APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT DATED 15 SEPTEMBER 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00060

DELIVERED : tuesday, 7 February 2023

FILE NO. : PSAB 22 OF 2021

Appellant

AND

Department of Biodiversity, Conservation and Attractions

Respondent

CatchWords : PSAB – Public Service Appeal Board – Misconduct – Negligent and Careless Conduct – Discipline – Workload – Dismissal

Legislation : Industrial Relations Act 1979 (WA)

  Interpretation Act 1984 (WA)

  Public Sector Management Act 1994 (WA)

Result : Appeal dismissed

Representation:

Appellant : Ms H Harper (as agent) With Her Ms J Moore (of counsel)

Respondent : Mr M McIlwaine (of counsel)

Case(s) referred to in reasons:

Aitken v CUB Pty Ltd [2016] FWC 2668

Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224

Blyth v Birmingham Waterworks Co (1856) 11 Ex 784

Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66

Director General, Department of Biodiversity, Conservation and Attractions v Cosentino & Ors [2022] WASC 306

Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525

Milentis v The Honourable Minister for Education (1987) 67 WAIG 1124

Miles v Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266

Re v Inspector of Custodial Services [2013] WAIRC 00830; (2013) 93 WAIG 1776

State Government Insurance Commission v Johnson (1997) 77 WAIG 2169

Thavarasan v The Water Corporation [2006] WAIRC 04089; (2006) 86 WAIG 1434

Titelius v Public Service Appeal Board & Ors [1999] WASCA 19

Titelius v Director General of the Department of Justice [2019] WAIRC 00195; (2019) 99 WAIG 597

X v The Commonwealth [1999] HCA 63; (1999) 200 CLR 177

Reasons for Decision

1         The appellant, Ms Rotherham, was employed by the Director General, Department of Biodiversity, Conservation and Attractions at the Perth Zoo in the role of a Senior Technical Officer (Zoology) colloquially known as a Zookeeper. The appellant was dismissed on 15 September 2021 and has applied to the Public Service Appeal Board (the Board) for a review of her employers’ decision.

2         The appellant says that when all the circumstances are taken into account they do not give rise to a loss of trust and confidence to justify dismissal. Further, that the respondent did not consider all the relevant circumstances surrounding the incident, including any mitigating circumstances, and the decision to terminate was harsh, oppressive, unfair and disproportionate.

3         The appellant seeks reinstatement on the basis that the penalty of termination is disproportionate.

4         The employer opposes the reinstatement of the appellant and says that the decision to dismiss the appellant was proportionate disciplinary action in all of the circumstances. The respondent contends that the appellant’s actions in April 2021 ought not to be viewed in isolation and the appellant’s previous conduct of a similar nature results in a conclusion that the appellant acts without due care. In this workplace the failure to act with due care presents a risk of serious injury to animals, staff and visitors which is real and ubiquitous.

5         The Department’s letter to Ms Rotherham of 6 August 2021 sets out the findings of the investigation into the incident in April 2021 in which the appellant failed to secure the outer gate padlock on the sun bear exhibit. The Department concluded that the appellant:

a. failed to padlock the secondary airlock gate to the sun bear exhibit (AS X13).

b. breached the General Husbandry and Security of Perth Zoo Animals Standard Operating Procedure specifically section 2.2(i).

c. breached sun bear Exhibit Security Standard Operating Procedure, specifically section 2.3(e) and 2.3(f).

d. failed to comply with the Code of Conduct, specifically the sections relating to Personal Behaviour and Health and Safety.

6         The Department asserts that the breach of discipline in April 2021, when considered in the context of previous breaches of discipline of a similar nature, results in a loss of trust and confidence in the appellant and her ability to follow the Standard Operating Procedures and reliably comply with risk management requirements.

Background and Facts

7         The appellant commenced employment with the Zoological Parks Authority (Perth Zoo) on 19 July 1998 as a Level 1.1 ‘Zookeeper’ under the Zoological Gardens Employees Award No. 29 of 1969 and the Zoological Gardens (Operations Employees) Enterprise Bargaining Agreement 1996. In April 2013 the appellant became covered by the Government Officers Salaries, Allowances and Conditions Award 1989 (GOSAC) as a Level 4.3 ‘Senior Technical Officer’.

8         The appellant has made a valued contribution to the Perth Zoo over a long period of employment.

9         On 28 July 2008 the respondent acknowledged 10 years of contribution by the appellant to the Perth Zoo and noted she had ‘proven herself to be a diligent and committed team member’. At that time the respondent also acknowledged the value of the appellant’s participation in a Zookeeper work exchange with Whipsnade Zoo (London Zoological Society) for approximately one year.

10      The appellant also undertook a Zookeeper work exchange with Auckland Zoo for approximately 2 months. The appellant is also acknowledged by the respondent for her dedication after she was selected by the respondent to accompany a sun bear to Wellington Zoo, New Zealand. During the 36 hour journey the appellant was responsible for observing, feeding, medicating and caring for the bear’s overall welfare.

11      On 22 October 2008 the respondent acknowledged the appellant’s ‘excellent work’ acting on numerous occasions as a Level 5 Supervisor Zoology.

12      On 1 August 2012 the respondent acknowledged the appellant’s commitment when she travelled to Ocean Park Zoo, Hong Kong, as an advisor and Perth Zoo representative to assist in designing their red panda breeding program.

13      The appellant was selected through a competitive process from more than 10 applicants, to tenant a house on the Perth Zoo property for one year, followed by a two-year extension. Three years was the maximum term an employee may be selected to lease a Perth Zoo house at the time.

14      On 26 March 2021 the respondent presented the appellant a Long Service Award in recognition of 22 years’ service to Perth Zoo and her commitment to saving wildlife.

Breach of Discipline on 5 April 2021

15      On 5 April 2021 the appellant returned to the workplace following an eight week period of purchased leave and was rostered as supernumerary to the Asian Carnivore rounds (AC rounds) for the first three shifts.

16      Mr Martin Boland, Acting Senior Technical Officer, was acting in the appellant’s substantive role during her absence and was responsible for the Asian Carnivore 1 (Bear, Tiger and Turtles) round.

17      Another Technical Officer, Mr Bailey Rae, was responsible for the Asian Carnivore 2 (Otter, Binturong and Red Panda) round.

18      On her return to work on 5 April 2021, the appellant undertook duties such as catching up on emails, receiving handovers from Mr Boland regarding the AC rounds and other administrative tasks. During discussions on the day, it was agreed between Mr Boland and the appellant she would assist with cleaning the sun bear enclosures.

19      At approximately 1:00pm, the appellant presented at the sun bear enclosures, ASX13 and ASX14, to assist Mr Boland, with cleaning the enclosures. Ms Alex Bateman (fixed term contract Technical Officer) and Mr Isaac Towne (casual Technical Officer) were also present to assist with the task.

20      The male and female sun bears were secured in the ASX14 exhibit and the four staff members cleaned the ASX13 exhibit for approximately 30 minutes.

21      Mr Boland went to the night quarters section to commence movement of the sun bears from ASX14 to ASX13 so that ASX14 could be cleaned.

22      The appellant was the last worker to exit ASX13 and locked the enclosure door behind her.

23      The appellant was standing in the airlock with some cleaning equipment when Mr Boland called her on a two-way radio and said words to the effect, ‘is ASX13 secure, can I move them?’. The appellant responded, ‘yes’.

24      The appellant removed the cleaning equipment from the airlock and closed and bolted the second door behind her. The appellant did not secure the padlock. Rather, the padlock was left hanging on the yellow recognition panel.

25      The appellant accepts that as she was the last person to leave the enclosure and that she had the responsibility to ensure the lock to the airlock gate was secure, which includes the gate being padlocked.

26      The appellant, Ms Bateman and Mr Towne moved into the airlock of ASX14 with the cleaning equipment. The appellant called Mr Boland on the two-way radio and said words to the effect of, ‘is it safe? Can we go through?’ Mr Boland responded, ‘yes’. The appellant unlocked the enclosure and the staff entered.

27      It took approximately 30 minutes for the staff to clean ASX14 and exit the enclosure. The appellant was again the last worker to exit and double-locked the enclosure door and bolted and padlocked the airlock door.

28      At approximately 2:00pm the cleaning of ASX13 and ASX14 was complete.

29      The appellant checked with Mr Boland that there were no further tasks for her, which he confirmed there were none. The appellant left the area and returned to administrative duties in the office.

30      Mr Boland stayed in the sun bear location to facilitate access for the sun bears to be separated into different enclosures before leaving the area.

31      At approximately 5:00pm, Mr Boland returned and gave the sun bears their last feed and locked up the night quarters area.

32      The airlock gate for ASX13 remained closed and bolted overnight, but the padlock was not in place. Rather, the padlock was located on the yellow recognition panel but this was not observed by Mr Boland when he returned to feed and secure the sun bears.

33      On 6 April 2021, at approximately 8:20am, Mr Rob Herkes, Technical Officer, found the airlock door to ASX13 closed and bolted, but the padlock was not in place. Rather, the padlock was located on the yellow recognition panel.

34      Mr Herkes completed and submitted a ‘near miss’ report on the Perth Zoo OSH Reporting System.

35      An investigation into the report was completed on 24 April 2021. The investigation gave the near miss an initial risk rating of high, but a revised risk rating of medium.

The Disciplinary Process

36      By letter dated 3 May 2021, the appellant was notified by Mr Stephen Bradfield, Acting Manager People Services for the respondent, that she was suspected to have committed a breach of discipline by failing to lock the ASX13 airlock gate during the AC1 round. She was suspended on full pay from the date of the letter.

37      The disciplinary allegations were that, by failing to lock the airlock gate, the appellant had contravened Standard Operating Procedure – General Husbandry and Security of Perth Zoo Animals – #20573 and Standard Operating Procedure – Sun Bear Exhibit Security – #256920.

38      It was also alleged that the appellant had breached the Department of Biodiversity, Conservation and Attractions Code of Conduct by failing to act in accordance with the Standard Operating Procedures.

39      On 31 May 2021, the appellant responded to the disciplinary allegations through her Community and Public Sector Union, Civil Service Association (CSA) representative.

40      On 6 August 2021, the respondent notified the appellant that the investigation had determined that the allegations were substantiated and the proposed penalty for the breaches of discipline was dismissal. The respondent also provided a copy of the Report of a Disciplinary Investigation.

41      The Investigation Report dated 3 August 2021 was attached to the letter and recommended that Ms Rotherham’s employment be terminated.

42      On 1 September 2021, Ms Rotherham’s CSA representative responded on behalf of Ms Rotherham to the allegations of misconduct. Through her representative, the appellant disputed the proposed dismissal on the basis that it was out of proportion to the substantiated conduct. She also disputed the proposed dismissal on the basis that it was unfair taking into consideration her length of service, her contrition and acceptance of responsibility, and the extenuating circumstances of the appellant suffering work-related stress, anxiety and burn out.

43      On 14 September 2021 the Department wrote to Ms Rotherham and advised that her response had been considered and notified that her employment was terminated effective on the same day. Ms Rotherham received this letter on 15 September 2021. The appellant was provided five weeks’ pay in lieu of notice.

Previous Incidents

44      The respondent asserts that the appellant’s failure to lock the sun bear exhibit is not a one-off action. The appellant agrees that she has made similar mistakes.

45      On 12 August 2014, after servicing the sun bear exhibit ASX14, the appellant left both doors to the exhibit open resulting in the escape of the female sun bear from the exhibit. As a result of the escape, the Zoo had to enact emergency procedures by activating a team of trained staff to recapture the sun bear. As a result of the above incident, the appellant received a written warning and was advised that further similar mistakes may result in disciplinary action including dismissal.

46      On 15 April 2015 the appellant failed to secure a padlock to the door of the tiger night quarter yard (ASH05) before leaving the area. The appellant self-reported the omission to secure the padlock. As a result of the above incident the appellant received a written warning and was advised that further similar mistakes may result in disciplinary action including dismissal. Following this incident a yellow tag system for the outer locks was implemented.

47      On 4 July 2020 the appellant failed to appropriately secure the otter enclosure ASX09, resulting in an otter pup escaping the service area of the Sumatran Tiger enclosure. As a result of the above incident the appellant received a formal written reprimand and was advised that further similar mistakes may result in disciplinary action including dismissal.

Questions to be Answered

48      Both parties agree that the appellant misconducted herself in failing to lock the outer lock of the sun bear enclosure and that the Board need not make findings concerning this fact.

49      Therefore, the first question the Board must answer is whether the decision to dismiss the appellant was harsh or unjust?

50      If the answer to the first question is yes, the second question is whether it is impracticable to reinstate the appellant?

The Board’s Jurisdiction and Nature of the Appeal

51      The relevant provision of Part IIA – Division 2 of the Industrial Relations Act 1979 (WA) (the IR Act) is s 80I which is in the following terms:

80I. Board's jurisdiction

(1) Subject to the Public Sector Management Act 1994 section 52, the Health Services Act 2016 section 118 and subsection (3) of this section, a Board has jurisdiction to hear and determine —

(a) an appeal by any public service officer against any decision of an employing authority in relation to an interpretation of any provision of the Public Sector Management Act 1994, and any provision of the regulations made under that Act, concerning the conditions of service (other than salaries and allowances) of public service officers;

(b) an appeal by a government officer under the Public Sector Management Act 1994 section 78 against a decision or finding referred to in subsection (1)(b) of that section;

(c) an appeal by a government officer under the Health Services Act 2016 section 172 against a decision or finding referred to in subsection (1) of that section;

(d) an appeal, other than an appeal under the Public Sector Management Act 1994 section 78(1) or the Health Services Act 2016 section 172(2), by a government officer that the government officer be dismissed,

and to adjust all such matters as are referred to in paragraphs (a), (b), (c) and (d).

[(2) deleted]

(3) A Board does not have jurisdiction to hear and determine an appeal by a government officer from a decision made under regulations referred to in the Public Sector Management Act 1994 section 94 or 95A.

52      The appeal involves the review of the respondent's decision de novo. As such, the Board is to consider the appeal based on the evidence before it, not merely on the basis of whether the respondent made the right decision available to it at the time. The Board has greater scope to substitute its own view for that of the respondent. In the case of dismissal for misconduct, it is for the employer to establish on the evidence that the misconduct occurred: Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266; Thavarasan v The Water Corporation [2006] WAIRC 04089; (2006) 86 WAIG 1434.

53      The Department's decision is not to be totally disregarded by the Board hearing and determining the matter. That the appeal involves a hearing de novo does not necessarily mean that the Board must re-hear every aspect of the allegations afresh. What precisely the Board must consider in the proceedings ultimately depends upon the nature of the challenge to the decision under review: Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525 at [26], [29].

54      An appeal to the Board is a hearing de novo, however the respondent's decision is not to be totally disregarded: Milentis v The Honourable Minister for Education (1987) 67 WAIG 1124. To determine whether a dismissal was unfair the Board must consider whether the respondent exercised its right to terminate the applicant in such a manner as to amount to an abuse of that right: Miles v Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385.

55      It is well established that the Board’s power, under s 80I(1) of the IR Act is to ‘adjust’ a decision to dismiss a government officer, which means to ‘reverse’ the decision resulting in the person being in the same position that they were in prior to the decision being made: State Government Insurance Commission v Johnson (1997) 77 WAIG 2169 at 2170 cited in Re v Inspector of Custodial Services [2013] WAIRC 00830; (2013) 93 WAIG 1776 at [21] Also considered recently in General, Department of Biodiversity, Conservation and Attractions v Cosentino & Ors [2022] WASC 306.

56      The Board’s jurisdiction does not extend to, for example, adjusting the decision of the respondent and then ordering the respondent to re-employee the appellant in a different position, or to the same position as it was designed years prior to the dismissal: Re v Inspector of Custodial Services.

57      Harvey v Commissioner for Corrections, Department of Corrective Services at [30]

In cases such as this where the primary finding of fact, leading to breaches of discipline are in dispute, the circumstances enable the Appeal Board to decide for itself, based on all the evidence, whether the relevant misconduct took place. There may be other cases for example, where there is no challenge to the factual findings, but there is a challenge to the severity of the penalty imposed. In this situation, a hearing before the Appeal Board will be much more confined. There may be other situations where discrete issues are raised, such as an allegation of a denial of natural justice in the procedure followed leading to disciplinary decision, rather than a challenge to the primary facts. Both situations will obviously not require the matter to be reheard over again in its entirely (See too: CSA v Director General, Department of Family and Children’s Services [2003] WAIRC 07213; (2003) 83 WAIG 390). (emphasis added).

58      In Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224, 229 the Full Bench of the South Australian Commission stated that the following factors were relevant when dealing with a dismissal based upon alleged misconduct. The employer will satisfy the evidentiary onus on it to demonstrate that before dismissing the employee it conducted a full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances. The employer must also give the employee every reasonable opportunity and sufficient time to answer all allegations. If the employer then believes and has reasonable grounds for deciding that the employee was guilty of the misconduct alleged and after taking into account any mitigating circumstances either associated with the misconduct or the employee’s work record, it may decide whether such misconduct justifies dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable.

Employees Duty to Exercise Reasonable Care and Skill - Principles

59      The key facts in this appeal are not in dispute. Ms Rotherham admits she had responsibility for ensuring the outer gate was secured including locking the padlock and did not do so. Both parties agree this omission is an act of misconduct by Ms Rotherham.

60      There is an implied term in every contract of employment that the employee possesses and exercises reasonable care and skill in carrying out the employment: X v The Commonwealth [1999] HCA 63; (1999) 200 CLR 177 at [31] per McHugh J.

61      The Public Sector Management Act 1994 (WA) (the PSM Act) provides that a negligent or careless performance of a function is a breach of discipline:

80. Breaches of discipline, defined

An employee who — 

(a) disobeys or disregards a lawful order; or

(b) contravenes — 

(i) any provision of this Act applicable to that employee; or

(ii) any public sector standard or code of ethics;

or

(c) commits an act of misconduct; or

(d) is negligent or careless in the performance of his or her functions; or

(e) commits an act of victimisation within the meaning of section 15 of the Public Interest Disclosure Act 2003,

commits a breach of discipline.

[Section 80 amended: No. 29 of 2003]

62      The PSM Act defines ‘function’ in s 3:

function has the meaning given by section 5 of the Interpretation Act 1984;

63      Section 5 of the Interpretation Act 1984 (WA) provides the following definitions:

function includes powers, duties, responsibilities, authorities, and jurisdictions;

…

perform, in relation to functions, includes the exercise of a power, responsibility, authority or jurisdiction;

64      Accordingly, the performance of a function includes the execution of duties and the exercise of responsibility.

65      The meaning of ‘negligent’ and ‘careless’ was considered by the Board chaired by Senior Commissioner Kenner (as he then was) in Titelius v Director General of the Department of Justice [2019] WAIRC 00195; (2019) 99 WAIG 597 for the purposes of s 80(d) of the PSM Act, the words ‘negligent’ and ‘careless’ bear their ordinary and natural meaning. The Macquarie Dictionary defines ‘negligent’ as ‘guilty of or characterised by neglect, as of duty’ and ‘careless’ as ‘not paying enough attention to what one does’, ‘not exact or thorough’ and ‘done or said heedlessly or negligently; unconsidered’.

66      ‘Negligent’ and ‘careless’ comprehends an action or behaviour ‘which a reasonable [person] would not do’: Blyth v Birmingham Waterworks Co (1856) 11 Ex 784 cited by Malcolm CJ in Titelius v Public Service Appeal Board & Ors [1999] WASCA 19. That is, the objectively reasonable standard of conduct is judged against a reasonable person in the position of the relevant employee.

67      In this matter the Board considers the appellant’s actions are clearly careless and negligent when assessed in reference to a reasonable person in the position of the appellant. That is, the appellant did not pay sufficient attention to what they were doing. The appellant’s actions result in a breach of discipline consistent with s 80(d) of the PSM Act.

Delayed Action by Employer

68      It is not contested that the appellant was not stood down immediately following the discovery that she had neglected to secure the outer lock. A near miss incident report was submitted the following day. The appellant was permitted to continue on rounds and retain keys for 28 days following the submission of the near miss incident report and during this time the evidence is that the appellant continued to train others.

69      The appellant asserts that the failure to take any action diminishes the respondent’s claim of concerns for the risk posed by the appellant’s continued employment. The appellant contends that there were a number of options available to the respondent to address their concerns for any risk the appellant may pose by remaining in the role. These options included being moved from a Code 1 round and assigning others to supervise or check the locking of enclosures by the appellant.

70      The appellant met with Dr Liptovzsky on or around 14 April 2021. The purpose of meeting was to discuss issues raised by the appellant in her earlier email of 26 February 2021, sent prior to her return to work. At the beginning of this meeting, the appellant raised not having locked the sun bear enclosure. The evidence is that Dr Liptovszky advised the appellant that this omission was not serious and that at the most it would result in her being counselled or reprimanded.

71      The respondent submits that during the 28 days in which the appellant remained in the role of Senior Technical Officer following the incident, it was gathering information to inform a view on the need for a disciplinary investigation. Once it formed the view that an investigation was required it then suspended the appellant from the workplace while it investigated. The respondent says this is a preferable course of action to one that would require all employees to be immediately suspended or stood down even in circumstances where it may arrive at a view that a disciplinary investigation is not warranted.

72      The respondent contends that the failure to pad lock the outer secure gate was a serious error which presents a real risk of harm to those who attend the zoo. The Board is of the view that the respondent cannot rely on this factor and not act consistent with their belief that the actions of the appellant present a risk so serious that it warrants the ultimate sanction.

73      However, the Board must consider the facts of this matter not merely on the basis of whether the respondent made the right decision available to it at the time. The Board has greater scope to substitute its own view for that of the respondent and must decide whether disciplinary action is appropriate in the circumstances put before it.

74      In circumstances where this was the only occasion in which the appellant had misconducted herself in this way, the Board would be inclined to consider the respondent’s actions were not proportionate. In this appeal, however, the respondent asserts that the Board ought to consider that this incident was not the only occasion on which the appellant made similar mistakes.

Were the Appellant’s Mistakes a Pattern of Conduct?

75      The respondent contends the appellant has made similar errors concerning failures to secure enclosures on three previous occasions. The respondent submits that the Board ought to consider the sanction imposed in circumstances in which the misconduct has been repeated and evince a pattern of conduct and find that it is not unfair to terminate the employment of the appellant.

76      The appellant contends that the failure to secure the lock and the previous incidents cited by the respondent do not display a pattern of behaviour of not complying with Standard Operating Procedure because these mistakes have been intermittent and irregular over a 22-year period. Ms Rotherham submits that her propensity for human error is no more than one would expect from others in any normal circumstance. The appellant submits that there is a toleration for mistakes.

77      The respondent submits that an employer is not required to perpetually tolerate an employee making the same mistake, especially in circumstances where the employee has been warned on three prior occasions about similar mistakes and where the mistake can result in serious harm to staff, visitors and animals.

78      The respondent’s evidence was that the risk of serious harm and or death was real and not theoretical. The safety of staff, visitors and animals was paramount. The task of ensuring an exhibit was properly secured before leaving the exhibit was one of the most fundamental aspects of a Zookeeper’s job that was taught on day one of their training. The appellant agrees that the work of a Zookeeper can involve significant risks and that at times engagement with dangerous animals is required.

79      The respondent contends that it can no longer trust the appellant to reliably perform her duties nor have confidence that she will not fail to comply with the Standard Operating Procedure. Consequently, the respondent submits that it is no longer viable to continue the appellant’s employment.

80      The appellant asserts that it is significant that the investigation report completed on 24 April 2021 gave an initial rating of high, but this was revised to a risk rating of medium. The appellant does not make any submissions for their belief that the change in rating is significant. The Board considers the change in rating to convey that the consequences of the mistake were not the most extreme and therefore, if this incident was the only mistake by the appellant the Board would view the decision to dismiss as disproportionate.

81      A dismissal is not unfair when an employee consistently demonstrates, through a pattern of conduct, they could not or would not comply with reasonable rules or directions: Aitken v CUB Pty Ltd [2016] FWC 2668 at [127].

82      The Perth Zoo is an unusual environment, what is regular and habitual needs to be understood in the context of the workplace environment. The evidence is that the appellant omitted to lock exhibits on four occasions over a period of 22 years. On 12 August 2014, 15 April 2015, 4 July 2020 and 5 April 2021. On the three previous occasions, Ms Rotherham was notified that should performance and/or conduct standards not be met following this warning, further discipline action could be taken and advised that a further error of the same nature may result in termination of employment.

83      The appellant submits that the mistakes concerning securing enclosures over a period of twenty-two years do not constitute a pattern of behaviour as these mistakes have been intermittent and irregular. The appellant argues that her propensity for human error is no more than what one would expect from others in any normal circumstance.

84      The respondent’s evidence is that securing of enclosures is a fundamental element of the role and must be performed at a consistently high standard and that the failure to secure enclosures is not a common occurrence. The respondent’s evidence is that the appellant’s repeated failures to secure enclosures are unusually high in comparison to other employees.

85      It appears to the Board that the appellant has not learnt from previous mistakes and is concerned that they would act in a similar way in the future.

86      The Board finds that the securing of enclosures is a fundamental element of the role and is at the heart of a Zookeepers work. The Board’s considerations are not confined to that of proportionality but also include confidence in the employee’s ability to comply with and perform the requirements of the role in circumstances where the appellant has repeatedly demonstrated errors which strike at the heart of the contractual requirements of the job. The Board is guided by the principle articulated in Blyth Chemicals Ltd v Bushnell [1933] HCA 8;(1933) 49 CLR 66 at 81 that conduct which strikes at the heart of the contract is serious misconduct which may justify dismissal.

Does an Unreasonable Workload Mitigate Against Finding Employee Fault?

87      The appellant submits that the Board ought to consider the circumstances in which the appellant made the two most recent errors and conclude that there were mitigating circumstances.

88      The appellant asserts that her workload was excessive and that this caused anxiety and stress and resulted in the appellant making arrangements to take a period of leave in February and March 2021. The appellant says she was concerned that she would make a mistake and she had communicated this concern to her employer.

89      On 5 April 2021, the appellant returned to work after an eight-week period of purchased leave taken to assist her to address her workplace stress and anxiety concerns.

90      The appellant asserts that she had been suffering burnout during recent years. In March 2020 the appellant identified that she experienced increasing levels of anxiety and sought assistance from a psychologist. Consistent with this advice the appellant proposed modifications to her work routine to her line management.

91      The appellant contends that the respondent did not take any meaningful action to address her concerns. On 4 July 2020, the appellant made a mistake and an otter pup escaped its enclosure. Consequentially the appellant’s level of stress and anxiety elevated and she requested three months leave which the respondent granted.

92      On 25 September 2020 the appellant emailed her line managers, Mr Daniel Noble and Mr John Lemon, advising that she was apprehensive to return to the workplace of a similar situation to that when she had taken leave. The appellant requested that she be assigned one round rather than the two Asian/Carnivore rounds she had previously been assigned or that the display otters and red necked sliders be removed from a round. The appellant requested that a meeting be set up to discuss this matter. On the same day, Mr Noble replied by email that he would roster the appellant in the office for the first couple of days at least so the appellant could catch up and familiarise herself with the changes that had been made on the section. Mr Noble further advised that changes to the work arrangements had occurred especially in relation to the routine, noting that it was one of the rounds on the section that allowed for a decent amount of time with the animals. The appellant was advised that it was not possible to remove animals from the round, however, he would be happy to chat further about this once the appellant was back and had seen the changes made to date.

93      On 25 September 2020 the appellant replied to Mr Noble by email reiterating that she did not wish to be in charge of two rounds and that this matter was something that needed to be worked on as a section.

94      On 28 September 2020 the appellant returned to the workplace. The appellant’s evidence is that her workload remained the same, with the same number of animals or exhibits and the round she was assigned had the same intensity. The appellant says that despite seeking specific adjustments these have not been accommodated by the respondent.

95      During the three months that followed her return, the appellant experienced increasing levels of workload stress and anxiety and initiated arrangements to facilitate access to purchased leave. The appellant says she believed she needed to take action herself because her workload concerns had not been addressed by the respondent.

96      The appellant took purchased leave during February and March 2021.

97      On 26 February 2021 the appellant emailed the Director of Life Sciences, Dr Liptovszky, expressing concerns that the matters she has previously raised are not being heard and that she fears there will be no change to her workload. The appellant requested a meeting to discuss solutions and options.

98      The respondent contends that it assessed the workload of the appellant to ascertain if the workload was reasonable and implemented strategies to address the appellant’s concerns.

99      Mr Lemon’s evidence is that he discussed the option of the appellant reducing her hours of work and working part-time. The appellant agrees that she was offered a permanent reduction to part-time employment but declined to do so because she believed a reduction in hours would not address the cause of the workload concerns and may even exacerbate the pressure. The Board is of the view that the appellant’s decision to decline to reduce her hours of work ought not count against her and in the absence of an explanation of how a reduction in hours would reduce the workload, the Board considers the appellant’s concerns for the effectiveness of this strategy would be genuine.

100   Dr Liptovszky discussed a reduction of classification with the appellant. Ms Rotherham agrees she was offered a permanent demotion to a Level 2 Technical Officer position and declined to do so because she says that objectively this is not a fair and reasonable way to address workload concerns. The Board is of the view that the appellant’s decision to decline to reduce her classification is not a decision that counts against her.

101   Mr Lemon says that as a result of the appellant’s workload concerns an additional Zookeeper was allocated to the Asian/Carnivore round. The appellant contends that an additional position was added to the Carnivore/Ungulate section and not specifically the Asian/Carnivore rounds. There are five rounds within the Carnivore/Ungulate section and the additional position works across all five rounds. This was a mechanism to add resources to the whole section, not to specifically address Ms Rotherham’s workload concerns.

102   The appellant says that strategies the respondent implemented did not directly nor significantly assist in resolving her concerns as follows:

a. Roster changes implemented as a mechanism to reduce COVID-19 risks, and not as a mechanism to address Ms Rotherham’s workload concerns. The roster changes did relieve a portion of Ms Rotherham’s workload stress, but not significantly. A return to the non-COVID roster would eliminate any gains.

b. The Zoo made efforts to recruit to the Supervisor vacancy, however Ms Rotherham is unable to identify how this assisted to alleviate her workload concerns. The Supervisor position was rarely vacant as someone was acting in the role for the majority of the time.

c. Ms Rotherham was encouraged to access the Employee Assistance Program (EAP), which she did, but this only assisted her to manage her stress and anxiety and did not address the cause of the workload concerns. She testified she had discussions with a Supervisor, Ms Holly Thompson, about seeking the assistance of the EAP to undertake a workplace assessment for Ms Rotherham but this assessment did not eventuate.

d. Ms Rotherham was also given access to leave. She was granted three months of leave immediately after the otter escape on 4 July 2020 which exhausted her existing leave accruals. She was then granted eight-weeks’ purchased leave to assist her ‘mental health’ immediately prior to the 5 April 2021 event. Neither block of leave assisted Ms Rotherham to address the cause of her workload concerns, but the leave did assist Ms Rotherham’s health by giving her reprieve from the cause of her anxiety and stress.

103   When disciplined for a previous incident the appellant was given a written warning and it contained the following ‘[s]hould you have any concerns about your ability to manage your workload you must immediately discuss these concerns with your supervisor and your curator in order for them to provide appropriate advice and support’. Mr Lemon agrees that Ms Rotherham raised issues of workload consistently, politely, appropriately and constructively and agrees that Ms Rotherham repeatedly stated that she was fearful of making a mistake because her workload was too high, Mr Lemon accepted this but said this did not occur at every meeting. Mr Lemon spoke at length with Ms Rotherham many times with the respondent’s Human Resources Manager. Mr Lemon accepts that Ms Rotherham was stressed. Mr Lemon agrees he knew she was stressed, fearful of making a mistake and that she was concerned for her workload before the otter pup incident.

104   Mr Lemon’s evidence is that they did their due diligence by reviewing the workload by speaking with other Zookeepers who also undertook the round allocated to Ms Rotherham and they said they were ok with the workload ‘so we did due diligence to see if others were struggling with the workload’. Mr Lemon agrees that there was not a ‘forensic assessment’ described as an audit or study into Ms Rotherham’s workload.

105   Mr Lemon gave evidence that after the appellant first raised concerns with him regarding her workload, he gathered the views of other Zookeepers on the same round and concluded that the other Zookeepers did not have an issue with the workload on the Asian/Carnivore round.

106   The appellant explains there is a connection between her mental state on the day and her having made the error of failing to secure the padlock on the outer gate of the enclosure. The appellant says she concluded the workload concerns that had resulted in her taking leave had not been addressed. The appellant says that she was not in the present moment because of her belief that despite having taken steps to address the situation herself there had been no change at the workplace and she was coming back to the same situation that had caused her great anxiety.

107   The appellant submits that this situation mitigates against concluding that the ultimate penalty of termination of her employment ought to be the penalty.

108   There is no prescription as to what criteria a decision maker is to apply in forming a decision on the appropriate penalty for a breach of discipline. There is no list of factors which might justify or mitigate a loss of confidence.

109   The respondent contends that the appellant was offered support and assistance when the appellant raised her concerns about workloads. The form of support cited by the respondent was the offer of a change in working arrangements for the appellant which resulted in either a reduction in her classification or a reduction in her hours of work. The Board considers that these two options had negative consequences for the appellant and her rejection of them ought not be seen as unfavourable to her.

110   It is unclear to the Board how the workload concerns impacted the conduct of the role by the appellant on the relevant date of the 2021 incident. There is little evidence concerning the nature of the workload concerns and how the appellant’s workload had developed over a period of time, nor any comparison with her workload over her period of employment and that of other Zookeepers. The respondent’s evidence is that enquires of other Zookeepers whom undertook the same round as that of the appellant did not indicate any concerns for the workload associated with that round. This evidence was not contested by the appellant.

111   Prior to returning to the workplace the appellant expressed concern for how she would cope with returning to the same situation she had left. The appellant was advised that she would initially be engaged in administrative tasks to reintegrate into the workplace and assured that some changes had been made and that there would be an opportunity to evaluate these changes and the impact on workloads.

112   The respondent’s evidence is that its engagement of an additional Zookeeper on the Asian/Carnivore round and changes to the roster are initiatives that would have been beneficial in addressing workload concerns. The appellant contends that these initiatives did not have a beneficial impact on her workload. However, it is not clear to the Board the reasons the appellant holds this belief, particularly in circumstances where the appellant had not worked for a period adequate to assess impacts.

113   The Board has considered the respondent’s response to the appellant’s concerns for her workload and expresses the view that suggestions of reductions in classifications or reductions in hours were not appropriate and lacked empathy. In the Board’s view the respondent ought to have conducted a more thorough assessment and evaluation of the situation when the appellant first raised her concerns. The Board accepts the respondent’s evidence that there had been changes made to the staffing levels through the engagement of an additional Zookeeper and changes to the roster. The Board finds that the appellant’s statements concerning the changes to be confused and lacking in clarity.

114   The appellant says that her oversight in not properly securing the enclosure is a result of her concerns and that she had formed the view that adequate changes had not been made to the round. In this state of mind, she made the error. It is not clear to the Board the reasons for the appellant’s misgivings when she had had such a limited period of time to assess the changes made prior to the mistake in neglecting to properly secure the enclosure.

115   The appellant says that she had concerns that she would make an error because she anticipated she would be returning to the same situation she left. The appellant also explains the error as an aberration because the day was unusual and not routine.

116   The respondent contends that in these circumstances it has lost trust and confidence in the appellant’s capacity to follow the standard operating instructions and considers the appellant cannot be relied upon to perform a key element of the role of a Zookeeper which is ensuring enclosures are properly secured.

117   The Board considers the responsibility of ensuring enclosures are properly secured to be a fundamental element of the role of a Zookeeper. The evidence is that in a series of different circumstances the appellant did not execute this responsibility with adequate care and attention. The Board accepts that there ought to be a degree of tolerance provided to employees who make genuine mistakes. However, on weighing the appellant’s repeated errors, along with considerations of the evidence of similar mistakes by other employees, and the various circumstances in which the appellant made these mistakes, the Board does accept that the conclusion that there is a loss of confidence in the appellant’s abilities is not unfair. It is difficult for the Board to be confident that the appellant would be able to conduct her role and not make errors in the circumstance of a routine situation or an unusual situation.

118   In her application filed on 5 October 2021 the appellant seeks that the Board adjust the respondent’s decision by reversing it, such that she be reinstated to her former position.

119   Under cross examination Ms Rotherham says that she wants to return to her position under different circumstances, being that her responsibility is reduced to one round and not the two rounds she was previously assigned. The appellant states that changes ought to be implemented and suggested two people check locks, or one person does one lock and the other person does the other lock. The appellant says she will say no to being allocated two rounds and will not take on extra work so that she will be mindful at all times.

120   The respondent opposes reinstatement of the appellant on the basis that a medical report prepared for workers compensation purposes indicates that the appellant has decided to take a different career path. The respondent asserts this demonstrates that she does not wish to return to her previous position. The Board does not accept that the medical report is sufficient to conclude that the appellant no longer wishes to return to her job. The Board accepts the appellant’s evidence that she does wish to return to her role as a Zookeeper and she seeks specific adjustments to the work arrangements. The Board considers the adjustments sought are beyond the scope of the powers granted to the Board to make.

121   For these reasons the Board will dismiss the appeal.