T8099
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Annette Bourke and North West Residential Support Services Inc.
Industrial dispute - termination of employment, alleged unfair dismissal - unfair dismissal determined - lack of proper dismissal process - compensation awarded. REASONS FOR DECISION This application seeks the re-instatement of the applicant (Mrs Annette Bourke) to her former position of Residential Support Worker - Level 3 with the North West Residential Support Services Inc. (the Employer). Mrs Bourke was dismissed on 16 November 1998 for alleged misconduct. She was initially engaged as a casual employee but after about twelve months was appointed permanent part-time with an average of twenty eight hours per week. Her total period of employment with the Employer was two years and five months. The unchallenged evidence in this matter was that Mrs Bourke had a good employment record for the period of her employment and had not been the subject of any official verbal or written warnings concerning her performance over the period of her employment. The termination letter to Mrs Bourke from the Manager of North West Residential Support Services Inc. Mr Neal Rodwell dated 12th November 1998 reads:- " Dear Mrs Bourke, I refer to our meeting on Thursday the 12th of November, 1998 with your Solicitor in Burnie. At this meeting I put to you the allegations of serious misconduct at work. Your response through your Solicitor was a simple no to each question. I am disappointed that you did not speak on your own behalf and that you allowed your Solicitor to respond in the manner that he did. These are serious allegations and I would have expected a more detailed response from you. Considering these allegations and your response together with information I have at hand I am left with no other option but to terminate your employment as from Monday the 16th of November, 1998. Yours sincerely The "allegations of serious misconduct" referred to in Exhibit A4 are in fact a series of questions and the correspondence containing them reads:- " Attention Annette Bourke Sent By: Neal Rodwell, Manager In view of incidents and information that have been brought to my attention I need to ask you the following questions: 1) Did you visit any shared home when Phil O'Neill was on duty and you were off duty including staying at the home after coming off duty or going to the home before going on duty? 2) Did Phil O'Neill visit any shared home when you were on duty and he was off duty including staying at the home after coming off duty or going to the home before going on duty? 3) Was permission sort from your Supervisor for any of these visits and stays? 4) On any of these visits or stays did sexual intercourse take place between you and Phil O'Neill? I require your response within 24 hours. I am happy for that response to be through your Lawyer to my Lawyer. Yours sincerely, Mr Rodwell gave evidence that at a meeting with Mrs Bourke and her lawyer on 12 November 1998, when he gave Mrs Bourke Exhibit A4 containing the questions, he also read from a prepared statement which explained why he was asking the questions. Perhaps it is unfortunate that Mr Rodwell did not produce that statement as an exhibit as it may have helped me in understanding better what occurred at the meeting of 12 November 1998. However, I will come back to this issue later. The response to Mr Rodwell from Mrs Bourke through her lawyer was a simple "no" to each of the questions. The "no" was added to the original correspondence and handed back to Mr Rodwell and soon after that was done the meeting drew to an end with no detailed discussion on any issues having taken place. This was the only "official" discussion between the parties on the allegations and the termination3 followed. Mr Bartlett (of counsel) who appeared for Mrs Bourke in this matter and also represented her in discussions with Mr Rodwell on 12 November 1998, in his opening submission described the meeting of 12 November 1998 as follows:- "On 12 November the manager of the employer came to my offices and in my presence and the presence of my client asked a series of questions and perhaps only one of them is relevant and that is: On any of these visits - that is, visits to the home - or stays did sexual intercourse take place between you and Phil O'Neill. O'Neill, at the relevant time, we understand, was an employee. The answer to that question was provided in writing and it was 'no' whereupon along with the three other answers which all had a 'no', the manager left, had no further discussions with our client, didn't put any further issues to her and we've heard nothing more. Our client was then terminated from her employment and we filed the application in the tribunal."4 The relevant events leading up to the meeting on 12 November 1998 and the subsequent dismissal of Mrs Bourke are that Mr Rodwell was provided with information which led him to believe that Mrs Bourke was involved in "serious misconduct." On obtaining that information he made the decision to suspend Mrs Bourke with pay until he could conduct an investigation and ultimately discuss the findings with her. The suspension occurred on 5 October 1998 and Mrs Bourke left for Perth, Western Australia the next day for approximately three weeks. During this period Mr Rodman conducted his investigation and sought to have a meeting with Mrs Bourke on her return to Tasmania. Mrs Bourke arranged for Mr Bartlett to represent her and correspondence was exchanged between Mr Bartlett and Mr Rodwell and later Mr O'Neill of the Tasmanian Chamber of Commerce and Industry Limited representing the Employer. The initial correspondence from Mr Bartlett dated 7 October 1998 to Mr Rodwell5 amongst other things sought details from him of the "serious misconduct" that was alleged against Mrs Bourke. A follow up letter from Mr Bartlett on 4 November 1998 to Mr O'Neill reads:- "Dear Sir RE: ANNETTE BOURKE Thank you for your letter dated 15 October 1998. As we act for Ms Bourke would you please provide us with the following in writing:- 1) details of the alleged "serious misconduct at work"; and 2) what the statements are that you wish to put to our client. May we please have the information by return so that we can discuss it with our client? I expect that she will be more than willing to attend a meeting with the employer with a representative. However, I do not expect she would be prepared to be ambushed with information she has not considered prior to the meeting. My client is now back in Tasmania from her leave. She is anxious to return to work. I look forward to hearing from you. Yours faithfully Mr O'Neill's response of 10 November 1998 reads:-
Re: Ms Annette Bourke I refer to your letter of 4 November and my subsequent telephone call to you on 6 November. I wish to confirm with you the outcome of our telephone discussions. These being as follows:
As indicated to you in my letter of 15 October, your client will be given every opportunity to consider and respond to the allegations put to her.
The meeting of 12 November 1998 followed. It is clear from the above correspondence that no details of the alleged "misconduct" were provided to Mrs Bourke or her Solicitor prior to the meeting of 12 November 1998. I also accept from the evidence of Mrs Teresa Inkson, Mrs Bourke's immediate supervisor who advised Mrs Bourke that she was suspended, that although some discussion took place at the time of suspension no detailed allegations were provided to her at that time. Apart from the documentation earlier detailed going to the content of the discussions on 12 November 1998 of the allegations of "misconduct" the evidence was conflicting. Mr Bartlett maintaining that no specific allegations or detail of allegations was provided to Mrs Bourke. She was provided with four questions and her response was given. The process he claimed was sadly deficient and basically Mrs Bourke had no case to answer and she should be re-instated. Mr Rodwell's evidence was that he carefully prepared for the meeting, on 12 November 1998 that in doing so he produced a written statement which he read from and then provided the letter with the four questions. He believed no serious consideration was given to the questions, they were answered by the notation of "no" on the letter and Mr Bartlett effectively prevented any further discussion. His critical evidence reads:- "Mr O'Neill xn Is it correct that there was a meeting in Mr Bartlett's offices on 12 November?............ Yes, there was - yes. And at that meeting you put a series of questions to Mrs Bourke?............ Yes. I prepared myself very well for that and I actually prepared a written statement as to why I was going to ask the questions and then I chose to write the questions in writing because of the highly sensitive nature and took Teresa Inkson, my supervisor, with me. So I read the statement and then gave the questions - well, Mr Bartlett picked up the questions from the desk and handed them across. Do you want me to tell you all about the meeting? No, I will ask you another question. You were at one stage asked to wait outside; had any detailed discussion taken place prior to being asked to wait outside?............ No, the conversation as I recall it was that Mr Bartlett glanced through the letter and said, well, I think this is easy to answer; the answers are all no, and sort of - he then asked the question about when ..(inaudible).. could she go back to work, and I said, it wasn't quite as simple as that; that I actually need like a more detailed response or a written response. I must say at that time, you know, like it wasn't - the nature of the meeting certainly wasn't one where I felt that I could have any sort of discussion.
and "WITNESS: Sir, what happened was that Mr Bartlett said, well giving you a letter is no problem, we can prepare that now. We will prepare a letter, if you just want to wait in the waiting room for five minutes we'll do that. Well, five minutes turned into twenty minutes - there was obviously some discussion going on and when I came back in - when we were called back in after twenty minutes they asked me a couple of little questions that didn't go anywhere. I mean there was no discussion and he then said, well, I'm just going to put a notation on your letter and just wrote no, no, no and signed it and gave it to me and that was the end of it. And then he said, so when can she go back to work." and "MR O'NEILL: What were your expectations of the meeting of 12 November?............ Well, my expectations would be that there would be some discussion ...........I mean I didn't know what I would get. I didn't know whether I would get mitigating circumstances, denial - I didn't know what I was going to get. I wanted to lead into some discussion on that. Had any decision been made to terminate Mrs Bourke's employment?............ No." 8 Mr Bartlett refers to the outcome of 12 November 1998 meeting in his final submission as follows:
As I indicated earlier my assessment of the evidence and therefore what transpired at the meeting on 12 November 1998 may have been assisted if I was provided with the statement read out by Mr Rodwell before he presented the questions. But in making my assessment on what evidence is available to me I must conclude that Mr Rodwell did not properly comply with Article 7 of Part 11 of the International Labour Organisation's Convention concerning the Termination of Employment at the initiative of the Employer and therefore has dismissed Mrs Bourke unfairly because of a lack of specific allegations of the "misconduct" and the provision of time for Mrs Bourke to appropriately respond or defend herself. However, I will return to this issue later. In relation to the merit of this matter the clear reason for Mr Rodwell's decision to terminate Mrs Bourke goes to his conclusion that Mrs Bourke had an affair which resulted in sexual intercourse taking place on more than one occasion in the workplace with another employee. He believes this action constituted serious misconduct and therefore took the decision that he did to terminate the Employee. As is clear from exhibits referred to earlier Mrs Bourke denies that such events took place. She acknowledges in her evidence and through Mr Bartlett that she and another employee had an affair and that that affair involved sexual intercourse but maintained that such sexual interaction did not take place in the workplace, it was therefore of no consequence to her Employer. The evidence against Mrs Bourke comes from the other party a Mr O'Neill who indicated that sexual intercourse did take place in the workplace on a number of occasions and in varying "work" circumstances. At the time of the affair Mrs Bourke worked in a shared home in Eastern Avenue, Wynyard. In addition to providing appropriate care and assistance to residents during the day and evening she was required from time to time to "sleepover" to provide after hours assistance if necessary. Mr O'Neill's evidence was that sexual intercourse took place during working hours when both were on duty and once during one of his "sleepovers" when Mrs Bourke returned to the home. However, he was not specific about times and dates or other detail. He also gave evidence that the "affair" lasted from approximately October 1997 to May 1998 and that he had resigned his permanent part time and subsequent casual employment with North West Residential Support Services Inc. because "I felt guilt and remorse about my actions in the workplace."10 He acknowledged that during initial discussions with Mr Rodwell when he resigned his permanent part-time employment and disclosed in broad terms his reasons for resigning and then some time later when he resigned his remaining casual employment, he was not at any time threatened with termination by Mr Rodwell. Mr Bartlett suggested to Mr O'Neill that he advised Mr Rodwell of the "affair" following pressure put on him by his wife to get back at Mrs Bourke. This was denied by Mr O'Neill. Mr Bartlett argued strongly that intercourse did not take place in the workplace therefore the "affair" was of no concern to the Employer. It had already been acknowledged by Mr Rodwell that Mrs Bourke was a good employee and he only became aware of the "affair" after it had concluded. Mr Bartlett also submitted that even if intercourse had taken place in the workplace it was not "serious misconduct" unless it had an adverse effect on the workplace. He referred me to a number of authorities which dealt with misconduct including sexual misconduct and/or immorality. He submitted that the evidence was clear that even if intercourse had occurred there was no suggestion let alone proof of any adverse effect on the workplace and in particular the care of the residents of the home. There is no evidence in this case which would allow me to make an absolute finding that sexual intercourse occurred in the workplace as alleged. However, based on my assessment of the evidence of the key witnesses, Mrs Bourke and Mr O'Neill and the evidence of Mrs Inkson relating to the conversation between her and Mrs Bourke at the time of suspending Mrs Bourke, I believe on the balance of probabilities intercourse did take place as alleged. The evidence of Mrs Inkson is important because it gives an indication of Mrs Bourke's spontaneous reaction to being advised that there was an allegation against her. Mrs Inkson has known Mrs Bourke for a long period and regarded her as a good employee. When challenged about the content of a particular letter which Mrs Bourke had allegedly written to Mrs O'Neill she indicated Mrs Bourke said: "I only said something like its a good place to get some nooky because the residents don't know what your doing."11 Later in cross examination Mr O'Neill asked her a question as follows: "Mr O'Neill xxn Mrs Inkson, in respect to the meeting on 5 October, did Mrs Bourke plead for leniency in respect to any decision that was to be made regarding her employment?............ She said that it was really unfair. A lot of people had done things wrong in the past and she'd just seen them have a slap on the hand and why couldn't she - why couldn't she just be reprimanded for whatever, and I'm not sure if that was for having an affair or reference to the shared home or what the reason was."12 I accept Mrs Inkson's evidence on the above as an accurate account of what was said and therefore an important indication of what occurred given the totally contrasting evidence of Mrs Bourke and Mr O'Neill. Having concluded as I have on the evidence I must now decide the issue between the parties. Is the sexual intercourse, that I believe on the balance of probabilities took place, serious misconduct and if so does it warrant instant dismissal? Everyone would have a moral view about whether sexual intercourse is appropriate or not in the workplace, particularly in the sort of environment in which it is alleged in this case. However, I must restrict my consideration to the contract of employment and employment issues not moral issues. To that extent I have found the references referred to me by Mr Bartlett very helpful and adopt the following from the:- Orr v University of Tasmania Tas. S.R. 155 where the Supreme Court of Tasmania held:- "The circumstances in the Orr case were quite exceptional and there is no general principle that immorality of an employee will justify dismissal. Even in the more liberal society of the 1970's and 1980's there are a number of instances where employees have been held justifiably dismissed for being involved in sexual relationships which affected the authority of management or conduct of work in the work place. It is the effect on the performance of work, rather than immorality as such that is the critical factor." as establishing the framework for my consideration of this matter. Sexual intercourse or for that matter other activities that employees may be involved in during "sleepovers" could in the context of this case take place without any impact whatsoever on the workplace. The evidence of Mr O'Neill was that on the one occasion that intercourse occurred on a "sleepover" residents were asleep and none of them woke during the time it took place. His evidence was also that it was his "sleepover" and Mrs Bourke returned to the home, she was not on duty. This raises issues of was there a policy in place about employees returning to the workplace after hours? I was told there was but it was not produced as evidence. I can only decide issues on the basis of evidence. If it is alleged to be available and not produced I can only speculate on the reasons why. The critical consideration in this case is what effect did the relationship have on the workplace and the performance of work when intercourse and related activities took place when both employees were on duty? There was no evidence from Mr O'Neill on the time taken in such activities but he certainly conceded that they occurred "frequently"13 There was also no evidence going to whether Mrs Bourke and Mr O'Neill were the only employees on duty at the times they occurred but for obvious reasons I accept they were. In those circumstances if they were otherwise engaged they were not attending to their normal duties and therefore neglecting whatever duties were required for the time taken on each occasion. Mr O'Neill's evidence was that; "there were no incidents, no accidents, nothing happened to any of the residents while the sexual intercourse was going on."14 If any such accident or incident had occurred it goes without saying that both employees would be guilty of serious misconduct. Whether they were lucky during the periods of their neglect of duty or whether they were careful in choosing their times was not the subject of any evidence. All of these considerations in my view are relevant to establishing the seriousness of the neglect. Certainly such activities in the work place cannot be condoned however, there was no evidence produced to me of any policy of the Employer on appropriate employee behaviour. Certainly an orientation package for North West Residential Support Services Inc. was provided to me for information but while it was an excellent document for what it was intended to be, it did not provide the specific directions or guide that would have helped me in considering the outcome of this matter. Some additional facts that I believe are relevant to my considerations are that the affair between the two employees had come to an end in May 1998. One of the parties, Mr O'Neill had resigned his employment and it would appear from the evidence had left his employment before the initial approach resulting in the suspension of Mrs Bourke had been made. In any case the evidence was that Mrs Bourke had been transferred to another work location in May 1998. While I accept from the evidence that on the balance of probabilities sexual intercourse took place in the workplace the last occasion again from the evidence, was at least back in April 1998 approximately seven (7) months before the date of dismissal. Perhaps in the dismissal of Mrs Bourke there was an intention to provide a clear message to other employees about inappropriate behaviour in the workplace rather than ensuring through other means that such conduct did not occur again, or if it did, employees would be very clear about the potential consequences. Mr Rodwell did not dismiss Mr O'Neill, although it is acknowledged that in the second discussion with him he asked Mr O'Neill for his resignation. My assessment of Mr O'Neill's evidence is that he was going to resign anyway. Having regard for all of the available evidence in this case I believe the dismissal of Mrs Bourke to be harsh. As indicated earlier I have also determined that the termination process was lacking in substantial fairness. The evidence of Mr Rodwell was that Mr Bartlett effectively stifled any appropriate discussion of issues between the parties in the meeting of 12 November 1998. There is little doubt in my mind that his evidence of what occurred at that meeting is accurate. It is rather ironic that Mr Bartlett should come to this Commission and submit that an appropriate and fair termination process did not take place when he was one of the key players in it and in my assessment of the evidence was a substantial part of the problem. However, Mrs Bourke is entitled to have clear allegations against her detailed by the Employer and be given an appropriate opportunity to respond. I am satisfied this did not occur. Having regard for all of the circumstances of this case I am of the opinion that re-instatement is not appropriate therefore I will award compensation to Mrs Bourke. That compensation will take into account the extent to which I believe Mr Bartlett contributed to the lack of a proper termination process. In accordance with s.31 (1.B) of the Act I order that North West Residential Support Services Inc. pay to Mrs Annette Bourke of 143 Andersons Road, Wynyard six (6) weeks pay based on twenty eight (28) hours per week at Mrs Bourke's normal hourly rate of pay at the time of dismissal. The payment to be made as soon as practicable but no later than 26 March 1999.
J G King Appearances: Date and place of hearing: 1 Exhibit A4 |