WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2011 WAIRC 00924

DELIVERED : thursday, 29 september 2011

FILE NO. : B 180 OF 2010

Applicant

AND

City of Wanneroo

Respondent

Catchwords : Industrial Law (WA) - Contractual benefits claim - Claim for payment of balance of contract or payment in lieu of notice - Entitlements under contract of employment - Applicant constructively dismissed in an unfair and unjust manner - Applicant would have continued in employment for term of contract if not for respondent's actions - Applicant denied a contractual benefit of remaining in employment for term of contract - Application upheld - Reasons for decision issued - Parties to confer on amount owing to applicant in light of reasons for decision

Legislation : Industrial Relations Act 1979 (WA) s 7 and s 29(1)(b)(ii)

Result : Upheld

Representation

Applicant : Mr M Cox of counsel

Respondent : Mr S White as agent

Case(s) referred to in reasons:

Ahern v Australian Federation of Totally and Permanently Incapacitated Ex-Service Men and Women (WA Branch Inc) (1999) 79 WAIG 1867

Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25

Balfour v Travel Strength Ltd (1980) 60 WAIG 1015

Bednall v Wesley College [2005] WASC 101

Belo Fisheries v Froggett (1983) 63 WAIG 2394

British Broadcasting Corporation v Ioannou (1975) 2 All ER 999

Civil Service Association Incorporated v Perth Theatre Trust (1997) 77 WAIG 1086

Hotcopper Australia Ltd v David Saab (2001) 81 WAIG 2704

Hotcopper Australia Ltd v David Saab [2002] WASCA 190

Ian Charles Craig v Bunbury Aboriginal Progress Association (Inc) [1993] WAIRC 486

Jeannie Leddington v University of Sunshine Coast (2003) 127 IR 152; [2003] AIRC PR928685

Lennon v The State of South Australia [2010] SASC 272

Matthews v Cool or Cosy Pty Ltd (2004) 84 WAIG 2152

Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200

Morton v the Transport Appeal Board and Anor (No 1) [2007] NSWSC 1454

Noel Edward Knight v Alinta Gas Ltd (2002) 82 WAIG 2392

Paul Worthington v Curtin University of Technology [2005] AIRC PR957589

Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307

Quinn & Ors v Gray [2009] VSC 136

Russell v Trustees of the Roman Catholic Church for the Arch-Diocese of Sydney [2007] NSWSC 104

Walker v Zurich Australia Insurance Ltd [2000] QSC 345

Waroona Contracting v Usher (1984) 64 WAIG 1500

Case(s) also cited:

Andersen v Umbakumba Community Council (1994) 56 IR 102

Anthony Tomich v Equator Holdings Pty Ltd [1991] WAIRC

Civil Service Association of Western Australia Inc v Director General, Ministry of Justice [2003] WAIRC 08587

Commonwealth of Australia v Verwayen (1990) 170 CLR 394

Crabb v Arun District Council [1976] Ch 179

Dadey v Edith Cowan University (1996) 70 IR 295

Health Services Union of Australia v Portland District Health [2005] AIRC PR960214

Jeffrey Kennedy Murray v Hamersley Iron Pty Ltd [2004] WAIRC 10967

Kevin Lance Noack v BGC (Australia) Pty Ltd [1998] WAIRC 253

Legione v Hately (1983) 152 CLR 406

McDonald v The State of South Australia (2008) 172 IR 256; [2008] SASC 134

Ogilvie v Warlukurlangu Artists Aboriginal Association Incorporated [2002] AIRC PR921908

Robe River Iron Associate v Metals and Engineering Workers' Union - Western Australian Branch [1993] WAIRC 1427

The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch (Appellant) v Commissioner of Main Roads (1996) 76 WAIG 4859

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

Reasons for Decision

1         On 2 November 2010 Ms Diane Shaw (the applicant) lodged two applications in the Commission pursuant to s 29(1)(b)(i) and (ii) of the Industrial Relations Act 1979 (the Act) seeking benefits which she claims are due to her under her contract of employment with the City of Wanneroo (the respondent) and compensation for her claim that she was unfairly dismissal.  After conciliation occurring with respect to both applications the applicant decided to only pursue her claim for a denied contractual benefit.

Applicant’s evidence

2         The applicant gave evidence by way of witness statements (Exhibits A1.1 and A1.2).  The applicant has been a senior practitioner in the field of community arts and culture development for many years and she has had an extensive professional background in cultural and community development including working with state and local governments in Western Australia and Victoria.  The applicant is currently enrolled in a Masters of Sustainability course at Curtin University.

3         Prior to commencing employment with the respondent the applicant was employed by the Western Australia Department of Culture and the Arts as its Manager Programs and her duties included contributing to strategic planning for the organisation by developing a policy framework and operational plan.  The applicant was also part of the management team dealing with International Arts, Young People and the Arts, ArtsEdge, Indigenous Arts, Cultural Projects (Collections), Public Art and Urban Planning and Facilities.  The applicant declined to apply for a role with the Department of Culture and the Arts on a permanent basis as she decided to pursue her position with the respondent.

4         Prior to working with the Department of Culture and the Arts the applicant was employed as the Manager of Arts and Culture for the City of Greater Geelong from 2003 - 2009.  Her duties included reporting to executive management and the council, leading a team of 20 staff, contributing to strategic planning through participation in the Joint Management Team and Community Services Division, managing a $9 million operational budget, reviewing policies and procedures, conducting and commissioning consultation with stakeholders and managing the arts and culture department.  Her role also required her to be on a number of boards and committees including the Geelong Regional Library Corporation, the Geelong Heritage Centre Committee of Management, the G21 Arts Pillar and the Steering Committee and the Working Group and Leadership Group for the Geelong Cultural Precinct.

5         Prior to working for the City of Greater Geelong the applicant worked as the Manager Arts and Culture with the City of Glen Eira from 2001 – 2003.  The applicant was employed as the Manager Events with the National Museum of Australia from 2000 - 2001 and she was employed as the Coordinator of Cultural Development for the City of Joondalup from 1998 - 2000.  In 1983 the applicant co-founded the Deck Chair Theatre Company, she received a Creative Development Fellowship for her contribution to Western Australian theatre in 1989 and she has conducted cultural planning sessions with numerous local government authorities across Western Australia.  The applicant considers that she is a leader in the field of arts and cultural development, she is well regarded for her work and she has had a very successful work history.

6         The applicant stated that she has never previously been terminated from her employment or been performance managed nor has she been accused of any of the matters raised by the respondent in this matter.

7         The applicant gave evidence that during the interview for her position with the respondent she was informed that the job was for a two year fixed term and she stated that this was important to her in deciding whether or not to accept the role.  The applicant was told that she would fill in for an existing employee who was taking leave and was due to return in two years time and she was told that the respondent did not want a ‘caretaker manager’ but someone who would take ownership of the role and ‘cast fresh eyes’ over the operations of the Capacity Building Unit (CBU).  The applicant made it clear to the interview panel that she would not be a caretaker manager and that she was committed to fulfilling the role for the two year period and she explained that the two year fixed term contract suited her because after this period she and her partner planned to move to the south west and seek work most likely in local government.  This two year contract would also put her in a good position to pursue further local government work in Western Australia.

8         The applicant stated that she accepted the position on the basis of the representations in the pre-employment interviews and the appointment letter offering her employment for a two year period commencing 17 May 2010.  The applicant gave evidence that if she had known that her employment with the respondent was not for a two year period she would not have accepted the position.  Based on having a two year contract the applicant and her partner decided to stay in Perth and not return to Melbourne.

9         The applicant stated that the respondent did not bring to her attention Clause 14.3 of her employment contract which provided that she could be terminated with three months’ notice and she stated that this clause was not consistent with the comments made to her by the respondent that she would be employed on a fixed term contract of two years.

10      The applicant confirmed the duties she undertook as Manager Capacity Building and she gave evidence that when she commenced in her new role she realised that there would be several challenges.  The applicant observed that the staff in the CBU appeared to be fatigued and they had worked very hard to open and run the new Wanneroo Library and Cultural Centre (the Cultural Centre) within the past twelve months during which time a number of staff had covered more than their own position due to staff shortages.  Staff were also dealing with significant defects at the Cultural Centre such as air temperature and air humidity which could not be kept in control and this was having an impact on its museum and gallery.  A number of staff members were also suffering personal traumas due to external, non-work stressors.  The applicant urged one employee who had undergone several personal traumas and was ill herself to go home until she was better, but she said she could not face being at home.  The respondent was also settling down a major restructure which occurred approximately twelve months ago.

11      The applicant stated that seven employees reported directly to her including three coordinators, Ms Philippa Rogers, Ms Jennifer Kenny and Ms Kathy Christophanous.  Ms Pamela Blackmore who was the Facilities Officer also reported to her.  The applicant had responsibility for library services, arts and heritage museums and community links and she reported to Ms Fiona Bentley who was the Director of Community Development.

12      On 27 July 2010 the applicant attended a meeting with Ms Bentley, her personal assistant and the other managers in her directorate to discuss the impact of the respondent’s restructure, particularly on staff stress levels, heavy workloads, shortages of staff despite an increase in workload and the large number of staff who were stressed in the applicant’s directorate.  The impact of the restructure on her directorate was also discussed at a meeting held on 4 August 2010 facilitated by Ms Anne-Marie Gillespie who was the Acting Manager Human Resources and the Manager of Strategic Planning.  Topics discussed included heavy workloads, the need for more staff and concerns about positions that had been lost in the directorate as a result of the restructure.  Concern over the growing number of stress claims was also raised at a number of fortnightly managers’ meetings and at the managers’ meeting held on 29 July 2010 the meeting was informed that a workshop was being planned to assist managers to avoid staff stress claims.

13      The applicant stated that in her first week of employment with the respondent complaints were made about the previous quarterly brochure written for the Cultural Centre going out late, which was prior to her time as manager.  To avoid a repeat of this happening the applicant met with the relevant staff and sent a number of emails to ensure that the next quarterly brochure was sent out on time and on the day of the copy deadline she met with a coordinator and her team and reminded them of the deadline.  The coordinator and two members of her team became stressed and argumentative and blamed the marketing section and she pointed out that she had reminded them of the deadline several times.  The applicant stated this meeting ended on a sour note.  The applicant stated that staff did not seem to understand the importance of copy deadlines and were not happy that she was making them accountable for their work and the applicant subsequently spoke to them individually to reassure them.  The applicant stated that the Cultural Centre brochure went out on time.

14      The applicant stated that on 11 August 2010 Ms Gillespie and the Fitness for Work Officer and Acting Coordinator Human Resources, Ms Kathryn Howlett came to her office and the applicant had been expecting a meeting to be held that morning involving the union and human resources staff.  However, at this meeting Ms Gillespie and Ms Howlett told her that they had decided that she was unfit for work under the respondent’s fitness for work policy and they said they had formed this view as a result of an investigation which started on Friday 6 August 2010 and concluded on Tuesday 10 August 2010 and as part of this investigation they had interviewed a number of people in the workplace about the applicant.  They also told the applicant they had concerns about her mental health and stated that they were concerned for the applicant’s ‘cognitive and psychological functioning’.  They did not give details or examples about these concerns and refused to do so when asked by the applicant nor did they give dates, times or specific contexts for these complaints.  The applicant had no way of knowing what events or actions led to their concerns and she tried to think of people who might have raised issues.  Ms Gillespie and Ms Howlett told the applicant that as she was within her three month probationary period she could therefore be dismissed however they said they wished to help her and instead of instantly dismissing her as a probationary employee, the applicant was to be immediately suspended and was required to leave the workplace after completing some handover tasks.  They told her that she was required to attend a psychiatric assessment about her being fit for work and the assessment was to be conducted by a psychiatrist nominated by the respondent.  The applicant stated that they told her that she was not permitted to speak to any staff members and she was escorted out of her office into the public access area.  Initially the applicant was bewildered by the allegations which were completely ‘out of the blue’ but by the end of the meeting she was deeply shocked and distressed by her treatment but notwithstanding this the applicant complied with their directions.  Ms Gillespie and Ms Howlett refused to provide details about who they had spoken to and what the details were of the matters that had led to the decision to suspend her and as a result she had no way of defending herself or seeking to alter the course of the investigation and the applicant stated that she was given no warning or advance notice of this meeting or that a decision to stand her down and be assessed was being considered.  The decision to suspend her was also made before speaking to her and without giving her any opportunity to respond to any allegations of misconduct or poor performance or incapacity.  The applicant maintained that a number of issues relied upon by the respondent about her mental state were not mentioned in this meeting.  The applicant disputed that Ms Gillespie provided her with examples of her alleged behaviour at this meeting including not allowing the booking of meeting rooms to occur whilst a review was being undertaken, calling the same meeting with the same agenda and discussing the same issues at these meetings, not making decisions, regularly asking the same questions, making unusual statements or comments and being vague in her responses.

15      The applicant denied that at the meeting held on 11 August 2010 she told Ms Gillespie and Ms Howlett that she was performance managing Ms Rogers and Ms Natalia Ytsenko on an official performance management program.  The applicant stated that she mentioned these two employees after she was accused of causing distress to employees because Ms Gillespie and Ms Howlett did not provide her with details and she was only speculating about whom they may be referring to.  The applicant stated that at the end of this meeting she was in shock and was concerned to get this process over with as quickly as possible, she believed she had no psychiatric or cognitive problems and was keen to get back to work as soon as possible.  The applicant stated that when she was stood down she was not aware of any staff in the CBU being on stress leave and she stated that a number of staff had annual leave booked for later that week and subsequent weeks.  The applicant was not aware of any events or projects being delayed or cancelled and no details were given in the referral letter to Dr Tay of what deadlines were missed and which community events were cancelled as a result of her behaviour.  The applicant maintains that Ms Howlett provided no information about which staff ‘were about to leave and [which] others were going to take stress leave because of the applicant’ and she did not believe any staff were stressed due to poor performance or management on her part.  The applicant stated that she worked hard to accommodate staff who were stressed and fatigued due to lack of staff and personal issues.  The applicant stated that staff claims that the applicant would not make a decision are untrue and Ms Howlett did not note which decisions the applicant would not make and no examples were given to her.

16      The applicant was directed by the respondent to see Dr Eileen Tay which she did and she maintained that it was humiliating and very distressing for her to be directed to have a psychiatric assessment with the associated stigma.  After Dr Tay provided a report to the respondent dated 26 August 2010 the respondent provided a copy of Dr Tay’s report to her but refused to provide their letter to Dr Tay requesting the report until just prior to the hearing.  The applicant stated that when she saw Dr Tay she was unaware of the reasons relied on by the respondent to send her to Dr Tay.  The applicant stated that Dr Tay found that she had no psychiatric disorder or pre-existing incapacity and no personality disorder and she concluded that her return to work:

be reviewed once Ms Shaw is satisfied that due process and her rights have been considered as well.  I would also not recommend that she return to work in her current state, which is that of distress and a loss of confidence with her place of work since being asked to step down.

(Extract Exhibit R8)

17      The applicant sought an independent psychiatric assessment from a consultant psychiatrist, Dr Gemma Edwards-Smith and she attended two sessions on 19 October 2010 and 2 November 2010.  The applicant confirmed that Dr Edwards-Smith also found that she did not suffer any psychiatric condition and that the treatment she had been subjected to by the respondent had rendered her unfit for duty.  The applicant stated that at this point in time her continued employment had been rendered untenable by the respondent’s actions in suspending her from employment without any knowledge of the details about what it was that she was alleged to have done and she was not given any opportunity to explain or deny allegations made against her.  The applicant gave evidence that her authority and confidence as a manager had been destroyed and unless and until that situation was remedied she could not see any way for her to be able to return to work.  The applicant claims that she was denied due process, wrongfully suspended, personally humiliated, professionally undermined and rendered incapable of performing her duties particularly the management and leadership duties integral to her position by reason of her workplace treatment.  The applicant stated that contrary to what Ms Gillespie and Ms Howlett told her on 11 August 2010 her employment was not subject to any probationary period and the applicant stated that being told wrongly that she was on probation and could be dismissed without reason caused her further anxiety.  This further undermined her trust in the respondent.

18      The applicant stated that it is conceivable that she may not have recognised someone she had met a week before because in her role she met hundreds of people inside and outside of the respondent’s operations and the applicant did not recall saying to Ms Howlett after her presentation to a managers’ meeting that ‘it is great to finally put a name to the face’ and she stated that her ability to recall people and events is generally good.

19      The applicant stated that she was deeply shocked by the respondent’s sudden, unanticipated action to suspend her and as a result became ill rendering her incapable of returning to the workplace.  The applicant maintains that she has been humiliated and undermined by what has happened to her.  The applicant had responsibility for and direction over other staff, she reported to superiors for her unit, she liaised with stakeholders and third parties and she was responsible for managing a budget.  The applicant maintains that the stigma of being deemed mentally unfit, suspended and directed to undertake a psychiatric assessment is likely to have destroyed the authority and respect necessary for her to perform these duties.  The applicant stated that she cannot return to a workplace where employees are aware that she had been suspended, including some who know this was due to perceived mental ill health and being subjected to psychiatric assessment and upon her return being subjected to a return to work program.  The applicant also rejects the respondent’s claim that only four people including Ms Howlett, Ms Gillespie and Ms Bentley are aware that she was suspended or subject to a psychiatric assessment.  The applicant stated that it has also been a humiliating experience to have the details of this case revealed to other parties, including other witnesses giving evidence on her behalf, all of whom are highly regarded professionals and with whom she had a respected working relationship.

20      The applicant stated that she informed the respondent by letter on 21 September 2010 that its actions had caused her to be completely undermined in the workplace and this had caused her to become incapacitated for her duties and that her ongoing employment with the respondent was untenable.  The respondent responded on 28 September 2010 advising her that it accepted that the issues that led to her suspension were not the result of a psychiatric or personality disorder however the applicant was told that she would be required to return to work to have issues addressed ‘in accordance with the City’s Managing Poor Performance procedure’.  The applicant stated that this demonstrated to her that once again the respondent was prepared to reach a judgment about her without giving her any opportunity to explain, deny or respond to any allegations of poor performance made against her.  The applicant stated that when the respondent advised her that she would be given an opportunity to respond to each of the matters that were to be raised in a performance management context this caused her further distress and confirmed her view that it was not possible to return to work.  The applicant stated that she has now seen Ms Howlett’s letter to Dr Tay seeking the psychiatric assessment and setting out a number of allegations against her but it did not contain any details enabling her to respond other than to deny any poor performance.

21      The applicant gave evidence that no one working for the respondent ever said to her that she was responsible for causing stress to anyone or that her performance was below par or that her behaviour was unusual.  Prior to her suspension on 11 August 2010 no one told her that she was performing poorly or had engaged in misconduct.  On the contrary, before her suspension she had been commended by her director and the respondent’s chief executive officer (CEO).  The applicant believes that at all times she fully and properly performed her duties, she conducted herself appropriately and treated staff with empathy and with the firmness required to achieve objectives.  The applicant also stated that her performance over three months was good, particularly given the pressures of time and staff shortages which were well known to the respondent to accomplish significant tasks and bring important projects to completion.

22      The applicant stated that on 23 November 2010 the respondent provided the following details about her alleged behaviour:

• conducting a number of meetings where the same issues were discussed despite being finalised in previous meetings;
• asked the same questions as had been discussed at previous meetings;
• being vague in her responses and actions;
• comments being made out of context and being nonsensical;
• having meetings about the same subject and making the same decisions as per previous meetings;
• inability to make decisions; and
• not being able to meet deadlines and delaying projects with little or no discussion.

The applicant stated that after receiving this information she was not in any better position to know particulars about her unusual behaviour.  The applicant had no idea where and when these things had happened, with whom, what she had said, what decisions and projects had been delayed, what same subject matter and questions she had repeated and what comments she made out of context or which were nonsensical.

23      The applicant gave evidence that on 20 October 2010 she wrote to the respondent noting that it had not withdrawn its intention to have her return to work on a performance management regime, it had not responded to her written request on 6 October 2010 for particulars of the allegations against her, she requested a copy of the letter sent to Dr Tay and confirmation that she was not on probation at the time of suspension.  The applicant stated that at the time she accepted the respondent’s breaches as a repudiation of her employment contract and she stated she was proceeding on the basis that the respondent had constructively dismissed her with effect from that date.  The applicant maintains that she would have remained working with the respondent for two years but for her termination and she is therefore seeking the payment of the balance of the two year fixed term contract.

24      The applicant refutes many of the claims made against her by the respondent’s witnesses.  The applicant maintains that she did not place a blanket ban on bookings of the respondent’s facilities but she asked staff not to tie up bookings with long-term ongoing bookings.  The applicant did not advise staff that they were not allowed to book out any meeting rooms because she was undertaking a review of the meeting rooms however she did ask staff not to accept long-term bookings for meeting rooms before referring them to her.  The applicant stated that she did a review of bookings to monitor revenue from them as the income from bookings for the Cultural Centre in the previous year was considerably lower than budget expectations and she was keen to take a more strategic approach to raise this revenue.  She therefore adopted a process to review current bookings, consult with stakeholders and then identify where to focus in the future.  The applicant stated that a meeting consolidating this was to be held just before she was stood down on 11 August 2010.

25      The applicant maintains that she did not delay the Cultural Centre’s birthday celebrations scheduled for 7 November 2010.  The date was fixed after she commenced employment with the respondent and all promotional material had been completed and it would therefore have been easy to bring it to completion on time.  A meeting was scheduled for the morning she was stood down to progress these issues and one of the last things she did before she was stood down was to organise catering for this meeting.  The applicant stated that Ms Blackmore, Ms Kenny and Ms Rogers had also held a meeting about the celebrations shortly after she commenced with the respondent and when some staff were anxious about the lead-up time for the celebrations the applicant reassured them that there was sufficient time.

26      The applicant stated that claims that she failed to progress the exhibitions program are untrue and not a single exhibition was given as an example.  The applicant conducted a meeting only a few days before she was stood down outlining ideas for how many and what kind of exhibitions the Cultural Centre could sustain per year and what types of milestone events including those organised by other areas such as Marketing and Events.  During this meeting the applicant proposed consideration of a children’s festival at the Cultural Centre and she proposed that they consider moving the children’s festival from one of Wanneroo’s historic buildings to the Cultural Centre.  However, Ms Rogers strongly protested this and became very emotional and Ms Kenny and Ms Blackmore supported her protests.

27      The applicant disputes that she over-managed or micromanaged staff and Ms Howlett did not say which staff and which areas were micromanaged.

28      The applicant denies that she was not concerned about the respondent’s libraries and maintains that she made her love of libraries and their potential for community engagement known to the CBU and the applicant claimed she had worked closely on the development of all libraries within the City of Greater Geelong.  The applicant stated that Ms Kenny raised many minor issues with the applicant that she thought she could handle, for example, the procedure for dealing with damage to returned library books.  The applicant stated that she was more interested in encouraging a love of reading in the community whilst Ms Kenny’s team were more interested in preserving a pristine collection of books and as Ms Kenny was a very experienced coordinator of library services the applicant was therefore encouraging her to make her own decisions.

29      The applicant disputes the claims that she did not seem to know the budget process.  During the end of year budget review the applicant was asked to justify why the Cultural Centre had not reached its target income of approximately $87,000 and she asked Ms Bentley, Ms Rogers and Ms Brennand how this figure of projected income was arrived at and no one could give her an answer.  Because of the applicant’s experience in arts and cultural development and particularly in cultural planning she is aware that local governments often have inflated expectations regarding projected income from cultural facilities and she believed this situation needed to be handled carefully.  The applicant stated that she managed a multi-million dollar budget for the City of Greater Geelong and the National Museum of Australia was opened on time and on budget.  The applicant did not make comments like ‘we will just get more staff’ and the applicant stated she was very aware that there were staffing shortages across Ms Bentley’s directorate and that she would make decisions as to where extra staff resources were most needed and the applicant did make comments along the lines of needing more staff or it would be good to get more staff because of staff shortages.

30      The applicant does not know what Ms Rogers comment is referring to when she stated that she tried to get a response from the applicant and the applicant ‘went off’ at her and Ms Howlett does not state when this incident was reported to have occurred and the applicant stated that she did not ‘go off’ at any staff during her time with the respondent.

31      The applicant stated that in the meeting of 11 August 2010 she was initially in a state of disbelief and then shocked and the applicant was aware of the potential damage to her reputation being directed to attend a psychiatric assessment and being suspended from work.  When Ms Howlett and Ms Gillespie came to her office on 11 August 2010, they closed her door and began with words to the effect of ‘This is never easy.  We hate having to do this kind of thing’ and this indicated to her that they came into her office already having decided that they would suspend her and then direct her to attend a psychiatric assessment.  The applicant refutes Ms Howlett’s claims that she did not ask for an explanation about matters they raised with her and she claimed that she repeatedly asked for details about the allegations against her, including the complainants, times and contexts but these were not provided.  The applicant also asked on a number of occasions about the nature of the process and timelines for the psychiatric assessment and report.  The applicant maintains that at this meeting Ms Gillespie did not provide an outline of what the respondent’s concerns were, including calling the same meetings and discussing the same matters, appearing vague in meetings, not making decisions and they did not explain the affect it was having on the applicant’s team.  The applicant stated that Ms Gillespie and Ms Howlett spoke to her in broad terms about their concerns for her psychological and cognitive functioning.  The applicant did not state at this meeting that she was performance managing a couple of staff as claimed by Ms Gillespie and she stated that she was managing Ms Ytsenko’s expectations of her position and the respondent’s expectations of her but she was not on an official poor performance management procedure.  The applicant agrees that Ms Gillespie told her that they did not have to organise a psychiatric assessment for her because she was on probation and they could terminate her contract without undertaking anything further but they wanted to help her, however the applicant was not on probation.  Both Ms Gillespie and Ms Howlett directed the applicant not to speak to any staff, they waited whilst she sorted some files, she handed over her keys, gathered some personal items and they then escorted her out of her office through the reception area into the public access area of the Cultural Centre and the applicant stated that this was humiliating and she was made to feel like a criminal.  The applicant stated that when Ms Gillespie contacted her the following day and asked how she was going she most definitely did not say that she was ‘about to have a bubble bath, a glass of wine or champagne and a massage’.  The applicant told her she was very distressed about the damage to her reputation and about how the staff in the CBU were going and she said she was managing her distress by meditating, having baths and she had organised a massage.

32      The applicant believes her behaviour at the meeting on 11 August 2010 was consistent with any person who was in shock and she believes that Ms Gillespie and Ms Howlett came looking for evidence of psychological and cognitive disturbance.  The applicant stated that until her assessment by Dr Tay, who informed her of some of the things which she was being accused of she hoped the matter was just a terrible mistake and would be resolved quickly, and that she would then be able to return to work.

33      The applicant stated that Ms Bentley was on leave for the first two weeks of her employment with the respondent and she therefore could not have introduced Ms Gillespie to her as claimed by Ms Gillespie.  The applicant stated that she and Ms Gillespie had numerous conversations about staffing matters, particularly with respect to Ms Ytsenko and she discussed Ms Ytsenko’s accusations of bullying against Ms Rogers and sought her guidance.  The applicant also had discussions with Ms Gillespie about the need to rewrite position descriptions for a number of staff which had not been done since the organisation’s restructure the previous year and Ms Bentley had advised her to keep human resources informed and ‘on-side’ regarding all staff matters.

34      The applicant had no idea what Ms Kenny, Ms Blackmore and Ms Rogers were referring to when Ms Gillespie claimed that they described situations where she would make peculiar comments which seemed out of context and the applicant stated that she is know to use humour and they may not have understood her at times.

35      In response to Ms Gillespie’s claim that Ms Kenny, Ms Blackmore and Ms Rogers told her that the applicant booked a meeting and then booked the same meeting at a later date and the same matters were discussed with the same outcomes, the applicant stated that she conducted a number of meetings during her employment with the respondent and regular meetings were held with the three coordinators in the CBU.  The applicant introduced ‘action arising sheets’ so that her unit could track who had agreed to undertake certain actions and minutes were not taken of these meetings.  The applicant stated that a considerable amount of time was taken up in these meetings discussing the bullying claim that Ms Ytsenko had made against Ms Rogers and her process of managing the perceived performance issues with Ms Ytsenko and she stated that she does not normally discuss such matters with staff not directly involved but she believed she needed to give assurances about due process because two of the coordinators, Ms Rogers and Ms Kenny, were upset.  Ms Rogers asserted that she too could make an accusation of bullying against Ms Ytsenko and there were discussions about Ms Ytsenko disappearing from her desk.  The applicant explained the need for due process and that she was trying to avoid a stress claim from Ms Ytsenko and she also explained that human resources had discussed in a number of managers’ meetings the need for managers to handle difficult and underperforming staff carefully in order to avoid an increasing number of stress claims.  Given these discussions they ran out of time to discuss some matters which were rescheduled for the next meeting of the CBU coordinators.  If any matter was urgent staff knew that they could speak to the applicant and they did so on numerous occasions.

36      The applicant had no difficulty approving flex leave days as alleged by some staff to Ms Gillespie and the applicant asked staff to assure her that their area would be covered for customers.  On the few occasions where there did not appear to be enough staff to cover a particular area she was able to negotiate another time for a flex leave day.

37      The applicant stated approval for higher duties allowance needed director approval and she took all such requests to Ms Bentley who informed her that such allowances could only be paid under particular circumstances, such as when a staff member was acting in the position of a coordinator who was on leave for an extended period.  In special circumstances approval might be granted when a staff member was on leave for an extended period or their role was deemed to be crucial in terms of customer service.

38      The assertion by some staff to Ms Gillespie that the applicant was going to change the title of the building is not accurate.  The applicant discussed this possibility with staff some of whom felt that the word library in the title placed too much emphasis on only one aspect of the Cultural Centre.  The applicant then discussed this with Ms Bentley who advised against changing the name and after reporting back to staff the applicant dropped the idea.  She stated that any change would only ever have been a recommendation that the executive management team and/or council would have to approve.

39      The applicant denies that she made a decision to get more staff without understanding the implications about this decision.  Ms Rogers wanted the applicant to approve additional staff for the community history area and the applicant had already discussed this with Ms Bentley who was not supportive of increasing the hours or staff in this area as it was not deemed a priority within her directorate.  Ms Rogers and Ms Carol Leigh, the Community History Librarian, met with the applicant a few days before she was stood down to put a case for using savings due to staff vacancies in other areas to pay for additional staff in Ms Leigh’s area and when she informed them that she would need to think about this and refer it back to Ms Bentley both became visibly upset and angry.

40      The applicant denies the claim by some staff to Ms Gillespie that she refused to meet with Ms Kate Burton who was upset and wanted to resign and she stated that she met with her on numerous occasions and at short notice.  It was also Ms Burton who asked her to put her initial letter of resignation aside.

41      The applicant stated that she was surprised by Ms Gillespie’s statement that she had never seen Ms Kenny, Ms Blackmore and Ms Rogers ‘in such a state’ after the meeting she had with them where they raised issues about the applicant.  The applicant observed that staff in the CBU appeared to be fatigued and they had worked very hard to open and run a major new cultural centre within the past twelve months, during which time the unit was understaffed and a number of staff covered more than their own position.  There were significant defects in the new Cultural Centre which were being dealt with out-of-hours by CBU staff and not security service personnel or rangers whose job it is to deal with out-of-hours issues.  The respondent was still settling in a restructure, a number of staff were suffering personal traumas due to external, non-work stressors and during her short time with the respondent the applicant frequently had staff bursting into tears in her office as they related details of their personal traumas or their colleagues’ personal traumas.

42      The applicant stated that she and Ms McNamara met on a number of occasions to discuss the very poor relationship between their two units and what they could do to improve this relationship and the applicant stated that her interactions with Ms McNamara were positive and she believed they developed a good working relationship and worked together to resolve a long-standing dispute between their units.  After one meeting Ms McNamara thanked the applicant and claimed that she could never have had this discussion with the previous manager because she claimed Ms Brennand always took the side of her staff in disputes.  Ms McNamara also said that she found Ms Kenny and Ms Rogers’ behaviour to be aggressive and antagonistic.  There were some communication issues with one member of Ms McNamara’s unit but much of the criticism of this employee was petty and unprofessional.

43      The applicant did not return Ms Gillespie’s calls after 11 August 2010 because she did not receive any, nor did she receive calls from the respondent’s external counsellor until Ms Gillespie gave her the applicant’s correct number.  Ms Gillespie then called the applicant’s partner and he passed messages on to the applicant.

44      In response to Ms Bentley’s evidence that she did not get much feedback about the applicant’s supervisory skills from referees during the recruitment process, the applicant stated that she has supervisory skills and she has worked in positions of being responsible for staff and for coordinating staff.  The applicant stated that during her recruitment interview she was questioned about supervision of staff and her experience dealing with change management within an organisation and she was able to give a number of examples of her experience in these areas.  The applicant believes that in the short time she was employed with the respondent she did a great deal to achieve the required objectives and to accommodate staff needs.  The applicant stated that she met Ms Bentley on a regular basis when Ms Bentley was not on leave and she kept her informed about all activities within the CBU, including the exhibitions program.  Ms Bentley and the applicant also agreed that the Cultural Centre could not sustain many exhibitions each year because there were not the audiences within Wanneroo.

45      In response to Ms Bentley’s evidence that she worked on only a few staffing matters whilst employed by the respondent to the exclusion of other matters and that these staffing matters were resolved when the applicant went on leave, the applicant stated that the issue she was dealing with related to Ms Ytsenko who reported directly to the applicant although she was based in another part of the centre and provided support for two of the coordinators in the CBU.  Ms Rogers showed the applicant an email that Ms Ytsenko had sent to Ms Bentley about this time which was strident in tone and which outlined what Ms Ytsenko would and would not do in her new position and when the applicant questioned Ms Bentley about this, she responded that the organisation had not wanted to create more waves after the restructure.  When the applicant commenced employment with the respondent, three staff complained to her repeatedly about Ms Ytsenko’s behaviour – Ms Rogers (one of the coordinators to whom Ms Ytsenko reported), Ms Blackmore (who shared a work area with Ms Ytsenko) and Ms Kenny (who had no official working relationship with Ms Ytsenko).  They wanted her to take action to deal with Ms Ytsenko’s reported behaviour, that she left her desk for periods of time without saying where she was going and she was not a ‘team player’.  Each time the applicant explained that she had to go through a process of identifying the behaviour which was not easy as she did not report directly to her and she worked in a different part of the centre.  The applicant then had to communicate her expectations to Ms Ytsenko, part of which was to rewrite her position description, which had not been attended to since the restructure.  Meanwhile, Ms Ytsenko gave her a time sheet for the period before the applicant commenced with the respondent, when Ms Rogers was acting manager, so the applicant gave the timesheet to Ms Rogers to approve and Ms Rogers wrote some questions about Ms Ytsenko’s hours on her timesheet and this upset Ms Ytsenko.  The applicant spent time clarifying Ms Ytsenko’s role with her and the expectations on her and providing her with verbal and written examples however, this process was put on hold for some weeks because shortly after the applicant commenced with the respondent Ms Ytsenko made a formal complaint of bullying against Ms Rogers and on the advice of the Manager Human Resources, Mr John Love, the applicant waited until this matter was dealt with before proceeding.  It was the applicant’s intention to change Ms Ytsenko’s reporting structure so that she would report directly to Ms Blackmore however this had to wait for the reclassification of Ms Blackmore’s position to be approved and completed.  When this process was completed the applicant gave Ms Blackmore an undertaking that she would not change Ms Ytsenko’s line manager until she had dealt with all the issues that Ms Ytsenko repeatedly raised with her.  As a result a large amount of time was spent managing Ms Ytsenko.

46      The applicant stated that Ms Burton did not attempt to resign on several occasions.  Ms Burton gave the applicant a letter of resignation just before a meeting the applicant was to have with a number of staff to discuss the programming of the Cultural Centre and Ms Burton was very emotional.  The applicant told her she could not deal with the matter at the time as they were both expected at a meeting and the applicant asked Ms Burton if she was okay to attend the meeting and if they could discuss her resignation after the meeting and Ms Burton responded ‘yes’.  They met later that day and talked in detail about her concerns and Ms Burton was in a calmer state.  Ms Burton was concerned about the lead-time to organise the Cultural Centre’s first birthday celebrations and the applicant explained her experience organising much bigger events in very limited time frames and Ms Burton appeared to be reassured and when the applicant asked Ms Burton whether she wanted to proceed with her resignation, Ms Burton asked the applicant to put the letter aside.  Despite Ms Burton not wanting to proceed with her resignation she planned to discuss the matter with Ms Bentley when she returned from leave the following week.  Three staff had been doing aspects of Ms Burton’s role since the previous incumbent had resigned some months earlier before the applicant commenced with the respondent and when Ms Burton was appointed, the applicant asked these staff to gradually hand over tasks to her so as not to overwhelm Ms Burton.  However, Ms Burton mentioned on a number of occasions that she was overwhelmed and that she was not clear about what her role entailed and the applicant explained that she was not entirely clear either and that they would work it out together.  The applicant met Ms Burton on numerous occasions, often at short notice and she took Ms Burton’s concerns very seriously and discussed them in detail.  The applicant stated that Ms Burton told her that she was not interested in the position she was undertaking if it involved a significant amount of administrative work and she was more interested in organising exhibitions and developing creative community cultural development projects.  The applicant stated that she was unaware that Ms Burton was unhappy and the applicant maintained that both she and Ms Burton were new to their roles as Ms Burton commenced with the respondent in early June 2010.  The applicant denied that she refused to organise a meeting between the coordinators and Ms Burton and she stated that this meeting was scheduled and took place in the week before she was stood down.  The applicant maintained that there was sufficient time to deal with the organisation of the first birthday celebrations for the Cultural Centre and the applicant denied that she arranged a meeting and then asked Ms Burton on the day of the meeting why they were meeting.  The applicant maintained that she reassured Ms Burton at meetings and she was supportive of her and the applicant denied begging Ms Burton not to resign.

47      The applicant stated that Ms Rogers was very distressed due to personal issues and she spoke to Ms Bentley about her as the applicant was concerned for her.  The applicant found out at some point that Ms Rogers had applied for the applicant’s position.  Ms Rogers had also submitted a claim for reclassification for a position within her department and the applicant had been asked to rewrite the job description as the descriptors for the position were verbose, elevated and overwritten and the applicant stated that Ms Rogers was unhappy and angry when this position was not reclassified.  As Ms Blackmore’s position was also reclassified at a lower level than expected the applicant believed that staff blamed her for this as she had rewritten the position descriptions to be resubmitted to the review committee.

48      In response to Ms Bentley’s evidence that after the applicant went on leave the leadership team at the CBU sought a number of decisions from Ms Bentley and information about the progress of matters they had raised with the applicant that she did not provide feedback or decisions about, the applicant stated that in the absence of any particulars from Ms Bentley she was left to guess that it related to issues concerning Ms Kenny and Ms Rogers.  They had given the applicant a number of requests for themselves and staff in their areas to attend conferences, which incurred travel and accommodation costs and the applicant raised this matter with Ms Bentley in their regular meetings.  In one meeting Ms Bentley told her to check the list of approved conferences with the finance department and she was told that only those on the approved list could go ahead unless there was a substitution.  Both Ms Rogers and Ms Kenny had travel approved as a bonus for additional work they had done in the lead-up to the opening of the centre, but each gave the applicant a different explanation as to how their attendance was to be recompensed.  Ms Rogers informed the applicant that it had to be in the budget allocation for the CBU while Ms Kenny informed her that her attendance at an international conference was to be paid for out of Ms Bentley’s budget and she undertook to discuss this with Ms Bentley when she returned from leave.

49      The applicant stated that she was surprised at Ms Blackmore’s statement that she started to have concerns about the applicant approximately six weeks after she commenced employment with the respondent as staff were stressed.  The applicant stated that Ms Blackmore was concerned about the operation of the air conditioning and the humidity given its importance to the Cultural Centre and she was receiving SMS messages during the evening and on weekends and coming in to the building to let in technical people.  The applicant stated that Ms Blackmore had put in an application for her position to be reclassified prior to the applicant commencing employment and Ms Bentley asked the applicant to rewrite her job description for Ms Blackmore’s position shortly after she commenced with the respondent.  Approximately six weeks after she started working for the respondent she had a meeting with Ms Blackmore about her position being reclassified and the applicant stated that when Ms Blackmore did not get the level she wanted she was upset and angry as she had been led to believe from Ms Rogers that the position would be reclassified to a higher level than the level granted and the applicant stated that Ms Blackmore was unhappy that her reclassification application was unsuccessful even though this decision was made by the reclassification committee.  The applicant stated that she told Ms Blackmore that she wanted to review the name of the Cultural Centre building given the range of activities taking place within the building however after she spoke to Ms Bentley she accepted that this would be politically difficult and she said this matter was dealt with in a couple of days.

50      The applicant stated that she did not attend all coordinators’ meetings and she stated that no meetings were cancelled and further meetings were planned.  The applicant stated that she took notes in meetings because she wanted to accurately understand the substance of what was discussed and she described herself as a profuse note taker.  The applicant denied that at coordinators’ meetings the whole meeting was taken up with her discussing her information which did not leave time for other people’s issues to be covered but she stated that she did spend more time in the first few coordinators’ meetings she attended discussing Ms Ytsenko’s complaint against another staff member.

51      The applicant denied that she started to distance herself from staff and she maintained that she attended many meetings each day as confirmed by her diary and notebooks (see Exhibit A14).  The applicant maintained that she had numerous interactions with her colleagues, she had lunch in the lunch room and she attended drinks every Friday afternoon.  She sometimes closed her office door if she was undertaking work of a confidential nature but if this was happening she could always be interrupted by her administration assistant.  The applicant stated that many staff took work to the café or had meetings there and she stated that the café was next to her office.  The applicant denies Ms Kenny’s claim that her office door was often closed and that she told her that she was working on the ‘Natalia matter’ all day and she stated that Ms Kenny had nothing to do with Ms Ytsenko and would not have known what she was doing in her office.  The applicant said that she spoke to Ms Kenny about referring to another employee as a hooker in a staff newsletter when she had been told not to.

52      The applicant maintained that problem between library services and the respondent’s information technology (IT) section about a bid for IT equipment for libraries in the budget was in place before the applicant arrived.

53      The applicant maintained that she passed on information at coordinators’ meetings and if issues arose between meetings she passed this information on in a timely manner and she stated that information about completing documentation for the respondent’s annual report only came to her at a late stage.  The applicant rejected Ms Kenny’s claim that she did not hand information about the strategic plan review to coordinators until the morning it was due and the applicant maintained that she provided this information to coordinators prior to the date it was due.  The applicant disputed Ms Kenny’s claim that she had a short attention span and she maintained that she only made comments at meetings when she had something of value to contribute.  The applicant also maintained that it was not unusual to access water during a meeting and it was located not far away from where the meetings were being held and it was common for people to access these facilities during meetings.

54      The applicant denied that she transferred two of Ms Kenny’s staff without telling her and she stated that she was not involved in this matter and she did not say to Ms Kenny that she had ‘forgotten to tell her’.  The applicant also refuted Ms Kenny’s claim that she only attended the respondent’s other libraries on one occasion.  The applicant maintained that she visited all of the respondent’s libraries at least once and had meetings with library staff.  In response to Ms Kenny’s statement that Ms McNamara told her ‘I don’t know how many times we had the same meeting with the same conversation’, the applicant denied that she had meetings to discuss the same issues with Ms McNamara and she stated that each meeting she had with her was to further a matter that they had already discussed.  The applicant maintained that she did not have an excessive number of meetings with her husband at work and she met her husband during the day for a coffee or had an early lunch with him.  The applicant stated that she did so as she often worked long hours.

55      The applicant denied that she was rude to Ms Rogers during meetings and she stated that Ms Rogers had ‘an unfortunate behaviour’ of interrupting and talking over people at meetings.  The applicant denied that she did not discuss issues with Ms Rogers and she stated that Ms Kenny would not know about her discussions with Ms Rogers because she was not present at a number of meetings she had with Ms Rogers.  The applicant maintained she had many meetings with Ms Rogers as part of her handover in the position given that she was acting in her position before she commenced employment with the respondent and the applicant denied that she did not accept offers of assistance from Ms Rogers.  The applicant maintained that on one occasion she complained to Ms Bentley about Ms Rogers’ behaviour in a meeting.  The applicant became involved in an email dispute concerning staff members in Ms Rogers’ section because a number of people came to her complaining about the event mentioned in this email dispute and as it appeared not to have been resolved she wanted to talk to the persons directly involved.  The applicant also denied that she would not give feedback to Ms Rogers in a timely manner about taking flexi days and she denied that she was slow in responding to Ms Rogers’ claim for a higher duties allowance and she stated that Ms Bentley had to and did approve this.  The applicant denied she was aggressive towards Ms Rogers after a meeting about short term assistance in her area and she stated that she was never aggressive or abusive towards anyone.  The applicant also denied that she asked the same questions repeatedly of Ms Rogers and that she focused on minutiae and the applicant denied that she was not giving responses to questions asked of her and she stated that she responded as quickly as she could, given that she was new to the organisation.  The applicant maintained that she was aware of ‘bigger-picture’ issues and she denied that she was only concentrating on a small part of her job and she maintained that she undertook her role across the whole unit.

56      The applicant denied that she did not do much in the time she was employed with the respondent.  The applicant stated that she spent much of her time familiarising herself with her work and the organisation, she attended team meetings with each of the respondent’s three business units and she visited all the respondent’s external facilities and the programs run in those facilities.  The applicant stated that she attempted to visit all of the staff in the CBU, which consisted of approximately 100 employees, either at work or when they attended meetings, she set up regular coordinator meetings for the three coordinators in her unit, she reviewed programs and exhibitions at the Cultural Centre, she inducted Ms Burton as a new staff member, she dealt with conflicts between staff, she attended exhibition openings, out-of-hours events and assisted staff during this period.  She attended regular organisational management meetings every fortnight, she had meetings with her director and other managers in her directorate every fortnight and also meetings with managers and the coordinators group and she had individual meetings with staff members.  The applicant familiarised herself with a number of the respondent’s documents and policies, she reviewed its strategic plan, she was involved in projects concerning the respondent’s strategic direction and NAIDOC celebrations and she motivated staff to complete promotional material for the quarterly brochure.

57      The applicant maintained that she had a number of discussions about libraries and the Cultural Centre with Ms Rogers and during their fortnightly coordinator meetings they discussed exhibitions.

58      Under cross-examination the applicant maintained that she understood her contract with the respondent was for a fixed term of two years as confirmed in her letter of offer and she stated that she was not given the opportunity to complete this period.  The applicant agreed that the contract provides for it to be terminated on notice or if there is a serious breach caused by her behaviour.

59      The applicant stated that she was aware of occupational health and safety obligations on employers and she became aware of the respondent’s fitness for work policy on her first day of employment with the respondent.

60      The applicant was unsure whether or not the meeting she attended on 11 August 2010 was a disciplinary meeting and she stated that if the behaviour alleged against her was true then the respondent would have had a right to have been concerned however she did not agree with the complaints made against her.  The applicant believed that some staff had grievances against her because the reclassification of their positions were denied and the applicant maintained that the issue with respect to signage was dealt with quickly when she had the opportunity to do so.  The applicant denied that she was confused during meetings and she maintained that there was no evidence of her repeating meetings or withdrawing from staff.  The applicant maintained that she made decisions where and when she could and this needed to be seen within the context of her having been employed for only a short period at the time.  It was put to the applicant that it was a concern that she asked Ms Leigh who was 60 years of age and was referred to as a ‘hooker’ in a staff newsletter how long she had been playing rugby, the applicant denied that she asked this of Ms Leigh.  The applicant also maintained that she did not delay the Cultural Centre’s birthday celebrations and she stated that a meeting was held prior to her commencing about this issue and a further meeting in the first two days of her employment and she understood there was sufficient time to plan for this celebration.  The applicant did not refuse to have meetings about this issue but she was aware that staff were under stress about this issue.

61      The applicant stated that she did not delay commencing employment with the respondent after being offered the position and even though Ms Bentley wanted her to start immediately the applicant needed time to look for a house in the northern suburbs.

62      The applicant maintained that during the meeting she had with Ms Gillespie and Ms Howlett on 11 August 2010 reference was made to her cognitive and psychological functioning and she was told she would have to undergo a psychiatric assessment but no specific details were given to her about their concerns.  The applicant denied that she was ‘a bit vague’ during this meeting and she stated that she had a clear recollection of this meeting.  The reports by Dr Tay and Dr Edwards-Smith also indicate there is no problem with her memory or her cognitive function and the applicant stated that she intended to return to work with the respondent after the assessment.  The applicant maintained that Ms Gillespie or Ms Howlett mentioned that she was on probation and was told that they did not have to allow her the opportunity to remain employed and the applicant told them that she was not on probation and the respondent later confirmed that this was not the case.

63      The applicant stated that after seeing Dr Tay she did not return to work.  The applicant stated that this was the case as Dr Tay told her that she needed to be presented with the allegations against her given their seriousness nature and as they could be potentially damaging to her.  She was also shaken by the nature of the allegations as well as the vagueness of the accusations against her.  The applicant then sought legal representation and asked the respondent for details of the allegations to be given the opportunity to reply to them but the respondent did not provide the allegations and it was therefore difficult for her to return to work with the respondent.  The applicant was too unwell to meet with the respondent’s representative and was physically sick at the prospect of doing so and she did not trust the respondent to be honest and ethical.  The applicant stated that she agreed to be assessed by Dr Tay as she was given a lawful instruction to do so and it was only after attending Dr Tay that she became concerned about her treatment.  The applicant said the other reason for her not returning to work with the respondent was because it accepted that she did not have a psychiatric personality cognitive disorder however the respondent required her to return to work under a poor performance management program and no details had been given to her about these allegations.

64      The applicant maintained that in the short time she was employed by the respondent she progressed a number of matters.  For example, brochures about events were being sent out late and she developed a process to ensure they went out on time even though this caused some hostility.

65      The applicant stated that in her previous performance with other employers there was no evidence of the alleged behaviours occurring.  The applicant denied that the reasons for her not being at work had been kept confidential by the respondent and she maintained that a number of people were aware of what had happened with respect to her situation and a number of people were aware of the suddenness of her leaving work.  The applicant maintained that some of the complaints against her were based on lies, for example, the applicant’s bizarre behaviour in getting up from her chair during a meeting several times to get a glass of water.

66      Under re-examination the applicant stated that when the respondent required her to return to work on a poor performance management program no details were provided to her about this and she stated that she could not attend the meeting the respondent requested about her return to work because she had a medical certificate preventing her from doing so.  She had also asked the respondent for additional information to be provided to her about the allegations against her which was not forthcoming.  The applicant maintained it was Ms Gillespie and Ms Howlett who decided at the end of the meeting held on 11 August 2010 that she should be stood down and the applicant understood that they had believed the allegations made against her and had predetermined that she was impaired.  The applicant stated that she believed complaints were made against her because of her management style, her focus on community outcomes, a history of conflict between the Marketing and Events unit and the CBU, reclassifications being unsuccessful, Ms Rogers unsuccessfully applying for the applicant’s position and the performance management of Ms Ytsenko.

67      Mr Peter McMullin gave evidence by way of a witness statement (Exhibit A2).  Mr McMullin has been a legal practitioner for 35 years and is currently president of the Victorian Employers’ Chamber of Commerce and Industry, Chair of the Geelong Cultural Precinct Steering Committee and President of the Geelong Gallery Board.  Mr McMullin has known the applicant since 2004 when she worked as Manager Arts and Culture for the City of Greater Geelong.  Mr McMullin was the mayor of the City of Greater Geelong from 2005 - 2006 and chair of a number of committees and boards in Geelong and Melbourne between 2005 and 2009.

68      Mr McMullin commented on two documents written by Ms Howlett.  A document titled ‘Statement of Fact’ dated 16 September 2010 and an undated letter to Dr Tay (Exhibits R19 and R20).  Mr McMullin stated that he was stunned by the allegations against the applicant which were contained in these documents.  Mr McMullin worked with the applicant in a productive, stimulating and creative environment for over four years and along with others he considered her to be a leader in the field of arts and culture management and Mr McMullin described the applicant as one of the most impressive people he has worked with.  Mr McMullin stated that the applicant is highly organised, meticulous and methodical, she was popular with others, she was involved in a number of successful projects and he described her as being highly organised and focused in achieving objectives as well as being meticulous and driven.  The applicant was also good at bringing people around who were adverse to the required objectives.  The applicant worked well across a wide range of organisations, levels of seniority and various individuals and Mr McMullin maintained that the applicant was an expert at managing and harnessing competing and sometimes conflicting forces.  Mr McMullin described two projects that the applicant was involved in where she was successful in ensuring positive outcomes.

69      Mr McMullin stated that he regularly received positive feedback about the applicant and many people were impressed working with her and as she reported to him and given their close working relationship complaints would not have escaped his notice.  Mr McMullin described the applicant as not being a procrastinator, she was not responsible for any delays or cancellations in any project whilst he worked with her, she was not prone to forgetting people or things said in meetings, she was well prepared for meetings and if any matters were delayed there was a good reason.  Mr McMullin described the applicant as having a wry sense of humour and he described her as being well regarded, respected and popular and a friend to many people.  Mr McMullin stated that he gave a verbal reference for the applicant for her position with the respondent and he stated that he would have no difficulty employing the applicant in the future.

70      Ms Patti Manolis gave evidence by way of a witness statement (Exhibit A3).  Ms Manolis is the Chief Executive Officer of the Geelong Regional Library Corporation and she has held this position since December 2006.  Ms Manolis knew the applicant when she was Manager of Arts and Culture for the City of Greater Geelong, in particular from early 2007 until January 2009.

71      Ms Manolis commented on Ms Howlett’s undated letter which she sent to Dr Tay (Exhibit R19).  Ms Manolis stated that she has never experienced the applicant exhibiting any of the behaviours or characteristics attributed to her in this document.  Ms Manolis described the applicant as a person who welcomed her when she took up her position with the City of Greater Geelong and she worked with her on a number of library projects and broader cultural projects.  The applicant was directly responsible for the City of Greater Geelong’s relationship with the library and the funding of the library and she described her as being responsible for this being a healthy relationship.  Whilst working with the applicant on a major project Ms Manolis stated that she was consistently inclusive in her work and organisational manner, she described her as having excellent interpersonal skills, she readily developed strong professional relations with various stakeholders at various levels and the applicant managed stakeholders involved in the project in a professional manner.  Ms Manolis described the applicant as an astute manager, a very good organiser who was herself very organised and she was not forgetful or repetitive in her discussions, planning meetings or otherwise.  She described the applicant as being sensitive and she had an ability to read a room of people and individuals and respond appropriately and empathetically.  The applicant also managed difficult projects extremely well.  Ms Manolis stated that the applicant was successful in bringing stakeholders together and in one instance she was responsible for putting in place roles and responsibilities for the respective participants and implementing structures and processes for a new service delivery.  She described the applicant as having good political and social judgement and she had a respectful and empathetic approach to all persons across all levels whilst keeping an eye on the main objective.  Ms Manolis claimed that the applicant has a comprehensive knowledge of libraries and undertook a study tour of libraries whilst employed by the Greater City of Geelong.  Ms Manolis would have no concerns working with the applicant in the future.

72      Ms Allanah Lucas gave evidence by way of a witness statement (Exhibit A6).  Ms Lucas is the Director General of the Department of Culture and the Arts of Western Australia and she has held this position since May 2008.  Prior to this she was the department’s Acting Director General from 2007.  Ms Lucas has known the applicant since the 1980s when she worked as a theatre practitioner and in or around 1982 she worked with the applicant in a professional capacity.  Ms Lucas also had other contact on a professional basis with the applicant throughout the 1980s.  Ms Lucas stated that in 2000 she liaised with the applicant who at the time was working with the City of Joondalup about a project the applicant was working on which was the development of a performing arts centre in Joondalup.  Ms Lucas stated that she was impressed with the applicant’s practical, organisational and consultative skills with respect to this project.  She stated that the applicant was very effective at getting across complex planning and policy issues and pulling together a creative plan taking into account the external realities.  Through other professional contacts after this period the applicant demonstrated a high level of skill and creative and structured thinking.  Most recently the applicant worked with Ms Lucas when she was contracted to the Department of Culture and the Arts Western Australia as the Manager of Programs for the Development and Strategy Directorate.  During this time the applicant worked to a high standard, she acquitted her tasks well and worked effectively with other staff in what was a difficult job with complex issues and responsibilities.  The applicant reported to the Deputy Director General of Ms Lucas’ department, Ms Jacqueline Allen and she was aware that Ms Allen formed a favourable and respectful view of the applicant’s work and capacities.  Ms Lucas stated that she had seen the applicant deal supportively and empathetically within stressful workplace and management circumstances and she described her manner as being supportive, comforting and engaging and she stated that she listens and interacts well with the people she works with.  She has not found the applicant to be forgetful or disorganised in her work or at meetings or in her interactions with colleagues or subordinates and she described her as a highly organised person with a focus on the objectives to be achieved and she is highly successful in achieving them and she is emotionally intelligent with a subtle sense of humour and irony.  In Ms Lucas’ experience the applicant does not ask irrelevant questions or make comments out of context and she reads social situations well.  Ms Lucas has not had any experience of the applicant delaying or being responsible for the cancellation of any projects and she stated that the applicant is good at working to timelines and budget restraints in achieving her objectives.

73      Ms Lucas stated that when contacted about the applicant for the position with the respondent she did not recall saying the applicant was slow to start.  On the contrary she would have stated that she would hit the ground running.

74      Ms Laura Stocker gave evidence by way of a witness statement (Exhibit A11).  Ms Stocker is Associate Professor and Post Graduate Coursework Coordinator at Curtin University Sustainability Policy Institute and she has held this position since the end of 2007.

75      Ms Stocker has known the applicant for about 20 years in a personal capacity and she has attended several professional workshops that the applicant has organised and facilitated.  When the applicant recently worked with Ms Stocker to prepare and deliver a workshop Ms Stocker described her as being a great team player who demonstrated tremendous creativity, structured organising skills and was a clear and effective communicator.  She described her as being meticulous in her attention to detail, highly competent and as she helped to make the workshop a success Ms Stocker employed her again in April 2011 at a similar workshop.  Ms Stocker confirmed that the applicant is currently enrolled in a post graduate course in Sustainability Studies at Curtin University.

76      Ms Stocker commented on the two documents written by Ms Howlett – the ‘Statement of Fact’ dated 16 September 2010 and the undated letter to Dr Tay (Exhibits R19 and R20).  Ms Stocker stated that from her personal and professional dealings with the applicant the comments in these documents were contrary to her experience with the applicant.  She described the applicant as being well organised, she keeps detailed meeting notes and diaries and Ms Stocker stated that it was inconceivable that the applicant would be unable to read a situation or person in circumstances of upset or stress and she described the applicant as a very empathetic and supportive person.  Ms Stocker stated that one of the applicant’s great strengths is that she thinks deeply about how she operates and how others think and operate and as a result she has a sophisticated ability to read play and respond reflexively and appropriately.  Socially and professionally the applicant is not vague in her communications or actions nor is she a ditherer and she is clear, direct, assertive and diplomatic.  It was not Ms Stocker’s experience that the applicant would cancel projects or that she procrastinated or deferred decisions.  She stated that the applicant delivered outcomes in a timely manner and was decisive in her actions and Ms Stocker described the applicant as having a terrific sense of humour and she stated that not one of the allegations levelled against the applicant has any resonance with her wide ranging and long-term experience of the applicant personally and professionally.  On the contrary her performance has always been of an excellent calibre and she exhibits the highest precision and rigour in all aspects of her professional practice.

77      Mr Brian Peddie gave evidence by way of a witness statement (Exhibit A12).  Mr Peddie has been the applicant’s partner since 1981.  Mr Peddie holds a Bachelor of Arts degree and an Executive Master of Public Administration degree and he has worked with local, state and federal governments.

78      Mr Peddie detailed the projects he has worked alongside the applicant with since the 1980s and he described a number of the applicant’s achievements since the 1980s.  Mr Peddie stated that has never known the applicant to exhibit any of the behaviours claimed by Ms Howlett which the respondent relies upon and he stated that the applicant had not been forgetful, confused, repetitive or inconsiderate of others or unable to tell that others are upset.  Mr Peddie stated that during the time the applicant worked for the respondent he did not observe any unusual behaviour in particular none of the behaviours attributed to her by the respondent.

79      Mr Peddie stated that when the applicant applied for her position with the respondent he was also looking to return to Perth from Melbourne to work and as the applicant was offered a two year fixed term contract they believed they could commit to staying in Perth and after this period the applicant would have a good chance of obtaining a position in the south west of Western Australia.  It was also on the basis that the applicant had been employed by the respondent on a two year fixed term contract that Mr Peddie and the applicant rented a property in Quinns Rocks to be closer to Wanneroo to avoid long commuting times.  Mr Peddie stated that if it was not for the respondent seeking to employ the applicant for two years he and the applicant would have made different plans to relocate to Western Australia as he had a permanent position in Victoria.  The applicant could have also pursued long term employment with the Department of Culture and the Arts.

80      Mr Peddie stated that when he saw the applicant after she was suspended on the morning of 11 August 2010 he described her as being in shock and she told him that she felt humiliated by being told to see a psychiatrist and being suspended for unspecified reasons.  The applicant also told him that they had assessed her as being mentally unwell.  Mr Peddie stated that night and for some time afterwards the applicant found it hard to sleep because she was distressed.  Mr Peddie stated that the applicant told him how she felt ashamed and embarrassed and because they now lived within the respondent’s boundary she was worried she may inadvertently meet her staff, colleagues or councillors and she was worried about what people knew and if they saw her, what she would say to them especially as she had been told not to communicate with the respondent’s staff.

81      Dr Edwards-Smith gave evidence by way of a witness statement (Exhibit A13).  Dr Edwards-Smith is a consultant psychiatrist.   Dr Edwards-Smith completed a report about the applicant dated 2 November 2010.  In this report Dr Edwards-Smith found the applicant had no cognitive disturbance or a psychiatric disorder.  Dr Edwards-Smith stated that the compulsory referral for a fitness for duty assessment and the manner in which the applicant was stood down from work pending the outcome of this psychiatric evaluation contributed to the applicant’s distress.  Dr Edwards-Smith found that the manner in which the meeting occurred on 11 August 2010 and as the applicant felt embarrassed and undermined this contributed to her being unable to return to her position with the respondent.  Dr Edwards-Smith does not consider that the applicant is incapacitated by virtue of a psychiatric condition for employment but she did not believe that it was feasible for the applicant to return to work with the respondent.

82      Ms Allen was not called as a witness but gave evidence by way of a witness statement (Exhibit A15).  Ms Allen is presently the Deputy Director General of the Department of Culture and the Arts Western Australia and she has held this position since January 2008.  Ms Allen worked with the applicant between April and December 2009.

83      Ms Allen described her interactions with the applicant as being professional and positive, she embraced the challenges of her department’s change management process and she made significant contributions to this and policy development work.

84      Ms Allen commented on Ms Howlett’s undated letter to Dr Tay (Exhibits R19).  Ms Allen has no concerns about the applicant’s interpersonal and organisational skills and she discussed the possibility of the applicant pursuing ongoing employment with her department.  Ms Allen stated that she has never experienced the applicant repeating questions or making inappropriate statements or of being forgetful, nor did she experience her holding the same meeting repeatedly.  Ms Allen has never seen the applicant to be unable to gauge social situations or unable to comprehend interactions with others, nor did the applicant make irrelevant or unusual statements out of context.  It was not Ms Allen’s experience that the applicant was unable to progress projects or work flows or that she was unable to make decisions or that she caused community events to be delayed, cancelled or miss deadlines.  Ms Allen formed a positive view of the applicant’s work and her skills and she believed that the applicant worked empathetically and supportively with others, she listened and interacted well with others and she found her to be a mature, supportive and enjoyable work colleague.

Respondent’s evidence

85      Ms Gillespie gave evidence by way of witness statements (Exhibits R 3.1 and R3.2).  Ms Gillespie commenced employment with the respondent as the Coordinator Human Resources in April 2005 and she has acted in the role of Manager Human Resources on a number of occasions during this period for about two years.  Ms Gillespie was introduced to the applicant on her first day at work by the Director Community Development, Ms Bentley and later that day the applicant attended an education session for the Community Links team about the respondent’s fitness for work policy which was conducted by Ms Gillespie.

86      After the applicant commenced employment with the respondent Ms Gillespie had a couple of conversations with the applicant about some staffing matters and she provided her with advice and direction.

87      Ms Gillespie received a phone call from Ms Kenny asking if she and some other staff could meet with her to discuss concerns and she and Ms Howlett attended a meeting with Ms Kenny, Ms Blackmore and Ms Rogers.  Ms Gillespie could tell that they were upset and stressed and she formed the impression that they needed to say something.  They discussed concerns they had with the applicant and they stated that there were a number of issues that they had experienced individually but recently all realised they had the same issues with the applicant.  They described situations where the applicant would make peculiar comments which seemed out of context.  For example, the applicant asked an employee how her husband went in the Avon Descent on the weekend, the employee said that he had broken his collarbone on the afternoon of the first day and the applicant then asked how he went on the second day.  The applicant made decisions they could not understand, for example, they were not allowed to book out meeting rooms because the applicant was undertaking a review of the meeting rooms and they said that it did not make sense not to earn income whilst the review was being conducted.  They told her that if the review was for a week or so that would not have a big impact but the ban on booking meeting rooms was for an extended period of time.  After the applicant held a meeting she would then hold the same meeting at a later date and they would discuss the same matters and agree on the same outcomes.  The applicant would not make decisions on some matters, such as approving a flexi leave day or higher duties allowance, but would make other decisions like changing the title of the building or getting more staff without understanding the implications of these decisions.  Ms Gillespie was concerned for the wellbeing of these staff members and when she asked them how they were feeling, one of them said that they were so stressed they did not know if they would last the week, another said she was considering resigning and the other employee said that if things did not change she would probably resign.  When Ms Gillespie asked why it took them so long to speak to her about their concerns they told her that they each had concerns about the applicant for some time however they were giving her the benefit of the doubt and they soon realised the applicant was affecting all of them and having a big impact on the team.  They also told Ms Gillespie that Ms Burton had been very upset and had been trying to resign but the applicant refused to have a meeting with her.  The meeting concluded by Ms Gillespie providing them with contact details of the respondent’s external counselling service.

88      Ms Gillespie was concerned because she had never seen these employees in such a state and they are usually strong, professional staff and are not the type of staff to cause trouble.  Ms Gillespie decided that the respondent needed to look into this matter with some urgency to ensure the health and wellbeing of these staff members.  Ms Gillespie and Ms Howlett discussed the issues raised and what process they would use to investigate these concerns and there seemed to be some performance concerns and they felt that the applicant’s behaviour was strange and unusual.  Ms Gillespie and Ms Howlett then decided that the fitness for work process would be the most appropriate course of action.

89      Ms Gillespie stated that she and Ms Howlett needed to find out more information and brief their director Mr John Paton of the potentially serious situation that was developing.  During a meeting with him they expressed their concern for the staff and agreed that it was very unusual for these staff members to be affected in this way and they were therefore confident that their concerns were legitimate.  Mr Paton asked Ms Gillespie to speak to someone outside of the CBU to get feedback about the applicant and as Ms Gillespie was aware that the applicant had been working on a project with Ms McNamara and her team she asked Ms McNamara how the applicant was settling in and Ms McNamara said that she thought Ms Shaw was a little strange.  When Ms Gillespie asked her why she said that the applicant would organise a meeting and discuss the same things discussed in a meeting the week before and Ms McNamara also stated that the applicant would repeatedly ask the same question.  Ms McNamara stated that they never seemed to be making progress and she was never sure what the applicant was wanting or expecting of her.  As Ms McNamara’s statement supported the information already provided to Ms Gillespie she decided to discuss these issues with the applicant.  Ms Gillespie advised Mr Paton of her conversation with Ms McNamara and it was agreed that she and Ms Howlett would speak to the applicant the following morning and if there was no reasonable explanation for her behaviour the applicant would be required to undergo a medical assessment and Mr Paton agreed that for the wellbeing of the applicant and the rest of the staff, the applicant could be suspended on full pay if the fitness for work process was initiated.  Ms Gillespie contacted Ms Bentley about this issue and she confirmed her support for taking this action.

90      On 11 August 2010 at 9.00 am Ms Howlett and Ms Gillespie met with the applicant in her office.  Ms Gillespie advised the applicant that the meeting was to discuss concerns that had been raised about the applicant and she provided a brief outline of these concerns, including calling the same meetings and discussing the same matters, appearing vague in meetings and not making decisions.  Ms Gillespie also explained the effect it was having on the applicant’s team.  Ms Gillespie asked the applicant if there was any reason why she was displaying these behaviours or why people would perceive she was displaying these behaviours and the applicant stated that she was performance managing a couple of staff and they did not like it so they were making up these stories and the applicant said that she was being set up.  Ms Gillespie advised the applicant that she did not think that was the case and the employees were concerned for her wellbeing.  The applicant had no reasonable explanation for her behaviour so Ms Gillespie advised her that the respondent would be initiating the fitness for work process and would need her to attend a medical appointment to determine if she was fit for work.  Ms Gillespie told the applicant that she would not be required to attend work until the respondent had received the medical report and had discussed the report with her.  The applicant said that she could not believe what was going on and that she was being set up and she said that she felt the respondent was trying to get rid of her.  Ms Gillespie advised the applicant that the respondent was not trying to get rid of her, the respondent was concerned for her wellbeing and this was a supportive process designed to ensure her safety and wellbeing and that of the rest of her team.  When the applicant said that she did not believe Ms Gillespie and it was about getting her out of the job Ms Gillespie stated that if that was what the respondent wanted to do it could review the applicant’s probationary period, but that is not what the respondent wanted and the respondent wanted to ensure that the applicant and her team were okay.  When the applicant asked if she was being stood down Ms Gillespie advised her that she was not required to come to work until the medical report had been received, that she would be paid during this time and she would still have her car and phone but would not be required to attend work.  The applicant then provided Ms Gillespie with some files to follow up on and did a couple of things in her office.

91      Ms Gillespie stated that when she and Ms Howlett had this meeting with the applicant the decision to instigate the fitness for work process was not made until she and Ms Howlett had discussed their issues and concerns with the applicant.  The respondent had concerns that due to the applicant’s behaviour and the fact that no reasonable explanation was given by her to explain her behaviour that under the fitness for work policy it was appropriate to have the applicant assessed to ensure there were no other issues or circumstances that were impacting on the applicant acting or behaving in the manner that she was alleged to have been behaving.  The respondent could have instigated a performance management process at that point in time however chose the more supportive option of the fitness for work process as the applicant was being given the benefit of the doubt that she was not behaving in the alleged manner on purpose.  Ms Gillespie stated that at this meeting she provided the applicant with examples of her behaviour including not allowing the booking of meeting rooms whilst a review was being undertaken, calling the same meeting with the same agenda and discussing the same issues, not making decisions, regularly asking the same questions, making unusual statements or comments and being vague in her responses and actions.  Whilst the applicant was advised of these behaviours she was not provided with the names of the people who had made these allegations nor specific dates and times when they occurred but Ms Gillespie maintained that the applicant was provided with enough information to be able to respond to the respondent’s concerns.  Ms Gillespie recalled that at this meeting when she was explaining the respondent’s concerns to the applicant she was smiling and she also stated that when the applicant was advised that she was not required to attend work until after the medical assessment had been received the applicant seemed to be a bit shocked.  Ms Gillespie believed her actions and that of the respondent were out of concern for the applicant and the other staff members and the respondent tried to deal with the situation as sensitively and delicately as possible.

92      Ms Gillespie stated that the applicant was not escorted out of her office and she walked by herself to the outside of the building.  Ms Gillespie denied that employees were approached to discuss issues about the applicant and she stated that staff came to her to discuss their concerns and Ms Gillespie asked Ms McNamara how the applicant was settling in as she was aware that they had been working together on a project.

93      After this meeting Ms Gillespie and Ms Howlett advised Mr Paton that they had initiated the fitness for work process and the applicant was not going to be at work until the medical report was received.  After Ms Gillespie could not contact the applicant later that day she contacted Mr Peddie and he advised her that he was aware of the situation and he told her that the applicant was at a psychiatric or psychologist appointment.  When the applicant returned Ms Gillespie’s call the next day she asked the applicant how she was going and she said she was okay, she was about to have a bubble bath, a glass of wine or champagne and a massage.

94      Ms Gillespie stated that on 18 August 2010 Ms Bentley sent the applicant a letter outlining the fitness for work process which would apply to the applicant (see Exhibit R2.5).

95      After the respondent received the report from Dr Tay Ms Gillespie believed some comments in the report explained some of the behaviours the applicant had been displaying and she thought it was appropriate to discuss these issues with the applicant and then arrange a return to work program for her and Ms Howlett tried to organise a time with the applicant to discuss a return to work program however the applicant did not attend any of the meetings arranged for this purpose.

96      Ms Gillespie did not believe that staff approached her in an attempt to get rid of the applicant and she maintained they were genuinely concerned about the applicant and were upset and distressed by the situation.  She stated that these employees displayed the respondent’s corporate values, they have a good work ethic and they were committed to their jobs and she did not believe they made up their complaints.  Ms Gillespie was genuinely concerned for the applicant’s wellbeing and throughout this process that was her main focus as well as the wellbeing of the other staff and she undertook the fitness for work process with the intention of providing support for the applicant.  Her focus was to identify why the behaviours were being displayed and put in place measures to return the applicant to work and she stated that this process was never about terminating the applicant.  Ms Gillespie gave evidence that she has undertaken this process a number of times in the past and she had never had anyone respond to the process in the same way as the applicant.

97      Ms Gillespie stated that the term ‘fixed term contract’ is commonly used in contracts within local government.  Ms Gillespie stated that the respondent does not believe it offered the applicant a fixed term contract as the applicant’s contract allows for either party to end the contract with the giving of notice or in the event of a serious breach and the correct term for the applicant’s contract is a maximum term contract.

98      Ms Gillespie stated that no employee was advised that the applicant has been suspended or subjected to a psychiatric assessment and employees were advised the applicant was taking leave.  Ms Howlett, Mr Paton, Ms Bentley, Mr Daniel Simms the CEO, Mr Love and Ms Gillespie were the only employees who were aware of the process followed with the applicant.

99      It is Ms Gillespie’s belief that the respondent was within its right to request that the applicant undertake a medical assessment in line with the respondent’s fitness for work policy.

100   Under cross-examination Ms Gillespie maintained that the applicant’s behaviour was hazardous and careless given the number of incidents raised by staff and as a result of her behaviour two employees were possibly going to resign and two may have been about to lodge stress claims against the respondent.  Ms Gillespie claimed that issues raised included that the applicant was aggressive and angry towards Ms Rogers, the applicant did not acknowledge Ms Burton’s wish to resign, work was not progressing, for example the birthday celebrations, exhibitions and artists could not be booked in, meeting rooms could not be booked without checking with the applicant first or bookings had been put on hold and the booking of an Indian wedding caused concerns after the applicant had approved it.

101   Ms Gillespie said that at the meeting with the applicant held on 11 August 2010 the fitness for work policy was not referred to until the end of the meeting and Ms Gillespie confirmed that no details were included about the Indian wedding booking at this meeting but she said bookings being put on hold was raised.  Ms Gillespie did not put to the applicant that she was yelling or being aggressive or abusive towards staff nor did she raise concerns about Ms Burton resigning and the birthday celebration preparations being put on hold.  Ms Gillespie said she did not do so as this would have identified the employees who had complained about the applicant.  Ms Gillespie stated that Ms McNamara and Ms Howlett also had concerns about the applicant and they worked outside of the applicant’s area.  Ms Gillespie stated that she did not take notes of her meeting with the applicant on 11 August 2010 and she could not recall Ms Howlett taking notes however a file note of this meeting was completed.

102   Ms Gillespie stated that she took notes of the meeting she held with Ms Kenny, Ms Rogers and Ms Blackmore on 9 August 2010.  These handwritten notes, verbatim, are as follows:

(Di been here 3 months) 17/5/10

7 weeks not spoken with her leaving Thursday

Exhibition programs

Melinda Stephens – overruled pam on discussions about

Doesn’t listen ask same question / take out of loop

Micro manage / doesnt manage

1st Birthday

Building cant take booking

2 [illegible] hour turn around 2 [illegible] review

Kate – doesnt know role – struggling with stress

Get more staff

Balanced [illegible] budget over city (Di had issues) Have a think about it

Not communicating down – no access

Stats – annual report no previous advice

Attention span – not moving on job

Performance reviews 1st Birthday

No handover

2 weeks ago → events

Branch Lib – only 1 visit Di speaks to Philipa

No budget feedback

Don’t know what Pams role – ‘Gotta think about it’

Organising Event Budget

Dont proceed – Rename building - [illegible] conversation replace it

Not allowed to call meeting ‘wait’ same meeting

Not issues with Michelle [illegible] just Di

Performance Review

Clarity of role

Processes review and planning program

Timeline and process

Book meeting

Di didnt realise frustrating

Planning review what day 1st Birthday

Mayor not available deputy mayor

Very concerned and team concerned

23-6/10 – 9/8/10 Book meeting ask since June

Confusing not clear

Cant think strategically

Pam/Clair/Kate working on bookings

Micro level detail

Lack of strat direct

Decision making

[illegible]

Strange comments during [illegible] [illegible] child [illegible]

Forgot things - why have meeting

(Exhibit R3.3)

103   Ms Gillespie conceded that after the meeting on 11 August 2010 the applicant may have asked for a copy of the respondent’s letter to Dr Tay.

104   Ms Gillespie maintained that under the respondent’s fitness for work policy there was no need for the respondent to provide employees with details of concerns about an employee in writing and she conceded that if an employee committed a breach of the fitness for work policy they could be given a written warning or be terminated.  Ms Gillespie confirmed that the specific concerns the respondent had with the applicant were detailed in a letter dated 23 November 2010 to the applicant following a request from the applicant.

105   Ms Gillespie reiterated the concerns the respondent had about the applicant.  The applicant repeated questions, she discussed the same matters at meetings that had previously been decided, she asked the same questions that were discussed at the previous meeting, she was vague in her responses and actions for example not allowing staff to book meeting rooms and exhibitions not being allowed to be booked, she made comments out of context and comments which were nonsensical, she was unable to make decisions, she did not meet deadlines for example, the completion of the annual report when she had to be given two extra weeks to complete and she did not complete the strategic plan and budget in a timely manner.  Decisions were not made about exhibition bookings and as a result the respondent missed out on some bookings and projects were delayed with little or no discussion.  The respondent therefore suspected that the applicant may be unfit for work.  Ms Gillespie stated that the general concerns about the applicant’s behaviour were put to her at the meeting on 11 August 2010 but not the details of her behaviour and specific incidences.

106   Ms Gillespie agreed that when the applicant commenced employment with the respondent a number of staff were feeling stressed or overwhelmed and she stated that some of these employees worked in the applicant’s area.  Ms Gillespie said that Ms Burton ceased employment with the respondent after the applicant left, she then returned and left again.  Ms Gillespie was aware that a complaint of bullying had been made against Ms Rogers and she was aware that some employees in the applicant’s unit were in conflict with employees in another unit.  Ms Gillespie stated that no complaints were made to her about the applicant prior to 9 August 2010 and Ms Gillespie agreed that the applicant had approximately 100 employees in her unit and she dealt with staff in other units.

107   Ms Gillespie stated that at the meeting held on 11 August 2010 the applicant maintained that it was a set up after issues were raised with her.  When it was put to Ms Gillespie that she went into the meeting with her mind made up about the applicant given the reference in the file note she and Ms Howlett prepared of the meeting about the applicant’s ‘inability to acknowledge the proven behaviours’ Ms Gillespie stated that based on the quantity and consistency of complaints Ms Gillespie formed the view that the applicant had displayed the behaviours complained of however, the applicant may have had a reason for this but at the meeting the applicant did not deny the behaviour or provide an explanation for her behaviour.  Ms Gillespie stated that the applicant was told that her behaviour had raised concerns and they wanted her to respond.  Ms Gillespie stated that it was understandable that the applicant was shocked at the time.

108   Ms Gillespie stated that prior to meeting the applicant on 11 August 2010 she had been given approval by Mr Paton to implement the fitness for work policy and send the applicant for a psychiatric assessment if she believed it was appropriate.  Ms Gillespie maintained that of the four employees who complained about the applicant two were on the verge of resigning and one was considering resigning and Ms Gillespie stated that she found out after meeting with the applicant on 11 August 2010 that she was not on probation.

109   Ms Gillespie believed that the way in which the applicant left the respondent’s building after the meeting on 11 August 2010 was not humiliating or stressful and she denied that the applicant was escorted from the building and Ms Gillespie believed that there was no stigma attached to requiring the applicant to undergo a psychiatric assessment.  Ms Gillespie maintained that she thought that there was substance to the complaints made against the applicant sufficient to instigate the fitness for work process and she was aware that the applicant wanted to and intended to return to work after the meeting held on 11 August 2010.  Ms Gillespie stated that after reading Dr Tay’s report the respondent wanted to use issues raised by her to assist in the applicant’s return to work.

110   Ms Gillespie stated that details about the complaints made against the applicant were not given to her because the fitness for work process had commenced.  Ms Gillespie maintained that the applicant being put on a performance management process when she returned to work was not disciplinary and this process would have been negotiated with the applicant.

111   Ms Gillespie maintained that the respondent’s restructure, which occurred some months prior to the applicant commencing employment with the respondent, had not had a dramatic impact on employees as only approximately 35 positions were affected which caused concerns with some employees.  Ms Gillespie confirmed that Ms Ytsenko left her job with the respondent after the applicant left.

112   Under re-examination Ms Gillespie stated that the meeting held with the applicant on 11 August 2010 was to determine if there was any substance to the concerns raised about the applicant.  Ms Gillespie stated that at this meeting the applicant was given the opportunity to explain her behaviour after Ms Gillespie outlined concerns and issues raised with her and the applicant was asked if there was any reason why staff may have perceived her to behave in this way.  The applicant replied that it was a set up and that she was dealing with the behaviours of some staff that they had been getting away with for some time and as staff were not happy about this it was their way of getting back at her.  Ms Gillespie again summarised the concerns raised with the applicant at the meeting on 11 August 2010.  The applicant was not making decisions, she was not allowing staff to book rooms, the applicant was making unusual comments, the applicant asked staff the same questions, she gave incomprehensible responses and the applicant conducted the same meetings with the same agenda on a number of occasions.  Ms Gillespie stated that the applicant was told that her actions had stressed staff and some staff were considering resigning.

113   Ms Bentley gave evidence by way of witness statements (Exhibits R10.1 and R10.2).  Ms Bentley commenced employment with the respondent in the position of Director Community Development in February 2002.  Ms Bentley was involved in the applicant’s recruitment and she completed reference checks on her prior to offering her the position of Manager, Capacity Building on a two year contract.  One comment she recalled from a referee was that the applicant gets on with the job and while she may be a bit slow to start she will take in all issues and get on with it and Ms Bentley stated that she did not obtain much feedback about the applicant’s supervisory skills.  Ms Bentley stated that she employed the applicant because of her events background, she thought she would be good to get the Cultural Centre ‘up and running’ and given her experience in the exhibition and programs areas.  Ms Bentley introduced the applicant to staff and set up regular meetings with her every second Tuesday for an hour to deal with any issues.  Ms Bentley also had combined meetings with all managers within her directorate to pass on information to managers about workload and what they needed to discuss with staff.  Ms Bentley stated that she provided the applicant with an induction into corporate matters and told her that she had very good coordinators who knew their business and could provide her with support and she stated that the applicant had three very competent coordinators to support her who were experienced, very professional and were excellent staff members.

114   Ms Bentley asked the applicant a couple of times about the exhibition program as she wanted to see it and ensure the respondent did not miss out on some of the exhibitions and the applicant advised Ms Bentley that she had set up a working group and it was progressing.  Ms Bentley understood that the applicant had put a blanket ban on the hiring out of the meeting rooms and after the applicant went on leave Ms Bentley was advised that the facility officer had a booking for a meeting room and the applicant did not allow it to progress.  Ms Bentley thought that was strange because it was money the respondent was missing out on and she could not see what impact having the room booked out would have on the review.

115   Ms Bentley stated that not a lot of work was produced by the applicant when she worked for the respondent and the applicant was working on a few staffing matters, but it seemed to be at the exclusion of other matters and these staff matters were resolved after the applicant went on leave.  Ms Bentley stated that in some instances the applicant may have done more damage than provide solutions.

116   Ms Bentley was on leave when the issues with the applicant came to a head.  She received a phone call from Ms Gillespie on 10 August 2010 advising her of concerns that had been raised by staff and Ms Gillespie expressed her concern for the wellbeing of both the staff and the applicant given the information provided by the staff.  Ms Gillespie told her she had discussed the issue with Mr Paton and suggested that should the follow up conversation with the applicant confirm the information provided by staff Ms Gillespie wanted to enact the fitness for work process.  After hearing these concerns, and the names of the staff who had raised the concerns, Ms Bentley supported Ms Gillespie’s recommendation as she knew that something must have been wrong if these staff were feeling the way they were.  Ms Bentley stated that these staff members have a strong work commitment and good work ethic and they are loyal, professional and dedicated staff who have not raised any similar issues in the past.  Ms Bentley therefore had every confidence in the efficacy of their concerns.

117   When Ms Bentley returned to work she received a full briefing from Ms Gillespie and Mr Paton about the events that occurred the previous week and she stated that she was concerned about the applicant and the wellbeing of her team.  During a debrief with the senior team at the CBU she was concerned that these normally confident leaders were distressed and anxious about what had happened.  Ms Bentley also contacted the applicant to check on her wellbeing and she advised her that the respondent was working through a process which was designed to support her and she urged the applicant to contact the respondent’s external counselling service.

118   Ms Bentley met with Ms Burton on 17 August 2010 and she advised Ms Bentley that she was resigning from her position as she could no longer work with the applicant.  Ms Burton explained that she had tried to resign several times but the applicant did not treat her seriously and had delayed and deferred any opportunity to discuss her issues over a number of weeks.  Ms Burton explained that she found it impossible to continue working with the applicant and she had no confidence that their working relationship could be mended.  Ms Burton was very anxious and had already been referred to the respondent’s counselling service for support.

119   After the applicant left the respondent the applicant’s team asked that Ms Bentley make a number of decisions and they requested information about the progress about matters they had raised with the applicant.  They told her that more decisions were made after one meeting with Ms Bentley than in the entire period that the applicant had been working with the respondent.  From these discussions it seems that the applicant was a ‘choke’ point for information coming in and out of the CBU.  Ms Bentley did not believe there was any conspiracy to get rid of the applicant.

120   Ms Bentley told the applicant that the respondent wanted to meet her to discuss Dr Tay’s report and her fitness for work and to discuss strategies to assist the applicant to make a full return to work and Ms Bentley tried to facilitate a further meeting with the applicant to discuss a structured and supportive return to work after the applicant was unable to attend the initial meeting.

121   Ms Bentley stated that staff who raised concerns about the applicant have worked with other managers without issue and they get on well with the manager currently working in the applicant’s position.

122   Ms Bentley stated that the applicant’s contract was a ‘regular manager’s contract’ with all the normal terms and clauses this entailed.  Ms Bentley stated that the applicant was given a two year contract which was in the standard terms for all managers and it was severable if necessary.

123   Ms Bentley understood that the applicant’s staff found it was difficult to finalise a promotional brochure as the applicant was reviewing the exhibition program and she would not give approval for exhibitions and other activities to proceed.  Ms Bentley denied that the applicant’s absence from work had been the subject of any conversation with any of her staff other than to ensure business continuity and there has been no reference to the reasons for her absence.

124   Ms Bentley stated that from her notes of the fortnightly meetings she had with the applicant there were no major performance issues with the applicant however, there were references to the events program and the creation of a working group.  It was only after the applicant left the respondent that Ms Bentley was made aware of outstanding unresolved issues with regard to this program and the absence of progress that was affecting program delivery and income generation.

125   After receiving Dr Tay’s report Ms Bentley and other senior officers wanted to have a meeting with the applicant to discuss her return to work but she would not make herself available and Ms Bentley does not believe that the applicant’s authority has been destroyed and she has kept the applicant’s position open and available on the expectation that a return to work program will be implemented for her.

126   Under cross-examination Ms Bentley said that she understood that the meeting held with the applicant on 11 August 2010 was based on the applicant being subject to further assessment - that is the applicant would be sent for a medical assessment notwithstanding what she said at this meeting.  Ms Bentley stated that she did not speak to Ms Rogers, Ms Burton, Ms McNamara, Ms Kenny or Ms Blackmore before this meeting but she spoke to them when she returned to work.  Ms Bentley said that she received a full briefing about the situation from Ms Gillespie and Ms Howlett in the presence of Mr Simms and Mr Paton and she then spoke to the staff who had raised concerns about the applicant.  Ms Bentley stated that Ms Blackmore told her that the applicant had put a blanket ban on booking meeting rooms and she understood this issue was put to the applicant on 11 August 2010.  Ms Bentley also understood that bookings had to be cleared through the applicant and sometimes there were short timeframes.

127   Ms Bentley had many regular and ad hoc meetings with the applicant and they usually went for no more than one hour and during these meetings Ms Bentley did not observe any behaviour whereby the applicant caused her concern and she stated that she did not re-raise concluded matters, nothing was said out of context and she was not forgetful.  Ms Bentley stated that one issue she raised with the applicant was the production of an exhibition program and the applicant assured her that this was in place and she stated that she gave the applicant positive feedback about the way she was dealing with some outstanding issues.

128   Ms Bentley agreed that Dr Tay’s report stated amongst other things that the applicant should not return to work with the respondent until her concerns about due process had been addressed.  Ms Bentley stated that the applicant’s request through her representative for particulars of matters and incidences was not agreed to as Ms Bentley wanted to meet the applicant to discuss a structured return to work program to assist in rebuilding her confidence.  Ms Bentley initially stated that this would not be under a poor performance management process however, after reviewing the letter she sent to the applicant’s representative dated 28 September 2010 which stated that the issues raised with the applicant will need to be addressed in accordance with the respondent’s Managing Poor Performance procedure, Ms Bentley agreed that a managing poor performance process would apply to the applicant on her return to work.

129   Ms Bentley agreed that there were some workload issues for some employees in the applicant’s unit but she disagreed that there were teething problems with the respondent’s restructure but this was subject to ongoing review.  Ms Bentley agreed that the applicant attended a significant number of meetings which was what she would expect of other managers in her team and Ms Bentley stated that she does not believe that there is a stigma attached to being directed to undertake a psychiatric assessment if there is a reason for doing so however she conceded that it would raise concerns.

130   Ms Kenny gave evidence by way of a witness statement (Exhibit R14).  Ms Kenny commenced employment with the respondent as a Strategic Librarian in April 2008 before moving to her current position as Coordinator Library Services.  Ms Kenny stated that the applicant was not like any other manager she had worked with and she seemed very ‘arty’ and thought differently to other managers.  Ms Kenny did not have any issues with this and assisted the applicant where she could to settle into her position.

131   Ms Kenny stated that during coordinator meetings they itemised actions from each meeting and issues to be followed up at the next meeting and the applicant’s action items always seemed to be rolled over to the next meeting as she had not completed her items.  Ms Kenny noticed that during meetings the applicant would ask her the same questions and would make strange comments to her and Ms Kenny was not sure if it was the applicant’s sense of humour or if the applicant was putting her in her place.  One example occurred about two to three weeks into the applicant’s employment when Ms Kenny responded to a question the applicant asked attendees at the meeting and the applicant said ‘cone of silence’ looking at her.  Ms Kenny laughed as she thought the applicant was having a joke but the applicant turned to her again and put her hand up to Ms Kenny with her palm facing towards her at the level of her face and said ‘Jenny, cone of silence’.  The applicant would ask the same questions of her on different days and Ms Kenny was not sure if the applicant did so because she was busy and forgot that she had already asked her that same question and Ms Kenny thought it was strange to be asking the same question over again, but did not think too much of it at that stage.  After the applicant continued to ask the same questions a number of times, Ms Kenny thought maybe the job was too big for the applicant and that she could not cope.

132   Ms Kenny gave evidence that the applicant requested that a number of employees attend a planning workshop to brainstorm the idea of the Cultural Centre having a festival and the applicant was told that it was not a good time to plan such an event because other events were planned at the same time and there was insufficient staff to do the work.  Ms Kenny said in this meeting a budget had not been requested for this event and it would be unlikely to get any funding yet the applicant’s response was to ‘stop worrying about that’.

133   Ms Kenny stated that when the applicant started she stated that they would get more bookings and gallery staff and she did not seem to understand the process required to obtain more staff or the budget constraints the respondent was under at that time.  Ms Kenny gave evidence that the applicant spent a lot of time working on changing the name of the Cultural Centre building and she stated that the cost of replacing the signs would be substantial and the process of doing this would take a long time.  When Ms Kenny advised the applicant that it was unlikely that the respondent would change the name of the building at this early stage, the applicant said that it was more of a cultural centre and that Ms Bentley was aware of this issue and that the applicant would be proceeding.  Ms Kenny stated that she is now aware Ms Bentley was not aware of the proposal to change the name of the building, despite the applicant spending a significant amount of time working on this proposal behind closed doors.  Other concerns she had with the applicant included the applicant’s reaction to Ms Kenny sending out ‘end of week bouquets’ to staff.  There was an in-house joke about one staff member who was called Carol Leigh and she stated that this was also the name of a rugby hooker and they used to joke with Ms Leigh calling her a hooker and this was a joke that Ms Leigh was a part of and used to call herself the hooker at times.  On reading one of her end of week bouquets where Ms Kenny referred to ‘Carol the Hooker’ the applicant asked Ms Kenny to stop calling Ms Leigh that as it was inappropriate.  When Ms Kenny explained the background to the applicant, she laughed and when the applicant saw Ms Leigh in the kitchen after that she asked Ms Leigh, who is 60 years of age, how long she had been playing rugby.  The applicant made a few odd comments, but Ms Kenny was left alone to do her job.

134   Ms Kenny maintained that the applicant did not understand libraries.  Ms Kenny also noticed that the applicant’s door was often closed.  The applicant told her that she was working on issues concerning Ms Ytsenko which she did all day with the door closed and staff could not see the applicant if they needed to.  Ms Kenny stated that Ms Ytsenko had performance issues and if she arrived at work late or did anything she was not supposed to staff were not allowed to approach her about it and the applicant told Ms Kenny and the other coordinators that she was not pandering to Ms Ytsenko even though it might look like it and the applicant said she was taking this issue very seriously.

135   Ms Kenny gave evidence that during coordinator meetings the whole meeting was taken up with the applicant discussing her issues which did not leave time for other issues to be covered and one of these issues was the booking out of the meeting rooms.  Meeting rooms at the Cultural Centre were intended to generate an income and could be booked out by the public for a fee and the applicant said that all bookings had to cease as she was doing a review of the use of the meeting rooms and the applicant would decide whether a booking was allowed.  The applicant set up a working group to review the booking out of meeting rooms and the persons selected by the applicant to be on the working group, which included the Administration Officer, Facilities Officer and the newly appointed Programs and Exhibition Officer, seemed strange to Ms Kenny.  Ms Kenny could understand the Facilities Officer and the Programs and Exhibition Officer being part of the working group but including the Administration Officer seemed strange as did the fact that there was no coordinator in the working group.

136   Ms Kenny stated that there was a breakdown between library services and the IT section as IT requested a business case for most of what had been requested by libraries and this request was never passed on to Ms Kenny.  Ms Kenny checked with the previous manager and the applicant and neither said they knew anything about this request and when Ms Kenny approached the applicant and told her of her disappointment and asked it they could speak to the IT section and still try and get their bids in, the applicant said ‘don’t worry about it, we will get it in the midyear budget review’.  Ms Kenny stated that the applicant did not seem to understand that the process did not work that way.

137   Ms Kenny stated that there were times when the applicant put extra pressure on the staff, especially coordinators, because she did not pass on information in a timely manner and the applicant then expected them to drop everything to finish something that they should have had time to complete properly.  One example was their contribution to the annual report.

138   After the applicant had been with the respondent for a short time, Ms Kenny could see the pressure, stress and the distress the applicant was causing.  The applicant would not discuss things with Ms Rogers, who was acting in the manager’s position before the applicant arrived, and she would not let Ms Rogers pass over any information and at times the applicant was rude to Ms Rogers and would snap at her and shut her down mid-sentence at meetings often in front of other staff.  Ms Kenny stated that the applicant was also not progressing or making decisions about the first birthday celebrations.  Initially the applicant said this would not proceed and that she did not know why they wanted a birthday celebration but after some time this issue was progressed and the celebration took place after the applicant left.  Further strange behaviour on the part of the applicant occurred during a meeting to review the respondent’s restructure.  The applicant seemed very distant and did not add much to the conversation and during this two hour meeting the applicant went to the toilet twice and twice left her chair to get water.  Ms Kenny maintained that the applicant seemed to have a very short attention span.  Another concern was that the applicant had forgotten to tell Ms Kenny that two of her library staff were being transferred out of her section and Ms Kenny gave evidence that the applicant has only attended the respondent’s other libraries on one occasion and this occurred when Ms Bentley took the applicant to show her these libraries.

139   Ms Kenny became aware that it was not just her that had concerns about the applicant when another employee discussed the applicant with her and some of the decisions she had made.  When Ms Kenny was asked by Ms McNamara to stay back after a staff meeting and Ms McNamara asked her how things were going Ms Kenny asked her why she was asking that question and Ms McNamara replied, ‘I don’t know, something there is just not right’.  After the applicant went on leave Ms McNamara asked Ms Kenny again how everything was going in the Cultural Centre and she said to Ms Kenny ‘I don’t know how many times we had the same meeting with the same conversation, we just seemed to keep going over and over the same stuff’.

140   Ms Kenny stated that in July she felt that something was not quite right with the applicant.  The applicant started to regularly meet her husband in the coffee shop at 10.00 am when she had only arrived at work at 9.00 am and this had only previously happened on an occasional basis.  Ms Kenny felt that something needed to be done about this situation as she was concerned for the health of her team mates and her own health.  Ms Kenny was also concerned for the applicant as her behaviour was strange and it seemed to have escalated since the applicant commenced employment with the respondent.  The applicant was spending more and more time behind closed doors in her office and she had begun to work regularly in the Cafe Elixir away from the unit.  As Ms Bentley was away on leave, they decided to wait until she returned however an issue arose with Ms Burton who was having a difficult time and she told her that she was going to resign.  After talking to Ms Burton and knowing how Ms Rogers and Ms Blackmore were being physically ill and emotionally drained by the applicant’s actions, Ms Kenny decided to speak to the respondent’s human resources section as she could not wait for Ms Bentley to return.  Ms Kenny then organised a meeting to speak to Ms Gillespie and Ms Howlett about the applicant.

141   Ms Rogers, Ms Blackmore and Ms Kenny discussed their concerns about the applicant and the impact she was having on her team with Ms Gillespie and Ms Howlett in some detail.  During this meeting Ms Gillespie asked what impact it was having on the team and they said that there were real concerns and that the people in the room could not cope with the situation anymore.  One person said that she was stressed and was physically ill and did not know how she was going to be able to continue working with the respondent and another person said that they did not want to work there anymore and was considering other options.  Ms Kenny said that she did not know if she could continue to work with the respondent and she might consider leaving.  Ms Kenny stated that the decision to contact human resources had been a difficult one and one which she had been grappling with for some time.  When Ms Bentley returned from leave they went through some outstanding items and Ms Kenny maintained that during this meeting more decisions were made than there had been in the past few months and they were finally able to get on with work and start progressing things.

142   Under cross-examination Ms Kenny confirmed that the action plans used at coordinator meetings were implemented by the applicant and Ms Kenny stated that they were no longer used (see Exhibit R15).  Ms Kenny described the applicant as being flamboyant and different and she maintained that the applicant did not understand the respondent’s budget processes as she wished to seek additional funding but this was not possible.  Ms Kenny could not recall any specific examples of the applicant repeating herself by asking the same questions and Ms Kenny stated that the applicant spent too much time in the coffee shop in the last couple of weeks of her employment with the respondent and Ms Kenny conceded that the manager she was covering for also attended the coffee shop and completed work there.

143   Ms Kenny stated that she was concerned for her health and that of her team members some weeks prior to the applicant leaving.  The main issues causing concern were the applicant asking the same questions, the applicant making strange comments, the applicant’s proposal to change the name of the building, the applicant workshopping an idea for a festival at the Cultural Centre and the lack of concern she showed about the impact of this proposal on the budget.  Ms Kenny was also concerned that the applicant asked her to stop calling Ms Leigh ‘a hooker’.  Ms Kenny stated that the issue of Ms Ytsenko was taking up the applicant’s time and she agreed this was not to the exclusion of her dealing with other matters.  Ms Kenny stated that she was aware that Ms Ytsenko had a bullying complaint against Ms Rogers.  Ms Kenny maintained that there was a blanket ban on booking rooms and then she stated that bookings had to be referred to the applicant and Ms Kenny maintained that the respondent lost bookings because the applicant would not make decisions about bookings and she identified one booking that did not take place as a result of this.  Ms Kenny stated that the Administration Officer is currently the bookings officer and she is unsure if this person was involved in bookings at the time the applicant proposed she be part of the working group to review bookings.  Ms Kenny conceded that it was not the applicant’s fault that the business case for the libraries was not passed on to IT and she stated that her concern with the applicant in this regard was her response when Ms Kenny asked her if she could put in an appeal and the applicant told her not to worry and to wait until the mid-year review.  Ms Kenny stated that as she knew they would not get money at this time it meant the libraries would be without IT for 12 months.

144   Ms Kenny stated that after about nine or ten weeks of the applicant working with the respondent she could see that Ms Burton, Ms Blackmore and Ms Rogers were stressed by the applicant.  Ms Kenny conceded that she was not aware of all of the applicant’s interactions and discussions with Ms Rogers however she stated that at one meeting the applicant would not let Ms Rogers explain a procedure and the applicant was rude to Ms Rogers.  Ms Kenny said that Ms Burton, Ms Blackmore and Ms Rogers were experiencing difficulties and she knew this by looking at them and later from having discussions with them.  Ms Kenny agreed that Ms Burton started with the respondent after the applicant and was taking time to adjust to working in the CBU.  Ms Kenny stated that Ms Burton left two or three weeks after the applicant left and Ms Burton again left soon after by putting in a second resignation.

145   Ms Kenny stated that her evidence about Ms Rogers and Ms Blackmore being physically ill related to Ms Rogers suffering migraines and she thought this was also the case with Ms Blackmore.  Their physical appearance had also deteriorated over the preceding weeks and Ms Blackmore understood Ms Rogers went on stress leave at some point due to the applicant’s actions.

146   Ms Kenny stated that she did not want the applicant terminated.  Ms Kenny maintained that at the meeting with Ms Gillespie and Mr Howlett, Ms Rogers and Ms Blackmore indicated that they wanted to leave because of the applicant and Ms Kenny stated that she would consider leaving the respondent because of the applicant.

147   Ms Kenny stated that the applicant was fine at the beginning of her employment but in the last couple of weeks of her employment with the respondent she ‘didn’t get it.  We weren’t getting through.’.  Ms Kenny agreed she did not raise her concerns about the applicant with her and Ms Kenny agreed that it would take at least three months for an employee in the applicant’s position to get on top of what was required of her position.

148   Ms Rogers gave evidence by way of a witness statement (Exhibit R16).  Ms Rogers commenced working with the respondent in the position of Heritage Officer in June 2001 and she became the Coordinator Heritage Services in July 2006.  Prior to the applicant commencing with the respondent she acted in the position of Manager Capacity Building.

149   Ms Rogers was surprised that when the applicant started she did not want a handover and she made offers of assistance to the applicant but she did not seem to want help.  Ms Rogers was also surprised at the applicant’s approach to some matters.  Ms Rogers thought it was a bit strange that the applicant would not let her show her anything or provide her with any background information on some matters.  For example, the applicant did not even want to talk about anything to do with the Cultural Centre or exhibitions.

150   About two weeks after the applicant started Ms Rogers sustained an elbow injury and she could not do typing and the applicant was sympathetic about the situation and organised for an employee to assist Ms Rogers and about a month after the applicant started Ms Rogers’ sister was diagnosed with an illness and needed urgent surgery and the applicant was very supportive and caring towards Ms Rogers during this period.

151   Ms Rogers gave evidence that the applicant stated that she was going to conduct a review of the meeting rooms and no rooms were to be booked out and the applicant was going to review the room hire and the running of the exhibitions.  The applicant appointed a working group to review this issue which included no senior staff and Ms Rogers thought this was unusual and only one staff member had been working with the respondent for more than six months.  When Ms Rogers asked how the review was progressing the applicant told her that she and the other coordinators would be advised of the outcome.  Ms Rogers started to feel that she was not getting much feedback from the applicant so she asked for a meeting with the applicant but it took about a month before this occurred.  About seven or eight weeks after the applicant started Ms Rogers was feeling that the applicant did not want to hear her ideas or comments and Ms Rogers was embarrassed when she was publicly put down by the applicant in meetings.  Ms Rogers felt that the applicant’s behaviour in this regards was personal and she thought it might have been because the applicant saw her as some kind of threat because she had worked in the applicant’s position.

152   It was when one of Ms Rogers’ staff members had a minor email dispute with a staff member in another section that she became really concerned about the applicant.  Ms Rogers had resolved the dispute and when Ms Rogers mentioned it to the applicant advising that she had dealt with the situation the applicant excluded Ms Rogers in front of her staff and spoke to the employees concerned.  After the meeting one staff member who she had spoken to was distressed that she had been admonished in front of another staff member and it seemed to Ms Rogers to be a minor incident that had been blown out of proportion.  When this staff member returned from leave and found the applicant was on leave she indicated that she had been worried about how she would cope working with the applicant.

153   Ms Rogers found it very difficult to get answers or decisions from the applicant.  When Ms Rogers applied for a flexi day she would have to follow up with the applicant a day or two before her proposed flexi day to get an answer about whether she could have the day off.  This also happened with a request for a higher duties payment when the museum curator went on leave even though the request form was presented to the applicant weeks in advance.

154   During a meeting about short term assistance required in Ms Rogers’ area, initially the applicant did not follow through on the request despite verbally indicating support.  After one discussion about this issue, a staff member stated that they could not believe how the applicant spoke to Ms Rogers and Ms Rogers thought it was becoming a problem when staff started to talk about the applicant’s behaviour.  After that meeting the applicant asked Ms Rogers to stay behind and the applicant became quite aggressive and abusive about budget management and she spoke about how the respondent was in crisis.  Ms Rogers was upset as she felt this was a personal attack as she believed she was very good at the budget process and monitoring her budget.  Ms Rogers stated that the applicant repeatedly asked the same questions and there appeared to be a focus on minutiae.  For example, the applicant asked Ms Rogers four times what ‘GL’ code a training course of $250 was coming out of and Ms Rogers told her on three separate occasions and when the applicant asked her the fourth time she had the piece of paper with the ‘GL’ code written on it in her hand.  As time went on Ms Rogers was not getting a response to her questions and it was becoming difficult to do her job.  Ms Rogers’ staff were coming to her saying that the applicant was asking them really weird questions and Ms Rogers told them to provide the applicant with the information as she was still settling into the job.

155   Ms Rogers started to become concerned for Ms Burton as she was upset and she told Mr Rogers that she was not getting answers from the applicant and they would have the same meeting with the same agenda and Ms Burton said she was not comfortable with the situation.  Ms Rogers had already noticed that the same things were being discussed in meetings and there was no real outcome out of many meetings and she was becoming frustrated because they were not getting any answers from the applicant.

156   Ms Rogers thought she would speak to the applicant about her concern for Ms Burton in a one-on-one meeting and she told the applicant in what she believed was a non-confrontational and supportive manner that Ms Burton seemed to be stressed and Ms Rogers advised the applicant she was concerned for Ms Burton’s health.  The applicant dismissed Ms Rogers’ comment saying that she had dealt with the matter and Ms Burton knows what to do and is happy to move forward.  Ms Rogers felt that nothing she said to the applicant would have made any difference and a couple of days later Ms Burton resigned.

157   Ms Rogers was becoming more and more concerned about the applicant as she was becoming distant from the team.  At meetings the applicant would get up and wander around and did not seem to have the same attention span as others and the applicant did not seem to be able to process information easily and seemed confused in many situations.  For example, the applicant thought she had sorted the situation out with Ms Burton and that she was happy but Ms Burton was becoming more upset after their meetings prior to her resignation.  The applicant seemed to become less and less organised and Ms Rogers and others were told on a couple of occasions that they need to stop everything as they had an urgent deadline that needed to be met.  Two examples included providing information for the annual report and providing information for a director.  When Ms Rogers reviewed emails regarding these issues she noticed that one email had been sent to the applicant a week before, but the applicant was only sending it to Ms Rogers and others that day.  The applicant was becoming more and more withdrawn, she would be in her office for much of the day or going to the cafe to have a coffee to do some work and the applicant appeared to be working whilst she sat in the cafe and Ms Rogers did not feel she could go and speak to the applicant about things there and when she was in her office the door was closed so they did not really have access to the applicant.  Ms Rogers felt that maybe the human resource problem the applicant was managing with one of the administrative staff was causing her stress and she was therefore unable to deal with other matters.  Ms Rogers noticed that the applicant seemed to look uncomfortable when people were talking about the ‘bigger picture stuff’ and the applicant did not seem to see the implications some proposals would have had on other sections.  Ms Rogers felt that whatever she said would not make a difference and it seemed that the applicant did not have an interest in the team as a whole or what was happening.  At one point the applicant queried the charge for a copy of a photograph and she insisted that Geelong City Council be contacted to set the price properly and it seemed the applicant did not have confidence in what they were saying or the previous research that they had done.  As it turned out the charges at Geelong were very similar to theirs.

158   Ms Rogers stated that in the last two or three weeks of her employment with the respondent the applicant was not dealing with things she needed to and she was only concentrating on a small part of her job, that is running exhibitions and the Cultural Centre, without making decisions about other areas.  The job was bigger than that and included libraries, heritage places or other tasks.  When there were multiple staff with concerns about the applicant Ms Rogers decided to talk to an employee support officer about her concerns as she was now physically ill and she did not know what do about the situation.  About eleven or twelve weeks after the applicant started Ms Rogers went to the respondent’s human resources section for help as she did not know what to do.  Staff were complaining, people were trying to resign and the applicant did not understand the situation and Ms Rogers was concerned for the health of co-workers.  Two other people went with Ms Rogers as they had realised that they were all very concerned.  The following day things were worse.  The applicant appeared not to be processing information about things, including the impending departure of Ms Burton and Ms Rogers had no idea how to manage the situation when the team was crumbling and employees were becoming stressed.  Several people spoke to human resources again and this time asked for contact to be made with the unit director.  Ms Rogers was becoming physically ill experiencing headaches and nausea because of the stress at work and she could not stay at work for the rest of the day and Ms Rogers has never had any other issues of this nature due to work before, so she went to the doctor and after visiting the doctor Ms Rogers emailed the respondent to advise of her situation.  She received a response saying that the applicant was on leave and the respondent would be offering support to staff who had come to speak to human resources about the applicant.  Ms Rogers wanted to attend counselling, but was so distressed she could not enter the building and she was feeling very unwell.  The following week when Ms Rogers returned to work during meetings with Ms Bentley more decisions were made in three days than they had in three weeks, possibly three months.

159   Ms Rogers confirmed she applied for the applicant’s position but withdrew her application.

160   Under cross-examination Ms Rogers confirmed that she has worked with the respondent for 10 years and she acted in the applicant’s position for six weeks and Ms Rogers stated that she was passionate about her job.

161   Ms Rogers denied that she did not like the applicant.  Ms Rogers stated that she was not unhappy about the applicant’s dealings with Ms Ytsenko, Ms Rogers confirmed that Ms Ytsenko had made a bullying complaint against her and Ms Rogers denied she was unhappy when the applicant asked her to leave any disciplinary and performance management with respect to Ms Ytsenko to her.  Ms Rogers agreed that Ms Ytsenko left the respondent after the applicant left.

162   Ms Rogers believed that she was excluded by the applicant with respect to some matters and she felt put down and embarrassed by her actions and she stated that she felt demeaned by the applicant’s behaviour at times.  Ms Rogers then stated that the applicant supported her with respect to some matters.  Ms Rogers reiterated that on one occasion the applicant was aggressive and abusive towards her as the applicant leant forward aggressively and spoke louder than usual to her and Ms Rogers stated that she responded in kind.  Ms Rogers agreed that she spoke over the applicant at times but Ms Rogers did not recall the applicant raising this issue with her.

163   Ms Rogers described the applicant as being overly concerned with minutiae for example querying the cost of photographs.

164   Ms Rogers stated that Ms Burton struggled in her role.  Ms Rogers understood Ms Burton resigned the week after the applicant left and she stated that there had not been anyone in her position for three months and there was a backlog.  Ms Rogers stated that there were discussions at a number of meetings prior to and at the time the applicant was appointed about the stress employees were under consistent with workload issues for some positions.  Ms Rogers stated that coordinator meetings were held with the applicant every fortnight as well as other meetings and at these meetings issues were discussed, some were resolved and some were held over.  Ms Rogers stated that as the applicant wanted to deal directly with staff over a dispute about an email that was sent to another unit after Ms Rogers told her the matter was resolved she therefore felt criticised.  Ms Rogers stated that the applicant was not making decisions about exhibitions and no decisions were made about the first birthday celebrations going ahead but she then stated that scheduled events did take place in 2010.  Ms Rogers agreed that in the main work flows were not hindered by the applicant however she was twice told by the applicant to stop work to give the applicant information.  Ms Rogers stated that because of the applicant’s lack of decision making some tasks were not planned as well as they could have been for example the art collection exhibition and the first birthday celebration.  However Ms Rogers then conceded that the applicant made a decision about the art collection exhibition before leaving and the birthday celebration took place in November even though the applicant initially delayed giving approval for this and Ms Rogers then agreed that the applicant had to seek approval before making some decisions.

165   Ms Rogers maintained that Ms Blackmore had indicated that she may resign because of the applicant and it was unclear whether other employees were prepared to continue working for the respondent.

166   Ms Rogers stated that decisions made by Ms Bentley in the three days after the applicant went on leave concerned two exhibitions planned for 2011 as well as the first birthday celebrations and she stated that when the applicant was working with the respondent these decisions were not being made with any clarity.

167   Ms Rogers agreed that the applicant’s position had significant responsibilities including responsibility for four libraries, heritage matters, the museum, the arts, community links, exhibitions and the Cultural Centre and she stated that the unit was always busy.  Ms Rogers stated that it had been a difficult time prior to the applicant commencing due to the commissioning of the new building and there were acting managers in the applicant’s position who were also undertaking other roles and morale was good but employees were tired.  Ms Rogers also agreed that prior to the applicant commencing with the respondent there were significant issues with the new building such as the air conditioning issue which took some time to resolve.  Ms Rogers agreed that some employees were also under non-work related stress in the first weeks of the applicant’s employment and the applicant was supportive and empathetic about these issues, she did not repeat questions and decisions were made in a timely manner about these matters.  Ms Rogers also agreed that the applicant was dealing with performance issues with Ms Ytsenko and Ms Burton was new to her role and there were outstanding restructure issues.  She stated however that there was anxiety about the lack of clarity in the organisation of the birthday celebration and each person’s role.

168   Ms Rogers stated that she raised issues about the applicant with the human resource section because of the email issue involving a dispute with another unit, Ms Burton’s situation being poorly handled by the applicant, the issue surrounding the annual report, issues related to Ms Rogers taking a flexi day, the applicant being distant from her team towards the end of her employment and not communicating with her team even though she attended weekly social functions.  In the last couple of weeks of her employment with the respondent the applicant was frequently in the coffee shop or her door was closed and it was unclear if she was available.  Ms Rogers then stated that she was not expressly barred from approaching the applicant there.  The applicant was also not making some decisions.

169   Under re-examination Ms Rogers stated that a long lead time is required for exhibitions and travelling exhibitions in particular needed to be scheduled a long way in advance.  Ms Rogers also stated that a delay in the applicant confirming whether or not higher duties would be approved for a staff member filling a position led to some confusion.

170   Ms Blackmore gave evidence by way of a witness statement (Exhibit R17).  Ms Blackmore commenced working with the respondent as the Library Service Officer in Clarkson Library in November 2004 and she then moved to the position of Administration Officer for Library and Heritage Services.  She is now the respondent’s Facilities Officer.

171   Ms Blackmore gave evidence that prior to the applicant’s commencement it was a difficult time with the opening of the building and the substantive manager going on maternity leave.  The respondent had a few acting managers in the applicant’s position but they were also working in their substantive position so there was not a lot of support for staff.  Six weeks after the applicant commenced with the respondent Ms Blackmore started to have concerns however she thought it was the applicant settling in.

172   In July the applicant said that she was doing a review of how the respondent hired out and booked rooms and whilst the applicant was doing the review no one was allowed to book out the rooms without the applicant’s approval.  Ms Burton and Ms Blackmore asked whether this would apply to booking requests for a room the same day when it was available and the applicant confirmed that they were still not to accept the booking until they had consulted her.  The applicant indicated that Ms Burton and Ms Blackmore were to send her an email detailing the booking and she would try to respond within 24 hours.  This caused Ms Blackmore concern because the Cultural Centre needed revenue from room hire and they were likely to lose bookings if they were not able to give a prompt response.  Ms Blackmore asked for clarification about how long this review would take and the applicant was very vague in her response but thought it would take a couple of weeks but after two weeks they were still unable to book out meeting rooms.

173   Ms Blackmore stated that she had a good working relationship with Ms Rogers and Ms Kenny and Mr Blackmore sat next to Ms Burton and Ms Blackmore noticed she was struggling.  Ms Blackmore realised that Ms Rogers was not really happy and she and Ms Burton became very quiet and withdrawn.  Ms Blackmore spoke to both of them and realised that Ms Burton was unhappy and wanted to leave as she felt she was not getting any direction from the applicant and Ms Blackmore told her that as the applicant was just settling in they should give her more time.

174   Planning for the Cultural Centre’s first birthday to be held in November commenced prior to the applicant’s arrival with money allocated in the budget to fund the celebrations and the applicant would not let them book anything for the birthday and planning for this event was put on hold.  The applicant also told her that she did not know why they were having a birthday celebration and they were told to cancel meetings already planned to discuss the birthday celebration.  Ms Blackmore did not know why this direction was given because the celebration was at the director’s instruction and preparation for this type of event requires a lot of pre-planning and booking of artists.  Eventually meetings took place however there was never any explanation as to why these preparations were put on hold.

175   Prior to the applicant’s arrival, approval had been received from the Director Infrastructure and Ms Blackmore’s director to order more signage for the new building and this additional signage was considered necessary to improve public awareness of the Cultural Centre.  The artwork had been developed and signed off by both directors and Ms Blackmore needed to raise the purchase order which required the applicant’s approval.  When Ms Blackmore advised the applicant of the background to this matter, the applicant instructed Ms Blackmore not to raise the purchase order because she said she wanted to change the name of the building.  Ms Blackmore told the applicant that it had already been approved and Ms Bentley wanted it to progress but the applicant still said that she wanted to think about a new name.  Ms Blackmore was surprised because it had already been approved and the respondent had already spent a lot of money on the current signs.  To change the name now would be a significant process and would also impact on brochures that had already been printed.  Ms Blackmore advised Ms Bentley that she had not progressed this matter any further as the applicant was considering changing the name of the building.  Not long after she had contacted Ms Bentley, the applicant approved the signage and Ms Blackmore progressed with completing the signage.  There were significant problems with the air conditioning to ensure the necessary temperature and humidity for the museum and exhibition spaces and the applicant attended meetings to discuss this issue and despite attending these meetings the applicant did not seem to grasp the issues and after the meetings the applicant would ask Ms Blackmore to explain what was discussed and she made notes as if they were still in the meeting.  Ms Blackmore stated that the lack of direction and uncertainty of her area of responsibility put pressure on her.  Ms Blackmore felt that the applicant never understood what Ms Blackmore’s job was and this concerned her because she was reviewing Ms Blackmore’s position and her job description.

176   The unit received a request from an Indian family to hire out the function room for three days for a wedding, Ms Blackmore advised the applicant and she said to let them see the facilities and the wedding was on Boxing Day and they wanted access to the whole building from Christmas Eve until Boxing Day.  Given that the respondent was closing for the Christmas period, Ms Blackmore told the applicant that she did not think they should accept the booking as she had concerns regarding security, access arrangements for deliveries and caterers and the availability of the cleaners for the three days, but the applicant told Ms Blackmore to accept the booking and it was processed.  About a week later the applicant asked about the booking and Ms Blackmore again raised her concerns and the applicant asked Ms Blackmore to put them in writing which she did and the applicant responded that she agreed with Ms Blackmore’s concerns.  The family were not happy with the decision to cancel the booking because the invitations had already been ordered and Ms Blackmore maintained that this was another example of the pressure the applicant put the staff under as there was no reason for this incident to occur.

177   Ms Blackmore noticed that the applicant was starting to distance herself from the team, she would sit in the cafe and have coffee and do her work there and she shut the door to her office for extended periods of time.  The applicant became less and less available to staff and the applicant seemed to step further away from the team and the decision making process.

178   Ms Blackmore was concerned that staff morale was declining and she did not know what to do so she spoke to Ms Rogers and shared her concerns and Ms Blackmore was concerned that if this situation continued with the applicant she did not think she could continue in her job.  Ms Rogers told her that ‘it was early days’ and they needed to give the applicant a chance.  Ms Blackmore stated that the final straw was when Ms Burton tried to resign.  Ms Burton told Ms Blackmore that she told the applicant she was resigning and Ms Burton said the applicant had set up a meeting to discuss it and Ms Burton felt that the applicant was trying to delay her resignation.  The next day Ms Blackmore asked Ms Burton how the meeting went and Ms Burton said that the applicant changed the meeting time and they had not met yet and when Ms Blackmore heard this and saw the effect it was having on Ms Burton she was ready to resign herself.  Ms Blackmore spoke to Ms Rogers and Ms Kenny and they agreed that they needed to talk to someone about the applicant and as Ms Bentley was on leave, they decided to approach human resources for a meeting.  Ms Gillespie and Ms Howlett organised a meeting for them straight away and Ms Blackmore stated that it was hard for her to speak to human resources as she did not want to say anything that might be detrimental about a fellow staff member.  However Ms Blackmore felt she had to do something because she was concerned for Ms Burton, the rest of the team and the applicant and Ms Blackmore realised it was not a personality clash with the applicant but the applicant was having an effect on the whole team.

179   On the day the applicant met with Ms Gillespie Ms Blackmore did not want to go to work and she said she did not normally feel that way.  After the meeting with Ms Gillespie and Ms Howlett Ms Blackmore cried on the way home because of the enormity of the situation and the effect it was having on her and Ms Blackmore stated that she did not realise the full extent of the effect it was having on Ms Rogers and Ms Kenny until that meeting and hearing what they had to say and this added to her concern.

180   After the applicant went on leave, in her first meeting with Ms Bentley decisions were made about outstanding issues.

181   Under cross-examination Ms Blackmore stated that she liked the applicant but over time she became concerned about the applicant and wondered if she had a personality problem with her.  Ms Blackmore stated that her main concerns about the applicant were that she spent excessive time in the coffee shop, the applicant’s office door was often closed, she was distant and she did not make decisions.  Ms Blackmore was considering leaving the respondent because there was a lack of direction about her role, her position description form had not been finished until after the applicant left, bookings were being delayed, Ms Burton was becoming increasingly distressed due to a lack of direction from the applicant and she was unsure what her role was, there was a lack of direction with respect to Ms Blackmore’s role, there were issues surrounding the birthday celebration, the applicant wanted to change the signage on the Cultural Centre building and there were issues with how the air conditioning in the Cultural Centre was being dealt with and which the applicant did not understand.  Ms Blackmore stated that the process involved in the reclassification of her position was a lengthy one and started sometime before the applicant commenced employment and she stated that she was concerned as the applicant had to review her position description and she did not seem to understand her position.  Ms Blackmore was unsure if any proposal about her position description had to be approved by Ms Bentley.  Ms Blackmore stated that she wanted to be reclassified to level 6 but she was given a level 5 classification and she denied that she was angry and cried when told about this.  Ms Blackmore stated she was not disappointed and she accepted the outcome.

182   Ms Blackmore stated that prior to the applicant leaving she was suffering from low morale and Ms Burton’s foreshadowed resignation was the last straw.  Ms Blackmore stated that after having a discussion with Ms Rogers and Ms Kenny they decided to raise issues about the applicant with the human resources because they were concerned that Ms Burton wanted to resign.

183   Ms Blackmore agreed that she did not speak to the applicant to tell her she was considering resigning but she believed that the applicant was aware that she was unhappy as she raised this during their discussions about her position description form.  Ms Blackmore confirmed that she did not speak to the applicant about Ms Burton, the applicant repeating questions in successive meetings or deferring decision making from one meeting to the next however she stated that she did raise the issue of delays caused by the applicant reviewing the signage for the Cultural Centre.

184   Ms Blackmore stated that she told Ms Gillespie and Ms Howlett that she was concerned and was considering resigning because she was unhappy in her job and the situation she was in.

185   Under re-examination Ms Blackmore stated that the decision about the signage for the building was delayed by the applicant for approximately three weeks.  Ms Blackmore stated that she was concerned about the review of bookings being undertaken by the applicant as this included bookings at short notice even if a room was available.

186   Ms Howlett gave evidence by way of witness statements (Exhibits R18.1 and R18.2).  Ms Howlett commenced employment with the respondent as its Human Resource Advisor in March 2006 and she is currently the respondent’s Employee Wellbeing Advisor.  Her expertise is in injury management and prevention.

187   Ms Howlett stated that she first spoke to the applicant about an injured employee who was to work from home and the applicant was required to sign off on the paperwork and she later spoke to her about a return to work for this employee.  After these meetings Ms Howlett did a presentation at a managers’ meeting which the applicant attended and at the end of the meeting the applicant told her ‘it is great to finally put a name to the face’.  Ms Howlett laughed thinking the applicant was joking as they had already had two meetings but she stated that the look on her face said she meant it and she thought this comment was odd.

188   At the meeting held on 9 August 2010 with Ms Gillespie, Ms Kenny, Ms Blackmore and Ms Rogers, Ms Howlett stated that Ms Kenny, Ms Blackmore and Ms Rogers with whom she has worked for some time and found to be very professional and conscientious looked very distressed and apprehensive and Ms Howlett recalled they were hesitant about what they were going to say.  They told her and Ms Gillespie that they had concerns for the applicant and explained some of the applicant’s behaviours and they were also concerned about the impact she was having on her team and individuals.  They stated that a couple of staff were about to leave and others were going to take stress leave because of the applicant.  They expressed their frustrations at the applicant’s lack of decision making and said that they could not progress any work because the applicant would not make a decision.  They provided examples such as the applicant putting a stop to all meeting room bookings, the applicant delaying the new building’s birthday celebrations and failing to progress the exhibitions program.  They commented that the applicant did not seem to listen, she was inconsistent, she had placed everything on hold and some areas were micromanaged by the applicant and she did not seem to be concerned about libraries.  They told her that she did not seem to know the budget process and she would make unrealistic comments like ‘we will just get more staff’.  Ms Howlett stated that Ms Rogers said when she tried to get a response from the applicant she ‘went off at her’ and she said that she was quite emotional following this meeting because she had not been spoken to like that before at work.  They also felt the applicant did not comprehend what she was doing and the effect she was having on staff.

189   Ms Howlett and Ms Gillespie were concerned about these staff members and they discussed options to support them and they discussed their comments and they both thought that the behaviours were unusual and not what you would expect of a capable manager.  It seemed there may have been some performance concerns but the main concern for Ms Howlett and Ms Gillespie was the applicant’s wellbeing as the behaviours discussed seemed ‘strange and weird’.  They discussed whether the applicant’s lack of comprehension of the situation may be caused by side effects of medication, sleep deprivation or an underlying psychological issue and they decided to talk to Mr Paton about this issue as Ms Bentley was on leave.  They discussed their concerns with Mr Paton and they thought that the fitness for work process was something that may need to be applied and by opting for the fitness for work process they could give the applicant the benefit of the doubt that she was not performing poorly or deliberately causing problems.  As Mr Paton was concerned about the applicant’s welfare and that of her staff he asked Ms Gillespie if she could speak to someone else who was not working in the unit to see if they had any concerns and he asked Ms Gillespie to speak to Ms Bentley and let her know what had happened.

190   Ms Howlett gave evidence that Ms Gillespie advised her that she was going to have a meeting with Ms McNamara because she was aware that she had been working with the applicant and the CBU team on a program.  After meeting Ms McNamara, Ms Gillespie advised her that she confirmed some of the issues that the other staff had raised about the applicant and Ms Gillespie was concerned because she said she did not prompt Ms McNamara but the end result was the same.  Ms Gillespie also stated that she had discussed the applicant with Ms Bentley who said she was supportive of using the fitness for work process.  At that point they agreed they needed to act and they then met with Mr Paton and advised him of the conversation with Ms McNamara and Ms Bentley.  Mr Paton told Ms Gillespie and Ms Howlett to meet the applicant to discuss her behaviour and if during that meeting they needed to implement the fitness for work process, including suspending the applicant on full pay, they had permission to do so.

191   At the meeting which took place with the applicant on 11 August 2010 Ms Howlett and Ms Gillespie advised the applicant that some staff had raised concerns about her behaviour and they were concerned for her wellbeing and the applicant did not seem to comprehend the situation and seemed bemused by the concerns.  Ms Gillespie outlined some of the behaviours, such as calling the same meetings and discussing the same items on more than one occasion, the applicant not making decisions and seeming vague in meetings or she did not seem to understand a conversation or the context of some discussions and Ms Howlett stated that the applicant seemed to be smiling and could not provide an explanation for the concerns raised.  The applicant said that she was performance managing a couple of staff and they did not like it and so they were trying to get rid of her and she said that this was all a set up and she mentioned that she thought Ms Ytsenko and Ms Rogers were the ones who had made the complaints.  Ms Howlett stated that she found the applicant’s behaviour during this meeting to be a little strange as she showed little emotion and reaction to the concerns the staff had raised and she did not believe the applicant’s reactions were appropriate and the applicant had a forced smile on her face which she found to be odd.  Ms Howlett gave evidence that at that stage Ms Gillespie advised the applicant that the respondent would be implementing the fitness for work process and the applicant would be required to undertake a medical assessment to determine if she was fit for work and the applicant would not need to come to work until the respondent had received this assessment and the applicant would be on full pay during this process.  The applicant responded by saying ‘so I am being stood down’ and she became flustered.  Ms Howlett stated that Ms Gillespie then advised the applicant that this was not a disciplinary process and it was a process to support the applicant and the rest of her team as there were concerns for the applicant’s wellbeing and the respondent wanted to assist her in any way they could.  Ms Gillespie also advised the applicant that it was important that the respondent provide support to other staff affected by her behaviour and it believed that this was the best way to do this.  The applicant then handed some files to Ms Gillespie and Ms Gillespie said to the applicant that this is probably a bit of a shock and offered the applicant some external professional support which she accepted and the applicant was advised that someone would make contact with her later in the day.  Ms Howlett stated that during this meeting Ms Gillespie provided examples of the applicant’s behaviour but not specific incidents and the reasons for withholding this information was to protect the identity of staff who had raised concerns and to place the focus of the concern solely on the applicant’s behaviour.  Ms Howlett stated that the applicant was told that her behaviour was concerning and needed to be addressed and Ms Gillespie told the applicant that the first option was to consider if there was a health issue that was contributing to this behaviour before the respondent would consider performance management and if the applicant was on probation she would be terminated rather than undertaking these processes.  Ms Howlett stated that the applicant did not comprehend the issues raised with her and she smiled and was unemotional, which was an unusual reaction, and the applicant did not deny or accept the allegations put to her.  Ms Howlett believes that the applicant would have had a good understanding of the issues raised with her because they were clearly explained to her and the applicant did not ask for any explanation about the matters raised.  Ms Howlett stated that the applicant’s behaviour as described by her staff made her suspect that she had a mental health issue and nobody thought the applicant’s behaviour was intentional in any way.  Having worked in human resources and injury management for many years she objectively assessed the applicant’s behaviour as being unusual and possibly the result of medication side effects, sleep deprivation or an underlying mental health problem.

192   After the meeting Ms Howlett and Ms Gillespie advised Mr Paton that the applicant did not have any explanation of or understanding of the issues raised with her and they were concerned about her reaction so they implemented the fitness for work process and suspended the applicant on full pay.  Ms Howlett provided a letter to Dr Tay outlining some of the behaviours the applicant was displaying and provided her with a copy of the applicant’s duties and the respondent received a copy of her report within two weeks and then tried to arrange a meeting with the applicant to discuss a return to work program but the applicant could not attend this meeting they had arranged and the applicant told them that she was going to her own doctor to obtain a report.  Ms Howlett did not have any further involvement in the matter after this, although she expected that when the applicant was ready to return to work she would be involved in facilitating a graduated return to work program with her.

193   Ms Howlett stated that when writing to a medical assessor she aims to provide an overview of the concerns and she provides general examples to ensure the report is based on objective clinical assessment rather than a pre-conceived outcome and she does not go into specific detail.

194   Under cross-examination Ms Howlett stated that when she had dealings with the applicant prior to the meeting held on 11 August 2010 she could not recall if the applicant repeated herself or made vague comments or if she arranged meetings to discuss matters that had already been discussed.  Ms Howlett agreed that it was a major decision to direct an employee to see a psychiatrist but she saw no stigma attached to this.

195   Ms Howlett stated that when she spoke to Ms Blackmore, Ms Rogers and Ms Kenny on 9 August 2010 she believed it was appropriate to meet them as a group as they were frightened to come forward and she was of the view that the support they were getting from each other gave them courage to come forward.  Ms Howlett knew each employee and regarded them to be professional and honest.  Ms Howlett could not recall any issues being raised about the applicant prior to this meeting.  Ms Howlett stated that she was not aware whether these employees had raised complaints about anybody else and she then stated that she was aware that Ms Rogers had made a complaint about Ms Ytsenko and Ms Ytsenko had made a complaint against Ms Blackmore but she was unaware if Ms Ytsenko had made a complaint against Ms Rogers and she could not recall if she was aware of these complaints when she met with Ms Blackmore, Ms Rogers and Ms Kenny on 9 August 2010.

196   Ms Howlett spoke to Ms Burton on 10 August 2010 but she did not interview the applicant’s personal assistant or people that the applicant had dealings with in other areas.  Ms Howlett stated that the document headed ‘Statement of Fact’ dated 16 September 2010 and signed by her on that date should have been headed ‘File Note’ and she stated that some issues included in this statement were not put to the applicant (Exhibit R20).  Ms Howlett gave evidence that she did not take notes at the meeting with the applicant on 11 August 2010 and she stated that the file note she and Ms Gillespie made of this meeting was made on the following day and she agreed it did not include specific examples of what was put to the applicant (Exhibit R7).

197   Ms Howlett said that her letter to Dr Tay was deliberately non-specific and was intended to give an overview of the respondent’s concerns about the applicant so as not to pre-empt her investigation and to allow Dr Tay to reach objective conclusions about the applicant and Ms Howlett maintained that Ms Burton and Ms Rogers were on stress leave when this letter was written.  When asked about examples of the applicant’s behaviour that she put in the letter to Dr Tay, Ms Howlett could not recall who said that the applicant was being repetitious or any examples of this and she was unaware of any inappropriate comments made by the applicant or any comments made out of context.  Ms Howlett could also not recall any examples of the applicant’s behaviour given to her at the meeting on 11 August 2010.  Ms Howlett then stated that specific details of the applicant’s alleged inappropriate behaviour were not given to the applicant at the meeting but she expected the applicant ‘to give us an example ... an understanding of what those were’ (T236).

198   Ms Howlett said that at the meeting with the applicant on 11 August 2010 issues were put to the applicant based on behaviours she had displayed, which she believed had occurred given the number of complaints that had been made about these issues, but the applicant gave no indication that she was comprehending anything, there was no denial of the behaviour and the applicant said that it was a set up and Ms Howlett was looking for an explanation from the applicant about her behaviour but did not receive one.  Ms Howlett said that initially the applicant was smiling in the meeting and the applicant did not react to issues put to her and this concerned her.  Ms Howlett then conceded that the applicant was shocked as at the end of the meeting and Ms Howlett agreed that no mention was made of this in the letter she wrote to Dr Tay.

199   Ms Howlett maintained that examples of the applicant’s behaviour provided by Ms Blackmore, Ms Rogers and Ms Kenny at the meeting on 9 August 2011 were not gross exaggerations and Ms Howlett then stated that at the meeting with the applicant on 11 August 2010 Ms Gillespie provided specific examples of issues raised by employees about the applicant.

200   Ms Howlett confirmed she took notes of the meeting she and Ms Gillespie held on 9 August 2010 with Ms Blackmore, Ms Rogers and Ms Kenny and on 10 August 2010 with Ms Burton.  Her handwritten notes of these meetings read verbatim as follows:

9/8 Di Shaw lost 2 staff

Exhibitions Officer leaving

DS dismissed meeting.

DS extended probation (Melinda)

Kath not expecting that.

DS does not listen.

thinks knows stuff – not Comm.

Inconsistant

everything on hold

Micro-manage or not at all.

Can’t take bookings unless goes

through her.  losing money.

No comprehension of roles (Kate)

No knowledge of budget

States just get more staff.

- PR tried to get response to

query - went off at Phillipa

No access to her – door closed.

Has to think about everything.

No communication on PD’s.

Structure Review – 2hrs notice of

required stats.

Annual Report same.

Missed out on 2011 exhibition.

Won’t sign off Performance Reviews.

Phillipa - put down

 - slightest thing

 - no handover

Never visited libraries.

Carol stated Can’t believe way she

speaks to PR.

Couldn’t recognise budget.

Could lose Pam.  No concept of roles.

changing role (PB)

signs – signed off by Dennis + Fiona

Told to hold off because she’s going

to rename the building.

Can’t progress ‘Whats on’ – not allowed to

book meetings.

Jumping through hoops for small stuff.

No action on big stuff.

‘Cone of Silence’

Performance Reviews – NO

10/8 Kate

Clarity around role.

Programs

Concerned about timelines

Offered to book meetings

- First birthday celebrations

asked to hold off – Review planning

didn’t acknowledge issues – (major)

everything 2 weeks off.

Tried various tactics to get to book

Meetings.

June – August.

confusing – unclear.

Repetitive conversations

Kate guiding her.

Meeting Mon 9/8 – asked about role.

Pam/clare/Kate trying to set up process

for bookings

spreadsheet –

decision-making

Strategic Direction.

Several weeks to meet ./c coordinators.

Having to report movements.

Inappropriate comments in meetings

forget things

No awareness.

Not involved with coordinators.

Strange -

Review meetings – changed each

Meeting.

Brochure

- Report to Coordinators? Temporarily.

(Exhibit R18.3)

201   Ms Howlett believed that no bookings of meeting rooms were allowed to take place and she stated that at the time the applicant ceased employment there was a delay in the planning of the birthday celebration.  Ms Howlett also said that Ms Burton and Ms Blackmore said that they would resign if nothing was done and Ms Rogers was highly stressed at the time.

202   Under re-examination Ms Howlett said that the letter to Dr Tay was to provide feedback so that Dr Tay could assess the applicant’s fitness for work.  Ms Howlett was concerned about Ms Burton resigning because of inaction on the part of the applicant and lack of clarity about her role.  Ms Howlett said that she was unaware that after the applicant underwent a psychiatric assessment that the applicant was to return to work under a managing poor performance program.

203   Mr Paton gave evidence by way of a witness statement (Exhibit R23).  Mr Paton has been employed by the respondent since 2002 and he has been the respondent’s Director Corporate Strategy and Performance since 2008.

204   Mr Paton’s first recollection about the issues concerning the applicant was when Ms Gillespie and Ms Howlett provided him with an outline of staff problems expressed about the applicant.  Mr Paton was surprised with these concerns and whilst he did not have a lot to do with the applicant the contact he had seemed to be okay.  When Mr Paton was told who the employees were who had raised these concerns he was surprised because these employees were not ones who usually raise issues and they were level headed, professional staff with a great work ethic and he believed their concerns were real.  When Mr Paton was advised that two of the employees were about to go on stress leave, one employee was resigning and two other employees were considering resigning he knew the respondent needed to do something quite quickly.  Mr Paton was also informed that some employees would be in tears before they came into work or during the day and knowing these employees he knew that was unusual for them to react this way.  Ms Gillespie mentioned the fitness for work policy and the reasons that it could be instigated and she advised Mr Paton that if one or more employees raised concerns about someone’s wellbeing and there was some evidence that the behaviours may make the workplace unsafe, then the fitness for work policy can be enacted.  Mr Paton asked Ms Gillespie to discreetly speak to someone outside the applicant’s unit to see if there were any concerns and also to speak to Ms Bentley.  Ms Gillespie advised Mr Paton that she had spoken to Ms McNamara who confirmed some of the behaviours that other staff raised and she contacted Ms Bentley and she had provided support should they believe they need to instigate the fitness for work policy.  Based on these actions and discussions Mr Paton was confident that it was an issue that needed to be addressed and acted upon quite quickly.  It was decided that Ms Gillespie and Ms Howlett would speak with the applicant and provide her an overview of the issues that had been raised and if they thought the applicant was able to offer a reasonable explanation for these concerns, these explanations would be reviewed and addressed in the appropriate manner.  If it was determined that there was no reasonable explanation for the concerns raised, or justification for the behaviours, then Mr Paton approved them suspending the applicant from the workplace with full pay pending the outcome of a medical assessment.  Mr Paton believed the suspension with full pay was appropriate given the respondent’s duty of care to provide a safe workplace and to ensure the wellbeing of the applicant and the other employees.

205   Ms Gillespie and Ms Howlett briefed him on the meeting with the applicant and Ms Gillespie told him that the fitness for work policy had been enacted and the applicant had been suspended on full pay.  Ms Gillespie told him that the applicant did not provide any indication as to why people may have perceived her behaviour the way they did and the applicant believed it was a set up.  Ms Gillespie and Ms Howlett thought the applicant’s behaviour was strange in the meeting and they were concerned for her wellbeing.  Mr Paton stated that the process was instigated to ensure the applicant’s wellbeing and the wellbeing of other staff and this particular action was not intended as a performance or disciplinary measure.  For this reason, Mr Paton did not participate in the discussions with the applicant leaving it to the human resources section to ensure it remained a fitness for work issue.  Mr Paton stated that as some of the applicant’s behaviours needed addressing the process was initiated to provide support to the applicant and the initiation of this process was never about getting rid of the applicant or terminating her.  Mr Paton considered the actions which were taken were the most appropriate and most supportive given the circumstances.

206   Under cross-examination Mr Paton stated that he attended a number of meetings with the applicant and he described her behaviour as not being strange, unusual or out of the ordinary and she did not say anything out of context.

207   Ms Burton was not called as a witness and gave evidence by way of a witness statement (Exhibit R24).  Ms Burton commenced with the respondent in the position of Exhibitions and Programs Officer in early June 2010 and she resigned from the respondent in August 2010.

208   Ms Burton had a meeting with the applicant on her first day of employment with the respondent and the applicant appeared organised as she had a notebook with her and took notes during the conversation and the applicant discussed the support that she would be able to offer Ms Burton in her new role.  After the applicant had been in the role for a short time, it became apparent that she was failing to follow up on a number of issues and would tell her ‘I will bring them to the next meeting’ when Ms Burton questioned her about the progress of an issue.  It appeared to Ms Burton that the longer the applicant was in the role the more confused the applicant seemed to be getting.  Ms Burton found that the applicant would often not make decisions and when she did make decisions Ms Burton found them to be unusual.  Ms Burton could not understand why the applicant requested that meeting rooms not be booked out whilst a review of the hiring arrangements for the meeting rooms was conducted and the applicant also seemed unable to decide whether community artists could be part of exhibitions or what these artists may be charged to participate in exhibitions.  Ms Burton requested a meeting with the applicant, the unit coordinators and herself but the applicant refused this request.  The applicant would refer to the coordinators as ‘they’ and ‘them’ and the applicant stated that she did not believe that the coordinators had the experience to bother having the meeting that Ms Burton had requested.

209   Ms Burton asked the applicant a number of times about formulating briefing notes relating to the coordination, structure and attendance of the upcoming first birthday celebration of the Cultural Centre.  The applicant would always reply that there was no need to rush and this concerned Ms Burton as the organisation of this celebration would be a time consuming process and Ms Burton felt they needed to get started.  On another occasion the applicant arranged a meeting with Ms McNamara to follow up on events planning and on the day of this meeting the applicant asked Ms Burton ‘Why are we meeting?’.  Ms Burton had to discuss the issues raised at the initial meeting between the applicant and Ms McNamara and remind the applicant why a follow up meeting was being held.  During this meeting, the applicant looked blank and did not appear to comprehend the discussions at the meeting and Ms Burton was starting to get very alarmed.  In Ms Burton’s opinion the applicant appeared to be unravelling and showed signs that she may have been experiencing some health issues.  Ms Burton discussed her concerns about the applicant with Ms Kenny and Ms Rogers.  Ms Burton had concerns that it may look like she was not doing her job properly as the applicant would not make decisions that would allow Ms Burton to progress with her work and Ms Burton had reached the point where she felt that she was not achieving anything at work and was feeling very stressed and she attributed much of this stress to her interactions with the applicant.  Ms Burton then considered resigning from her position.

210   Ms Burton decided to have a discussion with the applicant relating to her role and she asked the applicant whether she believed that Ms Burton was the right ‘fit’ for the position and the applicant appeared surprised by the question.  After this discussion Ms Burton decided that she was going to resign from her position and she told the applicant that she wanted to resign.  The applicant appeared shocked and basically begged Ms Burton not to resign and the applicant asked Ms Burton what was wrong and why she wanted to resign.  Ms Burton told the applicant that no decisions were being made about upcoming events and this was affecting her ability to undertake her role and the applicant then advised Ms Burton that she would be happy to have a meeting to discuss her concerns further and Ms Burton agreed to withdraw her resignation and discuss her concerns at this proposed follow up meeting.  The applicant never properly coordinated this follow up meeting to discuss Ms Burton’s concerns and she then became aware that the applicant had gone on a period of leave.  As Ms Burton would not be able to work with the applicant when she returned to work Ms Burton resigned.

211   Dr Tay was not called as a witness and gave evidence by way of a witness statement responding to the applicant’s evidence about Dr Tay’s report (Exhibit R25).  Dr Tay completed an examination of the applicant on 19 August 2010 and completed a report on 26 August 2010 (Exhibit R8).

212   Dr Tay stated in her report that after examining the applicant she believed that the applicant did not have a psychiatric disorder nor did she meet the criteria of having a major depressive disorder or a major anxiety disorder.  Dr Tay stated that she suggested that at that point in time all tasks pertaining to the applicant’s role as manager were unsuitable given the applicant’s level of insight is limited regarding how she may have been misperceived or misconstrued  or misinterpreted by others staff members.  Dr Tay did not believe that the applicant was currently fit for her managerial duties and she stated that she was qualified to perform her duties as manager.

213   Dr Tay stated that she did not believe that the applicant required further investigations or treatment apart from other personal issues not related to her work.  Dr Tay stated the following:

At this stage, there are no other relevant matters that need to be considered other than that her return to work be reviewed once Ms Shaw is satisfied that due process and her rights have been considered as well.  I would also not recommend that she return to work in her current state, which is that of distress and a loss of confidence with her place of work since being asked to step down.

(Extract Exhibit R8)

Applicant’s submissions

214   The applicant claims that she is owed $196,027.44 which is the balance of her two year fixed term contract with the respondent.  The applicant relies on Clause 4 of the contract as well as Clause 14.1 in support of her claim that her contract with the respondent was for a fixed term and the applicant relies on her letter of appointment which confirms that she had an expectation that she would be employed for a fixed term of two years.  The respondent also offered the applicant a two year contract during pre-employment discussions and the applicant’s evidence and that of the respondent confirms that the applicant was offered a two year contract.  On this basis the respondent is estopped from arguing that the applicant is not entitled to the balance of the two years of her contract of employment.  The applicant also argues that it is appropriate for the Commission to have regard to equitable principles when inquiring into and dealing with this industrial matter.

215   The applicant argues that as the respondent brought the employment relationship to an end the applicant was terminated and this termination occurred because the respondent would only accept the applicant’s return to work on the basis of a poor performance management program which was inappropriate and the applicant’s re-employment was untenable after being required to undertake a psychiatric assessment.  The applicant submits that there has been an irretrievable breakdown in the employment relationship due to the respondent’s conduct and that of its officers.  The applicant submits that she has been denied natural justice and due process during this process.  The applicant submits that the respondent suspended her and sent her for a psychiatric assessment without giving her details about the allegations made by staff about her and she was only told in broad terms about the conduct which made them reach the conclusion that she was required to be assessed.  The psychiatric assessment found that the applicant did not suffer from any illness and recommended she did not return to work until due process issues had been addressed however the respondent then sought to have the applicant return to work on a performance management regime but still refused to provide the applicant details about the basis for reaching this conclusion.

216   The applicant argues that her capacity and work history was exemplary as confirmed by evidence given by a number of witnesses in these proceedings and during her working life over many years she has made a number of achievements and she has been held in high regard.  The applicant has no family history of depression, contrary to Dr Tay’s conclusion and the applicant argues that the letter sent by the respondent to Dr Tay was inaccurate and was deliberately structured to confirm the applicant’s unfitness for work.  This letter also contained over-statements, no examples of the applicant’s alleged behaviours and there was no mention of the applicant being shocked at the end of her interview.  The applicant submits that the contents of Ms Howlett’s letter to Dr Tay about the applicant amounts to a breach of trust and confidence and was a repudiatory breach of the applicant’s contract.  The applicant also submits that in this letter blame was accorded to the applicant for example, the issue with the libraries’ request for IT resources, but this was an issue arising prior to the applicant commencing with the respondent.  The applicant maintains that some of the comments made by the applicant said to be inappropriate can be attributed to her sense of humour.  Dr Edwards-Smith confirmed that the applicant could not return to work with the respondent but was fit for work.

217   The applicant argues that her inability to acknowledge her behaviour during the interview on 11 August 2010 was understandable given the lack of examples provided to her and many of the allegations against the applicant were incorrect and inaccurate.  The applicant’s diary confirms that work undertaken by the applicant included a number of visits to libraries which was contrary to what was stated in Ms Howlett’s notes of the meeting held with staff on 9 August 2010 and these notes do not refer to any employees being stressed or employees leaving if the applicant remained at work.

218   The applicant argues that the respondent’s fitness for work process requires due process to be afforded to individuals before being implemented given the outcome of this process can affect the rights of an employee and the respondent is wrong in its belief that this policy does not need to afford an employee due process.  The applicant also submits that the respondent is required to follow due process and give particulars to an employee when managing poor performance as set out in the respondent’s document titled ‘Guidelines for Improving Performance through our Employees Assistance Services’ and this was not applied to the applicant and no allegations were given to the applicant to respond to with respect to the respondent’s view that she had performed poorly.

219   The applicant maintains that after receiving complaints from Ms Blackmore, Ms Rogers and Ms Kenny the process adopted by the respondent was unfair to the applicant as the respondent did not take into account that Ms Rogers did not like the applicant, she thought the applicant excluded her, she refused a handover, she did not respect her and was aggressive towards her.  Another employee thought she was arty and different from her other managers and the respondent did not interview other employees who had a closer working relationship with the applicant.  Some of the respondent’s witnesses also acknowledged that they had a good working relationship with the applicant.

220   The applicant argues that Ms Howlett and Ms Gillespie were evasive and contradictory when giving evidence and much of the evidence against the applicant was hearsay, speculation, lacked particulars and the assessment of the applicant’s health was gratuitous and self serving.

221   The applicant argues that the evidence of Ms Allen should be given full weight as it is unlikely that the respondent would have cross-examined her on her evidence and the evidence of Dr Tay and Ms Burton should be given limited weight as they were not available to be cross-examined.  The applicant also argues that much of the evidence given in the proceedings by the respondent’s witnesses was hearsay evidence which should be given limited weight.

222   The applicant submits that there is an implied mutual obligation of trust and confidence in employment contracts and implicit in this is the requirement to treat employees fairly and reasonably whilst investigating poor performance or misconduct.  The applicant relies on the following authorities in this regard:  Bednall v Wesley College [2005] WASC 101; Lennon v The State of South Australia [2010] SASC 272; Morton v the Transport Appeal Board and Anor (No1) [2007] NSWSC 1454; Quinn & Ors v Gray [2009] VSC 136; Russell v Trustees of the Roman Catholic Church for the Arch-Diocese of Sydney [2007] NSWSC 104.

223   The applicant maintains that the respondent repudiated its contract with the applicant given its actions towards the applicant and the applicant was entitled to accept the repudiation and terminate her contract with the respondent.  The respondent submits that the applicant was therefore constructively dismissed and the applicant is not seeking a remedy for her dismissal but rather a denied contractual benefit.

224   The applicant submits that she is entitled to the benefit she is claiming given the terms of her employment contract, particularly Clauses 4 and 14, the intention of the parties in the formation of the contract and pre-employment discussions about the contract being for a term of two years.  The applicant argues that the respondent cannot rely on Clause 14.4(a) of the applicant’s contract in support of its argument that the contract was not for a fixed term because the applicant was not terminated by the respondent as contemplated by this clause.

225   The applicant relies on the following authorities in support of its arguments:  Jeannie Leddington v University of Sunshine Coast (2003) 127 IR 152; [2003] AIRC PR928685 [34]; Paul Worthington v Curtin University of Technology [2005] AIRC PR957589 [9].

226   The applicant argues that promissory estoppel applies in this instance.  The respondent knew that there would be a detriment to the applicant by undertaking the actions they did as the applicant had moved house to take on her position with the respondent, her partner had changed positions and the applicant had not taken up other employment which she could have done so.  The applicant’s letter of appointment also confirms a two year appointment and she has suffered a detriment as a result of not being able to fulfil her contract as a result of the actions of the respondent.

227   The applicant submits that there is no duty on the applicant to mitigate her loss as this is a claim for a denied contractual benefit.

228   In the alternative the applicant argues that the respondent has failed to terminate the contract in accordance with Clause 14 of the contract and this failure to do so means it has breached the contract and the applicant is therefore entitled to receive the equivalent of the balance of her entitlements under the contract.

Respondent’s submissions

229   The respondent submits that the applicant was not on a fixed term contract as her contract of employment with the respondent provided that either party could end the contract for any reason without penalty by giving three months’ notice and the respondent submits that the applicant’s contract was a maximum term contract and the applicant was not given any guarantee of two years’ employment.

230   The respondent maintains that the applicant has not provided any evidence that her contract of employment was for a fixed term.  The respondent argues that a contractual benefit claim under s 29(1)(b)(ii) of the Act is not a claim for a breach of contract in the common law sense and the nature of the claim and remedies available are limited in that the benefit claimed must be a benefit under the employee’s contract of service.  The respondent also submits that a contract of employment with a notice period is not a fixed term contract.  The respondent relies on the following authorities in support of its claim that the applicant is not due any benefits under her contract of employment with the respondent; Hotcopper Australia Ltd v David Saab (2001) 81 WAIG 2704; Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307; Walker v Zurich Australia Insurance Ltd [2000] QSC 345 and British Broadcasting Corporation v Ioannou (1975) 2 All ER 999.

231   The respondent argues that after several employees working with the applicant advised the human resources department in early August 2010 of concerns about the applicant’s behaviour and these employees were in a distressed state the fitness for work procedure was initiated and concerns were presented to the applicant at a meeting to seek her reaction, impression and response.  However, the applicant did not acknowledge how her behaviour was being perceived by staff and her reaction was not considered appropriate.  The respondent maintains that the applicant was not embarrassed or treated unreasonably in this process and the matter remained confidential to a small number of appropriate staff and the respondent submits that it took this action out of genuine concern for the applicant’s psychological wellbeing as well as other staff in the area.  The respondent also maintains that the process it used in dealing with the applicant was balanced and fair.

232   The respondent attempted on several occasions to meet the applicant to discuss Dr Tay’s report and a return to work but the applicant provided a medical certificate on 9 September 2010 stating that she was not fit to attend the meeting.  Once the applicant had exhausted her paid leave entitlements under the contract her salary, superannuation and access to a vehicle ceased and the applicant has never returned to work with the respondent and the respondent attempted to have the applicant return to work but the applicant would not meet with the respondent to resolve her concerns and the respondent argues that the applicant’s reputation was not impinged given the process adopted by the respondent.

233   The respondent argues that its behaviour and that of its employees did not breach the employment contract and the action of the applicant in failing to return to carry out her duties has created the breach and the respondent argues that there was no unfairness in relation to what transpired with respect to the applicant’s cessation of employment with the respondent.  The respondent maintains that as concerns raised by the respondent’s employees were made by senior and competent employees and each arrived at an independent view about the applicant this should be given weight.  The respondent submits that the applicant was given an appropriate induction through Ms Bentley, regular meetings were held between Ms Bentley and the applicant and even though there was no formal review of the applicant’s performance Ms Bentley would have monitored her performance through these regular meetings.

234   The respondent argues that the applicant accepted the fitness for work procedure and the weight of evidence is against the applicant with respect to her behaviour given the evidence of Ms Blackmore, Ms Rogers, Ms Kenny, Ms Howlett and Ms Gillespie.  The respondent also submits that the applicant’s recollection about her meeting with Ms Gillespie and Ms Howlett on 11 August 2010 was vague.  The respondent argues that apart from the evidence given by the applicant other evidence given on her behalf was in the main of no assistance to the applicant’s case and the respondent maintains that the evidence given by Dr Edwards-Smith does not contradict the contents of Dr Tay’s report.

235   The respondent argues that the evidence given by the respondent’s witnesses was consistent and they were unmoved in cross-examination.  Ms Gillespie gave evidence that the applicant was inducted on the fitness for work program and after Ms Gillespie was provided with concerns the respondent followed this policy as confirmed by her evidence.  Ms Gillespie outlined the concerns to the applicant at the meeting on 11 August 2010 and the applicant did not confirm or deny the concerns and the respondent maintains that the applicant was provided with support and counselling during this process.  The respondent submits that after receiving Dr Tay’s report it was reasonable for Ms Gillespie to conclude that there were outstanding performance issues with respect to the applicant and Ms Gillespie organised meetings on the basis of the applicant returning to work.  The respondent maintains that Dr Tay’s report identified complex physiological issues that may have impacted on the applicant’s performance at work without her realising this and the respondent maintains that there were concerns about the applicant’s behaviour which were observed independently by at least eight persons.

236   The respondent argues that it had a health and safety duty as well as a moral obligation to act on complaints made by employees about the applicant and it behaved appropriately given these circumstances instead of pursing a disciplinary process against the applicant.

237   The respondent argues that it was inappropriate to invoke the dispute settlement procedure in the applicant’s contract of employment in relation to its concerns about the applicant as it was not relevant and the respondent submits that the level of concern under a fitness for work procedure does not need to be as high as in a disciplinary matter as the respondent was not raising allegations about the applicant.

238   The respondent submits that in relation to the applicant’s alternative claim for three months’ notice, that if the Commission finds that there was a breach of the employment relationship by the respondent this breach was minor and it is the applicant’s absence from the workplace which has resulted in a breach of contract and this was of her own making.  The respondent submits in response to the applicant’s submission that it failed to terminate the applicant’s contract in accordance with Clause 14 that the applicant has breached at least two provisions in the contract of employment by not attending a meeting with the respondent when she was well enough to do so and she neglected her position by not attending her workplace.

239   The respondent argues that estoppel does not apply in this matter (see Civil Service Association Incorporated v Perth Theatre Trust (1997) 77 WAIG 1086; Ian Charles Craig v Bunbury Aboriginal Progress Association (Inc) [1993] WAIRC 486).

240   The applicant’s application should therefore be dismissed.

Findings and conclusions

Credibility

241   In my view the applicant was an impressive witness.  I find that she had a good recollection of the events which took place during the 12 weeks she was employed by the respondent and much of her evidence about these matters was very detailed.  I also find that the applicant’s evidence was consistent and her evidence was not broken down during extensive cross-examination.  Furthermore her evidence was corroborated by a substantial amount of documentation tendered during the hearing, including her reconstructed diary which was based on her memory, her diary and notebooks and her electronic diary, as well as information retained by the respondent.  In the circumstances I have no hesitation in accepting the evidence given by the applicant.

242   I find that the evidence given by the other witnesses on behalf of the applicant was given honestly, in a forthright manner and in my view to the best of their recollection.  I therefore accept their evidence.

243   Ms Kenny and Ms Rogers who were two of the applicant’s coordinators and Ms Blackmore who was the Facilities Officer who reported directly to the applicant gave evidence on behalf of the respondent and their complaints, which the respondent accepted had substance, formed the basis for the applicant being subjected to the respondent’s fitness for work policy.  After observing them give their evidence and after listening closely to their evidence I find that much of the evidence they gave was not convincing.  I find that when Ms Kenny and Ms Rogers were questioned under cross-examination about details of their complaints about the applicant on a number of occasions they were unable to give specific examples of their concerns about the applicant’s behaviour which they raised with Ms Gillespie and Ms Howlett.  Ms Kenny and Ms Blackmore also could not give dates and events when the applicant repeated herself or when meetings were called by the applicant which dealt with issues that had previously been dealt with.  The complaint each of these employees made about the applicant being distant and withdrawn towards the end of her employment with the respondent was in similar terms and this therefore gave the impression that their evidence was rehearsed thereby in my view undermining the veracity of their evidence.  I find that at times they gave evidence which contradicted each other.  Ms Kenny and Ms Blackmore gave evidence that no bookings could be taken for meeting rooms and they then stated that booking requests had to go to applicant for consideration.  Ms Rogers also gave evidence that there was a blanket ban on the booking of meeting rooms.  They complained that the applicant delayed the organisation of the Cultural Centre’s first birthday celebration yet this celebration went ahead as planned.  I also find that protestations about the applicant being sidetracked and spending excessive time changing the name of the Cultural Centre building were vague and unsubstantiated and no direct evidence was given to support this claim.  In any event this was not a decision the applicant would make.  The applicant was accused of not making decisions yet there was evidence that the applicant made a number of decisions at the same time as settling in to her new and onerous role.  For example, the applicant implemented a review of the booking of meeting rooms and she made initial determinations about the classification of Ms Blackmore’s position and that of an employee in Ms Rogers’ section.  The applicant also made decisions about how to deal with managing Ms Ytsenko and she made decisions about assistance to be given to employees in her unit suffering from personal problems.  I also find that Ms Kenny was not forthcoming and gave contradictory evidence when she was cross-examined about the applicant working in the coffee shop.

244   I find that Ms Bentley and Mr Paton gave their evidence in a considered manner and to the best of their recollection and I therefore accept their evidence.  Even though Ms Bentley gave evidence that one of the applicant’s referees, Ms Lucas, told her that the applicant may be slow to start and Ms Lucas gave evidence that she could not recall saying this and that she would have stated the opposite, in my view nothing turns on this.

245   I find that Ms Gillespie gave her evidence honestly and to the best of her recollection, however some of the evidence she gave in examination-in-chief and her evidence about what transpired at her meeting with the applicant on 11 August 2010 and Ms Howlett lacked detail and in my view this undermined her evidence.  I have a similar view about the evidence given by Ms Howlett.  I find that as Ms Howlett was unable to recall specific instances of the applicant’s alleged poor and erratic behaviour as told to her by Ms Kenny, Ms Rogers and Ms Blackmore this undermined the veracity of her evidence.

246   As I have confidence in the evidence given by the applicant and given my doubts about the evidence given by Ms Kenny, Ms Rogers, Ms Blackmore, Ms Gillespie and Ms Howlett where there is any inconsistency in the evidence I prefer the applicant’s evidence to the evidence given by them.

247   The applicant argues that her employment with the respondent was subject to a fixed term of two years’ duration and she was committed to and expected her employment with the respondent to continue for this full period and the applicant maintains that she was constructively dismissed by the respondent when she resigned because the respondent repudiated its contractual obligations to the applicant.  As a result the applicant was prevented from completing the two year term of her contract and she is claiming the balance of her fixed term contract in the amount of $196,027.44.  In the alternative the applicant argues that the respondent breached her contract of employment as it failed to terminate her contract in accordance with the terms of Clause 14 and she is owed three month’s remuneration by way of notice.  The respondent maintains that the applicant’s contract was a maximum term contract and the applicant had no guarantee she would be employed by the respondent for two years as her contract provided that either party could end the contract for any reason without penalty by giving three months’ notice.  The respondent argues that its behaviour and that of its employees when dealing with the applicant from 11 August 2010 onwards did not breach the applicant’s contract with the respondent and as the applicant failed to return to work after 11 August 2010 to carry out her duties she breached her contractual obligations to the respondent.  The respondent also argues that if the Commission finds that the respondent breached its contractual obligations towards the applicant, this breach was minor.

248   The claim before the Commission is one for an alleged denial of a contractual benefit and the law as to these matters is well settled.  For an applicant to be successful in such a claim a number of elements must be established.  The claim must relate to an industrial matter pursuant to s 7 of the Act and the claimant must be an employee, the claimed benefit must be a contractual benefit that being a benefit to which there is an entitlement under the applicant’s contract of service, the relevant contract must be a contract of service, the benefit claimed must not arise under an award or order of this Commission and the benefit must have been denied by the employer:  Hotcopper Australia Ltd v David Saab; Ahern v Australian Federation of Totally and Permanently Incapacitated Ex-Service Men and Women (WA Branch Inc) (1999) 79 WAIG 1867.  The meaning of “benefit” has been interpreted widely in this jurisdiction:  Balfour v Travel Strength Ltd (1980) 60 WAIG 1015; Perth Finishing College Pty Ltd v Watts.

249   It is for the Commission to determine the terms of the contract of employment and to ascertain whether the claim constitutes a benefit which has been denied under the contract of employment, having regard to the obligations on the Commission to act according to equity, good conscience and the substantial merits of the case and consider the relief to be ordered in the event the claim is proved (Belo Fisheries v Froggett (1983) 63 WAIG 2394; Waroona Contracting v Usher (1984) 64 WAIG 1500; Perth Finishing College Pty Ltd v Watts).

250   A contractual agreement between parties is to be interpreted using the ordinary words of the contract unless there is ambiguity.  In Noel Edward Knight v Alinta Gas Ltd (2002) 82 WAIG 2392 at 2397 His Honour, Sharkey P stated the following:

Somewhat axiomatically, there is no scope for interpreting a contract unless there is ambiguity or the words in issue are otherwise susceptible to more than one meaning (see Codelfa Construction Pty Ltd v State Rail Authority (NSW) (op cit) at page 352 per Mason J and see also Rankin v Scott Fell and Co (op cit)).

There are no strict rules of law governing the interpretation of contracts apart from the relevant rules of evidence.  The plain, ordinary or natural meaning of the words used by the parties to express a term will prevail unless the context warrants otherwise.  However, the process of construction of a contractual provision means more than merely assigning to the words of a written instrument their plain and ordinary meaning (see Codelfa Construction Pty Ltd v State Rail Authority (NSW) (op cit) at page 348 per Mason J).  The parties’ apparent or objective intentions, as evidenced by the context in which they contracted, control the process of interpretation, an issue which the court necessarily approaches objectively (see The Life Insurance Co. of Australia Ltd v Phillips [1925] 36 CLR 60).

251   There is no issue in this matter and I find that at all material times the applicant was an employee of the respondent and she was employed under a contract of service.  I find that this claim is also an industrial matter for the purposes of s 7 of the Act as it relates to monies the applicant claims are due to her arising out of her employment with the respondent.  It is also common ground that the benefit that the applicant is claiming does not arise under an award or order of this Commission.  The issue to be determined therefore is what were the terms of the applicant’s contract of employment with the respondent and whether it was a term of this contract of employment that the applicant is entitled to the payment she is seeking.

252   The sections of the applicant’s contract of employment with the respondent relevant to this application are as follows:

4 TERM OF EMPLOYMENT

Subject to the terms and conditions contained in this Contract, the City of Wanneroo will employ the Employee, in this position of Manager Capacity Building at the City of Wanneroo, for a term of two{2} years, commencing on 17 May 2010 and expiring on 16 May 2012.

…

14 TERMINATION OF EMPLOYMENT

14.1 Effluxion of Time

Subject to this Contract the employment of the Employee shall terminate on the expiry date specified in clause 4 of this Contract.

14.2 Resignation by Employee

The Employee may, at any time before the expiry of the Term, resign as an Employee by giving the City not less than three (3) months' notice in writing of the Employee's intention to do so.

14.3 Summary Dismissal

a) the City may terminate the employment of the Employee at any time during the Term by notice in writing, or summarily if:

i. the Employee commits any wilful or serious misconduct or wilful neglect in the discharge of the employee's responsibilities or obligations under this Contract;

ii. the Employee wilfully disobeys any reasonable and lawful order of direction by the City; or

iii. the Employee is convicted and under sentence for a crime or has been convicted of a serious Local Government offence within the meaning of section 2.22 of the Act.

b) the City shall not approve any payment under clause 14.4 where the termination is a result of an event identified under clause 14.3 (a).

14.4 Termination Upon Notice

a) if this Contract is terminated by the City for any reason other than those listed in clause 14.3 (i), (ii) or (iii) of sub-clause (a), the City will pay to the Employee the value of three months remuneration under the contract.  If the contract has less that (sic) (3) three months to run, a payment not exceeding the value of remuneration that Employee would have received if the Contract has (sic) been completed; or

b) subject to any industrial relations law the employee shall have the right to pursue any action of unfair dismissal if in the opinion of the employee the termination is harsh, unjust or unreasonable.

(Extracts Exhibit A9)

253   I find that the applicant’s contract is for a specified period of two years duration and the contract could also be terminated on notice by either party at any time prior to the expiration of this two year period.  The respondent could also summarily terminate the applicant prior to the expiration of this contract in specified circumstances.  Specifically, clause 4 of the contract provides that the applicant was employed by the respondent for a term of two years commencing 17 May 2010 and expiring on 16 May 2012, clause 14.1 provides that, subject to the contract, the employment of the applicant terminates on the expiry date specified in clause 4 of the contract, clause 14.2 allows the applicant to resign by giving not less than three months’ notice in writing, clause 14.3 provides that the respondent can summarily terminate the applicant in certain circumstances and clause 14.4 allows the respondent to terminate the applicant for any other reason by paying her three months’ remuneration or less if the contract would have expired during this period.

254   A claim for the payment of the balance of this two year contract, if it was terminated early by the respondent or the applicant in accordance with clause 14 or if the contract ceased for any other reason, will not automatically be granted.  It is also the case that any loss or damages due to the applicant if and when this two year contract ceased within its term is the remuneration due to her that would have been payable for the duration of the contract, less any amounts earned by way of mitigation, when taking into account the likelihood of the employment continuing to the conclusion of the contract.  When considering a contractual benefits claim the Commission is also not limited to the benefit claimed and a monetary award of compensation in the nature of damages may be made in respect of a denied contractual benefit as long as the monetary award resolves the industrial matter before the Commission:  Hotcopper Australia Ltd v David Saab [2002] WASCA 190 [24] (Anderson); Matthews v Cool or Cosy Pty Ltd (2004) 84 WAIG 2152 (2154) (Steytler J), (2159) (Pullin J) and (2161 – 2162) (EM Heenan J).

255   In determining whether the applicant has been denied the benefit under her contract of employment that she is seeking it is relevant to consider whether or not the applicant resigned or ceased employment at the respondent’s initiative and was constructively dismissed.

256   The applicant resigned from her position with the respondent as at 20 October 2010 and in doing so she claimed she was constructively dismissed by the respondent.  A resignation can constitute a dismissal but whether or not a particular resignation will do so depends upon the circumstances of each case.  The relevant law to be applied in this matter was set out by Beech SC (as he was then) in Grant Raymond Lukies v AlintaGas Networks Pty Ltd (2002) 82 WAIG 2217 at 2220:

The Industrial Relations Commission of South Australia in Lucky “S” Fishing Pty Ltd v Jex (1997) 75 IR 158 at 164 also considered the decision of the Court of Appeal of New Zealand [Auckland Shop Employees’ Union v Woolworth’s (NZ) Ltd (1985) 2 NZLR 372].  It noted that the Court of Appeal stated that there has been a modification of the test in the Western Excavating (ECC) Ltd v Sharp case (1978) ICR 221 at 226 which stated that if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.  If he does so, then he terminates the contract by reason of the employer’s conduct.  He is constructively dismissed.  The Court of Appeal suggested that in constructive dismissal cases the relevant test is whether the conduct complained of is calculated or likely to seriously damage the relationship of confidence and trust between the parties and is such that the employee cannot be expected to put up with it.

257   A termination is also predicated on an employer’s actions resulting in the cessation of the employment relationship.  In Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 (205), the Full Court of the Industrial Relations Court of Australia said:

…‘termination at the initiative of the employer’ involves a ‘termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship … [A]n important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee.  That is, had the employer not taken the action it did, the employee would have remained in the employment relationship’.

(See ‘Law of Employment’ Macken, O’Grady, Sappideen and Warburton 5th Edition page 326)

258   There is no dispute and I find that the applicant commenced employment with the respondent on 17 May 2010 and it was also not in dispute and I find that the applicant did not return to her workplace after 11 August 2010.  I also find that when the parties signed the applicant’s contract of employment both the applicant and the respondent expected that they would be bound by this contract for a period of two years.

259   After considering the evidence relevant to this matter as well as documentation tendered during these proceedings and when taking into account the relevant authorities and my views on witness credit I find that the applicant’s employment with the respondent ceased at the respondent’s initiative and the applicant was constructively dismissed.  I have reached this conclusion on the basis that I find that the respondent’s conduct towards the applicant on and after 11 August 2010 seriously damaged the relationship of confidence and trust between the applicant and the respondent such that the applicant could not be expected to put up with it.  I also find that in all of the circumstances of this case that had the applicant not been constructively dismissed she would have successfully completed the two year duration of her contact with the respondent.

260   Following is a chronology of events relevant to the applicant’s employment with the respondent which is not in contest.  The applicant commenced employment with the respondent as the Manager Capacity Building on 17 May 2010 under a written contract of employment (Exhibit A9).  The applicant’s other terms and conditions of employment not included in this contract were those applying to employees covered by the City of Wanneroo Salaried Officers Union Collective Agreement 2008 as amended.  The applicant’s main duties included people management, corporate governance, managing occupational health and safety and injury, financial management and her position had a customer and commercial focus.  The applicant’s specific brief was to enhance access to information and resources, preserve the respondent’s cultural heritage through community access to art and heritage programs and facilities and to create opportunities for community participation in the City of Wanneroo.  The applicant was recruited to fill in for an existing employee who was on leave for two years and she was not subject to any probationary period.  On 11 August 2010 the applicant was stood down by the respondent under its fitness for work policy and the respondent required her to undergo a psychiatric assessment, which took place with Dr Tay on 19 August 2010.  By letter dated 13 September 2010 the respondent informed the applicant that as she was unwell and could not attend a scheduled meeting on 10 September 2010 to discuss Dr Tay’s report and strategies to assist the applicant to return to work her suspension period ceased as at 10 September 2010 and she would be required to take accrued leave or leave without pay until she was confirmed as fit to return to work.  By letter dated 21 September 2010 the applicant informed the respondent that its actions towards her had caused her to be undermined in the workplace and this had caused her to become incapacitated to undertake her duties and her ongoing employment with the respondent was untenable.  The respondent replied by letter dated 28 September 2010 advising the applicant that the respondent accepted that the issues which resulted in her suspension were not the result of a psychiatric or personality disorder but the applicant would be required to return to work and have issues about her performance addressed in accordance with the respondent’s managing poor performance procedure.  The respondent also advised the applicant that she would be given a further opportunity to respond to relevant issues in a performance management context and she would be given support to improve her performance (Exhibit R9).  By letter dated 6 October 2010 the applicant’s representative requested that the respondent provide particulars of the issues and reasons which gave rise to the respondent’s concerns about the applicant’s fitness for work such that the applicant be subject to a performance management regime, he requested a copy of the respondent’s letter to Dr Tay requesting her psychiatric assessment, particulars of the incident or incidents that the respondent relied on to suspend the applicant and confirmation that the applicant was not on probation at the time of her suspension.  On 13 October 2010 the respondent replied to this letter seeking a meeting with the applicant in order to develop a ‘structured and supportive return to work program’ for her as soon as her doctor declared her fit to return to work and the respondent noted that as the applicant was currently on leave without pay she was required to return the respondent’s motor vehicle (Exhibit R12).  On 20 October 2010 the applicant wrote to the respondent claiming that as a result of the respondent’s breach of her contract of employment this constituted a repudiation of her contract and the applicant stated that she was proceeding on the basis that the respondent had constructively dismissed her with effect from that date.

261   I find that the respondent did not have sufficient reason to stand down the applicant on 11 August 2010 and I find that the process used by the respondent when standing down the applicant was unfair and unjust.

262   There was no dispute and I find that the applicant was stood down by the respondent at the end of a meeting with Ms Gillespie and Ms Howlett on 11 August 2010 and she was told at the time that she would be required to undergo a psychiatric assessment under the respondent’s fitness for work program in order to assess her competency to remain at work.  I find that this meeting was arranged by the respondent after Ms Kenny approached Ms Gillespie on or about 8 August 2010 about concerns she and two other employees who reported to the applicant had with the applicant.  I find that Ms Kenny, Ms Rogers and Ms Blackmore then met with Ms Gillespie and Ms Howlett on 9 August 2010 to discuss their complaints about the applicant’s behaviour and the manner in which she was undertaking her role.  I find that after this meeting Ms Gillespie and Ms Howlett formed the view that as these longstanding and trustworthy employees did not ordinarily complain about colleagues and as their allegations about the applicant were consistent that their complaints and comments about the applicant’s behaviour and performance were true.  I find that Ms Gillespie and Ms Howlett thus concluded that the applicant was behaving and performing inappropriately and may be cognitively impaired such that she be subject to the respondent’s fitness for work policy and it did not consider alternative options to it which I find was an omission on the part of the respondent.  When the respondent became aware of three employees who were unhappy with the way in which their manager was performing and behaving a range of strategies could have been adopted by the respondent to deal with this issue such as putting in place conflict resolution and mediation processes yet if failed to do so.

263   I find that the only attempt made by the respondent to verify if these concerns and issues about the applicant’s conduct and performance were based on fact was when Ms Gillespie spoke to Ms McNamara, who did not work in the applicant’s area, to gauge her impressions about the applicant and I find that after this cursory meeting Ms Gillespie concluded from her comments that the veracity of the complaints already made against the applicant was reinforced.  I find that after this discussion with Ms McNamara the respondent did not undertake any further investigations into the substance of the allegations made against the applicant, nor was any attempt made by the respondent to seek out further information about the complaints about the applicant or approach other employees who worked closely with the applicant, such as the applicant’s personal assistant, to obtain feedback about the applicant’s behaviour and her performance, which in my view was a serious omission.

264   Given my views on witness credit I accept the applicant’s evidence and I find that the applicant performed her new role in a professional manner and I find that the applicant adequately dealt with a range of pressing issues within her portfolio and a put in place a number of new procedures for her unit to move forward.  In contrast, I find that much of the evidence given by Ms Kenny, Ms Rogers and Ms Blackmore about the applicant’s behaviour and performance which was relied upon by Ms Gillespie and Ms Howlett to stand down the applicant on 11 August 2010 was petty, vague, exaggerated and untrue and in my view their complaints in the main demonstrated their inability to cope with the applicant’s management style and personality and a different approach to managing the CBU.  I find that the following evidence given by these witnesses is indicative of my view that many of their criticisms about the applicant were trivial, they lacked substance and some of their comments about the applicant were patronising and condescending.

265   Ms Kenny gave the following evidence:

11. After a little while of Ms Shaw asking the same questions a number of times, I thought maybe the job was too big for her and she couldn’t cope.  She didn’t seem to be able to get the gist of things.

40. Another behaviour which seemed strange in the context of the situation was during a meeting which was to review the restructure.  In that meeting all Managers and Coordinators from our Directorate were meeting with the Director and two staff from other service units to discuss how successful the restructure was and if there were any changes that may need to be made.

41. During this meeting, Ms Shaw seemed very distant and didn’t add much to the conversation.  During the two hour meeting, Ms Shaw got up and went to the toilet twice and got up to get two drinks of water.  She seemed to have a very short attention span.

49. In July I felt that something wasn’t quite right.  Ms Shaw started to regularly meet her husband in the coffee shop at 10.00am, when she only arrived at work at 9.00am.  This had previously happened on an occasional basis.

50. I felt that something needed to be done in relation to this matter, as I was concerned for the health of my team mates and my own health.  The situation had taken its toll on me and I was feeling quite concerned for some other staff.

51. I was also quite concerned for Ms Shaw, her behaviours were quite strange and it seemed to have escalated from when she had started at the City.

52. She was spending more and more time behind closed doors in her office and had begun to work regularly in the Café Elixir away from the Unit. (emphasis added)

(Extracts Exhibit R14)

Are you suggesting that Ms Shaw spent more time in the coffee shop than she should have? ---When? Not initially; in the last couple of weeks she did.

Last couple of weeks?---Yeah.

And your office doesn't overlook the coffee shop, does it?---No.

You can't see the coffee shop from your office, can you?---No.

So you don't know how long she spent in the coffee shop, do you?---I know because if I was popping down because I had to speak to her about things or trying to ring down and get her, that people on the front desk would tell me where she was.

And you could go and see her at the coffee shop?---I could have.

Ms Brennan used to work ... Ms Shaw's predecessor used to work at the coffee shop, didn't she?---No; not like Ms Shaw did. She sometimes would go and have a coffee and write notes but she wasn't working in there.

So she would go to the coffee shop and attend to other business, not work?---What do you mean by other business?

Well, you said that she didn't work there?---Sometimes she would go in there and just have a coffee and write notes for a meeting or something she was going to next.

So she did do work at the cafe?---Yes. (emphasis added)

(Transcript p 184)

266   Ms Rogers gave the following evidence:

8. I was surprised when Diane [the applicant] started that she didn’t want a handover, however, I thought that maybe she wanted to learn some things without anyone else having their input or imparting their views.

9. Diane [the applicant] was provided with plenty of offers of assistance and system information but she didn’t seem to want to take them

13. Professionally, however, I was surprised at her approach to some matters. I thought it was a bit strange that Diane [the applicant] would not let me show her anything or provide her any background information on some matters.  For example, she didn’t even want to talk about anything to do with Wanneroo Library and Community Centre (WLCC) or exhibitions.  I just put it down to different management styles and continued on with my work.

18. About seven or eight weeks after Diane [the applicant] started I was feeling that Diane specifically did not want to hear my ideas or comments from me.  I was embarrassed that I was being publicly put down in meetings.

19. I felt that this behaviour was quite personal and I thought it might have been because Diane [the applicant] saw me as some kind of threat because I had worked in the job before her, but I didn’t want to continue in the job and I was no threat to her

37. I was becoming more and more concerned for Diane [the applicant] as she was getting more and more distant from the team.  She would get up and wander around and she didn’t seem to have the same attention span as others.

38. About this time Diane [the applicant] didn’t seem to be able to be processing information easily and seemed confused in a lot of situations.  The example with Kate [Ms Burton] is a good one.  Diane thought she had sorted the situation out and that Kate was happy, but in reality Kate was becoming more upset after their meetings and then resigned.

39. Diane [the applicant] also seemed to become less and less organised.  We were told on a couple of occasions that we need to stop everything as we had an urgent deadline that needed to be met.

40. Two examples were the information for the annual report and some information for the Director.  When I reviewed the emails I noticed that the email has been sent to Diane [the applicant] a week before, but she was only sending it to us that day.

41. Diane [the applicant] was becoming more and more withdrawn, she would be behind closed doors a lot of the day or going to the cafe to have a coffee and do some work.

42. Di [the applicant] appeared to be working whilst she sat in the cafe and I didn’t feel like I could go and speak to her about things there.  When she was in her office the door was closed so we didn’t really have access to her.  I felt that maybe the HR problem she was managing with one of the admin staff was causing her stress and she less able to deal with other matters.

43. I did notice that Diane [the applicant] seemed to look uncomfortable when people were talking about the ‘bigger picture stuff’.  Diane didn’t seem to see the implications some proposals would have had on other sections.

44. I felt like my point wouldn’t be taken on board or considered by Diane [the applicant] and whatever I said wouldn’t make a difference.  It seems she didn’t have an interest in the team as a whole or what was happening at that stage.

47. In the last two or three weeks Diane [the applicant] was not dealing with things she needed to.  She was only concentrating on a small part of her job, running exhibitions and running the Wanneroo Library and Cultural Centre, but without making decisions there.  However, the job was bigger than that but she didn’t get involved in the libraries, heritage places or other tasks. (emphasis added)

(Extracts Exhibit R16)

267   Ms Blackmore gave the following evidence:

27. I felt that Di [the applicant] never really understood what my job was and this caused concern because she was reviewing my position and my position description.  I wasn’t sure how she was going to do this if she didn’t understand my job or didn’t ask me.

38. I noticed that Di [the applicant] was starting to distance herself from the team, and started to go and sit in the cafe and have coffee and do her work there or shut the door to her office for extended periods of time.  She became less and less available to the staff.

39. Di [the applicant] seemed to step further away from the team and the decision making process. (emphasis added)

(Extracts Exhibit R17)

268   In support of this conclusion I find that the notes prepared by Ms Howlett and Ms Gillespie of their meeting with Ms Kenny, Ms Rogers and Ms Blackmore on 9 August 2010 contain a number of complaints made by them which in my view were exaggerated, subjective, they lacked substance and were not based on fact nor were these complaints supported by any evidence.  For example, the notes refer to the applicant not managing employees, there was no access to the applicant, the applicant cannot thing strategically, she does not listen and she has to think about everything.

269   I find that after receiving Mr Paton’s endorsement and with no notice, the applicant was required to attend a meeting with Ms Howlett and Ms Gillespie on 11 August 2010 to explain perceived performance problems and the reason for her unusual behaviour and the basis for her cognitive impairment.  I find that the meeting between the applicant, Ms Gillespie and Ms Howlett on 11 August 2010 was conducted in an oppressive manner towards the applicant and as a result the applicant did not have a proper opportunity to respond to the issues raised by Ms Gillespie and Ms Howlett and to their requirement that the applicant had to explain the basis for her cognitive impairment.  I find that at this meeting Ms Gillespie and Ms Howlett made vague assertions about the applicant’s behaviour and performance and the applicant was immediately required to respond and give reasons for this behaviour.  I find that Ms Gillespie did not name the individuals who made complaints about the applicant and the applicant was not given details about specific events and issues relied on by the respondent to form the view that the applicant was cognitively impaired and was not adequately completing her duties despite requests for this information and I find that as a result the applicant was unable to properly respond to what was being put to her.  I also find that it was not surprising that the applicant did not agree with the general propositions put to her by Ms Gillespie and Ms Howlett that her behaviour and performance was unacceptable or that she had some cognitive impairment given the lack of detail put to the applicant.  I accept the applicant’s evidence that she was shocked by what was being put to her by Ms Gillespie and Ms Howlett and in my view this also contributed to the applicant’s inability to give feedback to Ms Gillespie and Ms Howlett.  I also find that the applicant was inappropriately put under pressure by Ms Gillespie when she incorrectly told the applicant that as she was on probation the respondent did not have to give the applicant any opportunity to be assessed under the fitness for work policy thus adding to the applicant’s distress.

270   I find that this meeting was conducted in an unfair manner as the applicant was required to explain her inappropriate behaviour and the reason for her cognitive impairment as opposed to discussing whether or not her behaviour was inappropriate and if she was suffering a psychiatric disorder and I find that the respondent had pre-determined that if the applicant did not agree that she was cognitively impaired she would be stood down forthwith and be subject to a psychiatric assessment under its fitness for work policy.  Even though the applicant was not given specific examples about her alleged inappropriate behaviour and performance to which she could respond nor did she admit that she was cognitively impaired, in the event the respondent decided that the applicant did not have any excuse for being in this state and the applicant was told that the respondent’s fitness for work policy was being enacted.  The applicant was then told that she was required to undergo a psychiatric assessment under this policy and was being stood down on full pay and she could not return to work in her current position before this occurred.  I find that to her credit and professionalism the applicant accepted what she believed to be a lawful instruction to attend a psychiatrist and she then left her workplace, as required, with immediate effect after dealing with some pressing matters and handing over some files to Ms Gillespie and I find that at this point in time the applicant had every intention of returning to work with the respondent in her existing role however, in the event this did not occur.

271   I find that as well as not properly investigating the complaints against the applicant the respondent failed to have regard to a number of relevant considerations when it determined that the applicant was cognitively impaired and was performing poorly as at 11 August 2010.  The applicant had only been working for the respondent for 12 weeks in a senior position whereby she was responsible for approximately 100 employees and a number of facilities including the recently opened Cultural Centre and a number of libraries.  I find that as well as having this diverse and heavy workload that during this period the applicant was also required to deal with a number of pressing short and long term issues including job reclassifications, a bullying complaint by Ms Ytsenko against Ms Rogers, she was dealing with Ms Ytsenko’s performance, staff were stressed by air-conditioning and other problems in settling in the new Cultural Centre and some employees including Ms Rogers were experiencing personal difficulties.  It was also the case that some employees in the applicant’s unit were in conflict with employees in another unit and there were outstanding issues between the applicant’s area and the respondent’s IT section.  I find that there was no evidence given in these proceedings that the applicant’s workload and these circumstances were taken into account when the respondent determined that the applicant was cognitively impaired as at 11 August 2010.

272   I find that as well as being unfairly pressured during the meeting held on 11 August 2010 the applicant was denied natural justice and procedural fairness given the manner in which the meeting took place.  I also find that the respondent breached its fitness for work policy when it stood down the applicant prior to her undertaking a medical assessment.

273   I find that the applicant was denied procedural fairness when she was not given any notice or indication about the reason for the meeting taking place on 11 August 2010 and no notice was given to the applicant that this meeting may have an impact on her ongoing employment with the respondent and may be disciplinary in nature, which in my view it was given that the applicant could be terminated if she failed the requirements on her under the fitness for work policy.  The applicant was also not given an opportunity to have a support person in attendance at this meeting.  Additionally, I find that the applicant was denied procedural fairness when she was not provided with sufficient detail and examples during the meeting about the basis upon which it believed the applicant was cognitively impaired to which the applicant could respond.

274   I find that the respondent breached its fitness for work policy by standing down the applicant and requiring her to leave the workplace and then require her to undergo a psychiatric assessment.

275   Clauses 10, 10.3 and 11.5 of this policy read as follows:

10 SUSPECTED BREACH OF FITNESS FOR WORK POLICY

As part of its duty of care, the City of Wanneroo will, prior to and during employment, make every·effort to reasonably assess the fitness for work of all employees on its sites utilising a range of assessment methods.

Testing will only be carried out in the following precautionary and post incident circumstances.  In all cases a testing request will require prior consultation between two Managers and/or Human Resource Services.

• Where an employee’s erratic, unusual or dangerous behaviour raises concern the employee may be influenced by alcohol or drugs.
• Upon the request of any other person in the work place who has reasonable grounds to believe an employee may be affected by alcohol or drugs, and where the Manager also believes this may be the case.
• If any evidence is found of possible alcohol or other drug use at work (eg. drug paraphernalia, alcohol containers on work sites or in vehicles) and City of Wanneroo can identify with reasonable certainty those who may have been involved.
• Following a workplace incident where the subsequent Manager’s assessment indicates the incident may have been caused by hazardous or careless behaviour.

Note: All testing requests will stipulate both alcohol and other drug testing.

Where a Manager suspects an employee is unfit for work they should:

1. Isolate the employee from their duties immediately; and

2. Advise the Employee Relations Co-ordinator or the Manager, Human Resources immediately.

10.3 Where the suspected breach relates to impairment of physical capacity and/or cognitive function:: (sic)

1. The Manager may refer the employee to undertake a fitness for work examination under the following circumstances:

(1) Following extended period of leave due to illness or injury.

(2) Where there is evidence the employee is not performing to an acceptable standard due to physical or cognitive deficiencies.

(3) Where an employee requests a change in their employment conditions due to injury or illness.

2) (sic) The Manager is to liaise with Human Resources, who will facilitate the fitness for work assessment process, which may include:

(1) Functional Capacity Evaluation

(2) Physical Work Performance Evaluation

(3) Musculoskeletal Assessment

(4) Neuropsychological Assessment

(5) Psychological Assessment

(6) Occupational Medical Assessment

Note: All assessments are to be carried out by a relevant certified health practitioner and are to be conducted at the provider’s place of business.

11.5 Where an employee is found to be physically or cognitively unfit for their position:

1. The employee should be removed from the workplace if it is deemed unsafe for themselves or others to remain in the workplace.

2. Consultation with the Manager, Employee and Human Resources will occur to determine what assistance, if any, can be provided to the employee.

3. Assistance may include referral to a health practitioner (at employee’s expense), referral to community service groups, temporary light duties, and/or redeployment.

4. The level of assistance will be reviewed on a case-by-case basis and will be subject to operational requirements.

5. Where appropriate, and if operationally viable, the employee should be allowed a reasonable period of time to return to full work capacity but the period should not exceed 3 months, unless there are exceptional circumstances.

6. Where appropriate, a follow-up assessment must occur prior to the employee returning to the workplace to ensure they have obtained fitness for work.  (emphasis added)

(Extracts from Exhibit R4)

276   I find that under this policy isolating an employee from their duties does not require the removal of an employee from the workplace and an employee’s removal from the workplace is only to occur after an employee has been found to be physically or cognitively unfit to undertake their role after being formally assessed which did not occur in this instance (Clause 11.5(1) of Exhibit R4)

277   I find that the applicant was denied procedural fairness when the respondent determined that it was appropriate that the applicant return to work under a poor performance regime after Dr Tay found that the applicant was not suffering any psychiatric disorder and the applicant was not given any opportunity to respond to this decision.  I find that the applicant was only advised that her return to work would be subject to a poor performance process when the respondent wrote to her on 28 September 2010 stating that this would be the case and I find that at the time the applicant was not advised of the specific concerns the respondent had about her performance.  Furthermore, the issues relied upon by the respondent to implement the poor performance policy were not put to the applicant to respond to prior to the respondent deciding that the applicant’s performance was substandard such that the applicant was required to be subject to a poor performance regime on her return to work.  I find that the applicant was particularly distressed by this proposed course of action given her exemplary and successful long work history with a number of employers.  I find that the applicant’s performance was not formally assessed at any stage by Ms Bentley or any other manager and it was also the case and I find that Ms Bentley and Mr Paton gave evidence that during the applicant’s employment with the respondent they had no cause to believe that the applicant was acting unprofessionally or that she was not adequately fulfilling her role as a manager.  Nor did they confirm that the applicant re-raised concluded matters, nor did she make comments out of context or that she was forgetful during their interactions with the applicant.  Even though Ms Bentley raised some issues about the applicant’s productivity after the applicant ceased working for the respondent on 11 August 2010 and she mentioned some unresolved issues about items the applicant had not concluded there was no evidence that the applicant’s actions in this regard were out of the ordinary.  There was also no evidence given in these proceedings that any scheduled programs in the applicant’s area did not go ahead due to any action or omission on the part of the applicant.

278   I find that the applicant had good reason not to return to work with the respondent after 11 August 2010 and to decide as at 20 October 2010 that her return to work was untenable on the basis that I find that the respondent repudiated its contractual obligations towards the applicant.

279   The applicant was suspended on full pay between 11 August 2010 and 10 September 2010 and it appears that after this date she was either on sick leave, annual leave and/or leave without pay up to 20 October 2010.  The applicant saw Dr Tay on 19 August 2010 and her report was received by the respondent on or about 26 August 2010 and the applicant did not attend meetings arranged by the respondent to discuss her return to work after this date.  The applicant also forwarded a medical certificate to the respondent dated 9 September 2010 stating that she was unfit for work.  The applicant’s representative identified the basis for its claim that the respondent repudiated its contract with the applicant in a letter to Ms Bentley on 20 October 2010 stating that the applicant could not return to work for the following reasons (formal parts omitted):

Diane Shaw

We refer to your letter dated 13 October 2010.

It is noted that you on behalf of the City:

1. have not withdrawn your previously stated intention for our client to be placed on a performance management regime on her return to work;

2. have not responded to the requests in paragraph 28 of our letter dated 6 October 2010, made pursuant to our client’s rights to due process;

3. have not taken any steps to follow Dr Tay’s advice, sought on the City’s request, “that [Ms Shaw’s] return to work be reviewed once Ms Shaw is satisfied that due process and her rights have been considered as well”; and

4. have not given due (or any) regard Dr Tay’s view, sought on the City’s request, that: “I would also not recommend that she return to work in her current state, which is of distress and a loss of confidence with her place of work since being asked to step down”.

On the contrary, your previous correspondence has exacerbated our client’s distress.

Nothing in your last letter addresses or mitigates the City’s fundamental breaches of our client’s Employment Contract or her statutory or common law rights.

Our client accepts the City’s fundamental breaches as a repudiation of her Employment Contract and she terminates the Contract.  Put another way, our client is proceeding on the basis that the City has constructively dismissed her with effect from today’s date.

Please advise the name·of the contact person within the City who has authority to accept service of proceedings, or alternatively the City’s legal representatives with instructions to accept service.

(Exhibit R13)

280   I find that the respondent’s requirement that the applicant undergo a psychiatric assessment based on vague assertions about the applicant’s alleged erratic behaviour and without verifying these complaints or taking into account a number of relevant considerations undermined the applicant’s confidence and trust in the respondent.  I also find that the respondent’s requirement after the applicant undertook this assessment when she was found not to have any psychiatric illness that she return to work under a poor performance regime was oppressive and contributed to the respondent breaching the applicant’s trust in it such that it was untenable for the applicant to return to work with the respondent.

281   There was no dispute and I find that both Dr Tay and Dr Edwards-Smith found that the applicant did not have any psychiatric illness and that Dr Tay also found that at the time of her interview the applicant did not show any cognitive impairment in line with issues raised by the respondent.  Dr Tay also concluded that the applicant was distressed and lacked confidence in her workplace given the manner of her removal from her workplace.  Dr Tay’s report stated in part the following:

MENTAL STATE EXAMINATION

Ms Shaw presented as a woman of stated age, with curly brown coloured hair that was shoulder length.  She was neatly groomed and open and cooperative in the two hour assessment.  She maintained eye contact and rapport was able to be established.  She became tearful at different points of the interview that was appropriate to the content of the conversation, but she was also able to regain composure.  When recounting the events at work and the way in which it was handled in terms of being asked to step down, she also became tearful again.

…

Diagnoses:

Axis I: Nil psychiatric disorder diagnosed.  Specifically, Ms Shaw does not meet criteria for a Major Depressive Disorder or for a Major Anxiety Disorder. …

…

Although a formal cognitive assessment in the form of a mini-mental state examination was not undertaken, it was clear that Ms Shaw could attend to all questions during the two hour assessment and answer them appropriately.  At no point did she make irrelevant comments, nor did she ask for questions to be repeated.  She also answered questions in a calm demeanour and in a manner appropriate to the content and context of the assessment.

SUMMARY AND ASSESSMENT:

…

4. If Ms Shaw is not currently fit for of (sic) duties as outlined in the attached position description, could you indicate details of other suitable duties and suitable hours of work, including duration and comment on her long-term work capacity.

No, I do not believe she is currently fit for her duties as outlined in the attached position description.  I questioned Ms Shaw in some detail regarding how she felt about returning to work in particular her levels of trust and confidence in the process, given that she said that she had no prior warning in any way in any form before the request for her to step down.  As also stated in the body of my report, she has undertaken legal advice regarding her rights and how she can challenge these allegations.  Given her previous occupational history, I believe she is certainly qualified to perform her duties as manager, however, there are complex psychological issues that may well be impacting on her performance at work without her fully realising this.

…

6. Are there any other relevant matters that you feel need to be considered?

At this stage, there are no other relevant matters that need to be considered other than that her return to work to be reviewed once Ms Shaw is satisfied that due process and her rights have been considered as well.  I would also not recommend that she return to work in her current state, which is that of distress and a loss of confidence with her place of work since being asked to step down. (emphasis added)

(Exhibit R8)

282   Dr Edwards-Smith, who examined the applicant on 19 October 2010 and 2 November 2010 also found that the applicant was not suffering from any psychiatric illness and she found that although she was fit to return to work she was unfit to undertake her normal duties with the respondent.

283   I accept the applicant’s evidence and I find that she was professionally undermined and personally humiliated by the respondent’s actions in requiring her to undergo a psychiatric assessment when she had no psychiatric disorder.  I find that after Dr Tay found no evidence that she had any cognitive impairment or that she did not exhibit any of the behaviours the respondent complained of the respondent then subjected her to a poor performance process in order for her to return to work when in my view they had no basis for doing so.  I find that this action contributed to the applicant’s loss of confidence in being able to return to work with the respondent.  I find that the abrupt manner in which the applicant was stood down and the lack of detail given to her as to why she could not continue at work and why the respondent believed she was cognitively impaired also contributed to the applicant being unable to continue her employment with the respondent as I find that this action contributed to the applicant’s loss of confidence and trust in the respondent.  I also find that the applicant’s distress was exacerbated when the respondent refused to provide a copy of the letter it forwarded to Dr Tay detailing the respondent’s concerns about the applicant prior to 20 October 2010 as this prevented the applicant from being appraised of the basis upon which the respondent formed the view that her behaviour was inappropriate and should be subject to a poor performance process.

284   In all of the circumstances I find that due to the respondent’s actions the applicant had no alternative but to resign as at 20 October 2010 and was constructively dismissed and I find this was as a result of the respondent breaching the fundamental terms of its contract with the applicant in such a manner that seriously damaged and undermined the relationship of trust and confidence between the applicant and the respondent.

285   I find that had the respondent not suspended the applicant and required her to undergo a psychiatric assessment under its fitness for work policy in the manner it did and then require the applicant to return to work under a poor performance management process then the applicant would have continued her employment with the respondent for the duration of her two year contract with the respondent.  I find that the applicant had every intention of completing her two year contact with the respondent and she organised her personal circumstance accordingly.  In reaching this conclusion I also take into account that the applicant was certified fit to work by Dr Edwards-Smith on 2 November 2010 albeit not to return to work with the respondent.

286   I find that in the period between the applicant’s commencement of her employment with the respondent and the meeting between Ms Gillespie and Ms Howlett with Ms Kenny, Ms Rogers and Ms Blackmore on 9 August 2010 no other complaints were made by any of the applicant’s approximately 100 employees in her area of responsibility about her performance or the manner in which she conducted herself at work.  I also find that throughout the applicant’s employment with the respondent none of the respondent’s managers to whom the applicant regularly reported or the respondent’s CEO had any concerns about the applicant’s performance or conduct or her ability to adequately fulfil her contractual obligations to the respondent.  In reaching the conclusion that the applicant would have completed her two year contract with the respondent I also take into account the applicant’s exemplary, successful, meritorious and lengthy work history prior to commencing employment with the respondent with a number of employers undertaking similar work.

287   I find that the applicant conducted herself in a professional manner during her employment with the respondent and I have already found that many of the issues relied upon by the employees who complained about the applicant were trivial, lacked substance and were exaggerated.  One specific issue raised about the applicant was her dealings with Ms Burton and the applicant poorly managing her and not allowing Ms Burton to resign.  Ms Burton commenced employment with the respondent in early June 2010, after the applicant commenced employment with the respondent, and she was appointed to a position which had not been filled for some time and there was therefore a backlog of work for the person in this position to undertake.  I find that from the outset of her employment Ms Burton was unhappy with the role expected of her and I accept the applicant’s evidence that she was finding her role difficult.  I accept the applicant’s direct evidence, compared to the evidence of Ms Burton who was unable to be cross-examined and I find that the applicant did what she could to assist Ms Burton and I find that the applicant had numerous meetings with Ms Burton to assuage and deal with her concerns, as confirmed in the applicant’s reconstructed diary, and I also accept the applicant’s evidence that Ms Burton’s role was not up to her expectations.

288   Having found that the applicant ceased employment with the respondent at the respondent’s initiative and that she was constructively dismissed in a manner that was both unfair and unjust it is therefore appropriate to consider what if any compensation by way of damages for the denied contractual benefit being claimed by the applicant is due to her.

289   I have found that the applicant would have continued in her employment with the respondent for the duration of her two year contract if she had not been inappropriately stood down on 11 August 2010 and constructively dismissed as at 20 October 2010.  I therefore find that the applicant is entitled to be paid compensation by way of damages for the remaining period of her contract up to 16 May 2012 which would be the outer limit of any compensation that could be ordered by the Commission by way of a denied contractual benefit.  As I am satisfied that the applicant has been denied a contractual benefit, that is, the benefit of remaining in her employment in accordance with the terms of her contract if her employment was not unfairly terminated I find the applicant’s loss to be the remuneration she would otherwise have earned had the contract continued until 16 May 2012 minus the monies earned by the applicant by way of mitigation.  The parties agree that the applicant’s loss for the remainder of her contract is $196,027.44 and I direct the parties to confer within 14 days on an amount owing to the applicant in light of these reasons for decision.