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T4333 - 12 November

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Miss Harriet Gunn
(T.4333 of 1993)

and

Fahan School

 

DEPUTY PRESIDENT A. ROBINSON

HOBART, 12 November 1993

Industrial dispute - alleged harassment and verbal abuse by superiors and senior teaching staff - alleged threats as to termination of employment - alleged failure by superiors to establish guidelines and work duties

REASONS FOR DECISION

This matter concerns the reference of an application made by Miss Harriet Gunn, who was at the relevant time a teacher employed by Fahan School, to the President for a hearing before a Commissioner in respect of an industrial dispute that had arisen, or the applicant considered likely to arise, pursuant to Section 29(1) of the Industrial Relations Act 1984.

The applicant alleged:

1.  Harassment and verbal abuse by superiors and senior teaching staff.

2.  Threats as to termination.

3.  Failure by superiors to establish guidelines and work duties.

Fahan School, an all girls private school situated at the Hobart suburb of Sandy Bay, denied the allegations made against it by Miss Gunn and it was left to the Commission to seek to resolve the industrial dispute in accordance with its charter under the Act.

From the commencement of proceedings on 26 April 1993 I encouraged the parties to participate in a series of conciliation conferences and other processes which were designed to facilitate the reaching of an amicable settlement to the dispute. It is a matter of regret and some disappointment that the respective parties could not have sufficiently responded to the encouragement given to them to reach some sensible resolution to their dispute and to have thereby avoided the traumas which the parties themselves and some witnesses were put through by virtue of the alternative processes of prosecuting a case being put to arbitration.

The futility of the Commission pursuing the path of conciliation as it did and also as a measure of the depth of ill feeling which existed between the two parties at the relevant time and subsequently, was probably best demonstrated by two significant factors.

In the first instance Miss Gunn and the principal of Fahan School (Mrs Alexander) were involved in litigation in the Tasmanian Supreme Court following a certain incident or incidents at the school late last year. And secondly, Fahan School summarily dismissed Miss Gunn on 20 May 1993 whilst the original dispute was still being heard before this Commission.

The dismissal of Miss Gunn clearly escalated the dispute to a new dimension and gave rise to the lodgment of a further application1 by her for alleged wrongful dismissal.

I advised the parties that based upon an earlier ruling given by me in another matter2 I considered that the Act did not permit the making of an application for a hearing pursuant to Section 29(1) by a person who, at the time of making such an application, was not an employee. And as a consequence matter T.4401 of 1993 was adjourned sine die.

However, I advised the parties that I regarded matter T.4333 of 1993 as being sufficiently broad to allow the dismissal of Miss Gunn to be dealt with as part of the dispute already before the Commission, particularly as the subject matter included a threatened dismissal which subsequently materialised. Neither party took issue with this ruling.

The proceedings, which followed a number of unavoidable adjournments, involved the presentation of sworn evidence, written statements, exhibits, cross-examination and formal submissions.

Miss Gunn gave evidence and said that at the request of the principal of Fahan School, Mrs Alexander, a meeting took place on 18 December 1992 in the principal's office between herself, the principal and the school business manager, Mr Shadbolt.

She said that as a consequence of that meeting and a subsequent letter by Mrs Alexander to her, proceedings were instituted in the Supreme Court of Tasmania against Mrs Alexander.

Miss Gunn alleged that after 18 December 1992 relations between herself and Mrs Alexander deteriorated, as had relations with the primary school headmistress, Mrs Jill Bennett, and other senior teachers.

It was said that because of these circumstances Miss Gunn's health was deteriorating due to stress and worry.

Miss Gunn detailed to the Commission a series of instances in which it was alleged Mrs Bennett was either unjustifiably argumentative, uncooperative or failed to give advice or assistance. In this regard particular mention was made of alleged difficulties which were experienced by Miss Gunn in trying to make adequate arrangements in connection with a school camp in March 1993 and the alleged consequential effects which followed.

Other alleged instances referred to by Miss Gunn were suggestive of a generally hostile and deliberately disruptive attitude being taken by Mrs Bennett in particular on a number of occasions.

It was further alleged by Miss Gunn in evidence that Mrs Alexander and some other senior staff failed to speak to her or acknowledge her presence when in a group, thus causing her discomfort.

Apart from further elaborating upon the difficulties put in her way Miss Gunn said she was keen to resume her career at Fahan School as she related well to her pupils and their parents and was prepared to work in a professional manner with her colleagues.

Further evidence related to the fact that Miss Gunn was absent on sick leave (supported by medical certificates) on various dates between 26 November and 3 December 1992. She said that whilst she attended school on 4, 7 and 8 December 1992 she was not completely recovered from her illness.

Miss Gunn testified that on 8 December 1992 she attended Nickleby's Wine Bar at lunchtime with two other teachers and left at 3.00pm. She said it was not required that she return to work as it was the last days of the school year and no children were at the school. She said that Mrs Bennett was among those other teachers who also left the school at the same time on that day.

She also said that on the previous day (7 December) all of the senior members of the junior staff had gone out for an extended lunch and on Thursday, 10 December 1992, the grade 1 and 2 teachers did not attend school all day.

It was said that there was nothing untoward about her absence with two others from the school grounds on 8 December.

She said that teachers frequently absent themselves for several hours without formal notice being required and that it was common practice when they were not required for teaching or related duties and she understood that such practices were widespread in public and private schools and the employer did not object.

Miss Gunn also said she believed that on 8 December last one of her two teacher companions had notified the office secretary that all three would be absent on that afternoon.

She denied that there was anything untoward regarding her conduct at the wine bar on that day, and whilst she was sick later at her home it could not be ascribed to intoxication.

Later she had been accused by Mrs Alexander of being at a wine bar whilst on sick leave, which was not the case.

Miss Gunn also denied that she had deliberately deceived Mrs Alexander concerning the fact that she was on 12 months leave of absence from the Department of Education and the Arts during her first year of probationary employment at Fahan School or that she had lied over the date of her subsequent resignation from the department.

Miss Gunn presented as a young but enthusiastically dedicated teacher who gave her evidence in a straightforward manner. She responded to cross-examination without difficulty and gave clear answers at all times and did not appear at all evasive.

It is my assessment that Miss Gunn's assertions of overly harsh treatment during the latter part of her employment at Fahan were beliefs genuinely held by her.

Fahan School expressed a repeated desire to be able to present Mrs Alexander as a witness and adjournments were granted to assist the employer in this regard. However, in the result, health reasons prevented Mrs Alexander from appearing to give evidence and I eventually permitted the introduction of a sworn statement by Mrs Alexander against objections raised by counsel for Miss Gunn.

Mrs Alexander's declaration was lengthy and detailed and contained much hearsay material and some matters which had never been put to Miss Gunn prior to her dismissal on 20 May 1993. Accordingly both the admissibility and relevance of such matters was not always readily apparent to me. As an example Mrs Alexander's declaration said that:

    "I was told that during term 3 Miss Gunn had visited Oatlands School where she had been teaching in 1991, and that the Principal, Mr Larry Scott was expecting her to return in 1993."

and later:

    "I understood that in coming to Fahan, Miss Gunn had resigned from the Department of Education (sic)."

Not only was such material hearsay, but the source of alleged information, or basis for understandings, was not revealed or further explained.

Mrs Alexander also said that the failure of Miss Gunn to have resigned from the department before she accepted a position with Fahan:

    "... would have made no difference ... if it had been made clear that she was on unpaid leave of absence ... (and) several other staff members have been in a similar position."

However, Mrs Alexander went on to say that:

    "... it was both discourteous and unprofessional not to have done so."

and later:

    "It is also contrary to the Fahan Conditions of Employment."

The "Conditions of Employment for Teaching Staff" (Exhibit G5) which was being referred to provides that:

    "It is a condition of employment that no other employment is undertaken without prior approval of the Principal ..."

Whilst I accept that it is imminently reasonable for the principal to require that she be made aware of a teacher's future availability for staff planning purposes the "conditions of employment" referred to by Mrs Alexander has, in my view, been quoted out of context because it does not go to the question of disclosure of being on leave, but only the requirement that no other employment will be undertaken without prior approval.

It seems to me that it could be argued that where employment is for 12 months on probation, both parties should have an equal right to keep their future options open until the end of that period. And once there is a mutual acceptance of a further period of employment it follows that other options are then closed off.

Mrs Alexander's declaration went on to say that, from her own observations and from the information available (in December 1992) she was not at all dissatisfied with Miss Gunn's classroom performance. However, alleged information from subsequently unnamed sources caused her to change her mind.

Mrs Alexander also said in her statement that Miss Gunn had been on sick leave for a number of days in December 1992 and she erroneously assumed that Miss Gunn was drinking at Nickleby's Wine Bar on one of those days (i.e. whilst on sick leave).

On 18 December 1992 Mrs Alexander interviewed Miss Gunn concerning several matters.

Miss Gunn was firstly asked about her employment status with the Education Department [sic] and said she was told by Miss Gunn in reply that she was on unpaid leave of absence and did not know that she should have told Fahan School of this fact prior to taking up her new appointment. Miss Gunn was told by Mrs Alexander that her action in this regard was unprofessional and had created an awkward situation.

In her explanation Miss Gunn said she had wanted to guard against the possibility of the position at Fahan School not being confirmed at the end of the year.

According to Mrs Alexander, Miss Gunn said she had resigned from the Education Department [sic] a fortnight previously.

The statement also said she told Miss Gunn that the principal of Oatlands School was expecting her at that school in 1993, but she accepted her word that she wished to be at Fahan School in 1993.

When Mrs Alexander raised the Nickleby's incident Miss Gunn denied that she had ever been at Nickleby's whilst on sick leave.

The statement made reference to matters concerning the commencement of "Due Process" which is provided for in the Independent Schools (Teachers) Tasmania Award.

Mrs Alexander said she wrote to Miss Gunn summarising the discussion held on 18 December 1992.

And she said that in January 1993 Miss Gunn notified her that she had instituted proceedings against her for defamation of character.

Among other things the statement of Mrs Alexander said Miss Gunn had effectively prevented the school from continuing to work with her in an advisory or counselling role, as staff were wary of speaking to her.

Mrs Alexander denied in her statement that the school failed to establish guidelines and work duties but said that Miss Gunn did not take advantage of the resources available to her.

The statement confirmed that Miss Gunn was dismissed in May 1993 and said that by then the school had evidence that Miss Gunn had resigned from the Education Department [sic] by letter dated 18 December 1992, and had allegedly lied to Mrs Alexander about her presence at Nickleby's during the final week of school.

The statutory declaration of Mrs Alexander contained considerable hearsay and general commentary upon a wide range of issues. Much of this material was not admissable.

As earlier indicated the introduction of this statement by Mrs Alexander was allowed because of her unavailability through ill health. Whilst the applicant may have been disadvantaged by the use of this document which obviously could not be cross-examined the content was tested to the maximum extent possible through the use of extensive questioning of the presenting advocate by the Commission as presently constituted.

There was an attempt to introduce as evidence material which had never been put to Miss Gunn prior to her dismissal. Not only was the propriety of this action questionable, but also was both the source and nature of much of the material.

This can be judged from examples contained in an attachment which forms part of Mrs Alexander's sworn statement. It refers to the school being concerned that:

    "... a great deal of discussion by parents in the car park brings into question the overall competence of Miss Gunn".

Much was also made of allegations of Miss Gunn:

    1.  Permitting familiarity with students, e.g. student plaiting her hair in class.

    2.  Drinking coke out of a wine glass during class.

    3.  Failed to read or understand the award.

    4.  Breached her contract of service by:

      (a)  instituting defamation proceedings without first attempting to comply with the dispute-settling procedures contained in the award (Clause 13);

      (b)  referring matters in dispute to the Registrar of the Tasmanian Industrial Commission without first attempting to use part of Clause 13 of the award.

Such material, I believe, speaks for itself but among other things demonstrates a lack of understanding of the separate roles of civil courts and the Tasmanian Industrial Commission.

My evaluation of the material contained in Mrs Alexander's declaration takes into consideration the fact that the author has been unwell for some considerable time and elaboration of statements made by the presenter was a difficult if not impossible task.

Nevertheless parts of the statement of Mrs Alexander have not only the appearance of being highly subjective but were open to the interpretation of being over-reactive.

Whilst the taking of civil action by a teacher against her school principal would understandably create tension between the two, the principal's reaction, through her statement, demonstrates the emergence of a deep resentfulness and hostility which may have even coloured her decision to summarily dismiss Miss Gunn, which was then endorsed by the Board of the Fahan School.

Mrs Jill Bennett, who is head of the junior school at Fahan, also gave sworn testimony.

She gave details of planning arrangements for the 1993 camp and said Miss Gunn was asked to arrange day activities for the camp.

Mrs Bennett said she was responsible for ordering buses and needed to minimise costs and keep within the budget.

She said she had twice asked Miss Gunn if she needed the services of a bus during the previous week and was told that it would not be required.

Details of other arrangements such as the number of children attending and the role of parents during the camp were also discussed with Miss Gunn.

Mrs Bennett said that on 8 March Miss Gunn requested a bus for the year 6 bush walk, but was told arrangements had already been finalised, including the use of a Geeveston bus.

During discussion with Miss Gunn Mrs Bennett became upset. She denied that she yelled or screamed.

According to Mrs Bennett other transport arrangements were made for various reasons.

She said Miss Gunn's mother, Mrs Margaret Gunn, as a parent of two pupils, attended the camp overnight without her prior approval.

She made reference to administrative matters associated with the camp, such as collection of receipts and payment to the school by Miss Gunn.

Mrs Bennett also said she had contact with one of Miss Gunn's sisters on 15 March 1993, when the child came to her room to collect money for a Red Cross competition. Mrs Bennett said she was confused at the time because the child had difficulty explaining what she wanted.

Mrs Bennett said she often has to enter classrooms but never disrupts a teacher during lessons. Nevertheless she was hesitant about entering Miss Gunn's room, particularly in term 1, 1993, as she felt she was intruding.

It was said that Miss Gunn was a very able teacher and many of her students were keen to seek her approval. However, during term 3 of 1992, Mrs Bennett found Miss Gunn to be increasingly distanced and unresponsive.

Mrs Bennett told the Commission that following the extension of Miss Gunn's probationary period to June 1993 she endeavoured to show her support in more positive ways. She said she and the principal believed that Miss Gunn had the potential to be a very good teacher.

In her further testimony Mrs Bennett said that during term 1, 1993, she felt very apprehensive in her relationship with Miss Gunn because she had instituted proceedings in the Supreme Court against the principal, Mrs Alexander.

Mrs Bennett said she found the situation extremely stressful but made every effort to be professional in the interactions with Miss Gunn.

On 5 March, Mrs Bennett needed to enter year 5 drama class. There was no intention to disrupt the class and she apologised for the intrusion.

On 2 April, Mrs Bennett entered year 6 classroom to advise of the late cancellation of the year 6 computer lesson. She said the class "moaned" in displeasure and Miss Gunn also showed her displeasure by ignoring Mrs Bennett's presence and grimacing.

Mrs Bennett then spoke to Miss Gunn outside the classroom concerning the incident. Miss Gunn denied that it had occurred as described.

Mrs Bennett said she was not hysterical at the time.

Further details of interactions between the two were detailed to the Commission.

The evidence given by Mrs Bennett was that on 8 December 1992 she left the school to go to lunch but returned subsequently. She said she then left school at 2.45pm after checking with the principal's secretary, Mrs Beswick.

Mrs Bennett said the early departure was not her usual practice and Mrs Alexander was aware of the circumstances.

Finally, Mrs Bennett said it is not commom practice for teachers to leave the school on pupil-free days without prior approval. She also said that on 8 December Miss Moerkerk asked permission to leave school to buy gifts but Miss Gunn did not seek approval to be absent on that day.

Mrs Bennett presented as a dedicated and professional person who was very supportive of the principal and the school to which she belongs. Her testimony was fluent and she responded to questions without hesitation.

Mr Ian Shadbolt, who is business manager at Fahan School, was also called as a witness. He was present on 18 December 1992 when Miss Gunn attended the principal's office.

He said Mrs Alexander told Miss Gunn at that time that there were two matters of serious concern to the school which needed to be discussed. The first concern was why Miss Gunn was on the staffing lists for two schools for 1993.

He said Miss Gunn replied by saying she did not feel that it had anything to do with Fahan and she was keeping her options open. Then she said that she had resigned from the department [sic] a couple of weeks earlier and this should have been known.

The second matter related to an incident at Nickleby's.

Mr Shadbolt said Mrs Alexander asked Miss Gunn if she had been at Nickleby's whilst on sick leave. He said Miss Gunn denied being there.

It was further submitted that in response to certain allegations concerning this incident Miss Gunn advised Mrs Alexander that the information alleged was untrue and that she had not been at Nickleby's acting in the manner alleged whilst on sick leave.

Mr Shadbolt also said Mrs Alexander advised Miss Gunn that "due process" was to commence in relation to her actions together with certain other allegedly unsatisfactory reports.

He described Miss Gunn as being controlled throughout this interview, however extremely defiant.

Other references were made by Mr Shadbolt to the award and other conditions of employment matters.

In my view Mr Shadbolt presented his evidence in a reliable manner so far as relevant facts were concerned.

Mr Peter Lelong, a year 5 teacher at Fahan School, was also called as a witness.

Mr Lelong was not a witness to any relevant event but presented an effusive and glowing eulogy of the professionalism and personal qualities of both Mrs Alexander and Mrs Bennett and Fahan School as a whole.

Another witness called by the employer, Miss Philippa Moerkerk, a year 4 teacher at Fahan School, testified that at 12 noon on 8 December 1992 she decided with another to spend the afternoon buying presents for the end of year lunch. She said this was part of her duties and Miss Gunn offered her assistance.

All three decided to have a bit of lunch first.

Before leaving school at approximately 12.30 Miss Moerkerk informed Mrs Bennett of her intention to go shopping, but said she was unaware as to whether Miss Gunn had informed the principal that she was going too.

She said all three then lunched at Nickleby's from approximately 12.30 to 3.30 and consumed some wine. Later, at about 3.30pm, they moved to the Mayfair Tavern and consumed some more wine which she said affected them. Miss Moerkerk then accompanied Miss Gunn home and stayed awhile.

Miss Moerkerk also testified that she was with Mrs Bennett and Miss Gunn on 8 March 1993 when Miss Gunn informed Mrs Bennett that she required a bus for the year 6 bushwalk on 11 March 1993.

She said that Mrs Bennett became agitated when explaining that the budget had already been finalised.

Miss Moerkerk said that although Mrs Bennett was agitated she did not yell or scream.

Afterwards Miss Gunn was upset by the incident and said that Mrs Bennett was treating her differently.

Miss Moerkerk said she offered to speak to Mrs Bennett so both parties could "talk things out", but Miss Gunn declined the offer.

The testimony also included a statement that whilst Mrs Bennett may show a concerned and worried expression, this was an outward showing of her concerns and not a look of dissatisfaction with those with whom she was interacting.

On 21 May 1993, the day after Miss Gunn was dismissed, Miss Moerkerk was asked to attend a meeting with Mrs Alexander and Mrs Bennett. She testified that the purpose of the meeting was a formal reprimand concerning her extended lunch on 8 December 1992, and Miss Moerkerk was told that it would be noted on her file.

Miss Moerkerk gave the very distinct impression that she was most uncomfortable about giving evidence against one of her former workmates whom she had known for a period of 10 years.

She contradicted herself on a number of occasions, suffered lapses of memory in relation to some aspects of her testimony and was evasive in her answers to questions on more than one occasion.

Even allowing for some understandable nervousness in the prevailing circumstances I believe it would be dangerous to give full persuasive weight to this testimony, especially where subjective opinion was offered concerning certain facets of the Nickleby's incident and her impressions and interpretation of events which followed later on the same day.

The Tasmanian Registered Teachers' Association (TRTA) was granted intervention and its President, Mr McFarlane, made a sworn statement concerning the intended use of Clause 14 of the award - Due Process. He said this clause needed to be read in conjunction with Clause 11 - Performance Appraisal and Clause 13 - Dispute Settling Procedure.

Mr McFarlane said that it was the TRTA's view that the procedures for settling disputes as set out in the award have proved to be effective and regretted they were not given the chance to operate in the present matter.

Decision

The application by Miss Gunn can conveniently be categorised as falling into two parts.

In the first instance it was alleged that in the day to day contact she had with superiors and senior teaching staff at school they were outwardly hostile in their behaviour towards her and failed to offer adequate support and guidelines to enable her to fulfil her teaching duties in the best possible way.

Some of the alleged behaviour of senior staff was even categorised as abuse by the applicant who said that this situation was not only unjustified and unfair but adversely affected her health.

Secondly, Miss Gunn complained of threats of dismissal and when those alleged threats materialised into a dismissal on 20 May 1993, whilst proceedings were still before the Commission, it was put to the Commission that this action by Fahan School was totally unjustified and unfair in the circumstances, and an order supporting reinstatement without loss of wages was sought from the Commission.

Miss Gunn produced evidence of being academically well qualified as a teacher, being four-year trained and with post-graduate experience. She also has built a reputation for excellence in her career so far and produced a number of testimonials which supported this position.

Fahan School also acknowledged her capabilities as a teacher but of course with some subsequent qualifications.

It is not quite clear as to the precise time that tensions between Miss Gunn on the one hand and the school principal, Mrs Alexander, and head of the junior school (and possibly others) on the other, actually commenced, but it is beyond doubt that relations became far from normal.

The Commission is by implementation invited to comment upon the question of fault in this general area of work environment and the interpersonal relationships of the parties concerned at the workplace. However, tribunals have traditionally given recognition to managerial prerogative and been reluctant to interfere with an employer's right to manage a workplace as he or she sees fit. And it is only in extreme cases when it has been shown that there has been an abuse of that managerial prerogative that tribunals have been prepared to intervene in the past. Safety is probably the clearest type of case to warrant such intervention.

In some instances specific legislation covers matters such as discrimination of various types, but in this instance the definition of "industrial matter" contained in the Industrial Relations Act 1984, would need to be widely interpreted to cover the more general type of issues raised by Miss Gunn against Fahan School.

I am also conscious of the fact that certain matters involving Miss Gunn and the school principal have earlier been submitted to a civil court.

For these reasons I have decided not to make any findings in relation to the first category of general complaint by Miss Gunn.

Furthermore, the position now is that the dismissal of Miss Gunn by Fahan School has overtaken other issues and whilst there were good reasons for not making findings as to those other issues there is clear jurisdiction to deal with a dispute "relating to the dismissal or reinstatement of any particular employee or class of employees" (Section 3(1) of the Act).

The letter concerning Miss Gunn's summary dismissal, which was dated 20 May 1993, gives a number of reasons for the action taken.

In that letter the principal refers to a meeting between the two in the presence of the business manager, Mr Shadbolt.

The principal stated in the letter that:

    "You categorically denied that you were present at Nickleby's Wine Bar in the period Friday 27th November to Tuesday 8th December 1992, during school time."

The evidence is that that was not the question put to Miss Gunn on 18 December 1992, but rather Mrs Alexander asked Miss Gunn if she had been at Nickleby's whilst on sick leave.

Mrs Alexander's own sworn statement of 18 October 1993, and that of Mr Shadbolt, support the fact that the principal had a mistaken belief in this regard at that time.

Miss Gunn therefore answered the question put to her truthfully and the employer has erred in relation to a question of fact going to a critical reason for dismissal.

The letter of dismissal then relies upon what was obviously Miss Moerkerk's signed statement as a witness to Miss Gunn's state of sobriety, which the applicant in this matter denied, together with an explanation that she was not fully recovered from her previous illness.

I have already found that Miss Moerkerk's testimony was not reliable, but Mrs Alexander's ready acceptance of the latter's version of events over Miss Gunn's led her to the conclusion that Miss Gunn was guilty of:

    "... a deliberate misrepresentation which amounts to a breakdown in the necessary confidence which is required ..."

I have some sympathy for the invidious position Miss Moerkerk was placed in when she was obviously required by her employer to not only speak out in respect of her own presence and conduct at Nickleby's but also as to that of one of her colleagues who was summarily dismissed as a result whilst her own co-operative role enabled her to get off with only a reprimand.

I accept that Miss Gunn was at fault in not first registering her intended absence from school on 8 December 1992, as others had done, but consider that other factors such as the time of the year; the absence of pupils at the school, and the absence of other members of staff at the same time constitute mitigating circumstances which should have been taken into consideration by the principal. Therefore whilst acknowledging that Miss Gunn's action of taking a long lunch on 8 December was foolish, it did not, in my view, constitute serious and wilful misconduct justifying summary dismissal.

It is not as if there had been a history of similar occurrences accompanied by a series of warnings which had been ignored by this employee.

Furthermore, the dismissal of one of the three teachers involved in the Nickleby incident and not the other two was the exercise of inequitable treatment and was therefore unfair.

The principal's letter of 20 May 1993 also stated that:

    "Further, at the meeting of the 18th December 1992 you stated that you had already resigned from the Education Department two weeks' earlier, when in fact your resignation was initiated on the 18th December 1992. This is also a misrepresentation."

As earlier referred to, Mrs Alexander said in her sworn statement to the Commission on 18 October 1993 that being on leave of absence from the Department of Education and the Arts would have made no difference to Miss Gunn's employment at Fahan School if she had made it known as several other staff members had been in a similar position.

The fact is that Miss Gunn freely admitted in December 1992 that she had been on 12 months unpaid leave from the former employer and had not formally resigned until that month. Because her preference was to remain at Fahan School and not return to Oatlands School there was no inconvenience to Fahan by the timing of her resignation.

Whether or not Miss Gunn actually misrepresented herself to Mrs Alexander on 18 December last in relation to the precise date on which she resigned seems something of a moot point. Certainly the letter of resignation was received at the Derwent District Office on 21 December 1992.

There was a suggestion that the letter may have been written some time prior to its posting, and it is possible that in the mind of the writer she considered that in every sense she had resigned because contact had been established with the District Superintendent, and not the principal whom Mrs Alexander had telephoned.

The bottom line is however that this particular incident occurred in December 1992 and Fahan School was not justified in using it to support a case for instant dismissal some five months later.

Whilst common law recognises that an employer is entitled to have reasonable time in which to enquire into an incident before acting on its findings and dismissing an employee for proven misconduct, it is not the case that if it does not then act at that time the employer can harbour its complaint for an extended period, such as five months, and then exercise the right of dismissal at will whenever it chooses.

Next the principal's letter alleges to Miss Gunn that:

    "In addition, you have deliberately breached the terms of your employment under the Independent Schools (Teachers) Tasmania Award by instituting Supreme Court proceedings and proceedings in the Tasmanian Industrial Commission without first complying with Clause 13 of the Award (Dispute Settling Procedure), and in that you have not permitted due process to be carried out."

Clause 13 of the Independent Schools (Teachers) Tasmania Award certainly is an important provision which is designed to facilitate the resolution of industrial disputes concerning industrial matters by conciliation and in good faith to act as an alternative to the taking of strike action.

The provision was inserted into the award as a consent matter and provides (inter alia) that:

    "(a)  The association and the employers party to this award undertake to take all reasonable steps to ensure that the representatives of the employers and staff follow the procedure as set out herein, with the intention that all disputes shall be promptly resolved by conciliation in good faith.

    (b)  Matters Likely to Become Industrial Issues

    The employer and the association shall respectively notify each other as soon as possible of any industrial matter which, in the opinion of the party notifying, might give rise to an industrial dispute."

Whatever obligations and responsibilities the award provides in this part appear to be on the employer and the association (i.e. the TRTA) and not an individual employee as is suggested.

Furthermore, it is extraordinary to even suggest that Miss Gunn has deliberately breached the terms of her contract of service by instituting Supreme Court proceedings and making application to the Tasmanian Industrial Commission for a hearing and that both such actions can constitute even part of the reasons for dismissal.

Finally the letter of dismissal states that:

    "I have also a number of concerns relating to your professional capacity and conduct.

    The above circumstances justify summary dismissal and as such your contract of employment is formally terminated, as of 20th May 1993."

The latter concerns were not specified and similarly cannot constitute good reasons for termination of service.

There is an onus upon an employer to prove that there were well founded reasons which justified summary dismissal of an employee and that it has not acted capriciously.

Having conducted a hearing in which the parties were afforded every reasonable opportunity to make any relevant submissions, and after considering those views as well as all of the evidence and exhibits presented, I have decided that Fahan School has not been able to satisfy that onus and to justify its actions in dismissing Miss Gunn on 20 May 1993.

I have further formed the view that the dismissal of Miss Gunn was, in all of the circumstances, both harsh and unjust.

Whilst the preferred remedy so far as the applicant is concerned is for her to be reinstated at Fahan School to continue her career at that establishment, I doubt very much that even with the best of intentions of both sides that a proper harmonious working relationship can be restored given all that has happened.

It is my decision therefore not to order reinstatement, but in the alternative that an amount adequate and fair shall be paid by Fahan School to Miss Gunn as a special payment, in lieu of reinstatement without loss of award and other entitlements.

The determination of such sum is to be made first of all the subject of negotiation between the parties. And secondly, if not agreed, may be determined by referral to the Commission following a resumed hearing to hear the views of both parties in this regard.

For this purpose the file is not closed.

 

A. Robinson
DEPUTY PRESIDENT

Appearances:
Mr M. Hunniford of Hunnifords, Barristers and Solicitors, representing Miss H. Gunn.
Mr B. Fitzgerald of the Tasmanian Chamber of Commerce and Industry Limited with Mrs M. Alexander and Mr A. Edwards representing Fahan School.
Mr B. McFarlane for The Tasmanian Registered Teachers' Association (intervening).

Date and Place of Hearing:
1993.
Hobart:
April 26
May 12, 24
June 15, 18, 30
September 20
October 19, 20, 29
November 1

1 T.4397 of 1993
2 T.4401 of 1993 (Graham Maitland Marshall v. The Minister administering the Tasmanian State Service Act 1984 - 17/6/1993)