WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Deborah Mills

APPLICANT

-v-

Shire of Broome

RESPONDENT

CORAM Commissioner J L Harrison

HEARD Tuesday, 9 February 2010, Wednesday, 10 February 2010, Thursday, 11 February 2010, THURSDAY 18 march 2010, friday 19 march 2010

DELIVERED wednESday, 30 june 2010

FILE NO. U 8 OF 2010

CITATION NO. 2010 WAIRC 00389

Catchwords Termination of employment - Harsh, oppressive or unfair dismissal - Summary dismissal – Lack of procedural fairness – Applicant unfairly dismissed – Application upheld – Compensation ordered - Industrial Relations Act 1979 s 29(1)(b)(i)

Result Upheld and Order Issued

Representation 

Applicant Mr M Aulfrey (of Counsel)

Respondent Mr S White (as Agent)

Reasons for Decision

1         On 12 January 2010 Deborah Mills (“the applicant”) lodged an application pursuant to s 29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”) against the Shire of Broome (“the respondent”) claiming that she was harshly, oppressively or unfairly dismissed in a summary manner on 23 October 2009.  The respondent denies that the applicant was unfairly dismissed and also maintains that the applicant was not summarily terminated as she was given a payment in lieu of notice some weeks after her termination.

Background

2         It was common ground that the applicant was employed by the respondent as the Centre Manager of the respondent’s Broome Recreation and Aquatic Centre (“BRAC”), she commenced employment with the respondent in this position on 15 December 2008 and she was terminated on 23 October 2009.  Throughout her employment with the respondent the applicant’s terms and conditions of employment were governed by the Shire of Broome Inside Staff Union Collective Workplace Agreement 2007 (“the 2007 Agreement”).

Extension of Time

3         As this application was lodged out of time a hearing was held on 21 January 2010 in relation to whether or not the matter should be accepted and at the end of the hearing the parties were advised that the application would be accepted out of time and reasons would issue at a later date.  Following are my reasons for accepting this application out of time.

4         Section 29(2) of the Act requires that applications pursuant to s 29(1)(b)(i) of the Act be lodged within 28 days after the day on which an employee is terminated.  As this application was lodged on 12 January 2010 it is 53 days out of the required timeframe for lodging a claim of this nature.

5         The matter was listed for hearing to allow the parties to put submissions and give evidence as to whether or not this application should be accepted under s 29(3) of the Act.  Section 29(3) of the Act reads as follows:

“(3) The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so.”

6         In reaching a decision in this matter as to whether it would be unfair not to accept this application out of time I take into account the relevant factors outlined in the Industrial Appeal Court decision in Malik v Paul Albert, Director General, Department of Education of Western Australia (2004) 84 WAIG 683 at 686, as follows:

“"1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended.  The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant.  It will show that the decision to terminate is actively contested.  It may favour the granting of an extension of time.

3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion."”

7         When considering the issue of fairness, Heenan J further observed in Malik v Paul Albert, Director General, Department of Education of Western Australia (op cit) at 692 the following:

“I accept that the concept of fairness is central to a decision whether or not to accept an application under s 29 which is out of time but, with all respect, I cannot accept the submission which was put in this case that it is fairness to the applicant which is either the sole or principal concern.  Fairness in this situation involves fairness to all, obviously to the applicant and to his or her former employer, but also to the public interest and to the due and efficient administration of the jurisdiction of the Commission which should not be burdened with unmeritorious stale claims.”

8         In applying these guidelines I am mindful that there is a 28 day timeframe to lodge an application and the Commission’s discretion in relation to a matter of this nature should not be exercised unless it would be unfair not to do so.

Applicant’s evidence

9         The applicant gave evidence that she was denied procedural fairness given the manner of her termination, she maintained that the respondent did not follow the disciplinary procedure set out in the 2007 Agreement when terminating her and the applicant maintained that the respondent did not have a valid reason for terminating her.  The applicant also claims that she was terminated for undertaking her normal duties.  The applicant stated that she approached the Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (“the Union”) about her termination on 23 October 2009 and as she was unaware how quickly the Union would deal with her termination she sought advice from the Fair Work Ombudsman in Broome.  The applicant then lodged an application under the Fair Work Act 2009 (“the FW Act”) on 4 November 2009.  The applicant gave evidence that a conciliation conference was held at Fair Work Australia (“FWA”) on 27 November 2009 however the matter was not resolved.  The applicant stated that she was then contacted by the Union on 4 December 2009 and was advised that it had lodged an application in the Commission.

10      Mr Manuel Nascimento gave evidence that he is employed by the Union.  After the applicant contacted the Union on 22 October 2009 Mr Nascimento handled the applicant’s unfair dismissal and unpaid entitlements claim.  Mr Nascimento stated that he was unaware that the applicant had lodged an application alleging unfair dismissal in FWA until January 2010.  Mr Nascimento confirmed that in November 2009 he liaised with the Union’s Prosecutions Officer, Mr Michael Aulfrey about pursing the applicant’s claim in the Commission.

Respondent’s evidence

11      The respondent did not call any witnesses to give evidence, nor did it cross-examine the applicant or Mr Nascimento.

Applicant’s submissions

12      The applicant maintains that when she applied to FWA for relief for her unfair dismissal on 4 November 2009, she did not advise the Union at the time that she would make this application (application U 2009/9956).  The applicant argues that ss 725 and 732 of the FW Act explicitly prohibits the making of an unfair dismissal application elsewhere if a claim is before FWA and even if the Commission was the correct place to lodge an application claiming unfair termination she was unable to lodge an application of this nature in the Commission given that these sections of the FW Act precluded her from doing so.

13      The applicant argues that the delay within the Union office with respect to dealing with the applicant’s dismissal was due to relevant material, which was extensive, being located in Broome as well as the applicant residing in Broome.

14      The applicant recounted the history leading up to the lodgement of this application.  After the Union filed s 44 proceedings in the Commission on 3 December 2009 with respect to the applicant’s unfair dismissal and underpayments owing to the applicant a conciliation conference took place on 10 December 2009 and as the dispute remained unresolved the matter was set down for hearing in Broome in February 2010 (C 41 of 2009).  At this conference the issue of the Union’s eligibility to represent the applicant was raised by the respondent and the Commission directed that if the respondent had any issue with the Union’s capacity to represent the applicant under application C 41 of 2009 it could seek a further conference.  When the respondent’s representative objected to the Union’s capacity to represent the applicant under application C 41 of 2009 on 6 January 2010, on 7 January 2010 the applicant applied to amend the application to alter the applicant’s name to Ms Mills and the s 44 application be deemed to have been received as an application under s 29 of the Act.  After the Commission refused this request the applicant filed this application under s 29 of the Act on 12 January 2010.

15      The applicant argues that she has continued to prosecute her case for unfair dismissal since her termination and the respondent has been aware of this.  The applicant has also continued to prepare for the hearing in relation to this matter, including the notification of additional documents required by the applicant from the respondent, she has given her witness names to the respondent and the respondent has also continued to prepare for the hearing as it has produced a list of witnesses it proposes to call.

16      The applicant maintains that the expiry date for an application being made pursuant to s 29 of the Act passed during the period when she was prevented by the FW Act from making an unfair dismissal claim in the Commission.

17      As the respondent does not object to this application being accepted by the Commission the applicant argues that there can be little if any prejudice to the respondent in this matter proceeding if the respondent does not raise any such prejudice.  The applicant maintains that there is considerable prejudice to her should her application be disallowed due to it being out of time.  The applicant is preparing for the hearing and all of this work will be lost and the applicant’s right to try her matter before the Commission lost completely if the Commission deems the application to be out of time.

18      The applicant believes that her claim for unfair dismissal has merit and the respondent’s repeated departures from the disciplinary procedure as set out in the 2007 Agreement would itself justify the setting aside of the decision to dismiss (see Shire of Esperance v Mouritz [1991] 71 WAIG 891).  Additionally, the respondent’s decision to dismiss the applicant was harsh and was characterised by bias, she was dismissed even though she was performing her normal duties and the applicant has documentation and witness evidence to support her claims.

19      The applicant submits that it would be a travesty for the applicant’s case not to be heard at this stage with hearing dates set and the likelihood of placing the matter in an alternative forum extremely low.  It is also highly unlikely that her FWA application, now discontinued, would be permitted to be resumed or reopened should the Commission refuse to hear this application, given the requirements under the FWA that extremely exceptional circumstances are required to lodge an unfair dismissal outside the 14 day time limit.

Respondent’s submissions

20      The respondent does not oppose the Commission accepting this application which has been lodged outside of the required timeframe.

Findings and conclusions

21      On the issue of merit I find that on the evidence currently before me and in the absence of any evidence from the respondent to the contrary there may be substance to the applicant’s claim that the respondent did not have good reason to terminate her and that the respondent did not follow the proper procedures set down in the 2007 Agreement when effecting her termination.  Whilst I have not reached any conclusions about the issue of merit with respect to the applicant’s termination on the information currently before me it appears that the applicant has an arguable case.

22      This application has been lodged 53 days outside of the required timeframe which is a substantial length of time outside of the timeframe for lodging a claim of this nature.  I accept the applicant’s evidence that there was confusion as to the correct jurisdiction where she should lodge her application and this led to her lodging an application in FWA within the 14 day timeframe for doing so.  I accept that the Union was unaware that the applicant had lodged an application in FWA and it is also the case that under ss 725 and 732 of the FW Act an employee is prohibited from making an unfair dismissal application under another law including the Act when a similar claim is before FWA and I note that this application was not discontinued until 20 January 2010.  I find that once the issue of the Union’s capacity to represent the applicant under s 44 of the Act via the application lodged in the Commission on 3 December 2009 was raised by the respondent and subsequent to the respondent maintaining that this was an issue that required determination this application was lodged in a timely manner.  In the circumstances I find that the applicant has an acceptable reason for the delay in lodging this application.

23      I find that the prejudice suffered by the applicant would be greater than that suffered by the respondent if this application was not accepted by the Commission given the efforts made to date by the applicant to deal with her claim for unfair dismissal and the applicant would not have the opportunity to prosecute her claim, which I have found to be an arguable case.  No disadvantage was highlighted by the respondent in meeting this application because of the delay and I accept that there is no additional prejudice to the respondent given the delay in lodging this application as the respondent has been aware that the applicant would be contesting her termination since early November 2009 when she lodged an application in FWA.

24      When balancing the above findings and taking into account all of the relevant factors to consider in an application of this nature and when taking into account the issue of fairness to both parties I find that it would be unfair not to accept this application.  In reaching this view I take into account that there was an acceptable reason for the delay in lodging this application and I have found that the respondent would not be prejudiced any more than usual in allowing this application given that the respondent was aware very soon after her termination that the applicant would be contesting her termination.  I therefore find that in all of the circumstances it would be unfair for the Commission not to exercise its discretion to grant an extension of time within which to file this application and for these reasons an extension of time in order to lodge this application is granted.

25      An order to this effect issued on 22 January 2010.

Claim alleging unfair dismissal

Applicant’s evidence

26      The applicant gave evidence by way of a witness statement (Exhibit A1).  The applicant was employed by the respondent as the Centre Manager of BRAC from 15 December 2008 until 23 October 2009.

27      The applicant has worked in the leisure industry for 28 years.  In 1995 she completed an Advanced Certificate in Human Resource Management and the following year an Associate Diploma in Applied Science (Local Government).  The applicant then worked at a number of recreational facilities.  After completing a Bachelor of Business Marketing and Human Resource Management the applicant worked at the Town of Vincent for approximately two years and the applicant was employed by the City of Stirling at the Terry Tyzack Aquatic Facility before commencing employment with the respondent.

28      The applicant describes BRAC as a recreational facility which includes a pool, indoor stadium, function room, squash courts, outdoor tennis courts, outdoor basketball/netball courts, a skate park and two reserves.  It has an administration block, a small kiosk and a licensed venue and when BRAC was expanded into a recreational hub several community sporting groups relocated to BRAC.

29      The applicant stated that BRAC is not conducted on a profit making basis however it was her view that the cost to ratepayers of running BRAC should be minimised and the applicant maintained that this characterised the way in which she managed BRAC.

30      The applicant was initially managed by the respondent’s Manager of Recreational Services Mr Rod McGrath and he reported to the respondent’s Director of Community Development.  BRAC’s Operations Supervisor reported to the applicant and duty managers reported to the Operations Supervisor and at least one duty manager had to be present for BRAC’s pool to operate.  The applicant gave evidence that in order to streamline BRAC’s management structure she centralised the administrative duties undertaken by duty managers under the responsibility of the Customer Services Supervisor and she employed a casual duty manager to oversee bookings and this freed up duty managers to attend to direct customer queries and to be ‘on the floor’. The applicant stated that this change may have caused friction between her and some duty managers.

31      The applicant gave evidence that throughout her three month probationary period no formal complaints were made about her performance, nor was she the subject of any disciplinary processes.  The applicant’s probationary assessment should have taken place on 15 March 2009 however, this did not occur and her probationary assessment was completed at the end of May 2009.

32      The applicant gave detailed evidence about the specifics of what took place during her probationary review and some of the comments made by Mr McGrath and the respondent’s Manager of Human Resources, Ms Rebecca Irving about her performance.  When the applicant attended a meeting on 29 May 2009 with Ms Irving and Mr McGrath to discuss the probationary form filled out by her and Mr McGrath she raised a number of issues including the limited induction she was given when she commenced employment with the respondent and Mr McGrath’s lack of familiarity with BRAC’s operations and reporting mechanisms and the applicant claimed that feedback he gave her was confusing and reactive.  The applicant maintained that she was being micro managed, most of her ideas were not being implemented and she was only given autonomy when Mr McGrath was struggling to meet commitments he had made to BRAC’s user groups.  The applicant had concerns about the veracity of statements Mr McGrath made to senior management about her performance which were contrary to his suggestion that she was “doing a good job” and the applicant also claimed that BRAC policies were being formed on the run and this had led to public criticism and issues were being raised with her with little or no notice and solutions were expected promptly.  The applicant stated that Mr McGrath acknowledged that concerns about her performance related to a lack of understanding of how BRAC operated and its interaction with customers and he agreed that some of BRAC’s user groups were uncooperative and that she was expected to bring them into line.  The applicant stated that she did not sign her probation assessment form as the report contained errors of fact and her probation period had expired two months prior to this meeting.  The applicant stated that she received notification on 22 June 2009 that her probationary period had been completed and that she was now a permanent staff member.

33      The applicant maintained that she had ongoing problems with Mr McGrath and even though she made complaints about him during her probationary assessment she claimed that he was not encouraged to ‘change his habits’.  The applicant stated that she distrusted him because on many occasions he portrayed himself as being uninvolved in an issue when this was not the case.

34      The applicant stated that some of the staff she managed who had been impacted by changes she had made avoided discussing issues with her or pressured her by complaining about her to the Shire President or the Director of Community Development, Ms Denisa Konecny.  The applicant maintained that as a result she was subjected to frequent interference and micro management on a continuing basis by Ms Konecny.  The applicant also claimed that Ms Konecny harassed her when discussing matters with her, she stated that she endured frequent repetitive emails from her on the same issue on a daily basis, Ms Konecny spoke ‘sharply’ to her and if she tried to protest her innocence about an issue she was met with a dismissive response.

35      The applicant gave evidence that two months after she successfully completed her probation she unexpectedly received the following letter from Mr McGrath on 23 July 2009 (formal parts omitted):

“Following complaints from staff, a meeting is requested with you on Thursday 30 July 2009 at 10am at the Shire’s admin offices in relation to the following issues:

- communication approach with staff at BRAC

- communication approach with other staff within the Shire

- treatment of some staff at BRAC resulting in them feeling the working environment is unpleasant

- speaking disparaging comments about present and former staff

- allegations of lying and manipulation

- failure to negotiate a suitable amicable roster for staff

- operational matters not being resolved

In the mediation report written earlier this year involving a staff member and yourself, the mediator recommended the consideration of the professional development of management staff at BRAC by “the undertaking of management courses to allow further knowledge and development in relation to management/supervision styles, communication styles etc”.

The issues raised above refer to a management, supervision and communication style that is inappropriate for both the working environment and staff relations.

What the Shire requires from you is:

1. a reduction in complaints received about you from Shire staff, customers and BRAC user groups

2. a harmonious staff team at BRAC

3. an improvement in communication with staff at BRAC through regular, minuted staff meetings

4. regular BRAC user group meetings

5. ceasing disparaging comments about either former or present Shire staff

6. putting in place appropriate programming and marketing to address the needs of the community

7. an improvement in professional conduct as required of a staff member of the Shire at managerial level.

It would be expected that professional working relationships are maintained at all times with Shire staff members

You are required to keep the matters confidential that are raised in this letter and you are not to discuss these matters with your staff members. You may only discuss these matters with a representative should you wish to bring them to the meeting next week.”

(Exhibit A4.1 document 28)

36      The applicant stated that she was shocked when she received this letter as she had worked extremely hard at BRAC, she had worked irregular hours dealing with user groups, she had cleaned up problems caused by other staff members and she had juggled rosters with a skeleton staff due to a number of staff frequently taking leave and at the same time she was being harassed by Ms Konecny.  As a result of the accusations made against her in this letter the applicant took leave on 24 July 2009 due to work related stress.

37      When the applicant felt better she contacted Ms Konecny on 28 July 2009 and complained about the contents of the letter dated 23 July 2009, in particular the presumption of guilt on her part, the lack of detail included in the letter, the vagueness of the outcomes being sought and she also claimed that the disciplinary process contained in the 2007 Agreement was not being followed.

38      The applicant stated that when she returned to work on the morning of 3 August 2009 Ms Konecny handed her another letter withdrawing some of the allegations and new ones were included.  This letter reads as follows (formal parts omitted):

“Re: Staff Complaints and Grievances at BRAC

Following complaints from Staff, a meeting is requested with you on Tuesday 3rd August 2009 at 10am at the Shire Administration Offices in relation to the following issues:

• Communication approach with Staff at BRAC

• Poor work-environment due to unsatisfactory leadership and communication at Centre Management Level

• Disparaging comments regarding present and former staff

• Staff concerns relating to allegations of lying and manipulation

• Failure to negotiate a suitable transparent roster for staff

• Operational matters not being resolved in a timely manner

In addition to the above I would like to discuss the tentative resignation of Kim Logue.

Shire of Broome requires that you address these serious matters and make a ‘right of reply’.

You are entitled to bring a colleague or be accompanied by a representative or another staff member of your choosing to discuss these issues relating to the above.”

(Exhibit A4.1 document 34)

39      In response the applicant sent an email to Ms Konecny on 4 August 2009 raising concerns about the documentation she had been sent and about meeting on 7 August 2009.  Ms Konecny responded with the following email dated 4 August 2009 (formal parts omitted):

“Thank you for confirmation of meeting this Friday 4:30pm, 7th August at Shire Administration Centre, 27 Weld Street.

I have discussed the matter with the CEO and wish to advise you that he will not be attending.

Please be assured that the Shire of Broome is strongly committed to adhering to due process.  To clarify, the letter which you received yesterday requests a face to face interview with you (and chosen representative) to together undertake an initial exploration and interpretation process in relation to complaints received.

Written statements will be provided to you at Friday’s meeting and not prior - this is due to concerns raised by staff involved in the grievance process about potential repercussions.  Also, some issues raised are open to interpretation and this will be clarified at Friday’s meeting.

Importantly, following our meeting on Friday, we will then schedule a mutually suitable time (within 3 working days) for you (and your representative as required) to present your right of reply - thus giving you adequate opportunity to address specific issues and prepare your response.

Please do not hesitate to contact me should you require any further information.”

(Exhibit A4.3 document 41)

40      The applicant maintained that because she had not seen statements containing information relevant to the allegations at this point and as the allegations against her were vague she could not reply to them and on this basis was unable to prepare for the meeting.

41      The applicant gave evidence that at the meeting held on 7 August 2009 attended by herself and her support person Mr Thomas Allen, Ms Irving and Ms Konecny she was given copies of three complaints.  These complaints, made by Mr Kim Logue, Ms Sara Hennessy and Ms Vanessa McDougall respectively, read verbatim as follows:

“On Saturday Rod asked for a copy of the roster to be e-mailed to him.  I mentioned this to Deb when she called later that day, after telling me that I should not even be talking to Rod.  Deb went on to say that on a Saturday Rod had no more authority to ask for any rosters than any of the public.

The following week Deb was off work for medical reasons, I was left as acting centre manager.

On Monday I was speaking to Deb when Rod asking for the roster came up again.  Deb was worried that Rod was asking for a copy of the roster so he could “micro manager”.  Deb also stated by Rod asking for a copy of the roster he was siding with other staff that had made complaints.  So not whanting to get involved in the issue I said I would try to put off giving the roster to Rod untill the following Monday that way the issue would be for deb to deal with.

On Tuesday arvo Rod came through the center on other business, But asked again for the roster.

Wednesday.

I thought that Rod being Deb’s boss would have the right to ask for a copy of the roster.  So just to make sure I rang Denisa to ensure giving Rod the roster was the right thing to do.  Being unable to contact Denisa I sent a coppy of the roster to Rod.

Later Denisa called back and I had a conversation with her.  I told Denisa that Rod had asked for a roster and Deb was not keen on him having one but that I had sent him a copy anyhow.

Wednesday evening I got a call from Deb saying she had been told I had been calling Denisa every 5 minutes and I said to Denisa that Deb told me not to give the roster to Rod I tried to explain what I had said to Denisa but Deb said to me that contacting Denisa did not look good for me.  Deb was prety irate during the phone call.  I was sic of being interogated over every conversation I had with Rod or Denisa.  I felt other coments Deb made during the call such as “I thought I could trust you” baisicly calling me disloyal to her were un warented.  By the end of the call I was so fed up with the treatment I was receiving I told Deb I didn’t want the job and I wouldn’t be back at work I no longer would be working for BRAC.

Ever since working at BRAC I had been awear of diferences between Deb and Rod.  Every time Deb found out I had a conversation with Rod I would be interogated by Deb as to what I had said and wat we talked about.  So I was awear that accepting the position of acting manager would be a difficult one.  However after reciving the abusive phone call Wednesday night I thought nobody should have to put up with this hence the reason I resighned.”

(Exhibit A4.1 document 31)

“Thank you for making time in your schedule on the 17th July to hear my concerns regarding Broome Recreation and Aquatic Centre manager, Deb Mills.  As per your request, following is a brief written description of the specific issues (in dot point) involving Ms Mills which I believe are contributing to the poor management of the centre.

• Concerned about DM’s inability to communicate basic information with staff and patrons at the Rec Centre –

>Participants and instructors were not told about class cancellations until just before the event

>On at least two occasions Aqua instructors (myself & Sue) have arrived to instruct a class to find that the music system and mic had been sent away to be fixed.  Nothing was organized to replace the system and there was no communication to tell us that this was happening so that we may prepare ourselves.

>Staff had not been properly informed as to correct price structures for classes and as a result had been charging the wrong price for some classes

• Blames staff for things that are not being done correctly.  I was very offended when while in a meeting with Deb Mills she blamed certain staff for things that were not being done, however the staff member did not know that it was his task to do.
• Would not let me provide an alternate class when aqua could not be conducted due to swimming carnivals etc.. stated that it would be a conflict of interest if I did the class as it would take away from the aqua class – but as we were not able to provide the class then I couldn’t see how there could be a conflict.
• Does not follow through with things that she says that she will do

     said that she would purchase additional aqua equipment before end of financial year – this did not happen

     said that crèche ladies could purchase new crèche equipment, the girls indicated in a catalogue what they would like – this did not happen

     said that she was organizing aqua instructors uniforms (I even forwarded to her a couple of suggestions of sun safe rashies from the web) – still no uniforms

     stated that she was going to get a big banner made for the front of the property to advertise what programs were available – this has not occurred – actually I don’t believe that there has been any marketing of the centre at all this year.

     Deb Mills sent me an email stating that from Easter she would be taking over writing the monthly roster for the Aqua instructors (which I had previously been doing each month) – since Easter, there has not been any roster written.  This concerns me as on duty staff do not know who should be instructing the class or who to contact if an instructor doesn’t show up.

• Microphone issue – the aqua mic & music system has not operated correctly for a long time, we have repeatedly requested that it be fixed, the excessive time it took for this issue to be delt with was totally unacceptable.  I told Deb what I believed to be the issue with the system, however it does not appear that she passed the info onto the company engaged to fix it as they repaired the head sets (which were not broken) with metal connections – which now means our water resistant head sets are now not water resistant.
• Fit ball issue – Has not let the fit ball program commence this year, which for the last 5 years has been successfully run during the dry season.  Her reasonings were that she was not going to start a program that could only run part of the year and also that she was not going to run a program that she didn’t know was going to cover costs.  At the moment there is a heap of equipment not being utilized.
• Survey – As a result of not believing that fit ball has been a successful program in the past and that that is what people wanted to participate in during the dry season, I conducted a survey of aqua participants in early April.  50-60 people completed the survey in which the overwhelming majority of people ticked the box indicating that they would like a mix of both aqua and fit ball available during the dry season.  All these surveys were given to Deb Mills.
• Circuit classes?? Has started this class once a week without adequate advertising
• Staff scared of the repercussions if they speak out.  On at least 2 occasions staff have told me that they had had a confrontation with Deb and from then on they have been rostered on opposite times to her, most of their shifts being only night shifts where previously they had a reasonably even mix on night and day.
• On numerous occasions has manipulated the truth

     she has stated that she has asked to be told what additional equipment Aqua needs and this info has not been provided – this is untrue both Sue, Claire and myself have verbally told her what we need.

     I had a meeting with Deb in March where I discussed the fitness programs that were run at the centre – any indication by Deb Mills that she was unaware of what had previously occurred is untrue – she was given the full run down.  She was also informed that class number records had been collected for every class over the two years, I would presume that this information would have been filed on site somewhere.

There are many more incidences I have been told about that support my belief that Deb Mills has not been administrating the centre efficiently and more to the point doing only what “she” wants and not providing for the wants and needs of the community that utilize the centre.”

(Exhibit A4.1 document 32)

“Incidents occurring at BRAC with Centre Manager between April – July 2009.  Documented in the following is a follow up to meeting with Denisa and Rod Thursday 16th July 2009.

April: I met with Deb Mills to discuss taking on Program Development Officer Role in Ian Chester’s 6 month absence.  DM stated that she would guide me in the role, talking me through the budget for the area and programming various dry side programs.  My concern was I didn’t have any experience in the dry side programming or marketing etc.  DM stated again that she would assist with this.  I was to be paid higher duties from April to October.

May: I coordinated the School holiday Program 14th – 24th April and finished up the mixed netball season, under Ian’s instructions, having met with him before he left.

Glenn Paddock resigned, resulting in roster changing to accommodate the centre’s operational needs.  In some cases 2 days off in a row wasn’t possible.  Staffs were spread thin and I was also assisting Carrie Selten who had taken my role as Swim School Coordinator in her new role.

We had a staff meeting when Kim Logue commenced work with us, Carrie, Debbie Taylor, Kim, Deb M & I.  It was Friday and DM informed me in the meeting that instead of having Sunday/Monday off I was to have Sat/Sun off. I had already made plans to go away and couldn’t change it this time.  I explained that DM had done the same thing to me Easter weekend at the last minute and I had to change accommodation plans for her roster change, I explained I couldn’t do it this time.  DM told me that I had an attitude problem.  Carrie Selten assisted in a roster suggestion for the weekend and all was sorted out.

May 26th & 28th: The following emails are saved if needed for viewing.  I emailed DM and Debbie Taylor with a message from Royal Life Saving saying that a Jacquie hadn’t heard back from DM in regards to the confirmation of a date change to her booking, please call her.  I received a reply the next day saying that I shouldn’t assume that this person hadn’t been called.  The reply was a group email.  I felt accused of doing something that I didn’t, I asked Debbie T what she thought of the reply from DM and she agreed with me that it was an unnecessary comment.  I replied to DM stating that I was simply passing on a message and that I didn’t assume anything.  Within a few minutes an email came through that my leave had been declined due to the centre’s operational needs and previous leave having been approved.  A few emails went back and forth and when speaking with DM in the car park later that evening, she explained that she had been directed by the Shire to decline all leave and that the Shire were also making it difficult for her to employ another Duty Manager with the Pool Operations qualification.  In the emails that went back and forth, I did question DM on her expressing, (bad mouthing) her thoughts of me to others, work colleagues as well as a mutual friend.  DM did not respond to this.

May/June: I requested on a number of occasions by email for DM to go through the budget and programming with me. I wanted to know how much money we had allocated for staffing after school programs etc. I received email stating that the duties in Ian’s role while he was away had been divided up between staff and my two portfolios were School Holiday Program and Duty Manager Shifts.

I would much rather talk face to face to DM about any issues, as I have been put on night shifts for the past 10 weeks, emailing has been the only form of communication. I have tried to communicate with DM but on both occasions recently DM has hung up on me and the other time, I got told that there was nothing to be discussed and that I was being childish and the DM’s office door was then closed.

Patrons had been requesting Fitball classes in April, which for the past 3 years we have changed from Aqua classes to Fitball classes held in the stadium over the dry season. We also have pool blankets and an operating Solar System now which allows us to run Aqua classes throughout the winter months; however the water temp is still too low for some participants therefore the Fitball option over the winter months is popular. DM was informed of this and refused to run the Fitball classes for unknown reasons. Sally from admin has been taking a circuit class on Monday evenings in the stadium for the past 3 weeks, which is becoming popular even with Aqua class running at the same time. I think it is really worth while offering both types of classes to the public.

July: DM was on leave Monday 6th July, so when Debbie Taylor required the work ute in the morning she called Rod to express her concerns on how much we need the ute in the school holidays as DM refused us (BRAC staff) the work ute during her week of leave in April School holidays. Tuesday 7th July DT & myself were called into DM’s office and were spoken down to that we never ever were to go over her head again in calling Rod. DT & myself remained calm and tried to explain that we didn’t know DM was on leave that day, DM refused to listen to anything we had to say. DM insisted that we were aware of her leave for that day. DM told us that we were putting obstacles in front of ourselves.

Kim Logue unfortunately resigned 30.7.09, I was aware that Kim wasn’t happy in his role and the way he was treated by DM. I was actually home with the flu on the 29.7.09, when an incident occurred, I am unaware of what happened. I was extremely disappointed when I heard of his resignation. I felt Kim was a really great Duty Manager to have at BRAC. It is now Stewart and I as the only two Duty Managers with the pool ops qualification.

On returning back from holidays I emailed the Duty Managers and DM to touch base on why the solar heating pump wasn’t operational and few other things I had noticed were different since being back from leave. Carrie replied saying she also felt a bit out of the loop and suggested we have a meeting. This was forwarded onto DM; I sent another email after nobody responded to me. Stewart then addressed all of my concerns as he previously thought DM would have addressed my concerns. A staff meeting was held on the 23.7.09 while I was down in Albany. On two occasions I asked DM via email what the centre’s opening hours were going to be Sat 8th (Broome Cup) previously we have closed at 12noon. I also asked about Ladies Day, can we work amongst ourselves and swap shifts with the guys, this we have previously done. DM never responded to this and yet I did see a leave form for herself to have Ladies Day off. I would’ve thought it completely acceptable if I was informed to apply for leave if I wanted a day off. DM chose not to inform of this and as it is I have not worked a Saturday shift in 4 months and have now ended up working Cup day all day and Ladies Day 1200 – 2130. I have chose not to raise this issue with DM, as there is no reasoning with her whatsoever. I am happy to help out and work these days as I know we are short staffed at the moment with Kim’s resignation.

I am sensing a pattern that when a staff member stands up for themselves or has a specific issue with DM and tries to address it personally in a calm manner, DM does not want to listen or discuss, then that staff member gets treated with disrespect.

I am aware that Pearla, our part-time kiosk attendant is having a stress test on Wednesday morning.  Pearla is one the hardest working employees here at Brac and she has voiced her unhappiness with work recently.

Any emails that are required for viewing, please call me [telephone number].”

(Exhibit A4.1 document 33)

42      At the meeting held on 7 August 2009 the applicant was given until 11 August 2009 to respond to these complaints and the applicant claimed that during this meeting Ms Konecny told her that her attitude needed to change.  The applicant believed that Ms Konecny and Ms Irving were not being objective and were arguing on behalf of the complainants and the applicant believed that even at that early stage she would not receive a fair hearing.

43      The applicant prepared written responses to two of the complaints made against her but she did not have sufficient time to prepare a written response to the complaint made by Ms McDougall.  The applicant’s response to the complaints made by Ms Hennessy and Mr Logue is as follows (formal parts omitted):

“Response to statements presented to me on 7 August 2009

I thank the Shire of Broome for allowing me to respond to statements made by three of my colleagues.  I acknowledge the seriousness of this situation and am fully committed to achieving an appropriate outcome.  Although I am distressed about the allegations made against me, I understand that the Shire must follow certain processes, and I am regretful for being overly defensive towards the Shire staff handling this process.

I would like to briefly outline my understanding of the BRAC workplace to provide a context to my actions and style of management.  I will then address each of the statements made against me in as much detail as possible.

I was attracted to the BRAC Centre Manager position because I am passionate about delivering high quality aquatic and leisure services to the community.  I was previously employed as the Operations Manager at the award winning aquatic centre, Terry Tyzack Leisure Centre - City of Stirling, and I saw an opportunity to assist in the development of the underperforming BRAC.

The questions directed at me during interviews for this position were specific to change management practice and staff cultural leadership.  I believe that I was employed in part for my experience in these matters.  I know that change management has the potential for staff and customer backlash, and I acknowledge that this has occurred at BRAC.  I am committed to working through these issues, and pulling back where the situation dictates.

I am aware of many instances where colleagues have lost autonomy and assumed benefits due to my implementation of Shire directives, operational needs and accountable workplace practices.  I am sympathetic to their situation and I understand that certain colleagues have suffered the loss of overtime, additional classes, budgetary autonomy and discounts to the kiosk and other BRAC services.  While I don’t believe that this has motivated staff to make these statements, I am aware of the sentiment that it may create amongst them.  I find it challenging as a manager to balance the expectations of my colleagues with the governance requirements of a public facility.

I further acknowledge that change management has the potential to upset the existing customer base.  This is a situation that I constantly monitor, and welcome the feedback of all colleagues and users of the BRAC facilities.  I advocate this feedback and response process and am happy to discuss this with senior management.

Finally I believe that effective communication is paramount to ensuring that BRAC remains accountable to the public, while remaining a healthy place to work.  I am committed to addressing the statements presented to me and ensuring that any concerns are dealt with appropriately.

Statement of Sarah (sic) Hennessy

Sarah (sic) is a valuable member of our BRAC team and I am aware of several grievances she has in relation to the facility.  She raised these in point form in her statement made on 2 August 2009.  I wish to respond to these points in turn;

1. Aerobics Class Cancellations

A detailed draft response to this customer complaint was forwarded to the Director - Community Development for review within a week of receipt.  The matter was resolved and I now (sic) a strong relationship with Aqua customers.

2. Repairs to PA Equipment

The PA equipment was sent for repair on 6 separate occasions following notification of faults by staff members.  This allowed a one day turnaround to have equipment back for the next class.  This equipment has twice been returned without being fixed, and this was communicated to staff via appropriate channels.  On another occasions (sic), parts had to be ordered from Perth.  In lieu of these parts I hired a hand held microphone, and also purchased a back up set.  This is now used as a second set.  Additionally, I asked Kim Logue to contact Challenge Stadium and Terry Tyzack Aquatic Centre to inquire into their preferred suppliers to upgrade our unreliable equipment.  I have records of this request.  Following Kim’s resignation, I have asked another Duty Manger to oversee this project and report back to me.

3. Pricing

BRAC obtained a one-off DSR grant to subsidise the 8.10 am ‘Lite Paced’ class for holders of seniors’ cards.  Upon expiry, BRAC management continued to offer a subsided price for the class.  However, seniors were not entitled to a discount for any other class - as per the Council sanctioned BRAC fees and charges schedule.  During July 2009 I covered the reception post and discovered that staff had offered this seniors discount too ALL classes.  I clarified that this was incorrect (fees and charges / brochure information) and the following day I notified all customers that this subsidy only applied to the 8.10 am class.  Staff were immediately notified of this clarification.  This created some tension amongst customers.  I have subsequently submitted to the Council for an across the board $1 discount for senior’s card holders, and a $5.00 fee for the 8.10 class.  Attendance at this class has increased as a result and regularly exceeds 30 customers.

4. Blame Staff

Due to the unspecified nature of this complaint I cannot respond to Sara’s concern.  I would be happy to respond if the event can be detailed.  I am happy for her to approach me personally in regards to any concerns.

5. Alternate Dry Class

At late notice I received a booking request for School Swim Carnivals (approximately 7 days prior to the event).  This is an annual event, however being new to Broome I was unaware of the carnival timetable.  There was no visual history and staff did note that Carnivals occurred in March.  Sara had scheduled the Aqua class to continue throughout March.  I attempted to resolve this dilemma by switching Friday’s aqua class to Thursday.  Sarah (sic) informed me that this wouldn’t suit BRAC users.  My reasoning to not offer alternative ‘land-based’ classes was strategic and based on a promoting aqua classes, and increasing class enrolments.  This has seen class sizes grow from +/- 20 per session to +/- 40.  Additionally, classes are now being run throughout the year, whereas they were previously seasonal.  Regrettably, I believe that this situation was partly due to contracted service providers controlling BRAC programming.  I realise that the loss of this autonomy contributes to her grievance and I am willing to work with her to achieve an appropriate outcome.

6. Purchase of equipment

At the end of the previous financial year BRAC had excess funds to purchase equipment for the centre.  Following consultations with staff, I asked Kim Logue to contact a nominated supplier to price equipment identified by other colleagues.  Kim chose to contact a local alternate supplier, his enquire (sic) lead him back to the suggested company who were wholesalers for the local company.  Kim has not provided me with quotes from any suppliers and following his resignation, this task now rests in my in-tray.  I have informed staff of this delay and apologise for not already purchasing this equipment.

7. Crèche Equipment

I approved an initial purchase order for crèche toys - and toys were subsequently purchased.  Debbie Taylor presented me with an additional purchase order for more toys, which I did not sign.  The reason for this was that in my assessment the centre had sufficient toys as well as a new TV/DVD.  At no time was I presented with a catalogue or did I indicate to the crèche ladies that I would purchase additional toys.

8. Uniforms

I suggested the purchase of uniform to the group fitness staff approximately two months ago.  To the best of my knowledge Aqua staff had never been issued with uniforms in the past.  I have investigated uniforms from two local suppliers without success.  Sportspower has since emailed me a brochure (running bare) which I have placed in the communications diary for staff comment.  This was done approximately 2 weeks ago.  The embroiderer has since been contacted, and staff sizes have been obtained.  I will proceed to purchase these uniforms in the immediate future.  This initiative was designed to assist contracted staff to feel like part of the BRAC team and to assist with the re-branding of the programme.

9. Advertising Banner

Banners have been ordered and invoiced.  BRAC is meeting with the Shire Marketing & PR Officer (Jo) to discuss appropriate artwork and signage on Thursday.  Staff have been informed of this purchase and will continue to be updated.  There has been extensive in-house marketing, and class sizes have increased over the last 6 months.  The BRAC marketing plan (currently being developed) is an extensive document and will be released shortly.

10. Rostering

As mentioned in ‘Alternate Dry Class’ I am sympathetic to Sara for her loss of autonomy regarding BRAC programming.  I have maintained a fixed roster since Easter 2009 and classes have been running to this schedule with increased customer numbers and satisfaction levels, a (sic) fewer class cancellations.  I am aware that aqua staff have altered these rosters independently of me (issues involve child care and availability).  I have made a conscious decision not to intervene in this situation to ensure that classes are not cancelled.  Although it is difficult to get everyone together, I have an upcoming meeting with aqua staff at which this will be addressed if it is raised.

11. Microphone

Please refer to ‘Repairs to PA equipment’.  I have a substantial amount of documentation regarding the purchase / repair of PA equipment.

12. Survey and Fit-Ball

I am now aware that Sara surveyed BRAC users (without prior consultation) regarding their preference for classes.  As previously indicated, I am uncomfortable with her level of involvement with BRAC programming and managerial decision making.  However, my analysis of her survey indicated that 2 classes would be detrimental to the centre as it would split class sizes and increase costs.  It also surfaced the underlying issue that the pool was too cold during the dry season.  Using this information, I made several strategic judgement calls including program changes, using the ‘pool blanket’ and repairing the solar pump.  This has resulted in maintaining costs while increasing class sizes and customer satisfaction.  I remain unconvinced as to the need for fit-ball classes, but I am prepared to review this at any time.

13. Circuit Classes

This new class has seen weekly increases in participation and is being marketing (sic) in several areas.  I am not aware of Sara’s concern in this class.  She has not raised this matter with me at any time.

14. Repercussions

I maintain that I have never disadvantaged staff as a result of a complaint made against me.  Sara’s dot point does not reference any specific example, so I’m unable to respond to this further.  Sara is an independent contractor and I am concerned that her comments about internal rostering obscure her real motives.  I am aware that staff rostering is an ongoing issue, however all rosters are created in line with BRAC operational needs and the current Enterprise Bargaining Agreement.

15. Manipulation

As previously stated in ‘Purchase of equipment’ I acknowledge that I asked for staff input in purchasing additional aqua equipment.  I agree that this feedback was received (approximately 3 weeks later). Since this feedback was received I have actively pursued purchasing this requested equipment through my duty manager Kim Logue.

16. Prior records

I remember meeting informally with Sarah (sic) and other staff around March 2009. These meetings related to programming and delivery of future BRAC classes, and encouraged staff input.  Without Sara referring to a specific meeting, I am not sure of the relationship between these meetings and staff manipulation.

17. Other incidents

I refuse to comment on unspecified incidents.  However, I wish to work with Sara in addressing any of her concerns for the betterment of BRAC users and other staff members.

Statement of Kim Logue

I recruited Kim Logue from the position of lifeguard to the Duty Manager -BRAC.  I am supportive of his career development and I have been impressed by his loyalty and wiliness (sic) to impress colleagues.  Kim’s intentions were to work during winter in Broome, however only 4 weeks ago Kim advised me that he was enjoying working with me and the BRAC team and that he no longer wanted to leave Broome.

I have been presented with Kim’s statement which details a sequence of events alleging that I instructed him to withhold information from a senior manager.  I am devastated that Kim has made this statement, and I am still at a loss to understand his actions.

I wish to present my recollection of this sequence of events and then address Kim’s version as contained in his statement.

My recollection of the sequence of events

On the morning of Monday 22 July 2009 I was made aware that Rod McGrath had encouraged colleagues to discuss my management style with him while he attended basketball at BRAC.  I asked Kim Logue if this was correct and he stated that it was, however he felt compromised by the situation.  Kim then stated to me that ‘we all know that Rod McGrath is trying to make you paranoid’.  On the (sic) 25 July Kim had a further conversation with another colleague stating that he was convinced that Rod McGrath was “out to do Deb’s head in”.  I have a statement supporting that this event took place.

The Director - Community Services instructed me to appoint a replacement while I took one week (sic) leave, commencing Saturday 25 July 2009.  I appointed Kim Logue in this position and notified him at approximately 1.00 pm on Friday 24 July 2009. I appointed Kim because of his pool qualifications and the minimal disruption this would have to the current duty manager roster.

At approximately 5.00 pm Friday 24 July 2009 Kim Logue called me on my mobile informing me that Rod McGrath had requested the BRAC staff-roster for the upcoming period.  Kim stated to me that he thought it was inappropriate that Rod would ask for these rosters, and that he told Rod that they weren’t finished in any event.  He stated that he had ‘stalled’ Rod from getting the rosters.  I responded by saying that he must give Rod the roster if requested, though I too felt that it was inappropriate for Rod to request the rosters given the impending inquiry, and his previous conversations about my management style.

On Monday 27 July 2009 Kim called me on my mobile and said that Rod was demanding to see the rosters.  I reiterated what I said to him on Friday including my advice for him to give the roster to Rod as his senior manager.  Kim then stated that he would further stall giving Rod the rosters, and that he would control Rod by doing so.  At no time did I encourage him to do so.  This conversation was witnessed by another colleague who has indicated that she is willing to provide a statement to this effect.

On Wednesday 29 July 2009 Kim called me on my mobile to tell me to expect an email from Rod stating that I should not be in the building while on leave.  Kim informed me that on Rod’s request he had emailed other BRAC staff this information.

This was the extent of my involvement in the submission of the roster in question.  At no time did I suggest for Kim to withhold the roster from his senior managers.

Kim’s Statement (by reference to paragraphs)

1. I confirm that Kim called me to speak about Rod’s demand for the roster.

I deny that during this phone conversation I questioned Rod’s authority to make this demand of Kim.

2. I confirm that Kim called me to say that Rod made a further request for the rosters.

I confirm that I said that I felt it was an inappropriate request, due to the pending inquiry.

I confirm that I instructed Kim to hand the roster to Rod if requested.

I deny mentioning ‘micro-management’ and siding with staff over this issue.

I confirm that Kim instigated delaying handing the roster to Rod.

I believe another staff member was present during this conversation.

3. I confirm that on at least two previous occasions I instructed Kim to provide the roster to Rod if requested if requested (sic), and that one of these occasions was witnessed by another staff member.

4. Kim contradicts his previous paragraphs by indicating that I had advised him to provide a copy of the roster to Rod upon his request.

I confirm that I expressed that I felt it was an inappropriate request.

5. I confirm that I telephoned Kim to ask why he stated to other staff members that I told him to withhold the roster.

I confirm that Kim indicated that he intended to resign.

I deny ever instructing Kim to withhold the roster from Rod.

6. I deny ever interrogating Kim in relation to Rod.

7. On 7 August 2009 Denisa Konency (sic) informed me of a further alleged conversation between myself and Kim.  I deny this conversation took place.”

(Exhibit A4.1 document 37)

In addition to the above written responses the applicant provided a statement from Ms Fiona Tannock-Jones which she said supported her recollection of events in relation to a conversation she had with Mr Logue.

44      At a second meeting held on 11 August 2009 attended by the applicant, Mr Allen, Ms Konecny and Ms Irving the applicant maintained that both Ms Konecny and Ms Irving were not composed or objective and were dismissive of the applicant’s written responses to the complaints made by Ms Hennessy and Mr Logue as well as Ms Tannock-Jones’ written statement.  The applicant stated that she verbally responded to Ms McDougall’s complaint by pointing out that her statement was vague and hard to respond to and she stated that Ms Konecny conceded this and took the applicant to sections of her complaints and the applicant responded as best she could given the time limits imposed.  The applicant stated that a discussion about the applicant’s management style then ensued and at the end of the meeting Ms Konecny and Ms Irving said they would consider the issues raised.

45      The applicant stated that up to this point she was a friend of Ms Irving but this changed following her aggressive treatment of her in the two disciplinary meetings and as a result of a Short Message Service (“SMS”) text message she received from Ms Irving after she sent a SMS text message to Ms Irving subsequent to the meeting complaining that Ms Konecny seemed to be pursuing an agenda against her and that the process followed was flawed.  Ms Irving’s response is as follows:

“Deb just got yr message now.  Im sorry but its not jvst denisa, im part of it too.  U don’t listen, u think your perfect, yr inflexable, no reflection on your behaviour.  Im disappointed really r”

(Exhibit A4.1 document 38)

The applicant maintained that this confirmed that she would not be receiving a proper consideration of her case and it appeared that Ms Irving was now operating against her as well as Ms Konecny.

46      By 12 August 2009 the applicant stated that she was under enormous stress given the disciplinary proceedings against her and as a result she went on sick leave.   The applicant stated that when she attended a further meeting on 19 August 2009 with Mr Allen, Ms Konecny and Ms Irving she was advised that she would be subject to a performance management process and she was told that her reporting structure would change and she would no longer report directly to Mr McGrath or Ms Konecny but to Ms Anne Jennings.  The applicant was also advised that she would need to meet weekly with Ms Jennings and formulate agreed Key Performance Indicators (“KPIs”) and the applicant was also given a letter of warning (Exhibit A4.1 document 44).  The applicant gave evidence that she was so upset at this meeting that she did not talk.  The applicant stated that there was no indication that the complaints made against her were found to have substance and that no timeframe was put on the performance management process.

47      The applicant maintained that her harassing and bullying a staff member had never been part of the allegations given to her to respond to nor was her management style the subject of the disciplinary proceedings against her and the only discussion about this issue took place at the second meeting held on 11 August 2009.  The applicant stated that as the complaints made by Ms Hennessy and Ms McDougall were not referred to by the respondent in the letter handed to her on 19 August 2009 she presumed they had not been proven.  Additionally, there was no indication that a formal warning was going to be issued to her or was being considered by the respondent so she did not understand why a formal warning was given to her.  The applicant also could not understand why her performance was unsatisfactory given that she had refuted the complaints against her, in particular Mr Logue’s complaint, and she had provided the respondent with an independent account of her interactions with Mr Logue from Ms Tannock-Jones, which was consistent with her account.

48      The applicant gave evidence that Ms Jennings did not raise the issue of KPIs with her nor did she initiate any conversation about setting KPIs.  Even though she met weekly with Ms Jennings the applicant maintained that these were not performance management meetings and were only discussions about operational matters.  No minutes of these meetings were given to her and she was not asked to sign any documentation relating to the meetings as required in the 2007 Agreement.  The applicant believed that as the warning given to her was not valid she spoke to Ms Jennings about her responses to the complaints and the applicant maintained that during these discussions Ms Jennings told the applicant that she was there to support and assist her to prevent staff from making further false allegations against her.  The applicant also claimed that Ms Jennings acknowledged that some staff had acted inappropriately at BRAC but she did nothing about this.  The applicant stated that without KPIs to work from and with no actual performance management process in place she worked as best she could on the instructions she was given.  The applicant also maintained that her concerns about BRAC’s procedures and policies were not being communicated to staff nor dealt with by the respondent.  The applicant stated that inappropriate behaviour towards her by staff increased and on several occasions she raised these behaviours with Ms Jennings for her to deal with but her complaints were ignored and not acted upon and she was unaware if the issues she had raised with Ms Jennings were addressed.  In contrast if a staff member had a problem with her, the complaint went directly to Ms Konecny and was then passed back to Ms Jennings.

49      The applicant felt she was being discriminated against because staff had not been told that she was following an agenda that she had been hired to fulfil and the applicant maintained that she had been required to deal with several unreasonable decisions made by management which could be seen as promoting an agenda to sideline her from her position.  The applicant gave by way of example how she was treated when she applied for annual leave in early September 2009.  The applicant stated that she was required to find staff to fill all vacant duty manager positions as well as finding a suitable replacement to cover her shifts and the applicant did this by arranging for Mr Stewart Winfield who was based in Perth to cover both the duty manager and Centre Manager shifts because of a lack of willing or available local qualified staff to undertake these roles.  However just before commencing leave on 2 October 2009 Ms Jennings determined that she would be the acting Centre Manager even though Mr Winfield had arrived from Perth to undertake this role and Mr Winfield then agreed to work as the duty manager on a reduced salary.

50      The applicant gave evidence that she was shocked when she received Mr Logue’s employment application form in September 2009 when he applied to work at BRAC in the same position he had undertaken prior to resigning from the respondent because of his alleged treatment by the applicant.  The applicant maintained that it was irrational for a former employee who had resigned due to a conflict with his manager to want to be re-employed under the same manager.  The applicant gave evidence that she had a brief discussion with Ms Jennings and Ms Konecny about this issue on 21 October 2009 and told them that it was risky for the respondent to re-employ Mr Logue because of duty of care issues and because Mr Logue had been dishonest with respect to his complaint about her.  The applicant claimed that her concerns were ignored and Ms Konecny instructed Ms Jennings on 22 October 2009 to re-employ Mr Logue.  The following day the applicant emailed Ms Jennings seeking resolution of the duty of care issues with Mr Logue before he was to be re-employed and she told Ms Jennings that an alternative applicant with appropriate qualifications was available to undertake casual duty manager work.  The applicant maintains that an inference that can be drawn from Mr Logue applying for a position with the respondent directly under the applicant was that Mr Logue was aware that she would not be employed after 23 October 2009 and that a decision had already been taken by the respondent to terminate her.

51      The applicant gave evidence that she was subjected to ongoing harassment by Ms Konecny.  The applicant gave by way of example an incident concerning a project which involved the local power provider using the respondent’s generator during peak periods and the respondent being paid a retainer and usage fee.  The applicant prepared some of the material required for an agenda item to be submitted to Council on this issue and when she went on holidays she asked Mr Winfield to finish collecting data and finalise the agenda item.  After doing some of the paper work whilst on holidays in mid October 2009 she struggled to complete the required paperwork and it was also the first agenda item she had ever prepared.  Under Ms Jennings’ instruction she submitted the agenda item to the Council’s secretary and Ms Jennings then emailed her stating that the item had been rejected citing reasons for this occurring.  The applicant responded to her stating that the issues raised by Ms Jennings were covered in the report and the applicant gave evidence that as she was determined to have the project approved she organised a meeting with the respondent’s Chief Executive Officer (“CEO”) Mr Kenn Donohoe at 3.00pm on 22 October 2009 to have the matter put before Council.  Just prior to her meeting with the CEO Ms Konecny contacted her telling her that she was angry that the applicant had gone over her head with respect to this issue and the applicant protested saying that she had exhausted all avenues through her supervisor.  Ms Konecny advised the applicant that the meeting with the CEO had been cancelled, she accused the applicant of not following due process and she was required to meet Ms Konecny that afternoon at 3.00pm.  When the applicant attended this meeting she maintained that the meeting was not private and approximately five people in the office area immediately outside Ms Konecny’s office were aware that the meeting was taking place and could see Ms Konecny interacting with the applicant.  The applicant maintained that Ms Konecny lectured her about going over her head and not forwarding the documentation to her line manager prior to sending it through to the Council’s secretary and when the applicant indicated that Ms Jennings had given her the authority to send the agenda item directly to the Council secretary Ms Konecny only accepted this after Ms Jennings was called in to confirm that she had given her the authority to do so.  The applicant stated that she felt intimidated and upset during this meeting.

52      The applicant gave evidence about her dismissal on 23 October 2009.  The applicant maintained that she believed things were out of the ordinary when Ms Jennings requested that she attend the regular staff meeting scheduled for 12.30pm that day.  Additionally, just prior to the meeting she had received an email from Ms Konecny asking her to outline the duty of care issues she had with Mr Logue returning to work with the respondent.

53      The applicant stated that Ms Jennings, Ms Konecny, Ms Tannock-Jones, Ms Debbie Taylor, Mr Ian Chester and Ms McDougall were present at the staff meeting.  The applicant maintained that whilst most of the staff were pleasant and neutral Ms Konecny and Ms Jennings were sombre and she felt intimidated by their presence.  The applicant believed that she conducted the meeting in a calm and professional manner and staff were conversing appropriately.  Approximately 25 minutes into the meeting Ms Konecny left the meeting and returned shortly thereafter and the applicant stated that several times during the meeting Ms Jennings and Ms Konecny had private conversations.  At some point both Ms Konecny and Ms Jennings left the room without excusing themselves and approximately five minutes later returned.  After Mr Chester made a suggestion about changing BRAC’S phone system Ms Konecny stood up and announced that she was suspending the meeting and asked staff to wait outside.  Ms Jennings and Ms Konecny remained in the room with the applicant and the applicant maintained that she said words to the effect that “I was expecting this; I was surprised it took you so long”.  In saying this, the applicant thought that Ms Konecny and Ms Jennings had planned to undermine her in front of her staff.  Ms Konecny then told the applicant to hand over her keys, car keys and phone and told her that she was terminating her employment as of now and that Ms Jennings would drive her home.  The applicant maintained that she had not done anything wrong and that they could not terminate her as the CEO dismissed staff not the Director of Community Services.  Ms Konecny responded saying that she could terminate her, that the applicant was being performance managed and that her staff were clearly unhappy with her and nothing had changed.  After the applicant protested she was again told to hand over her keys and phone.  The applicant left the room to contact the CEO and as she did so Ms Konecny pursued her saying that her actions in remaining on the property were “criminal” and that she would “call the police on me”.

54      The applicant gave evidence that she had a meeting with the CEO at 2.30pm on 23 October 2009 and her support person Mr Stephen Farmer and Ms Irving also attended the meeting.  During this meeting the CEO stated that he was unaware that the applicant had been terminated and he then asked her to give her version of the events about her dismissal.  The applicant referred to the warning letter given to her and Ms Konecny’s failure to apply appropriate processes either under the 2007 Agreement or of adopting basic managerial standards during her performance management process.  The applicant told Mr Donohoe that BRAC was now performing financially better than the past four years and she reiterated that she had been wrongly terminated.  In response Mr Donohoe told the applicant that if due process had not been followed with respect to her termination she would be reinstated with a full apology.  After a short adjournment that Mr Donohoe requested to confer with Ms Irving, Mr Donohoe then informed the applicant that he would arrange for a termination letter to be provided to her and he gave the applicant an opportunity to put her concerns about non-compliance with due process in writing but he told the applicant that he had been assured that due process had been followed with respect to her termination.  The applicant stated that she forwarded a statement regarding the lack of due process to Mr Donohoe the following Tuesday however he never acknowledged receiving this email nor did he respond to it.

55      The applicant maintained that her termination was unfair and unjust and she had not committed any misconduct for which either dismissal or summary dismissal was appropriate.

56      The applicant detailed a number of issues she dealt with as Centre Manager of BRAC which she believed contributed to her termination on the basis that resolving these issues may have caused some staff members to dislike her.  These issues are as follows:

• when taking on her role she inherited an administrative, organisational and financial mess and even though she raised issues with Mr McGrath, Ms Konecny or Ms Jennings key staff were unwilling to support the way in which she wanted to move forward and some staff were vocal about their resentment;
• some staff were seeking maximum remuneration and lifestyle additions at the expense of the respondent;
• staff had developed their own policies and procedures for running BRAC which were not sanctioned by the respondent and the respondent did not have basic policies and procedures in place, for example, opening and closing times for BRAC and this led to conflict with user groups;
• some staff were offering to hire BRAC facilities for free and were discounting fees and charges without authorisation;
• some user groups were not invoiced when they used BRAC;
• the function room was let out at a reduced rate or free;
• staff and user groups obtained free products from the kiosk;
• staff were given discounts at below cost for many kiosk items which was not sanctioned by the respondent;
• staff had free access to the Coke machine takings and stock;
• excessive over time and higher duty payments were made to staff and staff took leave without consultation;
• user groups, for example the tennis club, were allowed to remain in the building after closing time and this led to overtime rates having to be paid;
• BRAC property was being removed from the facility for home use and there was no policy to deal with this;
• BRAC property was missing and there was no assets register;
• BRAC booking procedures were ad hoc;
• customer service was in a bad state;
• BRAC’s daily takings were loosely controlled, there were limited investigations of inconsistencies in till takings and BRAC banking practices were identified as high risk by the respondent’s auditor;
• staff recruitment was uncontrolled;
• unauthorised staff were accessing and authorising purchase orders and budget accounts;
• roster changes were being negotiated between duty managers to obtain extended leave or early finishes;
• staff dictated BRAC’s opening and closing hours; and
• staff dictated annual leave.

In summary the applicant maintained that some staff dictated operational processes which were contrary to the respondent’s policy.

57      The applicant claimed that changes she made to address these issues resulted in a loss of autonomy, presumed benefits, overtime, additional classes for some contractors, discounts at the kiosk and BRAC services, access to non-work related computer programmes and independently setting leave.  The applicant stated that she had been hired to deal with these issues and she pointed out to the respondent that changes in these areas were likely to cause discontent with some staff.

58      The applicant gave evidence about ongoing issues with the tennis club, a user group of BRAC, however as this was not a ground that the respondent relied upon to terminate the applicant it is unnecessary to detail this evidence.  The applicant also gave evidence about a staff member Mr Glenn Paddick who was terminated after his probationary period was extended but as this issue was not relied upon by the respondent when terminating the applicant it is unnecessary to detail that evidence.  The applicant’s evidence about her dealings with Ms Taylor falls into the same category.

59      The applicant maintained that Mr Michael Doyle undermined her position at BRAC and she was never disciplined about any of the complaints raised by him in his witness statement about the applicant.

60      Under cross-examination the applicant agreed that she did not prepare a business case for a streamlined management structure but she claimed that she was busy and the respondent lacked interest in the structure being changed.  The applicant disagreed that the respondent had not given her a mandate for change and she stated that Mr McGrath in particular had given her this mandate as he was concerned about user groups having too much control over BRAC’s assets.

61      The applicant re-iterated that Mr McGrath, Ms Jennings and Ms Konecny bullied and harassed her and she claimed that she could have done her job better if they had given her support.

62      The applicant stated that she did not accept the performance review conducted by Ms Jennings as it was not in accord with the 2007 Agreement.  The applicant also gave evidence that at times the actions of her managers proved that they did not have a great deal of knowledge about managing a recreation centre.

63      The applicant stated that she was aware that Ms Konecny had investigated the circumstances of Mr Logue’s termination however she was unaware of the outcome of this investigation until the meeting held on 19 August 2009 took place.  The applicant rejected the respondent’s claim that she had bullied Mr Logue and treated him unfairly and the applicant stated that she did not respond to Ms Konecny’s email asking her for clarification of the duty of care issues she had with Mr Logue because she received this email at midday on the day of her termination.  The applicant also stated that she requested a meeting with Ms Konecny about this issue but she ignored her request.

64      The applicant maintained that the complaints raised with her at the meeting with Ms Irving and Ms Konecny held on 7 August 2009 did not relate to her management style.  The applicant denied that swimming lessons for a local school did not go ahead because she refused to negotiate on the price she quoted to the school.  The applicant rejected the proposition that the rosters she put in place for staff were punitive and she maintained that she did not have a “them and us” attitude with BRAC’s staff and she believed that all staff were working together for the same purpose.  The applicant claimed that she had a history of working well with employees and she endeavoured to do the same with BRAC’s employees.  The applicant maintained that she did not force any changes on staff.

65      The applicant stated that Ms Konecny rejected the draft KPIs she had presented to her in October 2009 and she maintained that she was working on finalising them when she was terminated.  The applicant maintained that she did not give Ms Taylor an unreasonable work load and the applicant claimed that when more than ten children were at the crèche on one occasion this was an error made by a receptionist at BRAC.

66      The applicant stated that staff were not uncomfortable during the staff meeting held on 23 October 2009 and she stated that there was no screaming or aggression on her part during this meeting.  The applicant maintained that at this meeting she made positive comments to Ms McDougall and when Mr Chester raised an issue she told him to speak to her about it after the meeting.  The applicant rejected the claim that her relationship with the respondent had broken down as at 23 October 2009 and she maintained that her termination was a surprise.

67      The applicant rejected the proposition that her relationship with staff was dysfunctional and the applicant conceded that Ms Konecny had a responsibility to investigate complaints made against her but the applicant maintained that BRAC had previously been run poorly and the respondent’s managers had been too busy to assist the then manager.  The applicant agreed that subsequent to her termination it took some time for the respondent to deal with her long service leave, annual leave and time in lieu claims and the applicant confirmed that as at 9 November 2009 she was aware that she was to be given a payment in lieu of notice which was made to her on or around 3 December 2009.

68      Under re-examination the applicant maintained that she did not slam her door on any employees or refuse to speak to Mr Chester.  The applicant stated that it was not unusual for Ms Konecny to approach her directly about issues and complaints raised by community groups with the Council and bypass her line manager Mr McGrath.  The applicant stated that during her time as Centre Manager of BRAC on three occasions Ms McDougall applied for and was granted leave and on each occasion she asked for an extra day’s leave at short notice which gave the applicant little time to cover these days.  The applicant maintained that Mr McGrath was inexperienced, she stated that he was reactive and rarely completed work on time and she claimed that it was inappropriate for Mr McGrath to review staff rosters as he had never asked for the rosters previously and in any event the rosters were pinned on the notice board.  In relation to rostering staff on undesirable shifts, the applicant stated that she received an email from Ms McDougall saying that she did not mind working the late shift and it was her view that shifts should be shared around.  The applicant then stated that it was appropriate to put Ms McDougall on evening shifts because she was the only full-time senior person available to work this shift and she received a loading to undertake these evening shifts.  The applicant re-iterated that KPIs were never formulated for her as part of the performance management process.

69      The applicant has made a number of efforts to obtain alternative employment but to date she has not been successful and therefore she has received no income since her termination.  The applicant stated that she has worked on a voluntary basis for the Carl Andrews Foundation, she has picked mangoes and she has applied for a position as a community development officer in Karratha and the applicant is registered with two recruitment agencies.  The applicant stated that as it was the wet season when she was terminated it was difficult to obtain alternative employment.  Furthermore the local government industry, specifically recreation, was a small industry and people are aware of her dismissal.  The applicant stated that she is commencing employment on 12 February 2010 detailing rental cars.

70      Mr Farmer gave evidence by way of a witness statement (see Exhibit A5).  Mr Farmer was contacted by the applicant on 23 October 2009 to attend a meeting with the respondent’s CEO about her termination.  Mr Farmer stated that at this meeting Ms Irving’s attitude was unprofessional and her behaviour towards the applicant was intimidatory.  Mr Farmer stated that Ms Irving “leapt on” statements made by the applicant to contradict her without hearing her out and she was dismissive of what the applicant said about the allegations against her.  Mr Farmer also believed that the CEO’s attitude was equally dismissive as he did nothing to stop Ms Irving’s behaviour towards the applicant and it appeared he was there to support Ms Irving rather than provide an impartial hearing to the applicant.  Mr Farmer also formed the impression that the respondent was not interested in hearing the applicant’s account of what had happened.  Mr Farmer stated that the applicant was accused of failing to comply with “performance management” and Mr Donohoe said that he would review the applicant’s termination if proper processes had not been followed with respect to the applicant’s termination.  Mr Farmer believed that the applicant was not given a proper opportunity at this meeting to respond to the allegations put to her.

71      Mr Winfield gave evidence by way of a witness statement (see Exhibit A6).  Mr Winfield was a duty manager with BRAC from 10 June 2009 to 15 September 2009 and prior to this he worked at other leisure facilities.  During his employment at BRAC whilst under the authority of the applicant Mr Winfield had no difficulty with the applicant personally or with the way she managed BRAC.  Mr Winfield described the applicant’s management style as different to others, she was direct and focused, she was not overbearing or aggressive to any of the staff she managed and her requests to staff were not demanding or inappropriate.  Mr Winfield stated that the applicant told him when he commenced at BRAC she had been appointed with a specific mandate of “tightening the reins” to cut costs and bring staff and user groups into line.  Mr Winfield stated that the applicant explained to staff what she was doing however some staff took umbrage because it was different to how things had previously operated at BRAC.  Mr Winfield stated that he did not get involved in clashes between the applicant and other staff members, in particular Ms McDougall, who he claimed constantly seemed to be questioning the applicant’s management style and the way in which things were being done.  Mr Winfield described Ms McDougall as “white anting” the applicant and he claimed that she made complaints to senior management about small issues that no reasonable employee would be questioning.  Mr Winfield stated that on the one hand she appeared to be cooperative with some decisions such as roster changes but then would tell other people that she did not support change and when the applicant was not present she would make remarks against her.

72      Mr Winfield confirmed that the applicant had issues with the tennis club and she had also stopped other programs running and he stated that in her position he believed he would have done the same.  Mr Winfield also cited problems the applicant had with the local netball club which were resolved.  Mr Winfield stated that BRAC staffing levels were low and even though he was a casual employee he ended up working full time hours.  Mr Winfield stated that one day Ms Hennessy made verbal complaints against the way BRAC was being run over the public address system when the applicant was on leave and she stated that if anyone had issues with the way BRAC was operated they could complain to Ms Jennings.

73      Mr Warren Wallace gave evidence by way of a witness statement (see Exhibit A10).  He is a neighbour and friend of the applicant.  None of his evidence went to the issues relevant to the applicant’s termination.

74      Mr Allen gave evidence by way of a witness statement (see Exhibit A8).  Mr Allen is a solicitor with the Broome Family Violence Prevention Legal Service and the applicant asked him to be her support person at meetings she had with the respondent in August 2009.  Mr Allen gave evidence that at the meeting held on 7 August 2009 with Ms Konecny and Ms Irving the applicant was presented with written complaints made by Ms Hennessy, Ms McDougall and Mr Logue and she was instructed to provide a response to these complaints the following day.   After some discussion this deadline was extended to 11 August 2009, a period which Mr Allen thought was unreasonably short.  Mr Allen stated that during this meeting voices were raised and there was aggressive body language between Ms Konecny, Ms Irving and the applicant.  Mr Allen stated that it was his impression that the behaviour of Ms Konecny and Ms Irving was partisan towards the complainants.

75      Mr Allen stated that he assisted the applicant to respond to the complaints but given the short timeframe only two of the complaints were able to be responded to in writing.  Mr Allen also stated that it was difficult to respond to the complaints because of the way in which they were framed and it was unclear what the nature of the specific complaints were.  Mr Allen attended a further meeting on 11 August 2009 as a support person for the applicant and he stated that the written responses to two of the complaints were provided by the applicant as well as an oral response to the third complaint and the applicant presented a statement from a third party supporting her responses.  No adjournment was made to consider the applicant’s responses and it was not made clear what, if any, investigation was made into the complaints.  Mr Allen stated that the focus of the meeting then changed from investigating and resolving complaints against the applicant to Ms Konecny and Ms Irving referring to contrasting management styles of the applicant and them.  Mr Allen maintained that the applicant’s responses were consistently dismissed by Ms Konecny and Ms Irving and Mr Allen gave evidence that everyone at the meeting, including the applicant, acknowledged that the respondent required the applicant to modify her approach to managing BRAC.  Mr Allen stated that the meeting ended without reference to how the complaints against the applicant would be handled.

76      Mr Allen attended a third meeting with the applicant, Ms Konecny and Ms Irving on 19 August 2009 when the applicant was advised that she was to be placed under performance management and she would no longer report directly to Ms Konecny.  The applicant was also instructed to work with Ms Jennings to address management concerns and to set and monitor performance measures.  Mr Allen could not recall the applicant being issued with a formal warning at this meeting and no reference was made to the complaints against the applicant or any investigation that had been conducted with respect to them.  Mr Allen stated that he was concerned that the complaints made against the applicant did not appear to have been resolved and Mr Allen believed that the applicant had no real opportunity to respond to the allegations made against her.  He also believed that the process used by the respondent lacked impartiality.

77      Ms Tannock-Jones gave evidence by way of a witness statement (see Exhibit A11).  Ms Tannock-Jones is currently the acting Administration Supervisor at BRAC and she commenced at BRAC in April 2009 on a casual basis and then worked on a part-time basis to cover a staff member on leave.  Ms Tannock-Jones confirmed that she was employed by the applicant who she described as a directed and focused manager who sought to improve the way in which BRAC operated.  Ms Tannock-Jones stated that this led to some staff duties being reorganised for better efficiency which rubbed a number of duty managers at BRAC the wrong way.  Ms Tannock-Jones described the applicant as being “too city, too fast, too corporate for the current directorate, that’s not to say that Broome doesn’t need it”.

78      Ms Tannock-Jones stated that from her perspective the applicant did not have a lot of support from management and her managers seemed to encourage people to undermine her.  She cited by way of example some staff members who had an issue with a directive issued by the applicant would not raise their concerns with the applicant as they were supposed to, but would go directly to Ms Konecny.  Ms Tannock-Jones said some of the banking practices at BRAC were loose and she was aware that prior to the applicant commencing employment with the respondent a large number of groups which used BRAC’s facilities were not charged.

79      Ms Tannock-Jones stated that at the staff meeting held on 23 October 2009 it was unprecedented that both Ms Konecny and Ms Jennings attended this meeting.  Ms Tannock-Jones said nothing out of the ordinary took place at the meeting and she stated that the applicant was not disrespectful in any way or dismissive of any staff members.  Ms Tannock-Jones said at this staff meeting tensions only arose when Ms Konecny returned to the meeting and asked employees to leave.  Ms Tannock-Jones said that the applicant was stressed after she was terminated.

80      Under cross-examination Ms Tannock-Jones stated that she knew the applicant socially before she commenced employment at BRAC and she confirmed that when the applicant asked her to prepare statements in relation to the applicant’s interactions with Mr Logue she was unaware that the applicant was subject to disciplinary proceedings at the time.

81      Mr Christopher Jackson gave evidence by way of a witness statement (see Exhibit A7).  Mr Jackson was the Director of Community Services, including BRAC, when the applicant was first employed by the respondent and Ms Konecny took over his position when he resigned.  Mr Jackson was not employed by the respondent during the applicant’s employment with the respondent but he was was involved in the process for selecting candidates for the Centre Manager position when the previous manager resigned and the applicant was the successful candidate.  Mr Jackson stated that when the applicant was employed as the Centre Manager of BRAC her brief was to improve BRAC’s operations in a financial, organisational and logistical way and he stated that she appeared to be eminently suited to that role.  Mr Jackson also stated that she had a reputation for being assertive.

82      Mr Jacob Lewis gave evidence by way of a witness statement (see Exhibit A9).  Mr Lewis commenced employment with the respondent on or about February 2009 as a receptionist.  Mr Lewis described the applicant as professional and business like, direct and focused and she did not believe in messing about.  Mr Lewis maintained that it was wrong to describe the applicant as aggressive and difficult and he stated that there was a big difference between assertiveness and aggressiveness.  Mr Lewis was aware that some duty managers did not like the applicant’s management style.  Mr Lewis stated that he would not characterise the applicant’s behaviour as bullying, harassing, aggressive, manipulative or unwilling to compromise.

Respondent’s evidence

83      Ms Irving gave evidence by way of a witness statement (see Exhibits R1.1 and R1.2).  Ms Irving was employed as the respondent’s Human Resources Manager for 12 months from January 2009.  Ms Irving stated that she coached and counselled the applicant on a number of occasions both as a friend and in a professional capacity and Ms Irving stated that she gave the applicant informal advice that she needed to accept some of the blame for the problems occurring at BRAC but she refused to accept that she needed to change her management style.  Ms Irving stated that the applicant did not take her advice even when it was clear that her job was on the line.

84      Ms Irving stated that the applicant would escalate a situation and include other people in issues and Ms Irving claimed that she did not trust the applicant.  Ms Irving stated that on one occasion when she and the applicant were chatting informally about work issues the applicant accused her of bullying and harassing her.

85      Ms Irving gave evidence that when Mr Logue spoke to her on the day he resigned he told her he was resigning because the applicant was heavy handed and threatening and he said he did not want to know about the ugly dynamics between staff and management yet the applicant chose to discuss this with him and other staff members and he felt he was being drawn in to a situation which he did not like.

86      Ms Irving stated that as part of her role as the respondent’s Human Resources Manager she was involved in the investigation process following complaints made by staff about the applicant.

87      Ms Irving understood that Ms Konecny and Ms Jennings attended the staff meeting held on 23 October 2009 as a number of staff members were tense.

88      Ms Irving stated that she was aware of the applicant’s concerns that staff had been difficult and rude to her and that staff needed to improve their behaviour as much as the applicant needed to improve her behaviour and she stated that she raised this issue with Ms Konecny and Ms Jennings.  At the time she told them that a formal process should be considered whereby at the start of the staff meeting held on 23 October 2009 they should raise the respondent’s Code of Conduct with employees however she understood this did not occur.

89      Ms Irving stated that she contacted Ms Konecny during the staff meeting held on 23 October 2009 to relay advice she had received from the Western Australian Local Government Association about the applicant’s termination.

90      Ms Irving stated that by October 2009 Ms Konecny felt that the respondent had no option but to remove the applicant from her position given the increasing damage being done to BRAC’s customers notwithstanding additional management support being given to the applicant which included her line manager being changed three times.  After a series of complaints were made about the applicant by staff and customers and because there was a deterioration in the applicant’s working relationship with Ms Jennings, Ms Irving stated that she and Ms Konecny discussed standing the applicant down on full pay pending an investigation.  Ms Irving stated that she and Ms Konecny agreed that support had been given to the applicant but as a result of a lack of change on the part of the applicant her termination appeared inevitable.

91      Ms Irving stated that she attended a meeting with Mr Donohoe, the applicant and her support person after the applicant was terminated and the applicant was told at this meeting that a letter of termination would be delivered to her that day.

92      Ms Irving stated that it would be inappropriate for the applicant to be reinstated as there were bad feelings between the applicant, staff and customers and the community.  Ms Irving maintained that capable employees like Mr Logue and Mr Smith found it impossible to work with the applicant and as these employees were not aggressive nor agitators this concerned her.  Ms Irving was also aware of community groups which found the applicant intolerable to work with.

93      Ms Irving maintained that the applicant did not accept Mr McGrath raising performance issues with her and she persisted in name calling and making slurs about him constantly both to him personally and out of earshot.  Ms Irving also claimed that Mr McGrath’s early support of the applicant was unappreciated by her and the applicant bad mouthed him both professionally and personally.  Ms Irving stated that on a number of occasions she counselled the applicant insisting that she needed to inculcate good working relationships with staff and community members and she reinforced the need to have positive working relationships with them regardless of whether she liked them or believed they were worthy.  Ms Irving maintained that the applicant had a history of poor relationships with staff and community groups from March 2009 onwards.  As complaints arose about the applicant, which were becoming more detailed and explicit Ms Irving spoke to the applicant on many occasions both personally, privately and professionally to remind her that she needed to improve her operational style.

94      Ms Irving disputed the applicant’s claims that Ms Konecny harassed her.  Ms Irving stated that the applicant was supported by all senior staff including Ms Konecny who had an open door policy.  Ms Irving was aware that Ms Konecny had a number of meetings with the applicant and she maintained that Ms Konecny was interested in all departments under her directorate including BRAC.

95      Ms Irving stated that the complaints made about the applicant in July and early August 2009 were not presented to the applicant before the meeting held on 7 August 2009 because the respondent was concerned that she may make comments to these staff before the meeting.  Ms Irving stated that this meeting was not intended to trap the applicant and Ms Irving stated that it was inappropriate for Mr Donohoe to attend this meeting because it was held to explore issues and table concerns raised by some staff.  Ms Irving stated that at this meeting the applicant would not accept ownership of issues raised with her and Ms Irving stated that she was unaware of the statement the applicant says she provided from Ms Tannock-Jones that she says conflicts with part of Mr Logue’s statement.

96      Ms Irving gave evidence that at the end of the respondent’s investigation in August 2009 and after the applicant had been given a right of reply a formal warning was issued to the applicant which was documented and discussed with the applicant.  A copy of this warning was also given to her and placed on her personnel file.

97      Ms Irving maintained that senior staff were keen to ensure that the applicant was successful in her role and went to great lengths to work with her to ensure that this occurred.  Ms Irving stated that the applicant was stubborn and arrogant and would not accept any responsibility for her performance problems.

98      Ms Irving stated under cross-examination that she carefully considered and investigated the complaints made against the applicant by Mr Logue and Ms McDougall and Ms Irving understood that Ms Konecny also undertook a formal investigation of the complaints made against the applicant.

99      Ms Irving stated that at the meetings held with the applicant in August 2009 grievances lodged against the applicant were dismissed by her and Ms Irving stated that she did not agree with the applicant’s responses to the complaints and she denied she was aggressive and abrupt in her approach to the applicant.  Ms Irving denied that her conduct during these meetings was inflammatory but she agreed that she was exasperated with the applicant because she would not recognise she was part of the problem nor did she agree to modify her behaviour.

100   Ms Irving stated that it was not until 23 October 2009 that a decision was made to terminate the applicant in preference to standing her down on full pay.  Ms Irving stated that she initially did not believe it appropriate to terminate the applicant but after the applicant would not accept any ownership of the problems caused by her and as she was being inflexible, she changed her mind.  Ms Irving stated that the final catalyst for deciding that the applicant should be terminated was ongoing staff and community complaints despite the applicant receiving coaching and counselling and no change in the applicant’s behaviour nor did the applicant take ownership of the problems at BRAC.

101   Ms Konecny gave evidence by way of a witness statement primarily based on file notes made at the time of meetings or incidents or shortly thereafter (see Exhibits R2.1 and R2.2).  Ms Konecny is the respondent’s Director Community Services and she has held this position since 10 December 2008.  Ms Konecny has been in senior management for 12 years.

102   Ms Konecny stated that within weeks of the applicant’s appointment a number of customer complaints were made about her conduct and performance.  Ms Konecny stated that early on she realised that the applicant was struggling.  Ms Konecny stated that the applicant maintained that the complaints made against her were as a result of her change management efforts which were being met with resistance from both staff and customers.  Ms Konecny stated that given the emerging trends about the applicant’s management style and complaints being made against the applicant, the applicant was supported and actively encouraged to reflect on and adjust her communication and management styles to enable her to effectively carry out her role.  Ms Konecny stated that Mr McGrath’s attempts to support and manage the applicant were increasingly being met with resistance by the applicant and the applicant tended to escalate a situation to a more senior level.  On several occasions the applicant told her that Mr McGrath was ‘a useless manager’.  Ms Konecny stated that Mr McGrath told her that the applicant was unmanageable, she disregarded his requests for feedback and his authority and she manipulated facts and refused to adjust her management, supervision and communication styles.  As a result Ms Konecny had weekly meetings with him to provide additional support to deal with the applicant and to assist him to performance manage the applicant and Ms Konecny stated that two mediation meetings were held between the applicant and Mr McGrath to improve their working relationship and as a result they agreed to work more positively together.  When Mr McGrath went on leave in late May/early June Ms Konecny then managed the applicant.

103   Ms Konecny stated that during July 2009 she spoke to the applicant about the importance of community consultation and obtaining information directly from BRAC’s users as the applicant was making decisions based on her own views.  Ms Konecny stated that between 16 July 2009 and 30 July 2009 several complaints were made by staff at BRAC about the applicant’s management and communication styles and they were investigated under the respondent’s dispute resolution process.  This resulted in Mr McGrath sending a letter to the applicant dated 24 July 2009 requesting a meeting with her on 30 July 2009 to discuss these complaints.  Ms Konecny stated that the relationship between Mr McGrath and the applicant had significantly deteriorated by this time and the applicant was raising issues with Mr McGrath’s managers and the CEO.  Ms Konecny also acknowledged that the applicant was unwell at the time and took sick leave between 24 July and 2 August 2009.

104   Ms Konecny stated that she had a meeting with Mr McGrath late in the afternoon on 24 July 2009 to discuss staffing at BRAC and operational needs to ensure that adequate resources and staff coverage was in place during the applicant’s absence and to this end she requested that he obtain a copy of the staff roster.  Ms Konecny stated that on 29 July 2009 she received a telephone call from Mr Logue who had received contradictory information from the applicant and Mr McGrath about supplying a copy of the staff roster to Mr McGrath and she told him that Mr McGrath’s request was valid.  As Ms Konecny was concerned about the applicant’s inappropriate and escalating behaviour and her interference with BRAC’s operations during a period that she was on sick leave she asked Mr McGrath to contact the applicant to ask her to cease issuing instructions to staff whilst on leave and focus instead on getting well and Mr McGrath advised her that he had already emailed the applicant to this effect on 28 July 2009.  Ms Konecny gave evidence that late on 29 July 2009 Mr Logue complained to her that the applicant had abused him on the phone and he felt he had no option but to resign and Mr Logue told her that this related to Mr McGrath requesting a copy of staff rosters to be given to him and the applicant telling Mr Logue not to release this information to senior management.

105   Ms Konecny stated that the applicant did not accept constructive feedback from anyone in a position of authority.

106   Ms Konecny stated that on 3 August 2009 she received written complaints about the applicant from Ms Hennessy, Ms McDougall and Mr Logue which covered a range of concerns and incidents and the applicant’s poor management skills was the recurrent theme.  Ms Konecny stated that a letter was delivered to the applicant on 3 August 2009 requesting a meeting with her and the letter outlined general issues to be discussed at the meeting.  The written complaints made by employees were not attached to this letter given staff concerns about possible retribution by the applicant and in light of her alleged abusive behaviour towards Mr Logue and other staff members.

107   Following is Ms Konecny’s summary of the three meetings held with the applicant about the complaints made against her:

“Meeting 1: 7 August 2009, 4:30am at Shire Administration building

Present: Deb Mills, Tom Allen. (representative), I and Rebecca Irving

Agenda: Exploration and clarification of complaints:

• written complaints were presented to Deb Mills and clarified where required
• Deb Mills advised that management were commencing a disciplinary investigation and she was now on performance management
• directive issued not to discuss complaints with any staff member of complainant
• purpose of next meeting – Deb Mills Right of Reply – was clarified

Deb Mills given statements and a few days to respond.  She had an appearance of being intimidated and petrified.

Meeting 2: 11 August 2009, 4:30am at Shire Administration building. Document 48.

Present: Deb Mills, Tom Allen. (representative), I and Rebecca Irving

Agenda: Deb Mills Right of Reply:

• Deb Mills provided responses to complaints
• In summary, vast majority of claims were rejected despite various evidence

I believe Deb Mills twisted words in alleging that I had already decided she was guilty.  In relation to some matters, she said she did not want to respond to them.  She just said everything was not true.

Meeting 3: 14 August 2009, 12:30am at Shire Administration building (cancelled by Deb Mills)

(N.B. following reports by Rebecca Irving that Deb Mills was unwell and would not be attending the meeting, I contacted her on Friday 14 July (sic) by phone at 10:10am and:

• Asked is (sic) Deb Mills was coping / again offered EAP support – Deb Mills responded that she was OK and was at work now.
• I suggested that, as I understood (via HR Manager) that Deb Mills would not be attending today’s meeting, it be rescheduled – Deb Mills nominated Tuesday 18 August at 4.00pm.
• To alleviate Deb Mills stress and counteract Deb Mills assumptions that she was being terminated, I advised that the outcome of the investigation would likely be:

•          Performance management in identified areas of concern
•          New line manager (Anne Jennings, Manager Community Development)

I asked if Deb Mills was willing to work with management to address areas of concern and improve performance, Deb Mills replied “Yes”.

Meeting 3: 18 August 2009, 4:30pm at Shire Administration building (cancelled by Deb Mills)

Meeting 3: 19 August 2009, 4:30pm

Present: Deb Mills, Tom Allen (representative), I and Rebecca Irving

Agenda: Shire management response to Deb Mills statements from meeting 2:

• Deb Mills was issued a letter of warning as a result of the investigation into staff complaints and grievances at BRAC.  Document40
• Deb Mills indicated that she was pleased to have an experienced new line manager, was willing to work with Anne Jennings and participate in performance management”

(Exhibit R2.1 paragraphs 52 to 56)

108   Ms Konecny stated that Ms Jennings became the applicant’s line manager on 19 August 2009 to provide the applicant with intensive training and mentoring to facilitate an improvement in her performance and she stated that as a result of this restructure other projects were put on hold while Ms Jennings concentrated on supporting the applicant.

109   Ms Konecny stated that in the week commencing 19 October 2009 complaints about the applicant’s conduct were made by the respondent’s Club Development Officer Mr Doyle, Mr James Vincent who was the newly appointed Events and Sponsorship Coordinator and complaints from customer about the applicant were also made to Ms Jennings.

110   Ms Konecny gave evidence that on 20 October 2009 the applicant contacted the CEO requesting a meeting with him about a Council agenda item titled ‘Energy Efficiency’ being withdrawn by Ms Jennings due to it being incomplete and the applicant’s claim that Ms Jennings withdrew this item with no justification and as a result the respondent had lost a significant income opportunity.  After the CEO referred this issue to Ms Konecny for investigation she contacted the applicant and reiterated that she should have raised this issue with her before contacting Mr Donohoe.  The applicant maintained that because Ms Konecny had been copied into her email to the CEO she believed that the line management process had been followed.  At a meeting Ms Konecny had with the applicant on 21 October 2009 about this issue the applicant agreed that the agenda item was incomplete and understood why Ms Jennings had withdrawn it.

111   Ms Konecny stated that Ms Jennings kept her informed about issues at BRAC and her relationship with the applicant and Ms Jennings told her that the applicant was continuing to be very negative and she believed their relationship was breaking down.

112   Ms Konecny stated that in the week prior to 23 October 2009 several new complaints were made to Ms Jennings from employees and BRAC’s customers about the applicant and Ms Konecny stated that there were reports of significant and growing unrest amongst BRAC staff as a result of the applicant’s poor management.  These concerns included:

• poor and inappropriate communication approach with BRAC staff;
• a poor and increasingly deteriorating work environment at BRAC due to unsatisfactory leadership and communication at centre management level;
• disparaging comments made by the applicant about customers, staff and management;
• failure to negotiate a suitable and transparent staffing structure at BRAC; and
• operational matters not being resolved by the applicant in an appropriate, transparent and timely manner.

113   Given the long and escalating history of staff and customer complaints about the applicant’s conduct which culminated in August 2009 in an internal investigation and the implementation of the performance management process, Ms Jennings and Ms Konecny considered it was necessary to attend the staff meeting on 23 October 2009 to monitor the situation.  Ms Konecny maintained that at this meeting a majority of staff present were highly uncomfortable with the applicant’s method of delivery which she described as overly autocratic and directive and when staff unsuccessfully tried to interject on several occasions the applicant actively discouraged feedback.  Ms Konecny stated that the atmosphere of the meeting was deteriorating to one of overt hostility to the applicant’s communication style and the content of her delivery.  Ms Konecny stated that she originally had no intention of closing the meeting but the applicant’s conduct at the meeting was inappropriate and she had concerns about the applicant’s communication style as a meeting facilitator and her blocking attempts at clarification and feedback by staff.  Ms Konecny stated that she had asked Ms Irving earlier that day to obtain advice about the applicant’s conduct and after Ms Konecny received a telephone call from Ms Irving she left the room and during a discussion with Ms Irving they agreed that terminating the applicant was appropriate.  They reached this conclusion based on the comprehensive process taken to date with respect to assisting the applicant to improve her performance, the lack of improvement in the applicant’s behaviour since the commencement of the performance management process, the respondent’s duty of care to BRAC’s staff and customers in light of the escalating issues and complaints, staff morale deteriorating to the point of a crisis and escalating customer complaints.  Ms Konecny decided to close the staff meeting and a meeting was held with the applicant whereby she was terminated on the basis of continuing and escalating unsatisfactory conduct and performance on her part.  The applicant then stated that she wanted to see Mr Donohoe which occurred later that afternoon.

114   Ms Konecny stated that the decision to dismiss the applicant resulted from a culmination of a range of factors including the applicant not being willing or able to do the job expected of her, and stakeholder and staff relationships going from bad to worse.  Ms Konecny stated that she had spoken many times to the applicant about these issues, staff were leaving and the applicant was getting more and more unpredictable.

115   Ms Konecny believed that the applicant’s reinstatement was untenable.  Staff retention and the safe and effective running of BRAC would be at risk and the applicant had also denigrated the respondent through the local newspaper.  Progress has been made at BRAC since the applicant’s departure and the effective performance of the current manager demonstrates that the applicant was unsuitable for the role of Centre Manager of BRAC.

116   Ms Konecny disputed the applicant’s claim that she was not the subject of a number of complaints and Ms Konecny maintained that the majority of complaints received at BRAC were about the applicant’s conduct.  Ms Konecny denied that she harassed the applicant, spoke sharply to her or treated her dismissively and she stated that the applicant was provided with ongoing support and feedback to assist her in changing her management style.

117   Ms Konecny stated that as the applicant was accused of abusing staff and had bullied Mr Logue to the point of resignation she did not believe it appropriate to provide the written complaints made to the respondent to the applicant prior to meeting with her on 7 August 2009 and Ms Konecny disputed that she shouted at or intimidated the applicant during the disciplinary meetings held in August 2009.  Ms Konecny disputed that a statement from Ms Tannock-Jones was ever provided by the applicant during the disciplinary process and she denied dismissing the applicant’s responses to the complaints made against her.  In response to the applicant’s claim that she had not been advised that her management style was wanting Ms Konecny stated that the applicant had been given ongoing feedback over a period of ten months in relation to the inappropriateness of her management style.  Ms Konecny disputed that the applicant had been employed to “go in hard” and she told the applicant on several occasions to reflect on her management style to no avail and she maintained that as the applicant continued to behave in an unprofessional and unacceptable manner complaints against her escalated.  Ms Konecny also stated that Ms Jennings regularly briefed her about the applicant’s performance management and the setting of KPIs.

118   Ms Konecny stated that an internal investigation undertaken by the respondent found that Mr Logue was unfairly and harshly treated by the applicant.  Ms Konecny described Mr Logue as a good worker and valuable team member and it was therefore appropriate to re-employ him and this was explained to the applicant.

119   Ms Konecny stated that as a result of the applicant’s deteriorating conduct over a period of ten months and given the poor relationship between the applicant and staff at BRAC Ms Jennings asked that she attend the staff meeting held on 23 October 2009.

120   Ms Konecny claimed that the applicant was aware of how serious her situation was at BRAC as it had been discussed with her on numerous occasions.  Ms Konecny also stated that the respondent’s CEO was fully aware of the gravity of the applicant’s situation and she stated that she had been delegated by him to terminate the applicant if her conduct failed to improve.  Ms Konecny maintained that personal dislike was not a factor in deciding to terminate the applicant and all previous attempts to assist the applicant had failed due to her refusal to accept responsibility for her actions.  Escalating damage to BRAC’s staff and customers was also a key factor underlying her termination.

121   Ms Konecny stated that Ms Jenny Gray from a local Parents and Citizens Association contacted her in September 2009 to complain about difficulties organising swimming lessons at BRAC.  Ms Gray told her that the applicant had refused to accept any other price than $90 per child for lessons and the lessons therefore did not go ahead.  Ms Konecny gave evidence that the current Centre Manager is in the process of arranging for these lessons to be conducted.

122   Under cross-examination Ms Konecny stated that the payment of two weeks’ pay in lieu of notice took some time to be made to the applicant because of a lengthy dispute over the quantum of the payout due to the applicant and she was unaware of why the applicant had not been paid the two weeks’ pay in lieu of notice due to her when she was terminated or soon thereafter.

123   Ms Konecny stated that she was aware of the unsatisfactory performance management process contained in the 2007 Agreement and she agreed that the applicant should have signed the documents generated in relation to this process but she noted that the applicant refused to sign her probationary assessment.  Ms Konecny stated that she supported the applicant when she commenced employment with the respondent and mentored her on many occasions but in May/June 2009 their relationship deteriorated.  Ms Konecny stated that in February and March 2009 complaints were made against the applicant by the tennis club and complaints were made about the replacement of shade sails, Aqua Lite classes for seniors, netball and football issues.  A number of informal staff complaints were also made about the applicant.

124   Ms Konecny maintained that BRAC’s previous manager Ms Barton was good at her job and she claimed that BRAC was not in a mess when she ceased employment with the respondent.  Ms Konecny stated that Mr McGrath was not experienced enough to deal with the applicant and Ms Konecny denied that nothing was done in relation to his relationship with the applicant until June 2009 as she had regular meetings with Mr McGrath to assist him to deal with the applicant.

125   Ms Konecny agreed that she supported the applicant over the tennis club incident in February 2009 but she stated that it was evident at the time that the applicant’s approach to dealing with this matter had made it difficult to resolve the issue in dispute.  Ms Konecny stated that during this early period of her employment with the respondent the applicant was counselled and coached about complaints made about her but was not formally disciplined.  Ms Konecny disputed that the applicant was being micro managed and she stated that she only became involved in issues concerning the applicant’s performance from time to time.  Ms Konecny maintained that she took the applicant’s responses to complaints against her seriously.

126   Ms Konecny stated that if she had been aware of the statement made by Ms Tannock-Jones’ about Mr Logue she would have investigated her comments.

127   Ms Konecny summarised the reasons why the applicant was terminated.  Ms Konecny claimed that the applicant bullied and intimidated Mr Logue to such an extent that he resigned and was distressed, the poor treatment of staff including Ms Hennessy, staff complaints made to Ms Jennings including complaints made by Mr Doyle, Ms McDougall, Mr McGrath, Mr Vincent and Mr Chester, user group complaints from the following clubs - boot scooting, netball, soccer, Aqua Lite, squash and basketball, an incident involving children escaping from BRAC’s crèche, complaints about swimming lessons, complaints made by the Broome Sports Association about poor access to BRAC as a result of the applicant’s management, the applicant’s lack of acknowledgement about changing her style and taking responsibility for her poor management style and the applicant blaming others for her predicament.  Ms Konecny also maintained that the applicant’s conduct deteriorated after she was issued with a letter of warning.  Ms Konecny conceded that complaints made by Mr Doyle and Mr Vincent about the applicant were not raised with her but Ms Konecny stated that she understood the other issues were raised with the applicant prior to her termination.  Ms Konecny believed that Ms Jennings raised a complaint made by the boot scooting organisation with the applicant and Ms Konecny stated that Ms Jennings raised the issue of the netball association being able to access courts after not being able to reach agreement with the applicant.  Ms Konecny also understood that Ms Jennings discussed the problems the soccer association had with booking venues and a breakdown in communication with the applicant and Ms Konecny stated that the issue of swimming lessons being conducted at BRAC was raised by Ms Jennings with the applicant.  Ms Konecny stated that the issues raised by the basketball association and the Broome Sports Association were raised with the applicant by Ms Jennings and Ms Konecny maintained that the themes of these complaints were recurring ones.

128   Ms Konecny stated that a decision had not been made prior to the meeting held on 23 October 2009 to terminate the applicant however given the applicant’s conduct at this meeting and legal advice received about terminating the applicant during the meeting this led to the respondent deciding to terminate the applicant that day.  Ms Konecny stated that prior to the applicant being terminated she determined that the applicant would be stood down and an investigation into her conduct would take place but as the issues being raised about the applicant were ‘extreme’ and given that the applicant would not change her behaviour and as BRAC was ‘falling apart’ it was appropriate to stop the staff meeting on 23 October 2009 and terminate the applicant that day.  Ms Konecny stated that she did not anticipate that the meeting that the applicant had on 23 October 2009 with staff would be as acrimonious as it was and that the applicant would conduct herself in an unacceptable and unprofessional manner during this meeting.

129   Ms Jennings gave evidence by way of a witness statement (see Exhibits R4.1 and R4.2).  Ms Jennings is the respondent’s Manager Community Development and she has held this position since 18 August 2009.  In this role she was the applicant’s direct line manager and she also performance managed the applicant.  Once this task was completed the applicant would have been managed by the Manager Recreation Services.

130   Ms Jennings had seven meetings with the applicant between 13 August 2009 and 23 October 2009 and during these meetings discussions took place about the management of BRAC and support was given to the applicant.  Ms Jennings also had a number of additional contacts with the applicant by telephone and email.

131   Ms Jennings gave the following evidence about what transpired at the performance management meetings she had with the applicant from 13 August 2009 onwards based on notes she made around the time of her discussions with the applicant.  On 26 August 2009 Ms Jennings had a meeting with the applicant and they discussed the performance management process.  When the applicant was asked to provide details of who would replace her when she was on leave commencing 1 October 2009 the applicant complained that she should not have to “replace herself”.  The applicant was asked to prepare a proposal for the next meeting on 3 September 2009 about expenditure on playground equipment which had been funded by the relocation of a mobile phone tower however this was completed three weeks late, the applicant’s proposal for a staffing policy was discussed and she was asked to prepare a draft to begin this process however this was not done and the applicant complained to Ms Jennings on three occasions about why this needed to be completed.  The applicant was asked to arrange a focus group meeting about the use of the football ovals for next season and to look at training issues with respect to BRAC’s Information Technology (“IT”) programme but she did not complete these tasks.  The applicant did not supply relevant information about the Horizon Power proposal to Ms Jennings prior to a meeting with Horizon Power on 14 September 2009 and when the applicant suggested that the Manager of Recreation Services may have this information it was discovered that he did not.  Even though the applicant claimed that she had completed three quarters of BRAC’s marketing plan no evidence was provided that this plan had been commenced.

132   Ms Jennings gave evidence that at the meeting held on 3 September 2009 the issue of BRAC’s IT program was raised again however, this task was not completed by the applicant as at 23 October 2009, the issue of organising a meeting with the football codes was again raised and the applicant was told that it needed to occur prior to the end of September 2009 but this still had not happened as at the applicant’s termination.  At this meeting the applicant also told her that her management decisions were being questioned by staff and Ms Jennings told her that this issue could be approached in the staffing policy the applicant was preparing.

133   Ms Jennings stated that at the meeting held on 10 September 2009 she again requested information about a proposed playground grant raised at the meeting held on 26 August 2009 but this was not supplied by the applicant.  KPIs for the applicant were discussed and the applicant was given the opportunity to prepare them and she agreed to have them ready for the next meeting however these were not presented until three weeks later.  The marketing plan was again raised and the applicant re-iterated that it was three quarters completed however it was never received by Ms Jennings.  Ms Jennings stated that the applicant was asked to forward to her monthly reports of BRAC’s activities however she never received these reports.  Even though the applicant was instructed to conduct focus group meetings with stake holders, and she undertook to do so, this did not occur and a training programme the applicant was required to complete in order to ensure budget allocation for the training was also not finished.  BRAC’s IT program was again raised with the applicant and she did not arrange to complete a performance appraisal of a BRAC employee.

134   Ms Jennings gave evidence that after a meeting held on 14 September 2009 the applicant undertook to prepare a Council agenda item which was due on 15 October 2009 for the Horizon Energy proposal and even though this item was completed by the applicant it was inadequate and as a result a decision was made by Ms Jennings to withdraw this item from the Council’s agenda which resulted in the applicant seeking a meeting with the CEO.  Subsequently the applicant agreed that the item should have been withdrawn from the agenda.  Ms Jennings stated that after additional information was provided by her the agenda item went to Council and was adopted.

135   Ms Jennings stated that at a meeting held on 30 September 2009 Ms Irving and Ms Jennings had a discussion with the applicant about staffing.  Ms Jennings stated that one acting duty manager was considering leaving because of inadequate pay when she could have been offered penalty rates by working weekends and it was noted at the meeting that the applicant was regularly placing herself on the roster at weekends and receiving a higher penalty payment and not offering other staff this opportunity.  The applicant was also engaging external staff and not offering acting positions to current staff and she had not advertised a duty manager’s position.

136   Ms Jennings gave evidence that at the meeting held on 1 October 2009 with the applicant a discussion took place about a crèche incident when two children of two or three years of age had escaped from the crèche and were leaving BRAC when spotted by a parent.  Ms Jennings stated that this was a serious occupational health and safety issue that needed investigation and corrective actions put into place however the applicant did not see this issue as being important and she did not see it as an occupational health and safety issue.  The applicant was upset that Ms Hennessy had emailed her about the incident and she saw this as a direct challenge to her personally and made this the main issue not the incident.  Ms Jennings requested that an account of the incident be prepared by all staff involved and after the applicant said that staff would not do so, Ms Jennings re-emphasised the importance of the incident and the applicant reluctantly agreed to prepare an incident report and seek reports from staff.    At this meeting the applicant complained about being given time in lieu and not receiving payment for overtime.

137   Ms Jennings gave evidence that at a meeting held at the request of Ms Hennessy on 7 October 2009, Ms Hennessy expressed her dissatisfaction about the crèche incident and how upset she was as she encouraged parents to use the crèche.  Ms Hennessy also raised a previous complaint about the applicant not allowing fit ball classes to be run during the dry season.  Ms Jennings met with Ms Georgie Barnes, a BRAC customer on this date and she raised issues about the poor management of BRAC in particular the lack of staff to serve customers.  Ms Jennings had a meeting with Ms Rocinda Thomas, a casual vacation swimming instructor who told Ms Jennings that the applicant had told her that the crèche facility would not continue as it was a waste of money and she also raised concerns about the crèche being full or cancelled without notice and about fit ball classes not being run.

138   Ms Jennings stated that when she reviewed the staff reports about the crèche incident it appeared that the crèche worker had not received an appropriate induction.

139   Ms Jennings stated that on 8 October 2009 she met Mr Juan Johnson who raised numerous issues about netball bookings which included, access to courts, maintenance, the need for more courts, conflicts with bookings and basketball, lack of discussion from BRAC about bookings and he stated that when he spoke to the applicant she raised internal problems which he did not want to hear about.

140   On 9 October 2009 Ms Jennings met with BRAC’s Customer Services Supervisor Ms Taylor who raised an issue of the applicant knowing about swimming club and water polo bookings clashing in September and Ms Taylor had only recently became aware of this issue.  Ms Taylor said that she could not work at BRAC much longer as she claimed that staff were being bullied by the applicant, the applicant was rude to staff and yelled at them, the applicant had not replaced the person working in the kiosk so other staff had to fill in, restrictions were placed on stock replacement and it was difficult for Ms Taylor to undertake banking given the roster that she had and BRAC’s work vehicle was not available at times to undertake the banking.

141   When Ms Jennings met with the applicant on 15 October 2009 she asked her why the Horizon Power Council agenda item had not been completed as it was due that day and Ms Jennings gave evidence that this item was submitted later that day however she withdrew it from the agenda as it was totally inadequate.  Ms Jennings stated that the crèche was still turning away children as there was only one attendant and she asked the applicant to prepare a Child Care policy for the November Council meeting however this did not occur.  Updates were needed for staff job descriptions and the applicant was asked to document the business reasons for restructuring aqua aerobics but did not do so.  Even though the applicant provided KPIs to Ms Jennings no time lines were included as originally discussed.

142   On 19 October 2009 Mr Smith, a lifeguard and acting duty manager at BRAC met with Ms Jennings and he told her that even though he requested duty manager weekend shifts the applicant had undertaken these shifts since July 2009.  Mr Smith maintained that the applicant verbally offered him employment as a lifeguard and duty manager however this did not eventuate and he claimed that the applicant was argumentative and would not listen to his concerns about health and safety issues.  Mr Smith also believed that staff were not receiving enough training.

143   On 19 October 2009 Ms Jennings had a meeting with the Broome Sports Association and she was advised that it had been formed because of problems sporting clubs were having with the applicant.  Issues included the booking of ovals and clubs having had booking requests in for three months for the next season but not getting a response about these bookings from the applicant.

144   At a meeting held on 21 October 2009 Ms Jennings discussed the applicant’s proposal to re-write job descriptions of staff at BRAC and she asked the applicant to provide copies of staff contracts and to ask them to write a draft of their job descriptions but the applicant told Ms Jennings it was up to her to decide on the content of staff job descriptions.  Ms Jennings stated that at this meeting the applicant talked about getting rid of old staff.

145   On 22 October 2009 Ms Jennings received a complaint from the boot scooters association which was upset at the way in which it was being treated by the applicant and new requirements put on them to book and pay for a room to use and the necessity to gain their own insurance and the association claimed that there was no opportunity to negotiate with the applicant over this issue.

146   Between 20 October 2009 and 23 October 2009 Ms Jennings received written complaints about the applicant from Mr Doyle, Mr Vincent, the respondent’s Administration and Project Officer Ms Sally Reynolds who passed on the boot scooting complaint and BRAC’s Program Development Officer, Mr Chester.  Mr Chester complained that the applicant would not discuss programs and he said that she was making the workplace difficult to work in, morale amongst staff was low and staff were not being included in decision making.  He also stated that the running of BRAC seemed disorganised and this was resulting in stressed staff and unhappy customers.

147   Ms Jennings stated that staff performance reviews during the period January 2009 to October 2009 for 16 employees which were to be undertaken by the applicant were overdue and Ms Jennings maintained that she responded to the applicant’s concerns about staff by deciding to conduct a training course for BRAC’s staff based on the respondent’s code of conduct.

148   Ms Jennings gave evidence that at the staff meeting conducted by the applicant on 23 October 2009 which she attended, staff were very agitated and the applicant was abrupt and staff members “appeared ready to explode or walk out”.  Ms Jennings believed that it should not have been a surprise to the applicant that she attended the staff meeting on 23 October 2009 as Ms Tannock-Jones was aware that she and Ms Konecny were to attend this meeting.  Ms Jennings denied that she made any phone calls during this meeting.

149   Ms Jennings denied that she initiated conversations about the applicant’s management of BRAC and maintained that staff and customers contacted her to complain about the applicant.  Ms Jennings stated that after the applicant complained to Ms Jennings that she did not receive any support from the respondent she pointed to her involvement and support however the applicant accused her of micromanaging her.  Ms Jennings maintained that during some conversations she had with the applicant they discussed targeted strategic approaches to ensuring that BRAC worked effectively.

150   Ms Jennings gave evidence that when she became the applicant’s line manger the applicant was given the opportunity to prepare a first draft of her KPIs and she stated that the applicant provided this draft two weeks late.  Ms Jennings stated that she was working on this document when the applicant was terminated.  Ms Jennings maintained that she withdrew the Horizon Power Council agenda item not Ms Konecny as the quality of the information contained in the item was poor.  Ms Jennings denied that she ever demanded that the applicant employ Mr Logue “without question” and maintained that she suggested to the applicant that she look at employing Mr Logue.

151   Ms Jennings claimed that the applicant did not deal with a number of dangerous situations in her role as Centre Manager of BRAC, for example, she retained an old fridge which shorted out on a couple of occasions and she claimed that the applicant did not approve repairs and maintenance requests so it looked like she was saving on the budget, to the detriment of BRAC.

152   Ms Jennings stated that since the applicant had ceased employment with the respondent both customers and staff have told her that the atmosphere at BRAC is more friendly and staff are working effectively as a team.  An extra crèche employee has been employed given the demand and negotiations are now in place to recommence swimming lessons at BRAC for primary school students.

153   Under cross-examination Ms Jennings stated that a report about the crèche incident completed by the applicant was only generated after she requested her to do so and Ms Jennings reiterated that she believed that the applicant did not take this issue seriously until Ms Jennings asked the applicant for information about the incident.  Ms Jennings agreed that the crèche was not located in a purpose built centre.

154   Ms Jennings conceded that she did not raise a number of the complaints made to her about the applicant with her and Ms Jennings stated that the issues raised by Mr Smith, Ms Thomas and Ms Taylor were not raised with the applicant because these employees had asked that their complaints be kept confidential.  Ms Jennings recalled that she spoke to the applicant about the issues raised by Mr Johnson but she did not indicate this in her notes and Ms Jennings stated that she anticipated that she would be dealing with all of the complaints raised with her with the applicant after staff had received training in the respondent’s code of conduct.  Ms Jennings could not recall if she discussed the concerns raised with her by Ms Barnes with the applicant and she agreed that she did not discuss the issues raised by Ms Hennessy at the meeting held on 7 October 2009 with the applicant.

155   Ms Jennings agreed that Mr Winfield told her that Ms Hennessy had denigrated the applicant’s management of BRAC over the PA system at the pool and she stated that she tried to contact Ms Hennessy twice over this incident however she was not on shift at the time.  Ms Jennings considered this to be a serious issue.

156   Ms Jennings agreed that Mr Winfield was supposed to assist the applicant to complete the Horizon Power document whilst the applicant was on leave but did not do so but Ms Jennings said that it only took her three hours to complete the additional information required to submit the application.

157   Ms Jennings stated that she was unaware of the specifics of the issues between Mr Logue and the applicant which led to the cessation of his employment with the respondent and Ms Jennings understood that when Mr Logue re-applied for work at BRAC it was as a pool attendant and he therefore would not be working directly with the applicant.

158   Ms Jennings stated that she did not raise the boot scooters’ complaint with the applicant because she had no time to investigate this complaint which was only raised with her the day before the applicant was terminated.  Ms Jennings agreed that the complaint made by Mr Vincent was not raised with the applicant but Ms Jennings maintained that the complaint by the soccer club was raised with the applicant on a couple of occasions and she also discussed the booking of swimming lessons with the applicant as the applicant raised this issue with her.  Ms Jennings stated that she received the complaints by the netball club via the applicant and she was unaware if these issues were resolved.

159   Ms Jennings stated that she gave information about the applicant to the respondent’s directorate in the lead up to the respondent’s decision to terminate the applicant and Ms Jennings stated that many issues were discussed with the applicant and others were not but she maintained that a number of issues concerning the applicant’s performance were ongoing.

160   Mr McGrath gave evidence by way of a witness statement (see Exhibits R6.1 and R6.2).  Mr McGrath was appointed as the respondent’s Manager Recreation Services on 18 November 2008 and prior to that he was the respondent’s first Sport and Recreation Development Club Officer when he commenced his position on 30 April 2007.  Mr McGrath has been involved in the sport and recreation industry in both professional and voluntary positions for more than 30 years.

161   Mr McGrath ensured that the applicant settled in when she first arrived in Broome in the middle of December 2008.  Mr McGrath gave evidence that he went through an induction process with the applicant which commenced on 15 December 2008 and continued into January 2009.  Mr McGrath stated that he was the applicant’s supervisor from when she commenced at BRAC until 30 July 2009 when he commenced a period of leave.  Mr McGrath said during the period he supervised the applicant the main issues of concern related to her management and communication style and the way she interacted with staff members and users of the BRAC facility and he stated that a number of issues arose in relation to how she approached and liaised with staff members, her colleagues, supervisors and community users at BRAC.

162   Mr McGrath said that he was concerned about the applicant rostering late shifts as punishment to staff so he raised this issue with the applicant.  Mr McGrath also spoke to the applicant about the budget impact of rostering herself on weekends instead of other staff and receiving higher overtime rates and Mr McGrath maintained that the applicant could have dealt with this issue by employing another staff member.

163   Mr McGrath gave evidence about an incident concerning the Broome Tennis Club but as this was not relied upon by the respondent with respect to its decision to terminate the applicant there is no need to go to this evidence.

164   Mr McGrath maintained that his relationship with the applicant deteriorated because she did not liked being questioned about the way in which she approached issues and he stated that when responding to him she reacted aggressively.  Mr McGrath said he was very careful in the way in which he wrote to the applicant and he denied that he was harassing her.  Mr McGrath stated that the applicant sometimes went above him by raising issues with his managers, for example when the applicant did not like his request to put a survey in a certain way she raised this issue with Ms Konecny.

165   Mr McGrath maintained that the reason the applicant received a warning on 23 July 2009 resulted from internal staff and external user dissatisfaction.

166   Mr McGrath gave evidence about his request for staff rosters from Mr Logue towards the end of July 2009 when the applicant was on sick leave.  Mr McGrath stated that he wanted to ensure that sufficient staff were available on the roster and he understood that the applicant contacted Mr Logue and asked him not to give that information to him.  Mr McGrath said that Mr Logue rang him on the night of Wednesday 29 July 2009 and told him that he had been abused by the applicant and he was resigning.  When Mr McGrath returned from leave on 17 August 2009 he was informed that Ms Jennings was now managing the applicant.

167   Mr McGrath maintains that there would be difficulties if the applicant was reinstated.  He stated that the staff culture and enthusiasm at BRAC is now different and he believes some staff members and user groups would be concerned if the applicant returned to BRAC.  Mr McGrath stated that the applicant was vindictive if a staff member disagreed with her.

168   Under cross-examination Mr McGrath conceded that he had difficulties performance managing the applicant and he acknowledged that because his probation review of the applicant was late he was given a verbal warning.  Mr McGrath maintained that the applicant was given an appropriate induction and he stated that he did not tell the applicant that it was her role to play ‘good cop bad cop’ with some of the user groups.  Mr McGrath disagreed that BRAC’s policies and procedures were made on the run and he stated that they were in place and had been developed over time.

169   In response to the applicant’s claim that he met too frequently with her Mr McGrath stated that it was useful to do so initially to assist the applicant.  Mr McGrath maintained that the applicant’s and Mr Doyle’s Job Description Forms were clear about their roles in relation to user groups and he denied that Mr Doyle was being approached by user groups instead of the applicant.

170   Ms McDougall gave evidence by way of a witness statement (see Exhibits R7.1 and R7.2).  Ms McDougall is employed as a duty manager by the respondent and she has worked at BRAC since 2004.  Ms McDougall stated that she found the applicant difficult to work with as she wanted things done her way, she was not willing to listen to how things previously operated at BRAC and changes made by the applicant were not discussed with staff.  Ms McDougall also claimed that the applicant had slammed the door “in my face” and had hung up the telephone on her.

171   Ms McDougall stated that the applicant put in place a new roster which prevented her from working when school programs were running which affected her role as a swim school programmer.  Ms McDougall claimed that she was put on permanent night shifts from 1.00 pm to 9.30 pm as a result of clashing with the applicant.

172   As Ms McDougall had ongoing concerns about the applicant she detailed them in a letter to Ms Konecny in August 2009 (see Exhibit R17 document 46 dated 3 August 2009).

173   Ms McDougall stated that at the staff meeting she attended on 23 October 2009 duty managers were unhappy by this time as everything staff did was being questioned by the applicant.  Ms McDougall stated that during the meeting the applicant went through the staffing structure and was “a bit negative towards staff”.

174   Ms McDougall gave evidence that since the applicant has left BRAC a number of members of the public have returned to using BRAC’s facilities and complaints about BRAC have stopped.  Ms McDougall maintained that staff at BRAC have bonded as a result and BRAC is running a lot more smoothly, a lot more is getting done and programs that the applicant had stopped were returning.  Ms McDougall stated that even though she enjoyed working at BRAC she would resign if the applicant returned to work at BRAC.

175   Ms McDougall stated that from time to time she raised issues about the applicant with Ms Konecny because she could not discuss them with the applicant.  Ms McDougall stated that she applied for leave in the normal manner and gave eight weeks’ notice of her request.

176   Ms McDougall gave evidence that she was involved in the applicant’s recruitment interview and she stated that she did not recall any discussion about the applicant being given a specific mandate for change.

177   Under cross-examination Ms McDougall stated that whilst she did not mind working the night shift she did not want to do so continuously.  Ms McDougall gave evidence that she was not solicited to make a written complaint about the applicant and Ms McDougall stated that she went to see Ms Konecny after her leave application was refused by the applicant.  Ms McDougall stated that at the time she was unaware that Mr McGrath was the applicant’s line manager.  Ms McDougall disputed that the running of BRAC was disorganised as at December 2008.  Ms McDougall stated that boot scooters have now returned to use BRAC since the applicant left and she was unaware if the reason they left was because they had no public liability insurance.

178   Ms Ingrid Bishop gave evidence by way of a witness statement (see Exhibit R8).  Ms Bishop is employed as the respondent’s Director Corporate Services and she has been working for the respondent since May 2007.  Ms Bishop stated that despite being asked on numerous occasions the applicant did not provide a marketing plan at any time prior to her termination.  Ms Bishop stated that BRAC’s financial reports during the period the applicant was employed did not indicate any improvement in BRAC’s financial position and she stated that during this period there was a reduction in income and an increase in expenditure at BRAC.

179   Mr Logue gave evidence by way of a witness statement (see Exhibits R10.1 and 10.2).  Mr Logue was employed as a casual duty manager by the respondent in May 2009 working 20 to 25 hours a week.  Mr Logue stated that the applicant told him that Mr McGrath and Ms McDougall were causing trouble for her however he tried not to get involved.  Mr Logue stated that the applicant told him to always roster Ms McDougall on the evening shift and he stated that this was the applicant’s way of trying to get rid of someone.  When the applicant took a week of sick leave in July 2009 Mr Logue was left to look after BRAC during this period and when Mr McGrath asked him for a copy of the staff roster for this period he raised this with the applicant when she contacted him.  During this discussion the applicant accused Mr McGrath of micromanaging her and told Mr Logue that he should not be talking to him and Mr Logue said he was trying to keep the peace and not trying to take sides.  Mr Logue later had a conversation with Ms Konecny and when the applicant found out about it she told him not to speak to other staff and she told him that if he kept contacting other staff it would not look good for him and she told him that people were out to get her and that he was being disloyal to her.  Mr Logue told the applicant that he was not prepared to be caught in the middle and as he was fed up with his treatment he resigned.  Subsequent to his resignation he wrote out a statement detailing the reasons for his resignation (see Exhibit R17 document 45 dated 31 July 2009).

180   Mr Logue stated that he returned to work with the respondent once the applicant left as he knew most of the issues would not be there any more and he said that if the applicant was reinstated there would be no staff left and he would not continue to work for the respondent.  Mr Logue stated that when he applied to recommence employment with the respondent he applied for lifeguard duties, not a duty manager position, which involved little contact with the applicant.

181   Mr Chester gave evidence by way of a witness statement (see Exhibits R 11.1 and 11.2).  Mr Chester is BRAC’s Program Development Officer and he has worked in this role with the respondent for four years.  The applicant was his direct manager.  Mr Chester stated that when he returned from six months leave without pay, working at BRAC was becoming very stressful as tasks were moved from one person to another, his authority had been removed and the applicant was often not around.  Mr Chester stated that the applicant was disorganised and “things were not getting done” and it was his view that BRAC was on the verge of falling apart as there were many complaints from staff and customers.  Mr Chester maintained that under the applicant invoicing had fallen behind as BRAC was low on staff and he claimed that if a workable roster was put in place which allowed employees time to do the invoicing then this issue would not have arisen.  Mr Chester also maintained that problems relating to customer service were related to high staff turnover.

182   Mr Chester stated that the conduct of the staff meeting held on 23 October 2009 by the applicant was offensive.

183   Mr Chester believed that his future at BRAC was limited as a result of the applicant being in charge.

184   Mr Chester stated that since the applicant has ceased working at BRAC it is working better and morale was high.  The new manager was approachable and Mr Chester said that employees work better as a team and he feels that he can be a team player.

185   Mr Chester maintained that all banking discrepancies were reviewed and most of them resolved.  Mr Chester claimed that BRAC’s start and finish times had been in place for several years and if the applicant had taken the time to ask and listen this would not have been an issue.  Mr Chester maintained that the applicant took little time to consider the needs of customers or staff members and she made the workplace a difficult place for hard working staff members as she refused to listen to staff members and showed little respect towards them.

186   Under cross-examination Mr Chester confirmed that as he was on leave from March 2009 to 5 October 2009 and also for a period of three weeks in January/February 2009 he was away for most of the time the applicant worked at BRAC.  Mr Chester stated that at the staff meeting held on 23 October 2009 the applicant was not yelling at staff or swearing at them and he described her as being direct and he agreed that she was not being offensive to anyone directly.

187   Mr Doyle gave evidence by way of a witness statement (see Exhibit R12).  Mr Doyle is employed by the respondent as the Sport and Recreation Club Development Officer and he has held this position for almost a year.  In this role he assists sporting clubs with their development to help them remain sustainable and to ensure their volunteers are supported and he is a link between the clubs and the respondent at the grass roots level.  As a result there is an important communication relationship between his position and BRAC’s Centre Manager.

188   Mr Doyle stated that he would liaise with the applicant on issues relevant to BRAC but he stated that there was a reluctance on the applicant’s part to accept offers put to her by him.  Mr Doyle maintained that the applicant handled issues poorly for example the replacement of soccer goals in mid 2009 and the applicant was inflexible with respect to the timing of the women’s soccer games in July 2009.  Mr Doyle claimed that the applicant mishandled this issue but rather than admit she may have been wrong about how she handled this she made excuses and blamed others.  As a result of the applicant’s behaviour Mr Doyle used email communication to record his dealings with the applicant.  Mr Doyle stated that it was difficult to obtain a season schedule for clubs and the public to access information of what sports were on from the applicant and he stated that it was frustrating liaising with the applicant on these issues.

189   Mr Doyle stated that at a Broome Sports Association meeting he attended in September 2009 a number of issues were raised involving BRAC including a complaint the netball association had with the applicant’s attitude.  Mr Doyle stated that the applicant quickly developed a reputation in the sporting community for being confrontational however the applicant saw herself as being a victim and thought that everyone was against her and she refused to take responsibility for her actions.  Mr Doyle said the sporting clubs had no trust in the applicant and even though he offered her assistance she would not take up this offer.

190   Mr Doyle gave evidence about a clash between the water polo and the swimming club because the applicant had booked the water polo club to use some of the swimming club’s lanes.  When Mr Doyle raised this issue with the applicant and asked if it was possible for him to be made aware of any club related issues the applicant refused to do this.  Mr Doyle stated that on 16 October 2009 the applicant told him that he was getting too involved in matters involving clubs and Mr Doyle found this absurd given that his role was Club Development Officer and he was trying to resolve club related issues quickly and simply.  Mr Doyle stated that since the applicant has left BRAC he has found it refreshing to deal with BRAC’s new manager.

191   Under cross-examination Mr Doyle stated that towards the end of the applicant’s employment with the respondent their roles had become blurred and this led to friction.  Mr Doyle conceded that the applicant’s emails to him were not offensive.

192   Mr Aaron Bell gave evidence by way of a witness statement (see Exhibits R13.1 and R13.2).  Mr Bell is the president of the Broome Tennis Club and he maintained that the applicant had shown disrespect to the Broome Tennis Club as a user group of BRAC and he described the applicant as behaving unacceptably towards the Broome Tennis Club and that she lacked management skills.  Mr Bell maintained that the Broome Tennis Club, on whose behalf he gave evidence, is relieved that the applicant is no longer involved with the management at BRAC.

193   Mr Vincent gave evidence by way of a witness statement (see Exhibit R14).  Mr Vincent is the respondent’s Events and Sponsorship Coordinator and he commenced employment in this role on 12 October 2009.  Mr Vincent had a meeting with the applicant in the week after he commenced employment and he described her as being negative during this meeting.  The applicant complained that she was not getting any support from her director or from the organisation, she stated that she did not know if the directorate knew what it was doing and she told him that the directorate did not have a clue about what is going on at BRAC and no clue about what it takes to run a recreation and aquatic centre.  The applicant gave him examples about how she was trying to bring about change but was not getting support from management or the CEO.  Mr Vincent gained the impression that she felt that everyone around her was incompetent and did not know what they were doing and Mr Vincent stated that he was surprised by what he described as a rant from the applicant.  He stated that the applicant maintained that she did not have support from staff and she claimed that staff were actively working against her and undermining her and she believed that they were not performing their duties well deliberately so that it would look bad for her in front of her managers and the community.  The applicant also stated that she had issues with user groups and she listed a number of groups which were regular problems and were undermining her to try and get rid of her including the swimming and aerobics clubs.  When the conversation turned to the purpose of his meeting with the applicant and after Mr Vincent explained his role he said that he received a negative response from her about completing this role.  Mr Vincent stated that the applicant was not supportive of a streamlined booking system which he wanted to implement and the applicant told him that he could not do this as there were different computer systems at BRAC and the Shire.  Mr Vincent said that is the only time he met with the applicant.  Mr Vincent said he sent an email to Ms Konecny about his meeting with the applicant as she and Ms Jennings had asked him to keep them updated about how his project was being received throughout the organisation (see Exhibit R17 document 64 dated 29 October 2009).  Mr Vincent said he continues to deal with staff at BRAC but has not received anything like the reaction the applicant described he would receive in his meeting with her.  Mr Vincent stated that if the applicant returned to work with the respondent it would be difficult to introduce new event systems, which is part of his role, and he stated that he would prefer not to work with someone with her oppositional and aggressive management style.

194   Ms Taylor gave evidence by way of a witness statement (see Exhibits R15.1 and R15.2).  Ms Taylor was the BRAC Customer Services Supervisor for two years and she left her employment with the respondent in the middle of November 2009.  Ms Taylor described the applicant as difficult to work with and that she made “everything hard and took all of the responsibility from people”, she described the applicant as being disorganised, she took a long time to get things done and she had a habit of doing back flips and she would tell you to do something and then later tell you that was not what she said.  Ms Taylor maintained that as everything had to go through the applicant and she was so disorganised a lot of things did not get done.

195   In October 2009, whilst the applicant was on leave, Ms Taylor raised the following issues with Ms Jennings:

• swimming club and water polo bookings clashing;

• workplace bullying by the applicant;

• the applicant not replacing a kiosk person so Ms Taylor was in the kiosk all week; and

• restrictions the applicant placed on ordering stock made a simple task extremely difficult.

196   Ms Taylor stated that she was concerned about how the applicant treated staff and she stated that she was rude and BRAC was not an enjoyable place to work and she maintained that she could not trust the applicant to tell the truth and that she would lie or stretch the truth to cover her back.  Ms Taylor gave evidence that at the staff meeting held on 23 October 2009 the applicant seemed to be putting staff down and any question raised was ignored by her or brushed aside.  Ms Taylor stated that her job at BRAC had changed a lot and it had been a difficult year for her and Ms Taylor stated that as a result of the additional work load given to her by the applicant and her removal from the front desk part-time staff were not given the support they required and customer service declined.

197   Mr Ben Holden gave evidence by way of a witness statement (see Exhibit R16).  Mr Holden is currently the Acting Centre Manager of BRAC.  Mr Holden stated that after he arrived he met BRAC staff and sporting clubs and he said it became evident from these meetings that there was a fair bit of ‘bad blood’ against BRAC and how it had been managed in the previous 12 months.  Mr Holden gave evidence that he has changed the organisational structure at BRAC and staff numbers have been reduced.  He has also made essential equipment purchases that had not been made.

198   Ms Hennessy gave evidence by way of a witness statement (see Exhibit R5.1 and R5.2).  Ms Hennessy has worked for the respondent as an aqua aerobics instructor since the beginning of 2007.  Ms Hennessy maintained that the applicant was disorganised and there was a lack of communication between herself and staff and she was not helpful with respect to operational matters.  Ms Hennessy cited the applicant’s failure to notify aqua instructors that she had sent the portable music/microphone system away to be repaired and did not organise a replacement.  Ms Hennessy maintained that the applicant was inflexible and she gave by way of example when aqua classes were cancelled Ms Hennessy offered to undertake land based fit ball classes as an alternative but the applicant refused to allow these classes to be run.

199   Ms Hennessy stated that under the applicant’s leadership staff morale was low, staff had responsibilities removed from them and the day to day running of BRAC was not working.  Ms Hennessy stated that the applicant talked about making changes but she could not get the basics in place and staff were disillusioned.  In July 2009 Ms Hennessy arranged to meet with Ms Konecny and Mr McGrath to discuss her concerns about the applicant as she did not want to put her concerns in writing but after this meeting she was asked to detail them in writing which she did (see Exhibit R17 document 47).  Ms Konecny told her at the time that the respondent was working with the applicant to sort things out.

200   Ms Hennessy stated that she had recommended that mothers in her classes use BRAC’s crèche and she was embarrassed by this when two children escaped from the crèche.  Ms Hennessy maintained that she did not have a vendetta against the applicant but she was angry with her as a result of the crèche incident and the applicant taking so long to deal with this issue.

201   Ms Hennessy stated that since the applicant has ceased working at BRAC staff are happier, they have direction in their jobs and duty managers are now empowered and are involved in planning.  Ms Hennessy stated that she would no longer work at BRAC if the applicant was reinstated.  Ms Hennessy denied that she lodged a complaint as she was not able to undertake additional classes and she maintained that it was at the applicant’s initiative that extra classes were put on.

202   Under cross-examination Ms Hennessy confirmed that she was not an employee of the respondent but a contractor.  Ms Hennessy stated that she was unaware how many times the music system had been fixed and she stated that it was only partially fixed as at February 2010.  When it was put to Ms Hennessy that she used BRAC’s PA system to suggest people should complain to Ms Jennings about the applicant Ms Hennessy stated that she suggested to people that if they had any issues that they needed to direct them to BRAC management she could not recall a specific occasion that she used the PA system to do this but she said that it is possible that she did so as it would be in her nature to do something like this.  Ms Hennessy maintained that she was not seeking to undertake additional classes and she had in fact reduced the number of classes she was taking after her second child was born in 2009.

Applicant’s submissions

203   The applicant maintains that she was unfairly dismissed when she was terminated on 23 October 2009 (see Undercliffe Nursing Home v Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 and Shire of Esperance v Mouritz [op cit]).  The applicant also argues that she was summarily terminated as she was not given notice of her termination and she was not paid two weeks’ pay in lieu of notice until two months after her termination (see Thomas Howell v Barminco Pty Ltd [2002] 82 WAIG 2528 at 2533; Sanders v Snell [1998] HCA 64 at [16]).

204   The applicant argues that when an employer summarily dismisses an employee it bears the burden of proof to establish that summary dismissal was warranted due to misconduct and the applicant claims that a dismissal for poor performance would not amount to a dismissal for misconduct.  The applicant argues that as the respondent breached the terms of the 2007 Agreement with respect to the management of the applicant’s alleged unsatisfactory performance this contributed to the unfairness of her termination.  Specifically, the applicant argues that the respondent did not comply with a number of the provisions of Clause 17.6 – Management of Unsatisfactory Performance in the 2007 Agreement when conducting the applicant’s performance management process.  The applicant also rejects the respondent’s claim that her actions warranted being subject to a performance management process but even when the respondent endeavoured to do this there was no end date to this process.  The applicant argues that a proper performance management process never took place as the only issues Ms Jennings raised with her at meetings were operational matters and not complaints.  Furthermore there were options available to the respondent apart from terminating the applicant which included standing the applicant down whilst an investigation into her performance took place or extending her performance management process.  The applicant also argues that during the applicant’s disciplinary process Ms Irving and Ms Konecny were biased against her as confirmed by the evidence of Mr Allen.

205   The applicant maintains that issues of significance to take into account with respect to her termination include when the complaints were made against her, the purpose for which she was hired, the resistance she encountered from user groups when putting that purpose into effect, the relationship between the applicant and the entirety of the user groups at BRAC and the culture in place at BRAC when the applicant arrived.

206   The applicant claims her dismissal was also unfair for the following reasons:

• the failure to accord the applicant procedural fairness during the disciplinary process;
• during the disciplinary process the applicant’s case not being given proper weight;
• the lack of detail in the complaints made against the applicant;
• the applicant was employed because of her particular attitude and management style;
• the applicant was endeavouring to overcome numerous accountability and basic procedural issues with respect to BRAC’s practices;
• the applicant was mismanaged by her immediate line manager who was inexperienced;
• the applicant’s other line managers, Ms Konecny and Ms Jennings, were not experienced in or familiar with the running of a leisure facility;
• the applicant repeatedly sought assistance with respect to her role as Centre Manager of BRAC but received none;
• some alleged complaints occurred as a direct result of instructions given to the applicant by her line manager;
• Broome Tennis Club was the only user group submitting sustained complaints against the applicant and the respondent knew it had been causing trouble for BRAC for many years.  Even though over 20  user groups used BRAC only two groups gave direct evidence about issues they had with the applicant and even though other organisations made complaints these only constituted a small minority of user groups.  Furthermore, Mr McGrath did not give the applicant proper instructions on how to handle user groups;
• many of the complaints made against the applicant were either not raised with nor resolved with the applicant at the time;
• the applicant was the subject of hypocritical behaviour by her managers; on one hand the applicant was criticised for taking her concerns to persons higher than her immediate line managers and on the other hand, she was subjected to complaints from staff immediately below her which were not brought to her first;
• the applicant was subject to resistance and interference in her duties, to the extent of micromanagement from individuals who did not have that level of authority or who otherwise did not have the requisite experience to properly manage her;
• by the time of her dismissal the applicant was in fear of her line managers, in particular Ms Konecny;
• both Ms Konecny and Ms Irving had become aggressive towards the applicant through the course of the disciplinary proceedings against the applicant;
• Mr Donohoe had given an undertaking that if proper processes were not followed with respect to the applicant’s termination he would reinstate the applicant with an apology and the investigation he promised to undertake did not occur;
• the applicant disputes the respondent’s claim that she is the common denominator with respect to the complaints made about BRAC since she was employed by the respondent and her alleged poor performance was not raised as a reason for termination; and
• the applicant refutes the respondent’s assertion that her probation formed the initial part of her performance management disciplinary review and the applicant disputes that the Broome Sports Association was set up to deal with complaints arising from the applicant’s handling of BRAC.

207   The applicant maintains that she gave her evidence honestly, fairly and accurately, she confirmed she was not autocratic, she was employed to do a particular job and tried to do so to the best of her ability and in doing so she had no support from her managers and the applicant argues that much of the evidence given by the applicant is not disputed by the respondent.  The applicant argues that the evidence she gave should be preferred to the evidence given by the respondent’s witnesses where there is any inconsistency as the applicant’s evidence was direct, she established facts, she provided clear justifications for her actions and her evidence was supported by documentation provided by her and the respondent.  The applicant argues that witnesses who gave evidence on her behalf did not have any self interest and where relevant corroborated the applicant’s evidence and their evidence was given honestly, it was not exaggerated and it was accurate.  In particular the applicant argues that weight should be given to the evidence of Mr Allen who was unbiased and he made accurate observations on events outside his involvement, Mr Farmer was impartial and Mr Jackson was experienced and involved in the decision to hire the applicant.  Ms Tannock-Jones remains as an employee at BRAC and is in a position to speak with some authority as to the issues relevant to the applicant’s employment.

208   The applicant maintains there was no evidence that at the meeting the applicant held with staff members on the day she was terminated which was attended by Ms Jennings and Ms Konecny that she had bullied staff members as confirmed by the evidence of Mr Chester, Ms Taylor, Ms McDougall and Ms Tannock-Jones at the hearing.  Additionally, nothing was put to Ms Tannock-Jones about her lying about the applicant’s behaviour being inappropriate at this meeting (see Brown v Dunn [1893] 6 R 67).  The applicant was under stress at the time of this meeting, the attendance of Ms Konecny and Ms Jennings was intimidatory and the applicant had been through months of performance meetings so it would be illogical for her to have behaved at the meeting in the manner claimed by the respondent.  In the circumstances the applicant’s evidence about this meeting as corroborated by Ms Tannock-Jones, should be accepted.  The applicant also argues that the accounts of the meeting by Ms Konecny and Ms Jennings are exaggerated and lack credibility as they are contrary to the accounts given by other employees who attended the meeting.

209   The applicant argues that witnesses who gave evidence for the respondent including Ms Konecny, Ms Jennings and Ms Irving had an antipathy towards her, they were biased against her and they had an axe to grind against the applicant and did not like the way she treated them.  Some of the evidence given by Ms McDougall was contrary to correspondence tendered during the hearing and evidence given by Mr Winfield.  The applicant argues that Ms Irving was not objective and the breakdown of her personal relationship with the applicant had an impact on her responses during the disciplinary proceedings against the applicant.  Ms Konecny had an animus against the applicant which was personal and she subverted the applicant by taking complaints from staff against the applicant.  Even though she says she had initial concerns about the applicant within a couple of weeks of commencing employment with the respondent she did not do anything about that until five months later.  Additionally, the evidence she gave at the hearing was evasive and she did not provide direct answers to questions at the hearing until asked to do so.

210   The applicant argues that Ms Jennings was incompetent as a performance manager.  For example, no KPIs were generated by Ms Jennings and even though Ms Jennings maintained she raised issues with the applicant these were not reflected in her notes and some issues she gave evidence about such as the undertaking of swimming lessons at BRAC was incorrect.  Ms Jennings was also partisan against the applicant.  Ms Hennessy was argumentative and confrontational and encouraged complaints to be made against the applicant and Mr Logue’s evidence was unreliable and/or untruthful and the evidence he gave about returning to work at BRAC was inconsistent.  Mr Chester gave evidence which was inconsistent with his witness statement and his evidence was unreliable and the witness statement made by Mr Doyle was inconsistent with the evidence he gave at the hearing.

211   The applicant claims she was dismissed because she attracted the ire of certain individuals and not for a justified complaint that was ever put to her and none of the complaints made against the applicant were proven.

212   The applicant argues that when she was summarily dismissed on 23 October 2009 and told to leave BRAC that day she was dismissed in humiliating circumstances as she was in the middle of a staff meeting and she was not given any right of reply to the basis upon which the respondent maintained she should be terminated.  The applicant also argues that as she was summarily terminated on 23 October 2009 the events on that day plus those issues identified by Ms Konecny are the only events that the respondent can rely on as the reasons for her termination.

213   The applicant argues that the reasons for her termination were vague and lacked detail and none of the seven items relied upon by Ms Konecny at the hearing, which formed the basis for the respondent terminating the applicant, were raised with the applicant prior to her termination.  The applicant also argues that the issues the respondent relied on to terminate her did not all arise on 23 October 2009 and therefore this is not a circumstance where the alleged misconduct was so serious or so pressing that it had to be acted on instantly.

214   The applicant argues that the respondent did not undertake a proper investigation into the allegations made against her and the respondent neglected to take into account the statement made by Ms Tannock-Jones about Mr Logue.  Additionally, Ms Irving gave evidence that if she was aware of this account this may well have changed the way in which the respondent handled the complaints against the applicant.  The applicant maintains that the complaints made by Ms McDougall were not relevant to her termination and the complaint made by Ms Taylor was not raised with the applicant and issues raised by Mr Chester are not helpful as he was only at BRAC for a short time during the time the applicant was employed by the respondent.

215   The applicant argues that even though the CEO gave the authority to Ms Konecny to terminate the applicant prior to 23 October 2009 he undertook not to follow through with the applicant’s termination if proper processes were not followed at a meeting held after the staff meeting on 23 October 2009.  However, despite this undertaking there appears to have been no investigation into the applicant’s termination by the CEO and Mr Donohoe was not called to give evidence about any review he undertook into the applicant’s termination.  As the CEO did not give evidence at the hearing the applicant argues that an inference can be drawn that his evidence would have been unhelpful to the respondent (Jones v Dunkel [1959] 101 CLR 298).

216   The applicant is seeking reinstatement and recent changes to the respondent’s organisation confirm that Ms Konecny, who was the main protagonist against the applicant, will no longer be employed by the respondent from 7 May 2010 and the position of Centre Manager has a more direct reporting scenario (see Exhibit A14).  Reinstatement is therefore even more practicable now than at the time of the hearing.  Additionally, Mr Holden who currently is the Centre Manager holds that position on a temporary basis.

Respondent’s submissions

217   The respondent argues that it terminated the applicant on notice because of poor behaviour and poor performance.  The respondent therefore maintains that the applicant was not summarily terminated however if the Commission finds that the applicant was terminated in this manner it concedes that it did not have sufficient reason to terminate the applicant in this manner.

218   The respondent maintains that as the applicant was given a payment in lieu of notice subsequent to her termination she was not summarily dismissed.  Even though the payment took some time to be given to the applicant this was because the applicant disputed a range of entitlements she claimed she was owed and it was not until all issues were finalised with the applicant that the payment in lieu of notice was made to her.  The respondent maintains that the applicant was removed from the workplace on the day of termination because it was Ms Konecny’s view that the issues concerning the applicant’s performance and behaviour had escalated to a point where it was no longer appropriate for the applicant to remain at work.  Furthermore the applicant’s behaviour on the afternoon of 23 October 2009 did not assist in enabling the applicant to remain at work.

219   The respondent argues that there were numerous disputes and complaints about the applicant throughout her employment with the respondent and she was the common denominator for almost all of the problems involving BRAC during 2009.  The respondent also maintains that the applicant attempted to camouflage issues by relying on a range of peripheral issues and the applicant did not accept that her behaviour was the cause of most of the complaints made against her.

220   The respondent claims that the applicant was given the usual induction provided to a middle level manager and she was guided, counselled and then performance managed and disciplined by several levels of management.  Mr McGrath gave evidence that the applicant was given support over and above that which is normally given to a new employee and furthermore the applicant was experienced in working in local government.  The respondent does not dispute that areas of BRAC could have been run more effectively when the applicant was appointed however the respondent disputes the applicant’s claim that she was given a mandate to force or bring about significant change by playing good cop bad cop.  The respondent just wanted the applicant to run BRAC efficiently and the applicant was told of this in her probation review meeting and at regular performance review and operational meetings.

221   The respondent argues that the applicant was unable to competently perform as the Centre Manager of BRAC and after receiving counselling the applicant was unwilling to improve or alter her communication and management style or address her performance deficiencies.  The applicant did not recognise the history, climate and the Broome community as being legitimate and as she did not accept guidance she made her job a lot more difficult than it needed to be.  The applicant displeased staff, sporting clubs, managers and the general community and she seemed to believe that upsetting people was part of her role.  The applicant also regularly undermined her managers and would raise issues further if she did not initially obtain the answer she wanted.

222   The respondent attempted to performance manage the applicant to the required standard and on at least 25 occasions between February 2009 and October 2009 the applicant was counselled, coached and/or warned about performance concerns.  This included weekly meetings involving variously Mr McGrath, Ms Jennings, Ms Irving, Ms Konecny and Mr Donohoe who were all involved in attempting to address concerns about the applicant’s performance and behaviour.

223   Initially the applicant reacted positively when issues were raised with her but the applicant then rejected support given to her and proceeded to undermine her managers and the respondent claims that the applicant did not believe that her direct managers knew how to manage BRAC and she therefore did not accept their directions.  Apart from one email sent by the applicant on 5 March 2009 to Mr McGrath the applicant did not recognise that there were issues and concerns regarding her behaviour.  Ms Konecny acknowledged that Mr McGrath had allowed the applicant to delay, divert and disrupt his attempts to performance manage her however Ms Jennings was diverted away from her normal role to performance manage the applicant.

224   The respondent maintains that despite targets being set, frequent meetings and assistance being given to the applicant, numerous complaints were made against her over a period of 10 months in 2009.  Some of these complaints were as follows:

• complaints by the Broome Tennis Club;
• a complaint about shade sails in February;
• Mr Doyle had an issue with the applicant relating to soccer goals and programming in July; and
• various staff complaints were made as follows:

- Mr Logue in July 2009;

- Ms McDougall in August 2009;

- Ms Hennessy in August 2009;

- Ms Thomas a casual Vacation Swimming Instructor in October 2009;

- Mr Smith a Lifeguard in October 2009;

- Mr Vincent in October 2009; and

- Mr Chester in October 2009.

225   The respondent claims that the applicant was not undertaking the job that she was employed to do.  The respondent argues that the applicant changed BRAC’s operations to ensure that she controlled everything, she employed people who gave her their unquestioning support, she removed autonomy from staff and bullied those who disagreed with her including rostering them on the late shift as punishment, she refused to talk to some employees and the applicant did not deal appropriately with those in authority.

226   The respondent maintains that the applicant displayed hypocritical behaviour with respect to how she alienated staff, managers and stake holders.  For example, the applicant undermined her manager and director but then accused her staff of undermining her, she claimed to be finding ways to cut expenditure then gave herself lucrative overtime shifts instead of other staff and she denigrated people working at BRAC for getting things done the way they wanted.

227   The applicant had the mistaken view that managers were out to get her.  When BRAC’s operations deteriorated staff openly acted against the applicant and they complained directly to the applicant’s managers about her because staff had lost trust and respect in her.

228   The respondent argues that as at 23 October 2009 BRAC’s operations were dysfunctional and evidence given by the respondent’s witnesses demonstrates that there was a complete breakdown in the employment relationship between the applicant and the respondent both as a manager and as an employee.  Ms Konecny had canvassed the option of the applicant’s dismissal with Mr Donohoe prior to the staff meeting held on 23 October 2009 and she had the authority to terminate the applicant and the evidence demonstrates that this was an appropriate and reasonable decision to make.

229   The respondent acknowledges that the applicant’s performance management process could have been conducted more effectively and that her probationary review was not carried out within the stipulated timeframe and the warnings given to the applicant were not descriptive about the performance problems. However, the respondent argues that it complied with the performance review process outlined in Clause 17.6 of the 2007 Agreement.  The respondent argues that the applicant’s probationary review was the first formal discussion about the applicant’s performance concerns, Clause 17.6.2 led to the applicant being offered external assistance through the employee assistance programme and external mediation, Clause 17.6.3 was the meeting held on 29 May 2009 and subsequently a range of formal and informal meetings resulting in the applicant receiving a warning on 19 August 2009 which satisfied Clauses 17.6.3.1 and 17.6.3.2.  Clause 17.6.4 resulted in weekly meetings held between the applicant and Ms Jennings where deadlines were set and issues raised for the applicant to deal with.  The respondent conceded that the applicant was not given any further warning and pursuant to Clause 17.6.5 of the 2007 Agreement the applicant did not sign the warning she was given or her probation review was not countersigned however the respondent argues this was not fatal to its process nor did the applicant raise this whilst employed by the respondent.  The respondent also maintains that it complied with Clause 17.6.6 of the 2007 Agreement as the applicant was dismissed because she did not reach the required level of performance.  The respondent acknowledges that there was no agreed period for the applicant’s performance management process, but argues this is a minor breach of the 2007 Agreement requirements.  Furthermore, even though Clause 17.6.6 of the 2007 Agreement provides that the CEO needs to be involved and make the decision that no further assistance can be provided to an employee the CEO does not need to make the decision to dismiss an employee or be the one to communicate it and the Director Community Services was delegated with this authority in this instance.

230   The respondent maintains that the applicant is incorrect in claiming that concerns were not raised with her as to the reasons for her termination and the respondent disputes the credibility of the evidence given by witnesses on behalf of the applicant at the hearing.  The respondent argues that on the weight of evidence it is clear that the applicant was a common denominator with respect to a range of problems experienced at BRAC and even at the hearing the applicant continued not to take responsibility for problems raised with respect to the running of BRAC.

231   The respondent argues that there was ample evidence that the applicant had a poor relationship with many employees, for example on the issue of rostering.  The respondent also argues that whenever the applicant attended a meeting about her behaviour and performance she claimed she was being bullied or harassed or her manager was being aggressive and this appeared to be an automatic defence used by the applicant whenever performance deficiencies were raised with her.

232   The respondent argues that notwithstanding internal and external support given to the applicant complaints continued to mount against her and many of these complaints were substantiated even though the applicant thought she was doing a good job.  The respondent maintains that it was apparent that the applicant was not doing a good job given the applicant’s antagonistic relationship with user groups, the applicant’s poor comprehension of BRAC’s finances which she claimed had improved when in fact it was the opposite and the applicant’s failure to undertake a range of normal duties on time and in a satisfactory manner, for example the Energy Efficiency project submission.  The respondent claims that as matters deteriorated the applicant gave herself favourable treatment by rostering herself for overtime.  As a result of three complaints in particular the applicant was given a warning on 19 August 2009.  The respondent maintains that the applicant was not denied natural justice with respect to this process as she was given a proper opportunity to respond to the issues raised with respect to her behaviour.  Furthermore, the applicant was unable to substantiate her claim that the managers involved in this process were biased against her.  Even though Ms Tannock-Jones made a statement that the applicant claims was tendered at the disciplinary meeting held on 11 August 2009 even if it had been tendered and investigated this would not have made a difference to the outcome of that meeting.

233   The respondent argues that by 23 October 2009 the applicant’s relationship with her staff, some user groups and her managers had broken down, the running of BRAC was dysfunctional and events of the meeting held on 23 October 2009 was indicative that this was the case.  The respondent relies on the evidence of Mr Chester, Ms McDougall and the other employees, apart from the applicant and Ms Tannock-Jones, about the events of this meeting.  The respondent also maintains that Ms Tannock-Jones’ recollection of the meeting held on 23 October 2009 is confused and should be given little weight as it was contrary to the recollection of other staff members who attended this meeting.  As at this point the applicant was unable to perform her role it was reasonable that she be terminated and Ms Konecny had the authority to do so.

234   The respondent maintains that it is not practicable to reinstate the applicant.  BRAC is now running smoothly under Mr Holden and if the applicant was to be reinstated it would have catastrophic consequences on staff, many of whom do not wish to work with the applicant.  Furthermore, during the hearing the applicant showed no contrition as to her behaviour.  The respondent argues that the primary reason for BRAC’s turnaround today is the applicant’s absence and if the applicant had remained at BRAC or was to return to BRAC this would have a significant detrimental outcome to BRAC’s operations.  A number of the respondent’s witnesses also gave evidence that it is impracticable for the applicant to return to her former role with BRAC.  The respondent maintains that in any event the applicant frustrated any prospect of re-establishing an employment relationship by airing her views in the Broome Advertiser on 5 November 2009.  Even though there have been changes to the structure since the applicant was terminated these changes are not relevant to the applicant’s reinstatement as the revised structure only provides for a different reporting mechanism.

235   The respondent maintains that the applicant is not entitled to any compensation because even if the applicant’s termination was found to be unfair her employment with the respondent would not have remained for much longer than 23 October 2009 given problems with the applicant’s performance and behaviour.

Findings and conclusions

Credibility

236   I listened carefully to the evidence given by each witness and closely observed each witness.  In my view the applicant gave her evidence in a forthright and considered manner and her detailed evidence was supported by a substantial amount of documentation.  Whilst I accept that the applicant gave her evidence to the best of her recollection I disagree with the applicant’s claim that she interacted positively and in a professional manner with her managers and staff at all times given the tone of some of the correspondence generated by the applicant during her employment with the respondent.  The weight of evidence given in these proceedings is also against the applicant with respect to this issue.

237   Examples of the applicant’s poor communication skills as well as her confrontational attitude towards some of her colleagues are contained in the following exhibits:

• Exhibit A4.3 document 15 – Annual leave request - Ms McDougall – 27 May 2009;
• Exhibit A4.3 document 16 – Key result areas for CM BRAC – emails between applicant and Mr McGrath – 28 May 2009;
• Exhibit A4.3 document 19 – Additional hours – emails between applicant and Mr McGrath – 2 to 3 June 2009;
• Exhibit A4.3 document 30 – BRAC vehicle – emails between applicant and Mr McGrath - 15 July 2009;
• Exhibit A4.3 document 31 – Staff work attitudes at BRAC – email from Mr McGrath to applicant - 15 July 2009;
• Exhibit A4.3 document 44 – Deb Mills Staff Statements, Deb Mills Reply – email sent to Simon White by Ms Irving -12 August 2009;
• Exhibit A4.3 document 59 – Kim Logue – emails between applicant and Ms Jennings - 30 September 2009;
• Exhibit A4.3 document 80 – Community member concern – email from Ms Reynolds to Ms Jennings - 22 October 2009;
• Exhibit A4.3 document 81 – I have no idea what you are talking about Mike – emails between Mr Doyle, Ms Jennings and the applicant – 21 to 23 October 2009;
• Exhibit A4.3 document 82 – request for information – email from Ms Jennings to Mr Chester - 23 October 2009;
• Exhibit R17 document 29 – schedule of seasons – emails between Mr Doyle and the applicant – 30 June 2009 to 1 July 2009;
• Exhibit R17 document 32 – Next Sport & Rec Team meeting – emails between Mr McGrath, Ms Konecny, Mr Doyle and the applicant – 14 to 16 July 2009;
• Exhibit R17 document 38 – BRAC and Soccer – emails between Broome Soccer Association, Mr Doyle and the applicant – 21 to 24 July 2009; and
• Exhibit R17 document 52 – BRAC Crèche – emails between Ms Hennessy and the applicant – 25 September 2009.

238   I find that Mr Bell was not as forthcoming as he could have been about his interactions with the applicant on behalf of the Broome Tennis Club however nothing turns on his evidence as the applicant’s relationship with the Broome Tennis Club did not contribute to her termination.

239   In my view all of the other witnesses who gave evidence in these proceedings gave their evidence honestly and to the best of their recollection and I therefore accept the evidence they gave.  Even though there were some minor inconsistencies in the evidence given by some of the respondent’s witnesses in my view nothing turns on this when taking into account the totality of the evidence given on behalf of the respondent.  In particular, I found the evidence given by Ms Jennings to be very detailed and the evidence she gave about her interactions with the applicant after she was appointed to performance manage her in August 2009 to be credible as it was based on notes generated around the time of her meetings with the applicant.  As a result it is my view that this gives added weight to the evidence given by Ms Jennings.

240   The applicant argues that the nature of her dismissal was summary and that the payment after her termination of a payment in lieu of notice does not alter the summary nature of her termination.  The respondent submits that the applicant was not summarily terminated but it concedes that if the applicant is found to have been summarily terminated the respondent did not have sufficient grounds to terminate the applicant in such a manner.

241   It was not in dispute and I find that the applicant commenced employment as the Centre Manager of BRAC on 15 December 2008 and when she was terminated on 23 October 2009 she was required to cease working for the respondent on that date.  It was also not in dispute and I find that when the applicant was terminated she was required to leave the respondent’s premises with immediate effect and the applicant was paid two weeks’ pay in lieu of notice on or about 3 December 2009 which was six weeks subsequent to the date of her termination.  The issue of whether a dismissal of this nature constitutes a summary termination or a termination on notice was canvassed by Smith C (as she was then) in Thomas Howell v Barminco Pty Ltd (op cit) at 2533:

“Mr Gifford on behalf of the Respondent contends that the onus of proof that the Applicant was harshly, oppressively or unfairly dismissed lies on the Applicant as the Applicant's employment was terminated by the payment by the Respondent of pay in lieu of notice. In support of its submissions the Respondent relies upon the decision of the Full Bench in Newmont Australia Ltd v Australian Workers' Union, West Australian Branch, Industrial Union of Workers (1988) 68 WAIG 677. In that case the Full Bench of the Commission observed that where an employee's employment was terminated by summary dismissal there is an obligation upon the employer to show on balance that misconduct had in fact occurred. The Respondent contends that in this case the Applicant was not dismissed for misconduct but for poor performance so the nature of the termination was not summary. In The Federated Miscellaneous Workers' Union of Australia, WA Branch v Cat Welfare Society Incorporated (1991) 71 WAIG 2014 at 2019 Sharkey P and Gregor C observed—

"It seems to us that whether a dismissal has occurred in circumstances where pay in lieu of notice is made, that the question is one of mixed fact and law as to whether what occurred was a summary dismissal or not.

One consideration is that it depends whether such payment is permissible. That in turn depends on the contract and its construction (see Macken J J, McCarry G and Sappideen C "The Law of Employment", 3rd Edition, pages 170-172). In some industries, also, it might be said to be a custom. If then, a payment in lieu of notice were not provided for in the contract, then proper notice has to be given or there is a summary dismissal. The same would apply if there were no custom or usage.

It follows that a summary dismissal, as a matter of fact and law, cannot be altered in its nature by payment in lieu of notice."

…

More recently in Sanders v Snell [1998] HCA 64 at [16]; (1998) 196 CLR 329 at 337 Gleeson CJ, Gaudron, Kirby and Hayne JJ held that where there is no condition in a contact of employment for payment in lieu of notice, the employer is in breach of the contract if the employer does not give the employee requisite notice of termination. In that case there was a written contract of employment which specified a period of notice to be given.

It is apparent that the Applicant was not immediately paid pay in lieu of notice as he initially made a claim in his application for such a payment. Further, for the reasons set out below I am of the view that the Applicant's termination was sudden and unexpected. It is my view that the Applicant was summarily terminated and the onus of proving the circumstances justifying the termination rests upon the Respondent. …”

242   Given the manner and suddenness of the applicant’s termination as well as the inordinate delay in paying the applicant in lieu of notice I find that the applicant was summarily terminated.  Even though the applicant’s contract of employment contemplates a payment in lieu of notice being made to an employee at termination the applicant was not given this payment until six weeks after her termination which is a significant period (see Clause 18 of the 2007 Agreement).  The respondent argued that the payment of pay in lieu of notice to the applicant was delayed because of negotiations the respondent was having with the applicant about other entitlements being sought by her however no cogent reason was given by the respondent for not paying the applicant in lieu of notice at the time of her termination or soon after.  Nor was any pressing reason given by the respondent as to why the applicant was required to leave BRAC on 23 October 2009 and not work out her period of notice apart from the respondent claiming that as at 23 October 2009 complaints against the applicant had become ‘extreme’ and a claim that issues concerning the applicant had escalated to a point where it was no longer appropriate for the applicant to remain at work, which in my view lacked substance.  The respondent also relied on the applicant’s poor behaviour on the afternoon of 23 October 2009 however I accept that the applicant was distressed and upset at the time given her unexpected termination and in any event by this point in time the applicant had been told to leave the respondent’s premises on the basis that she had been terminated.

243   I find that as at 23 October 2009 the applicant was unaware that her termination was imminent and as a result her termination was sudden and without warning.  The applicant’s termination also occurred whilst the applicant was being performance managed by Ms Jennings and this process was ongoing as at the date of the applicant’s termination.  It was also not in dispute and I find that the applicant was terminated during a break in a staff meeting she was conducting with BRAC employees when she was undertaking her normal duties.

Legal Principles

244   The applicant was terminated because of her poor performance as BRAC’s Centre Manager, her inability to effectively manage BRAC’s staff and difficulties in her relationships with her managers and BRAC’s user groups.

245   In Robert Ashley James v Australian Integration Management Services Corporation Pty Ltd (2003) 83 WAIG 1387 at 1393 Sharkey P stated the following with respect to summarily dismissing an employee for incompetence:

“I now turn to questions of law relating to the competence of employees and right to summarily dismiss for incompetence.

Of course, it is trite to observe that summary dismissal will only be justified if there is a sufficiently serious breach of contract or the misconduct is such as to indicate that the employee no longer intends to be bound by the contract of employment.

Incompetence of an employee may certainly be sufficient justification for the exercise of the right of summary dismissal (see WA Rewind Company v Skennerton (1991) 71 WAIG 2045 (FB)).

The failure to afford the requisite skill which had been expressly or impliedly promised by an employee is a breach of legal duty and therefore misconduct (see Harmer v Cornelius [1843-60] All ER 624).  It should be observed, that such a requirement does not apply only to the restricted classes referred to in Harmer v Cornelius (op cit).

The basis upon which the employer is entitled to summarily dismiss an employee for incompetence is twofold:-

a) There must be an express or implied representation.

b) There must be actual incompetence ((ie) if an employee possessing a particular skill fails to exercise it or if an employee holds himself out as possessing a particular skill which he does not himself possess) (see Printing Employees Union of Australia v Jackson and O’Sullivan Pty Ltd (1957) 1 FLR 175 (CIC)).

The following principles which amplify what I have just said also apply:-

(a) A representation of the requisite skills by an employee may be implied from the fact that an employee applies for employment in answer to an advertisement setting out the required skills.

(b) An employee has the onus of ascertaining the skills required for the job for which the application is made.

(c) Acceptance of employment will, unless there is evidence to the contrary, amount to an implied representation that the employee has the necessary skill.

(d) There will be no representation where the employer knows that the employee does not possess the requisite skills (see Printing Employees Union of Australia v Jackson (op cit)) (see, generally, Macken, O’Grady, Sappideen and Warburton “The Law of Employment” (5th Edition), pages 201-204).”

246   In Cheryl Johnson v Millswan Holdings Pty Ltd ACN 063 694 299 t/a Drivewest Car Rentals (2003) 83 WAIG 348 at 353 Smith C (as she was then) stated the following with respect to an employee being terminated for incompetence:

“In Ishmael v Turk Ellis Pty Ltd of Elverston Nominees (1990) 70 WAIG 3532, Mrs Ishmael was dismissed from her position as computer operator on grounds that she would not consistently follow instructions.  Consequently, the employer found her work to be of an unsatisfactory standard.  The Commission found that the manner of dismissal was an error of judgment and conceded as such by the employer.  The Commission at first instance however, dismissed the Applicant's claim.  The Full Bench found the Commission at first instance erred in not finding that the termination was unfair.  At page 3533 the Full Bench observed—

"The question of competence is tested in matters of unfair dismissal in the following manner.

Generally, there is no finding of unfair dismissal when the termination has been due to incompetence or unsatisfactory performance.

The Industrial Appeal Court considered this matter in Industrial Inspector of OIR v Holliday 66 WAIG 477.  In that case Olney J set out a number of considerations:-

(1) Incompetence of an employee may be sufficient justification for the exercise of the right of summary dismissal.

(2) This will arise where there has been an express or implied representation by the employee that he was competent to fulfil the job and has been shown to be incompetent.

(3) A right of summary dismissal for inefficiency arises if an employee who possesses a particular skill fails or neglects to exercise that skill.

(4) If there is no general or particular representation as to ability or skill the workman undertakes no responsibility.

(5) His Honour also said at page 479:-

It is wholly unreasonable and lacking in logic that conduct which does not disentitle an employee to the normal period of notice or payment in lieu of notice upon termination of his services might nevertheless prevent him from becoming entitled to a pro rata annual leave payment.

The Commission has usually modified the strict right of an employer to dismiss for incompetence by requiring that some warning be given to the employee that his or her work is not satisfactory before terminating the employment (see Margio v Fremantle Arts Centre Press 70 WAIG 2559)."

Further, at 3535 in Ishmael v Turk Ellis the Full Bench held—

"In terms of incompetence, the employer is entitled to dismiss an employee if there was an express or implied representation by the employee of competence to fulfil a job, and secondly, actual incompetence [see PIEU v Jackson and O'Sullivan Pty Ltd (1957) 1 FLR 175].

The Commission at first instance, having found that each was a truthful witness, thus found the onus on the applicant not discharged.

The evidence really was, summarised, that Mrs Ishmael was not competent and failed to effect the necessary back-ups and other difficulties.

It was Mrs Ishmael's evidence that she was competent.  The law would appear to be that if an employee is dismissed without notice, but with money in lieu, what he/she received is, as a matter of law, damages for breach of contract."”

247   As confirmed in the above authority, an employee should be warned that his or her employment is in jeopardy and be given an adequate opportunity to improve his or her performance in the required areas prior to a termination being effected.  In Margio v Fremantle Arts Centre Press (1990) 70 WAIG 2559 the Full Bench found that the Commission at first instance gave no or insufficient weight to a number of relevant issues including volume of work, staffing and to the inadequacy of warnings given to the appellant and the Full Bench held that insufficient warnings and no opportunity being given to an employee to improve his work if improvement was needed or justified amounted to an unfairness.  The decision in Margio v Fremantle Arts Centre Press (op cit) was re-affirmed by the Full Bench of the Commission in DVG Morley City Hyundai v Mauro Fabbri (2002) 82 WAIG 3195 where Sharkey P with whom Wood C agreed held at 3202:

"Nonetheless, I also want to make it clear that I do not consider it to be only procedurally unfair if an employee is dismissed without reprimand or warning that his position is in jeopardy, or without being given the chance to remedy defects in her or his performance.

There was clear evidence in defining that he was dismissed in this manner (see paragraph 54-55).  There may well be exceptions to this requirement in relation to a particularly serious matter (but this is not one of them).

The failure to give such warnings or reprimands or an opportunity to improve a performance amounts in my opinion to substantive unfairness.  In this case the failure, which the Commissioner found, amounted to both procedural and substantive unfairness.

It was manifestly unfair that an employee who had received no reprimand, no chance to improve his performance, no written warning, no other warning and no indication that he was to be dismissed if he did not improve was dismissed.”

248   When an employee is summarily terminated there is an evidential onus upon the employer to prove that the employee’s summary dismissal was justified (see Newmont Australia Ltd v The Australian Workers' Union, West Australian Branch, Industrial Union of Workers [1988] 68 WAIG 677 at 679).  The question of whether a person is guilty of misconduct justifying summary dismissal is essentially a question of fact and degree (Robe River Iron Associates v Construction, Mining Energy, Timberyards, Sawmills and Woodworkers Union of Australia – Western Australian Branch & Ors (1995) 75 WAIG 813 at 819).  In most cases the employee should be given an opportunity to defend allegations made against them.  In Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 at page 229 the Full Bench of the South Australian Commission observed:

“Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee’s work record, such misconduct justified dismissal.  A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable.”

249   The test for determining whether a dismissal is unfair or not is well settled.  The question is whether the employer acted harshly, unfairly or oppressively in dismissing the applicant as outlined by the Industrial Appeal Court in Undercliffe Nursing Home v Federated Miscellaneous Workers Union of Australia, Hospital Service and Miscellaneous WA Branch (op cit).  The onus is on the applicant to establish that the dismissal was, in all the circumstances, unfair.  Whether the right of the employer to terminate the employment has been exercised so harshly or oppressively or unfairly against the applicant as to amount to an abuse of the right needs to be determined.  A dismissal for a valid reason within the meaning of the Act may still be unfair if, for example, it is effected in a manner which is unfair.  However, terminating an employment contract in a manner which is procedurally irregular may not of itself mean the dismissal is unfair (see Shire of Esperance v Mouritz [op cit] and Byrne v Australian Airlines (1995) 61 IR 32).  In Shire of Esperance v Mouritz (op cit), Kennedy J observed that unfair procedures adopted by an employer when dismissing an employee are only one element that needs to be considered when determining whether a dismissal was harsh or unjust.

250   I have already concluded that the applicant was summarily terminated and the respondent conceded at the hearing that if the Commission found that the applicant was summarily terminated it did not have sufficient grounds to terminate the applicant in this manner.  After reviewing the evidence given in these proceedings on the facts as I find them I am satisfied, at least on balance, that the respondent has not demonstrated that the applicant was guilty of misconduct or poor performance and/or incompetence sufficient to justify summary dismissal.  I am also satisfied that the applicant was treated unfairly and harshly because she was not given sufficient opportunity to defend herself against the allegations relied upon to effect the termination nor was the applicant afforded procedural fairness during the events leading up to her termination.  She was not afforded “a fair go all round” (see Undercliffe Nursing Home v Federated Miscellaneous Workers’ Union of Australia, Hospital, Service  and Miscellaneous, WA Branch [op cit]).

251   The applicant’s letter of termination dated 23 October 2009, which details the reasons for her termination and was received by the applicant on or about 28 October 2009, reads as follows (formal parts omitted):

“This is to inform you that on behalf of Shire of Broome I am terminating your contract of employment effective immediately.

This action is based on on-going performance issues as outlined over the period of your employment as Manager of Broome Recreation and Aquatic Centre (BRAC).

As advised in our correspondence to you on 19th August 2009 the outcome of investigation in response to staff complaints and grievances at BRAC resulted in a ‘Letter of Warning’ stating that any further conduct by you that is in breach of the standards required by Shire of Broome may result in termination.

Whilst under your performance management program implemented to assist in improving the identified performance areas and supervised by Anne Jennings, there have been further complaints both by BRAC customers and internal staff complaints.

The Key performance areas of concern are:

• Management style
• Communication approach with BRAC staff
• BRAC work environment
• Lack of ability to take direction from line-manager
• Operational matters including work-flow information, community consultation, programming and marketing

All property is to be returned to HR immediately - should you require retrieving personal properties from BRAC you must liaise with Department of HR.”

(Exhibit 4.1 document 48)

252   I accept Ms Konecny’s evidence and I find that the respondent terminated the applicant for the following reasons:

• the applicant bullied and intimidated Mr Logue to such an extent that he resigned;
• the applicant treated staff poorly including Ms Hennessy;
• staff complaints made to Ms Jennings about the applicant by Mr Doyle, Ms McDougall, Mr McGrath, Mr Vincent and Mr Chester;
• complaints about the applicant from user groups including boot scooting, netball, soccer, Aqua Lite, squash and basketball;
• an incident when children escaped from BRAC’s crèche;
• a complaint about difficulties organising swimming lessons at BRAC;
• complaints made by the Broome Sports Association about poor access to BRAC as a result of the applicant’s management;
• the applicant’s lack of acknowledgement about changing her style and taking responsibility for her poor management style;
• the applicant blaming others for her predicament; and
• the applicant’s conduct deteriorating after she was issued a letter of warning.

Ms Konecny also gave evidence, as corroborated by Ms Irving, that immediately prior to the applicant’s termination the respondent contemplated standing the applicant down to investigate the complaints made against her but as complaints about the applicant had been escalating in the period immediately prior to her termination and as the respondent believed that the applicant would not change her behaviour and because BRAC was ‘falling apart’ the applicant was terminated and required to leave work on the day of her termination.

253   The applicant denied that she misconducted herself or performed her duties in such a way as to warrant summary termination or termination at all.  The applicant maintained that the reasons the respondent relied on for her termination were vague and lacked detail, she was mismanaged by her line manager, her other line managers Ms Konecny and Ms Jennings were inexperienced and unfamiliar with running a leisure facility and both Ms Konecny and Ms Irving had become aggressive towards the applicant throughout the course of the disciplinary proceedings against the applicant in August 2009.  The applicant claimed that she was micro managed and at the same time did not receive sufficient assistance from her managers and the applicant also maintained that only one user group, the Broome Tennis Club made sustained complaints against her.  The applicant stated that her managers were hypocritical as she was criticised for raising concerns above them within the respondent’s organisation and on the other hand she was subject to complaints made by her staff which were raised with and accepted by her managers.  The applicant also maintained that by the time of her dismissal the applicant was in fear of her line managers, in particular Ms Konecny.

254   A significant amount of evidence was given by both parties in relation to events relevant to the applicant’s employment with the respondent and a substantial amount of documentation was tendered during the proceedings.

255   Even though the applicant claimed that none of the concerns raised with her by the respondent in July and August 2009 about her interactions with Mr Logue, Ms McDougall and Ms Hennessy had substance I find that the applicant was aware that the respondent had concerns about her performance and the nature of her interactions with staff given the contents of the warning letter which the applicant received on or about 19 August 2009.  This letter was given to the applicant after complaints made against the applicant in July 2009 by two employees of BRAC, Mr Logue and Ms McDougall and also Ms Hennessy who was a contractor to BRAC were investigated and reviewed by the respondent and after the applicant responded to these complaints.  Following is the letter given to the applicant (formal parts omitted):

“Re: Outcome of Investigation in response to staff Complaints and Grievances at BRAC – Letter of Warning

I refer to our meeting on 3rd August 2009 in relation to the outcomes of the recent investigation into complaints made against you by several BRAC staff.  I have carefully reviewed these complaints based on written statements received, information obtained during the investigation and the feedback provided by you.

I have concluded that there are unsatisfactory performance trends in the following areas:

• Management Style

• Communication approach with Staff at BRAC

• BRAC work-environment

• Operational matters including rosters, work-flow information, community consultation, programming and marketing

• Harassment and Bullying.

Specifically the incident as noted by Kim Logue, reported to me, is deemed to be Harassment and Bullying.  This is in breach of the Shire of Broome Harassment and Bullying Policy.  Your behaviour also breached the Shire of Broome Code of Conduct.  These policies were re-issued to you on 3rd August 2009 and supplied to you on commencement as part of the induction process.  As you are aware, all front-line, Managers and Executive Shire of Broome employees are expected to comply with Shire of Broome policies as (sic) all times during their employment.

You are now formally warned that any further conduct by you which is in breach of the standards required by Shire of Broome as set out in the above policies may result in further disciplinary action against you, which could include termination of your employment with Shire of Broome.  You are now on a performance management program and your line-manager will meet with you in the next week to formulate agreed Key Performance Indicators which will be monitored.

This letter will be placed on your personal employment file, as a formal letter of Warning.

In summary it is imperative that your performance and conduct improve in the above mentioned areas.  To facilitate improvement, you will continue to receive targeted support and mentoring / coaching from your line manager, Anne Jennings.

Do not hesitate to discuss any relevant issues with Anne that you may require further assistance with, to enable positive change to occur.

Please be reminded that the investigation and the outcomes are confidential and I ask that you do not discuss this issue with any other employee.”

(Exhibit A4.1 document 44)

256   I reject the applicant’s claim that Ms Konecny and Ms Irving were biased against the applicant during the process which eventuated in the applicant receiving this warning letter.  I accept the evidence of Ms Konecny and Ms Irving that they took into account the applicant’s response to the allegations made against the applicant and after investigating the claims made against the applicant and her response they concluded that the applicant had not met the required performance standards expected of a manager with respect to dealing with staff and I also find that they did not reach this decision based on any ill feeling towards the applicant.  I find that even if Ms Tannock-Jones’ statement about Mr Logue’s handing the staff rosters to Mr McGrath had been considered by Ms Konecny and Ms Irving during this process it would not have affected the respondent’s decision to issue the applicant with a warning letter as this statement does not deal with the reasons for Mr Logue resigning.

257   It was also the case and I find that concerns were raised with the applicant about her interactions with staff at her probationary review in May 2009 however these issues were not serious enough to prevent the applicant from being confirmed as a permanent employee in June 2009.  Feedback given by Mr McGrath to the applicant included a recommendation that she undertake a conflict resolution course, the applicant was reminded that when commenting about colleagues she should rely on evidence and not her opinions, the applicant was told not to blame others if ‘things don’t go the way intended’ and the applicant was advised that she would enhance her skills if she took the advice of others (see Exhibit A4.1 document 21).

258   I find that after the applicant received the warning letter dated 19 August 2009 the respondent organised an open ended performance management process for the applicant whereby she had regular meetings with Ms Jennings which were aimed at assisting the applicant to effectively operate BRAC and to help her to interact more positively with staff and user groups.  KPIs for the applicant to follow were also to be agreed between the applicant and Ms Jennings as part of this process however this did not occur prior to the applicant’s termination.

259   I find that during the period that the applicant was being performance managed a number of issues arose and complaints were made about the applicant’s performance and attitude to Ms Jennings and Ms Konecny by staff at BRAC and by some of its user groups.  These complaints included concerns about the applicant being tardy in holding meetings with user groups, the applicant rostering herself on weekends when other employees were available to work these shifts, the applicant engaging external staff and not offering acting positions to current staff, the applicant not taking the ‘crèche incident’ when two children escaped seriously, the applicant’s poor treatment of some staff, low staff morale and user groups experiencing problems making bookings.  I find that as a result of these complaints it was clear that the applicant was experiencing difficulties undertaking her role notwithstanding the assistance and feedback given to her by Ms Jennings and I also find that because of these complaints and given the applicant’s poor handling of the Council agenda item for the Horizon Power proposal whereby the applicant scheduled a meeting with the CEO about this issue that the respondent was losing confidence in the applicant’s ability to adequately fulfil her role.

260   I find that the applicant worked hard during her employment with the respondent.  I also accept the applicant’s evidence and I find that she successfully fulfilled many of the requirements of her role, I find that the applicant was genuinely committed to succeeding as the Centre Manager at BRAC and I find that the applicant was working long hours to fulfil the duties required of her and was pursuing an agenda for BRAC which she believed was in the respondent’s best interests.  It was also the case that notwithstanding some concerns being raised with the applicant at her probationary review the respondent confirmed her as being a permanent employee by a letter dated 22 June 2009.  I find that from late July 2009 onwards, the applicant was worried about her ongoing employment with the respondent and was therefore suffering health issues and the applicant was working in a regional environment which was a different context to her previous working environment which would have been an added complexity for the applicant to deal with when managing BRAC.  I find that after the applicant received her letter of warning in August 2009 she became defensive in her dealings with Ms Konecny and Ms Jennings and her relationship with Ms Irving, who was previously a friend as well as a colleague, became fractured around this time because the applicant believed that she was undermining her, which I find on the evidence was not the case.

261   It is within this context that whilst I find that it was appropriate for the respondent to be concerned about the applicant’s performance and her poor relationship with a number of staff members, managers and user groups given the number of complaints and issue of concern being lodged against the applicant I conclude that in all of the circumstances the applicant’s performance and behaviour as at the end of October 2009 was not sufficiently poor or serious to warrant summary termination.  Whilst the applicant was on occasions inflexible and confrontational in her dealings with some staff and user groups and she had a difficult relationship from time to time with her managers I find that the applicant was competently fulfilling a number but not all of the requirements expected of her in her role as BRAC’s Centre Manager.  I am also of the view that many of the complaints about decisions made by the applicant and her inflexible attitude could have been dealt with via negotiations between the applicant and her managers and with the concerns raised about the applicant being reviewed by consultation between the applicant and the complainants, which did not occur.  Furthermore, at the time the applicant was terminated the KPIs she was expected to achieve had not been agreed between the applicant and Ms Jennings which in my view put the applicant at a disadvantage in relation to the performance levels expected of her.  The applicant was also not afforded the opportunity of re-training once deficiencies in her performance had been identified.

262   I find that the applicant was denied procedural fairness given the process adopted by the respondent when effecting the applicant’s termination.

263   I find that the applicant was treated unfairly when Ms Konecny interrupted the BRAC staff meeting being conducted by the applicant on 23 October 2009 to terminate the applicant.  I find on the evidence that the applicant’s conduct during this meeting did not warrant Ms Konecny calling a halt to the meeting to terminate the applicant.  Even though the respondent claimed that this meeting was tense and the applicant was behaving inappropriately towards some staff I accept the applicant’s evidence as corroborated by Ms Tannock-Jones that that the applicant conducted this meeting in a professional manner.  Ms Konecny stated that the applicant was autocratic and directive and staff were agitated and Ms Jennings gave evidence that staff were ‘ready to explode’ and the applicant was being abrupt however Ms McDougall gave evidence that the applicant was only being ‘a bit negative towards staff’ and Mr Chester stated in cross-examination that the applicant was not yelling or swearing and was not directly offensive to any person at the meeting.  I also find that the presence of Ms Jennings and Ms Konecny put unnecessary stress on the applicant and I find that their attendance at this meeting heightened tensions.  I also find that Ms Konecny acted in an inflammatory and uncalled for manner when she interrupted this meeting to terminate the applicant.

264   There was no evidence that the respondent completed detailed investigations into the complaints and issues it relied on to terminate the applicant subsequent to her receiving a warning letter nor were the complaints made against the applicant to Ms Jennings and Ms Konecny raised with the applicant in a formal way so that she had the opportunity to put her version of events with respect to the issues in dispute nor was the applicant directly put on notice that as a result of these specific complaints having been made against her this would result in her termination.

265   I find that the applicant was denied procedural fairness and was therefore treated unfairly given the manner of her termination.  I find that on the day the applicant was terminated she was not given specific reasons as to why she was being terminated nor was she told why she had to leave the respondent’s premises forthwith as the issues and complaints relied upon by the respondent to effect the applicant’s termination were not discussed with her as no meeting was arranged to allow the applicant to respond to the respondent’s concerns about her performance and behaviour prior to her termination.  I accept that the applicant had a meeting with Mr Donohoe on the afternoon of her termination however this was not to enable the applicant to formally respond to the respondent’s view that she be terminated.

266   I reject the respondent’s claim that it satisfied the procedural requirements under Clause 17.6 – Management of Unsatisfactory Performance in the 2007 Agreement when managing the applicant’s performance and effecting her termination.  The steps required when disciplining an employee are contained in Clause 17.6.  In my view the respondent did not adhere to a number of the requirements on it under this clause when dealing with issues relevant to the applicant’s performance including Clauses 17.6.3, 17.6.3.2 and 17.6.4.  Specifically, there was no agreement between the applicant and the respondent at an initial meeting about actions to be undertaken by the applicant under the process of performance management, no timeframe for the applicant to reach an acceptable standard of performance was agreed between the applicant and the respondent, the applicant was not given any opportunity to explain her failure to meet the required standards and the applicant’s performance was not expressly monitored with respect to the specific performance improvements required of her.

267   The applicant’s claim that an inference should be drawn that Mr Donohoe’s evidence would be unhelpful to the respondent with respect to the applicant being denied procedural fairness given the way in which her performance and termination was managed as he was not called to give evidence is in my view of no effect given my finding that the applicant was denied procedural fairness given the manner of her termination.

268   In the circumstances I find that the respondent did not have good reason to summarily terminate the applicant and that the applicant was denied procedural fairness given the manner of her termination.  I therefore find that the applicant was unfairly dismissed.

Reinstatement

269   The applicant is seeking reinstatement on the basis that she adequately fulfilled the requirements of her position and the only staff members who disagreed with the changes she made at BRAC were those employees who did not accept that these changes were necessary for the efficient and effective running of BRAC’s operations and only one user group made ongoing complaints against her.  The respondent opposes the applicant’s reinstatement.

270   After carefully considering the evidence given in these proceedings as well as the evidence given with respect to this issue in particular and when taking into account the difficulties the applicant experienced in her role at BRAC and the complaints made by a number of staff and user groups at BRAC I find that if would be inappropriate to reinstate the applicant to her former position or re-employ the applicant as I am satisfied on the evidence that the working relationship between the applicant and respondent has broken down such that an order for reinstatement or re-employment is impracticable.

271   The onus is on the respondent to establish that reinstatement or re-employment is impracticable (Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327; Gilmore v Cecil Bros & Ors (1996) 76 WAIG 4434 and (1998) 78 WAIG 1099).  In my view the respondent has demonstrated that it would be inappropriate to reinstate or re-employ the applicant to her former position with the respondent.  I have made this decision on the basis that I find that the weight of evidence is against the applicant with respect to this issue.  A number of witnesses gave evidence in support of the respondent’s claim that it would be inappropriate for the applicant to be reinstated to her former position with the respondent and their evidence highlighted, which I accept, the difficulties BRAC would face if the applicant returned to her former position.  The evidence was also clear and I find that the applicant had dysfunctional relationships with Mr McGrath, Ms McDougall, Mr Logue, Mr Chester, Mr Doyle and Mr Vincent and they variously gave evidence that they would not find it conducive working with the applicant again and some said they would resign if the applicant was reinstated.  A number of witnesses also gave evidence, which I accept, that BRAC was functioning effectively in the applicant’s absence and that BRAC was functioning smoothly and interacting more positively with user groups and the Broome community since the applicant’s absence.

Compensation

272    I therefore now turn to the question of compensation.  I apply the principles set out in Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635 and Tranchita v Wavemaster International Pty Ltd (1999) 79 WAIG 1886.  On the evidence, I am satisfied the applicant took reasonable steps to mitigate her loss.

273   I have found that the applicant was unfairly dismissed on the basis that the respondent did not have sufficient grounds to summarily terminate her and that she was denied procedural fairness given the manner of her termination.  I have also found that the applicant was experiencing difficulties in fulfilling some of the requirements of her role and that she had a poor relationship over a number of months with some of her staff, managers and user groups.

274   I find as at 23 October 2009 that the respondent had sufficient concerns about the applicant’s performance and conduct to put the applicant on notice that it was considering terminating her.  In reaching this view I take into account that the applicant was advised in her warning letter dated 19 August 2009 that further breaches of the respondent’s Harassment and Bullying Policy and the respondent’s Code of Conduct may result in further disciplinary action against her including termination of her employment and that issues were raised about the applicant’s performance and several complaints were made by staff and user groups about the applicant subsequent to the applicant receiving this letter.

275   After receiving further complaints about the applicant it is my view that the applicant should have been formally put on notice about the areas of her behaviour and performance which required improvement, to agree on KPIs, to undertake any relevant training and to effect the required changes.  I find that as the applicant was on notice in August 2009 that the applicant’s relationships with some of her staff and user groups was poor and she was advised of some of the areas in which she was required to improve at the time a timeframe of 16 weeks would be adequate in order for these processes to be undertaken.  In reaching the view that this is a sufficient timeframe I also take into account that the applicant had already been given assistance and coaching by Ms Jennings to improve in the required areas after receiving a letter of warning on or about 19 August 2009.

276   It is my view that after the applicant would have had this opportunity to meet the performance and behavioural targets required of her during this period the applicant would not have met the required standard and the respondent would then have had the right to terminate the applicant on notice.  I have reached this conclusion on the basis that the applicant did not concede that her performance and behaviour required improvement at any point during her employment with the respondent, except on one occasion in March 2009, the applicant did not at any time accept her shortcomings with respect to her performance and interactions with some of her staff, user groups and managers and nor did she accept that her attitude towards staff and user groups needed to be more positive.  Furthermore, at the hearing the applicant was adamant that she was not at fault in relation to any concern raised with her nor did she concede that she contributed to any of the problems at BRAC with respect to staff treatment and user group complaints.  In support of this conclusion, on the weight of evidence given in these proceedings and as corroborated by documentation tendered in these proceedings I also find that during the applicant’s employment with the respondent the applicant was confrontational at times when dealing with user groups, her managers and some of the staff she managed and I find that complaints made about the applicant by staff and user groups at BRAC arose as a result of the applicant’s poor management skills and the applicant’s inflexible attitude at times when implementing changes.  I find that on occasions the applicant undertook her role without consideration of the needs and requirements of some of her staff and the groups using BRAC’s facilities and without acknowledging the specific requirements of the Broome community and I find that if the applicant was questioned by a staff member with respect to the way in which she handled a particular matter or questioned a decision made by the applicant then she regarded that employee as being against her and this resulted in some staff being singled out by the applicant and treated less favourably than others.  By way of example I find that the application’s relationship with Ms McDougall, who was a long standing staff member at BRAC, fell into this category and that as a result of difficulties between the applicant and Ms McDougall the applicant rostered Ms McDougall on permanent night shifts which had ramifications for Ms McDougall’s ability to fulfil other duties.

277   I reject the applicant’s claim that her managers were out to get her and that they had ill feelings towards her.  It is clear that the applicant’s relationship with Mr McGrath, Ms Konecny and Ms Irving was difficult and at times hostile however I find that each of them made every effort to ensure that the applicant was appropriately managed and gave her assistance in order for her to be successful in her in her role as the Centre Manager of BRAC.  I also find that on a number of occasions Mr McGrath, Ms Konecny and Ms Jennings gave the applicant useful feedback however the applicant did not act on this feedback.  Even though Mr McGrath experienced difficulties managing the applicant I find that he was undertaking his role to the best of his ability and I find that some of the difficulties he experienced with the applicant resulted from the applicant’s uncompromising attitude and behaviour towards him at times arising out of the applicant’s view that Mr McGrath was incapable of effectively managing her and lacked sufficient experience to undertake his role.  The applicant maintained that the brief given to her by Mr McGrath was to play ‘good cop, bad cop’ and this resulted in conflict at times with some user groups and staff, however even if the applicant understood that this was the role she was expected to play she was expressly told at her probation review meeting held on 29 May 2009 that this role was not expected of her (see Exhibit A4.1 document 21).

278   I find that Ms Konecny’s dealings with the applicant were in the main professional however it does appear that by early October 2009 Ms Konecny’s relationship with the applicant had become fractured and there was a lack of trust between her and the applicant.  I find that this poor relationship deteriorated further when Ms Konecny became aware that the applicant raised the issue of the Horizon Power proposal with the CEO going above Ms Konecny on or about 20 October 2009 and Ms Konecny then disciplined the applicant about this issue with staff being able to observe their meeting, which in my view was an unfortunate and avoidable occurrence.  Notwithstanding these findings, in my view the applicant’s poor relationship with Ms Konecny did not alter the fact that there were a number of concerns about the applicant’s performance in her role as the Centre Manager of BRAC, in particular from August 2009 until her termination.

279   In the circumstances I find that the applicant is entitled to be paid 16 weeks’ remuneration as compensation for her unfair dismissal.

280   Prior to making an Order in relation to this application the parties are directed to confer and report to the Commission within seven (7) days as to an appropriate amount to be paid to the applicant, given these reasons for decision.