UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00739

DELIVERED : Thursday, 20 October 2022

FILE NO. : U 53 OF 2021

Applicant

AND

DIRECTOR-GENERAL, DEPARTMENT of Education

Respondent

CatchWords : Industrial Law (WA) - Application to strike out unfair dismissal claim - improper conduct - personal insults and threats of legal proceedings - capacity or tendency to interfere with the administration of justice - he or she who seeks equity must do equity, and he or she must also come with clean hands - Respondent's interlocutory application upheld - Unfair dismissal application dismissed 

Legislation : Industrial Relations Act 1979 (WA) s 26(1), s 26(1)(a), s 26(1)(c), s 27(1)(a)(iv)    

Result : Order Issued

Representation:

Applicant : Mr A Gill (of counsel)

Respondent : Mr D Anderson (of counsel)

Case(s) referred to in reasons:

Australian Competition and Consumer Commission (ACCC) v Maritime Union of Australia (2001) 114 FCR 472

Brown v Commissioner, Department of Corrective Services [2017] WAIRC 00714; (2017) 97 WAIG 1393

Civil Service Association of Western Australia Incorporated v Director General, Ministry of Justice [2003] WAIRC 08587; (2014) 94 WAIG 215

De Vos v Minit Australia Pty Ltd [2002] WAIRC 06108; (2002) 82 WAIG 2195

De Vos v Minit Australia Pty Ltd [2003] WAIRC 07735

Librizzi v The State of Western Australia [2006] WASCA 237

R v Kellett [1976] QB 372

R v McLachlan [1998] 2 VR 55

The Queen v Russell Gordon Haig Mathews [1992] QCA 462

Tye v Care Services Administration Pty Ltd [2017] WAIRC 00689; (2017) 97 WAIG 1319

Reasons for Decision

The respondent’s interlocutory application

1         On 25 February 2022, the respondent filed an interlocutory application (strike out application) for an order that the applicant’s unfair dismissal claim be dismissed under s 27(1)(a)(iv) of the Industrial Relations Act 1979 (WA) (Act) on the grounds that:

(a) the applicant has, since her dismissal, acted improperly towards several potential witnesses including by seeking to intimidate them (ground 1);

(b) the applicant has provided false or misleading information to the respondent with respect to the progress of the criminal charges against her (ground 2); and/or

(c) there has been a complete and irretrievable breakdown of trust and confidence between the applicant and the respondent, such that reinstatement is impracticable and has been at least since the time of her dismissal (ground 3).

2         Section 27(1)(a)(iv) of the Act states (emphasis added):

27. Powers of Commission

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

(a) at any stage of the proceedings dismiss the matter or any part of it or refrain from further hearing or determining the matter or part if it is satisfied —

(i) that the matter or part is trivial; or

(ii) that further proceedings are not necessary or desirable in the public interest; or

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing of it discontinued, as the case may be;

Background to the respondent’s interlocutory application

3         On 23 June 2021, the applicant filed a Form 2 – Notice of claim of harsh, oppressive or unfair dismissal (unfair dismissal application) claiming that she was unfairly dismissed by the respondent on 10 June 2021, from her position as Senior Teacher and Data Analyst (Presenter) at Waroona District High School, which had commenced on 30 January 2020.

4         On 15 July 2021, the respondent filed a Form 2A – Employer Response to Unfair Dismissal Application (Employer Response) contending that the respondent had concluded, to the required standard, that the applicant had committed 10 of the 13 allegations of misconduct, which broadly related to:

(a) inappropriate conduct with students including unprofessional Facebook messages to students for non-professional purposes;

(b) failing to inform her line manager that she had been charged with three counts of breaching a family violence restraining order;

(c) inappropriate assistance to students sitting the writing component of the Online Literacy and Numeracy Assessment (OLNA); and

(d) allowing a Year 10 student to stay at her home, consume alcohol and smoke cannabis, and smoking cannabis with the student.

5         On 2 December 2021, the Commission issued the following Directions (2021 WAIRC 00609):

(a) THAT the respondent file and serve upon the applicant a bundle of documents on which it may seek to rely in the hearing of this matter by 13 January 2022;

(b) THAT the respondent provide the applicant with a proposed statement of agreed facts for the hearing of this matter by 20 January 2022;

(c) THAT a Scheduling Conference be listed on 11 February 2022; and

(d) THAT the parties have liberty to apply on short notice.

6         At the Scheduling Conference on 11 February 2022, the Commission issued the following Directions (2022 WAIRC 00062):

(a) THAT the parties file a statement of agreed facts by no later than 25 February 2022;

(b) THAT the parties file a bundle of agreed documents by no later than 18 March 2022;

(c) THAT the applicant file and serve upon the respondent any outlines of witness evidence and any documents upon which they intend to rely by no later than 8 April 2022;

(d) THAT the respondent file and serve upon the applicant any outlines of witness evidence and any documents in reply by no later than 29 April 2022;

(e) THAT the applicant may file and serve upon the respondent any further outlines of witness evidence and any documents in reply by no later than 13 May 2022;

(f) THAT the applicant file and serve an outline of submissions upon which they intend to rely by no later than 27 May 2022;

(g) THAT the respondent file and serve an outline of submissions upon which it intends to rely by no later 10 June 2022;

(h) THAT the matter be listed for hearing for 3 days on a date to be fixed; and

(i) THAT the parties have liberty to apply at short notice.

7         On 25 February 2022, the respondent filed the strike out application. In the application, the respondent requested a stay of the Directions of 11 February 2022 pending the hearing of the strike out application.

8         On 2 March 2022, the Commission listed the strike out application for hearing and issued a Direction (2022 WAIRC 00089) staying the Directions of 11 February 2022 pending the determination of the strike out application.

9         The Directions made in this matter are replicated in full in these reasons for decision as it is relevant to note that aside from the bundle of documents the respondent seeks to rely upon, the parties have not had the opportunity to file any other documents or evidence in support of their contentions in the applicant’s unfair dismissal application. This is because the respondent’s strike out application interposed the requirement for compliance with the Directions of 11 February 2022, with any requirement to file material in relation to the applicant’s unfair dismissal application stayed pending the outcome of the strike out application.

10      Counsel for the applicant submits that dismissing the applicant’s unfair dismissal application at this stage, without the applicant’s unfair dismissal application having fully been heard and all evidence led, would be harsh and extreme.

11      The respondent submits that ground 3 of the strike out application proceeded on the basis that the applicant stated in her unfair dismissal application that she was seeking reinstatement.

12      By interlocutory applications dated 4 and 22 March 2022, the applicant amended her unfair dismissal application to remove reinstatement as the remedy she was seeking. In her interlocutory application of 22 March 2022, the applicant states that she is now only seeking compensation as a remedy in her unfair dismissal application.

13      At the hearing of the respondent’s strike out application, counsel for the respondent advised that the respondent was no longer pressing grounds 2 and 3.

14      In the circumstances, the respondent did not call any witnesses to give evidence and relied on the emails sent by the applicant and a series of text messages sent by the applicant’s partner in support of ground 1 of the strike out application; namely that the applicant has, since her dismissal, acted improperly towards several potential witnesses including by seeking to intimidate them.

15      The emails and text messages were admitted into evidence, with two emails filed with the Registry by consent after the hearing, on the basis that the applicant agreed in evidence in chief or under cross-examination that she had sent each of the emails and there was no objection to the text messages sent by the applicant’s partner being admitted into evidence.

16      The only witness called to give evidence at the hearing was the applicant.

17      At the hearing, the applicant agreed that she had sent each of the emails and gave evidence about the context to the sending of the emails. In addition to the other submissions made by the applicant’s counsel (addressed later in these reasons for decision), counsel for the applicant submits that the context behind the applicant sending the emails supports the strike out application being dismissed.

The respondent’s contentions

18      The respondent submits that improper conduct of an applicant towards witnesses, including attempts to intimidate them, is a basis on which the Commission may dismiss an application: Brown v Commissioner, Department of Corrective Services [2017] WAIRC 00714; (2017) 97 WAIG 1393 (Brown).

19      The respondent attaches more than two dozen emails to the strike out application in support of the submission that the applicant has, since she was dismissed on 10 June 2021 and therefore at a time when her unfair dismissal application was imminent or on foot, repeatedly directed intimidating and insulting communications towards potential witnesses.

20      Some of the emails are lengthy and therefore not all of the content of these emails have been replicated in these reasons for decision. The content of the emails and the applicant’s partner’s text messages have been included subject to omissions of any content which may have the potential to reveal the identity of minors.

21      All emails were tendered on the basis that the applicant agreed that she had sent them. Neither counsel questioned the applicant on the truth or otherwise of the content of the emails such that the content of the emails as they appear in these reasons for decision need to be considered in that context, that is, that they are the applicant’s unchallenged assertions.

22      The emails attached to the respondent’s strike out application that were sent by the applicant include the following emails, sent on the following dates to the following persons, prior to the applicant’s dismissal on 10 June 2021:

(a) 19 February 2021 at 12.24 am to Lisa Rodgers, the respondent, with content including:

The investigation has gone on for many months. The interpretation of statutory law, by SID has been inconsistent and inept. It is laughable, Ms Rodgers!

…

The actions of the DoE is fraught with misconduct!

I am NOT saying this because I do not agree with decisions about my conduct. I AM SAYING THIS BECAUSE IT IS A FACT OF LAW!

…

What is going on in SID? It takes an outside executive branch to do what an entire Department is paid to do within DoE. What use are they? What a waste of funds!

This needs to be disclosed Ms Rodgers and if you fail to act appropriately, I will disclose the misuse of public resources AND misconduct to the Public Sector Commission. I will also go public and to the media who already have been following my story.

This entire saga has been a Masterclass in patience. I make no apology for my frustration at this point! Enough is enough!

(Exhibit 10, pages 1-2)

(b) 3 March 2021 at 12.38 pm to the respondent, with content including:

This is INHUMAN! I am being DEHUMANISED by your employees who are playing some sick game that is unlawful and destroying my career.

COULD YOU PLEASE MEET WITH ME TO DISCUSS? I AM A HUMAN BEING NOT A WAR CRIMINAL OR A NUMBER ON PAPER.

(Exhibit 10, page 3)

(c) 10 May 2021 at 4.15 pm to Chris Hodges, Principal Investigator, Investigations and Compliance, Teacher Registration Board of Western Australia, with content including:

I am more than repulsed by this serious abuse of an employee who has no reason to climb a slippery pole, who is in her penultimate year of law and my expertise is in policy development (Curtin University). Why would I suddenly start behaving like a Waroona troglodyte? Smoking ....bongs????

Where is the common sense? Or is there some political motivation?

As I have said, the DoE are losing credibility. Not one Perth School I have worked in, not one International School, not one university academic with whom I have worked, not one principal, colleague or employee would believe the ridiculous allegations from a school with an ICSEA in the 700’s.

I am published internationally in academic subscriptions and proceedings. My book is sold in 17 languages and I’m interviewing on American News next month regarding its popularity in the States.

I belong to international conference committees, we meet annually in Greece with academics from NASA and Harvard. I attend Fullbright Awards and make speeches- what will these award winning researchers think of my plight if I am treated so unfairly?

I know my good friend Dr Anderson the Canadian President of the ICICTE, will tell me this would not, COULD NOT ever happen in Canada. Already he has told me our Justice system is prehistoric.

This abhorrent process, if not stopped will place the DoE in disrepute not just locally but in many countries. Regardless of the outcome, I will still be invited to present at these conferences.

My life is education- I'm an author and researcher. Falcon Primary School hosted my book launch! There is a chapter in my book on ’not fraternising with students’. I teach this very thing in P.D.

This is an unecessary [sic] ‘restraint of trade’ and I am denied my basic human rights to work, due to malfeasance.

The longer this goes on the worse the detriment. I did drug testing to prove my innocence-where is the evidence? It is small town exclusivity and intimidation.

I hope you do the right thing and avoid this mobbing mentality gaining any more traction.

regards

Verona

(Exhibit 10, pages 4-6)

(d) 22 May 2021 at 4.40 pm to the respondent, with content including (original emphasis):

Is this some sort of 'misogynist club?

I reported this all along the way. It fell on deaf ears.

Somebody needs to be accountable for this defamation. Placing me on 'sick leave' caused the escalation of the lynching at Waroona DHS -there was NO ALLEGED MISCONDUCT IN THE 8 WEEKS I WAS PHYSICALLY PRESENT AND WORKING AT THE SCHOOL! ONLY AFTER I LEFT DID THE GOSSIP START.

CHECK THE COMPLAINTS! I ONLY HAD PRAISE FOR THE WORK I DID UNTIL JOHN O'BRIEN INSTRUCTED ABBISS TO PLACE ME ON LEAVE. HE INCITED THE MOBBING!

THIS IS CRIMINAL! IT IS A SIGN THE DEPARTMENT OF EDUCATION NEEDS TO TRAIN AND UPSKILL MANAGER'S LIKE O'BRIEN IN LABOUR RELATIONS (particularly in regards to ethical conduct AND SEXISM!)

THIS IS THE WAY YOUR DEPARTMENT TREATS VICTIMS OF DV […]

LISA, PUNISHING A SINGLE MOTHER, WHO IS THE VICTIM OF DV IS UNETHICAL! LOOK WHAT HAS HAPPENED TO MY CAREER?

JUST BECAUSE I AM EDUCATED AND ARTICULATE, DOES NOT PRECLUDE ME FROM BEING THE VICTIM OF ABUSE.

THIS IS JUST BARBARIC, LISA! LIKE THE WITCHES BURNED AT THE STAKE IN MEDIEVAL TIMES, THIS INVESTIGATION COMPARES TO THROWING THE 'WITCH' IN THE WATER TO SEE IF SHE FLOATS-THERE IS NO POSSIBLE WAY FOR THE ACCUSED TO SURVIVE!

PLEASE, MS RODGERS, DO NOT TELL ME THAT WHAT JOHN O'BRIEN PUT IN THE LETTER ATTACHED (WITHOUT MY KNOWLEDGE) IS ACCEPTABLE, PROFESSIONAL OR ETHICAL.

VERONA

(Exhibit 10, pages 7-8)

(e) 24 May 2021 at 10.30 am to the respondent, with content including (original emphasis):

WHY DO YOU DO THIS TO PEOPLE? I DID NOTHING WRONG AND I WILL PROVE MY INNOCENCE REGARDLESS OF WHAT YOU DECIDE.

WHY ARE YOU SO COLD AND CRUEL TO A WOMAN […] WHO HAS BEEN THROUGH SUCH AN ORDEAL? WHERE IS THE HUMAN ELEMENT OF YOUR DEPARTMENT?

…

YOU DESTROY LIVES OF PEOPLE WHO HAD NO CHANCE TO ESCAPE THIS MYSOGYNISTIC [sic] BULLYING!

WE DID NOT DESERVE THIS...NOBODY DOES!

(Exhibit 10, pages 9-10)

(f) 1 June 2021 at 2.16 pm to the respondent, with content including:

I'VE BEEN VICTIM BLAMED, CALLED 'DELUSIONAL' BECAUSE I NOTIFIED MY EMPLOYER THAT MY EMAIL WAS HACKED BY MY VIOLENT EX-HUSBAND, ACCUSED OF BEING MENTALLY UNFIT-WHICH I CLEARLY WAS NOT AND BULLIED, DUE TO A NEGLIGENT PRINCIPAL AT OCEAN ROAD PRIMARY SCHOOL.

SOMETHING NEEDS TO BE DONE. I WOULD NOT WISH WHAT I HAVE BEEN THROUGH-THIS HORRIFIC INJUSTICE AND MEDIEVAL WITCH HUNT BECAUSE I ASKED FOR HELP […] ON ANYONE.

ONE WOULD THINK WITH A WOMAN AT THE HELM, STEERING THIS DEPARTMENT, THAT THIS FORM OF ABUSE WOULD NOT BE TOLERATED.

I HAVE NO WORDS!

(Exhibit 10, pages 10-11)

23      The emails attached to the respondent’s strike out application that were sent by the applicant include the following emails, sent on the following dates to the following persons, on or after the applicant’s dismissal on 10 June 2021:

(a) 10 June 2021 at 10.34 am to David Mattin, Deputy Principal of Waroona District High School. The respondent submits, unchallenged, that the applicant alleges she was subject to ‘accusations, sabotage and complaints/harassment’ by him in her unfair dismissal application, and appears to allege that many of the allegations against her can be traced back to him. The email contains the subject line ‘Notice of personal action against you’, and is replicated in full below.

If you had have spent half the time doing your job, as you did trying to discredit me for being a professional and bring me down to your level, trumping up and inciting accusations about an expert educator who has forgotten more about education than you will ever know, a hard- working and respected professional woman, who threatened your ineptitude, and exposed you for the dim-witted troglodyte you are, then I would never have met your ugliness and the ugliness of a couple of jealous pathologically envious underachievers. What a coward!

 You are without a moral compass, your lazy tardy approach to work, I would never have been called by Jacquie Abbiss to fix the deplorable situation with your data at your poor performing school.

You are despised by the students and staff, you have no moral obliquity and you could not have achieved the outstanding career I have in life. I watched you degrade and subjugate Emma!

I will see you in Court and I will be taking a personal action against you for the defamation and unlawful manner in which you worked tirelessly to defame me.

You are a contemptible low-life who hides out in low ICSEA schools like Waroona, to fly under the radar. You have no respect from the community, nor the teachers. Even Jacquie complained to me about your apathy upon arrival and said she hopes I can 'get you to come around' as you do NOTHING!

Jim Bell warned me not to go to Waroona over the Christmas break. He told me it was known for being a toxic place nobody gets out of. Where the unemployable hide-like you! You couldn't handle that I made a difference, that a woman was smarter, more capable and brought in to fix the mess you allowed to fester.

YOU ARE A KNOWN BULLY! MY FAMILY AND MY COLLEAGUES WILL NOW NOT GIVE UP UNTIL YOU ARE FULLY ACCOUNTABLE FOR YOUR CRIMINAL ACTIONS.

Do NOT think your wilful attempt to discredit me is not obvious to all who know me outside that toxic cesspool you inhabit. You are NOTHING in EDUCATION.

I WILL SEE YOU IN COURT! AND EXPOSE YOU, you despicable coward!

(Exhibit 10, page 12)

(b) 10 June 2021 at 11.30 am to Jacquie Abbiss, Principal of Waroona District High School, copied to the ‘All Staff’ at Waroona District High School email address.  This email contains the subject line ‘Fw: Notice of personal action against you’, with content including (original emphasis):

You are without doubt the nastiest, most immoral sycophant I have come across in 29 years in education. You begged me to come and help you fix the 'shocking situation' at Waroona DHS.

…

Dr Bassett told me I had been bullied by you as you felt intimidated by my Mensa IQ. He said low performing teachers will find me a threat in so many ways. He was disgusted at the things you made so personal and told me you were obviously unable to manage the situation you created so you just went with the 'mob' to save your own reputation. YOU ONLY WANTED ME THERE TO FEATHER YOUR NEST, USE ME AND TAKE ALL THE CREDIT. THAT IS A BULLY!

Had I known you were the things I had heard about you, from your former colleagues, (hence why they called you 'Ms Abysmal'), I would NEVER have agreed to assisting you.

You couldn't even control a year 8 class. I watched you struggle to implement the most basic lesson.

…

You are a nasty, unethical, jealous pathologically envious useless techer adn [sic] the unemployable TA's, with a conflict of interest and motive at your school who complained I assisted students to cheat had NOT read p 52 of the OLNA Handbook. THEYRE [sic] NOT EVEN TEACHERS WHO HAVE EVER BEEN OLNA SUPERVISORS! TO BE CLEAR-their accusations do NOT imply cheating.

…

I CAN ONLY PITY YOU. I AM CONVINCED THIS HAPPENED FOR A REASON. THERE IS ENOUGH ILLEGALITY IN YOUR ACTIONS FOR SEVERAL WRITS TO BE PLACED IN THE SUPREME COURT. SOMEBODY NEEDS TO EXPOSE PUBLIC OFFICE CORRUPTION, AND I WILL NOT LET YOU GET AWAY WITH THIS.

CRIMINAL DEFAMATION IS A SUMMARY OFFENCE WITH 2 YEARS JAIL TIME.

THIS WITCH HUNT WILL BE EXPOSED. THE MEDIA HAVE NOW BECOME INVOLVED.

 Your EX-colleagues are repulsed by your behaviour! You don't care about your staff, or the students. It is only about your CV AND YOU GETTING OUT OF THERE LIKE YOU TOLD ME.

Never in 29 years of an outstanding career, has anyone adduced such vile and disgusting accusations about me. Briginshaw is the test! Seriously 8 weeks and 1 day, AT WAROONA? Compared to 29 years in the best schools in the world? Executive manager at Curtin-teaching awards! You must be kidding yourself if you think you will get away with what you have done to my family.

SHAME ON YOU JACQUIE ABBISS, YOU SELFISH, UNETHICAL SELF-PROMOTER with terrible people skills. I was WARNED about this earlier, how your interpersonal skills were consistent with an introverted slug.

(Exhibit 10, pages 13-14)

(c) 10 June 2021 at 4.06 pm to Ken Perris, Regional Executive Director for the Goldfields Region in the Department of Education. The respondent submits, unchallenged, that Mr Perris had some involvement in the management of the applicant during her employment, and is referred to in the applicant's unfair dismissal application. This email contains content including:

You, Mr Perris, are a weak man! You tremble like a mouse when faced with the truth. I saw this at Lakelands.

(Exhibit 10, page 15)

(d) 25 June 2021 at 2.17 pm to Ken Perris, with content including (original emphasis):

These personal items were packed away on the first day of my absence from Waroona in full knowledge that I was not coming back to the school. Because you were disingenuous, every single step of the way in bullying me out of that toxic school.

I am positive you understand that I cannot and will not arrange for the collection of these items after the way I have been treated by YOU!

Your part in this Ken, is unforgivable. I do NOT know how you sleep at night, bullying a single mother […] and defaming me as you have.

No wonder the DoE has a reputation of incompetence and inhumane conduct from 151 Royal Street. My colleagues are sickened to the core by what YOU have done to me.

Verona

(Exhibit 10, pages 16-17)

(e) 25 June 2021 at 2.32 pm to Jacquie Abbiss, copied to Ken Perris, with content including:

Jacquie, YOU would sell your own Grandmother for a promotion. I came to you in good faith to assist with your lack of knowledge in data management and coaching.

You have NO integrity! I was told you have a low IQ. That I can accept, but to pretend to care about me to get me to work at your school then throw me under the bus....NO WORDS!

Phil Judge and Christine Edgar as well as many other colleagues who know what you have done to me, are disgusted in the extreme.

You have no substance!

…

YOU ARE CONTEMPTIBLE IN EVERY WAY!

(Exhibit 10, page 18)

(f) 25 June 2021 at 2.46 pm to the respondent, with subject line ‘CORRUPTION’. This email is replicated in full below.

Lisa,

I am about to raise merry hell to make sure this sick bullying of teachers at the coal-face, in the DoE, is reviewed in the Courts.

WHAT YOU HAVE PUT ME AND MY FAMILY THROUGH IS CRIMINAL.

No wonder parents are losing faith in you and kids are dying...look at the culture you encourage in the Department.

LOOK AT THE WOMAN WHO HAS RUINED MY CAREER COMMITTING A CRIME SHE HAS NOW BEEN CHARGED FOR ON THIS VIDEO!

How do you not expect me to be furious after this corrupt and unethical process has caused the pain and suffering I have endured. Of course I am defensive-YOU WOULD FEEL THE SAME!

Verona

(Exhibit 10, page 19)

(g) 5 July 2021 at 10.53 am to Sam Pack, the respondent’s solicitor at the time, with content including:

I am currently in hospital and will not be attending to anymore emails from you on direction from my doctor.

My emails were deliberately ignored when I asked about my belongings, adding to my stress.

When I received an email from 'karen' from regional office, she said I needed to hand back my keys- not get my things. I asked her if she knew something I didn't. I had NOT been dismissed when she asked for these in 2020.

My emails and pleas for help were ignored when I was horrendously bullied in the first days of my attendance to work at Waroona DHS.

This entire defamation was a set up. And is the reason I have had breakdown and am now in hospital.

You work for a Department well rehearsed in such bullying, without conscience.

You are the reason people take their life.

(Exhibit 10, page 20)

(h) 28 July 2021 at 9.06 am to Amanda Cann, who was primarily responsible for the investigation into the disciplinary allegations against the applicant, and Marc Sorrell, the principal investigator at the Department of Education who was involved in the disciplinary investigation. This email is replicated in full below.

I will NOT rest until I see justice and clear my name. You are merely covering up a fake-investigation (witch-hunt).

Your conduct, Amanda is unethical. Marc Sorrel, you are contemptible! Both of you are luddites!

(Exhibit 10, page 22)

(i) 10 August 2021 at 8.27 am to the respondent. This email is replicated below.

I begged you for help and you ignored me.

As I said, the truth will come out and I will clear my name.

All I want is the truth.

I will NOT stop until I get justice […]

This practice of department bullying must stop.

Why do people like you simply not care, Lisa?

(Exhibit 10, page 23)

(j) 10 August 2021 at 8.52 am to Amanda Cann, copied to Marc Sorrell. The content of this email is replicated below. Counsel for the respondent submits that this email is one that contains ‘deeply personal’ comments, where the applicant refers to the email recipient’s family members, which strikes ‘most deeply’ and is ‘very, very personal’.

You are both contemptible! I will not rest until I know that you personally Amanda, are restrained from ever doing what you have done to teachers like me.

Shawn and I both are working tirelessly with our lawyers to ensure no stone is unturned and the truth will come out.

Marc, your attitude is one nobody needs in our education system. […] the sick misogynistic and unethical person you are.

Your attitude in the conciliation was vile. Shawn had to restrain himself. He said in his workplace people so primitive with such an ego do not exist.

God help our women teachers. What sort of man bullies a woman […]? No man does.

I have faith in the law. You obviously need retraining. In your role you should have some basic understanding of the rule of law.

You are both seriously inept. Time will show this.

Amanda I hope your daughter never goes through anything like this. I also hope she does not learn her morals from you!

(Exhibit 10, page 24)

(k) 29 October 2021 at 4.43 pm to Jacquie Abbiss. This email is replicated in full below.

FYI

This has gone very public! You should be ashamed of yourself, Jacquie. I came to Waroona to help you! I couldve [sic] gone anywhere-Jacquie B begged me to go to her school. She would never have allowed this to happen to me.

You obviously have no conscience! I am seeking damages from you personally.

(Exhibit 10, page 27)

(l) 30 October 2021 at 9.33 pm to Ken Perris. This email is replicated in full below.

You will hear from my lawyer regarding criminal charges I am taking against you personally.

Verona

(Exhibit 10, page 28)

(m) 5 November 2021 at 7.49 am to the respondent. This email is replicated in full below.

FYI

Lisa,

Police defamed me to the Department and this is why your officers acted so brazenly and unlawfully in having me set -up whilst I was on sick leave.

This is going viral in the news. I would hope you have the decency to look at the facts and review what the SID have done.

I've already been cleared by the WWCSU. I DID NOTHING WRONG!

DO YOU WANT TO DO THE RIGHT THING BECAUSE YOU ARE IN THE WRONG AND IT WILL BE EXPOSED, JUST AS THE MANDURAH POLICE HAVE BEEN EXPOSED.

Verona

(Exhibit 10, page 29)

(n) 6 November 2021 at 8.37 am to the respondent. This email is replicated in full below.

LISA,

YOUR DOMESTIC VIOLENCE POLICY FOR WOMEN LIKE ME IS UNKNOWN TO OFFICERS OF THE DOE.

IT TOOK MEDIA ATTENTION FOR THE POLICE TO LISTEN TO ME. WHY DOES IT TAKE A DEFMATION [sic] TRIAL TO GET YOU TO LISTEN?

THIS IS ONLY GOING TO RESULT IN BAD PUBLICITY FOR YOU.

SHAME ON YOU LISA!

(Exhibit 10, page 30)

(o) 8 November 2021 at 9.29 pm to the respondent, with content including:

As you know, this case has been the topic of the newspapers twice already, with the DOE included as having persecuted an innocent mother. The response from ALL over the nation, has been heartfelt. The media are releasing several more stories on my case.

YOU never even looked into my matter. Despite the evidence I showed you, proving my innocence.

My defamation lawyer has said that for every single person who has defamed me, there is a separate instance of defamation, and for each time it has been republished, or spoken. This will be a record defamation case in WA.

(Exhibit 10, pages 32-33)

(p) 10 February 2022 at 11.52 pm to Martyn Griffiths, Tim Yorke, Director, ICT Operations and Customer Service within the Department of Education and Amanda Cann. The respondent submits, unchallenged, that Mr Yorke provided some technical information to investigators in the course of the investigation into the applicant’s misconduct and is also a material witness with respect to one allegation. This email is replicated below (original emphasis).

Good day Martyn,

I refer to my previous 2 responses to your requests about my laptop.

As previously advised, Tim Yorke failed to provide a response to my request in April 2020, for assistance in a security and safety matter, in regards to my accounts being accessed and compromised. Yorke ignored my requests for help when I made a genuine request for him to check the security of my accounts on the laptop in question.

To make matters even more insidious, some delusional and incompetent manager in Employment Relations, called John O'Brien, in his infinite wisdom, decided that this request for assistance was a sign that I suffered a mental illness and should be placed on sick leave. Unbelievable as it sounds, this actually happened.

Naturally, this incompetent egomaniac, who thought he would play psychiatrist for a day, was mistaken, and I was not mentally ill, AND my computer was being accessed by a third party AND my accounts were compromised.

This idiotic behaviour on the part of the HR Manager, as well as the lack of duty of care of Tim Yorke, has resulted in a serious detriment to the safety of […]. There is a police investigation underway and my stalker has been charged with multiple indictable offences , who is now behind bars awaiting trial.

The Department of Education have been the root cause of much of the harm suffered […]. Tim Yorke being the main instigator of providing false information to noth [sic] SID and the police.

The Department's negligence caused me […] irreparable harm. Worse still they have now tried to cover up this ineptitude by fabricating accusations and inciting complaints about me, in order to cover their own wrongdoings (in typical government department style).

Tomorrow I am in the WAIRC fighting this crass, unconscionable bullying and malfeasance.

If you think I am going to pay for this computer, that is now the subject of a police investigation, you are possibly as delusional as John O'Brien.

This wanton baboon fudge-wittery and idiocracy has cost me hundreds of thousands of dollars in legal fees and my senior teacher salary.

I implore you to refer this to the SID. In fact, I have saved you the task and included another inept and simpleton luddite from SID (Amanda Cann)in this email.

She is fully aware of the cover-up and sham investigation she orchestrated with malicious and sinister intentions to sack me and deny me procedural fairness.

Let her deal with this complaint. She really cannot do anything worse than she has at this point.

You deal with it, because if you had have checked my computer back in April 2020, we would not be having this conversation now.

Good luck!

(Exhibit 10, pages 39-40)

(q) 11 February 2022 at 12.04 am to Amanda Cann. This email is replicated below.

Seriously Amanda Cann-could you really be so technology illiterate? Where have you lived? Under a rock?

Tim Yorke will be subpoenaed regarding his falsifying information for an investigation. He knows full well this is NOT the truth what he has adduced in this document-unless he has got dementia and forgotten what he told Shawn and I only 3 months earlier-CHECK YOUR FACTS YOU LUDDITE!

How have you even got a job? Is incompetence a requirement to work for SID? How can you conduct an investigation when you do not understand basic technology […].

Amanda-go back to school!

(Exhibit 10, page 39)

(r) 23 February 2022 at 7.34 pm to Bronwyn White, Principal of Halls Head College and Dean Finlay, Principal of Ocean Road Primary School. The respondent submits, unchallenged, that the applicant’s case appears to be that Mr Finlay is in some way responsible for or contributed towards some or all of the allegations against her. The respondent submits that this email is particularly notable because it was sent after the issue of the applicant's improper communications to potential witnesses was raised at the Scheduling Conference in the Commission on 11 February 2022. The email contains content which includes:

Dear Bronwyn,

…

The vexatious gossip spread by Dean Finlay is now the subject of a very much larger defamation claim and 3 national news stories.

I have a huge defamation claim with Barristers currently for the horrific untruths spread around without my knowledge.

…

We will never recover from this, but I will ensure restitution from the perpetrators of the crimes that have cost […] so much.

God help Dean Finlay!

regards

Verona Wauchope

(Exhibit 10, page 42)

24      In addition to the emails from the applicant, the respondent relies on a series of text messages sent by the applicant’s partner, Shawn Wenn to Amanda Cann, on 3 July 2021 between 8.27 pm and 8.35 pm, with the following content:

You are a piece of shit

You fucking gutless waste of a person

Hope you can sleep at night knowing […] doesn't have his mother

(You missed a call, but the caller didn't leave a message)

Fucking gutless

I hope you are ready for your name to go over the media for causing someone to kill themselves

Piece of shit

(Exhibit 10, page 21)

25      The respondent submits, unchallenged, that whilst the text messages were not sent by the applicant, they are nonetheless relevant because the applicant has made it clear that Mr Wenn is in her camp and is supporting her, and it is to be expected that a witness receiving improper communications from him will perceive those as adding to the pressure coming from the applicant. The respondent further submits that the applicant has never sought to distance herself from or apologise for those messages and has instead only offered excuses for them in the same way she has offered excuses for her conduct.

26      The record of the text messages (Exhibit 10, page 21) notes that Mr Wenn’s text messages followed a voicemail that Mr Wenn left for Ms Cann. The respondent did not press for the voicemail to be played at the hearing and did not seek to tender it into evidence. As such, I have not considered its contents.

27      The respondent further relies on the following emails sent after the strike out application was filed.  The respondent submits that these were sent after the applicant was put on notice that the content of her emails were inappropriate:

(a) 25 February 2022 at 9.45 pm to Sam Pack, copied to the chambers of the Commissioner that had the allocation of the matter at the time (Chambers), replying to Mr Pack’s email sent earlier that day at 2.41 pm to the Registry, copying in the applicant, filing the respondent’s strike out application, with content including (original emphasis):

The vicious and sick lies Amanda Cann made up to incite children to lie about me and the evidence that certain students were bribed with money to lie about me, is evident that I have been set up, to cover misconduct by your clients.

My partner Shawn Wenn received a phone call from […] when he discovered me not breathing and unresponsive one night. Shawn was in Newman working. Once the ambulance had delievered [sic] me to the hospital after I was resuscitated, he lost his cool and left a phone message on Amanda's phone.

Given the sick and twisted lies she told students and the way she adduced false information in writing in the file of defamation she put to me to justify my dismissal, it is entirely reasonable my partner would have a break down like this. He thought I had died as a result of the injustice I was dealt and left to fight this injustice alone, denied union support by the DoE and criminally set up with fabricated evidence and horrific stories of me being a 'transvestite with a penis who wants to rape girls'. Students were told I had kidnapped a student at Waroona and had done this before! It is sick!

…

I have suffered a terrible breakdown and was admitted to hospital and am having ongoing treatment for the trauma and severe and disabling anxiety and depression, I suffer now as a result of this bullying.

For these reasons, I contest this application to have an interlocutory hearing on the grounds that this is a further unethical and malcious [sic] attempt to deny an innocent person justice. Another attempt in malafides to defame me and throw as much mud as you can in the hope that some will stick. You are trying to further bully me with your tactics to deny me a hearing.

It is unconscionable what you have done to my family. It is unconscionable to deny me a hearing at this point. It is unconscionable and unethical to lie on your application to the Commission.

I know you are impervious to the injustice your client inflicts, but seriously Mr Pack, I have way too much evidence to prove that this was a sham investigation and an unethical attempt to cover up an abuse of power.

Amanda Cann has acted unconscionably and criminally in her conduct throughout this process. She criminally defamed me and abused her power to deny me procedural fairness. She has deliberately put false information in the report despite knowing full-well the information is wrong AND she refused to change incorrect dates, knowing I had provided her evidence of the correct dates. This had an enormous impact on my case. She told me she would not take out the false reports she had made as the report was not "a live document"'.

(Exhibit 1)

(b) 25 February 2022 at 10.01 pm to Sam Pack, copied to Chambers, replying to Mr Pack’s email sent earlier that day at 2.17 pm which amongst other things advised the applicant that the respondent’s strike out application was due to be filed with the Registry that afternoon. This email is replicated in full below.

Why does this not surprise me at all?

It would not matter, Mr Pack, if I asked for 10 cents from your client to settle this matter, they are so arrogantly pretentiously ignorant of the law and ethical conduct, that they would pursue this matter to the High Court using Tax-payers money without conscience, just to prove a point-how BIG they are!

I know your mentor Julia has a conscience, I can see by your constant smirking, mocking me and gloating that you appear to enjoy hurting people in pain.

To be clear-I refer to a retraction of the defamation and filthy slandering of my good reputation. I refer to your client's sham investigation and dirty tactics to harm a reputable and hard- working teacher who through no fault of her own found herself a target and a desirable person to sack-because I see through stupid cover-ups and fake-school reviews that really never happen at all, because afterall...who'd know? Well I knew!

You had no intention was never to allow me to get to a hearing and have your accusations tested. It doesn't take Sherlock to work that out.

kind regards

Verona

(Exhibit 2)

(c) 26 February 2022 at 10.52 am addressed to Commissioner Walkington, copied to Sam Pack, with content including the following (original emphasis). Counsel for the respondent submits that this is an email that, no matter how cathartic it might have been in the moment for the applicant to send, was intended to unnerve.

I have never induced a witness, nor did my partner Shawn have any intention to intimidate a witness. He called Amanda Cann from Newman, when […] had to get off the phone so the ambulance could instruct him on first aid on 3rd July 2021, because I had stopped breathing and had no pulse. I was resuscitated by paramedics. Shawn thought I had died! This is evident in his texts and voice messages when Amanda Cann did not answer his calls. And yet she gave Shawn her phone number to call him at any time.

The department of education is not in a position of vulnerability. They have blocked me from my emails and cherry -picked certain emails and evidence to paint a terrible image of me, as they did to students and staff, spreading the most sick and malicious lies in bad faith. I had no chance to defend myself, nor prove my innocence to police when my violent ex-husband made false reports to police.

The department of education is inciting now, evidence from workers such as Bronwyn White, who was my client when I was an independent consultant. She has heard terrible untruths about me, and I was merely trying to mitigate the damage to my reputation. This is a normal reaction.

The Department could easily have my email blocked, if they were seeking to avoid intimidation of witnesses, given the trauma I have faced and the fact I am unrepresented. But they instead have chosen to incite ANY member of the DoE, including my colleagues and friends, to report anything they receive from me via email as evidence of malafides.

I assert that this is in itself malafides. If I am allegedly intimidating a witness, then it is very easy to block an email AND/OR instruct employees to delete.

I have not telephoned anyone! Everything I do is done in writing, which proves I am not seeking to do anything covertly or dishonestly. I am merely seeking to stop the terrible gossip going around about me that is destroying my life and caused me to attempt suicide.

I will never be the same and this injustice causes me such pain and anguish, that many days I have to seek help, because I fear for life.

 This has never happened before in my life. Even my therapist said she is in awe how I am functioning every day with this nightmare I have suffered.

I assert the DoE is trying to deny me my day in Court. If they have nothing to hide, they would not fear a single mother on unemployment benefits, with a TPD seeking justice in the WAIRC.

kind regards

Verona Wauchope

(Exhibit 11)

(d) 1 March 2022 at 2.15 pm to Sam Pack, copied to Chambers, with content including:

This attempt to deny me my day in Court is in bad faith, Mr Pack.

(Exhibit 3)

(e) 2 March 2022 at 9.01 am to Sam Pack, copied to Chambers, with content including (original emphasis):

And you are still bullying me, trying to deny me a hearing.

I have no words to describe your underhanded attempt to cover-up this abuse.

(Exhibit 4)

(f) 5 March 2022 at 5.14 pm to Sam Pack, copied to Chambers, with content including:

There has been a report to muddy my name and fabricate heinous breaches against me and I assert that the deputy has played a major role in this for reasons that are more than my complaints about him being a bully in the school.

I have been wronged and I know the DoE know this. I just do not understand how people are getting away with this unethical behaviour?

Verona

(Exhibit 5)

(g) 9 March 2022 at 9.51 pm to Sam Pack, copied to Chambers, with content including:

Dear Mr Pack,

I refer to your email below and your consideration of calling witnesses.

…

I am genuinely concerned for your witnesses. Just how far will they go to save their jobs and join the 'Blue Shield'? Commit a crime? Absolutely they will!

Whistleblowers end up like Frank Scott and Verona Wauchope.

(Exhibit 6)

(h) 16 March 2022 at 9.40 pm to Sam Pack, copied to Chambers, with content including (original emphasis):

There is no end to your client's unethical, unconscionable and highly embarrassing behaviour.

I assert that your application to have my matter dismissed is a desperate attempt to cover the extreme bullying, unlawful and embarrassingly ignorant behaviour of certain Education Department senior management, which will be revealed in a hearing.

I have nothing to hide, Mr Pack. Your client's conduct shows 'extreme bullying' and unlawfulness. This is irrefutable! You cannot deny this as an 'agreed fact' you or you would simply be lying.

(Exhibit 7)

(i) 3 April 2022 at 9.14 pm to Sam Pack, copied to Chambers, with content including:

Mr Pack,

I am concerned that in your desperate attempts to discredit my integrity, you will be forcing an officer to sign a sworn statement which is clearly untrue…

…

The DoE then told me they would find a way to sack me. Months later, they fabricated accusations to justify sacking me.

This is the truth! Nobody wants to admit this as they are scared they will lose their high-paying jobs. John O'Brien, Ken Perris, Damien Stewart, Jacquie Abbiss, Dean Finlay, and Mattin have either; abused power, been bullied or in bad faith said heinous untruths about me because I made a complaint of serious and unacceptable misconduct.

When will government departments stop bullying women? When will they act protectively towards DV victims in their employment? When will they show integrity?

It is not in the best interests of the DoE to admit they made mistakes that snowballed. It's easier to send you to get rid of this mud I have on them.

Somebody has to stand up to bullies. This duress I have suffered, my family has suffered, cannot be in vain.

You simply cannot substantiate what you have put in writing-nor can Inspector Snashell. He simply was not around when this happened and he is also aware of the discreetness exercised in the force.

I look forward to the Interlocutory Hearing, where I can prove, everything I have said is truthful. Only a fool would lie in Court!

Verona

(Exhibit 8)

(j) 5 April 2022 at 4.00 pm to Sam Pack, copied to Chambers, with content including:

Dear Mr Pack,

I refer to the below, and the attached in relation to your false allegations in your application to have my matter dismissed.

I also refer to the significant difference between the circumstances in my matter and those of the cases you cited.

The reaction whereby I was inconsolable, traumatised and outraged at the injustice and lack of procedural fairness, the chronic bullying AND the attempts to discredit me as a professional, AFTER my dismissal was one that any reasonable person would have, when treated so abhorrently by your client.

…

Additionally, unlike in Brown, I knew that the persons receiving my emails, which were grief stricken-rage at the sickening injustice of what the DoE had done to me and my career, would not hinder or threaten any person or trial as these employees had the full support of Manager John O'Brien who had orchestrated the entire dismissal-starting in March 2020.

I am being open and honest in my disclosure of documents and facts. I do not wish to waste your time or the Commissioner's.

Please look at a better case precedent, if you wish to be persuasive. I had no intent to save my career with the DoE, nor intent to change the way a witness responds in any jurisdiction. I held no misgivings that any single one of these people who received my email or Shawn's, would feel anything other than glee and joy at being able to use the email against me, rather than it being helpful to me. I knew it was never going to assist me. I knew the DoE would take this grief-fuelled response and without a single thought of human suffering, would use this as a means to further disable the victim.

I was beyond outraged at the sheer injustice of this entire sinister debacle. Any reasonable person would be, in my shoes. There was no logic and no common sense to any of the accusations or investigation. This is why I was so shocked and distraught at the malice towards me, when I had been such a sought after professional with a unique skill-set in data analytics and pedagogy, only weeks prior to this defamation by your client. Unfortunately, the DoE are renowned for, NEVER backing down and protecting the manager or principal who makes such egregious decisions about an employee.

I was far too emotional to have intentions of corrupting witnesses for any such appeal or litigation. As was Shawn Wenn. It is outrageous to assert such allegations and shows a complete lack of moral obliquity and conscience. Trying to have my matter dismissed because YOUR client bullied a woman to the extreme that she tried to take her life, is unconscionable and a desperate attempt to avoid the perpetrators being exposed.

I am not guilty-your client is guilty of gross misconduct and negligence. Any lay person can see this. I am not persisting in this jurisdiction for financial gain.

I just want the truth! I want the unconscionable conduct of O'Brien and Mattin to be exposed and that no mother/ employee should ever go through such extreme trauma again. This extreme bullying and misconduct is occurring at an alarming rate in the DoE and teachers just walk away.

There needs to be an end to such malicious behaviour and a realisation that the administrators of teachers are there to support our profession, not persecute us. Teachers are leaving at an alarming rate-especially the smart ones who know they can do better elsewhere.

What sort of State government allows schools to regress so badly and shoots the few skilled teachers who can identify performance issues and rectify them?

regards

Verona

(Exhibit 9)

28      The respondent submits that whatever the applicant's motives and whatever allowance may be made for her being under a great deal of pressure as a result of her dismissal, her conduct in the correspondence that she has sent (and presumably by extension her condonation of the text messages sent by Mr Wenn), is entirely improper. The respondent submits that this behaviour should not be condoned by the Commission and is conduct that provides the necessary basis for the Commission to strike out the applicant’s unfair dismissal application.

29      The respondent submits that the emails which post-date the strike out application are as serious, if not more serious than the emails which the strike out application is based upon because the emails come after the strike out application was filed. The respondent submits that the applicant was on notice that the correspondence she had been sending was recognised or considered by the respondent to be intimidating and harassing and therefore inappropriate, yet the applicant persisted in sending such emails.

30      The respondent relies on Brown, wherein the Public Service Appeal Board chaired by Commissioner Matthews (Board) dismissed an appeal after it emerged midway through a hearing that the appellant, Mr Brown, had acted improperly towards a witness, Ms McCloy, in a phone call before the hearing. The respondent submits that the Board found Mr Brown's conduct occurred either at a time Mr Brown’s appeal to the Board had been commenced or would imminently commence, and when Mr Brown knew or acted on the belief that Ms McCloy would be a witness in the appeal.

31      The respondent submits that the Board in Brown proceeded on the assumption or made findings in favour of Mr Brown that:

(a) Mr Brown believed he was telling the truth, and all Mr Brown was seeking to do was to have Ms McCloy also tell the truth: at [30], [34], [52], [55].

(b) Mr Brown’s conduct was not premeditated or intentional, but rather occurred in an opportunistic way in the course of a conversation: at [62]-[65], [100].

(c) Mr Brown did not know at any time that he was potentially interfering with the administration of justice: at [66], [83].

(d) Mr Brown’s conduct did not actually affect Ms McCloy in any way that might undermine the Board's ability to do proper justice: at [68].

(e) Mr Brown’s conversation with Ms McCloy was a one off and occurred in the context of Mr Brown otherwise having given 10 years of good service without any previous misconduct: at [100].

32      The respondent submits that the Board in Brown considered as matters of principle that:

(a) While it is legitimate to seek to persuade a witness to tell the truth by reasoned argument it is not legitimate to do so by intimidation or inducement. Other than reasoned argument, a party's only option is to leave the matter to the Board or Commission to determine where the truth lies: at [55], [58].

(b) For the Board to take action in respect of improper conduct, it is not necessary that the conduct actually frustrates the Commission’s processes. It is enough that it has the capacity or tendency to do so, or that there is a real risk to interfere with justice or a real and definite tendency to prejudice or embarrass proceedings or a clear tendency to prejudice the administration of justice: at [69].

33      The respondent submits that the Board in Brown at [61] found that Mr Brown used fear and intimidatory tactics and the promise of benefits and inducements to attempt to persuade Ms McCloy, for example by:

(a) suggesting that if she took a particular course the proceedings would end;

(b) suggesting that there would be no negative consequences to taking that course;

(c) suggesting that she needed to change her evidence to avoid people thinking ill of her and acting poorly towards her;

(d) suggesting that the proceeding would be ‘a real ugly thing’ if it continued to court; and

(e) suggesting that she would be isolated and alone, and the proceedings would be a lonely and stressful experience for her.

34      The respondent submits that the Board described Mr Brown's actions towards Ms McCloy as ‘outrageous’, ‘completely outrageous’ and ‘reprehensible’: Brown at [61]. The respondent submits that despite the assumptions the Board made about Mr Brown’s honesty, lack of sinister intention, and the lack of any actual effect on Ms McCloy, the Board concluded that Mr Brown’s conduct was improper (Brown at [72]) and determined it was appropriate to dismiss Mr Brown's appeal at a preliminary stage: Brown at [106].

35      The respondent submits that the Board in Brown noted that having full regard to s 26(1) of the Act, found that although the substantial merits of the case might be said to be, at that stage, not fully exposed, that equity and good conscience and regard for the interests of all persons, including the appellant, respondent, Ms McCloy, and the interests of the community in protecting the Public Service Appeal Board’s processes from interference by way of improper conduct by an appellant, demanded the result that the appeal be dismissed.

36      The respondent submits that she is content for the Commission, like the Board did in Brown, to determine the strike out application on the assumptions favourable to the applicant, namely that the applicant believes her version of events to be the truth and she was not seeking to have witnesses tell untruths.

37      The respondent also submits that she does not seek to prove that the applicant's conduct actually affected a witness, with the strike out application focussing solely on the fact of the applicant's conduct in directing various emails and messages towards witnesses, and the potential for that conduct to affect a witness.

38      The respondent submits that the applicant’s improper conduct amounts to a campaign of intimidation and vilification, justifying the dismissal of her unfair dismissal application.

39      The respondent submits that in Brown, the Board placed particular emphasis on statements made by Mr Brown to Ms McCloy which sought to isolate Ms McCloy and paint a picture of her being on a side lacking both quantity and quality. The respondent submits that the applicant has taken the same approach and often seeks to paint a picture of the witnesses being despised and ridiculed by others, as referred to in the emails at:

(a)  Exhibit 10, page 24;

(b) Exhibit 1;

(c) Exhibit 2;

(d) Exhibit 4; and

(e) Exhibit 6.

40      The respondent submits that the conduct of Mr Brown in Brown pales in comparison to the conduct of the applicant, as the language used by the applicant and the pressure sought to be applied to witnesses is orders of magnitude stronger, including not only personal insults and vitriol, but threats of various legal proceedings and prosecutions against witnesses personally.

41      Unlike in Brown, the respondent submits that the applicant’s correspondence cannot be dismissed as a one off, but rather has been consistent and continued even after her improper communications were expressly raised at the Scheduling Conference before the Commission on 11 February 2022.

42      The respondent submits that it cannot be said that the applicant has demonstrated any insight into or remorse for her actions. The respondent submits that nowhere in the applicant's multitude of emails to the respondent and the Commission in response to the strike out application has there been any expression of remorse or a demonstration of insight. The respondent submits that the applicant has instead asserted that it is the respondent's fault that she has continued to direct improper correspondence towards witnesses.

43      The respondent submits that through the cases referred to by the respondent, the Commission has set a bar indicating what the Commission will and will not tolerate when it comes to harassment and intimidation of witnesses. The respondent submits that the applicant has not conducted herself in a way that accords with two important maxims of equity which apply in this jurisdiction, namely that he who seeks equity must do equity, and he must also come with clean hands.

44      The respondent relies on the following passage in Civil Service Association of Western Australia Incorporated v Director General, Ministry of Justice [2003] WAIRC 08587; (2014) 94 WAIG 215 (Civil Service Association) at [56]:

The injunction in s 26(1)(a), governs the manner of the exercise of the Commission's jurisdiction, and somewhat tritely, is not a source of power in itself. However, what it does permit is the departure from strict legal entitlement, in circumstances where the equity and good conscience compels such a conclusion. For example, in a contractual benefits claim, in circumstances where the applicant may be strictly entitled to a benefit under his or her contract of employment, but the circumstances of the case reveal that the applicant engaged in some form of misconduct or deceit in relation to the matter the subject of the claim, the Commission is empowered in my opinion, pursuant to s 26(1)(a), to deny an applicant relief. This approach would appear to accord with the two important maxims of equity, they being that “he who seeks equity must do equity” and that “he must also come with clean hands”. In my opinion, there is nothing inconsistent with the Commission's jurisdiction, for the application of these broad principles, having regard to s 26(1)(a) of the Act.

45      The respondent submits, in reliance on Brown, that Brown is not limited to the availability of a remedy but speaks to the required standards of conduct of those who seek equity and fairness from the Commission.

46      The respondent relies on the following paragraph in Brown at [106]:

We have full regard to section 26(1) Industrial Relations Act 1979 and find that although the substantial merits of the case might be said to be, at this stage, not fully exposed, that equity and good conscience and regard for the interests of all persons, including not only the appellant but also the respondent and Ms McCloy, and the interests of the community in protecting the Public Service Appeal Board’s processes from interference by way of improper conduct by an appellant, demands the result that the appeal be dismissed at this time.

47      The respondent submits that whilst Brown focuses on witness intimidation and harassment, this was because the recipient of the conduct in Brown was a witness. The respondent submits that the concern in Brown was the conduct of Mr Brown, which had the capacity to interfere with the administration of justice. Therefore, the respondent submits, whether it is a potential witness, an actual witness, or a person otherwise connected to the proceedings, the same principle applies.

48      The respondent submits that by analogy, whether it be a witness, an Associate to the Commission, or counsel in the proceedings, there is the capacity for correspondence of the kind sent by the applicant to interfere with the administration of justice, and the capacity for interference exists whether or not the applicant had the intention to engage in any interference with the administration of justice.

49      The respondent also submits that the applicant has also demonstrated a willingness to direct insult and illegitimate pressure towards the lawyer acting for the respondent, which is in some respects analogous to that in De Vos v Minit Australia Pty Ltd [2002] WAIRC 06108; (2002) 82 WAIG 2195 (De Vos), where a rude gesture by an applicant to the respondent's counsel during cross‑examination ultimately prompted the dismissal of the applicant's claim.

The applicant’s contentions

50      Counsel for the applicant submits that the power to dismiss an unfair dismissal application before the Commission under s 27(1)(a)(iv) of the Act is an exceptional one and should be exercised sparingly and with extreme caution: Brown at [81], [82].

51      Counsel for the applicant submits that the applicant is entitled to invoke the jurisdiction of the Commission and should not lightly be deprived of its exercise: Brown at [81]. Counsel for the applicant submits that a dismissal of the applicant’s unfair dismissal application, without the matter having been fully heard and all evidence having been led, would be harsh and extreme, and it would be an exceptional result for improper conduct to deny a person their ‘day in court’: Brown at [83].

52      Counsel for the applicant submits that the Commission’s power to dismiss an unfair dismissal application should not be used to ‘punish’ the applicant and it is relevant to consider the applicant’s intentions and the effect of her conduct: Brown at [83].

53      Counsel for the applicant submits that, at all times, the applicant believed that what was contained in the emails and messages was true and that she never sought to coerce or influence a witness to these proceedings to tell anything but the truth.

54      Counsel for the applicant denies that the applicant’s conduct was a ‘campaign of intimidation and vilification’ such as to amount to a reason to dismiss the applicant’s unfair dismissal application.

55      Counsel for the applicant submits that the emails sent by the applicant demonstrate the applicant’s frustration and grievances since her commencement as a teacher at Waroona Senior High School on 29 January 2020.

56      Counsel for the applicant submits that the applicant’s emails contain an amount of vitriol.

57      Counsel for the applicant further submits that the amount of vitriol contained in the emails is completely and utterly out of character with the applicant.

58      Counsel for the applicant submits that the vitriol is completely at odds with the applicant's history as a teacher in Western Australia and abroad and in other States of Australia, and her record as a recognised leader in certain fields of teaching regarding the National Assessment Program – Literacy and Numeracy (NAPLAN) especially.

59      The applicant gave evidence at the hearing of the context in which she sent the emails.

60      In relation to the email (Exhibit 10, page 12) to David Mattin, the Deputy Principal on 10 June 2021 at 10.34 am, the applicant says that she sent this email because she had just been dismissed the previous afternoon.

61      In relation to the email (Exhibit 10, pages 13-14) to Jacquie Abbiss and copied to the ‘All Staff’ email address on 10 June 2011 at 11.30 am, the applicant says this email was sent to the Principal who she believed was her friend, on the day of her dismissal. She says that she sent the email because she felt a kind of release of pressure and distress. She says she was upset at the Principal as she felt that she had been really wronged, and she believed that the Principal knew that she had not engaged in the misconduct that led to her dismissal. In short, the applicant says the email was sent because she felt her dismissal was unjust and the Principal had betrayed her, in circumstances where she had accepted employment at the school at the request of the Principal.

62      In relation to the email (Exhibit 10, page 24) to Amanda Cann, copied to Marc Sorrell, both from the Department’s Standards and Integrity unit that undertook the workplace investigation into the allegations of misconduct against the applicant, sent on 10 August 2021 at 8.52 am, the applicant says this email was sent because she was enraged at Ms Cann in excluding exculpatory evidence in response to the allegations of misconduct from the file, which the applicant says contains the investigation. The applicant says she sent the sections of the email directed to Mr Sorrell because he ‘had actually been really, really cruel in his verbal interactions with me, mocking me’ and ‘insinuating horrible, horrible things about my personal life’. The applicant gave evidence that whilst the email was sent a month after her dismissal, it was sent at a time when she had just come out of the Rockingham Mental Hospital after having taken an overdose. The applicant states in her unfair dismissal application that she was dismissed on 10 June 2021, so the email to Ms Cann, copied to Mr Sorrell was actually sent two months after the applicant’s dismissal. I make no adverse findings in relation to this discrepancy.

63      The applicant gave evidence that in relation to all of the emails in the respondent’s strike out application, that on review of them, she feels sick that she had felt so angered, outraged and distressed at the time she sent the emails. She says she does not have much of a recollection of the emails as they were sent close to the time she was in hospital, with at least one email sent when she was in hospital.

64      When asked to clarify, the applicant states that she had sent Mr Sorrell an email whilst she was in hospital.

65      The applicant does not accept that the content of her emails may have hurt the recipients. The applicant accepts that a reasonable person would be hurt by their content but does not think that Ms Cann and Mr Sorrell would be. This is because she believes that they think she is a joke to them, and therefore thinks the emails she sent would have been innocuous for them.

66      Under cross-examination, it was put to the applicant that she had sent a number of emails (specifically Exhibits 3, 4 and 7) to the respondent’s solicitor, Mr Pack, after the respondent had filed the strike out application. Namely, at a time after the respondent had placed the applicant on notice that the respondent considered the emails the applicant had sent up until that time to be inappropriate.

67      Despite counsel for the respondent specifically asking the applicant if she accepts that the three emails (Exhibits 3, 4 and 7) were inappropriate, the applicant did not indicate any such acceptance.

68      Counsel for the applicant does not deny that the emails sent by the applicant were vindictive or vicious on the face of them, but submits that the emails have to be taken in the context of what was occurring at the time with Waroona District High School, and the impact this had on the applicant psychologically, and therefore what the applicant’s state of mind was at the time.

69      Counsel for the applicant submits that the applicant’s communications are to be distinguished from Mr Brown’s communication in Brown, as at the time the applicant sent the emails the applicant was not aware whether certain people would be witnesses or not, and that despite what is contained in the applicant’s emails that the applicant had no intention to influence witnesses. Counsel for the applicant submits that the applicant had no intention to try and stop the recipients of the emails from giving evidence, rather, the tone of the emails reflects the applicant’s frustration about what the applicant understood was happening.

70      In relation to the emails that the applicant sent to counsel for the respondent, the applicant’s counsel submits that those emails were sent by the applicant at a time when she was self‑represented. Further, counsel for the applicant submits that the emails need to be taken in the context of what had happened to the applicant when she was dismissed, and prior to that, which, counsel for the applicant submits goes to the state of mind of the applicant.

71      Counsel for the applicant submits that it wasn't just an instance of the applicant being psychologically afflicted by what had occurred to her and that just being resolved, because it hasn't. Counsel for the applicant submits that the applicant’s state of mind permeated the applicant's communications, not only at the time of the dismissal and following the dismissal, but when the application was made to the Commission and when the applicant was communicating with counsel for the respondent.

72      Counsel for the applicant does not deny that the content of the applicant’s emails, in some instances, is vile. In this respect, counsel for the applicant does not disagree with the respondent’s submission that Mr Brown’s conduct in Brown pales in comparison with the applicant’s conduct. Counsel for the applicant submits, that whilst the communication from the applicant is vile, there is a reason for that, and that reason is the effect that the dismissal had on the applicant, and the effect of what happened to the applicant prior to the dismissal, which I understand to be the investigation into allegations of misconduct.

73      Counsel for the applicant does not disagree with the respondent’s submission that Mr Brown’s conduct in Brown was a one off, which is not the situation with the applicant’s communications. Counsel for the applicant submits that there was a long period of time where the applicant was under extreme pressure from the allegations that had been made against her, which included 13 allegations of misconduct that the applicant had to answer, which resulted in the applicant’s dismissal.

74      Counsel for the applicant submits that the power of the Commission to dismiss the applicant’s unfair dismissal application under s 27(1)(a)(iv) of the Act is an exceptional one and is a power that should not be used to punish the applicant. Counsel for the applicant submits that the applicant is entitled to invoke the jurisdiction of the Commission and should not be deprived of that lightly.

75      Counsel for the applicant submits that the evidence from the applicant is that the applicant was psychologically traumatised by what had occurred to her from the time she was employed at Waroona District High School including the investigation into the applicant’s misconduct, the allegations of which are denied by the applicant, through to the time when the applicant was dismissed.

76      Counsel for the applicant submits that it would be premature to dismiss the applicant’s unfair dismissal application without hearing from the applicant about the gravity of what the applicant says occurred in terms of the dismissal and how it was carried out.

Consideration

77      Section 27(1)(a) of the Act expressly empowers the Commission to dismiss an unfair dismissal application at any stage: Tye v Care Services Administration Pty Ltd [2017] WAIRC 00689; (2017) 97 WAIG 1319 (Tye) at [38]:

Section 27(1)(a) of the Act expressly empowers the Commission to dismiss any matter before it at any stage of the proceedings (which includes hearing an application to dismiss at a preliminary or interlocutory stage) without a full hearing of evidence and submissions going to the merits of a claim, providing the preconditions for the exercise of the power are made out.

78      In this matter, I would be empowered to dismiss the applicant’s unfair dismissal application pursuant to s 27(1)(a)(iv) of the Act if I was satisfied that ‘for any other reason’ not otherwise stated in s 27(1)(a)(i)-(iii) the applicant’s unfair dismissal application should be dismissed.

79      The Commission has accepted that it is entitled to apply the maxims of equity that ‘he who seeks equity must do equity’ and ‘he who seeks equity must come with clean hands.’: Brown at [44] citing Civil Service Association.

80      It is appropriate for the Commission to have regard to relevant equitable principles in matters before it: Civil Service Association at [55] per Commissioner S J Kenner (as he then was):

Whilst it is trite to observe that the Commission is not a court of equitable jurisdiction, in my view, given that the touchstone of the Commission’s jurisdiction is to enquire into and deal with industrial matters “in accordance with equity, good conscience and the substantial merits of the case” under s 26(1)(a) of the Act, it is appropriate for the Commission to have regard to relevant equitable principles, as part of “inquiring into and dealing with” an industrial matter.

81      In applying the equitable principles, Commissioner Kenner (as he then was) stated that in a contractual benefits claim, the Commission is empowered pursuant to s 26(1)(a) of the Act to deny an applicant relief if the applicant has engaged in some form of misconduct or deceit in relation to the matter the subject of the claim: Civil Service Association at [56]:

For example, in a contractual benefits claim, in circumstances where the applicant may be strictly entitled to a benefit under his or her contract of employment, but the circumstances of the case reveal that the applicant engaged in some form of misconduct or deceit in relation to the matter the subject of the claim, the Commission is empowered in my opinion, pursuant to s 26(1)(a), to deny an applicant relief.

82      Section 26(1) of the Act states that:

26. Commission to act according to equity and good conscience

(1) In the exercise of its jurisdiction under this Act the Commission —

(a) must act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms; and

(b) must not be bound by any rules of evidence, but may inform itself of any matter in such a way as it thinks just; and

(c) must have regard for the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole; and

83      Whilst Civil Service Association provides that s 26(1)(a) empowers the Commission to deny relief to an applicant if they engage in some form of misconduct or deceit in relation to a contractual benefits claim, in my view, this is apropos to the Commission being empowered to deny an employee relief at an early stage of an unfair dismissal application if the employee engages in some form of misconduct or deceit in relation to their unfair dismissal application.

84      Section 27(1)(a)(iv) of the Act empowers me to dismiss the applicant’s unfair dismissal application if I am satisfied that ‘for any other reason’ the applicant’s unfair dismissal application should be dismissed.

85      I would be satisfied that the applicant’s application should be dismissed, if I was satisfied that the applicant had engaged in some form of misconduct in relation to her unfair dismissal application.

86      The term ‘misconduct’ is defined in the Butterworths Employment and Law Dictionary (1997) as:

Wrongful, improper, or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one’s acts. Misconduct may involve either gross negligence or a deliberate departure from accepted standards so as to portray indifference and an abuse of privileges: Pillai v Messiter (No 2) (1989) 16 NSWLR 197.

87      The respondent has characterised the applicant’s conduct as improper and intimidating and harassing and therefore inappropriate.

88      The term ‘improper conduct’ is defined in the Butterworths Employment and Law Dictionary (1997) as:

Behaviour which in all the circumstances of a case is an inappropriate or incorrect way of discharging duties, obligations, and responsibilities. Conduct may be improper regardless of whether it is conscious or unconscious. Improper conduct is a breach of the standards of behaviour which would be expected of a person by reasonable people with knowledge of that person’s duties, powers and authority and the circumstances of the case: R v Byrnes and Hopwood (1995) 183 CLR 501; 130 ALR 529.

89      The term ‘intimidate’ in the context of intimidation of a witness under s 36A of the Crimes Act 1914 (Cth) was considered in The Queen v Russell Gordon Haig Mathews [1992] QCA 462 at [7]:

In a context like s.36A the word "intimidate" and its derivatives is not a technical term, or term of art, but a word in common use employed in its popular sense: "O'Connell v. the Queen (1844) 11 Cl. & Fin. 155, 235; 8 E.R. 1061, 1092. Ordinarily intimidation would involve some threatening words or conduct tending to coerce the other person: cf. Bilby v. Hartley (1892) 4 Q.L.J. 137, 143, col.2.

90      The term ‘harassment’ was considered in Australian Competition and Consumer Commission (ACCC) v Maritime Union of Australia (2001) 114 FCR 472 at [60]:

The word "harassment" in my view connotes conduct which can be less serious than conduct which amounts to coercion. The word "harassment" means in the present context persistent disturbance or torment…On the other hand where the frequency, nature or content of such communications is such that they are calculated to intimidate or demoralise, tire out or exhaust a debtor, rather than merely to convey the demand for recovery, the conduct will constitute undue harassment (see per French J in McCaskey at 27 [48]). Generally it can be said that a person will be harassed by another when the former is troubled repeatedly by the latter.

91      The respondent submits that the applicant's improper conduct amounts to a campaign of intimidation and vilification. Counsel for the applicant denies that the applicant’s conduct was a campaign of intimidation and vilification such as to amount to a reason to dismiss the applicant’s unfair dismissal application. The respondent’s characterisation of the applicant’s conduct as a ‘campaign’ suggests an element of pre-meditation or intention on the part of the applicant to intimidate and vilify. Given the definition of ‘improper conduct’ provides that conduct ‘may be improper regardless of whether it is conscious or unconscious’, I do not consider that I need to find that the applicant’s conduct amounts to a ‘campaign’ of intimidation and vilification.

92      If the evidence supports a conclusion that the applicant has engaged in some form of improper conduct (whether conscious or unconscious) in relation to her unfair dismissal application, then it follows that the applicant has engaged in misconduct in relation to her unfair dismissal application, and therefore has failed to observe one or both of the two important maxims of equity cited in Brown and Civil Service Association.

93      Counsel for the applicant concedes that the applicant’s emails were vindictive or vicious, and vile. In my view, the emails were all of those things.

94      The respondent submits, and the applicant’s counsel does not dispute, that the applicant’s emails contained personal insults and threats of various legal proceedings and prosecutions against the recipients personally.

95      I find the following emails (Exhibit 10 Emails) contained personal insults and/or threats of various legal proceedings against the recipients personally:

(a) Exhibit 10, page 12: ‘dim-witted troglodyte’, ‘jealous pathologically envious underachievers’, ‘coward’, ‘without moral compass’, ‘your lazy tardy approach to work’, ‘you have no moral obliquity’, ‘I will see you in Court and I will take a personal action against you for the defamation and unlawful manner in which you worked tirelessly to defame me’, ‘contemptible low-life’, ‘where the unemployable hide–like you!’, ‘MY FAMILY AND MY COLLEAGUES WILL NOW NOT GIVE UP UNTIL YOU ARE FULLY ACCOUNTABLE FOR YOUR CRIMINAL ACTIONS’.

(b) Exhibit 10, page 13-14: ‘nastiest, most immoral sycophant’, ‘you felt intimidated by my Mensa IQ’, ‘Ms Abysmal’, ‘nasty, unethical, jealous pathologically envious teacher’, ‘THERE IS ENOUGH ILLEGALITY IN YOUR ACTIONS FOR SEVERAL WRITS TO BE PLACED IN THE SUPREME COURT’, ‘I WILL NOT LET YOU GET AWAY WITH THIS’, ‘SELFISH, UNETHICAL SELF-PROMOTER with terrible people skills’, ‘introverted slug’.

(c) Exhibit 10, page 15: ‘weak man!’, ‘tremble like a mouse’.

(d) Exhibit 10, page 16-17: ‘disingenuous’, ‘incompetence and inhumane conduct’.

(e) Exhibit 10, page 18: ‘YOU would sell your own Grandmother for a promotion’, ‘NO integrity’, ‘low IQ’, ‘no substance’, ‘CONTEMPTIBLE IN EVERY WAY!’.

(f) Exhibit 10, page 19: ‘I am about to raise merry hell’.

(g) Exhibit 10, page 20: ‘You are the reason people take their life’.

(h) Exhibit 10, page 22: ‘I will NOT rest until I see justice and clear my name’, ‘unethical’, ‘contemptible!’, ‘luddites!’.

(i) Exhibit 10, page 23: ‘I will NOT stop until I get justice’.

(j) Exhibit 10, page 24: ‘contemptible!’, ‘I will not rest until I know that you personally Amanda, are restrained from ever doing what you have done to teachers like me’, ‘You obviously need retraining’, ‘seriously inept’.

(k) Exhibit 10, page 27: ‘This has gone very public!’, ‘no conscience!’, ‘I am seeking damages from your personally’.

(l) Exhibit 10, page 28: ‘You will hear from my lawyer regarding criminal charges I am taking against you personally’.

(m) Exhibit 10, page 29: ‘This is going viral in the news’, ‘YOU ARE IN THE WRONG AND IT WILL BE EXPOSED’.

(n) Exhibit 10, page 30: ‘WHY DOES IT TAKE A DEFMATION [sic] TRIAL TO GET YOU TO LISTEN?’, ‘SHAME ON YOU’.

(o) Exhibit 10, page 32-33: ‘My defamation lawyer has said that for every single person who has defamed me, there is a separate instance of defamation’, ‘This will be a record defamation case in WA’.

96      In R v Kellett [1976] QB 372 (Kellett) (cited in Librizzi v The State of Western Australia [2006] WASCA 237 (Librizzi) at [144]), the English Court of Appeal held that Mr Kellett was properly convicted of attempting to pervert the course of justice in circumstances where he threatened to sue for slander if potential witnesses in divorce proceedings gave evidence which he may have believed false.

97      I find that the Exhibit 10 Emails contain threats of various legal proceedings and prosecutions against the recipients personally, and therefore have the character of the threat to sue for slander that was the subject of the conviction in Kellett as cited in Librizzi.

98      I find the tone of many of the Exhibit 10 Emails to be intimidatory and harassing, with references to not giving up, not resting, not stopping, raising ‘merry hell’, going public, going viral, and the threatening of Supreme Court action, defamation proceedings, the seeking of damages, and criminal charges. All of these references can well be understood as threats.

99      For all of the reasons identified, namely that the emails were vindictive or vicious, and vile, contain personal insults and threats of various legal proceedings and prosecutions against the recipients personally, and were also persistent or repeated, I consider the applicant’s emails to fall within the definitions of intimidatory and harassing conduct and therefore I find the conduct of the applicant in sending the Exhibit 10 Emails to be improper conduct.

100   I agree with the respondent’s submission that the emails that post-date the respondent’s strike out application are particularly objectionable as they have been sent at a time after the applicant was clearly put on notice that the content of her emails were considered by the respondent as being inappropriate.

101   The respondent submits that the applicant was first put on notice that the respondent considered the applicant’s emails to be inappropriate at the Scheduling Conference before the Commission on 11 February 2022. On 25 February 2022, two weeks after the Scheduling Conference, the respondent filed the strike out application.

102   If the applicant did not know the respondent considered the emails sent by her to be inappropriate in the period up to and after the Scheduling Conference on 11 February 2022, then this was made patently clear to the applicant on the respondent filing the strike out application on 25 February 2022.

103   The respondent’s strike out application is in simple terms.

104   At paragraph [3] of the schedule to the respondent’s strike out application, the respondent states:

The improper conduct of an applicant towards witnesses, including attempts to intimidate them, is a basis on which the Commission may dismiss an application: see Brown v Commissioner, Department of Corrective Services [2017] WAIRC 00714.

105   At paragraph [4] of the schedule to the respondent’s strike out application, the respondent states:

In this case, the Applicant has repeatedly directed intimidating and/or insulting communications towards potential witnesses. Only those communications which occurred after the Applicant was dismissed on 10 June 2021, and therefore at a time when her unfair dismissal application was imminent or on foot, have been included in the list below.

106   At paragraph [15] of the schedule to the respondent’s strike out application, the respondent states:

Whatever the Applicant’s motives, and whatever allowance can be made for her being under a great deal of pressure as a result of her dismissal, such conduct is entirely improper and should not be condoned by the Commission.

107   On and after 25 February 2022, the applicant directs her email correspondence to the respondent’s solicitor. Ten emails were tendered. The emails contain the following content:

(a) Exhibit 1: accusing the respondent’s solicitor of unconscionable, unethical, and dishonest conduct, and being impervious to her child’s injuries; and accusing Amanda Cann (investigator engaged by the respondent to investigate the allegations of misconduct) of acting unconscionably and criminally.

(b) Exhibit 2: accusing the respondent’s solicitor of smirking, mocking, gloating and seemingly enjoying hurting people in pain; and accusing the respondent of ‘so arrogantly pretentiously ignorant of the law and ethical conduct, that they would pursue this matter to the Hight Court using Tax-payers money without conscience, just to prove a point – how BIG they are!’

(c) Exhibit 3: accusing the respondent’s solicitor of attempting to deny the applicant her day in court in bad faith; and accusing the Police of ‘severe defamation and bias’ against her, accusing the Police and the Department of Education of protecting themselves ‘when a wrong is committed’. There is also reference to ‘wrongful and unethical actions of government officers.’

(d) Exhibit 4: accusing the respondent’s solicitor of bullying, denying her a hearing and being underhanded in an attempt to ‘cover-up this abuse’; and accusing the Department of Education of forcing her into poverty and bullying its employees.

(e) Exhibit 5: accusing the Department of Education of attempting to muddy her name, fabricating heinous breaches against her and of unethical behaviour.

(f) Exhibit 6: accusing the respondent’s solicitor of being impervious to her and her child’s concerns for their safety and suicide attempts; and accusing the respondent of deceiving or bullying employees into perjuring themselves or lying.

(g) Exhibit 7: accusing the respondent’s solicitor of bad faith and unconscionability, and of attempting to cover up the extreme bullying, unlawful and embarrassingly ignorant behaviour of senior management of the Education Department; and accusing the respondent of unethical, unconscionable and highly embarrassing behaviour.

(h) Exhibit 8: accusing the respondent’s solicitor of forcing an officer to sign an untrue statement in a desperate attempt to discredit her, and of being sent by the Department of Education to ‘get rid of this mud I have on them’; and accusing John O’Brien, Ken Perris, Damien Stewart, Jacquie Abbiss, Dean Finlay and David Mattin of abusing power, or being bullied or in bad faith saying heinous untruths about her.

(i) Exhibit 9: accusing the respondent’s solicitor of a complete lack of moral obliquity and conscience and of acting unconscionably; and accusing the respondent of being guilty of gross misconduct and negligence, and malicious behaviour.

108   Although the applicant does not indicate any acceptance that the emails she sent to the respondent’s solicitor were inappropriate; I find that they clearly were.

109   The respondent submits that Exhibit 6 was objectionable because the applicant was suggesting that the respondent’s solicitor might endanger himself to a charge of perjury if he persisted with the strike out application, and therefore, was overtly an attempt to influence the administration of justice in the circumstances. Whilst in Brown, the Board gave Mr Brown the benefit of the doubt that he did not intend to influence the administration of justice, the respondent submits that I should draw the inference that the applicant did intend to influence the administration of justice, even though that inference according to Brown was strictly not necessary.

110   Counsel for the applicant submits that the conduct of the applicant differed from the conduct of Mr Brown in Brown, in that the words that were used by Mr Brown ‘clearly were words that would discourage a potential witness’. However, the applicant had no intention to discourage a witness. Counsel for the applicant submits that there was no evidence that the applicant had an intention to try and stop the recipients of her emails from giving evidence.

111   Counsel for the applicant urges me to focus on the applicant’s lack of intention to influence a witness, the lack of any evidence of an adverse effect on any witness, and that the applicant believed in the truth of what is contained in the emails that she sent.

112   In Brown, the Board did not hear from Mr Brown, but was prepared to proceed on the basis most favourable to him, that Mr Brown believed he was telling the truth and he was just seeking for Ms McCloy to tell the truth, that he had no intention to interfere with the administration of justice, that he did not know that he was potentially interfering with the administration of justice, and Mr Brown did not actually interfere with the administration of justice, in that, Ms McCloy did in fact attend to give evidence. The Board found that for the Board to take action it was unnecessary for Mr Brown’s conduct to actually interfere with the administration of justice – it was sufficient that Mr Brown’s conduct had the capacity or tendency to interfere with the administration of justice.

113   In this matter, there is no evidence that the applicant sent the emails with a premeditated and clear intent to interfere with the administration of justice. There is also no evidence that the applicant sent the emails in circumstances where she clearly knew that in doing so, she was potentially interfering with the administration of justice. Although, it is arguable that the respondent placed her on notice of that potential on the filing of the strike out application, and from that time it is arguable that the applicant should have known. There is also no evidence that the applicant actually did interfere with the administration of justice.

114   Like Brown, a lack of a premeditated intention is irrelevant. The assessment is whether the communication has the ‘capacity or tendency’ to interfere with the administration of justice: Brown at [67].

115   If conduct has the ‘potential or tendency’ to interfere with the administration of justice, then it is enough for it to be improper: Librizzi and R v McLachlan [1998] 2 VR 55, as cited in Brown at [69].

116   I make no findings that the applicant had the intention to, or that the applicant did, interfere with the administration of justice. However, I find that the applicant’s emails contained threats of various legal proceedings and prosecutions against the recipients, were persistent or repeated, and were written in a tone that I consider to be intimidatory and harassing, and on that basis, I find that the applicant’s emails had the capacity, tendency or potential to interfere with the administration of justice.

117   The respondent submits that it is open to me to infer, particularly given the emails the applicant sent to the respondent’s solicitor after the filing of the strike out application, which the respondent submits demonstrates a willingness on the part of the applicant to insult and apply illegitimate pressure, that the applicant sent the emails with the intention to influence the administration of justice.

118   There is no evidence that the respondent’s solicitor was insulted or experienced illegitimate pressure. In any event, for the reasons in Brown, I do not consider it necessary for me to find the applicant had the intention to influence the administration of justice in the emails that she sent to the respondent’s solicitor. As was the case in Brown, it is sufficient if I find that the emails sent to the respondent’s solicitor had the capacity, tendency or potential to interfere with the administration of justice. I find the emails to the respondent’s solicitor had the capacity, tendency or potential to interfere with the administration of justice.

119   I find the emails the applicant sent to the respondent, to other employees of the respondent, and to the respondent’s solicitor, had the capacity, tendency or potential to interfere with the administration of justice.  Unlike in Brown, the applicant did not just have one communication with one potential witness in the proceedings that arose in ‘an opportunistic way’. Rather, the applicant sent multiple emails over an extended period. The applicant continued to send these emails even after she was put on notice by the respondent through the filing of the strike out application that the respondent considered the emails she was sending to be improper. Also, unlike in Brown, the vindictive, vicious, and vile tone of the applicant’s emails ‘pales in comparison’ with the communication that Mr Brown had with the witness in Brown.

120   Counsel for the applicant submits that Mr Brown in Brown, sought to influence an actual, or a potential, witness in his proceedings before the Board. Counsel for the applicant submits that in contrast, at the time the applicant sent her emails, she was unaware whether certain people would be witnesses or not in her unfair dismissal application.

121   In Brown at [53], the Board found that at the time Mr Brown had the conversation with Ms McCloy, Mr Brown knew, or acted on the belief that, Ms McCloy would be a witness in the proceedings before the Board.

122   The applicant filed her unfair dismissal application on 23 June 2021, and in the unfair dismissal application she specifically names the following positions:

(a) ‘Principal (JA)’, which is a reference to Jacquie Abbiss.

(b) ‘The older male deputy’, which is a reference to David Mattin.

(c) ‘Acting RED (regional director)’, which is a reference to Ken Perris.

(d) ‘The Labour Relations Manager’, which is a reference to John O’Brien.

(e) ‘A long-term teacher assistant’, which is a reference to Tamara Smith.

123   The respondent filed the Employer Response on 15 July 2021. In the Employer Response, the respondent contends that the applicant was dismissed following a disciplinary process. The respondent attaches an allegation letter sent on or about 2 October 2020, a further allegation letter dated 2 November 2020, a letter dated 19 February 2021 with the respondent’s proposed findings and actions which refers to the applicant being provided with a copy of the investigation report at the time the letter was sent to her, and the letter of termination dated 9 June 2021.

124   Whilst the applicant may not have known for certain who would be called to give evidence at the hearing, it should have been readily apparent to the applicant that the parties she named in her unfair dismissal application would potentially be witnesses in the matter, as would the investigators into the allegations of misconduct, namely Ms Amanda Cann and Mr Marc Sorrell, as the evidence of these persons are matters that the applicant has directly placed in contention in her unfair dismissal application.

125   I do not accept that the applicant would not perceive that the persons named in her unfair dismissal application and as the authors of the investigation report, could potentially be called as witnesses in the hearing of her unfair dismissal application.

126   The respondent submits that Brown focussed on witness intimidation and harassment because in Brown the recipient of Mr Brown’s conduct was in fact a witness. The respondent submits that the concern in Brown was the effect of Mr Brown’s conduct and the capacity of that conduct to interfere with the administration of justice. The respondent submits that whether a person is a would be witness, an actual witness, or a person otherwise connected to the proceedings, then the same principles apply. The respondent submits that by analogy, all persons connected to the proceedings, whether a witness, an Associate of the Commission, or counsel in the proceedings, in each and every case, there is the capacity for correspondence of the kind sent by the applicant to interfere with the administration of justice, whether or not the applicant had such intent in sending the correspondence.

127   I agree with the respondent’s submission that a person ‘connected to the proceedings’ such as the respondent’s solicitor in this case, is involved in the administration of justice, such that where, as occurred in this case, the applicant sent the respondent’s solicitor the email correspondence on the terms of the emails sent, that such correspondence has the capacity, tendency or potential to interfere with the administration of justice.

128   Counsel for the applicant submits that the emails that the applicant sent were ‘completely and utterly out of character with the applicant.’ I make no findings in this regard. For the reasons identified, where I find in line with Brown that the emails sent by the applicant had the capacity, tendency or potential to interfere with the administration of justice, I do not consider that I need to make any findings as to whether the emails sent were ‘out of character with the applicant’.

129   Counsel for the applicant submits that the applicant was for a long period, from the time of the investigation into the allegations of misconduct and until the applicant’s dismissal, under ‘extreme pressure’. The applicant also gave evidence that approximately one month after her dismissal, she had a breakdown and was admitted to the Rockingham Mental Hospital. The applicant gave evidence of sending one email to Mr Marc Sorrell whilst in hospital.

130   Counsel for the applicant submits that the emails that the applicant sent need to be considered in the context of her state of mind at the time she sent the emails. Counsel for the applicant submits that the applicant’s emails were sent because the applicant was experiencing ‘frustration’. They were not sent because the applicant was intending to influence a witness.

131   I accept that the applicant may have experienced stressful and difficult times in the period that she was subject to the workplace investigation, was dismissed from her employment, and in the month after her dismissal when she was admitted to a mental health hospital. I accept that some of the emails that the applicant sent were sent within this context. However, I do not accept that all of the emails the applicant sent were sent during a period the applicant was experiencing what counsel for the applicant described as ‘extreme pressure’. In particular, I do not accept the emails the applicant sent to the respondent’s solicitor following the respondent’s filing of the strike out application fall into this category for the reasons that follow.

132   Firstly, in Brown at [100], the Board accepted that Mr Brown’s conduct was to be viewed ‘as opportunistic and unthinking and occurring in circumstances where the appellant was himself under a great deal of pressure having lost his job when, so far as he was concerned (and we accept for present purposes), he had done nothing wrong.’ However, despite the Board’s acceptance of Mr Brown’s ‘state of mind’, this did not absolve Mr Brown from his conduct and did not prevent the Board from finding that his conduct was improper, and therefore his appeal should be dismissed. Likewise, even if the applicant was under extreme pressure over the entire period when she sent the emails the subject to the strike out application, I do not consider that this absolves the applicant from a finding that the emails were improper.

133   Secondly, no medical evidence was submitted by the applicant about her state of mind.

134   In any event, I make no findings that the applicant intended to influence a witness. Rather, I find that the emails the applicant sent, regardless of the applicant’s intentions, had the capacity, tendency or potential to interfere with the administration of justice.

135   It is not an uncommon experience for employees undergoing an investigation into misconduct, especially where they deny the allegations of misconduct as the applicant has stated in her unfair dismissal application and as counsel for the applicant submitted at the hearing, to be feeling uncertain and apprehensive. It is not uncommon for an employee who has been dismissed to be feeling distressed and as counsel for the applicant submits, feeling frustrated by the turn of events. However, I do not accept that the applicant’s state of mind, or frustration, excuses the applicant’s conduct.

136   I find the conduct of the applicant in sending the emails constitutes improper conduct. In particular, the emails the applicant sent to the respondent’s solicitor after she was squarely placed on notice by the respondent filing the strike out application that the respondent considered the emails she had been sending to be inappropriate.

137   Whilst counsel for the applicant submits that the emails that the applicant sent need to be considered in the context of her state of mind at the time they were sent, what is before the Commission are the emails that the respondent has attached to the strike out application. These were sent by the applicant in the period from 19 February 2021 to 23 February 2022. At the hearing, nine emails which the applicant sent to the respondent’s solicitor were tendered. These were sent by the applicant in the period from 25 February to 5 April 2022. After the hearing, and by consent, two further emails were tendered. These were sent by the applicant to the respondent’s solicitor and/or to the Commission on 25 and 26 February 2022.

138   Of the emails tendered, the last email was sent by the applicant on 5 April 2022. It appears from the correspondence from the applicant’s counsel on the file that the applicant obtained legal representation on or around 22 April 2022.

139   The respondent submits that the applicant has demonstrated a willingness to direct insult and illegitimate pressure towards the lawyer acting for the respondent, which is analogous to De Vos. In De Vos, Mr De Vos made an obscene and offensive gesture towards counsel for the respondent during the hearing of Mr De Vos’ unfair dismissal application. The gesture was made after approximately 20 minutes of cross-examination. Mr De Vos apologised and explained that it was his way of dealing with stress to do something in a non-verbal way. The Commission found that Mr De Vos’ conduct was not only personally offensive to the respondent’s counsel, but it was also a contempt of the Commission process, the same process that Mr DeVos was seeking to utilise.

140   In De Vos v Minit Australia Pty Ltd [2003] WAIRC 07735, the Full Bench of the Commission described the cross-examination of Mr De Vos at first instance, on a fair reading of the transcript, as polite, correct and not at all oppressive or belittling; it was not at all exceptionable.

141   In this regard, the applicant’s conduct towards the respondent’s solicitor is analogous to De Vos.

142   The respondent’s solicitor sent an email to the applicant on 25 February 2022 at 2.17 pm, in response to an email from the applicant enclosing an ‘offer to make amends’, which relays the respondent’s instructions to decline the applicant’s offer and noted that the parties were due to file a statement of agreed facts, however, the respondent intended to make an interlocutory application which will overtake those programming orders. The respondent’s solicitor advised that he intends to file the application later that day and will copy in the applicant when he does so. Like the cross-examination in De Vos, this email is polite, correct, and not at all exceptionable. In response to this email, the applicant sent the respondent’s solicitor an email (Exhibit 2) on 25 February 2022 at 10.01 pm, which accuses the respondent’s solicitor of constant smirking, mocking the applicant and gloating, and of appearing to enjoy hurting people in pain.

143   The respondent’s solicitor sent an email to the Commission, copied to the applicant, on 25 February 2022 at 2.41 pm, in effect to file and serve the respondent’s strike out application. Like the cross-examination in De Vos, this email is polite, correct, and not at all exceptionable. In response to this email, the applicant sent the respondent’s solicitor a lengthy email (Exhibit 1) on 25 February 2022 at 9.45 pm, which accuses the respondent’s solicitor of personally behaving in an unconscionable manner, accuses the respondent’s solicitor of unconscionable and unethical behaviour and of lying to the Commission, and asserts that the respondent’s solicitor is impervious to the injustice inflicted by the respondent.

144   On 1 March 2022 at 2.15 pm, the applicant sent an email (Exhibit 3) to the respondent’s solicitor ‘[i]n relation to your application for 1A for an Interlocutory hearing’, which accuses the respondent’s solicitor of ‘bad faith’ in attempting to deny the applicant her day in court.

145   However, unlike in De Vos, the applicant has not apologised nor expressed contrition for her conduct.

146   The applicant appears to justify her emails to the respondent’s solicitor on the basis that there was a divergence of views regarding the facts of the matter, and that she did not have the assistance of legal representation at the time and therefore was unsure of how to communicate with the respondent’s solicitor.

147   It is not an uncommon occurrence for parties in matters before the Commission to be self‑represented. The lack of representation does not and cannot provide a self‑represented party with full immunity for their conduct in the proceedings before the Commission. All parties, whether represented by lawyers, industrial agents, agents or self‑represented are expected to comply with the Commission’s orders and processes. For example, a self‑represented applicant or appellant would not be exempted from actively prosecuting their matter, and a failure of a self-represented applicant or appellant to do so would not prevent an application for their matter to be dismissed for want of prosecution.

148   Likewise, a self-represented party would not be excused from conducting themselves in an inappropriate manner in the proceedings.

149   It is inappropriate for a party to proceedings in this Commission to direct repeated and as conceded by the applicant’s counsel, vindictive or vicious, and vile communications to the other party, including to the other party’s legal representative. It should also be noted that the applicant copied in the Commission to some of these emails. That too was inappropriate.

150   The inappropriateness is in no way lessened by the applicant being self‑represented at the time she sent the emails.

151   The applicant is seeking relief in the Commission. The Commission is bound by s 26(1) of the Act to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities and legal forms and having regard for the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole.

152   I find the applicant’s conduct to be improper and therefore to constitute misconduct in relation to her unfair dismissal application. Therefore, I find that the applicant has not conducted herself in a way that accords with two of the important maxims of equity which apply in this jurisdiction, namely that he or she who seeks equity must do equity, and he or she must also come with clean hands: Civil Service Association.

153   In circumstances where I have found the applicant’s conduct to constitute misconduct in relation to her unfair dismissal application, I do not consider that I need to make any findings regarding the text messages that were sent by the applicant’s partner.

154   I agree with counsel for the applicant that the power to dismiss an unfair dismissal application before the Commission under s 27(1)(a)(iv) of the Act is an exceptional one, and should be exercised sparingly and with extreme caution, given the applicant is entitled to invoke the jurisdiction of the Commission and should not lightly be deprived of its exercise.

155   Counsel for the applicant also submits that the power of the Commission to dismiss the applicant’s unfair dismissal claim under s 27(1)(a)(iv) of the Act should not be used to punish the applicant. Counsel for the applicant submits that dismissing the applicant’s unfair dismissal application now, would be punishing the applicant for something that was completely out of her control, because of her psychological state at the time.

156   The applicant may view a dismissal of her unfair dismissal application at this point as ‘punishment’. However, s 26(1)(a) and (c) of the Act provides that in acting in accordance with equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms, I must also have regard to the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole.

157   In this regard, I have had regard to the applicant’s entitlement to invoke the jurisdiction of the Commission. I have also had regard to the fact that a dismissal of the applicant’s unfair dismissal application, without the matter having been fully heard and all evidence having been led, would deny the applicant her ‘day in court’.

158   I have also had regard to the interests of the other parties, namely the recipients of the applicant’s emails, and also the interests of the community in protecting the Commission’s processes from interference by way of improper conduct by an applicant: Brown at [106].

159   In all the circumstances, I consider it appropriate to dismiss the applicant’s unfair dismissal application in accordance with s 27(1)(a)(iv) of the Act.

Conclusion

160   Section 27(1)(a) of the Act expressly empowers the Commission to dismiss an unfair dismissal application at any stage: Tye at [38].

161   The power to dismiss the applicant’s unfair dismissal application under s 27(1)(a)(iv) of the Act is an exceptional one, should be exercised sparingly and with extreme caution, and that prima facie, the applicant is entitled to invoke completely the Commission’s jurisdiction: Brown at [81] and [83].

162   In this matter, I would be empowered to dismiss the applicant’s unfair dismissal application pursuant to s 27(1)(a)(iv) of the Act, if I was satisfied that ‘for any other reason’ the applicant’s unfair dismissal application should be dismissed.

163   The Commission has accepted that it is entitled to apply the maxims of equity that ‘he who seeks equity must do equity’ and ‘he who seeks equity must come with clean hands.’: Brown at [44] citing Civil Service Association at [56].

164   I am satisfied that the correspondence the applicant sent had the capacity, tendency or potential to interfere with the administration of justice and that the applicant therefore engaged in improper conduct. As such, I am satisfied the applicant engaged in misconduct in relation to her unfair dismissal application. In engaging in misconduct, I am satisfied that the applicant did not comply with the equitable maxims in Civil Service Association. Therefore, having regard to the matters at s 26(1)(a) and (c) of the Act, I am satisfied that the applicant’s unfair dismissal application should be dismissed pursuant to s 27(1)(a)(iv) of the Act.