to her or the Code of Conduct and the Victoria Police Manual.

Consideration

[96] The circumstances in which an employee’s dismissal can be considered to be “harsh, unjust or unreasonable” have been considered in a number of previous decisions. The decision in Byrne v Australian Airlines Ltd 20 is often cited in this context. The joint judgement of McHugh and Gummow JJ concluded:

“...It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 21

[97] The decision of the Full Bench of Fair Work Australia in L. Sayer v Melsteel Pty Ltd 22 also provides guidance about the Commission’s role in regard to each of the matters in s.387 that must be taken into account in determining whether an employee’s dismissal was “harsh unjust or unreasonable.” The Full Bench concluded:

“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 23

[98] I turn now to deal with each of the considerations in s.387 and those authorities that I consider relevant to the determination of this matter.

(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)

[99] Before coming to the particular circumstances involved in this matter it is noted again that previous decisions have had regard to what is required in order to conclude that there was “a valid reason for the dismissal related to the person’s capacity or conduct.” The judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd 24 is often referred to in this context. His Honour came to the following conclusions:

“The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. This is the rationale for the onus of proof provisions contained in s 170EDA.

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 well founded; a valid reason’’

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the 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…” 25

[100] In Parmalat Food Products Pty Ltd v Wililo 26 the Full Bench also concluded that:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 27

[101] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 28 (“Australian Postal Corporation”) also provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered:

“Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387 and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.” 29

[102] It is also clear that the reason must be valid when viewed objectively. It is not sufficient that the Employer believed it had a valid reason for termination. This was made clear in the Full Bench decision in Rode v Burwood Mitsubishi 30 when it stated:

“…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.” 31

[103] These authorities make clear that the existence of a “valid reason” is often the most important consideration of the matters in s.387 that the Commission must have regard to. It is also clear that a “valid reason” must be one that is “sound defensible and well founded” as opposed to one that is capricious, spiteful or prejudiced. It must also be valid in the context of both the employee’s capacity or conduct and the operational requirements of the business. The test must also be applied in a practical, common sense way to ensure the parties are treated fairly in circumstances where each has rights and privileges but duties and obligations as well. I have sought to adopt the approach of these authorities in coming to a decision in this matter.

[104] Victoria Police submits that it had a valid reason to dismiss Ms Sookanathan on grounds of misconduct, given her behaviour and her refusal to refrain from that behaviour, despite being directed to do so. Ms Sookanathan submits, in response, that she and Doctor Lui initially had a friendly relationship, however, Doctor Lui later attempted to put some distance between them. Ms Sookanathan also acknowledges that she acted in breach of a direction given to her when she left the note for Doctor Lui. However, a final warning was an appropriate response in all the circumstances and the termination of her employment was a disproportionate response.

[105] The relevant circumstances played out over a relatively short period of time. The evidence makes clear that sometime after July 2018, after Ms Sookanathan was first employed, she began to target or single out Doctor Lui for special attention. Ms Sookanathan claims that this was not the case and that she treated all of work colleagues in the same or a similar way. However, the evidence concerning the text messaging and gift giving clearly indicate otherwise. It also appears that Doctor Lui was going through some difficult times in the latter part of 2018 and initially appreciated some of the support Ms Sookanathan provided to her.

[106] However, the evidence also makes clear that in the early part of this year Doctor Lui was becoming increasingly anxious and uncomfortable about the attention being directed at her by Ms Sookanathan, and this culminated in the discussion between them on 4 February. Doctor Lui was relieved after that discussion because she believed it had been agreed that any future interactions would be confined to work matters. However, this hope was short lived. Ms Sookanathan’s behaviour towards her from that point appears to have oscillated between her attempts on the one hand to build and develop a relationship by sending messages, leaving gifts, or dropping by her office unexpectedly to, on the other hand, ignoring her for periods of time or chastising her when she felt her advances were not being reciprocated.

[107] This behaviour culminated in Doctor Lui deciding to take the matter up with management after she arrived at work on 5 March and found several gifts on her desk. This led to the meeting on 7 March between Ms Sookanathan and Mr Hewitt. Ms Sookanathan attended that meeting with a support person so presumably by this stage was now aware that she was involved in something that had potential ramifications for her. She also enquired at the outset of that meeting about whether a complaint had been made about her, and this again indicates that she was aware that her behaviour was a potential cause of concern.

[108] She was given a clear direction as an outcome from that meeting that she was to confine any further interactions with Doctor Lui to necessary work matters. She was also told that the discussions were confidential and were not to be raised with anyone. She also asked if she could apologise personally to Doctor Lui, which presumably meant that she was aware that her past behaviour had been unwelcome and troubling. However, she was told that she was not to approach Doctor Lui and Mr Hewitt would instead pass on her apology at an appropriate time. The nature of their discussions, and what had been agreed, was then confirmed in an email from Mr Hewitt to Ms Sookanathan.

[109] Mr Hewitt provided Doctor Lui with a report on the outcome of those discussions on 13 March 2019, after she had returned from a period of annual leave. He told her that Ms Sookanathan wanted him to pass on her apologies for any distress or upset caused by her behaviour, which he did. Ms Sookanathan then sent him an email on 18 March asking whether he had passed on her apology and he responded by confirming that he had. She then sent a further email asking how Doctor Lui had responded, but he did not reply on this occasion.

[110] Later that afternoon he was again contacted by Doctor Lui who told him about the note left on her desk, together with the attached emails exchanged between him and Ms Sookanathan. He was understandably concerned about this for a number of reasons.

•  It appeared that Ms Sookanathan had disregarded the direction given to her on 7 March.

•  She had revealed the nature of a confidential discussion, despite being told not to.

•  It appeared that she had attempted to exert control over Doctor Lui by urging her to not reveal the content of the note.

•  She had left the note despite being aware, by her own acknowledgement, that what she was doing was in breach of the direction given to her, and could lead to her employment being terminated.

[111] His concerns were amplified when a subsequent check of Ms Sookanathan’s emails revealed her consultations with a so-called spiritual advisor, and the apparent focus in those consultations upon Doctor Lui.

[112] He again met with Ms Sookanathan on 19 March 2019 to discuss his concerns. She appears to have attempted to justify her behaviour, as she has done on other occasions, by misrepresenting what actually occurred. She sought to justify leaving the note for Doctor Lui because she was unsure about whether Mr Hewitt had passed on her apology. However, Mr Hewitt had sent her an email earlier on the same day confirming that he had passed on her apology to Doctor Lui.

[113] She was then suspended from her employment on 22 March while the matter was referred to the Workplace Relations team to make an assessment about what should now be done. She was then sent the letter on 1 April advising that a final warning was proposed as an outcome from the investigation and inviting her to provide a response. She did respond on 15 April and it was the content of that letter that led to the final decision that the appropriate response in all the circumstances was for her employment to be terminated.

[114] It is appropriate to have regard to this correspondence. The letter from Ms Fenner, dated 1 April, set out in some detail the particulars of the behaviour it was alleged Ms Sookanathan had been involved in during the period between October 2018 and March 2019. It also detailed what had been agreed in the discussions with Mr Hewitt in terms of what was now to occur. It then detailed Ms Sookanathan’s further breach of those directions and how her behaviour was deemed to constitute misconduct and a breach of the relevant Code of Conduct and the Police Manual. It then continued to state:

“Proposed discipline outcome

In proposing a discipline outcome in accordance with clause 21.9 of the Agreement, I have considered all of the available evidence and have also given consideration to your admission to the alleged conduct.

In light of the above, I am proposing a discipline outcome of a Final Warning in accordance with clause 21.12 (b) (iv) of the Agreement. Victoria Police considers the proposed discipline outcome to be an appropriate and proportionate measure in this regard.

Your response

Should you wish to provide a response to the proposed discipline outcome, please do so within ten working days from the date you receive this letter. Any response to the proposal will be taken into account as part of the consideration of the appropriate final decision outcome in this matter. …

If you do not provide a response within ten working days, a decision may be made without the benefit of your response. Following consideration of your response, you will be advised of the final decision. 32”

[115] Ms Sookanathan then provided a detailed four-page response. It is appropriate to refer to some extracts from the letter. In summary, it purported to provide a defence to her behaviour and included the suggestion that at no stage was she aware, or had she been told by Doctor Lui that she was to “back off,” as Ms Sookanathan described it. The following extracts provide some insight into the content of her letter.

“I was sent an email by the acting operations manager on 7th March 2019 19 requesting a meeting with me. In his meeting Mr Hewitt requested that I cease all texting and gift giving with Doctor Themis Lui without any explanation. His only response to me was that “the dynamics have changed” this caused a lot of confusion and anxiety due to the lack of information provided. I was not given any explanation as to my wrong doing and he made it appear that I had upset Doctor Themis Lui.

…

At no point did Doctor Lui ask me to leave her alone or to stop texting, as she would reply back, or that she would not accept the gift.

…

Both the gifts and the text were given and accepted on both sides and at no point was I asked not to do so by Dr Lui so I can’t seem to understand how this is bullying and harassment.

When I was called in by Mr Hewitt, I was very surprised and shocked when he told me I had to cease texting and gifting Dr Lui. I asked what was the cause of this to which there was no response. I went home that night feeling as though I had done something extremely wrong but I didn’t know as to what that was.

…

My apology letter was also to enable a professional working relationship without any animosity in the work environment.

I was asked to stop the texting & gift giving and I feel I had not transgressed and that I honoured the agreement.

…

I want to stipulate again that at no time did Dr Lui asked me not text or to back off as this would have been something that I would have done with no questions asked. 33

[116] The letter then concludes by setting out what are described as a summary of the “…key events that occurred in the office…”. Ms Sookanathan lists two of these as being:

“Mr Hewitt’s inability to provide me with a valid reason as to why I needed to stop texting and gifting Doctor Lui”

Mr Hewitt’s inability to provide me with a timeous response regarding the apology to Dr Lui and her response to working professionally. 34”

[117] It is not difficult to see why this response caused Ms Fenner to again consider the nature of the disciplinary outcome to be imposed on Ms Sookanathan. A number of things can be said about the content of the letter. It attempts to “rewrite history” and conveniently ignores any reference to the discussion initiated by Doctor Lui on 4 February. It again repeats the claim that Ms Sookanathan was unclear and uncertain about the outcome of her discussions with Mr Hewitt on 7 March, despite this being contradicted by her own acknowledgement in the note she left with Doctor Lui. She also attempts to blame others, including Doctor Lui, for what occurred. Finally, and perhaps most importantly, the letter contains little or no acknowledgement of any wrongdoing on her part. In summary, the content of the letter provided further examples of the concerns about her behaviour, and what Victoria Police was anxious to avoid occurring again.

[118] These proceedings obviously took place after Ms Sookanathan was dismissed from her employment but there were a number of matters that emerged during the course of the hearings that lend weight to Victoria Police’s concerns about having trust and confidence in Ms Sookanathan acting appropriately in the future. They concern, in particular, her preparedness to misrepresent what actually occurred. For example, Ms Sookanathan again claimed at one point in the proceedings that she was unclear about the direction given to her by Mr Hewitt on 7 March and was confused about what he meant. However, the content of the note she left for Doctor Lui again makes clear that she was not only aware of the direction she had been given but was also well aware of the potential consequences of not acting in accordance with that direction. Mr Hewitt had also provided confirmation of what had been discussed in the meeting on 7 March in his subsequent email which has been set out at an earlier point in this decision.

[119] Secondly, when confronted with the content of her note she claimed it did not accurately reflect all of what she had written because there was a page missing. This was an extraordinary claim and Ms Sookanathan was unable to provide any explanation about how or why a page from the note was missing, or what it purported to contain. The claim is also made more remarkable by the fact that she also attached a copy of the same note to her witness statement, with no reference to it not being complete or having a page missing.

[120] Finally, she was prepared to make some damaging claims in regard to a long-standing member of Victoria Police, Inspector Henderson, despite there being no other evidence in support of those claims. In addition, this was not pursued in cross-examination despite Inspector Henderson’s emphatic denial of the claims. It is not entirely clear why Ms Sookanathan sought to target and discredit Inspector Henderson in this way, other than that she appears to have been seen as something of a rival, and someone who had the “inside running,” so to speak, in terms of her friendship with Doctor Lui.

[121] In considering whether Victoria Police had a valid reason to dismiss Ms Sookanathan it is also significant that the evidence makes clear that her behaviour had a real impact on Doctor Lui. She became increasingly anxious, uncomfortable and unsure as a consequence of both Ms Sookanathan’s attention and, at other times, lack of attention. After she received a handwritten note these feelings developed to a point where she started to feel nauseous and had physical feelings of anxiety. She also indicated in her evidence that she stayed at a friend’s home for a period of time because her concerns had developed to the point where she was worried about the possibility Ms Sookanathan might attempt to contact or confront her at her home.

[122] It can be suggested that some of these responses were an overreaction on the part of Doctor Lui. It is also acknowledged that in the latter part 2018 she was involved in some difficult issues associated with her work which were impacting on her. However, the evidence also makes clear that she was particularly affected by the concerted behaviour that Ms Sookanathan directed at her over an extended period of time, and this lends weight to the submissions about the serious nature of that behaviour.

[123] I have had regard to all of the evidence I consider relevant in determining whether Victoria Police had a valid reason to dismiss Ms Sookanathan. I am satisfied, in conclusion, that she embarked on a pattern of behaviour that was designed to try and create a special relationship with Doctor Lui. It involved, on the one hand, her being singled out and treated differently from other staff members, while at other times it involved studied indifference when her overtures were not being reciprocated in the way Ms Sookanathan wanted. She persisted in this behaviour despite being asked by Doctor Lui to stop. She was then directed by management to stop, however, she refused to do so, despite acknowledging that what she was doing was in breach of that direction and might lead to her employment being terminated. As it turned out this was an accurate prediction. Her behaviour also had a significant impact upon Doctor Lui to the extent that she had concerns about her safety and welfare.

[124] I am accordingly satisfied that in all the circumstances Victoria Police had a valid reason to dismiss Ms Sookanathan in the sense that the reason was sound, defensible and well founded.

(b) whether the person was notified of that reason.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[125] I am satisfied that it is appropriate to deal with the separate considerations contained in s.387(b) and (c) together. There is clearly an issue in this matter about whether Ms Sookanathan was given an appropriate opportunity to respond to the reasons for her dismissal. The relevant circumstances have been set out in detail already and are not restated now. In summary, Ms Sookanathan received the letter on 1 April from Ms Fenner informing her that she was “proposing a discipline outcome of a Final Warning.” She responded on 15 April. This response led Ms Fenner to conclude that she was not prepared to acknowledge that her behaviour had been inappropriate, and that she was instead attempting to place the responsibility for what occurred on others, including Doctor Lui.

[126] Ms Fenner accordingly concluded that the termination of her employment was now the appropriate response, given what had occurred previously and Ms Sookanathan’s continuing denials and failure to take responsibility for her actions. In coming to this conclusion, she also took into account the fact that she had only been employed for less than 12 months and was working in a small unit where sound judgement and trust in the other work colleagues were important requirements.

[127] Ms Sookanathan submits in response that when she received the 1 April letter it was clear, on any reasonable view, that she was to receive a final warning but had the opportunity to provide anything in response in mitigation of this outcome. Put another way there was nothing to suggest that any response she might provide would result in a harsher disciplinary outcome.

[128] The relevant extracts from the letter have been set out already at an earlier point in this decision and are not restated now. In a strict sense the letter does make clear that the “final warning” was only a “proposed disciplinary outcome,” and any response to this proposed outcome “will be taken into account as part of the consideration of the appropriate final decision outcome in this matter.” Victoria Police submits that it should have been evident that it had only decided on a proposed outcome at that time, and the final outcome would depend on its consideration of any response provided by Ms Sookanathan. It should also have been understood that this involved various possible options, including a lesser outcome, the same outcome, or a more significant outcome, including the possibility of her employment being terminated. As indicated, I accept that this conclusion can be drawn from a strict reading of the relevant words.

[129] However, I also have some sympathy for the position put on behalf of Ms Sookanathan, and that a more common understanding of the relevant words was that she was going to be given a “Final Warning,” but this might be reduced to a lesser outcome after consideration of any response she provided. There is certainly no reference in the letter to termination of her employment being a possible outcome. I am also prepared to accept that it is possible Ms Sookanathan might have felt emboldened in the knowledge that she was not going to be dismissed, and therefore “let fly” in her subsequent response when she might have been more circumspect if she had been aware that the possibility of her employment being terminated continued to be a potential option.

[130] Ms Sookanathan continues to submit that once it had been decided that her employment was going to be terminated, she should have been given a further opportunity to respond, and because this did not occur she was not been provided with procedural fairness. As indicated already I do have some sympathy for these submissions and suggest in the future that Victoria Police should be more specific in any correspondence provided in similar circumstances about all of the potential likely outcomes.

[131] However, while it is acknowledged that Ms Sookanathan may well have felt emboldened when providing her response by the misapprehension that her employment was not going to be terminated, it is also possible that because she understood that to be the position that she then provided a more complete and open insight into her attitude and thinking in her letter in response of 15 April, which simply acted to confirm the concerns that Victoria Police already had about her conduct.

(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

[132] There is no suggestion of any unreasonable refusal by Victoria Police to allow Ms Sookanathan to have a support person present in any discussions, and she participated in various discussions with a support person present

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[133] The dismissal did not relate to unsatisfactory performance.

(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

(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

[134] It is again appropriate to deal with the above two matters together. Victoria Police is obviously a very large organisation with dedicated HR specialists and expertise. It can be expected to be aware of the appropriate steps to be followed in dealing with the termination of an employee’s employment.

(h) any other matters that the FWC considers relevant

[135] Ms Sookanathan has indicated that the termination of her employment has had a significant financial and emotional impact upon her. This situation is entirely understandable, but at the same time these responses are regrettably often encountered in circumstances associated with the termination of a person’s employment. I am not aware of any particular matters that need to be taken into account in the context of this consideration.

Conclusion

[136] As indicated, I am satisfied in conclusion that Victoria Police had a “valid reason” to dismiss Ms Sookanathan. I have also acknowledged that there were some shortcomings in the process followed in terminating her employment, and that Victoria Police should have been more direct in its letter of 1 April in making clear that the termination of her employment remained a distinct possibility. However, I have also referred to previous authorities who have emphasised that the existence of a “valid reason” will often be the most important of the various considerations in s.387 that the Commission is required to take into account. I am not satisfied, in conclusion, that any procedural deficiencies can be said to mean that Ms Sookanathan was unfairly dismissed as contemplated by the Act.

[137] I have had regard to all of the submissions and evidence provided in this matter, and the various considerations in s.387 that the Commission is required to take into account. I am not satisfied, in conclusion, that Ms Sookanathan can be said to have been unfairly dismissed in the sense that her dismissal was harsh, unjust or unreasonable. I have had particular regard to the conclusions reached in regard to “valid reason” in coming to this decision. It follows from this decision that her application must be dismissed. An Order to this effect is issued in conjunction with this decision.

COMMISSIONER

Appearances:

A Aleksov of Counsel for the Applicant.

D Siemensma of Counsel for the Respondent.

Hearing details:

2019.

Melbourne:

August 26, 27, September 9.

Printed by authority of the Commonwealth Government Printer

<PR715206>

 1   Fair Work Act 2009 (Cth) s.387.

 2   Exhibit A1 – attachment SS3.

 3   Ibid at paragraph 37.

 4   Transcript PN305.

 5   Ibid at [824].

 6   Exhibit VP2 at paragraph 76.

 7   Ibid at attachment TL1 page 1.

 8   Ibid at paragraph 87.

 9   Ibid at paragraph 108.

 10   Ibid at paragraph 122.

 11   Ibid at attachment TL-1 at page 15

 12   Ibid paragraphs 162 – 163.

 13   Ibid at attachment TL-6.

 14   Exhibit VP4 at attachment CH-4.

 15   Ibid at attachment CH-5.

 16   [2016] FWCA 2934.

 17   Exhibit VP7 at paragraphs 46 – 50.

 18   (2010) 194 IR 1.

 19   Exhibit VP7 at attachment CF-2.

 20   (1995) 185 CLR 410.

 21   Ibid, 465.

 22   [2011] FWAFB 7498.

 23   Ibid at [20].

 24   (1995) 62 IR 371.

 25   Ibid, 373.

 26   [2011] FWAFB 1166.

 27   Ibid at [24].

 28   [2013] FWCFB 6191.

 29   Ibid at [58].

 30   Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 2019 1999).

 31   Ibid at [19].

 32   Exhibit VP7 at attachment CF-2.

 33   Ibid at attachment CF-7.

 34   Ibid.