2009 WAIRC 00580

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES DEBRA LEE LEAHY
APPLICANT
V-
LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION
RESPONDENT
CORAM COMMISSIONER S J KENNER
HEARD MONDAY, 2 FEBRUARY 2009, MONDAY, 16 MARCH 2009, THURSDAY, 26 MARCH 2009, MONDAY, 8 JUNE 2009, TUESDAY, 9 JUNE 2009, WEDNESDAY, 10 JUNE 2009, THURSDAY, 11 JUNE 2009, FRIDAY, 12 JUNE 2009, TUESDAY, 23 JUNE 2009, WEDNESDAY, 24 JUNE 2009, THURSDAY, 25 JUNE 2009, FRIDAY, 26 JUNE 2009, MONDAY, 29 JUNE 2009, TUESDAY, 14 JULY 2009, THURSDAY, 16 JULY 2009
DELIVERED TUESDAY, 18 AUGUST, 2009
FILE NO. U 188 OF 2008
CITATION NO. 2009 WAIRC 00580

Catchwords Industrial Law - Termination of employment - Harsh, oppressive and unfair dismissal - Applicant’s attitude and conduct - Duty of trust and confidence - Breakdown in employment relationship - Dismissal on annual leave - Dismissal not unfair or unlawful - Industrial Relations Act 1979 (WA) s 29(1)(b)(i)
Result Application dismissed

Representation
APPLICANT MR S HEATHCOTE OF COUNSEL WITH MS J PILKINGTON OF COUNSEL

RESPONDENT MR R HOOKER OF COUNSEL WITH MR N WHITEHEAD OF COUNSEL

Reasons for Decision
The Application

1 At all material times the applicant Ms Debra Leahy was employed by the respondent as an Organiser and subsequently a Lead Organiser. The applicant’s employment was terminated by the respondent on 5 December 2008 by letter from the respondent’s Secretary Mr Kelly, in circumstances that are controversial.
2 The applicant now brings this claim pursuant to s 29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”). By it she alleges that her dismissal by the respondent was harsh, oppressive and unfair. In short, the applicant complains that the conduct alleged to have been engaged in by her did not warrant dismissal. She also says the investigative and decision making process of the respondent that it used in its decision to dismiss her, was flawed.
3 The applicant seeks re-instatement and compensation for loss.
4 The respondent opposes the applicant’s claim and denies it has acted harshly, oppressively or unfairly in any material particular or at all. Even if it is found to have so acted by the Commission, the remedy of re-instatement is opposed.
5 Mr Heathcote of counsel appeared on behalf of the applicant. Mr Hooker of counsel appeared on behalf of the respondent.

Contentions of the Parties
6 The contentions of the parties in summary form are set out in the applicant’s further and better particulars and the respondent’s amended notice of answer.
7 The applicant advances five principal contentions in support of her claim. First, she says that the allegations relied upon by the respondent, as set out in the respondent’s letter of dismissal to her dated 5 December 2008, were baseless and/or trivial. It is said that the allegations put against the applicant by the respondent are grouped into four categories and include:
(a) Inappropriate remarks made by the applicant to a more junior employee Ms Orr on or about 15 October 2008 in the presence of other employees, including Ms Ovens;
(b) A conversation on the same day between the applicant and Ms Ovens in the stairwell of the respondent’s building in which it was alleged the applicant denigrated the respondent’s senior officers and the respondent generally (“the Ovens Allegations”);
(c) That in or about June 2008 at the Australian Labour Party (ALP) State Conference held in Perth, the applicant called a more junior Organiser Ms Otter an “arse-licker” because she had lunch with the respondent’s Secretary Mr Kelly (“the Otter Allegations”); and
(d) That in or about May 2008 the applicant spoke inappropriately to another officer of the respondent Mr McCallum in his capacity as the internal ALP Whip within the respondent, in relation to attendance at an ALP Executive meeting (“the McCallum Allegations”).
8 It is said by the applicant that the allegations made against her are either without foundation or so trivial so as not to warrant disciplinary action, let alone termination of employment.
9 Secondly, the applicant says that the respondent should not have relied on the Ovens Allegations as her opportunity to overhear the discussions said to have taken place in the presence of Ms Orr was limited. The alleged conversation in the respondent’s stairwell according to the applicant is a fabrication, given Ms Ovens’ prior history of dishonesty at the respondent.
10 The third and fourth complaints of the applicant are that the respondent failed in its obligation to properly investigate the allegations against her by not having the requisite certainty of mind as to factual allegations, failing to interview all relevant parties and not according the applicant a proper opportunity to respond to the complaints as to her conduct.
11 Fifthly and sixthly, it is said by the applicant that even if the allegations against her were sustained, they were not of themselves, taken individually or collectively, sufficient to constitute grounds to dismiss an employee. Further, given the respondent’s workplace culture, the applicant’s work history and other options open to the respondent, the dismissal of the applicant is said to have been a disproportionate response in all these circumstances.
12 Finally, it is contended on behalf of the applicant that the respondent took into account other complaints by an employee of the respondent, Mr De Souza that had been investigated and not acted upon (“the De Souza Allegations”).
13 For the respondent, its omnibus contention was that the applicant, by her conduct as a senior officer of the respondent, had lost the confidence and trust of the senior management, necessary for the maintenance of an ongoing employment relationship. The respondent denies that its investigation of the various complaints against the applicant was inadequate or that the applicant was not given the appropriate opportunity to respond to the allegations.
14 Specifically, it is said by the respondent that the conduct of the applicant in relation to the Ovens, Otter and McCallum Allegations, demonstrated that the applicant, in a senior leadership position, had breached the implied term of her contract of employment to not act in a manner calculated to destroy or seriously damage the relationship of trust and confidence between her and her employer. Furthermore, it was also contended by the respondent that the applicant’s conduct viewed overall, showed a disregard for the duty of good faith that she owed to the respondent.
15 As to the Ovens Allegations, the respondent says that it was aware of the prior act of dishonesty of the employee in question, and did not consider that it was material to the resolution of the complaints against the applicant. The respondent preferred the version of events as outlined by Ms Ovens as being more consistent with a pattern of behaviour displayed by the applicant.
16 In terms of the “standard of proof” that it adopted in the investigation process, the respondent said that the views it had formed as to the various allegations, after due investigation, were open to it and no higher test is applicable in the circumstances. Furthermore, the investigation process was proper, thorough and gave the applicant every reasonable opportunity to respond to the matters raised with her.
17 It is also said by the respondent that it had a valid reason for dismissing the applicant, by way of its loss of confidence in her as a senior officer. Other options to dismissal were considered, but were not appropriate in the circumstances.
18 The respondent denies that the use of profane language was acceptable or common practice by its staff. In particular, however, the respondent emphasised the context of the applicant occupying a senior leadership position and the inappropriateness of the comments made in that context.
19 Finally, as to the De Souza Allegations, the respondent submitted that these matters were one of a series of complaints investigated by it and which ultimately lead to the applicant’s dismissal.

Brief Background
20 The hearing of this matter was somewhat lengthy. It occupied 12 sitting days and some 17 witnesses were called by the parties to give evidence. It is not necessary in the following reasons to canvas all of the evidence. The Commission’s consideration of the evidence will be primarily confined to those central allegations which formed the basis for the respondent’s decision to terminate the applicant’s employment. For ease of reference, after considering a general chronological background, these reasons will deal with these central allegations leading to the respondent’s decision to dismiss the applicant, separately.
21 The applicant was first employed by the respondent on secondment in or about July 2003. Various contract positions then followed. In 2004 the applicant was offered and she accepted a permanent position with the respondent as an Organiser initially in the education portfolio and then in the hospitality portfolio. In July 2007 the applicant was appointed a Lead Organiser on a six month probationary period.
22 In or about June or July 2007, the applicant suffered a considerable personal crisis and also a major health problem. This meant the applicant being on a period of leave until about August 2007.
23 Whilst it is not entirely clear on the evidence, it seems that in or about January 2008 the applicant completed her probationary period and was appointed permanently to the position of Lead Organiser in the hospitality portfolio. In that position, the applicant was responsible for a team of Organisers as the team leader.
24 In about mid May 2008, an incident occurred involving the applicant and Mr McCallum, another team leader, who also occupied the position of Internal Political Officer, know as the ALP Whip. This incident involved allegations that the applicant spoke inappropriately to a co-worker, in relation to a request by Mr McCallum, as to whether the applicant was attending an upcoming ALP State Executive meeting.
25 In about mid June 2008 Mr De Souza resigned from his employment as an Organiser within the applicant’s hospitality team. At the time of his resignation, he informed both Mr Kelly the Secretary and Ms Smith an Assistant Secretary of the respondent that the reason for his departing from the respondent was as a result of the applicant’s conduct and behaviour in the work place, particularly the manner by which she managed her team. A detailed list of Mr De Souza’s complaints was compiled with the assistance of Ms Smith. These were tendered in evidence as exhibit A9.
26 Not long after these matters, over the weekend of 28 and 29 June 2008, the ALP State Conference was held in Perth. The applicant and a number of other delegates representing the respondent were in attendance. An attendee, and an Organiser colleague of the applicant, Ms Otter, alleged that the applicant engaged in inappropriate conduct on two separate occasions.
27 The first occasion was the participation by the applicant, along with a colleague Ms Anderson, another Lead Organiser, in “passing around” and discussing the list of allegations made against the applicant by Mr De Souza. The second matter, and one which the respondent ultimately placed considerably more weight upon, was an allegation by Ms Otter that the applicant called her an “arse-licker” because Ms Otter said she had had lunch with Mr Kelly at the conference. These allegations were denied by the applicant.
28 The De Souza Allegations caused the respondent considerable concern and led to a decision by Mr Kelly to commence an investigation. It is common ground that numerous meetings were held between the applicant, her colleague Ms Anderson as a support person, Mr Kelly, Ms Smith and on occasions others, to deal with the De Souza Allegations. Those meetings took place in June, July, August, and September, 2008. In mid to late October 2008, the Ovens Allegations were made and an investigation into them was also commenced by Mr Kelly. These matters were the subject of further inquiry and meetings in October and November 2008.
29 Additionally, at about the same time as the Ovens Allegations were raised, the Otter allegations came to light and were also the subject of inquiry by Mr Kelly.
30 As a consequence of these matters, and further meetings held in late November 2008, the respondent, through Mr Kelly and Ms Smith, came to the conclusion that the substance of the Ovens and Otter Allegations were well-founded. In conjunction with reservations as to the applicant’s staff management skills, it was decided that termination of employment was the appropriate outcome. By letter dated 5 December 2008, tendered as exhibit A7, the applicant’s employment was terminated effective that date by payment of five weeks salary in lieu of notice. Formal parts omitted, exhibit A7 is in the following terms:
“It is after long consideration and with regret that I have come to the conclusion that I no longer have confidence in your capacity as a Lead Organiser.
The matters that have led me to this decision are as follows;
1. I do not believe it was appropriate that when asked if Keryn Anderson would be returning from leave you said, in the presence of a number of organisers ‘why the fuck would she come back’. You have acknowledged the comment but claimed that it was casual rather than a negative comment. I have considered this and I can’t contemplate a context in which it would be appropriate for a Lead to make such a comment to organisers.
2. I have concluded that Claire Ovens’ version of the conversation you had with her in the stairwell is more probable.
She said you expressed strong dissatisfaction with your treatment by the LHMU and in particular you said that Carolyn Smith hated you, that management are a bunch of fuckers, that you were doing little work and that you were using your private laptop to avoid detection of personal work.
I believe Ms Ovens’ version of events because;
a) She has no motive to make up such a story
b) The level of dissatisfaction you expressed is similar in substance to the conversation you had with Kimberly Hoover, a conversation you have not challenged.
c) You said you only bought your laptop to work on a few days and that as Ms Ovens does not work in your area it is unlikely she would have known about it unless you told her.
d) You have previously said that you believed Carolyn and you had an unsatisfactory working relationship.
I have considered the disciplinary issue concerning Ms Ovens that you raised.
Nevertheless in all the circumstances I believe Ms Ovens’ version of the events. I consider it totally inappropriate for a Lead to have such a conversation with an organiser.
3. I have considered the complaint made by Ms Otter, namely that at the conclusion of the ALP State Conference you said to her that she was an “arse-licker” because she had lunch at my table.
I can see no reason why Ms Otter would make such a claim if it were not true. The totally unacceptable nature of this comment should be obvious.
While these items alone justify termination, I have also considered that you have been spoken to on a number of occasions concerning your general attitude to other staff, most recently when Alan McCallum believed you spoke inappropriately to him in his role as Internal Team Lead and ALP whip.
Considering the above, I have decided to terminate your employment with 5 weeks pay in lieu of notice from Friday 5 December 2008.
Please return all Union property so that final payments can be made.
If you wish to return to the Union office for any reason, please notify me so that an appointment can be made.
I have enclosed Jacque Otter’s email, as it relates to you, as requested.”

The Allegations
31 As noted at the outset of these reasons, and as reflected in the applicant’s letter of dismissal, the central allegations leading to the respondent’s decision to terminate the applicant’s employment were those relating to Ms Ovens and Ms Otter. To a lesser extent, the McCallum Allegations also come into focus. Whilst considerable evidence was led by the parties in relation to the De Souza Allegations, in the final analysis, on the evidence of in particular Mr Kelly and Ms Smith, the principal decision makers involved in this matter, those allegations played little formal part in the respondent’s decision to terminate the applicant’s employment.
32 I do not say that the issues raised within those complaints are irrelevant. However, to the extent that they go to issues of the applicant’s team management skills, they form the contextual background within which the respondent’s ultimate decision to dismiss was taken.
33 As Mr Kelly observed in his evidence and Ms Smith in hers, the applicant was given the benefit of the doubt in relation to the De Souza Allegations which originally prompted the respondent’s investigation into the applicant’s dealings with staff and others. Before turning to consider the specifics of the central allegations, I consider some background issues.

The Union
34 The respondent is one of Western Australia’s largest unions with over 20,000 members across a broad range of industries including, health, education, child care, contract cleaning, security, aged care and manufacturing.
35 The profile of the respondent’s membership is predominately low paid and a high proportion of the membership is female with many coming from a migrant background.
36 Mr Kelly gave evidence as to some of the challenges he faced on assuming the Secretary’s position in 2002. This included falling membership numbers and the need to refocus the union’s resources and internal structures to meet the new environment. In particular, he spoke of the creation of the Lead Organiser position, originally called Leading Hands. These positions were established to provide leadership to teams of Organisers, participate in formulating industry campaign plans and to take part in the strategic decision making within the respondent.
37 To this end, a formal leadership group within the respondent was established in 2004, comprising the Secretary, the two Assistant Secretaries and the Lead Organisers. The creation of the Lead Organiser positions and the seniority of them were reflected in a revised salary structure. Whilst the main group of the respondent’s staff progress through a seven level salary structure based on length of service, the Lead Organiser positions are at Level 8 which appointments are only made by the Branch Executive. The only positions above this are the Secretary and Assistant Secretaries.
38 The seniority of the Lead Organiser position is reflected in the criteria for appointment to Level 8 and Level 9 positions as contained in the respondent’s national conditions of employment, tendered by consent, as exhibit R18, as follows:
“There is no automatic progression to Levels 8 and 9. Advancement is discretionary, subject to the decision of the Branch/National Executive. These levels apply to an official who demonstrates a very high level of skills, and provides leadership in areas of work impacting directly on the Union as a whole. An employee at these levels is one who holds the confidence of the Executive to provide sound leadership to others and is relied upon to make decisions and/or recommendations that are consistent with the strategic direction of the LHMU.” (My emphasis)
39 The role of Organisers and in particular Lead Organisers in a modern union context was the subject of evidence given by Mr Crosby, an experienced union official and the author of a book in relation to union renewal. Mr Crosby gave evidence about the challenges facing modern unions, particularly those that operate in low paid and itinerant industries such as the respondent.
40 In 2002 Mr Crosby undertook a review of the Western Australian Branch of the respondent and one of his recommendations was the creation of the Lead Organiser position which he described as a crucial position to the success of organising in a union such as the respondent. In particular, he emphasised the importance of the Lead Organiser having the confidence of the union Executive and to model appropriate behaviours and performance to the Organisers in their teams. In this respect, Mr Crosby referred to the importance of Lead Organisers not undermining the Executive of a union in dealings with Organisers and other staff.
41 Also, Mr Crosby testified as to the particular importance of Lead Organisers in managing and motivating Organisers in their teams to ensure that each of them is working to maximise their output. He said if a Lead Organiser is not doing their job effectively it may be critical to the success of a campaign.

Early Stages
42 As noted in the brief factual background above, the applicant was initially employed as an Organiser. It was common ground that the applicant was keen to progress her career and gave evidence on occasions, as expressing a desire to be appointed to a Lead Organiser position. These discussions took place primarily with Ms Smith to whom the applicant reported.
43 Ms Smith testified that she would meet with the applicant on a regular basis in 2006 as part of meetings with Senior and Lead Organisers in her group. She said that the applicant was a relatively ambitious person who frequently raised with her the possibility of promotion to a Lead Organiser role and her concern that she had not progressed to that level by that time.
44 Whilst Ms Smith was of the view that the applicant was very good with dealing with delegates and union representatives her concern with the applicant’s progression was her “people management” skills. Ms Smith in her evidence-in-chief put it this way:
“So in 2006 and moving into the first half of 2007, did you form a view about Debra Leahy's readiness or capacity to become a team leader?---Yeah. Look, she had some very good skills, but I think the question that was always against Deb's name was her people management skills. I had a number of conversations with her. One of the … I guess threads of conversation that I had with her, she was very good at dealing with delegates, with Union reps, and I … I remember on a number of occasions saying the sort of patience and positive attitude that she had towards the Union delegates, she needed to develop that same patience and positive attitude with the organisers. And, yeah, so that … that issue I did discuss with her on a number of occasions.”

45 In cross-examination on this issue Ms Smith accepted that the applicant was very good at recruiting.
46 In late 2006 or early 2007 the applicant, along with Organisers from other States, took part in a programme developed by the respondent’s national office for the casino industry, the LEAP programme. This programme, developed by Mr Burton, who also gave evidence on behalf of the respondent, had as its objective the development of Lead Organisers through a “live” campaign in the casino industry. An outline of the programme was contained in an overview document tendered as exhibit R3. It was particularly targeted at those branches of the respondent with new or developing Lead Organisers, in order that they could further develop their skills.
47 Ms Smith testified that she discussed the applicant’s participation in this programme with Mr Kelly and it was decided to include her from the WA Branch. She also discussed with Mr Burton the applicant’s strengths and weaknesses and an area identified for improvement was her management of staff. This was also the view expressed by Mr Kelly in his testimony.
48 In her evidence, the applicant acknowledged, at times somewhat reluctantly, that Ms Smith had raised her skills in managing staff, on previous occasions, but not in any disciplinary sense.
49 As to the conduct of the LEAP programme and the applicant’s participation in it, Mr Burton, now the respondent’s Assistant National Secretary said that Ms Smith had expressed reservations as to the applicant’s team management skills. He testified that as the person in charge of the LEAP programme he worked closely with the applicant over a period of about four months. He raised some concerns as to how the applicant was proposing to deal with an under performing Organiser, Ms Ovens. It was Mr Burton’s evidence that the applicant had intended to make Ms Ovens’ life difficult so she would leave the respondent. Mr Burton said he assisted the applicant by suggesting other ways of managing performance issues with staff in her team.
50 According to Mr Burton, who regularly provided feedback on the applicant’s performance in the LEAP programme to Ms Smith, the applicant’s initial performance was good. She started to use positive approaches to staff management however the improvement was not sustained. By the end of the LEAP programme, Mr Burton testified that the applicant had begun to revert to her former approach and was somewhat aggressive and bitter towards other Organisers.
51 This was evidenced in Mr Burton’s view by observations he made of the applicant in a final session of the LEAP programme in Brisbane. There the applicant expressed some negative remarks as to leadership of the respondent and other Organisers and indicated she was not receiving sufficient recognition for her efforts.
52 Mr Burton passed on his reservations as to these aspects of the applicant’s work performance to Ms Smith at the time of the conclusion of the LEAP programme. This was confirmed by Ms Smith who testified that Mr Burton had informed her that the applicant could be hard on staff in particular those not performing well, as opposed to proving positive assistance to develop them.
53 Having said that, Ms Smith also observed that after the conclusion of the LEAP programme, she noted some improvement in the performance of the hospitality team and a positive approach by the applicant. This was up to about June or July 2007.
54 At about this stage, the issue of the promotion of the applicant to a Lead Organiser position arose for consideration. This had been a topic of discussion between Ms Smith and Mr Kelly for some time. Whilst the respondent recognised the applicant’s strengths as an Organiser, the issue of team management skills was an area that Ms Smith and Mr Kelly wished to see some further development of. Notwithstanding this, a decision was made to appoint the applicant to a Lead Organiser position on probation for six months from July 2007.
55 It was common ground that around the same time as the applicant’s appointment to the Lead Organiser position, she experienced significant personal and health problems, that resulted in her taking leave for about six weeks.
56 On the applicant’s return Ms Smith testified that the personal issues had a substantial impact on the applicant’s capacity to perform affectively in her Lead Organiser role. Both Ms Smith and Mr Kelly gave evidence that they made allowances for this in giving the applicant time to resolve her personal difficulties.

Some Context – The De Souza Allegations
57 As noted earlier in these reasons, the De Souza Allegations were the subject of a substantial body of evidence in this case. Some 22 or so issues or incidents raised by Mr De Souza were the subject of extensive discussion between the applicant, Mr Kelly, Ms Smith and others over the course of many weeks between about June and November 2008. For reasons which will become apparent later, it is unnecessary for me to deal with all of the evidence as to each and every complaint made.
58 The respondent, in the main, Mr Kelly, and to a lesser extent Ms Smith, undertook an investigation into the various complaints raised by Mr De Souza. These complaints were first raised by him with Ms Smith and Mr Kelly at the time of Mr De Souza’s resignation being provided to the respondent in June 2008. Mr De Souza said his decision to resign was motivated by his inability to continue to work with the applicant. The complaints in summary related to insensitivity in the applicant’s dealings with other staff members, in particular, remarks about race and national origin, the sexual orientation of staff members and team management and interpersonal skills generally.
59 It is fair to say on the evidence as a whole that the applicant agreed with some of the De Souza Allegations, denied others and said that many had simply been taken out of context. I cite several as examples of some of these matters which were considered with a degree of seriousness by the respondent.
60 The first of the allegations was that during a campaign involving major Perth hotels, employees were being encouraged by the Organisers, including Mr De Souza and another Organiser Ms Innes, to sign a bed sheet as part of a national campaign. This was in about May or June 2008. Mr De Souza is Burmese and Ms Innes is Sudanese. In the afternoon of the day in question both Mr De Souza and Ms Innes decided to sign the bed sheet themselves in their native languages. The applicant on seeing this is alleged to have asked whether the signatures were handprints. Mr De Souza said he took offence at these remarks. In her defence the applicant testified that the comment was connected to her prior work in disabilities where people would sign in handprint or with wheelchair marks. The applicant said that the comments made by her were taken out of context.
61 A further matter raised concerned an allegation that when referring to a delegate at the Burswood Casino the applicant always referred to him by reference to his skin colour, sometimes in unflattering terms. This was also raised by Ms Pullen in her testimony. The applicant said in her defence that she did not refer to this person by his skin colour and had a good relationship with him.
62 Further issues were raised by Mr De Souza to the effect that the applicant made inappropriate remarks of a religious kind when both he and Ms Innes were deeply religious and which caused them offence. Some of these were admitted by the applicant but again, she said that she meant no harm in making the comments she did.
63 I also accept that a number of the complaints raised by Mr De Souza were misconceived and were simply expressions of differences in points of view by the applicant and others as to, for example, the ethnic background of a particular person or persons. One example of such was an allegation that when “debriefing” some hotel home visits Mr De Souza referred to some of the employees as Burmese and the applicant having the view that they were Chinese, from previous contact with them.
64 As to whether certain persons were Burmese or Chinese, is simply an expression of different perspectives and cannot on any basis, be reasonably seen to be racist in orientation. As I have already noted however, the De Souza Allegations whilst occupying a considerable body of the evidence in this matter, did not, in the final analysis, form a central basis upon which the respondent’s decision to dismiss was made.
65 It is the case on the evidence of Mr Kelly and Ms Smith, that after extensive investigation as to the various complaints by Mr De Souza and Ms Pullen, a conclusion was reached that the applicant was not motivated by malice nor had she any negative intent in the remarks made. In many cases, the conduct reflected a lack of sensitivity and awareness of the impact certain remarks made to others can have, particularly coming from a senior officer. Based upon the evidence, in my opinion this conclusion was reasonably open and the appropriate conclusion to reach.
66 From my observations of the applicant giving her evidence over several days, she struck me as a person who “calls a spade a spade” and could be somewhat blunt in her method of communication and did not give these matters much, if any, attention in her dealings with others. This was confirmed in the evidence of other witnesses. This is perhaps illustrated in the following exchange in the applicant’s cross-examination:
“--- about these specific allegations. I'm coming back to them directly, but it's an important general point which is relevant to … I'll be submitting … the Commissioner's evaluation and his assessment of Mr Kelly's evaluation of these matters that for all of us day to day how we express certain words in a particular tone can be critical to the impression that's given?---Yes.

And … and you paused again and partly shrugged your shoulders, haven't you?---Well, because I don't really … you know, I just … I don't think about that sort of thing, so when you're explaining it to me, so I'm like, "Yes, okay. Yes."

And … and perhaps we don't think about it because it's second nature to all of us. It's something we all know intuitively that a given set of words to one person in tone A and the same set of words to another person in tone B can have completely different meanings, can't they?---I would imagine so, yes.

Not even just yes, absolutely?---Well, I … I would imagine so, yes.

So do you have any clear recollection of what your tone was when you said the words you've just given evidence about concerning dot point 2 on A9?---No, I don't.” (93T)

67 The conclusion reached by Mr Kelly and Ms Smith that the applicant be provided with some additional training in equal opportunity matters and that the parties “move on” from these events, was an appropriate response in all of the circumstances in my opinion.
68 I am satisfied however, that some of the allegations of Mr De Souza did cause the respondent legitimate concern as to the applicant’s skills in managing staff and bore out its reservations initially held prior to the applicant’s appointment as a Lead Organiser. To this extent, whilst not specifically referred to as a ground of termination of employment in the respondent’s letter of 5 December 2008, the De Souza Allegations are at least capable of forming some context for the respondent’s concerns as to the applicant’s general attitude to other staff as referred to in the letter and I regard them in that light for present purposes.
The McCallum Allegations
69 Mr McCallum has been an official with the respondent since about 2001. From that time he was an Organiser in the respondent’s child care team. In August 2006 he was appointed the Lead Organiser for the respondent’s internal organiser team. Since about February 2009 Mr McCallum has been in the position of Political Coordinator and the ALP Whip. The later position requires him to ensure that the respondent’s delegates to various ALP bodies attend meetings and the respondent’s ALP functions are carried out.
70 Mr McCallum had worked with the applicant in the past on various projects and in his capacity as the ALP Whip. Mr Kelly in his evidence described the ALP Whip position as one of the most difficult in the office and said he had told staff in the past not to give Mr McCallum “a hard time.”
71 Mr McCallum testified as to an incident that occurred in about May 2008 as part of his role in getting delegates from the respondent to attend an upcoming ALP Executive meeting. According to Mr McCallum, a large meeting was scheduled for 19 May and given the subject matter, it was important for all of the respondent’s delegates to attend.
72 On the preceding Friday 16 May, Mr McCallum saw the applicant in the respondent’s office. He knew the applicant was on annual leave at the time. Mr McCallum was at his desk and in close proximity to the applicant, who was speaking to another Lead Organiser, and her friend, Ms Anderson.
73 Mr McCallum said that on seeing the applicant he rose from his seat and spoke to the applicant over a partition which was at about chest height. He said he spoke in a normal tone of voice and asked the applicant if she was available to attend the ALP State Executive meeting the following Monday night. He said the applicant responded in a loud and firm tone that “she was not talking to me because she’s on annual leave” (304T). Mr McCallum said he knew the applicant was due back at work on the following Monday.
74 Having received this reply, Mr McCallum gave evidence that he asked her again politely as follows:
“What happened next?---When she responded that she wasn't going to talk to me, I just asked her again politely, "Look," I said to her, "Look, Deb, I just need to know if you're going to be available on Monday night. I just need to finalise the numbers.” (304T)

75 Mr McCallum was then asked about his tone of voice and the applicant’s further reply and he said as follows:
“When you asked that second question that you've just given evidence about, how was your tone then? ---Probably the same as I've just said it there.

All right?---Yeah.

And can you … can you describe … can you put into words the extent to which there was any difference in your tone when you put the second question?---I probably emphasised the urgency a bit more because I did want to finalise the numbers, so I was trying to emphasise the importance of the need.

Through your tone - - -?---Yeah.

--- is what you're saying in your evidence now. And what was Debra Leahy's response then?---Again, she responded more loudly that she wasn't going to talk to me, she's on annual leave, and she doesn't have to talk to me at this time and then she left.” (304T)

76 In cross-examination Mr McCallum described the applicant’s tone as “loud and aggressive.” (312T)
77 Mr McCallum further said in cross-examination while he accepted the applicant may not have wanted to have spoken to him whilst she was on annual leave, he had to know if she was to attend the meeting as delegate lists were due in by 4pm that afternoon. He considered the applicant’s response to him demeaning, particularly in the presence of members of his own team. He said he also sent a text message and an email to the applicant about her attendance at the meeting but received no reply. Mr McCallum accepted that the applicant was entitled not to attend the meeting if she did not wish to.
78 A couple of weeks later Mr McCallum raised this incident with Mr Kelly during a normal work meeting. He told Mr Kelly that he considered the applicant’s behaviour unprofessional.
79 Mr Kelly confirmed this issue was raised with him and said his concern was the response of one Lead Organiser (the applicant) to another (Mr McCallum) in front of other Organisers and that it was consistent with the pattern of past behaviour engaged in by the applicant. He said he would investigate the matter.
80 In her testimony, the applicant admitted that she was abrupt in her dealings with Mr McCallum but that she was under stress at the time. She did not recall a text message or an email from Mr McCallum about attendance at the ALP Executive meeting.
81 Ms Anderson, also in attendance at the time of this incident, confirmed that Mr Kelly had informed staff not to give the ALP Whip a “hard time” and that the applicant was “a little harsh” in her responses to Mr McCallum.
82 It was concluded as a result of the investigation process, that the events had occurred largely as outlined by Mr McCallum.

The Otter Allegations
83 Ms Otter has been an Organiser with the respondent since January 2005. Whilst she did not work directly with the applicant, she did have some association with her prior to working for the respondent, when employed as a Teachers’ Assistant.
84 As noted above, the ALP State Conference for 2008 was held over the weekend of 28 and 29 June in a major Perth hotel. Ms Otter, along with a number of other delegates from the respondent, including the applicant, attended the conference.
85 Ms Otter gave evidence as to the seating arrangements at the conference. She described it as a series of long tables and she was asked to sit at one of them. Seated next to her were other employees of the respondent, Ms O’Driscoll and Ms Power. Seated opposite her were the applicant and Ms Anderson.
86 She said she heard the applicant and Ms Anderson talking about the respondent and in particular, making derogatory remarks about Ms Smith and the leadership of the respondent. Ms Otter also said the applicant was anxious and referred to a list of 20 or so complaints about behaviours she had displayed as a Lead Organiser. Ms Otter said she saw a note passed around the table to other people and also saw the applicant pass it to Ms Lord outside the conference room during the break. She did not see it but understood that it was the list of the complaints made by Mr De Souza.
87 Ms Otter testified that at the end of the second day of the conference as she was packing up, the applicant spoke to her. According to Ms Otter, the applicant said she was an “arse-licker” for having had lunch at the same table as Mr Kelly. Ms Otter’s evidence-in-chief on this point was a follows:
“All right. Now, did Debra Leahy say anything to you on the second day of the ALP state conference? ---We were getting up to finish for the … the last day of the conference and we're all picking up our stuff and Deb said to me that I was an arse-licker because I had lunch at the same table that Dave Kelly was sitting at.

And what, to the best of your recollection, were here actual words when you said … when she said that to you?---She said that I was an arse licker. I asked her not to call me an arse-licker and she just looked at me straightaway and said, "Well, why can't I call you an arse-licker?" and I told her that I didn't have to take it from her. And she said, "Well, why don't you have to take it from me?"

Did she say anything else?---No, because I'd walked off by then.

What was her tone when she said those words to you?---It was … there was that … I don't know, it's a little glint in her eye that she was … because she was talking about all the other stuff. It was with that same sort of … I don't know, it just seems nasty.

How close were the two of you standing when you had that conversation?---Originally when it started, about two metres away. She was on one side of the table, I was on the other.

Was anyone else present?---Keryn Anderson was there.

And how close was Keryn Anderson to the conversation?---Keryn was right next to Deb.

So I think you've said earlier in your evidence that you said you didn't like being addressed in that way? ---Mm'hm.

Did Debra Leahy say anything in response to that?---She just asked me why … I asked her not to call me that. She said, "Why can't I call you that?" and I said, "Well, I don't have to take that from you."

And what happened after that?---I walked off after that.

How did those comments make you feel?---I was quite humiliated, actually.

Why did you feel humiliated?---Well, they were coming from a lead organiser and also my direct lead was there and there was nothing said or there was no pulling up of the conversation and because we were right … we were surrounded by our work colleagues.

Who was your direct lead?---Keryn Anderson.

Did you have any other conversation with Debra Leahy on that second day at the ALP state conference, 29 June?---Not that I can remember.” (316T)

88 After the conference Ms Otter spoke to another employee of the respondent Ms Gurrin who was a Lead Organiser. Ms Otter said she told Ms Gurrin that she was concerned about the inappropriate remarks made by the applicant and Ms Anderson about the leadership of the respondent and that “it would cause grief within the organisation.” (317T)
89 When pressed on the allegations in cross-examination, Ms Otter said she stood by what she had said regarding her conversation with the applicant.
90 Ms Otter testified that she did not raise these matters for some months afterwards. When this was put to her both in examination-in-chief and cross-examination, Ms Otter said she did not so because she was fearful of Ms Anderson as a Lead Organiser, as both the applicant and Ms Anderson were good friends. By the time she raised the matter with Mr Kelly in October 2008 Ms Otter was moving teams and did not feel exposed to any possible retribution for raising the issue. In re-examination she referred to occasions where Ms Anderson had taken work off her in the past following complaints made.
91 Mr Kelly confirmed in his testimony that Ms Otter had come to see him in about mid October 2008 and raised two issues. The first was that a copy of the De Souza Allegations was passed around at the ALP State Conference in June 2008 and was the subject of discussion. He said that Ms Otter considered that this was not appropriate as the applicant and others were “poking fun” and Mr De Souza was present. The second issue raised was the fact that Ms Otter had been called an “arse-licker” for sitting at Mr Kelly’s table for lunch. He said that she found this comment very offensive.
92 As to the reported De Souza Allegations having been discussed and a copy of them passed around the conference table, Mr Kelly testified he was disappointed that it had occurred. Ultimately however, he was unable to conclude positively that the allegations were sustained, given the lack of clarity in some of the surrounding accounts. As to the “arse-licker” allegations, Mr Kelly said that he regarded this issue as very serious as it involved a senior officer of the respondent speaking to more junior employee in a derogatory fashion. He put it this way in his evidence:
“Why’s that?---Well Deb is a senior person in the organisation. She’s a lead organiser. She’s someone who the organisation, if you like, has given a tick to because we promoted her to a position of responsibility. On any ... based on anyone’s standards for a senior person to call a junior employee an arse-licker I don’t think anyone in their right mind could see that as acceptable behaviour. So, yeah I saw it as a very serious thing, it obviously affected Jacque.
Why was it obvious?---Well just her demeanour. You know she felt humiliated if you like by the comment.” (588T)

93 Mr Kelly raised the issue of Ms Otter’s delay in referring these matters to him. He said Ms Otter explained the position and that she thought the applicant would make life difficult for her had they been raised earlier. Given the seriousness of the allegations, Mr Kelly told Ms Otter that he needed to go and speak to other people about the incident.
94 The applicant confirmed she attended the June 2008 ALP State Conference. She went to it with Ms Anderson. She did not take her copy of the De Souza Allegations, but Ms Anderson did. The applicant confirmed she showed the list to Mr O’Donnell, an Organiser in the applicant’s team.
95 When confronted with these matters by Mr Kelly at a meeting on 18 November 2008, the applicant denied calling Ms Otter an “arse-licker” and said she did not even recall who was at her table at the conference. She also said she did not recall even seeing Ms Otter and had no idea whether she had lunch with Mr Kelly.
96 Also in attendance at the ALP State Conference was Ms Anderson. She testified that she spent most of her time with the applicant apart from during breaks and meal times. She confirmed she took her copy of the De Souza Allegations and gave it to the applicant who in turn showed it to Mr O’Donnell and another Organiser, Mr Reid.
97 Her evidence was she did not hear the “arse-licker” comment but accepted that she was not with the applicant at all times. In the course of a break during the meeting on 18 November 2006, she said she put the allegation to the applicant who denied it. Ms Anderson confirmed an observation by Mr Kelly in that meeting that if the applicant had spoken to Ms Otter in the manner alleged, he considered it serious enough to warrant dismissal.
98 A person in attendance at the ALP Conference, who was suggested as being present when the applicant was alleged to have called Ms Otter an “arse-licker”, was Ms Bifield. Ms Bifield was employed by the respondent from April 2006 to about August 2008.
99 She testified that sometime in June 2008 she received a phone call from Mr Kelly to ask her if she recalled a conversation between the applicant and Ms Otter at the ALP State Conference, where the applicant had called Ms Otter an “arse-licker.” Ms Bifield told Mr Kelly that she did not recollect such a conversation.
100 Ms Bifield did testify however, that on occasions both she and Ms Otter would engage in light hearted banter and use such language. She gave evidence that on the day after the ALP Conference, that being Monday 30 June, both she, the applicant, Ms Otter and Ms Anderson were in the car park of the conference venue. Whilst Ms Bifield did not have a good recall of the conversation, she said that Ms Otter said words to the effect that she had lunch with Mr Kelly the previous day to which the applicant responded with words to the effect “lick-arse” and laughed.
101 Ms Bified testified that she waited for a reaction from Ms Otter but there was none. In cross-examination she said that there was no indication either way as to how Ms Otter had received the comment from the applicant. It was Ms Bifield’s evidence that she did not know if a similar conversation had taken place prior to this over the weekend.
102 As to this issue Mr Kelly testified that he did speak to Ms Bifield but she could not recall any such comments from the applicant to Ms Otter during the ALP Conference. Mr Kelly said that Ms Bifield did not volunteer to him the conversation she recounted in her testimony, that took place on the following Monday as outlined above.
103 Whilst Ms Anderson was also said to be present at the time of the “arse-licker” comment to Ms Otter, Mr Kelly said he did not speak with her as she was acting as the applicant’s advocate in the disciplinary process and Ms Anderson had previously requested not to be questioned about incidents involving the applicant.
104 On balance, Mr Kelly considered that Ms Otter’s allegation was credible as he took the view that it would be quite out of character for her to come and see him and make up such a story. He said in his evidence that he took into account the period of time which had elapsed between the ALP Conference and when Ms Otter came to see him, and regarded her explanation for that delay as credible.

Ovens Allegations
105 Ms Ovens was employed as an Organiser with the respondent and started in mid 2004. From about September 2006 she worked in the hospitality team with the applicant. She said she got to know the applicant quite well but was however, wary of her because of things the applicant had told her that she had done to other staff members in the past. Ms Ovens described the applicant as “a person you would not want to mess with…” (454T).
106 It was common ground that in early 2008 Ms Ovens was disciplined for an act of dishonesty in misleading the respondent that she had performed certain work when she had not done so. She was issued with a first and final warning by Ms Shay the respondent’s other Assistant Secretary. Ms Ovens said that she felt ashamed about her conduct and had learnt from it.
107 Ms Ovens gave evidence about two incidents that occurred on or about 15 October 2008. The first incident occurred in the stairwell of the respondent’s building. It was common ground that Ms Ovens had been off work prior to this for a lengthy period of time due to a serious medical condition. The applicant has also been away on sick leave prior to the incident.
108 According to Ms Ovens both her and the applicant met in the rear stairwell of the respondent’s building between the first and second floors and in her evidence-in-chief said the following:
“And on what day, to the best of your recollection, did these conversations take place?---15 November, I - - -

All right?---Or the 15th, sorry, of October it was. Sorry. It was in October. Yeah.

So you, as I understand your earlier evidence, ran into Debra Leahy in the stairwell?---It was the first sort of time we'd sort of directly crossed paths where there was no other choice but to acknowledge each other and interact. That's how I felt anyway.

What happened then?---Well, she sort of said to me, "Oh, you know, I've … you know, how're you going, mate? I heard you've been sick," and I said, "Yeah. Yeah, I have, but I'm much better now. Thank you." And … and then she, you know, went into … then she started just talking about the Union in really negative terms that, you know, I was really taken aback actually. I was like - - -

What did Debra Leahy tell you about the Union?---Well, she said, you know, that she … that Carolyn Smith hates her and had always hated her, and I was like, "Oh, really? Oh."

Yes?---And that, you know, management … they're giving her no work to do, but you know, she doesn't care. She's still getting paid.

Right?---That she's bringing her laptop into work every day so that management … you know, she can go on the Internet and management can't monitor what she's doing.

Yes?---You know, that she's happy to sit around and do nothing all day; that it's their way of trying to squeeze her out.

Yes?---But that it won't work; that she's smarter than them. And she also, you know, said that, "Oh, you know, management, they're a bunch of fuckers."

Did she use those words?---Those exact words.”
109 Ms Ovens said the applicant during this exchange, used a quiet tone of voice and was leaning in towards her when she spoke, as if telling her a secret. After the incident Ms Ovens spoke to other staff members about it, one of whom was Ms Pullen, who she worked with at the respondent. Ms Ovens said she spoke to these other employees to try and get some guidance as to what she should do in light of her conversation with the applicant.
110 In relation to this incident, Ms Pullen confirmed in her testimony that Ms Ovens had spoken to her about it immediately after it occurred. Ms Pullen’s office at the time was next to the stairwell. She said that from her demeanour, Ms Ovens seemed agitated at what she had just heard and was going to speak to Mr Kelly about it. Mr Kelly was not it seems, aware of this conversation between Ms Ovens and Ms Pullen at the time of his subsequent investigations.
111 The second incident referred to by Ms Ovens was later on the same day when she was in an open planned area of the office where her team was working called a “pod.”
112 According to Ms Ovens, she was at her desk taking telephone calls and two other staff members Ms Corvi (nee Orr) and “Shane” were present. Ms Corvi was at a whiteboard making notes in relation to an upcoming campaign in the aged care industry. Ms Ovens was on and off the telephone and whilst not engaged speaking on the telephone, discussed issues with Ms Corvi. Ms Anderson, the Lead Organiser for the aged care area, was on leave at the time. Apparently also, Ms Anderson was in the process of seeking other employment.
113 The applicant came into the work area. She started speaking to Ms Corvi and making suggestions to her as to what Ms Anderson may do in the campaign and according to Ms Ovens’ evidence-in-chief the conversation continued as follows:
“So while Jasmine was writing about those things on the whiteboard - - -?---Mm'hm.

- - did Debra Leahy say anything?---Yeah. She came down into the pod and was also telling Jasmine … she was saying, "This is what Keryn," you know … as … as she knew Keryn, this is what Keryn would be thinking when developing, you know, how to prioritise those sites and then she said, "But, you know, Keryn … Keryn won't be back. It's unlikely she'll be back," and, you know, I think Jasmine had said to her, "Why?" and, you know, she said, "Oh, why the fuck would she?"

What was her tone when she said those words?---It … it was a tone like, you know … like an exclamation; almost comical, I suppose, you know. She was like, "Oh, why the fuck would she?" sort of thing, you know.

Did you have any other conversation with Debra Leahy on that day in October 2008?---Yes; earlier that day.”

114 A few days after these incidents, Ms Ovens went to see Mr Kelly and told him what had occurred. She subsequently put the content of the conversations in writing and gave it to him. A copy of this was tendered as exhibit R11. Following this, Ms Ovens said Mr Kelly spoke with her again to confirm her version of the events which she did.
115 Mr Kelly confirmed in his evidence that Ms Ovens came to see him. Mr Kelly was aware that Ms Ovens was leaving the respondent. In their meeting, Ms Ovens raised the two incidents with the applicant. Mr Kelly said that given that the respondent had afforded the applicant the benefit of the doubt in relation to the De Souza Allegations, and had offered the applicant remedial training, the new allegations were seen by him in a serious light.
116 In particular, he saw the statement by the applicant, that the management of the respondent were are “bunch of fuckers,” as particularly serious. He considered it was very derogatory of the respondent and in particular coming from a senior staff member in a conversation with a relatively junior staff member. Mr Kelly also viewed the comments by the applicant in the pod in the presence of two quite junior employees as a matter of concern.
117 The substance of the Ovens Allegations were put to the applicant in a meeting which took place on or around 10 November 2008. Whilst the applicant agreed that she had seen Ms Ovens in the stairwell she said they only had a brief conversation, exchanging pleasantries and discussing that both had been on sick leave. The applicant denied the substance of what Ms Ovens had alleged she had said.
118 Also in the same meeting, the applicant had agreed that she had said what Ms Ovens alleged in the pod with Ms Corvi, but she meant it not in a derogatory sense towards the respondent or its management. Rather she meant by this comment why would Ms Anderson return from annual leave if she was going to a new position with another employer.
119 Also relevant at this juncture is an earlier conversation between the applicant and an employee of the national office of the respondent, Ms Hoover, in or about September 2008.
120 Ms Hoover is the Development Coordinator for the respondent’s national office. She was requested to visit the WA Branch to do some work with the Lead Organisers and to try to assist in increasing membership levels.
121 Ms Hoover testified that at the time of her visit to the WA Branch, she was broadly aware that the applicant was not then performing her Lead Organiser duties and that some accusations had been made against her. Otherwise, she was not aware of any detail. While in the office Ms Hoover said she saw the applicant who asked her to go for a cup of coffee across the road from the respondent’s office which she did.
122 During the course of this, Ms Hoover testified that the applicant began to outline how badly she was being treated by the Branch and in particular Ms Smith. Ms Hoover testified that while the applicant did not go into all of the detail of the allegations, she referred to the list of complains against her and expressed the view she had lost confidence in the management of the Branch.
123 Ms Hoover said that although it appeared that the applicant was attempting to get her to empathise she remained neutral during the conversation. After Ms Hoover had left Perth, she was contacted by Mr Kelly and asked about the meeting with the applicant. He requested that she put the content of the conversation in writing which she did. A copy of that note was tendered as exhibit R10.
124 Mr Kelly further said in his evidence, that on several occasions as to these matters, he indicated to the applicant that if he considered the Ovens and Otter Allegations to be properly founded, that it would lead to the applicant’s dismissal.

The Decision to Dismiss
125 There was a substantial body of evidence led by both parties as to the series of meetings that took place between the applicant and representatives of the respondent, to discuss the various allegations and claims that had been set out above in some detail. These meetings took place over the period June to November 2008. This evidence included notes made of these meetings by both Ms Anderson on behalf of the applicant and Ms Smith on behalf of the respondent, along with copies of the various allegations reduced to writing, as made by a number of persons connected with them.
126 It is neither necessary nor fruitful to explore the content of these meetings or the other documentary evidence in any detail. Evidence as to the incidents, the applicant’s responses to them, and the surrounding circumstances, have been referred to above.
127 It is fair to observe from the totality of the applicant’s testimony over the course of some two days or so that she did not consider that the allegations made against her, and the course of the respondent’s investigation, would lead to termination of her employment. This is perhaps best illustrated in the following exchange in cross-examination:
“ And you weren't in any doubt, were you, when the … you left the meeting of 18 November that these issues that Mr Kelly was examining were serious enough in his mind that he may have reached the conclusion in due course to terminate you?---I never … I never thought at any point that Mr Kelly would terminate me. I thought that he would see through the allegations and that we would be able to move forward. So even if he was saying that to me, in my heart I was still believing that Mr Kelly would see through his investigations and that I would not … that wouldn't happen, that I expected to be performance managed, disciplined, but never to really be terminated.

If there was … could have been no doubt, could there, at the conclusion of the meeting of 18 November that these issues were serious enough that your employment was potentially at risk - - -?---No.

- - - - --if Mr Kelly reached a certain view?---Not … not for myself. For myself, I was
always still believing that Dave would not terminate my employment.” (56T)
-
128 And further in cross- examination the applicant said as follows:
“And that was because that was a very real issue in your mind, wasn't it?---I had asked him several times in other meetings if he was going to terminate my employment and he had said no…” (57T)

And … and to get to that point in your own mind, Ms Leahy, you must've appreciated the earlier point, that is your employment was at risk?---I never felt that my employment was at risk. I felt that maybe my lead position was at risk. I felt that I was going to be performance managed. I felt that, you know, possibly I'd be moved from the hospitality team, but I never actually thought Dave would terminate my employment.” (57T)

129 I pause to note at this stage that this evidence was at odds with the clear evidence of Mr Kelly, Ms Smith, and Ms Anderson, that termination of employment was referred to as a possible outcome of the disciplinary process.
130 The decision to dismiss the applicant was principally the responsibility of Mr Kelly. Ms Smith testified that she and Mr Kelly discussed the issue at some length and from all of the information disclosed in the investigation process, that the continued employment of the applicant would not be tenable in view of the behaviour and attitude to the respondent that the applicant had displayed. Ms Smith referred to the respondent having given the applicant the benefit of the doubt as to the De Souza Allegations, but it was the Ovens and Otter Allegations that “tipped the scales” in her assessment of the conduct of the applicant.
131 The decision to terminate the applicant’s employment followed the last meeting between the parties which took place on or about 27 November 2008. Earlier, arising from a meeting between the parties on 1 September 2008 concerning the applicant’s conduct and behaviour, Mr Kelly had come to the conclusion that it was not tenable for the applicant to be retained in her Lead Organiser position, following her being declared fit for work arising from a stress related worker’s compensation claim.
132 Whilst this may at law have constituted a dismissal by demotion, as raised by the Commission with the parties, the issue was not pursued by the applicant and I take it no further for present purposes. I pause to note that the applicant remained on her full salary for this period and still attended leadership meetings. A variety of Organiser work was undertaken by the applicant over this period.
133 Mr Kelly’s testimony on the decision making process revolved principally around the Ovens and Otter Allegations. The McCallum, and to a lesser extent, the De Souza Allegations, provided the context for the respondent’s concerns as to the applicant’s interaction with other staff of the respondent, including those in her team and for whom she had supervisory responsibility.
134 As part of the backdrop to the meeting of 27 November 2008, it was common ground that the issue of the applicant considering a voluntary resignation had arisen. The examination-in-chief of Mr Kelly as to the meeting of 27 November included the following:
“So, at the meeting of 27 November, 2008 what did you talk about?---Well, I started the meeting, my memory, asking Deb well, you know, what have you decided you’re going to do or where are you up to? Deb then explained that at the previous meeting when she’d asked for additional time she hadn't been asking for an additional week, she’d actually wanted additional time which would run into a period of leave that she had booked that would run right up until sometime in February.

So she had expected to be given until February to make up her mind. I was a bit surprised by that. I said to her we weren’t in a position to wait until then before we reached a conclusion on this issue. Those people who’d come forward and made the complaints were entitled really to have us deal with them in a reasonable way. She was now absent from being the lead of the hospitality team and it was an important campaign for us. And, you know, we needed to make a decision about what was going to happen with that position. So, Deb then expressed views as well, she didn’t think she’d done anything wrong, she was the victim in all this. She wasn’t going to resign, you know, she wasn’t going anywhere. So, I said to her, well that’s fine, I’ll now have to make a determination as to whether or not I think these complaints are justified. I told her I’d go and speak to people because Claire and Jacque had indentified people who, you know, would be able to shed light on whether or not these complaints had been, you know ... would be substantiated. So I said to Deb, all right I’ll go away, I’ll investigate these issues, I’ll make a decision but if I decide that you know, you’ve made these statements as these people have alleged that I would terminate her employment. And that’s pretty much where the ... and I said to her I’d get back to her within about a week. And that’s pretty much where the meeting ended.” (598T)

135 In relation to the allegations, and in particular the role played by Ms Anderson as the support person for the applicant, Mr Kelly gave the following evidence-in-chief:
“On ... to the extent you did go into the content of those allegations did Ms Leahy say anything different concerning the claims to what she’d said at any earlier meetings?---Well, substantially the same. There was a few slight variations. In respect of the discussion with Jasmine Orr where she’d previously admitted without question that she’d said, "why the fuck should Keryn come back?" she started to say she’d probably said it in that meeting and she said that a number of times. And, so I questioned her about that and again she went back to acknowledging that she had in fact said it. In respect of whether or not a piece of paper had been passed around at the ALP conference, she previously denied that categorically. When I questioned her at the meeting on the 27th, I think I asked her, look if it wasn’t your paper was it someone else’s? And, she made a comment, "well possibly." That’s the first time she’d sort of acknowledged that there may have been something in that. And that was the point at which Keryn was there, I sort of said, "well if it wasn’t your paper was it Keryn’s paper?" And that’s when Keryn said, you know, "no way."

Just pausing there. That question you’ve just said in your evidence, you’ve put, can you tell us what the question was and to whom you did put it?---I was asking Deb about what had gone on at the ALP state conference and having denied handing a piece of paper around in previous meetings she said something ... well, when I asked her if it could have been someone else’s and she said, sort of "possibly." So, you know, I thought well the only other person that it could be ... the only people I knew had copies of that bit of paper were her and Keryn, so I said "well, was it Keryn’s piece of paper?"

Yes?---And I looked at Keryn and Keryn then said "no way."

What was Keryn’s manner or demeanour when she gave that answer?---It was pretty emphatic that it wasn’t her piece of paper.
Why did you take that to be Keryn Anderson’s meaning in answering your question?---Well it was obvious, that was the question that was asked, you know was it your piece of paper Keryn (sic) or was it Keryn’s piece of paper and she said "no way." You know, so.

Could it possibly have been Keryn Anderson’s meaning to convey, in giving the answer, “no way” that she didn’t want to be answering any questions at all on the matter?---No. No. That’s completely absurd.” (599T)

136 I will return to the latter observation when dealing with the issue of the credibility of those giving evidence in this case.
137 At the conclusion of the 27 November meeting Mr Kelly said he would speak further with those persons identified who may be able to shed further light on the allegations.
138 As to the Otter Allegations, Mr Kelly, as noted above, reconfirmed with Ms Otter her version of the events and that Ms Bifield could not recall the material events. He considered the matter carefully and came to the conclusion that there was no basis to suggest why Ms Otter would fabricate such allegations against the applicant and that it would be completely inconsistent with Ms Otter’s character for her to do so. As also referred to above, Mr Kelly took into account Ms Otter’s reason for the delay in raising the issue with him found that to be credible.
139 As to the Ovens Allegations, Mr Kelly considered the conflicting versions of the events. The applicant denied the content of what Ms Ovens had said. He took into account that Ms Ovens had previously been disciplined by the respondent for a dishonest response in relation to her work duties and had been formally disciplined about it. He spoke to Ms Shay about the circumstances of that matter and Ms Oven’s remorse for her conduct.
140 Mr Kelly considered that there was no obvious rationale for Ms Ovens to make the allegations she did. Of some importance for Mr Kelly was the consistency between the comments alleged to have been made by the applicant to Ms Ovens and those contained in the conversation where between the applicant and Ms Hoover a little earlier. He concluded that the theme of complaints about the applicant’s treatment by the respondent, not doing work and other matters and suggestions that Ms Smith was out to get her, were in common.
141 Mr Kelly also confirmed that the respondent had given the applicant the benefit of the doubt as to the De Souza Allegations and that the dominant considerations were the Ovens and Otter Allegations. The applicant’s interaction and insensitivity with staff was an issue in the background.
142 Having considered all of these matters Mr Kelly testified in examination-in-chief as follows:
“After you reached the conclusions you did about what had happened what did you consider next?

---I thought about, well, obviously what should I do? And, I ... you know, I came to the conclusion that Deb couldn’t work in a lead role anymore.

Why’s that?---You know a lead role is very important in the organisation. She’s responsible and I suppose has got the trust of the organisation on a number of levels. You know we’ve got to trust leads to deal with organisers in a positive and respectable way, they are the people who are responsible for management on a day to day basis. You know developing those sort of things. Leads have direct contact, at a fairly senior level, with employers that we’ll deal with. So, they’re the face of the Union to sort of external people. Leads are responsible for drawing up plans, at least at initial level, although they are ticked off sort higher up the level about the plans we implement. All those things I consider to be really important. But on top of that they are important for driving, I suppose, they have a culture ... well they’re got an important role in driving the culture of the place.

Yes?---You know we try and represent ourselves as a Union that ... we’re a Union that’s growing, we’re a Union that’s going to take on the challenges of being able to represent low paid workers in a really challenging environment. You know that’s not easy and the work we ask organisers to do is not easy. We need organisers who can push a positive message about the work of the organisation to those organisers. And, given the conclusions I’d reached about the comments that Deb had made, you know, to junior organisers, I just didn’t believe I could be confident that we could leave her in that role. If she was saying things like she’d said to Claire Ovens, to Jacque Otter, to Jasmine Orr, all people who were junior staff members and you know, especially in Jacque’s case she found it quite humiliating what had been said to her. How could I leave Deb in that role to supervise junior staff again? You know how could I take Deb into my confidence as part of the leadership group on a range of issues that, you know, are quite important.”(602-603T)

143 The further issue was that of alternatives to dismissal. As to this Mr Kelly said in examination-in-chief as follows:
“Having formed that view what range of possible disciplinary sanctions did you have regard for?
---Sure. I thought about giving Deb a letter of warning. But I thought that really wasn’t going to be of much use. My experience, letters of warning if you ... they are of most benefit if there’s some acknowledgment by the person who’s going to get them, that they’ve made a mistake but they’re going to work to improve.
Right?---Deb flatly denied making the comments that she ... Jacque and Claire had alleged that she’d made. So she point blank refused to acknowledge them. And, I suppose right up to towards the end she was still talking about herself being the victim in all this. So, I just didn’t see that giving her a letter of warning when that was her attitude would really be much use at all.

Did you consider anything else?---I considered, you know, a demotion if you like and asking her to continue to work as an organiser rather than a lead and quite frankly I just didn’t think Deb would accept that, I didn’t think she’d get on and do the job. She was pretty unhappy having been asked to work as an organiser for the last few months, whilst we organised some additional training. I just thought, you know, if she’s not happy she’s not going to be a positive person around the building in an organiser role. It just wouldn’t have worked. So, that was the basis upon which I made my decision that termination was the appropriate course.

Did you consider any matters in Ms Leahy’s favour or actually or potentially mitigatory of what happened?---Look, she had been a good delegate and she’d been a good organiser with us. You know there’s no doubt about that, that she’d put in work for the organisation. I looked at that. But, you know, you’ve got to get to a point where you know, I felt as though over an extended period of time we had tried to accommodate the difficulties that she had in being a lead organiser. You know, we made it clear to her before appointing her that she had some issues that she needed to deal with as far as the people management skills. You know, when she got into the job she had some, you know, serious issues that basically stopped her functioning in that role which we accommodated. You know, we bent over backwards for her in that regard, you know to try and ease her through that difficult period of time that she had. But, coming out the end of it, almost 12 months after that she still had a really negative attitude to the organisation. And, at some point I suppose the points that you accumulate for being a good organiser, if you hold the organisation in such low regard you know, that outweighs what you might have done previously”(603T)

144 As a consequence of all of these considerations, Mr Kelly came to the conclusion that the applicant’s employment should be terminated by the letter of 5 December 2008, set out earlier in these reasons.

Relevant Law
Unfair Dismissal
145 The relevant inquiry as to these matters is in the main, well settled. The primary issue for determination for the purposes of s 29(1)(b)(i) of the Act, is whether the contractual right of the respondent to terminate the applicant’s employment has been exercised in such a manner so as to amount to an abuse to that right: Miles v Federated Miscellaneous Workers Union (1985) 65 WAIG 385.
146 It must also always be born in mind that the jurisdiction of the Commission in all matters that come before it is to be exercised in a manner consistent with s 26(1) (a) and (c) of the Act. The Commission in a case such as this is required to take into account all of the relevant circumstances of the case and the interests of the employer as well as those of the employee. The discretion is a broad one under the Act and in my opinion, care needs to be taken not to impose an artificial gloss upon the statutory injunction on the Commission under s 26(1) of the Act.
147 As pointed out by Mr Hooker in his closing submissions, reference has been made to the tendency in the past to elevate the notion of “procedural fairness” and “substantive fairness” as separate and distinct limbs of inquiry for the purposes of claims before the Commission under s 29(1)(b)(i) of the Act. This approach attracted observations by Anderson J in Dellys v Elderslie Finance Corporation Ltd (2002) 82 WAIG 1193 (Scott and Hasluck JJ agreeing) as follows at pars8-9:
“8 The provisions of the Industrial Relations Act which refer to harsh, oppressive or unfair dismissal make no distinction between a dismissal which is “substantively” harsh, oppressive or unfair and a dismissal “procedurally” harsh, oppressive or unfair. However, it has been the long standing practice of the Commission to employ the dichotomy as a convenient method of distinguishing between dismissals which are unfair in the sense that there should have been no dismissal at all and dismissals which are unfair in the sense that, although the employer was, broadly speaking, justified in bringing the relationship of master and servant to an end when he did, the employer went about it harshly, oppressively or unfairly. The distinction is regarded as relevant to the quantification of the compensation to which the employee may be entitled under s23A(1)(ba). It would appear that the “loss or injury” within the meaning of that subsection is invariably assessed differently, depending on whether the Commission concludes that the employee should not have been dismissed at all, or whether it concludes that it was only the manner of dismissal which was unfair. See, for example, WA Access Pty Ltd v. Vaughan (2000)81WAIG373.”
148 The role of procedural fairness in unfair dismissal cases was also the subject of consideration by the Industrial Appeal Court Shire of Esperance v Mouritz (1991) 71 WAIG 891. In that case, the Court (Kennedy, Rowland and Nicholson JJ) considered that whilst the procedure adopted in effecting a dismissal may be significant, that is not the only consideration and a breach of procedural fairness alone, will not entitle a claimant to a remedy. Emphasis is laid on the broad discretion given to the Commission in dealing with such claims under s 26(1) of the Act. The Commission must in my opinion, in dealing with these issues, necessarily balance any procedural defects in a particular dismissal circumstance, with the substantial merits of the employer’s decision.
149 Whilst counsel for the respondent referred, in dealing with procedural fairness issues, to the decision of the Full Bench in The Department of Education and Training v Peter Hans-Weygers (2009) 89 WAIG 267, in my opinion, some caution needs to be adopted when considering relevant administrative law principles of natural justice and procedural fairness arising in a public sector employment context, pursuant to a specific statutory scheme, and transposing those principles to claims under s 29(1)(b)(i) of the Act.
150 In my view, the relevant propositions as outlined in Shire of Esperance are still authoritative, to the extent that the stare decisis doctrine has any application in this jurisdiction, given the terms of s 26(1) of the Act.
151 Whilst counsel in their submissions addressed some of the relevant principles in relation to summary dismissal for misconduct, it is important to keep in mind that the applicant was not dismissed in the exercise of this common law right. Rather her employment was terminated on notice, albeit by payment in lieu thereof.

Implied Duties
152 As contracts of employment are a species of contract, the general common law principles applicable to contracts will have application. This is subject to the particular features of employment relationships, particularly their personal character that will impact upon the implication of terms into contracts of employment.
153 However, the principles applicable to the implication of terms generally, apply no less to employment contracts as any other kinds of contract: BP Refinery (Westernport) Pty Ltd v Hasting Shire Council (1977) 52 ALJR 20; Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337.
154 It is well settled that as part of the implied duties of an employee at common law, there exists an all encompassing obligation of fidelity and good faith. A classic exposition of this obligation is found in Blyth Chemicals v Bushnell (1933) 49 CLR 66 where Dixon and McTiernan JJ said at 81-82:
“Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal…But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as the future conduct arises.”
155 It is a breach of this obligation, and the maintenance of trust and confidence by the employer that goes with it, which the respondent refers to and relies upon in this case.
156 A more controversial issue is that associated with what is said to be the implied term of mutual trust and confidence existing in an employment relationship.
157 Whilst the existence of this duty of mutual trust and confidence was raised by the respondent in its amended notice of answer and was the subject of submissions by the parties, in the final analysis, little reliance seems to be placed upon it and I will deal with it only in passing.
158 The existence of such an implied contractual obligation is said to give rise to the proposition that as part of the implied contractual duty, an employer will not “without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”: Woods v WM Car Services (Petersborough) Ltd [1981] ICR 666 per Browne-Wilkinson VC. The implied term of mutual trust and confidence, has been more recently considered and adopted in a line of United Kingdom cases, commencing with Malik v Bank of Credit and Commerce International SA (in liq) [1998] AC 20.
159 To date in Australia, the High Court has not decided authoritatively whether such a duty should be regarded as a part of the Australian common law with regard to employment contracts. A number of first instance judgements and some observations have been made by appellate courts, on the existence of such a duty but the issue seems far from settled.
160 Recently, the Federal Court in a series of first instance judgements has given consideration to the existence of the implied duty of trust and confidence in Australian law and doubted its existence. In Van Efferen v CMA Corporation Limited [2009] FCA 597 Tracey J referred to this issue in the context of a pleaded cause of action based on a claim for damages for a breach of the implied duty of trust and confidence. This was founded upon the decision of Rothman J in Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104; (2007) 69 NSWLR 198.
161 In considering this issue, Tracey J at pars 80-85 said as follows:
80. “The question of whether or not such terms may be implied in contracts of employment is one of some controversy on which the High Court has yet to make a definitive pronouncement: see Riley, J, “The Boundaries of Mutual Trust and Good Faith” (2009) 22 Australian Journal of Labour Law 73; Riley, J, “Mutual Trust and Good Faith: Can Private Contract Law Guarantee Fair Dealing in the Workplace” (2003) 16 Australian Journal of Labour Law 1. Given my findings in relation to the breach of clause 2.10 it is not necessary that I embark on a detailed examination of this alternative basis of Mr Van Efferen ’s claim. I would, however, venture some short observations.
81. Mr Van Efferen  submitted that the terms ought to be implied, not in the AWA to which he was a party, but in the common law contract of employment which was evidenced by his acceptance of the letter of offer dated 27 July 2006. That letter recorded very few terms of the contract. It dealt mainly with the protection of CMA’s intellectual property and its commercial secrets. It was to be read in conjunction with the AWA.
82. In Russell Rothman J held that both terms should be implied in contracts of employment. In that case they did not avail the employee because, although they had been breached, the plaintiff had suffered no damage by reason of the breaches. On appeal, the New South Wales Court of Appeal went no further than holding that such terms may be implied in contracts of employment. Basten JA was (at [2008] NSWCA 217; (2008) 176 IR 82 [32]) inclined to treat the two implied terms as a single obligation. He considered (at [33]) that there was uncertainty as to the “scope and extent of the implied duties.” Campbell JA was prepared to assume, without deciding, that an employer owed implied contractual obligations of the kind relied on by Mr  Van Efferen . Giles JA (at [1]) was also prepared to assume rather than determine that such implied terms were incorporated in contracts of employment.
83. In this Court single judges have adopted a more guarded approach. In McDonald (at 398-400) Buchanan J reviewed the authorities relating to the mutual trust and confidence term. He expressed disquiet about the notion that such a term could have escaped judicial notice for so long. More significantly he queried whether such a term could be implied consistently with the principles expounded by the High Court in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283. I respectfully share his Honour’s reservations.
84. In Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1678; (2005) 226 ALR 114 at 156-157 Kenny J held that, in Australia, a term of good faith “does not apply to employment contracts.” On appeal the Full Court did not need to express a view on her Honour’s finding: see Walker v Citigroup Global Markets Australia Pty Ltd [2006] FCAFC 101; (2006) 233 ALR 687 at 708  [86].
85. As a single judge I would follow the decisions of other single judges unless I considered them to be clearly wrong: see Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. Although Buchanan J’s observations in McDonald were obiter I nonetheless consider them to be correct. Kenny J’s ruling in Walker forms part of the ratio of her decision in that case. I do not consider either decision to be clearly wrong. Had it been necessary I would have followed them.”

162 In McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375 Buchanan J dealt with this issue, again in the context of a claim for damages for a breach of such a term pleaded as being implied into the applicant’s contract of employment in that case. After considering some of the Australian authorities dealing with the issue, most recently Russell, his Honour observed at pars 90-93 as follows:
“90 The tests for the implication of a term into a contract are usually accepted to be those stated in B.P. Refinery (Westernport) Pty Limited v Hastings Shire Council [1977] HCA 40; (1977) 180 CLR 266 at 283 – namely that:
‘... for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.’
(See also Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 at 347.)
91 I confess to some disquiet about the notion that the suggested implied term (which has apparently lain dormant for so long and is now the subject of so much contentious debate) meets the conditions stated in (2) and (3) above. However that may be, in many cases in which the suggested term is sought to be invoked it will collide to some extent or another with express terms of the contract of employment. In the present case, it would be of no avail to suggest that such an implied term restricted a right of termination in accordance with the express terms of the contract of employment.
92 Ms McDonald  relies upon the suggested existence of such a term to support a claim for damages arising from the circumstances of her dismissal. She alleges that it was distressing and humiliating. Evidence which I set out earlier is relied upon to support this proposition. The argument is contrary to the analysis in Burazin. For so long as Addis remains good law in Australia, any such argument cannot lead to the grant of relief.
93 There was, in any event, no support in the present case for any claim for damages for distress. There was no psychiatric evidence. There was no evidence of any kind except for Ms McDonald ’s assertions of immediate and continuing distress. Termination of employment is bound always to bring disappointment, distress and perhaps humiliation. That has not hitherto, in Australia, been regarded as a ground for general damages.”
163 Very recently the Full Court of the South Australian Supreme Court in State of South Australia v McDonald [2009] SASC 219 came to the conclusion that on the facts of the appeal before it, the term of mutual trust and confidence was not necessary to imply, given the statutory and regulatory arrangements applying to the employee’s contract of employment in that case. The wider issue of the implication of the term generally into contracts of employment in Australia was left to another occasion.
164 Whilst the existence of such an implied term has been averted to and tacitly accepted in a number of decisions of the Full Bench of the Commission including some of which I was a member, and by the Industrial Appeal Court, the issue has yet to be raised fairly and squarely for consideration at appellate level: Bone Densitometry Australia Pty Ltd T/as Bone Densitometry v Lenny (2006) 86 WAIG 1485; Matthews v Cool or Cosy Pty Ltd (2003) 83 WAIG 2749; Smith v Tungsten Group Pty Ltd (2004) 84 WAIG 1311; Brown v University of Western Australia (2004) 84 WAIG 189.
165 Given that the issue has not been pressed by either party in this case, it is not necessary to finally decide the issue for present purposes. However, based on recent developments in the case law, I do have some reservations as to whether such a term should be implied, having regard to the established tests for the implication of terms into contracts generally. In my opinion, this issue is best left to be considered on another occasion if and when the existence or otherwise of such an implied term directly arises.

Consideration
166 As with many cases of the present kind, the evidence adduced on behalf of the applicant and the respondent, as to the central matters in issue, is diametrically opposed.
167 In relation to the Ovens Allegations and the Otter Allegations, the applicant denies the substance of them and says the relevant events complained of did not occur. This necessarily involves the resolution of the conflict on the evidence which ultimately comes down to an assessment of the credibility of the witnesses as they gave their evidence.
168 The major conflict on the evidence arose between the evidence given by the applicant, and by Ms Ovens and Ms Otter. It was common ground that in relation to the Ovens Allegations concerning the stairwell incident, no other person was present at the time.
169 In relation to the Otter allegations, the central witnesses involved were again the applicant and Ms Otter, although to an extent the alleged presence of Ms Anderson is a relevant consideration. Additionally, consideration needs to be given to the evidence given by Ms Bifield concerning the events that took place on the Monday immediately following the ALP State Conference.
170 In relation to the McCallum Allegations as noted above, the factual circumstances were not seriously in contest. I have previously said that the De Souza Allegations were raised and dealt with more by way of background context, and were not specifically identified by the respondent in its decision to terminate the applicant’s employment.
171 During the course of the hearing of this matter, I carefully observed all of the witnesses giving their evidence. In relation to the central allegations, that being the Ovens Allegations and the Otter Allegations, to the extent that the evidence of the applicant and respondent was in conflict, I prefer the versions of the events as outlined by the respondent’s witnesses. I reach this conclusion for the following reasons.
172 In relation to Ms Ovens, I generally found her to be a compelling witness. Her account of the relevant events as they took place on or about 15 October 2008 firstly in the stairwell of the respondent’s building, and then at the “pod” in the office area used by the hospitality team, was clear and cogent and was not substantially disturbed in cross-examination.
173 The account that Ms Ovens gave of the conversation in the stairwell on the day in question was detailed as to the content and context of the conversation. There were seven key points that Ms Ovens raised in her recollection of the conversation which were expressed in some detail. I also find it to be of some significance that the content of the stairwell conversation between Ms Ovens and the applicant was reduced to writing a relatively short time after its occurrence, on or about 20 October 2008, when Ms Ovens provided a note of it to Mr Kelly. A copy of that note was attached to a letter dated 31 October 2008 sent to the applicant.
174 There was no cogent basis advanced on the evidence as to any motive for Ms Ovens to concoct such an elaborate conversation and to report the same to Mr Kelly. I also find quite persuasive, the evidence given by Ms Pullen as to this matter. I found Ms Pullen to be a credible witness and whilst there was some evidence of an earlier degree of tension between her and the applicant following the applicant’s personal difficulties in mid 2007, I am not persuaded that formed any reasonable basis for Ms Pullen’s evidence to be deliberately coloured against the applicant.
175 It is of some significance that Ms Pullen corroborated Ms Ovens’ versions of the events to the effect that Ms Ovens saw her shortly after the incident in the stairwell and recounted it broadly to her. Whilst this matter was not known to Mr Kelly at the time, in my opinion, it adds to the credibility of Ms Ovens’ testimony.
176 An attack on Ms Ovens’ credibility was mounted by Mr Heathcote because of the prior disciplinary action taken by the respondent against her for dishonesty in the workplace. I have carefully considered this matter and the circumstances of this incident as recounted in the evidence of Ms Shay. I have taken into account Ms Ovens’ explanation for her conduct and the remorse and sense of shame she recounted in her testimony. I am satisfied on the evidence of Ms Ovens that she paid a price for her lack of judgement through a first and final warning, which took into account the circumstances of the incident.
177 I am not persuaded that this prior event means that Ms Ovens’ reliability generally is to be questioned.
178 In connection with the Ovens Allegations, I refer to the later conversation between the applicant and Ms Hoover, from the respondent’s national office. I found Ms Hoover to be an impressive witness. She was largely at arms length from the events as they were unfolding in the WA Branch involving the applicant. Her evidence was she had little knowledge of the specific circumstances surrounding the investigation process into the applicant’s conduct. Ms Hoover’s evidence as to the coffee shop conversation with the applicant, where the applicant without prompting, expressed her dissatisfaction at her perceived treatment by the respondent’s management, and in particular, her lack of confidence in the management, is telling.
179 In my opinion, the tenor of that conversation is consistent with the broad thrust of the applicant’s dissatisfaction and antagonism towards the respondent’s management in response to events that she perceived had wronged her. In my view, there is a consistent theme in relation to these matters, which lends itself to accepting the version of the events as outlined by the respondent’s witnesses as opposed to that of the applicant.
180 I also find it of some significance, that Ms Hoover was requested, and she agreed albeit reluctantly it seems, to put her recollection of that coffee shop conversation in writing and provide a copy of it to Mr Kelly which was tendered as exhibit R10. I note that the written account of the conversation was some two months after the relevant events however, from a perusal of exhibit R10 it is broadly consistent with the oral evidence given by Ms Hoover in relation to the relevant events.
181 In my opinion it is of some significance also, that both Ms Ovens and Ms Hoover have compiled written accounts of their recollection of events, which accounts were provided to the respondent in support of the assertions made. I also find that the evidence of Ms Ovens to the effect that she relayed this incident to Mr Kelly on the occasion of her leaving the respondent, and the fact she had not done so prior because of concerns about retribution, was also consistent with a broad theme as to this issue about which a number of the witnesses gave evidence.
182 Likewise, I found Ms Otter’s evidence to be inherently credible as to the events about which she testified. Again, there was nothing on the evidence to suggest any underlying motive as to why Ms Otter would fabricate the allegation made by her that the applicant called her an “arse-licker” at the ALP State Conference in June 2008 and that she was offended by that conduct. I have also given consideration to the issue of the delay in this matter being raised with Mr Kelly. The reason being possible retribution from Ms Anderson or the applicant and the fact they were close friends. This evidence and the explanation given to Mr Kelly at the time, was also generally consistent with the theme referred to above about fears in this regard.
183 I find on the whole of the testimony, such an explanation to be credible and it does not cause me to form the view that Ms Otter’s evidence, for that reason, is to be regarded as unreliable. I also note in passing, that the substance of the conversation between Ms Otter and Mr Kelly regarding these matters was reduced to writing and provided to Mr Kelly, a copy of which was tendered as exhibit R6. This communication included matters other than the “arse-licker” comment and generally referred to derogatory comments made by the applicant and Ms Anderson about the senior management of the respondent.
184 I found Ms Bifield to be a forthright and credible witness. She gave evidence that she could not recollect the “arse-licker” comment being made during the conference but did recollect it being made by the applicant to Ms Otter on the Monday immediately following it. This evidence in my view is of some significance. Whilst Mr Kelly was not aware of that matter at the time, Ms Bifield’s testimony does go to the issue that a comment of that nature was made by the applicant to Ms Otter. Importantly also, there was no indication on Ms Bifield’s evidence, that Ms Otter took the comment made by the applicant in a jocular or light fashion.
185 In relation to the McCallum Allegations, I also found the evidence given by Mr McCallum as to these matters to be inherently credible. As I have noted above, there was some acceptance of the complaint made by the applicant although she regarded it as a matter of context and being under stress at the time. The central thrust of the incident however is not in dispute.
186 Whilst not entirely necessary in view of the ultimate decision making process, I make some observations on the evidence given by Mr De Souza. I have some reservations about some aspects of Mr De Souza’s evidence. In particular I have reservations about Mr De Souza’s evidence in relation to the matter of his time keeping and the efforts undertaken by the applicant to record the incidents when Mr De Souza was late for work or not in attendance for work.
187 Mr De Souza was questioned in relation to the content of exhibit A8 which was a contemporaneous note kept by the applicant of occasions when Mr De Souza was either late or not in attendance at work and various conversations between the applicant and Mr De Souza about these matters. The extent that the evidence of the applicant and Mr De Souza was in conflict about these matters I prefer the evidence of the applicant. I accept the evidence of the applicant that Mr De Souza found the hotels campaign challenging and one he did not enjoy.
188 However, my reservations about aspects of Mr De Souza’s evidence do not cause me to reject his evidence in its entirety. I do not doubt Mr De Souza’s genuine sense of offence at some of the remarks made by the applicant about himself and others, and his sensitivity to some of the issues raised. Some of the matters raised in exhibit A9, about which there was considerable evidence, were also consistent with the testimony given by Ms Pullen and as contained in exhibit A10, concerning insensitive and critical remarks made by the applicant about co- workers and others.
189 Whilst I therefore do not reject Mr De Souza’s evidence as to these matters, I have reservations in concluding that the decision he made to leave the respondent’s employment in or about June 2008, was wholly motivated by the applicant’s conduct. It is open to infer and I do infer, that it was also influenced by the type of work he was undertaking at or around that time which he was not enjoying. That however, does not detract from the other body of evidence before the Commission, as to the applicant’s tendency at times to be abrupt and insensitive in dealings with others. This reflects a consistent pattern on the evidence.
190 I do not have any reason to doubt the overall veracity of the evidence given by Mr Kelly and Ms Smith as to the steps they took once the various allegations came to their attention and the respondent’s decision making process generally.
191 In relation to the evidence of Ms Anderson called on behalf of the applicant, I generally found her evidence to be credible, although much of it involved a recitation of her notes taken at various meetings as a support person on behalf of the applicant during the respondent’s disciplinary process. Ms Anderson was not present at the time of the Ovens Allegations and was said to be present at the time of the Otter Allegations.
192 Her evidence as to the “arse-licker” allegation simply was she did not recollect or hear any such comment made whilst she was with the applicant. Importantly her evidence was also to the effect that she was not with the applicant at all times during the ALP State Conference.
193 However, I do have some reservations as to one aspect of Ms Anderson’s evidence. That relates to her comments in a meeting involving the applicant and Mr Kelly in November 2008, when questions were being asked about whose copy of the De Souza Allegations were allegedly being passed around at the ALP Conference. As to this matter, I prefer the version of the events as advanced by Mr Kelly on his evidence.
194 When Ms Anderson said “no way” in relation to a question as to whether it was her copy passed around at the conference, this could not credibly be taken to be an assertion that she did not want to be questioned about matters arising on the investigation, as she said in her evidence. From a review of the meeting notes and the evidence of those in attendance, the timing and rhythm of the questioning and answers were such that it was a response to whether it was her copy of the document being passed around and not other issues.
195 Necessarily, my acceptance of the versions of events as outlined by Ms Ovens and Ms Otter in particular, regarding the central allegations, necessarily involves my rejection of the applicant’s denial of them. I have no doubt that the applicant felt wronged by the allegations made against her and that certainly by the time of the encounter with Ms Ovens in the stairwell of the respondent’s building, that she felt a considerable degree of animosity towards the senior management of the respondent.
196 I also found on occasions during the applicant’s testimony, that she was somewhat reluctant to make concessions against interest on even relatively inconsequential matters. On other occasions, the applicant had a tendency to not answer the specific questions put to her for example in relation to the passing around of the list of the De Souza Allegations at the ALP Conference and discussions with Ms Smith at various times, as a part of regular work meetings, about her staff management skills.
197 Therefore on the whole of the evidence I am satisfied and I find that as a Lead Organiser, the applicant was a member of the respondent’s leadership group and involved in the strategic direction of the union. The Lead Organiser position is one entailing a very significant degree of trust and confidence by the employer as reflected in the criteria for appointment in the respondent’s terms and conditions of employment set out above.
198 I am also satisfied and I find that the position of Lead Organiser at the respondent is a crucial one for the purposes of the success of the respondent’s campaigning and the motivation and leadership of Organisers. Such officers are required to display high standards at all times.
199 I am also satisfied on the evidence and I find that the respondent, upon proper grounds, had, prior to the appointment of the applicant as a Lead Organiser, concerns as to the applicant’s staff management skills. Attempts were made to address some of those issues through participation in training and development in particular the LEAP programme, during which, the applicant demonstrated signs of progress in this respect.
200 I also accept on the evidence that the respondent, after some pressuring by the applicant over a period of time, took a decision to promote the applicant to a Lead Organiser position on probation, to give her the opportunity to demonstrate her capacity, skills and performance in such a position.
201 I accept on the evidence that at all times, the applicant was regarded as a very competent Organiser, and her capacity to engage with members and delegates was held in high regard. I am also satisfied on the evidence and I find that at all times, it is incumbent upon a Lead Organiser to demonstrate in particular to junior employees, the higher standards of conduct and behaviour as an occupant of a leadership position within the organisation.
202 On the evidence as a whole, and from my careful observations of the applicant whilst giving her evidence, I am satisfied that she could at times be blunt in her method of communication, and be insensitive to the way in which some of her treatment of others is received. I accept on the evidence that in many respects, some of the De Souza complaints involved such matters and there was a commitment to move forward and resolve these issues by providing the applicant with additional training, some of which started to occur.
203 I am also satisfied that the respondent on the evidence, gave the applicant the benefit of the doubt in relation to many of her short comings in this regard as alleged, and resolved to put those matters behind it. Reservations about the applicant’s team management skills persisted however.
204 I accept on the evidence and I find that the applicant did call Ms Otter an “arse- licker” in circumstances which caused Ms Otter offence. I am satisfied that as a more junior employee, it was completely inappropriate for the applicant to address Ms Otter in this fashion. I am also satisfied on the evidence and find that other derogatory remarks were made about the respondent by both the applicant and Ms Anderson at the ALP State Conference, some of which were contained in the written note prepared by Ms Otter and provided to Mr Kelly as exhibit R6.
205 In my opinion, on any view, it is not appropriate for a senior officer to address a more junior officer in such a fashion. Nor in my opinion, was it in any event, appropriate for senior officers at such a venue to discuss the senior management of the respondent in a derogatory fashion. Whilst some submissions were made during the course of argument that attendance of the ALP State Conference was not at the respondent’s workplace, in my view there was a sufficient connection between the applicant’s employment and attendance at the conference such that these matters could be properly taken into account by the employer: Hussein v Westpac Banking Corporation [1995] IRCA 147.
206 In relation to the Ovens Allegations, I am satisfied and I find that a conversation did take place on or about 15 October 2008 in the stairwell of the respondent’s premises between the applicant and Ms Ovens. I am satisfied that the content of the conversation was as largely outlined by Ms Ovens in her testimony and that in part, the applicant was highly derogatory of the senior management of the respondent to a more junior officer. Whilst technically, it may be said that at the time, the applicant was not discharging Lead Organiser duties, there was no serious contention put that the applicant was other than a senior officer of the respondent and had occupied that role for some time.
207 On any view, those observations in relation to the respondent’s management, and the other comments made by the applicant to Ms Ovens, constituted a challenge to the authority of the employer not only in quite abusive terms, but that she was also repudiating her obligations under her contract to work in a diligent fashion. In my opinion, such comments by a senior officer to a more junior officer clearly demonstrated a fundamental breakdown in the employment relationship. As it was subsequently demonstrated in the applicant’s conversation with Ms Hoover, a complete loss of confidence in the management of the respondent had occurred by in or about this time.
208 I also accept that the applicant spoke about Ms Anderson’s return from annual leave in the presence of Ms Corvi and Ms Ovens largely as outlined in Ms Ovens’ testimony. It is the case, and I accept, that the remarks made by the applicant could have been taken in one of two ways. They could have been taken in a derogatory sense towards the respondent. Alternatively, they could have been seen in a more neutral fashion, as simply an exclamation as to why Ms Anderson would return to work from annual leave if she had secured alternative employment. In my view both the versions of events were equally open. However in the context of all of the events as they were unfolding, it was in my opinion not inappropriate for the respondent’s management to regard the applicant’s comments as part of a consistent pattern of behaviour critical of it.
209 There was some evidence about the use of profane language in the respondent’s workplace from time to time. Whilst I accept that evidence, context is important and crucially so in this case. How words and language are used and to whom it is addressed and in what setting can be critical as to meaning and effect.
210 I am also satisfied and I find that in a conversation with Ms Hoover of the respondent’s national office, the applicant expressed negative sentiments towards the respondent and expressed her views that she was being unfairly treated and had lost confidence in the union senior management. In my opinion, as I have mentioned above, this conversation and the evidence about it given by Ms Hoover, was consistent with a theme of complaint by the applicant about the respondent and criticisms of her treatment generally and of senior officers of the respondent.
211 When taken as a whole, in conjunction with the Ovens Allegations, in my opinion, it was reasonably clear that by late 2008 the relationship between the applicant and the respondent had broken down to an irretrievable level. Indeed, this was illustrated on Ms Hoover’s evidence, when she asked the applicant why the applicant would remain in her employment if she was so disgruntled and lacking in confidence in the respondent as a consequence of the perceived wrong doing of others against her.
212 From all of the evidence I am also satisfied and I find that in particular Ms Ovens and Ms Otter and to a lesser extent Mr De Souza, felt apprehension about raising issues concerning the applicant’s performance and conduct, for fear of retribution against them.
213 As I have noted above, the substance of the McCallum Allegations are not really an issue and I am satisfied and I find that they occurred largely as Mr McCallum outlined them. I accept however, the applicant’s testimony that at the time, she was suffering from stress by reason of very difficult personal circumstances she was then experiencing. I also find on the evidence that at the time of these personal difficulties the respondent afforded the applicant considerable latitude in the performance of her duties as a Lead Organiser.
214 I am far from persuaded that the procedure adopted by the respondent, principally through Mr Kelly and Ms Smith, to enquire into and investigate the various allegations raised, was in some way improper, inadequate or flawed. I have said on previous occasions, that employers in matters such as these, cannot be expected to undertake investigations or relevant enquires, to the standards expected of the police or other investigatory agencies: Whelan v City of Joondalup (2004) 84 WAIG 2975. Additionally, the Commission is required to consider objectively, whether the procedure adopted by the employer in dismissing an employee was, in all the circumstances, reasonable and fair, based upon the material then before the employer.
215 In all the circumstances of this case, I am far from satisfied that a procedure which in all, ran from about June 2008 to the end of November 2008, could be regarded as anything other than fair. The decision to terminate the applicant’s employment could hardly be described as having been rushed. I have considered carefully all of the evidence of the very many meetings between the applicant and representatives of the respondent at which the various allegations were raised and put to her. Some of those were put in writing and some not.
216 There is of course no requirement that allegations be put in writing. The law simply requires that a person who may be adversely affected by a decision, be given every reasonable opportunity of answering the relevant allegations.
217 I am also well satisfied that the applicant was given ample time to consider her responses to the various allegations and as to her future within the organisation. I am satisfied on the evidence in particular of Mr Kelly and to a lesser extent Ms Smith that all reasonable steps were taken to investigate the complaints raised against the applicant. I am also satisfied that the applicant was given every reasonable opportunity to suggest who ought to be spoken to regarding the various allegations made against her and that she was not able to add to those that Mr Kelly had approached as a part of his enquiries.
218 Whilst considerable significance was based upon the fact that Mr Kelly did not speak with Ms Anderson about the Otter Allegations, I am not persuaded on all of the evidence that that failure was fatal to the process undertaken by the respondent. Firstly and reasonably, Mr Kelly took at face value Ms Anderson’s request that she not be questioned about the issues arising concerning the applicant. Secondly, she was acting as the applicant’s support person during the course of the disciplinary process and Mr Kelly not unreasonably, had reservations about engaging with her for that reason. Thirdly, from my observations of Ms Anderson giving her evidence, she did not strike me as a person unwilling to come forward if she felt strongly about a particular issue.
219 On the whole, had Ms Anderson wished to raise any particular matters, whether about the Otter Allegations or otherwise she could have. In any event however, as to the “arse-licker” allegation, as noted above, it was Ms Anderson’s evidence that she did not hear such a comment, not that she was with the applicant at all times and such a comment was never made. Moreover, in my view, Mr Kelly’s acceptance of Ms Otter’s version of the events, in the overall circumstances as presented to him was not unreasonable. This is all the more so, when taken in the context of the other matters that were coming to light at around that time concerning the applicant’s conduct and behaviour.
220 I am also satisfied that on several occasions during the course of meetings with the applicant, particularly towards the end of the disciplinary process, the applicant was informed by Mr Kelly that the respondent regarded the Ovens and Otter Allegations seriously enough, as to warrant consideration of termination of employment. I simply do not accept that the applicant could have been under any misapprehension as to this matter by this time. Importantly, as I have mentioned above, this was also the evidence of Ms Anderson, who was at all material times, acting as the applicant’s support person in the various disciplinary interviews and was present at the time when these statements were made.
221 There was some suggestion during oral argument and in the written submissions from the applicant that the applicant’s workers compensation claim played a role in the respondent’s decision to terminate the applicant’s employment. I am not persuaded that this was the case based on the evidence before the Commission.
222 In the final analysis, the relevant evidence in relation to the various allegations raised against the applicant cannot be viewed individually or in isolation. In particular, the Ovens, Otter and McCallum Allegations, supported by the evidence of Ms Hoover, evidenced in my opinion, a progressive breakdown in the working relationship between the applicant and the respondent. In my opinion, there was ample material from which the respondent properly and reasonably formed the view that it no longer could hold the trust and confidence in the applicant, as a necessary ingredient in the employment relationship, particularly between a senior employee and the employer, and given the nature of the employment in this case.
223 I am also satisfied that despite submissions to the contrary, that the applicant’s terms and conditions of employment did permit the respondent to terminate the applicant’s employment by payment in lieu of notice. The applicant’s original letter of appointment as an officer of the respondent dated 15 October 2005 and tendered as exhibit A2, contained the following “The LHMU Conditions of employment are available for all staff on the intranet.” A copy of the LHMU National Conditions of Employment consolidated to June 2008, was tendered by consent as exhibit R18.
224 Whilst there seemed to be some conjecture raised by counsel for the applicant during the course of closing addresses as to the status of this document, I accept that for present purposes it reflected the applicant’s terms and conditions of employment. In particular I note clause 20 dealing with termination of employment which provides that :
“the employment of a weekly or part-time employee may be terminated by a minimum of one week’s notice on either side which may be given at any time or by the payment by the employer or forfeiture by the employee of a week’s pay in lieu of notice. This shall not affect the right of the employer to dismiss an employee without notice in case (sic) of an employee guilty of serious misconduct. Where relevant awards (howsoever described) in a state or territory prescribe further incidental obligations or entitlements with respect to termination of employment then those provisions shall also apply.”
225 While the giving of one week’s notice now must be modified by the operation of statute as contained in s 661 of the Workplace Relations Act 1996 (Cth) (“the WR Act”) the terms of clause 20 of the general conditions are sufficient to overcome the difficulties highlighted by the High Court in this regard in Sanders v Snell (1998-1999) 196 CLR 329 at 337.
226 It is the case of course that nothing in s 661 of the WR Act displaces the common law as to an implied term of reasonable notice: Stewart v Nickles [1999] FCA 888. In my opinion, whilst the matter was not argued to any great extent, I do not regard five weeks notice in the case of the applicant’s employment, as being inherently unreasonable.
227 Having regard to all of the circumstances of this case, I am not persuaded that the reliance by the respondent on the applicant’s conduct as referred to in the letter of dismissal of 5 December 2008, in order to terminate the applicant’s employment, or the process it engaged in to investigate the various allegations, constituted an abuse of its lawful right to do so.
228 I now turn to consider a final issue that arises on the evidence and submissions in this case, that being the dismissal of the applicant whilst she was on annual leave.

Dismissal on Annual Leave
229 The second of the two issues raised by the Commission with counsel for the parties during the course of the hearing, is whether anything turns on the fact that it appears common ground that the dismissal of the applicant effective 5 December 2008 took place whilst the applicant was on annual leave. From the evidence before the Commission, the applicant testified that she was due to commence leave on 1 December 2008 and return from leave on 1 February 2009, a period of two months. It was whilst she was on her first week of annual leave, that she received the letter from Mr Kelly terminating her employment effective 5 December 2008 by payment of five weeks salary in lieu of notice.
230 The issue that arises in this circumstance is whether the dismissal by the respondent whilst the applicant was on annual leave, constituted a lawful exercise of its contractual right. There is good authority in this jurisdiction to the effect that termination of employment cannot be effective during a period of annual leave under an award: CW and BR McSharer t/as Hillview Nursing Home v Hospital Employees Industrial Union of Workers WA (1975) 55 WAIG 1545.
231 In his case the Industrial Appeal Court, on an appeal from a decision of an Industrial Magistrate, held that a purported termination of employment by the giving of notice to an employee which notice was to expire prior to the expiration of a period of annual leave under an award of this Commission was unlawful. Burt J (Wickham J agreeing) in dealing with this issue said at 1546 as follows:
“Much argument was addressed to us upon the question whether consistently with the award provisions which I have set out, the appellants could have given notice of termination of the employment during the currency of the annual leave. But that I think is not an accurate statement of the question raised by the facts. The question, as it seems to me, is whether the appellants could consistently with the award give notice terminating the worker’s employment as from a date falling within the period of that worker’s annual leave. The question is not whether they could have given notice terminating the employment as from 21st February, which they did not purport to do, but whether they could give notice terminating the workers employment as from 13th of February 1974, which is what they did purport to do.
In my opinion the effect of the annual leave provisions in operation is that the contract of service continues throughout the period of five weeks, this being a notion conveyed by the word “leave” and by the expression “on full pay”. This is something to which in the terms of the clause the worker is entitled. The right to terminate the employment on one week’s notice should be read subject to Clause 9(1)(b) and to the entitlement which that clause when it operates creates, and hence in my opinion it should be held that an employer cannot give notice which in its terms would terminate the employment within the period of annual leave. The notice given in the instant case purported to do this and in my opinion it was an ineffective notice. See Automatic Fire Sprinklers v Watson (1946) 72 CLR 435 at p 467 per Dixon J. No further or effective notice was given and the appellant’s in my opinion were correctly convicted of failing to pay the worker one week’s pay in lieu of notice. It is unnecessary to decide whether the appellant’s could have given notice which would have expired at the end of the leave period. That question does not arise and can wait another day.” (My emphasis)
232 Wallace J delivered a separate judgement coming substantially to the same conclusion.
233 The principle in Hillview was adopted and affirmed in a further decision of the Industrial Appeal Court in Amalgamated Metal Workers and Shipwrights Union of Western Australia v Multicon Engineering (WA) Pty Ltd (1980) 60 WAIG 1055. Furthermore, the principle stated in those two decisions has been adopted and applied by the Full Bench of the Commission in relation to a dismissal purportedly effected whilst an employee was on sick leave: John James Reynolds v Swift and Moore Pty Ltd (1994) 74 WAIG 861.
234 On the facts of that case, it was held that the appellant’s dismissal whilst he was on sick leave, by payment of one month’s pay in lieu of notice, was, on the authority of Hillview and Multicon Engineering, unlawful and invalid and rendered the dismissal in that particular case, unfair. The Full Bench held at 864-865, that the dismissal purportedly effected whilst the employee was on sick leave constituted the interference with a vested right, the same as the vested right to long service leave or annual leave.
235 Mr Hooker suggested that the decision in Hillview ought now be called into question by reason of the decision of the High Court in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410. Counsel submitted that in Byrne, the majority judgment of Brennan CJ, Dawson and Toohey JJ, favoured the minority judgement of Latham CJ and Starke J in Automatic Fire Sprinklers v Watson (1946) 72 CLR 435, to the effect that even in cases where a dismissal may be unlawful, that does not invalidate the decision and render it a nullity. In this circumstance, the dismissed employee is left to their remedies under legislation such as the Act, or the bringing of a common law action for damages. It is on this basis that it was submitted that the judgement of Burt J in Hillview should now be called into question, presumably because of his Honour’s reference to Automatic Fire Sprinklers.
236 I agree that the majority view in Byrne should now be seen to prevail over the views of Dixon J in Automatic Fire Sprinklers. That is a dismissal effected unlawfully generally puts an end to the employment relationship and does not generally render the dismissal invalid or a nullity. To the extent that the Full Bench in Reynolds concluded that the appellant’s dismissal was rendered a nullity in that case, because he was dismissed while on sick leave, must, with respect, be considered as wrongly decided on this point in view of the analysis of the majority in Byrne.
237 However, that does not mean in my opinion, that the broad proposition established in Hillview and the cases to which it referred, is to be now regarded as overturned. The primary issue determined in these cases is that a period of leave conferred by an award and being enjoyed by an employee at the time of a dismissal, is a vested right that cannot be taken away by an act of termination of employment, that interferes with this entitlement. The vested right to the entitlement is independent of the continued existence of an employment relationship.
238 It was also accepted in Byrne as good law in Australia, that despite the termination of the employment relationship, a contract of employment may still continue until the repudiation caused by the wrongful dismissal, is accepted by the employee and the contract is brought to an end. Although it must also be said that given the nature of an employment contract and the requirement to perform services for wages or salary, not much may turn on this in the majority of cases.
239 Indeed, the possible continuation of an employment contract, despite the ending of an employment relationship, recognised by the Court in Byrne and also in Automatic Fire Sprinklers, is quite consistent with the continued existence of an entitlement that has become fully vested under a contract of employment. That this is so is self evident given the terms of s 29(1)(b)(i) of the Act dealing with the recovery of denied contractual benefits and s 83 of the Act dealing with the recovery of award and industrial agreement entitlements.
240 In my opinion, there is nothing in the judgment of the Court in Byrne, that means a dismissal effected while an employee is on a period of accrued and approved leave, as a vested right, cannot be both unlawful in terms of constituting a breach of an obligation under a statute or an industrial instrument and possibly as a consequence, also being unfair.
241 For these reasons in my opinion, the propositions outlined in Hillview and Multicon Engineering, remain good law and should be regarded as authoritative in relation to similar circumstances.
242 In this case, it is the position that the applicant was not bound by an award or industrial agreement. The entitlement to annual leave which she was enjoying at the time of her dismissal springs from the LHMU National Conditions of Employment which provide at Clause 16.1 annual leave for officials of six weeks per annum. Additionally, it is also the case that the annual leave entitlements prescribed in the Minimum Conditions of Employment Act 1993 (WA) are implied as a minimum condition, into a contract of employment, not governed by an award: s 5 and Division 3.
243 In my opinion, regardless as to whether the entitlement to annual leave arises under an award, industrial agreement or common law contract of employment, in any of those cases, the entitlement to leave constitutes a vested right which cannot be interfered with unless there are clear words in the contract of employment or industrial instrument to the contrary. There is nothing on a plain reading of clause 20 of the LHMU National Conditions of Employment, dealing with termination of employment, or other terms, which suggest that the proposition just stated has no application in this case. Nor is there any provision in the MCE Act that would alter the position.
244 There was little evidence before the Commission in relation to the applicant’s annual leave entitlements at the time of her dismissal. To avoid the time and cost to the parties of re-listing the matter, I instructed my Associate to contact the parties to clarify by consent, the applicant’s annual leave arrangements and the payments made to her on dismissal. Clarification was sought as to the applicant’s date of commencement and expected date of return from leave and the date up to which the applicant’s annual leave accruals were paid.
245 That enquiry reveals that the applicant went on annual leave in 1 December 2008 and was due to return from annual on 2 February 2009. The applicant was paid all of her accrued entitlements on termination including that for accrued annual leave and annual leave loading in the total sum of $15,259.46 representing some 341 hours of accrued annual leave and loading. That being so, in my opinion the dismissal of the applicant, whilst she was on approved annual leave, in accordance with her contract of employment, did not constitute an interference with a vested right and it was not unlawful. The applicant was not deprived of a vested right to which she was entitled on the termination of her employment.
246 In any event, it is not in every case that an unlawful dismissal will also constitute an unfair dismissal. As I have said above, all of the relevant circumstances need to be taken into account: Newmont Australia v The Australian Workers Union (1988) 68 WAIG 677. The degree of any unlawfulness may be a relevant consideration as to whether such a dismissal is also unfair for the purposes of s 29(1)(b)(i) of the Act.

Conclusion
247 For all of the foregoing reasons the application is dismissed.