WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2016 WAIRC 00866

DELIVERED : Friday, 4 November 2016

FILE NO. : U 153 OF 2015

Applicant

AND

Forrest Personnel Inc

Respondent

CatchWords : Industrial Law (WA) – Termination of employment – Harsh, oppressive and unfair dismissal – Principles applied – Redundancy – Whether the applicant was consulted – No consultation – Applicant harshly and unfairly dismissed – Compensation awarded – Application upheld – Declaration and order made

Legislation : Industrial Relations Act 1979 (WA) s 23A, s 29(1)(b)(i)     

Result : Application upheld

Representation:

Applicant : Mr K Trainer (as agent)

Respondent : Ms R Lee (of counsel)

Cases referred to in reasons:

AWI Administration Services Pty Ltd v Birnie (2001) 81 WAIG 2849

Begg v Clay & Mineral Sales Pty Ltd [1997] FCA 658

Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635

Bogunovich v Bayside Western Australia Pty Ltd (1999) 79 WAIG 8

Bonifassi v E.J Fillaudeau and J.J Maindok t/a Fillaudeau’s [2016] WAIRC 00819

Capewell v Cadbury Schweppes Australia Ltd (1997) 78 WAIG 299

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd [2010] FCA 591; (2010) 198 IR 382

The Federated Clerks’ Union of Australia v The Victorian Employers’ Federation [1984] HCA 53; (1984) 154 CLR 472

Garbett v Midland Brick Company Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 893

Margio v Fremantle Arts Centre Press (1990) 70 WAIG 2559

Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111

Re Loty and Holloway v Australian Workers’ Union (1971) AR (NSW) 95

Rollo v Minister of Town and Country Planning [1948] 1 All ER 13

Sealanes (1985) Pty Ltd v Foley [2006] WAIRC 04110; (2006) 86 WAIG 1239

Shire of Esperance v Mouritz (1991) 71 WAIG 891

Sinfield v London Transport Executive [1970] 1 Ch 550

TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172

The Undercliffe Nursing Home v the Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Reasons for Decision

Background

1         Ms Palmer was employed as the Chief Operating Officer (COO) for Forrest Personnel Inc (Forrest Personnel) in March 2013.  When the Chief Executive Officer (CEO) resigned in October 2014, Ms Palmer was asked to act as CEO.  This acting arrangement was extended several times before Forrest Personnel began its recruitment process for the CEO position. 

2         Ms Palmer was not successful in her application and Mr Sullivan was appointed CEO of the organisation.  Three weeks later, Mr Sullivan restructured Forrest Personnel and made Ms Palmer’s COO position redundant.

3         Ms Palmer’s claim is made under s 29(1)(b)(i) of the Industrial Relations Act 1979 (WA) (Act).  She says that she was unfairly dismissed and her position was not made redundant.  Instead her position was renamed General Manager Services and its salary was reduced.  Ms Palmer says Forrest Personnel did not consult her and it did not offer her any alternative positions.  She says she would have accepted an alternative position.

4         Forrest Personnel says it did not unfairly dismiss Ms Palmer.  It made Ms Palmer’s COO position redundant after consulting with her and Ms Palmer was not interested in any alternative positions.

5         Ms Palmer seeks the full amount of compensation that the Commission can award, being six months’ remuneration.  Forrest Personnel says no compensation should be awarded to Ms Palmer.

Question to be decided

6         I must decide whether or not Forrest Personnel unfairly dismissed Ms Palmer.

The law

7         The test in a claim of harsh, oppressive or unfair dismissal is whether the employer has exercised its legal right to dismiss so harshly or oppressively against the employee as to amount to an abuse of that right: The Undercliffe Nursing Home v the Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385, 386 (Brinsden J).  It involves considering whether the employee got a fair go all round:  Re Loty and Holloway v Australian Workers’ Union (1971) AR (NSW) 95, 99 (Sheldon J).  The test is objective and the onus of proof is on the employee.

8         A failure to have a fair process can lead to a finding that the dismissal was harsh, oppressive or unfair:  Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635 but a lack of procedural fairness may not always have this result:  Shire of Esperance v Mouritz (1991) 71 WAIG 891, 899 (Nicholson J).  In Garbett v Midland Brick Company Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 893 EM Heenan J notes that the distinction between substantive and procedural issues can be useful but the ‘decision for the Commission, or a court in any particular case, is simply whether the individual termination of employment was harsh, oppressive or unfair and that test must always be applied without any gloss’ [72].

9         The Full Bench in Margio v Fremantle Arts Centre Press (1990) 70 WAIG 2559 held that ‘[a]n employee should, so far as is practicable, not be dismissed without warning as to the possibility of dismissal’ (2561).

Summary of timeline

10      Ms Palmer was told on Monday 20 July 2015 that she had not been selected to be Forrest Personnel’s CEO and the new CEO would start the next day. 

11      Ms Palmer met Mr Sullivan just before a meeting of the Board of Directors of Forrest Personnel (Board) on Tuesday 21 July 2015.  They did not meet or speak again face‑to‑face until Friday 24 July 2015, although they exchanged emails on the night of Wednesday 22 July 2015. 

12      Ms Palmer and Mr Sullivan met on Monday 27 July 2015. 

13      Ms Palmer and Mr Sullivan met again on Thursday 30 July 2015, and later that night Mr Sullivan sent Ms Palmer an email. 

14      The parties present very different versions about what was discussed during their meetings. 

15      Ms Palmer and Mr Sullivan had no contact from Friday 31 July until Friday 7 August 2015, when Ms Palmer sent Mr Sullivan an email asking if they could meet to discuss the work she had been doing. 

16      They met on Monday morning, 10 August 2015.  Ms Palmer’s employment was terminated at this meeting (termination meeting). 

Credibility

17      Ms Palmer and Forrest Personnel present very different versions of several important aspects of this case, including what occurred at their meetings.  I make various findings about witness credibility which resolve this conflict.

Mr Rawet

18      Mr Rawet is Ms Palmer’s partner.  His evidence was measured, frank and forthcoming.  I find Mr Rawet to be a credible witness.

Ms Crittall

19      Ms Crittall was employed at Forrest Personnel at the time Ms Palmer was recruited and dismissed.  She has held several positions with Forrest Personnel, including Human Resources Manager and General Manager People and Resources.

20      Generally, Ms Crittall presented as a credible witness.  She equivocated in relation to one aspect of her evidence and I will say more about that later.

Ms Palmer

21      Ms Palmer gave evidence for a day and a half.  Her evidence was thoughtfully given, clear, forthcoming and consistent.  Ms Palmer answered the questions put to her without hesitation.  Her evidence was measured, calm, precise and nuanced.  It rang true to me. 

22      Ms Palmer impressed me as a truthful person to whom professionalism and integrity is very important.  I find Ms Palmer to be a credible witness. 

23      Forrest Personnel says I should reject Ms Palmer’s evidence because she put the previous CEO’s electronic signature to a letter that she drafted for the first version of the organisation’s Annual Report 2013/2014 (annual report).  I disagree.

24      I accept the evidence of Ms Palmer and Ms Crittall about the circumstances that led to this incident.  I find Ms Palmer added the previous CEO’s signature to a letter she drafted because it related to a period during which he had been CEO.  He had left the organisation in unhappy circumstances and he had not prepared the annual report, leaving Ms Crittall and Ms Palmer with just a few days to prepare and finalise the annual report.  All copies of that first version of Forrest Personnel’s annual report, which included the letter drafted by Ms Palmer, were recalled and destroyed.

25      I find Ms Palmer’s actions understandable in the circumstances.  I am not troubled by this incident and it does not affect my view of Ms Palmer’s credibility. 

26      Forrest Personnel says I should doubt Ms Palmer’s credibility because she indicated in an email that she intended to sign a deed when she did not intend to sign it.  It says Ms Palmer’s actions are, at best, manipulative because she did not sign the deed but accepted payment beyond what she was entitled to in accordance with the terms of the deed.  Further, Forrest Personnel says Ms Palmer’s offer to settle for $25,000 in exchange for signing the deed affects her credibility.

27      As I discuss from [318] to [338], I find Ms Palmer’s termination package was never subject to a deed.  She accepted payment in accordance with what she was offered at the termination meeting.  It was reasonable for Ms Palmer to want to see the sums involved in her termination package. 

28      It was open to Ms Palmer to offer to forego bringing a claim in exchange for signing the deed.  Her actions do not affect my view of her credibility.

29      Forrest Personnel says Ms Palmer’s reliance on and reference to the previous CEO’s promise that she would be his successor, in circumstances where Ms Palmer knows the previous CEO had no authority to appoint Ms Palmer to the CEO position, shows Ms Palmer’s poor judgment and affects her credibility.

30      I consider that the promise made to Ms Palmer by the previous CEO is relevant to Ms Palmer’s disappointment about the way Forrest Personnel treated her.  Any reliance on or reference to the promise by Ms Palmer does not affect my view of her credibility.

Mr Sullivan

31      Mr Sullivan was an unimpressive witness. 

32      Mr Sullivan frequently did not answer questions put to him.  At times he was evasive.  Mr Sullivan repeatedly interrupted Ms Palmer’s representative.

33      Some of Mr Sullivan’s evidence was implausible in all the circumstances. 

34      On occasion, the evidence Mr Sullivan gave in cross-examination or re-examination was inconsistent with his earlier testimony.  It may be that the passage of time has affected Mr Sullivan’s recollection of events. 

35      For these reasons, I find Mr Sullivan’s evidence to be unreliable.

36      Further, I am concerned by a number of statements in Forrest Personnel’s pleadings which I consider to be misleading. 

37      Mr Sullivan gave evidence that he approved Forrest Personnel’s pleadings. 

38      Forrest Personnel’s Response to the Notice to Admit states that Forrest Personnel’s Notice of Answer and Amended Particulars of Claim were filed with the approval and on the instruction of Mr Sullivan.

39      Forrest Personnel’s Notice of Answer and Counter-Proposal states that Ms Palmer resigned.  When it was put to Mr Sullivan in cross-examination that Ms Palmer did not resign, first he said ‘No.  The applicant accepted a, um, package’, then he said ‘Yes.  She did.’  Asked again whether Ms Palmer resigned, Mr Sullivan replied ‘Yes.’  He appeared to characterise a resignation as ‘a willingness to depart, which is a resignation.’  Mr Sullivan stated:

Was it voluntary in terms of was it made enticing enough that the person was prepared to do it voluntarily, or was the person – was it made – was it made in circumstances where the person was very upset and was saying they’re going to take us to court?  Um, so my definition – so if – just to clarify my definition of a resignation, a resignation is where both party [sic], or where one party has said, ‘I am prepared to terminate my employment agreement with you, um, with no further claim.’  That’s different to a termination.  

40      I find Mr Sullivan tailored his evidence to suit Forrest Personnel’s case.  He refused to make concessions he thought would damage Forrest Personnel’s case even where it was obvious the concessions needed to be made.

41      Forrest Personnel’s Amended Particulars states that Mr Langton, the previous CEO, denied that he had ‘made a verbal promise [to Ms Palmer] that she would have the role of CEO when he ceased his employment with [Forrest Personnel]’ (at [2.2]).  However, Mr Sullivan gave evidence that he believed Mr Langton probably did make the offer to Ms Palmer that she would succeed into the CEO position.  Mr Sullivan said he believed that because Ms Crittall told him that on his second day at Forrest Personnel.  That suggests to me that Forrest Personnel sought to rely on the denial in circumstances where its CEO, Mr Sullivan, having approved the pleadings to the contrary (see [37] and [38]), believed that the offer probably had been made.  I find that misleading.  It adversely affects my view of Mr Sullivan’s truthfulness and credibility.

42      Forrest Personnel’s Amended Particulars states that the previous CEO ‘was the subject of a complaint by the Applicant of harassment which resulted in his resignation’.  Mr Lewis, who was Forrest Personnel’s former Chief Financial Officer, and Ms Palmer gave evidence that Ms Palmer did not complain about the previous CEO.  Mr Sullivan conceded in cross-examination that a complaint by someone other than Ms Palmer about the previous CEO led to the former CEO’s resignation.  

43      Forrest Personnel’s Amended Particulars states Ms Palmer was given advice about consultation mechanisms and had continued access to her work email account throughout the change process.  Mr Sullivan gave evidence that Forrest Personnel communicated with staff about the change process via their email accounts and Ms Palmer may have had no access to her work email account from Friday 14 August 2015, which was well before the end of the change process.

44      I consider Forrest Personnel’s pleadings to be misleading.  In circumstances where Mr Sullivan approved the content of those pleadings, this adversely affects my view of Mr Sullivan’s credibility. 

45      Because of the unreliability of Mr Sullivan’s evidence, I have approached his evidence with considerable caution.

46      To the extent that Ms Palmer’s evidence conflicts with Mr Sullivan’s evidence, I prefer Ms Palmer’s evidence. 

47      I set out below a summary of what the parties say occurred and my findings. 

Ms Palmer’s recruitment to the COO position

48      Ms Palmer gave evidence that she has a bachelor's degree in social sciences and a master's degree in social sciences, specifically in human services management.  For the past 25 years she has held senior positions in a number of different organisations, either as Operations Manager, Executive Level Manager or CEO.

49      Ms Palmer gave evidence that when she was recruited to the COO position, she was told by the CEO, Mr Langton, that she would be his successor.  He said he would not be in the position for the long term and she would take over from him. 

50      As stated above, Forrest Personnel says that Mr Langton denied making that promise. 

51      I accept the evidence of Ms Palmer, Ms Crittall and Mr Lewis on this issue, all of whom were present at the meeting where they say the statement was made. 

52      I find that at the time that she was recruited to the COO position at Forrest Personnel, Ms Palmer was told by the CEO that she would be his successor. 

Ms Palmer acting in the CEO position

53      In October 2014, Ms Palmer was seconded to act as CEO after Mr Langton resigned from the position.  This acting arrangement was extended twice, and continued on an open-ended basis until the CEO recruitment was finalised on Monday 21 July 2015. 

54      In an email to all staff on 21 July 2015, the Chair of the Board (Chair) thanked Ms Palmer for ‘continuing to deliver services of excellence’.  In an email to all staff the same day, Mr Sullivan refers to the Board paying tribute to Ms Palmer and notes that she richly deserved the vote of thanks the Board gave her.

55      Ms Crittall gave evidence that she had worked with Ms Palmer in the past at another organisation.  Ms Crittall said Ms Palmer’s skills, abilities and commitment to work were exceptional.

56      Forrest Personnel did not dispute that Ms Palmer’s performance was excellent.  However, it suggested that she exercised poor judgment in attaching Mr Langton’s electronic signature to letter from the CEO that she authored for the annual report.  As I state at [25], I consider this event to be understandable in the circumstances.  It does not adversely affect my view of Ms Palmer’s performance or her credibility. 

57      I accept that Ms Palmer’s performance as COO and acting CEO was excellent.  I accept that she was awarded a bonus of $10,000 for the 2013/2014 year and that under her leadership, the organisation’s performance, star ratings and revenue all increased. 

The recruitment process for the CEO position

58      Ms Palmer gave evidence that she was very disappointed when she was told at a Board meeting in January 2015 that if the CEO position were to be advertised the next day, she would not be appointed.  She was disappointed not to be given the permanent position at that time, and also that the Board denied knowing about the verbal agreement that she would become the CEO.  Ms Palmer said she knew she could not do anything about it because she had nothing in writing, so she just had to accept it, carry on and do the best possible job she could. 

59      When Forrest Personnel advertised for the permanent CEO position, Ms Palmer almost did not apply.  She was under the impression that the Chair, Mr Ian Peterson, and other interview panel members, who were Board members, may be biased against her because of an incident that had occurred around April 2014.  The Chair had accused Ms Palmer of a breach of confidentiality in an email he sent to her which was copied to the Board.  The Chair later agreed he had been mistaken and agreed that he would apologise to Ms Palmer.  Ms Palmer was concerned her integrity and character had been questioned and that it may have tainted the Board’s image of her, unfairly influencing the recruitment process for the CEO position. 

60      Ms Palmer gave evidence that the Chair treated her differently to how he would usually treat a CEO.  They had infrequent meetings outside of Board meetings, she felt he undermined her position by deferring reports she had written and he gave her no feedback.  She gave evidence that all indications from the Chair were that he did not want Ms Palmer to be CEO. 

61      Ms Palmer was interviewed on 6 July 2015 for the CEO position. 

62      Ms Palmer and Ms Crittall gave evidence that Ms Crittall’s husband, Mr Ian Wilks, was told on 8 July 2015 that he was unsuccessful for the position.  Ms Palmer gave evidence that after that she thought perhaps she was in with a chance because she was not told then that she was unsuccessful. 

63      On the afternoon of Monday 20 July 2015, the recruitment company contacted Ms Palmer to tell her that she was unsuccessful.  Ms Palmer gave evidence that about 20 minutes later, the Chair called her and said, ‘Oh, good, then you know…that you haven’t been successful’ and launched into telling her all about Mr Sullivan.  Ms Palmer was disappointed by the conversation and thought the Chair handled things poorly and insensitively.  She was told at that point that Mr Sullivan would start as CEO the next day.  When she pointed out to the Chair that her contract required two weeks’ notice, the Chair agreed that she would act as CEO while Mr Sullivan did orientation for the two weeks. 

64      I accept Ms Palmer’s evidence. 

Tuesday 21 July 2015

65      Ms Palmer’s and Mr Sullivan’s accounts of what happened on Tuesday 21 July 2015 differ in a number of important respects.  It is not in dispute that they met for the first time in the afternoon before the Board meeting.  At the Board meeting, there was discussion about Ms Palmer acting as CEO for three weeks to enable Mr Sullivan to do an orientation during that period.  This is reflected in Mr Sullivan’s orientation plan (Tab 10). 

Ms Palmer’s evidence

66      Ms Palmer gave evidence that the first words she said to Mr Sullivan were, ‘Welcome to Forrest Personnel.  Congratulations on your appointment.’  She met him just before 2:00 pm, and they had a brief discussion during which he asked whether she would act for an extra week so that he could do a thorough orientation and see different sites.  She agreed to act as CEO for the three weeks.  They did not discuss any specifics about how she should conduct the work.  She interpreted it to mean that she should continue with business as usual, which would free him up to get a true understanding of the organisation, and she would be carrying on the role of CEO in that period. 

Mr Rawet’s evidence

67      Mr Rawet gave evidence that Ms Palmer told him that when she met with Mr Sullivan, she congratulated him on winning the appointment.  Mr Rawet said he clearly remembered her saying to him ‘Well, you know, I’m disappointed but it’s got nothing to do with him…he won the position, I didn’t’.  Mr Rawet said ‘she deliberately made an effort not to appear to be sour grapes and I believe she wouldn’t have cos that’s just not her nature’.

Mr Sullivan’s evidence

68      Mr Sullivan gave evidence that he expected staff to have cleared their diaries for him, despite the short notice of his appointment and arrival, because it is not a normal event for a new CEO to arrive.  He says that at the Board meeting, he corrected Ms Palmer’s statement that she was going to act as CEO because there was a requirement under her contract to continue acting in that role for two weeks.  He gave evidence that he said that the Board had just accepted a delegations manual which states it is the CEO’s role to appoint the acting CEO.  Ms Palmer’s representative objected to Mr Sullivan’s evidence on the basis that this was not put to Ms Palmer in cross-examination. 

Consideration

69      I accept Ms Palmer’s evidence, which was consistent with what Mr Rawet said Ms Palmer told him at the time, that she welcomed Mr Sullivan to Forrest Personnel and congratulated him on his appointment.  I find Mr Sullivan and Ms Palmer agreed that Ms Palmer would act as CEO for three weeks, rather than two weeks, to enable Mr Sullivan to do his orientation. 

Wednesday 22 July 2015

Ms Palmer's evidence

70      Ms Palmer gave evidence that on Wednesday 22 July 2015 she had meetings in Perth.  At 4.43 pm she received the following email from Mr Sullivan (Tab 14):

Hello Alison,

I regret that we could not meet today and I understand you will be in Perth tomorrow as well.

Please organise a time to meet me by no later than 12:00pm on Friday of this week to address the issues identified in my Orientation Plan.

Additionally, please send me a brief update on a daily basis at 4:30pm which will include your:-

- Activities for that day.

- Your planned activities for the forthcoming day.

- Any meetings you plan to attend for the forthcoming week with a calendar invitation to attend any business or planning meetings.

Thankyou very much.

Regards,

Mark Sullivan

Chief Executive

71      She gave evidence that she found his email strange and it almost felt like he was micromanaging her.  They had had no contact since the Board meeting the night before and she thought it was strange Mr Sullivan had not contacted her to discuss matters in his email. Ms Palmer was not sure it was necessarily appropriate to invite Mr Sullivan to some of her meetings, for example one of them was for Board members only.  She replied to him at 6.25 pm with the following email (Tab 14):

Hi Mark

I hope your first couple of days with Forrest have gone well.

I can meet with you on Friday in Bunbury at 10:30am. The afternoon would have suited me better, but I can change my plans because I am aware you will commence your road trip next week.

As discussed, I am happy to continue in my A/CEO role until the 10/8 - has this been approved by the Board?

Look forward to catching up on Friday

Cheers

Ali

72      Mr Sullivan wrote back to her at 8.05 pm the same evening (Tab 14):

Hello Alison,

You are confusing two different industrial issues.

I have an obligation to pay you a higher duties allowance for 2 weeks. I have no obligation to allow you to perform those duties.

The Board has delegated me authority to appoint an acting CEO and I decided to allow you to continue during my orientation.

I believe that there is a difficulty in communication between us perhaps due to your busy workload and I am reconsidering my decision.

Please note my request below and attend to it first thing tomorrow.

I will make my decision after that.

Mark Sullivan

Chief Executive

73      Ms Palmer gave evidence that she was really disturbed by Mr Sullivan's response.  The subject line indicated a chain of emails with the Chair about Ms Palmer.  She found the email quite aggressive, almost bordering on threatening and said it rang warning bells.  She was confused about why he would think they had a difficulty in communication in circumstances where they had had no other communication since the Board meeting the night before.  She was also confused about his statement that he had an obligation to pay her a higher duties allowance for the two weeks, but no obligation to allow her to perform those duties because she had thought her contract was with the Board and she was just acting in the position while he did orientation.  Ms Palmer gave evidence that because there had been no other emails between them or any other communication, she had been left to understand that she was carrying on as per normal.

74      Ms Palmer gave evidence that she felt disturbed and upset by Mr Sullivan's emails.  She was not able to sleep that night as she tried to figure out what was going on.

Mr Rawet’s evidence

75      Mr Rawet gave evidence that Ms Palmer told him that evening that Mr Sullivan's emails concerned her.  She was quite disturbed and upset by Mr Sullivan’s tone, and his wording took her aback.

Mr Sullivan's evidence

76      Mr Sullivan gave evidence that he came to work at 9.00 am on Wednesday 22 July 2015 and he expected that he would meet with Ms Palmer at that time.  He said it was a very important meeting to have and he was surprised when he was told that Ms Palmer was in Perth because the night before, after the Board meeting, he had asked if she would catch up with him that night and she explained she was exhausted and he had said, 'Okay, we'll catch up tomorrow'.  He did not recall whether she said, 'Yes' or 'No', but he expected they would catch up at 9.00 am.  Mr Sullivan did not explain why it was that he thought they would meet at 9.00 am.

77      Mr Sullivan gave evidence that he sent the emails to Ms Palmer on Wednesday 22 July 2015 because he wanted to be clear with her that if he did not meet with her on Friday 24 July 2015 and feel comfortable with her continuing in the acting CEO position, he could not keep her in that position.  If her busy workload was such that she could not communicate with him on the one day he had free, he would have to reconsider his decision.  I understood from his evidence that he meant his decision to have Ms Palmer acting in the CEO position.

78      In cross-examination, Mr Sullivan agreed that his response to Ms Palmer on Wednesday 22 July 2015, which was his first full day on the job, was an attempt to establish his authority.  He said it was very respectful to say 'I'll make the decision about whether you continue in the position or not'.

79      In re-examination, Mr Sullivan said that he was very surprised by Ms Palmer's email response to him asking whether the Board had approved her acting position until 10 August 2015.  The reason he was surprised is because at the Board meeting on Tuesday 21 July 2015 he had clarified that the appointment of the acting CEO was the responsibility of the CEO in consultation with the Chair, rather than the Board's responsibility.  Mr Sullivan gave evidence that he took Ms Palmer's question, 'Has the Board approved my acting as CEO', to mean that she was saying, 'I'm now the Acting CEO, I'm going to keep doing the role, that I'm not answerable to you'.  He gave evidence that he was concerned she was saying, 'The Board has approved this so, I am the Acting CEO and you can't overrule it.  I want to make it crystal clear'.  Given that Mr Sullivan was about to leave for his site visits on the Friday afternoon, he considered that if he had not met with Ms Palmer about her plans as acting CEO, it would have been 'a very dangerous situation'.

Consideration

80      I find it unreasonable that Mr Sullivan would expect to meet with Ms Palmer at 9.00 am on Wednesday in circumstances where they had not agreed to do so.

81      I accept that Ms Palmer was confused, disturbed and upset by the content and tone of Mr Sullivan's emails. 

82      In my view, Mr Sullivan’s emails were ill-considered, unreasonable and sent in an attempt to establish his authority as incoming CEO.  I find Ms Palmer had done nothing to warrant Mr Sullivan’s approach.

83      I accept that Ms Palmer felt micromanaged and undermined by Mr Sullivan's emails.  In the circumstances, I find it unsurprising she would feel that way.

Thursday 23 July 2015

Ms Palmer's evidence

84      Ms Palmer gave evidence that having not slept on the night of Wednesday 22 July 2015, she thought it was best not to attend the meeting she had planned to attend.  Even though it was only for a half day, Ms Palmer went to an afterhours surgery to get a medical certificate.

85      Ms Palmer emailed Mr Sullivan on Thursday 23 July 2015 and explained she was not feeling well due to the events of the week and that she was taking the rest of the day off.  She also explained that she had shared her calendar with him and invited him to meetings.

86      Ms Palmer gave evidence that she thought ‘I’m going to start making really detailed notes of every meeting and just about everything I say to [Mr Sullivan]’.  She did not want him to have cause to think she was not doing the right thing.

87      Ms Palmer shared her calendar with Mr Sullivan and invited him to attend all of her scheduled meetings.  Ms Palmer gave evidence that she kept her diary up to date and accurate, adjusting it regularly after the fact for accuracy so that it was an accurate reflection of her work and could be used for reporting purposes.  She shared her diary with Mr Sullivan around 9.00 am on Thursday 23 July 2015. 

Mr Rawet’s evidence

88      Mr Rawet gave evidence that he spoke to Ms Palmer on Thursday 23 July 2015.  She told him that she was concerned enough about Mr Sullivan’s email the night before that she could not sleep.  Ms Palmer was quite disturbed by Mr Sullivan’s email and upset by his tone.  She took a sick day on Thursday and got a medical certificate. 

89      Mr Rawet said Ms Palmer said to him ‘Don’t worry about it, everything will be fine tomorrow’ and she went in to work on the Friday.

Mr Sullivan's evidence

90      Mr Sullivan said he did not realise that Ms Palmer took leave that Thursday afternoon until much later.  He did not dispute having received her email and he confirmed in cross-examination that he was in the office with access to email.  He agreed that he had access to Ms Palmer's diary from Thursday 23 July 2015, although he said in cross-examination that he did not believe he could log onto her emails from his iPad while he was travelling.  There was no suggestion in his evidence that this concerned him or that he raised the issue with Ms Palmer.

Consideration

91      I accept that Ms Palmer was disturbed by the tone and content of Mr Sullivan's emails and that this led to her being unable to sleep on the night of Wednesday 22 July 2015. 

92      I find that by sharing her electronic diary with Mr Sullivan and inviting him to her meetings, Ms Palmer complied with Mr Sullivan’s request to update him about her activities and meetings.

Friday 24 July 2015

Ms Palmer's evidence

93      Ms Palmer gave evidence that she came into work as usual on Friday 24 July 2015 expecting to meet with Mr Sullivan at 10.30 am as agreed by email.  Mr Sullivan eventually arrived at work at around 1.00 pm. 

94      Ms Palmer gave evidence that when she met with Mr Sullivan at around 1.30 pm he told her that he was angry with her.  She explained her understanding of the acting CEO role and he did not refute or say anything against her continuing to act as CEO.  She said he then seemed to soften a bit in his approach towards her, and the initial frustration and anger her had displayed dissipated. 

95      Ms Palmer gave evidence that she explained to Mr Sullivan at the meeting that she thought it was business as usual, that she was acting as CEO and for that reason had kept her appointments on Wednesday.  Because of the way the events had unfolded that week, in that she was notified late on Monday that she was unsuccessful for the position and Mr Sullivan started on Tuesday, and then his emails on Wednesday evening, everything had:

…kind of, um, escalated for me and that’s why I had taken Thursday off.  But that I had thought about it, I was okay to come in, I, um, I - I know myself and I just wanted to come back and get on with the job.  Um, I was saying this to kind of alleviate any ideas that he might have that I was still unwell or that I couldn’t work or - or whatever. 

96      Ms Palmer gave evidence that Mr Sullivan seemed to accept her explanation, although he seemed angry that she had not cancelled all of her appointments and made herself available to him.

97      Ms Palmer gave evidence that Mr Sullivan went on to say that he knew Ms Palmer was ready to take on the role of the CEO, that he thought she had outgrown Forrest Personnel and to assist her he would arrange for her to meet with a career coach.  He expected that she would have found alternative employment in the next three to six months, preferably three months.  Ms Palmer said that she remembered this so well because she thought it was a really odd thing for him to say, to presume that he knew what she wanted or what she was ready for.

98      Ms Palmer said that Mr Sullivan told her seeing a career coach would help her to work out what she wanted to do so that she could move on and he spoke about how she was ready to be a CEO. 

99      Ms Palmer said she was a bit perplexed by that opening conversation with Mr Sullivan and it immediately made her feel like he wanted her to be removed from Forrest Personnel, that he wanted her to move on.  Because of this, she was a bit more direct with him and she specifically said something along the lines of, 'It sounds like or it seems like I’m not wanted', and although he seemed initially taken aback by that, Mr Sullivan said, 'No, I know that you're ambitious', and ‘you would benefit from the career coach’.

100   Ms Palmer gave evidence that this made her think perhaps she should explain her situation to Mr Sullivan and what she was feeling in case he had formulated the wrong impression and thought that she would not be happy because she wanted to move on or because she had not been made CEO.  She tried to reassure him that she really enjoyed the COO position, that she really enjoyed working for Forrest Personnel, that it met some key criteria she had for employment (which was that she believed in the organisation she worked for), that she was still gaining satisfaction and learning new things from the job, that she was really not looking to move into another position and that it would actually be quite difficult for her to do so because there were not many opportunities for someone at her level in Bunbury in organisations like Forrest Personnel. Generally, those sorts of organisations have their head office interstate and she explained that relocation was not her preferred option, explaining that her partner had been working for his employer in Bunbury for the past 27 years.  Ms Palmer gave evidence that she tried to give Mr Sullivan the impression she was feeling quite stable and satisfied with working at Forrest Personnel.  She said that conversation lasted until close to 5:00 pm and later that night at around 11:00 pm she received an email from Mr Sullivan thanking her for the meeting and saying that he thought it was a constructive meeting. 

101   In cross-examination, Ms Palmer said she absolutely did not say to Mr Sullivan that she felt it had been unfair that he had taken the CEO job from her.  She did not talk about the promise that she would have the CEO position, about being owed a big bonus and she did not ask him if he had been head hunted.  She did not indicate that she was paid too much as a COO and that the organisation was going to have to retrench her. 

102   In cross-examination, Ms Palmer gave evidence that Mr Sullivan did not raise with her that she should use the Employment Assistance Program service.  He only suggested seeing a career coach because he said she had outgrown Forrest Personnel, it was clear that she needed to move on and he expected her to find alternative employment within three to six months' time, preferably three.  In cross-examination, Ms Palmer gave evidence that she did not say at that meeting that she was not willing to accept any reduction in salary or demotion.  She absolutely did not say that she was not even sure she would stay.  Ms Palmer denied that she said, 'You’re going to retrench me.  I’ve told the Board we can’t have both a COO and a CEO, and that the Chief Executive Officer position is not in the budget'.  She also did not say that the COO position was not in the budget. 

103   It was not put to Ms Palmer in cross-examination that perhaps they could review what people were paid and that Mr Sullivan could see there was a need for a restructure sooner rather than later. 

Ms Crittall’s evidence

104   Ms Crittall gave evidence that Ms Palmer phoned her after her meeting with Mr Sullivan on Friday 24 July 2015.  Ms Crittall said Ms Palmer told her that she thought it was almost as if Mr Sullivan was trying to push Ms Palmer out of her position and out of Forrest Personnel, and to suggest that there was no position that would be suitable for her.  Rather, Ms Palmer would be better off moving on because there were no challenges left for her at Forrest Personnel and Mr Sullivan suggested career counselling, someone to help with her resume.

Mr Rawet’s evidence

105   Mr Rawet gave evidence that Ms Palmer told him that at the meeting on Friday 24 July 2015 Mr Sullivan said to her that he did not think she would be happy being COO and she denied that.  Mr Sullivan said he expected Ms Palmer to find a new position within six months, and preferably three.

Mr Sullivan's evidence

106   Mr Sullivan gave evidence that at the meeting on Friday 24 July 2015 their discussion began with him running through a standard outline about his background and his commitment to quality.  He said Ms Palmer's first words to him were that she regretted that they had not met until that day.  He agreed it was regrettable and that he needed to be confident that there would be good communication between the two of them because he would be away from Monday. 

107   Mr Sullivan said he then asked Ms Palmer to talk him through the organisational chart and to tell him about her responsibilities as COO.  She explained that she was responsible for corporate services, human resources, direct services, quality assurance and accreditation.  When he commented that that did not leave a lot of scope for what the CEO would do, he said Ms Palmer became distressed and said she had told the Board that her position will be redundant.  She said the COO position was not in the budget and Mr Sullivan told Ms Palmer he had reviewed the staffing profile and the COO position was clearly in the budget.  Mr Sullivan gave evidence that Ms Palmer said he would probably retrench her and he replied that he had literally just walked in the door and had no intention of retrenching anyone. 

108   Mr Sullivan said that Ms Palmer said she was paid too much and that Forrest Personnel could not afford the COO position.  He said he replied that may be the case but perhaps they could review what people were paid and that he could see there was a need for a restructure which was probably on the cards for him sooner rather than later. 

109   Mr Sullivan gave evidence that they discussed bonuses and he explained that he had already removed the $30,000 from the budget that had been earmarked for his own bonus.  He said Ms Palmer told him she should be paid a bonus of $20,000 or $40,000.

110   Mr Sullivan said Ms Palmer became quite distressed.  He said she was sad and as the meeting went on she became teary.  He said Ms Palmer ‘was clearly very, very disappointed’ that she had not been appointed CEO.

111   Mr Sullivan gave evidence that Ms Palmer said she wanted a performance review and he explained that under the delegation manual as CEO if there were to be a performance review he would do one.  He told her not to directly contact the Board about that.  He said Ms Palmer became very tearful and said 'You've taken my job’, ‘With your background you could get any job', and 'Why have you taken mine?'.

112   Mr Sullivan gave evidence that he considered this to be quite an extraordinary discussion.  He said he was deeply disturbed and described it as not normal.  Mr Sullivan said he got Ms Palmer some tissues and he wanted her to settle a bit.  He was trying to contain the situation.  He gave evidence that he was deeply disturbed because this would be his last contact with Ms Palmer before he was out of the organisation for two weeks.  He suggested that Ms Palmer needed to be cautious and not damage her work or standing.  He asked if she had help and support for the weekend and she said she did.

113   In cross-examination, Mr Sullivan agreed that Ms Palmer had told him at the meeting that it had been a difficult week, that she was trying to adjust to the changes, including not getting the CEO position, and that she needed an amount of time to assimilate all of that.

114   Mr Sullivan said that as he drove home from work on Friday 24 July 2015 the Chair phoned him to say that Ms Palmer had called him to ask for a performance review.  That led Mr Sullivan to contact Ms Crittall and ask that she contact Ms Palmer because he was concerned about Ms Palmer.

115   In re-examination, Mr Sullivan said it would have been impossible for Ms Palmer to interpret his comments during that meeting to mean that she was to move on.  When she said that he would have to retrench her because there was no budget of allocation, he had already said that this was not the case, that the position was in the budget and that he had checked the finances. 

116   In re-examination, Mr Sullivan said that Ms Palmer was 'very, very distraught that she did not have the role of CEO.  She was distraught to a point that was not normal’ and he had ‘moved at a point in the meeting to simply trying to calm her down'.  He said in trying to calm her down he assured her that she could transition to a CEO position with another organisation and in six months she could have what she wanted, she did not need to be that distressed.  He said it was not a constructive meeting, that he was 'desperately worried about her - her health’ and that he ‘was really worried about her, [he] was really worried'. 

117   In cross-examination, Mr Sullivan said that the meeting ended because she was distraught and he believed it was very unconstructive.  He went on to describe it as highly unconstructive.  Mr Sullivan went on to give evidence that it would not be reasonable for a person who had just been told that they missed out on a CEO job on a Monday and had received emails of the kind he sent on the Wednesday, to be struggling at the end of the week.  He stated 'The behaviour on Friday was a complete shock to me.'  He agreed that he followed that meeting up with an email thanking Ms Palmer for the meeting and saying he thought it was constructive.  Unprompted, Mr Sullivan then gave evidence ‘I – I would also have to say that, um, in-in true honesty, I knew that statement was incorrect’.  Mr Sullivan did not give evidence about why he described the meeting as constructive in his email. 

118   In cross-examination, Mr Sullivan denied he said words to the effect that he expected Ms Palmer to be gone within six months.  He said that he told Ms Palmer that on the information she had given him about her performance, with the right mentoring she could be a CEO of another organisation within six months.

Consideration

119   To the extent that Ms Palmer's and Mr Sullivan's evidence conflict in relation to this meeting, I accept Ms Palmer's evidence. 

120   Mr Sullivan's evidence that the meeting was highly unconstructive is at odds with the email he sent Ms Palmer that night thanking her for the meeting and describing it as constructive.  I do not accept his later version of events. 

121   If Mr Sullivan was so concerned about Ms Palmer’s mental health or if Ms Palmer had said to him that she expected or wanted to be made redundant, I do not accept that he would have sent her an email saying the meeting was constructive. 

122   I find Mr Sullivan’s evidence implausible.  It is clear to me that Mr Sullivan had no problem sending very direct emails so it cannot be that he was just being polite.  There was no credible evidence before me to suggest that Mr Sullivan said the meeting was constructive for any reason other than because it was. 

123   Ms Palmer's evidence on this issue was clear and consistent.  Mr Sullivan's evidence was not.  As I state at [69], I accept Ms Palmer's evidence, supported by Mr Rawet's evidence, that she had welcomed Mr Sullivan to the organisation.  I accept that although Ms Palmer may have been disappointed that she did not receive the CEO position, she recognised that Mr Sullivan was not responsible for that.  It is entirely implausible to me that she would make comments to him to the effect that he had taken her job.  I do not accept that Ms Palmer was distraught during the meeting. 

124   At all times, Ms Palmer's evidence was measured, considered and plausible.  I find the measured tone of her emails and communication generally was consistent with the way she presented as a witness.  In contrast, Mr Sullivan used emotive language and hyperbole to describe the situation and Ms Palmer.  That approach was also consistent with the tone of his emails and written communication. 

125   I find Ms Palmer did not tell Mr Sullivan that he would have to make her redundant and that she would not accept a demotion. 

126   I find Ms Palmer told Mr Sullivan that she enjoyed her COO position and working at Forrest Personnel, she believed in the organisation and was not looking to move.  I find Ms Palmer explained to Mr Sullivan that it would be hard to move because there were not many opportunities in Bunbury at her level and relocation was not her preferred option, given that her partner’s particular working arrangements. 

127   I find Mr Sullivan told Ms Palmer that she had outgrown Forrest Personnel and that he expected her to move into a CEO position elsewhere within three to six months. 

The weekend of 25 July and 26 July 2015

Mr Sullivan’s evidence

128   Mr Sullivan gave evidence that over the weekend of 25 and 26 July 2015, he spoke to a friend who is a psychologist.  His friend told him that he could not make an assessment of Ms Palmer because he not seen her, but based on Mr Sullivan’s description of the conversation they had had during the meeting of Friday 24 July 2015, Ms Palmer had ‘clearly engaged in a conversation with [Mr Sullivan] that was detrimental to her professional interests … and it was contrary to what [he] had expected and that had left [him] quite disturbed.’ 

129   Mr Sullivan said that his psychologist friend was concerned that if Ms Palmer were to be left alone in the organisation for two weeks and was as distressed as Mr Sullivan had described, having started in a very professional mood and ended up where they had ended:

there was a possibility she could self-harm, and he meant that in – and he said ‘I mean that in both terms’ that in fact she could self-harm by damaging her career, um, and possibly the organisation at the same time, also she could self-harm, period, um, that I shouldn’t take it lightly.

130   In cross-examination, Mr Sullivan said that he meant professional self-harm of a person who ‘will lose the plot’ in a meeting with their boss, and he gave the example of Ms Palmer contacting the Board after he told her not to.  Mr Sullivan said that he asked Ms Crittall to contact Ms Palmer over that weekend, and Ms Crittall had told him that Ms Palmer was very upset but was tracking okay. 

131   On Sunday night, Mr Sullivan sent Ms Palmer a text message saying that he had been worried about her all weekend (Tab 15). 

132   Mr Sullivan conceded he was not qualified to make judgments about Ms Palmer’s mental health.

Consideration

133   It was clear to me from Mr Sullivan’s examination-in-chief that he intended to describe the possibility of Ms Palmer self-harming in a professional and personal sense.  He appeared in cross-examination to back away from that statement and framed it more in terms of professional self-harm.  In any event, I find Mr Sullivan’s evidence about this issue to be odd and implausible. 

134   I find Mr Sullivan’s evidence that he concluded Ms Palmer would do damage to herself if she remained in the workplace is not credible.  Even if he believed, and I do not accept that he did, I find it an unreasonable conclusion for him to reach.

Monday 27 July 2015

135   Ms Palmer and Mr Sullivan agree that they met outside of the office on the morning of Monday 27 July 2015.  After that meeting, they returned to the office and later that day, they went out for a drink.  They give different accounts of what occurred during those meetings. 

Ms Palmer’s evidence

136   Ms Palmer gave evidence that on the evening of Sunday 26 July 2015, Mr Sullivan had texted her saying that he had been worried about her all weekend and asking her to give him a call.  She called him on Monday morning as soon as she saw his text. 

137   Ms Palmer told Mr Sullivan that there was no need to worry and that she was fine.  She gave evidence that she was a bit confused about why Mr Sullivan would be worried about her because they had had a relatively productive meeting on Friday and discussed a lot of work, so his concern came out of the blue.  She tried to set his mind at rest and said ‘There’s no need for you to be worried, I’m absolutely fine’ and ‘I’ll see you in the office.’  But Mr Sullivan was quite insistent he wanted to meet outside the office to have a coffee, and so they met at a coffee shop at 9.00 am. 

138   At the coffee shop, Mr Sullivan expressed concern about Ms Palmer’s mental health.  Ms Palmer thought that was because she had taken part of Thursday off work, so she again said she was fine, that she had good insight into her own wellbeing and that she had come to work and that everything was good on Friday, so there was no cause for him to have any concern. 

139   Ms Palmer gave evidence that Mr Sullivan kept saying he had issues and concerns around her mental health, and he again mentioned her going to see the career coach, and said he would forward those details as soon as he could.  Ms Palmer gave evidence that she was concerned about Mr Sullivan talking about her mental health in a public place, and also that she could not understand what he based his concerns on.  She said eventually Mr Sullivan started discussing work aspects, including clinical governance, and he said that there would be a role for Ms Palmer in his clinical governance agenda. 

140   Ms Palmer gave evidence that at that meeting, Mr Sullivan suggested she would be involved in writing up a report about clinical governance and total quality management (total quality management report).  He said she could work from home so as not to be distracted when preparing the report, but he did not give her any instruction about when she should start the project or what she should do in respect of her other functions as acting CEO.

141   Ms Palmer said that she had originally objected to Mr Sullivan when he suggested that she work from home because she explained she did not have a printer and she did not like looking at large documents on the computer.  He immediately said to her ‘just buy a printer on your way home’.  She explained to him she did not have internet access and had to rely on hotspots, but he did not want to know about that. 

142   In cross-examination, Ms Palmer denied that Mr Sullivan said he wanted to ensure she was not seen by others in the organisation as being stood down, so he suggested they both work in the office that day.  She said she was not stood down and there was no suggestion she was being stood down. 

143   Ms Palmer gave evidence that when she got back to the office, she updated her diary, blocking out two days in one week and two days the following week to work on the total quality management report, which she would probably, but not necessarily, do from home.  As Mr Sullivan had access to her diary, she thought he would be able to see that she had followed his instruction. 

144   Ms Palmer gave evidence that on that afternoon, Mr Sullivan told her that Ms Jade Cowle, People and Culture Manager, had been stood down by the Board.  He told Ms Palmer she would be industrially at risk if Ms Palmer remained in the organisation.  Ms Palmer asked him to explain what he meant because she did not really understand.  Ms Palmer did not think that she was involved.  She gave evidence that Mr Sullivan ‘got quite annoyed and angry and belittling’ with her, and he said that he would expect ‘someone at [her] level’ would understand.  She felt belittled in response to that, and a bit fearful, so she sought legal advice to clarify whether or not she was industrially at risk. 

145   Ms Palmer gave evidence that later that day, Mr Sullivan asked her to go for a drink with him.  She did not really want to go, but she did not want any other misinterpretations of her actions or behaviours because of the emails Mr Sullivan had sent to her on Wednesday and the initial frustration and anger that he had shown on Friday.  Although things seemed to have improved, she just did not want to leave any kind of door open to suggest that she was not being cooperative or friendly, so she agreed. 

Mr Rawet’s evidence

146   Mr Rawet gave evidence about what Ms Palmer told him at the time about the meeting on Monday 27 July 2015.  His evidence was broadly consistent with Ms Palmer’s.  He said Mr Sullivan told Ms Palmer to meet with him outside the office that morning and that Mr Sullivan discussed Ms Palmer’s mental state at the meeting.  Mr Rawet gave evidence that Ms Palmer had told him she was really quite taken aback that Mr Sullivan, who had met her briefly, was making judgments about her mental state.  He also gave evidence that Ms Palmer was asked by Mr Sullivan that day to work on clinical governance and total quality management, and that she blocked out some time to do that while she continued to act as CEO.  Further, Mr Rawet gave evidence that Mr Sullivan told Ms Palmer that she could work from home. 

147   Mr Rawet gave evidence that Ms Palmer told him that Mr Sullivan asked her to seek guidance counselling.  She thought that was totally inappropriate and uncalled for.  It annoyed her that someone who did not know her could presume to understand her mental state, someone who was not qualified to make those judgments, and then to suggest that she needed psychological counselling. 

148   Mr Rawet gave evidence that everything was fine at home.  Nothing in that weekend or around that time made him believe that Ms Palmer was suffering any sort of stress disorder.  Mr Rawet is familiar with that through his work with firefighting, and the suggestion that Ms Palmer needed counselling was totally at odds with Mr Rawet’s observations of her. 

Ms Crittall’s evidence

149   Ms Crittall gave evidence that Ms Palmer is a very calm, rational, logical and analytical person.  She has known Ms Palmer for 18 years.  In all that time she has never seen Ms Palmer hysterical, heard her raise her voice or get overly emotional.  Ms Crittall said that Ms Palmer was upset but that her state of mind was just normal.  She was ‘how she always is’ during that period.

Mr Sullivan’s evidence

150   Mr Sullivan gave evidence that he met with Ms Palmer at the coffee shop and the meeting started very professionally.  He said Ms Palmer said she had reflected about things over the weekend and she was now 100% on board and very confident about what she was doing.  He said Ms Palmer had a very professional demeanour. 

151   Mr Sullivan said that he had reflected on what Ms Palmer had said about wanting to be a CEO, she clearly had the skills to be a CEO, she needed to think about and reflect on her commitment professionally and what she wanted to do with her career plans moving forward.  Mr Sullivan said that he suggested an organisational psychologist could help with that.  He said he did not feel comfortable with her remaining in the workplace because of her change in demeanour in the meeting on Friday and the things she had said to an incoming CEO which were not helpful to her. 

152   Mr Sullivan gave evidence that he thought Ms Palmer would do herself damage if she continued in the workplace.  He said he made that assessment based on her change in demeanour during the meeting on Friday, saying unhelpful things to an incoming CEO and contacting the Board after he told her not to. Mr Sullivan said to Ms Palmer:

We will work the day together on Monday, all day…We will say to staff that you are working – it’s very common at Forrest for people to work at home…I will say to people that you’re going to work on the quality agenda…that way I don’t have to say to people you’re not the acting CEO during the period.  Um, but that – that is what you’re to concentrate on and to work from home. 

153   He gave evidence that Ms Palmer said she did not have a printer and he told her to buy one.

154   In cross-examination, Mr Sullivan described the meeting of Monday 27 July 2015 as a coherent, professional meeting.  He also said that he was of the view that Ms Palmer ‘was of a state of stress where she could be a danger to herself’.

155   In cross-examination, Mr Sullivan disputed that his instructions to Ms Palmer on Monday 27 July 2015 were not clear.  He said he had not in some way relieved Ms Palmer of all the acting CEO duties, but that he had asked her not to work in the office and not to approach Board members, so he had certainly put strict limits around it.  He said he instructed Ms Palmer to keep him acquainted with what she was doing, but he did not contact her directly. 

156   In cross-examination, Mr Sullivan conceded that Ms Palmer may have come to grips with the changes that had occurred around her by Monday 27 July 2015, but that he did not believe that. 

157   Mr Sullivan gave evidence that he and Ms Palmer went out that evening and had a glass of wine together, and talked about his personal reasons for being there. 

Consideration

158   I prefer Ms Palmer’s evidence to that of Mr Sullivan. 

159   Even based on Mr Sullivan’s evidence, he did not expressly say to Ms Palmer that she was no longer acting CEO or that she was being directed to work only from home.  Nowhere in his evidence did he say that she must remain solely at home and work from home.  In cross-examination, he said ‘I made that instruction crystal clear to her verbally’, but he did not put it to her in writing.  If that were the case, I would have expected him to give evidence of it when he was being examined by his counsel. 

160   I accept that Mr Sullivan’s instructions to Ms Palmer were not clear, and I accept Ms Palmer’s evidence that no one instructed her to cancel all of her appointments, rather her only instruction was to continue to act as CEO for the period of Mr Sullivan’s orientation.  I find Mr Sullivan told Ms Palmer that she could (rather than she must) work from home.

161   I find Mr Sullivan’s evidence implausible and inconsistent. 

162   He conceded under cross-examination that he was not an expert in assessing a person’s mental health.  But in any event, I found his evidence about this issue to be inconsistent.  He seemed to characterise Ms Palmer as being a danger to herself and in a state of stress which, on his own evidence, was based on her being teary, upset and saying things that he thought were unhelpful, for example, that he had taken her job from her.  As I have stated earlier, I do not accept that Ms Palmer would have said something of that sort to Mr Sullivan on Friday 24 July 2015. 

163   Ms Palmer’s version of events is plausible to me.  It is consistent with the text messages that she sent, the email that Mr Sullivan sent to her following the meeting on the Friday, and the fact that Mr Sullivan and Ms Palmer went out for a drink on the Monday evening.  In my view, it is not plausible that Mr Sullivan and Ms Palmer would have gone out for a drink and discussed his personal reasons for being there in circumstances where Mr Sullivan considered that Ms Palmer was in a state of stress where she could be a danger to herself.  I also do not consider that going out for a drink is consistent with Mr Sullivan being so concerned about Ms Palmer’s conduct that he would effectively stand her down and order her to work from home. 

164   If Ms Palmer was stressed or distressed about what was occurring, that stress was caused by Mr Sullivan’s actions and approach.  I accept the evidence of Mr Rawet and Ms Crittall in relation to Ms Palmer’s state at this time.  I find that Ms Palmer’s mental health was not affected in the ways described by Mr Sullivan. 

Tuesday 28 July and Wednesday 29 July 2015

165   Ms Palmer gave evidence that on the afternoon of Tuesday 28 July 2015 she emailed Mr Sullivan, mainly because she wanted to confirm with him that she had made an appointment with Mark Greenwood, who was the career coach that Mr Sullivan had suggested.  She included a reference to their having had a drink together on the Monday night, in order to be polite and cordial, to try to create a good working relationship with him (Tab 16): 

Hello Mark

Thank you for the drink last night, it was good getting out of the office, relaxing and getting to know you a little better.  I hope your Site visits have been productive and you are enjoying meeting with the staff. 

I just thought I’d let you know that I have arranged a meeting with People Solutions (Mark Greenwood) for Wednesday afternoon next week.

Cheers

Ali

166   On Wednesday 29 July 2015 she attended an operational meeting which had been pre-arranged.

Consideration

167   The tone of Ms Palmer’s email to Mr Sullivan is not that of a person who was struggling or being unprofessional.  I find she was being cooperative, friendly and trying to do as Mr Sullivan had directed. 

Thursday 30 July 2015

Ms Palmer’s evidence

168   On Thursday 30 July 2015, Ms Palmer came into the office because she had meetings scheduled.  She gave evidence that when Mr Sullivan came into the office and saw her, he asked her to come into his office.  He was very angry with her.  He said he had not expected to see her in the office and that he expected her to work from home as instructed.  Ms Palmer gave evidence that when she explained to him that she did not realise that she was meant to drop everything else, including the acting CEO position that she was still doing, and just purely concentrate on the total quality management report.  She said Mr Sullivan told her she was potentially industrially at risk, that she needed to look after her mental health and she should have been working from home. 

169   Because Mr Sullivan had been talking about her mental health so much, Ms Palmer thought she should let Mr Sullivan know some of the things she actually did find a bit stressful, which included cancelling appointments at the last minute and not being able to follow through on commitments.  Ms Palmer gave evidence that she was trying to paint a picture for Mr Sullivan of why she had scheduled in various commitments and that cancelling those things would put her reputation at risk because she had a good reputation of meeting her commitments.  She gave evidence that Mr Sullivan was not concerned with that and the impression she got from him was that she was to leave the office straight away. 

170   Ms Palmer gave evidence that Mr Sullivan told her he wanted her to come back an expert on total quality management.  At first she thought he was saying it in a sort of jovial way.  She said to him ‘well, I don’t – don’t think I’ll come back an expert in – in a week, but I will certainly do my best’ and have something prepared for him to look at.  He looked her in the eye and really seriously said ‘no, I want you to come back a subject matter expert’.  Ms Palmer gave evidence that she felt this was another strategy to set her up to fail. 

171   Ms Palmer gave evidence that on Thursday evening, she received an email from Mr Sullivan (Tab 17): 

Hello Alison

On Monday I instructed you to work from home - looking after your good health, researching the strategic TQM agenda I outlined and considering how you could align with your future career aspirations.  I have sourced Mark Greenwood, an experienced organisational psychologist, to support you with this.  These are important duties relevant to your role.  You agreed with this and thanked me for my support. 

So I was surprised to find you conducting normal operational meetings in the workplace today.  I did not find your statements that you felt you lacked a printer at home or that you felt less stressed “at the office” acceptable explanations. 

Since I gave that instruction, you are aware the Board has commenced a process concerning Jade Cowl’s [sic] respect for the Board’s authority.  That may relate to the CEO appointment process. In that environment, your decision not to respect my authority is a serious error of judgement.  It bewilders me. 

A charitable interpretation [is] that you are experiencing stress.  A less charitable interpretation is that you are testing my authority.  I will seek advice and consider my response further. 

You are aware of your responsibility in the workplace to follow direction.  Ensure this behaviour is not repeated. To be explicit, you are to:

• Care for your good health and avail yourself of the supports in the EAP and the additional support I have sourced with Mark Greenwood.
• Prepare a written handover to me of all outstanding issues relevant to my role. 
• Research TQM and Clinical Governance Processes and prepare a report on how these can be applies [sic] in Forrest Inc. 

Regards

Mark Sullivan

172   Ms Palmer gave evidence that she was really quite taken aback by the email, because again Mr Sullivan was suggesting she was experiencing stress which she was not, but also that she was testing his authority, which she would never do.  Ms Palmer gave evidence that she thought she had complied with his request and that he could see it in her diary.  She found his statement, ‘I will seek advice and consider my response further’ threatening, and she remembered the previous email he had sent her on the Wednesday evening that also said he was reconsidering his position. 

173   By this time, Ms Palmer said that she feared there was some sort of agenda to remove her.  Between the emails, instructing her to go to the career coach, expecting her to have found alternative employment, and now being isolated from staff and having to work from home, she thought ‘I can’t afford to do or say anything where he will interpret it as being confrontational, or argumentative, or not following instructions…I just have to do whatever he wants me to do, and I have to continue to be as professional, and as polite, and as cordial as I can possibly be.’ 

174   The next day, Friday 31 July 2015, she worked from home. 

Mr Rawet’s evidence

175   Mr Rawet gave evidence that Ms Palmer had told him at the time that Mr Sullivan was angry when he discovered her in the office.  Ms Palmer told Mr Rawet that she was confused because she was still acting CEO, she had other duties including as the COO, and she had acceded to Mr Sullivan’s request to work from home because she had blocked out time to do so.  Mr Rawet gave evidence that Ms Palmer told him that Mr Sullivan had said to her she must do clinical governance work only, buy a printer on her way home, and instructed her not to be in the office. 

Mr Sullivan’s evidence

176   Mr Sullivan gave evidence that he was surprised when he learned on Thursday 30 July 2015 that Ms Palmer had attended a meeting the day before.

177   He said that the purpose of the email he sent to Ms Palmer on the evening of Thursday 30 July 2015 was to say to her that he was very willing to listen to the fact that she was stressed and that that was changing.  He was seeing her behaviour to date in light of that.  He was giving her the benefit of the doubt but they had had a clear discussion about her not being in the workplace and he had made that decision based on her professional safety and possibly also her emotional safety.  Mr Sullivan gave evidence that he found her behaviour in coming to work and having a meeting that he was unaware of ‘quite bemusing…it ran contrary to what I’d asked her a week earlier which was that I wanted daily reports of what was occurring’.  Mr Sullivan said ‘I’ll be honest, I was a bit annoyed when I sent [that] email.’ 

178   In cross-examination, Mr Sullivan said that he told Ms Palmer on Monday 27 July 2015 that she was not to conduct normal meetings from that date.  He made that very clear. 

179   In cross-examination, Mr Sullivan denied that the operations meeting Ms Palmer conducted on Wednesday 29 July 2015 (which he learned of on Thursday 30 July 2015) would have been a meeting ordinarily conducted by a person who was managing the events of the business on a day-to-day basis.  Mr Sullivan said, ‘it was not a day-to-day meeting, it was an all-day meeting’.  He went on to say it was not an operational meeting because it should not have taken that long and it covered a very broad range of topics. 

180   In cross-examination, Mr Sullivan seemed to accept that Ms Palmer blocking out at least a day and a half to work from home on the total quality management report showed that she was at least seeking to comply with his instructions to some extent. 

Consideration

181   I accept Mr Sullivan’s evidence that he was angry that he thought Ms Palmer had not complied with his instructions.  Based on his evidence, I do not agree with Mr Sullivan’s assertion that his instructions to Ms Palmer were clear.  I find that he did not tell Ms Palmer on Monday 27 July 2015 that she was no longer acting CEO and he did not instruct her that she was only to work from home on the total quality management report.  I find he did not instruct her not to conduct meetings.

182   Having characterised the meetings Ms Palmer attended on Wednesday 29 July 2015 as ‘normal operational meetings in the workplace’ in his email (Tab 17), I do not accept his evidence that such a meeting was not one ordinarily conducted by a person responsible for the day-to-day management of the organisation because it was too long and because it covered a very broad range of topics.

183   I accept Ms Palmer’s evidence that on Monday 27 July 2015 Mr Sullivan told her she could work from home on those projects and I accept that she blocked out time to do so.  I find that Ms Palmer complied with Mr Sullivan’s direction as best she could. 

184   I do not accept that Mr Sullivan was motivated by concern for Ms Palmer’s health.  I find the tone of his email to be aggressive and ill-considered.  I find that Mr Sullivan was annoyed by Ms Palmer continuing to act as CEO and continuing to work in the office.  That is clear to me from the content and tone of his email (Tab 17), as well as his and Ms Palmer’s evidence. 

185   In my view, Mr Sullivan isolated Ms Palmer from the workplace by directing her on Thursday 30 July 2015 to work only from home.  Further, it is clear to me from his email (Tab 17), which refers to his instruction that she ‘[consider] how [she] could align with [her] future career aspirations’ and the fact that he sourced Mark Greenwood to support her with this, that he intended to remove Ms Palmer from the workplace. 

186   I find Mr Sullivan’s actions and approach to be high-handed, unreasonable and, unsurprisingly, caused Ms Palmer to feel concerned. 

Between Friday 31 July and Friday 7 August 2015

Ms Palmer’s evidence

187   Ms Palmer gave evidence that after she received Mr Sullivan’s email on the evening of Thursday 30 July 2015, she had no contact with Mr Sullivan until she emailed him on Friday 7 August 2015.  She gave evidence that she wrote him the following email, to make sure that she was on track with what he wanted and was meeting his expectations (Tab 24): 

Good afternoon Mark

I was wondering if we can catch-up early next week so that I can discuss with you, the progress to date in regards to the report brief on developing and implementing a quality management system for Forrest.  I would like to check that I am on the right track and meeting your expectations. 

In addition, I have a meeting scheduled at the Bunbury office at 11:00am on Tuesday with Andries Pretorius the Manager of Partners in Recovery (PIR) which is a programme with Community First International (CFI). PIR was originally with Medicare Local, but all the Medicare Locals have since closed down and the programme has been transferred to CFI.  As the new Lead Agent, CFI have had to prepare new agreements with host providers – of which we are one.  Andries would like to meet to discuss and sign-off on the new Host Agency Agreement.  Are you happy for me to come in and do this, or would you prefer to meet and sign the Agreement yourself?  We don’t want to postpone this process as payment to us will be expedited upon signage of the agreement.

Regards

Alison

188   In response to Ms Palmer’s email requesting that they catch up to discuss her progress with the total quality management report, Mr Sullivan sent Ms Palmer an email on Sunday 9 August 2015 suggesting they meet up at 11.00 am on Monday 10 August 2015 at WorkWise Advisory Services (WorkWise) (the organisation that Forrest Personnel used for employment-related advice) so that they could talk privately. 

189   Ms Palmer gave evidence that she replied to Mr Sullivan to check whether it was okay for her to come in earlier or whether he would prefer that she did not arrive until 11.00 am.  He responded by email to say ‘yes, that was exactly what I was intending.  Please can we meet at 11 am on Monday, 10 August’.  Ms Palmer gave evidence that the reason she was checking with Mr Sullivan was because by that time she was almost fearful of doing the wrong thing or coming into the office when he had not been expecting her.  She did not want to leave any doubt at all.  She was trying to be absolutely certain about things. 

190   Ms Palmer gave evidence that on Wednesday 5 August 2015, she went to Perth to meet with the career coach, as Mr Sullivan had instructed her to do.  Other than that, she worked for the entire period on the total quality management report. 

Mr Sullivan’s evidence

191   I understood from Mr Sullivan’s evidence that during this period, he did not contact Ms Palmer until he responded on Sunday 9 August 2015 to the email she sent him on Friday 7 August 2015. 

Termination meeting on Monday 10 August 2015

Ms Palmer’s evidence

192   Ms Palmer gave evidence that Mr Sullivan was about 40 minutes late for their meeting on Monday 10 August 2015.  She waited at the WorkWise office until he arrived. 

193   Ms Palmer had brought her total quality management report to the meeting because that is what she thought the meeting was about. 

194   Ms Palmer gave evidence that the first thing Mr Sullivan did at the meeting was sit down and to hand her a termination letter, which was stapled to a document entitled ‘Forrest Personnel Organisational Restructure’ dated 6 August 2015 (Tab 20) (restructure document).  Mr Sullivan said, ‘I’m sorry’ as he handed her the letter and the stapled restructure document.  Ms Palmer read the letter and she understood that she was being dismissed immediately.  The termination letter states (Tab 25): 

Dear Alison,

Re: Organisational restructure

I wish to advise that in consultation with the Board I have decided to restructure Forrest Personnel’s management structure.

I previously discussed with you the need to embed quality systems at all levels of the organisation.  During my tour of Forrest’s sites, a number of staff have identified inappropriate referrals which in some cases may stipulate a case plan that is contrary to the duty of care we have to our client’s [sic] good health and welfare. 

This is deeply concerning.  I have decided that the senior quality role we discussed will require appropriate clinical qualifications.  Regrettably this change requires the streamlining of management functions and makes your current role of Chief Operating Officer redundant. 

Having made a firm decision to implement change, the attached Organisational Restructure Plan is open for consultation to all affected staff until Thursday 14 August at 5:00pm.  Notwithstanding, it is unlikely that the decision regarding your role will be changed and your last day will be Friday 15 August.  You are now on leave with full pay, and your payment in lieu of notice & redundancy will be calculated from that date. 

This decision relates solely to the operational needs of the organisation and is not a reflection on your contribution to the organisation as a senior staff member.  You are encouraged to make use of Forrest’s EAP program and additionally to seek other appropriate supports as previously discussed. 

Regards

Mark Sullivan

CEO

195   Ms Palmer said she was very surprised by the second and third paragraphs of the letter because Mr Sullivan had discussed with her embedding quality systems, but he had not spoken to her about his findings on his trips to other sites or speaking with other staff.   

196   Ms Palmer gave evidence that she felt it was really quite incorrect because he was so new and lacked understanding about the operations of the organisation.  Having not spoken to Ms Palmer, Mr Sullivan had formed an incorrect view about the organisation and how it did things.  She could not understand how streamlining would make the COO position redundant, so it did not really make sense to her.  What was very clear to her was that she was being made redundant and that the decision was made.  It had been typed and signed in a letter, and provided to her. 

197   She had no idea that the meeting on Monday 10 August 2015 would turn into a termination meeting.  Had she known what the meeting was really about, she would have requested a support person as a witness and would have been better prepared about what questions to ask.  Ms Palmer gave evidence that it was a total shock to her and she had not seen it coming.  She had had fears and concerns and she had thought Mr Sullivan might be trying to make her working life uncomfortable.  He had certainly made it clear to her that he did not want her remaining at Forrest Personnel.  But in such a short period of time and with so few meetings with her, she could not believe that her position would be made redundant and that there would be no other positions she could do within the organisation.

198   Ms Palmer gave evidence that she and Mr Sullivan sat side by side at the meeting.  She read the introduction of the restructure document, and she was shocked by how inaccurate it was.  It seemed to her almost deliberately misleading, and then she realised that it was ‘all a fait accompli, this has already been decided and approved’.  Ms Palmer gave evidence that she looked at the new organisational chart at the back of the restructure document and noticed that new positions had been created at the executive level, but no job descriptions were attached.  All the salaries had been blacked out.  She asked Mr Sullivan, ‘would there be other positions I could do?’ and he said to her, which she scribbled down on a piece of paper in the car afterwards ‘there’s no suitable positions for you at Forrest’ and ‘you are to go and that decision’s been made and is final’.  Ms Palmer gave evidence that it was very clear to her that there were no other positions for her and the decision had already been made. 

199   Ms Palmer said the senior executive positions all had names assigned to them except for General Manager Clinical Governance.  Mr Sullivan mentioned very briefly that he specifically wanted someone with a Level 5 Registered Nurse qualification for that position and the salary would not be less than $125,000.  Ms Palmer did not ask anything more about that position because she was excluded from it, not being a registered nurse.  Ms Palmer gave evidence that Mr Sullivan did not speak about any other positions at all. 

200   Ms Palmer gave evidence that she had never discussed her COO position in any way with Mr Sullivan, either at that meeting on Monday 10 August 2015 or any previous meeting.  She never understood at any time during this meeting that there was any negotiation around what was happening or around remaining in the organisation.  Mr Sullivan said very clearly that the decision had been made and it was final. 

201   Ms Palmer gave evidence that the meeting was not adjourned.  She and Mr Sullivan did not leave the room until she was walking out of the door to leave.  They did not take a break while she read the document.  Mr Sullivan sat the whole time beside her, looking at her.  They did not discuss an exit meeting or a bonus.  Ms Palmer stated:

That was the last thing on my mind, I was not thinking exit interview.  That was never ever discussed.  Um, and I never stated, um, or talked about in any way, shape or form a bonus…There was absolutely no discussion, reference or anything in relation to a bonus whatsoever. 

202   Ms Palmer gave evidence Mr Sullivan said she could use the car or have an allowance throughout the redundancy period and could keep any IT equipment she had at home.  She could also keep her work phone and printer.  Mr Sullivan said Ms Palmer could continue to see the career coach to a value of $2,000 and that he would arrange for the Chair to give Ms Palmer a reference.  They did not discuss the number of weeks or amount of money that she would be paid.  Mr Sullivan told her that her entitlements would be calculated at the acting CEO rate. 

203   Ms Palmer gave evidence that the first time she saw any details about the terms of her termination package were in the email Ms Crittall sent to her on Sunday 16 August 2015 (Tab 29). 

204   In cross-examination, Ms Palmer gave evidence that Mr Sullivan did not mention that the General Manager People Culture and General Manager Services positions would both be remunerated at $110,000.  She said he never mentioned wages assigned to positions other than the General Manager Clinical Governance position. 

205   In cross-examination, Ms Palmer denied that Mr Sullivan told her the positions in the document were different from her current position, but that the General Manager Services position was hers if she wanted it. 

206   Ms Palmer gave evidence that she had never had a discussion with Forrest Personnel about notice in the event that she was made redundant.  She was definitely not of the belief that she had until early November to express an interest in continuing in the position.  As far as she was concerned, when she walked out of the termination meeting on Monday 10 August 2015, her employment was over, albeit that the calculations for payment would be made up until Friday 14 August 2015.  There was no suggestion she could make an application for any of the General Manager positions and she was cut off from email on Monday 17 August 2015, so she had no knowledge of the job descriptions, what was going on, or what the process was. 

207   In re-examination, Ms Palmer confirmed that Mr Sullivan never discussed anything with her about what others may have been saying in terms of her commentary about her future with Forrest Personnel.  She gave evidence that Mr Sullivan never indicated to her that anything had been said to him by others. 

208   In cross-examination, Ms Palmer denied that she had a break during the meeting.  She said Mr Sullivan sat beside her for the whole meeting.  Ms Palmer denied she was given the opportunity to get independent legal advice.  She said Mr Sullivan made it clear that the decision was final and that she was finished with the organisation, and the termination letter said so as well.  Ms Palmer denied that she had told Mr Sullivan that she was not interested in any of the new positions, given the drop in salary.  She said that did not happen and she did not know what the salary was.  The only question she had asked him was whether there were any other positions she could do, and he said there were ‘no suitable positions…available to you’ and ‘the decision for you to go has been made and is final’.  Ms Palmer gave evidence that Mr Sullivan was very clear in his tone, and his demeanour was shutting the door on any further conversation around that. 

209   Ms Palmer denied that she was given the opportunity to consider her position carefully.  It was clear to her the decision was made and it was final.  She stated ‘when I walked out of – of WorkWise, it was with the knowledge that I was no longer working for Forrest Personnel.  That’s what I genuinely believed, and nothing that he had said had led me to believe otherwise or led me to think that there was any other avenues [sic] that I could pursue.’ 

Mr Rawet’s evidence

210   Mr Rawet gave evidence that Ms Palmer had told him that she thought the meeting on Monday 10 August 2015 was to discuss her work on the total quality management report.  Instead, when she went into the meeting, Mr Sullivan handed her a document in which she was advised that she was being dismissed.  There was a new structure and no place for her in it.  The only available position was a clinical governance position, for which she was not qualified.  Mr Rawet gave evidence that Ms Palmer was bordering between shock and disbelief, she felt ambushed and her termination was a bolt out of the blue. 

Mr Sullivan’s evidence

211   Mr Sullivan gave evidence that these sort of meetings are formulaic.  At the meeting he started by saying he had some bad news but as she had indicated it may not be a surprise to her, given their previous conversations and what he was hearing around the traps. 

212   Mr Sullivan gave evidence that he raised the possibility of Ms Palmer doing the General Manager Services position, but that it would involve a significant reduction in pay. He was proceeding on the basis of what she had said in the past, that she was not interested in a reduction in pay and that there was a general perception amongst staff that Ms Palmer wanted to leave in any case. 

213   Mr Sullivan gave evidence that he had not wanted to offend Ms Palmer by putting her name in the restructure document, given she had said she would not entertain a reduction in salary. 

214   Mr Sullivan gave evidence that he explained to Ms Palmer that the General Manager Clinical Governance position would be paid at $135,000 and required a Level 5 Registered Nurse qualification which she did not have. 

215   Mr Sullivan gave evidence that if Ms Palmer had said in the meeting ‘actually, I am interested in that much lower pay – lower grade of position, I am interested in getting paid, um, $50,000 less’, that would certainly have changed the restructure document immediately and he would have put her name into the General Manager Services position. 

216   Mr Sullivan agreed that the restructure document that was given to Ms Palmer during the meeting had all of the wages blacked out in it. 

217   Mr Sullivan went on to say that after he explained the structure to Ms Palmer, she said she was not surprised.  He then suggested a 15-minute break, and left her in the meeting room while she read through the document.  When he came back into the room, he followed the formula and said ‘there’s no requirement for you to comment at this point’.   He offered her an opportunity to seek independent advice and said she had the opportunity to go away and reflect on it, and think about her future and what she wanted to do.  Mr Sullivan gave evidence that Ms Palmer said ‘I don’t need to do that’.  He said Ms Palmer pointed out Mr Sullivan had made an error in putting a particular employee’s name in a manager’s position, and asked why he had done that.  He explained it was because she was paid more highly than other Area Managers and Ms Palmer pointed out to him that it was because the employee had a vision impairment and did not receive a car, so she received a payment in lieu of the motor vehicle.  Mr Sullivan said he then said to Ms Palmer, ‘well, that’s what, um, the initial draft is for, it’s to consult on and what ends up happening may be quite different’.  He gave evidence that they then moved straight onto discussing her termination package. 

218   Mr Sullivan gave evidence that he handed Ms Palmer the termination letter after he had talked through the process with her.  He said he handed her the documents and said ‘based on the discussion we’ve had, here are the documents and your feedback can happen now or you can go and reflect on it and you can give feedback later’.  He said that when he came back 15 minutes later, Ms Palmer said she knew how these processes worked and they went straight into discussing her termination package. 

219   In re-examination, Mr Sullivan said that he handed the documents to Ms Palmer and discussed the content of the termination letter and the restructure document with her.  He indicated the documents were facing him, not her.  He said she did not read the letter.  Mr Sullivan went through the dot points from his file note of the meeting (Tab 26) and when they had a break, Mr Sullivan turned the document around to Ms Palmer so that she could see it.  This was Ms Palmer’s first opportunity to read the letter.  

220   Mr Sullivan gave evidence that if Ms Palmer had come back the next day and told him she would take a reduction in pay and the General Manager Services position, he would have said clearly she had the ability.  He stated ‘Um, I would have, ah, that wouldn’t have changed anything.  Also I had said to Alison, “I want to see that you have a career plan with that, that you are actually committed to this role, you commit to the organisation” … clearly she was the most qualified person for that role if she was prepared to do it.  We would have been lucky to get her.’ 

221   Mr Sullivan gave evidence that they then moved straight into discussing Ms Palmer’s termination package and broadly they agreed on what that would comprise, being severance, entitlements, keeping the work car for a period, the printer and phone.  Mr Sullivan said he told Ms Palmer she was not entitled to a bonus but he was prepared to pay her at the CEO rate.  

222   Mr Sullivan said straight after the meeting on Monday 10 August 2015, he handwrote notes in the car which he typed up later that day (Tab 26): 

Meeting commenced at 11:30am:

• Handed copy of attached letter and Version 1 of Restructure to Alison. 
• Stated that the role of COO was no longer required and was to be made redundant. 
• Stated that the new role of GM Clinical Gove required a Clinical Qualification (Nursing, Social Work, OT, Psychology or Physiotherapy) and Alison did not meet key criteria. 
• Stated that the new role of “GM People and Culture” and “GM Services” would both be remunerated at $110K (excl. vehicle) which was a very substantial decrease from Alison’s current remuneration of approximately $155K.
• Stated that these roles were both very different from her current role and it would be unreasonable for me to expect her to apply for a role that represented a significant demotion.  However I was open to her opinion in the matter. 
• Suggested that the meeting should be recessed for 10 mins while Alison had the opportunity to review the documents I had given her. 
• Meeting recessed at 11:40am. 

Meeting reconvened at 11:55pm:

• Alison agreed that she was not interested in any of the new roles given the drop in salary. 
• Alison stated she was aware of how the redundancy would be negotiated but wanted an “Exit Interview” with the Board for the purpose of calculating a bonus she felt was due to her. 
• Stated that I did not agree there was a bonus due to her and it is not provided for in her contract

In discussion it was agreed that: 

• I recognised that she felt she was due a bonus so as a compromise I was prepared to pay her at the rate of Acting CEO for the redundancy.  Her termination payment (leave accruals, redundancy and payment in lieu) will also be calculated at the Acting CEO rate. 
• She can elect to either retain use of her vehicle throughout the redundancy period or will be paid an additional allowance in lieu of same.
• She will retain her computer, phone and printer for personal use. 
• Her last day will be Friday 14th August.  We will co-operate with all reasonable efforts to minimise Alison's tax liability such as allowing her to salary package taxable entitlements. 
• Agreed that while I did not know the circumstances of her relationship with the Board over the last 12 months it had clearly been a stressed on both sides.  Subject to a “clean” separation and signing of a “Deed of Release” I will use my best endeavours to ensure the Board will provide an appropriate reference for Alison and undertake to provide a positive verbal reference in the future.  Penny will assist Ian Peterson by drafting an appropriately worded written reference. 

Alison stated that she felt this was a very fair offer in the circumstances and thanked me for taking a generous approach.  Told her that she should get her own advice and get back to me if there was anything I missed. Told her that Penny would contact her regarding the “Deed of Release” and the reference. 

Meeting closed at 12:10pm

223   Mr Sullivan agreed that the series of dot points in his file note reflects the sequence of the termination meeting.

224   In cross-examination, Mr Sullivan gave evidence that at the meeting he had discussed with Ms Palmer the decision to make her redundant, and gave her a chance to respond prior to handing her the termination letter telling her that her position was redundant and she was to leave the organisation. 

225   In cross-examination, having agreed that the first thing he did was hand Ms Palmer the termination letter with the restructure document attached, Mr Sullivan then gave evidence that he placed those two documents on the table between them.  He said Ms Palmer did not have an opportunity to read them.  He worked through with her that there was to be a restructure, that he did not expect this to surprise her based on her previous comments to him, comments he had heard from others and the agendas of the Board meetings (although he said he could not recall if he had raised the last point with Ms Palmer).  He gave evidence that Ms Palmer did not have a chance to read those documents until he said to her:

Now is the opportunity. Now that I have explained that to you and now I have heard from you that in fact it is not a surprise and that you are expecting it, I’m now going to give you these two documents to read but you do not need to respond to them at this stage.  Alison elected to respond. 

226   Mr Sullivan would not concede that his verbal evidence and his file note were inconsistent.  He insisted ‘I am saying both are right’.  He interrupted Ms Palmer’s representative a number of times and he had to be reminded several times to answer the question. 

Consideration

227   I prefer Ms Palmer’s evidence to that of Mr Sullivan.  His evidence was inconsistent between examination-in-chief, cross-examination and re-examination.

228   Based on Ms Palmer’s evidence of the meeting and Mr Sullivan’s evidence that his file note accurately reflected the sequence of the meeting, I accept that he handed Ms Palmer the termination letter and the restructure document at the start of the meeting.  I find Ms Palmer read the termination letter at the start of the meeting. 

229   Ms Palmer’s evidence, Mr Sullivan’s approach leading up to the meeting, that the restructure document had names against the senior executive positions other than the General Manager Clinical Governance position, that the salaries were blacked out other than for the General Manager Clinical Governance position, and Ms Palmer’s evidence that she would have accepted an alternative position because of her personal circumstances (which I will outline later) lead me to find that Mr Sullivan intended to dismiss Ms Palmer on Monday 10 August 2015.  The fact that Mr Sullivan handed her a termination letter during the meeting is, to me, at odds with the idea that there was a possibility that her employment would not have been terminated at that meeting. 

230   Further, it is clear to me from both their evidence that Ms Palmer had no warning about the true nature of the meeting. 

231   I accept that she expected that they would be discussing her work on the total quality management report.  Ms Palmer was not offered the opportunity to have a support person or any advanced warning about what the meeting would entail, and that leads me to accept her version of events rather than Mr Sullivan’s. 

232   I found Mr Sullivan’s evidence about what occurred at the meeting on Monday 10 August 2015 to be inconsistent, whereas Ms Palmer’s evidence was clear and consistent.  I did not agree with Mr Sullivan’s contention that both his verbal evidence and his file note could be accurate in circumstances where he placed the termination letter and restructure document on the table, not allowing Ms Palmer to read it until the break.  That, to me, is implausible and inconsistent with his own file note and his evidence in re-examination that he handed Ms Palmer the termination letter.

233   I deal with the issue of consultation from [238] – [279]. 

234   I find Mr Sullivan told Ms Palmer that the General Manager Clinical Governance position required a registered nurse qualification.  I find that Mr Sullivan did not put the salaries of other positions to Ms Palmer.

235   I find Ms Palmer asked which other positions might be available for her.  Mr Sullivan informed her there were no suitable positions and she was to leave Forrest Personnel. 

236   To the extent of any inconsistency, I accept Ms Palmer’s evidence about this meeting. 

Was Ms Palmer unfairly dismissed?

237   In deciding whether Ms Palmer was unfairly dismissed, I turn first to the question of whether Forrest Personnel consulted with Ms Palmer.

Did Forrest Personnel consult with Ms Palmer?

Ms Palmer's evidence

238   Ms Palmer gave evidence that prior to the meeting on Monday 10 August 2015 Mr Sullivan had never asked her anything about the COO position, its functions, duties and tasks.  The only thing he had said to her was that there would be a role for Ms Palmer in the quality agenda, but he had not explained what that might be.  Ms Palmer gave evidence that the Chair sent all staff an email on 13 February 2015 saying that the Board had met and decided it wanted to have an organisational review of systems, structure, procedures and policies.  That email stated 'the current executives will remain in place until 30 June'.  Ms Palmer was on leave at the time the email was sent and asked the Chair several times what it was about and for the terms of reference.  Even as acting CEO she was not privy to or involved in any of those conversations.

239   Ms Palmer also gave evidence about two documents she prepared for the Board which were tendered at the April 2015 Board meeting.  She wrote an Organisational Review Document (Tab 5) which included some options for the Board to consider.  Ms Palmer gave evidence that the Board never discussed it at the meeting or provided her with any feedback.  Ms Palmer also prepared a Corporate and Leadership Structure document (Tab 6).  That document contained information for newer Board members about the operating structure at the time and it included a range of future options.  Ms Palmer gave evidence that those scenarios were not discussed or approved at the Board meeting.

240   In cross-examination, Ms Palmer gave evidence that she did not say at any time that the COO position should be made redundant, she was only suggesting that the CEO and COO positions could be joined if she were continuing in the position because she had the operational management experience to do both.

241   Ms Palmer gave evidence about the Board minutes from May 2015 (Tab 7) which refer in the second last dot point on the first page to:

Budget concerns if there was both a high level CEO and COO.  The proposition from the Acting CEO to make the COO position redundant was put forward however, never ratified to join the two positions.

242   Ms Palmer said that this was minuted in the context of the existing organisational structure remaining in place and the complementary skills of staff.  She gave evidence that if a CEO did not have the operational experience, it would be very hard for him or her to do the combined position, and there would be a requirement to reinstate a COO or something very similar.

243   In cross-examination, Ms Palmer denied that when the Chair told her on Monday 20 July 2015 that she would not be the CEO of Forrest Personnel, she said to him 'you'll have to make me redundant.'  Ms Palmer said in evidence:

No, because in the time that I had been Acting CEO, I took the organisation from a $400,000 deficit to – the last figures that I had seen was close to $100,000 in the positive.  So there’d been nearly a half a million dollar turnaround and things were heading in the right direction.  And I absolutely refute that I said in any way, shape or form, or implied or inferred that the COO position should be made redundant.  That’s not – not correct at all.

244   It was put to Ms Palmer in cross-examination that in his email dated Sunday 2 August 2015 (Tab 19) Mr Sullivan states:

I am still finding my way, and I have not finished the process or determined what I will recommend to the Board. Importantly, I have not had the opportunity of a detailed discussion with the Board and Management Team. 

Mr Rawet's evidence

245   Mr Rawet gave evidence that Ms Palmer had said to him that her proposal to the Board in May 2015 to merge the COO and CEO positions was in the context of the same person doing both.  It was not sustainable but it could be done for a period of time.

Ms Crittall’s evidence

246   Ms Crittall gave evidence that Forrest Personnel’s redundancy process checklist (Exhibit A13) was part of the standard procedure.  The checklist includes consideration about whether the redundancy is genuine, whether the person could be redeployed, a consultation process and the opportunity to have a support person.  Ms Crittall said none of the procedures were followed by Forrest Personnel in Ms Palmer’s case. 

Mr Sullivan's evidence

247   Mr Sullivan gave evidence that by Thursday 6 August 2015 he had finished the process of what he would recommend to the Board, having read almost through the night every Board minute, every strategic plan for a year and going through all the position descriptions and budgets.  He created the restructure document (Tab 20) and he circulated it to the Board on Thursday 6 August 2015.

248   In cross-examination, Mr Sullivan agreed that having made the decision on Wednesday 5 August 2015 to terminate Ms Palmer's services, he did not consult with Ms Palmer between that date and the termination meeting.  Mr Sullivan said he had already consulted with Ms Palmer.

249   In examination-in-chief, Mr Sullivan gave evidence that Ms Palmer had said to him she expected there would be a redundancy, on two occasions she had put a report to the Board saying the COO position should be made redundant and she had made it clear she was not interested in a pay decrease.  On that basis, he did not put her name in the restructure document.

250   Mr Sullivan also gave evidence that he did not include Ms Palmer's name in the restructure document because he had read through the Board minutes, read through all emails to and from Ms Palmer and spoken to staff.  He said all staff were of the opinion that Ms Palmer was going to leave.  He said either Ms Palmer had told them or emailed them to that effect.  Mr Sullivan did not give evidence that he had spoken directly to Ms Palmer when he was working on the restructure document and it was also not put to Ms Palmer that 'all staff were of the opinion that she would leave'.

251   In cross-examination, Mr Sullivan agreed that the Chair told him on the morning of Saturday 18 July 2015 that Ms Palmer was seeking to take leave 'potentially for good' and that was the first time he heard it.

252   Mr Sullivan agreed in cross-examination that he did not put to Ms Palmer at the meeting on Friday 24 July 2015 that the Chair or other staff had told him she was going to move on.

253   In cross-examination, Mr Sullivan gave evidence that he searched Ms Palmer's emails on the weekend of Saturday 1 August and Sunday 2 August 2015.  Mr Sullivan agreed in cross-examination that he did not discuss those emails or the comments made by staff about Ms Palmer intending to leave Forrest Personnel with Ms Palmer before the termination meeting.

254   Mr Sullivan gave evidence that Ms Nankiville (a Regional Manager at Forrest Personnel) told him that Ms Palmer was going to leave and that she was just waiting on whether she could get a redundancy package.  Mr Sullivan checked the email system and found an email where Ms Palmer said she was going to leave and that she was hoping to get a redundancy package. 

255   In cross-examination, Mr Sullivan gave evidence that he wrote the termination letter after he had looked through a large number of emails where the staff and Ms Palmer had told the Board on two occasions that she wanted to be made redundant.  He said she also told him at their first meeting she wanted to be made redundant and he confirmed that in the termination meeting.  He said had Ms Palmer corrected that impression he would have immediately amended it into his plans.

256   Mr Sullivan agreed in cross-examination that he did not raise the issue of the emails or staff commentary with Ms Palmer before the termination meeting.  When it was put to him in cross-examination that he should have put the view he had formed on the basis of those emails and the conversations to others to Ms Palmer if he had carried out consultation, Mr Sullivan replied, 'Um, I did put them to the applicant at that meeting'.

257   In cross-examination, Mr Sullivan agreed that he had not discussed the alternative position of General Manager Services with Ms Palmer prior to the termination meeting.

258   Mr Sullivan gave evidence in cross-examination that the restructure document changed substantially between its four drafts and said that every comment from staff was noted.  He described it as a document that was consulted on and changed.  When asked why the same level of consultation was not applied to Ms Palmer, Mr Sullivan insisted 'there was that level of consultation'.  I understand that he was referring to the meeting on Friday 24 July and Monday 27 July 2015 and also the restructure document itself.  He said the restructure document 'clearly laid out how people could input to the process…and people actively and vigorously did that'.  Mr Sullivan agreed that on his evidence of Ms Palmer's state on Friday 24 July and Monday 27 July 2015 she could hardly be in a position to make decisions about her future.  Mr Sullivan then said 'can I put the context of self-harm as being more self-professional-harm, um, but certainly yes, I did not think that she was in a position to make firm decisions'.  He then denied that he now relies on that as consultation, having just given evidence that it formed part of his consultation. 

259   Mr Sullivan gave evidence that he gave Ms Palmer an opportunity to feed back to the process and that was consultation.  He said the restructure document dated 24 August 2015 was distributed by email.  It was put to Mr Sullivan that Ms Palmer had been cut off email by that date.  Mr Sullivan gave evidence that she could have participated in the review because she had received the first draft.  She could still have emailed restructure@fpi.org.au.  Ms Palmer's emails were still active for another two weeks, 'or they may have been cut off on Friday [14 August 2015].  I'm not sure'. 

260   Mr Sullivan agreed that he did not make Ms Crittall redundant and then offer her the General Manager People and Culture position.  He simply rang her and offered her the position.  However, he would not agree that he used a different process for Ms Palmer.  He said 'um, I didn't.  Um, Ms Palmer had the opportunity of a position, that with a significantly reduced role'.

261   In cross-examination, Mr Sullivan agreed that Forrest Personnel invited internal applicants to apply for the General Manager Services position after 16 August 2015, at a time when Ms Palmer no longer had access to work email.

Consideration

262   I accept Ms Palmer's evidence and I find that she was not consulted.

263   Mr Sullivan gave evidence that all staff were of the opinion that Ms Palmer would leave.  However, Forrest Personnel did not lead any evidence from other Forrest Personnel staff to that effect and it was not put to Ms Palmer that all staff thought she would leave.

264   I do not agree with Mr Sullivan’s characterisation of Ms Palmer’s statements in her emails to other staff.  She does not state that she is going to leave nor that she is hoping to be made redundant.

265   I do not accept Mr Sullivan's evidence that if Ms Palmer corrected his view that she wanted to be made redundant, he would have immediately amended his plans.  I do not accept that she had ever told him she wanted or was going to be made redundant.  Further, I accept Ms Palmer’s evidence that Mr Sullivan did not confirm with her at the termination meeting that she wanted to be made redundant. 

266   I do not accept that Mr Sullivan would have amended his plans.  I find that Ms Palmer asked whether there were any other positions she could do and Mr Sullivan made it clear to her that there were not.  Further, having handed Ms Palmer the termination letter saying her position was made redundant, that her last day was Friday 15 August [sic] and that that was very unlikely to change, I do not accept Mr Sullivan’s suggestion that there was consultation. 

267   Mr Sullivan's evidence that he did not use a different process for Ms Palmer to the one he used with Ms Crittall is simply incorrect.  It was clear from his evidence that he used a different process.

268   I do not accept that Ms Palmer could have participated in the review or in applying for the General Manager Services position because her work emails were cut off after 16 August 2015.

269   I do not accept Mr Sullivan's evidence that if Ms Palmer had said to him the day after her termination that she would accept the General Manager Services position, Forrest Personnel would have been lucky to have her.  That evidence is not credible in light of the termination letter and Mr Sullivan's approach in isolating Ms Palmer more generally.

270   Consultation has long been recognised as an integral part of fairness in the employment relationship where an employer seeks to restructure or introduce other workplace change.  In The Federated Clerks’ Union of Australia v The Victorian Employers’ Federation [1984] HCA 53; (1984) 154 CLR 472, Wilson J said ‘Consultation between employers and employees, preceded by the distribution of adequate information is not only sensible but essential if commerce and industry are to meet the challenge of progress in a spirit of harmony and with some regard for human dignity’ (502).

271   In TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172, Toohey J said:

Consultation is no empty term.  “The requirement of consultation is never to be treated perfunctorily or as a mere formality” Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 at 1124.  That decision and others, for example, Rollo v Minister of Town and Country Planning [1948] 1 All ER 13 at 17 and Sinfield v London Transport Executive [1970] 1 Ch 550 at 558, make it clear that a responsibility to consult carries a responsibility to give those consulted an opportunity to be heard and to express their views so that they may be taken into account (178-179).

272   I agree with the submissions made by Ms Palmer's representative that consultation is not perfunctory advice about what is about to happen.  It must involve providing a person with a genuine opportunity to influence the outcome of the proposal to be implemented: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd [2010] FCA 591; (2010) 198 IR 382 [148] (Logan J).

273   In that case, his Honour makes it clear that it is not sufficient to inform an employee about what is to occur.  He states ‘[t]here is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that?”.  Only in the latter case is there consultation’ [45]. 

274   Mr Sullivan seemed to think that consultation involved considering statements made by Ms Palmer prior to a decision being made to restructure her position (which I do not accept that Ms Palmer made, in any event), proposals to the Board which were not discussed or considered by the Board, comments made by other staff members about Ms Palmer's intentions and reading through Ms Palmer's emails to see whether she had said anything to others about the subject.  Mr Sullivan says that he put the conclusion he had arrived at to Ms Palmer at the termination meeting and she could have responded and told him that his view was incorrect but she did not. 

275   As I have stated, I do not accept Mr Sullivan’s version of events.  Even if I did, I would not consider that Mr Sullivan consulted with Ms Palmer.

276   Consultation would have to involve giving Ms Palmer an opportunity, before a final decision was made, to consider a proposal to make her position redundant and to provide feedback to Forrest Personnel. 

277   Putting the matter to Ms Palmer at a meeting with no warning and providing her with a termination letter and a restructure document that included the names of other employees against all of the management positions, except the one for which he indicated she was not qualified, does not constitute, and is not consistent with, consultation.

278   Ms Palmer had no opportunity to be heard or to influence the outcome of the restructure.  Mr Sullivan simply informed her that her position was redundant and there was no alternative position for her at Forrest Personnel.

279   I have no difficulty finding Forrest Personnel did not consult with Ms Palmer.

Would Ms Palmer have accepted an alternative position?

Ms Palmer's evidence

280   Ms Palmer gave evidence that she did not want to be unemployed for a number of reasons.  First, for financial reasons because she and her partner were in the process of building a new house and they had major progress payments to make.  She had always been the major breadwinner in the family and she had worked continuously for most of her life, for over 30 years.  Ms Palmer gave evidence that all of her friends are local and her networks are very important to her because she does not have family.

281   Ms Palmer gave evidence that because of her experience in the employment industry and intense knowledge of the labour market, she knew it would be very difficult to find alternative employment.  Her partner of 16 years is based in Bunbury.  His working situation meant that even if Ms Palmer were successful getting a job elsewhere, he had a very restrictive job and it would have been very difficult for him to find work elsewhere.  Ms Palmer's partner has a secure, specialised government job that he has had for 27 years.  Ms Palmer gave evidence that it is rare in Bunbury and its surrounds to find any positions remunerated even up to $90,000.  So all of these factors together meant that Ms Palmer would never have preferred to have been unemployed to working.

282   Ms Palmer was cross-examined about the email she sent to Ms Acarregui on 10 June 2015 (Exhibit A10) in which she stated 'So, I could be looking for work in the not too distant future…I can walk away with some level of happiness'.  Ms Palmer gave evidence that she meant she could have walked away if she had another job to go to, knowing in her mind the organisation was being well handled and her statement about looking for work in the not too distant future meant that she could be looking for work at any point in time.  It did not mean that she was going to resign or voluntarily leave without finding other employment. 

283   In cross-examination, Ms Palmer said she did not believe that there would have been discussions within the organisation about whether she might be leaving.  She does not think that people thought she would be voluntarily leaving and she did not enter into those discussions.  Ms Palmer gave evidence that it did not bother her to step back into the position of COO.  In fact, she had been a CEO in the past and resigned to go on to other positions that were not at the CEO level.  She had never said to Mr Sullivan or to anybody else that she only wanted to be a CEO.

284   Ms Palmer gave evidence that in her email to Ms Acarregui she described her disappointment when the Board decided to advertise the CEO position, explaining that she was quite devastated and that it felt like a slap in the face.  Ms Palmer said that she did not feel very optimistic because she had previously been told if it were advertised she would not get it so she could be looking for work in the not too distant future.  Her email states (Exhibit A10):

If things go belly-up for me, it's likely David and I will move interstate as there's not a lot for me in Bunbury and if we had to move, I would rather go interstate than to Perth. At the end of the day, I really want for FP to get a really good CEO and if I am not it – then as long as the Board make a really good decision, I can walk away with some level of happiness (at least for everyone else!).

285   She goes on to say in that email she does not think she will be retiring for a very long time to come. 

286   On 7 July 2015, Ms Palmer sent an email to Ms Nankiville (Exhibit A12):

Hi Paula

There has been suspicious silence in regards to the business-wide review that Ian flagged back in Feb. I suspect nothing has progressed and now it will all be determined by the new CEO. I am sure that if the new CEO doesn't know anything at all about DES, government contracts, Star Ratings, PIR, IPS, My Way and other things – then they would want a COO to remain, at least until they were up to speed. I don't want to end up doing all the work like I did before for Mike and have a new person purely concentrating on acquiring new non-government funding, which is what I think the Board are looking for.

If they do want the COO to remain, that person won't be me as I couldn't face staying after everything that's happened and what the Board has put me through these past 9 months and more. Another alternative is that the COO position is made redundant (at least I'd get a few extra weeks pay!). In saying all of that, I would be absolutely devastated to leave FP. I have invested so much of myself and believe in everyone and what this organisation could be (and what it is already growing into) – but this whole experience has been too shattering and perhaps because of it, I would no longer even be the best COO and it's time for one of the other Managers to be given the opportunity.

I don't exactly know what I 'would' do. Strong likelihood that I would look interstate for work. Anyway, will cross that bridge when I come to it and sit in blissful ignorance for the next couple of days.

Ali

287   Ms Palmer explained that she had sent that email the day after she was interviewed for the CEO position and she was expressing her concerns in the email but she was trying to explain that if everything were to stay as it had been before, that she really would not be very happy, but she definitely would not be unemployed as a preference.  No doubt, if she was not very happy, she would have looked for other work, but she would have been devastated to leave Forrest Personnel and she would have remained employed until she had found other work.

288   Ms Palmer was cross-examined in relation to this email (Exhibit A12).  Ms Palmer said that her statement that if they do want the COO to remain, that person would not be her meant that she was expressing the feelings she felt on that particular day in that she had not been happy with the changes made to the interview panel the day before and she had real concerns about the outcome of the recruitment process.  Ms Palmer gave evidence that she would never voluntarily put herself and her partner in a position where she was not working, which is not to say that she would not have at some point started looking for a job, but she would not resign unless she had another job to go to. 

289   Ms Palmer gave evidence that there is very little difference between her COO position and General Manager Services position (Tab 21; Exhibit A6).  She said there is nothing in the General Manager Services position that she could not do and had not been doing previously.

290   Ms Palmer gave evidence that she could have carried out the General Manager People and Resources position as well (Tab 22).

291   Ms Palmer gave evidence that she is 100% certain she could perform everything in the General Manager Clinical Governance position and she had been doing so.  She said that although Mr Sullivan had told her at the termination meeting very specifically that he wanted someone with a Level 5 Registered Nurse qualification in the position, in fact the job description does not call for any requirement for any allied health professional or any specific professional qualification at all (Tab 23).

292   Ms Palmer gave evidence that she could absolutely perform the position of General Manager Service Innovation.  She said there was nothing in the job description that she had not extensively done before (Tab 41).

293   At [3.10] of Forrest Personnel's Amended Particulars, Forrest Personnel states that Ms Palmer had previously stated to Mr Sullivan that she was not interested in continuing in a new position that entailed a reduction in responsibility and salary.  Ms Palmer gave evidence that this is totally incorrect.  There had never been a discussion about any of the new positions, or even touching on any of the positions that might become available, or any reduction in salary or otherwise.  She knew nothing about the restructure or new positions that were being proposed or the salary of those positions.  Before the termination meeting on Monday 10 August 2015, Ms Palmer had not had any discussions with Mr Sullivan about continuing in a position with a reduced salary or in a position with reduced responsibilities.

294   Ms Palmer gave evidence in examination-in-chief that her personal circumstances were that she did not want to be unemployed.  She had been working in the industry for decades so she knew how difficult it would be to secure other employment, particularly at or even close to the level she had been working at so she went home in disbelief after the termination meeting.

295   Ms Palmer gave evidence that up until Sunday 9 August 2015 there had been no discussions between her and her partner about the possibility that she might lose her job.  She would have accepted an alternative position due to her financial circumstances. 

Mr Rawet's evidence

296   Mr Rawet gave evidence that there were very limited positions that he could do given the nature of his work.  He described himself as not particularly mobile at all.  Mr Rawet gave evidence that if Ms Palmer was out of work there was virtually no likelihood that she could find alternatives in Bunbury which may mean that they would have to move interstate.  He said each time over the years when they had discussed the issue they had concluded they were far better off remaining in their positions in Bunbury.

297   Mr Rawet gave evidence that Ms Palmer had had reservations about applying for the CEO position and that she was not surprised when she was not appointed.  He gave evidence that Ms Palmer loved working for Forrest Personnel and really enjoyed the people there. 

298   Mr Rawet gave evidence that Ms Palmer told him that if she were working for a good CEO at Forrest Personnel she would find it a good situation and a learning opportunity.  If she did not get the CEO position, she expected that she would return to her substantive COO position.

299   Mr Rawet said that he and Ms Palmer had not discussed her accepting a lower rate of pay because that was not something that was under consideration.  It was not even a consideration that she would leave employment.  Mr Rawet explained there was no lower salary position on offer.  If there had been, in the $120,000 vicinity, he would certainly have said 'well we need to take it'.  Mr Rawet explained that they had not anticipated Ms Palmer being out of work.  He had made investment decisions on the basis of her continued employment and they had made the first of two out of five or six payments on their investment property at the time.  Mr Rawet said Ms Palmer had never spoken with him about the COO position being too expensive or that she would have to be made redundant.  Mr Rawet said that Ms Palmer had said to him the CEO position was overpriced.

300   In cross-examination, Mr Rawet gave evidence that Ms Palmer had never said to him that she would not be willing to accept any reduction in salary or any demotion.

Ms Crittall's evidence

301   Ms Crittall gave evidence that when she saw the restructure document, she noticed that there were two positions that Ms Palmer would have been perfect for.  The first one was the General Manager Clinical Governance position.  She gave evidence that she told Mr Sullivan, 'this is exactly what Alison is passionate about', and said that Ms Palmer would be perfect for the position.  Mr Sullivan replied 'no', that he needed need someone with a medical qualification like ‘a Level 5 nurse’.  Ms Crittall said to him that it would difficult to find someone with high level business acumen and a nursing degree.  She suggested they could give the position to Ms Palmer and just contract in the medical experience.

302   Ms Crittall gave evidence that the General Manager Clinical Governance position (Tab 23) in the end did not require an allied health qualification.  She said the position was not advertised but rather given to Ms Graham who has a social work background and is not a clinical nurse.

303   Ms Crittall gave evidence that the General Manager Services position (Exhibit A6) was circulated internally shortly after 16 August 2015.  Only two managers were interested in applying for that position, Ms Bagshaw and Ms Lynch.  Ms Crittall explained to Mr Sullivan that both Ms Bagshaw and Ms Lynch wanted the position and that whoever missed out would feel very disgruntled.  Ms Crittall gave evidence that Mr Sullivan suggested to her that what they would do would be to make another General Manager position called General Manager Service Innovation.  Ms Bagshaw was given the General Manager Services position and Ms Lynch was given the General Manager Service Innovation position.  For that reason, the General Manager Service Innovation position was not in the restructure document (Tab 20).

304   Ms Crittall gave evidence that there is no difference between the General Manager Services and COO position.  She said they are the same position.  When she spoke to Mr Sullivan about Ms Palmer being perfect for the General Manager Clinical Governance position she also said to him that the General Manager Services position is exactly the same as the COO position.  Ms Crittall gave evidence that Mr Sullivan did not respond to that.  They had this conversation in the afternoon of the day Ms Palmer was made redundant.

305   Ms Crittall denied that the position of COO was split between General Manager Services and General Manager Clinical Governance and that the tasks a COO would do would be split between those two positions.  Ms Crittall said, 'No, it was General Manager Services’.  Ms Crittall also denied in cross-examination that the General Manager Services and General Manager Service Innovation positions were split.  Ms Crittall said the General Manager Services position was not split, another position was created.  Ms Crittall said that the person who took on the General Manager Service Innovation position was the Regional Manager for Busselton and Margaret River, who would be still running her sites and doing her normal job, but would have some additional responsibility of sourcing tenders and grants.  The position was not divided into two.

Mr Sullivan's evidence

306   Mr Sullivan gave evidence in cross-examination that Ms Palmer was capable of doing the General Manager Services position.  He said the COO position is a different position altogether to the General Manager Services position.

307   In cross-examination, Mr Sullivan gave evidence that when the General Manager Clinical Governance position was advertised it did not require a clinical nurse qualification.  He said that was clearly an oversight.  He then agreed that the person in the position was not a clinical nurse but a social worker.  He said a clinical governance position required a clinical qualification, even though that was not in the job description.  Mr Sullivan gave evidence that he could not recall Ms Crittall telling him Ms Palmer was capable of doing that job.  He said he was not aware that Ms Palmer is one unit short of a social work qualification.

308   In cross-examination, Mr Sullivan gave evidence that he did not recall speaking with Ms Crittall about the prospect of Ms Lynch leaving if she was not the successful candidate for the General Manager Services position.  He did recall a conversation about the two potential applicants for the position. 

309   Mr Sullivan gave evidence that the COO position covered all four positions of General Manager Services, General Manager People & Resources, General Manager Clinical Governance and General Manager Service Innovation.

Consideration

310   I accept Ms Palmer's evidence that she would have accepted a lower salary in an alternative position to ensure that she had a job, at least while she looked for other employment.  Ms Palmer’s evidence was plausible, clear, consistent and definite.  Her evidence was also supported by Mr Rawet's evidence. 

311   I accept that Ms Palmer thought it would be difficult to find a suitable position at her senior level in Bunbury.  Indeed, it has been.  Ms Palmer has not been able to secure a position since her dismissal. 

312   I find Ms Palmer's explanation of the statements made in her emails to Ms Acarregui and Ms Nankiville plausible.  At their highest, they were statements about how she felt at that particular time.  In my view, they do not establish that Ms Palmer anticipated or wanted to be made redundant or would not have accepted an alternative position.

313   I prefer Ms Crittall's evidence to that of Mr Sullivan's in relation to their discussion about the creation of the General Manager Service Innovation position.  This is because Mr Sullivan gave vague, verbose responses to these questions.  Ms Crittall's evidence was plausible, definite and clear.

314   I accept that the primary functions of the COO position continue to be performed by the General Manager Services and some aspects of the position were incorporated into other positions.  Given the reduced status and pay of the General Manager Services position, I find the COO position was made redundant.

315   Whether or not the COO position was made redundant, it is clear to me that Ms Palmer was capable of performing the General Manager Services, General Manager Clinical Governance and General Manager Service Innovation positions. 

316   On the evidence, I have no difficulty finding that Ms Palmer was not offered an alternative position. 

317   Further, I find that if Forrest Personnel had consulted Ms Palmer and offered her one of these alternative positions, she would have accepted any of these alternative positions rather than be unemployed.

 Deed

318   At the hearing, the parties gave evidence about a deed of settlement (deed). 

319   During the course of the four-day hearing, Forrest Personnel placed considerable emphasis on the issue of the deed.  I prefer Ms Palmer’s version of events and find that the deed was not part of the discussion at the termination meeting on Monday 10 August 2015.  Having made Ms Palmer redundant, Forrest Personnel agreed to pay her a termination package.

Ms Palmer’s evidence

320   Ms Palmer gave evidence that her termination package was never contingent on her signing anything.  She and Mr Sullivan never spoke about a deed of release or a deed of settlement at the termination meeting on Monday 10 August 2015.  It was subsequently raised by Ms Crittall and that was in the context of obtaining a reference for Ms Palmer by the Chair.  Ms Palmer explained that she wanted to see the deed because at that point, she had yet to see any dollar amounts and was not aware of what Forrest Personnel would be paying her in respect of her severance payment.  When the deed was sent to her on Sunday 16 August 2015, the figures did not look quite right to her.  When Ms Palmer queried them, Forrest Personnel realised it had short changed her two weeks on her notice period. 

321   Ms Palmer gave evidence that she expressed to Ms Crittall that she wanted to keep open the option of taking legal action, if that was a course she wanted to go down, and that she was not prepared to sign a deed.  Ms Crittall indicated to Ms Palmer that signing the deed was to obtain a signed reference from the Chair, and that a signed copy of the reference was being withheld from Ms Palmer until she signed the deed.  Ms Palmer did not sign the deed and she did not receive a signed copy of the reference. 

322   In re-examination, Ms Palmer confirmed that the first time she saw the amounts and the numbers of weeks which made up her termination package was when Ms Crittall sent an email to Ms Palmer’s work email address on Sunday 16 August 2015 (Tab 29), which attached the draft deed.  Ms Crittall forwarded that email to Ms Palmer’s personal email address on Monday 17 August 2015.

323   In cross-examination, Ms Palmer denied that she negotiated changes to the terms of the deed with Ms Crittall.  She said she merely pointed out that there were errors in the minimum number of weeks owed in lieu of notice.  In relation to the email Ms Palmer sent to Ms Crittall on Monday 24 August 2015 (Tab 35), Ms Palmer said that her statement, ‘both seem good now’, was in relation to the number of weeks’ wages she was entitled to being correct because earlier there had been errors made.  She went on to explain that she had had numerous conversations with Ms Crittall to confirm that she had no intention of signing the deed because Ms Palmer wanted to leave her options open to take legal advice or legal action. 

324   Ms Palmer denied that she intended to sign the deed when she wrote another email to Ms Crittall on 24 August 2015 (Tab 34), saying ‘The rest is fine.  It would be good to have a signed copies (sic) of both documents before I go on leave on Friday’.  Ms Palmer said she was not intending to sign it, she just wanted to have everything sorted and available to her, in case she decided not to take legal action.  Ms Palmer denied that Ms Crittall had told her that she needed a copy of the deed before payroll could be run.  Ms Palmer gave evidence that the only conversations with Ms Crittall in relation to signing the deed were about whether Ms Palmer wanted a signed copy of the reference given to her. 

Ms Crittall’s evidence

325   Ms Crittall gave evidence that she suggested to Mr Sullivan that Forrest Personnel should get Ms Palmer to sign a deed if she were agreeable to it, and Mr Sullivan said he thought that was a good idea.  Ms Crittall said Mr Sullivan then made Ms Palmer receiving a signed reference from the Chair contingent upon Ms Palmer signing a deed. 

326   Ms Crittall gave evidence that she had made a mistake in calculating the number of weeks’ notice that Ms Palmer should be paid.  The initial calculation was two weeks short of what Ms Palmer was entitled to under her contract of employment and in accordance with the statutory entitlement because Ms Palmer was over 45 years old. 

327   Ms Crittall gave evidence that Ms Palmer’s main concern about the deed was to see exactly how much money she would be receiving.  Ms Crittall said that Ms Palmer was never actually going to sign the deed because Ms Palmer believed she had been unfairly treated and wanted to leave the option open to take legal action. 

328   In cross-examination, Ms Crittall confirmed that Ms Palmer ‘never actually committed to signing the deed of settlement’.  It was put to Ms Crittall that she had said, in an email to Forrest Personnel’s payroll officer which was copied to Mr Sullivan, ‘I am expecting the deed back in the next couple of days…however we will only send out her reference once we get the Deed back’ (Tab 40).  Ms Crittall gave evidence that she was thinking the deed may come back, but she knew from conversations with Ms Palmer that Ms Palmer was not going to send the deed back.  Ms Crittall also said that she told Mr Sullivan, ‘I don’t think Alison’s going to sign the deed’.  When asked whether she lied when she said she was expecting the deed back, Ms Crittall said, ‘well, um, I guess it was a difference between my role as HR and my conversations that I’d had with Alison outside.’  She agreed that there was possibly a conflict between her being in HR and a friend of Ms Palmer.  Ms Crittall went on to say that she was expecting the deed back, but she did not say it would come back. 

Mr Sullivan’s evidence

329   Mr Sullivan gave evidence that he could not recall whether he and Ms Palmer discussed a deed at the termination meeting on Monday 10 August 2015.  He said that they were discussing a separation package, ‘a separation package will always include a deed of release…if I’m negotiating a separation package with a senior staff member, I assume they know that what – that’s what that means’. 

330   In cross-examination, Mr Sullivan seemed to suggest that figures were discussed with Ms Palmer at the termination meeting and that he put the amounts of money that were involved to Ms Palmer, but that he did not tell her the exact amounts.  He agreed that the exact amounts were unknown.  He also agreed that it was reasonable for Ms Palmer to look at the amounts when Ms Crittall provided them in the deed.  His file note of the termination meeting does not mention that figures were discussed at the meeting.  In cross-examination, Mr Sullivan disagreed that paying Ms Palmer at the CEO rate was a compromise between what she thought she might be entitled to and his own belief that nothing should be paid.  When his file note of the termination meeting was put to him, which states ‘I recognised that she felt she was due a bonus so as a compromise I was prepared to pay her at the rate of Acting CEO’, Mr Sullivan then contradicted his earlier evidence. 

331   In cross-examination, Mr Sullivan agreed that as discussions unfolded, it became a position that if Ms Palmer did not sign the deed, she would not get a signed reference. 

332   Mr Sullivan insisted that Ms Palmer resigned.  He said that the deed was sent to her and it said ‘I am going to terminate my employment in return for this consideration’.  Ms Palmer replied by email ‘both documents are fine now’.  Mr Sullivan said ‘my definition is that is a resignation’.  When Mr Sullivan was asked to read the one-page deed (Tab 33), he did so and gave the following evidence ‘Okay.  It says, um: ‘I will hereby have taken, accepted and agreed to accept in good faith this and that in return for that the employment is terminated’’.  When Ms Palmer’s representative asked him where in the deed it said that, Mr Sullivan was unable to point to it.

Consideration

333   I prefer the evidence of Ms Palmer to that of Mr Sullivan.  Mr Sullivan’s evidence was implausible, inconsistent and in some respects misleading.  Ms Palmer’s evidence was plausible, clear and consistent.

334   I consider Ms Crittall, as a friend of Ms Palmer, was in awkward position while Ms Palmer’s termination payment was being finalised.  I accept that Ms Palmer had told Ms Crittall that she did not intend to sign the deed. 

335   While I do not find Ms Crittall was actually expecting Ms Palmer to sign the deed, and therefore Ms Crittall’s statement about expecting the deed back in the next couple of days was not accurate, it is clear to me from the evidence and Ms Crittall’s email, which is copied to Mr Sullivan, that Mr Sullivan approved payment being made to Ms Palmer without requiring Ms Palmer to first return a signed deed.  I also accept that Ms Crittall told Mr Sullivan that she did not think Ms Palmer would sign the deed. 

336   In addition to Mr Sullivan’s evidence being inconsistent, I found Mr Sullivan’s evidence in relation to a termination package always including a deed to be implausible.  While it may be a common practice for a termination package to include a deed of release, it is by no means an implied part of such an arrangement.  Mr Sullivan’s evidence that it is leads me to conclude that his experience in these matters is questionable and it affects his credibility as a witness on this issue. 

337   In any event, even on Mr Sullivan’s evidence, I find that Ms Palmer’s termination package was not contingent upon her signing a deed.  I accept that Ms Crittall suggested that Forrest Personnel should get Ms Palmer to sign a deed because it was on Ms Crittall’s checklist.  Ms Palmer was entitled to see what her termination package comprised.  I find that is what Ms Palmer mean when she said ‘both docs look good now.’

338   I find Forrest Personnel dismissed Ms Palmer and agreed to pay her entitlements at her acting CEO rate.  Ms Palmer did not agree to take no action against Forrest Personnel.  She was entitled to bring the claim that she brought. 

 Conclusion – unfair dismissal

339   In order to be plausible and persuasive, Mr Sullivan’s evidence relies upon Ms Palmer having given him cause to think she had mental health issues.  I find she did not.  I make that finding based on the evidence of Ms Palmer, Ms Crittall and Mr Rawet, as well as Ms Palmer’s emails and text messages.  I find that at most Ms Palmer was understandably upset about the way she had been treated by the Board and about having missed out on the CEO position. 

340   I find Ms Palmer behaved in an appropriate and professional manner.  Mr Sullivan had no valid reason to direct Ms Palmer to work from home or to relieve her of her acting CEO duties.

341   I find Mr Sullivan’s treatment of Ms Palmer was harsh and unfair from his second day of employment and continued until Ms Palmer was dismissed. 

342   I find Ms Palmer was left with the impression that her termination was a fait accompli.  Mr Sullivan held the termination meeting off site.  Mr Sullivan directed Ms Palmer not to attend work before the termination meeting.  He did not let Ms Palmer know in advance what was the true nature of the meeting on Monday 10 August 2015.  He did not put to Ms Palmer the possibility of her doing the General Manager Services position before the meeting. 

343   I find Ms Palmer was not consulted about her position being made redundant. 

344   Forrest Personnel did not comply with its obligations under the General Order on Termination Change and Redundancy.

345   I am not satisfied that Forrest Personnel had a valid reason for terminating Ms Palmer’s employment on the ground of redundancy because it failed to consult with her about her impending redundancy: Begg v Clay & Mineral Sales Pty Ltd [1997] FCA 658 (Marshall J).

346   Clearly Ms Palmer did not get a fair go all round. 

347   Forrest Personnel handled the transition to a new CEO insensitively and treated Ms Palmer very poorly indeed.  

348   Mr Sullivan treated Ms Palmer dreadfully.  He sent her aggressive, authoritarian emails in circumstances where Ms Palmer had followed all of his instructions and was attempting to do her job.  Mr Sullivan questioned Ms Palmer’s professionalism and mental health without any reasonable basis to do so and isolated her from the workplace before unfairly dismissing her, all notwithstanding her period of faithful service as a high performing senior employee.

349   There was no reasonable ground for Mr Sullivan’s ‘concern’ about Ms Palmer’s mental health.  I am inclined to think it provided Mr Sullivan with an excuse to isolate Ms Palmer from the workplace and require her to work from home.  There was no evidence that Mr Sullivan was familiar with Ms Palmer’s workspace from home or that he made any inquiry about whether Ms Palmer’s home was a suitable place to work.  After sending Ms Palmer away from the workplace, Mr Sullivan did not contact Ms Palmer to check on her wellbeing.  That leads me to conclude that he was not genuinely concerned about Ms Palmer’s mental health.

350   I find Mr Sullivan expected Ms Palmer to leave Forrest Personnel.  For that reason, he directed her to see a career coach and told her he expected her to be a CEO elsewhere within three to six months.

351   It is not at all clear to me on Mr Sullivan’s evidence that he conducted a fair, objective or comprehensive review of Forrest Personnel, leading to him selecting Ms Palmer for redundancy.

352   I find Mr Sullivan made the decision to terminate Ms Palmer’s employment before Forrest Personnel consulted with staff about its restructure.  Mr Sullivan treated Ms Palmer differently to other employees at Forrest Personnel, for example Ms Crittall and Ms Graham.

353   On Mr Sullivan’s evidence, Ms Palmer was not given notice of the nature of the meeting on Monday 10 August 2015, nor was she given the opportunity to have a support person.

354   Even if her position was made redundant, there was no meaningful discussion about the termination and no exploration of alternatives before Ms Palmer was dismissed, which may have removed the need for dismissal. 

355   Plainly, Forrest Personnel did not consult Ms Palmer.  Her dismissal was procedurally and substantively unfair.

356   If her position were to be made redundant, there were clearly alternative positions that she could do.  They were never put to her and I find she would have accepted one of them.

357   There is nothing before me to suggest that, if Forrest Personnel had offered Ms Palmer an alternative position, she would not have continued working for Forrest Personnel for some time.

358   Forrest Personnel exercised its legal right to dismiss so harshly and unfairly against Ms Palmer as to amount to an abuse of that right.

359   Mr Sullivan was aware that notwithstanding Ms Palmer’s experience and qualifications, her prospects of other suitable employment were low because of her particular personal circumstances.

360   Forrest Personnel’s very harsh and unfair treatment of a committed, high performing employee caused her significant loss.

Compensation

361   Having found that Forrest Personnel unfairly dismissed Ms Palmer, I turn to the issue of her remedy.

362   Ms Palmer does not want to be reinstated.  She seeks compensation for her loss and injury. 

363   I understand from Forrest Personnel’s evidence and submissions that there is no suitable position into which Ms Palmer could be reinstated. 

364   I find that the relationship between Ms Palmer and Forrest Personnel has broken down to such an extent that reinstatement would be impracticable. 

The law – compensation for unfair dismissal

365   As I state in Bonifassi v E.J Fillaudeau and J.J Maindok t/a Fillaudeau’s [2016] WAIRC 00819, the Commission’s powers in relation to unfair dismissal are set out in s 23A of the Act.

366   The Commission can order an employer to pay an employee compensation for loss or injury caused by an unfair dismissal only if it considers reinstatement or re-employment impracticable: s 23A(6) of the Act.  The amount of compensation cannot exceed 6 months’ pay: s 23A(8) of the Act.

367   The principles which apply to assessing compensation for unfair dismissal are well-settled.  Some of these principles are set out in Bogunovich v Bayside Western Australia Pty Ltd (1999) 79 WAIG 8 by Sharkey P, with whom Coleman CC and Kenner C agreed, at 8-9.

368   First, the Commission must make a finding as to the loss and/or injury which Ms Palmer suffered by reason of the dismissal.  If no loss or injury is established, there is nothing to compensate. 

369   The Commission must then assess the proper amount of compensation for loss and/or injury, in light of all the relevant circumstances but disregarding the cap prescribed in s 23A of the Act.  If the amount is in excess of the cap, the Commission reduces the amount to be awarded to an amount equal to the permissible maximum. 

370   ‘Loss’ is a broad concept that includes, but is not limited to ‘actual loss of salary or wage, loss of benefits or other amounts which would have been earned, paid to or received by the dismissed employee but for the dismissal’: Capewell v Cadbury Schweppes Australia Ltd (1997) 78 WAIG 299, 303.

371   ‘Injury’ is also a broad concept, incorporating ‘all manner of wrongs’ and includes, for example, humiliation, injury to feelings and ‘being treated with callousness’: Capewell (303).

372   For compensation to be awarded for injury, the injury must ‘fall outside the limits which can be taken to have normally been associated with a harsh, oppressive or unfair dismissal’.  This requires evidence that Ms Palmer has suffered ‘loss of dignity, anxiety, humiliation, stress or nervous shock’: AWI Administration Services Pty Ltd v Birnie (2001) 81 WAIG 2849, 2862 (Coleman CC & Smith C).  There will be an element of distress in most dismissal cases: Lynam v Lataga Pty Ltd [2001] WAIRC 02420; (2001) 81 WAIG 986 [56].

373   In deciding the amount of compensation, the Commission must consider Ms Palmer’s efforts to mitigate her loss as a result of the dismissal: s 23A(7) of the Act.

374   The employee has a duty to mitigate her loss or injury, but the onus of proof for failure to mitigate rests on the respondent: Bogunovich (1999) 79 WAIG 8, 8-9.  Whether the employee mitigated her loss is relevant to determining whether the dismissal caused any loss: Sealanes (1985) Pty Ltd v Foley [2006] WAIRC 04110; (2006) 86 WAIG 1239 [99]-[105].

375   The purpose of compensation under s 23A is to compensate an unfairly dismissed employee for losses caused, not to punish the employer or to confer a windfall on the employee.  This means compensation ‘must be in respect of a lawful entitlement and/or as compensation for a demonstrated loss or injury caused by the harsh, oppressive or unfair dismissal’: Garbett [85].  Compensation is not compensation if it does not, as much as possible, put the person who suffered the loss or injury back into the position which, but for the loss or injury, the person would have been in: Bogunovich (1999) 79 WAIG 8, 8.  

Consideration

376   I accept Ms Crittall’s evidence that Ms Palmer’s salary as COO was $144,109. 

377   Remuneration can include superannuation contributions and the cost of providing a car: Capewell (301).  The parties agree in submissions filed following the hearing that Ms Palmer’s remuneration package was $155,861.68 (gross).  This remuneration package includes her salary, over award superannuation contributions and motor vehicle allowance.  It equates to $2,997.34 per week.

378   Ms Palmer has been unemployed for 58 weeks.

Mitigation

379   Ms Palmer gave evidence that she has registered with recruitment companies, gets automatically generated notification of vacancies and looks for jobs in the newspaper.  She has applied for as many jobs as she felt she was suitable for, both locally and interstate.  She has attended many interviews locally, and also attended several interstate.  In doing so, she has met all of her own costs. 

380   Ms Palmer tendered a bundle of documents representing some, but not all, of the applications she has made.  She gave evidence that she did not keep all of her applications because she had not realised she would need to.  The bundle of documents Ms Palmer tendered contained 41 applications.  Ms Palmer gave evidence that she has not found an alternative position, she has done some consultancy work.  Ms Palmer’s earnings from the consultancy work were $15,305. 

Consideration

381   Forrest Personnel has not established that Ms Palmer failed to mitigate her loss.  I have no difficulty finding Ms Palmer has mitigated her loss. 

Conclusion – compensation for unfair dismissal

382   Ms Palmer submits that she suffered injury as a result of her dismissal in the amount of $25,000.  While I accept that Ms Palmer suffered injury as a result of Forrest Personnel’s very unfair treatment of her, I do not consider that there is sufficient evidence for me to make a finding about that injury. 

383   In any event, Ms Palmer’s loss far exceeds the amount of compensation the Commission can award. 

384   Ms Palmer’s loss is $113,578.39 (gross).  This comprises 58 weeks’ remuneration being from Monday 17 August 2015 until the last day of the hearing, from which I have deducted the following: 

1. $20,437.42 (gross) - five weeks’ payment in lieu of notice;
2. $24,524.91 (gross) - six weeks’ redundancy pay; and
3. $15,305 (gross) - consultancy work. 

385   I would award the full loss if I were able to. However, Ms Palmer’s loss is in excess of the statutory cap of six months’ remuneration.  For these reasons, I will order that Forrest Personnel pay Ms Palmer six months’ compensation, which is $77,930.84 (gross).

386   A declaration and order now issues.