Alderton v Fraser Coast Regional Council [2019] QIRC 137

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: CASE NO: PROCEEDING: DELIVERED ON: HEARING DATES: MEMBER: HEARD AT: ORDER: CATCHWORDS: Alderton v Fraser Coast Regional Council [2019] QIRC 137 Alderton, Sally (Applicant) v Fraser Coast Regional Council (Respondent) TD/2018/40 Application for reinstatement 17 September 2019 5 and 16 April 2019 18, 19 and 20 June 2019 Appellant's submissions - 6 August 2019 Respondent's submissions - 20 August 2019 Appellant's submissions in reply - 3 September 2019 Thompson IC Brisbane and Hervey Bay Application refused. INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - where termination of employment following disciplinary action - where inappropriate conduct, punctuality and absenteeism - where disrespect and unprofessionalism in the workplace - where breaches of Council's Code of Conduct - where applicant claims Council breached workplace rights by taking adverse action - where applicant claims mental injury with mixed anxiety and depressed mood - whether termination harsh, unjust or unreasonable -- 1 of 42 -- 2 LEGISLATION: Industrial Relations Act 2016, s 316, s 317, a 320, s 545 CASES: Brown v Dunn [1893] 6 R 67 Schipp & Anor v The Star Entertainment Qld Limited [2019] ICQ 009 APPEARANCES: Ms S. Alderton, Applicant. Mr D. Chen of NB Lawyers for the Respondent. Reasons for Decision Background [1] An application for reinstatement was filed in the Industrial Registry by Ms Sally Alderton (Alderton/applicant) on 12 April 2018 following the termination of her employment as a Planning Technical Officer with the Fraser Coast Regional Council (the Council/respondent) on 22 March 2018. [2] The applicant seeks the following orders: (A) Reinstatement in her former position (or as nearly as is possible) without prejudice to the employee's former conditions of employment and remuneration lost between the date the dismissal took effect 22/03/2018 and the date of reinstatement; OR (B) Re-employment in another position that the employer has available and that the Commission considers suitable. (C) However, if the Commission considers reinstatement or re-employment would be impracticable, the Applicant seeks that the Commission make an order that the employer pay the employee an amount of compensation the Commission considers appropriate. [3] The applicant stated the facts and circumstances specifying why the dismissal was unfair are as follows: 1. The Respondent has erred in law by breaching me in the workplace, in accordance with the information provided . . .. 2. The Respondent has erred in law by breaching my workplace rights by taking adverse action: (a) I was terminated by the Respondent on 22 March 2018; (b) I was injured as a result of my employment; subject to the outcomes of my review application filed with the Workers' Compensation Regulator on 12 April 2018; (c) My position was altered to my prejudice. I was terminated by the Respondent on 22 March 2018 during a temporary absence from work due to mental injury; (d) I was discriminated against in the form of victimisation, in accordance with the information provided . . .. 3. The Respondent has erred in law by breaching my workplace rights by using misrepresentations about my employment matters, in accordance with the information provided . . .. -- 2 of 42 -- 3 4. The Respondent has erred in law by breaching my workplace rights by taking adverse action in allowing discrimination in the form of victimisation and sexual harassment, in accordance with the information provided . . . . 5. The Respondent has erred in law by breaching my workplace rights by terminating my employment while I was temporarily absent from work because of prescribed mental injury. 6. The Respondent has erred in law by breaching my workplace rights by allowing coercion with regard to my duties and responsibilities, in accordance with the information provided . . .. 7. My termination from employment is unfair as it is harsh, unjust and unreasonable. My termination is harsh due to my current mental injury presenting as mixed anxiety and depressed mood. My termination is unjust because I am not guilty of the alleged conduct on which the Respondent acted. My termination is unreasonable as conclusions of the Respondent were drawn from false accusations and evidence. The Respondent does not have a valid reason for terminating my employment with regard to my conduct. Although I was provided an opportunity to respond to these allegations about my conduct, I feared I was being bullied and victimised by the Respondent in an attempt for me to leave my employment voluntarily. 8. My termination from employment was unfair due to mitigating circumstances. My employment with the Respondent extended over ten (10) years, my employment record was unblemished for the first seven (7) years. I dispute the conduct the Respondent has described of me, in accordance with the information provided . . .. I also dispute the outcomes and reasons for the Respondent's execution of the disciplinary process I was involved in, in accordance with the information provided . . .. Witnesses Appellant Ms S. Alderton; Dr A. Gilbert, Psychiatrist (Dr Gilbert); Ms M. Humberdross, Psychologist (Humberdross); Dr K. Min, GP (Dr Min); and Mr A. Harwood, Chiropractor (Harwood). Respondent Mr J. Cockburn, Executive Manager - Planning and Growth, the Council (Cockburn); Ms C. Noble, Senior Employee Relations Advisor, the Council (Noble); and Ms R. Paton, Employee Relations Manager, the Council (Paton), Applicant Alderton [4] Alderton commenced employment with the Council in 2007 and in correspondence dated 22 March 2018 under the signature of Ken Diehm, Chief Executive Officer was informed -- 3 of 42 -- 4 that her services with the Council were terminated effective immediately1 with payment of four (4) weeks' wages to be provided in lieu of notice. The correspondence amongst other things contained the following references: • a meeting held on 6 October 2017 with the Director, Department and Community (Toni Averay) and Acting Senior Human Resources Advisor (Noble) to discuss ongoing concerns relating to her behaviour and conduct in the workplace; • Alderton had been absent from the workplace on certified sick leave since 23 October 2017; • prior to commencing sick leave the Council had commenced the formal disciplinary process; • the disciplinary process was subsequently delayed pending her certified absence and workers' compensation claim for work related stress and being bullied at work; • Council was advised by Local Government Workcare on 15 January 2018 that the application for workers' compensation had been rejected; • Council sought professional medical advice regarding her fitness to attend a disciplinary meeting by arranging for her attendance with a medical practitioner (Dr Cotton) on 5 March 2018; • Dr Cotton on 14 March 2018 furnished a medical report dated 6 March 2018 in which he advised that whilst he did not consider Alderton was fit to attend a face to face meeting in the medium to long term, that following discussions at length with her, the matter would be best addressed in writing; • Details of the misconduct were outlined as follows: - allegations of inappropriate and disrespectful behaviour displayed towards Council employee, Tracey Dean (Dean) when discussing phone duty responsibilities on 30 August 2017. It is alleged you asked Tracey what was happening with the phones then proceeded to continuously speak over the top of Tracey in a confrontational and disrespectful manner, interrupting Tracey each time she tried to answer you; - allegations of inappropriate and disrespectful behaviour displayed towards your supervisor, Lauren Payler, when you approached her to discuss work allocation on 30 August 2017. It is alleged that you continuously spoke over the top of your supervisor when she was trying to explain and discuss workloads with you, that your tone was confrontational, aggressive and disrespectful; - allegations of inappropriate and disrespectful behaviour displayed towards Tim Symons when discussing two building files that were missing on 10 August 2017. It is alleged that when 1 Exhibit 1 -- 4 of 42 -- 5 Tim offered to check your work area to assist you to look for two missing building files, that you started speaking over the top of him, saying that you had already checked the files you had at your desk and 'if you don't believe me then that's your problem'. It is alleged that you continued to speak over the top of Tim in a confrontational and aggressive tone when he tried to explain the situation. It is noted that these files were later found within the files at your desk; - excessive level of absences within the past 12 months. Within the past 12 months, you have taken in excess of 34 days personal leave. It is noted most of your personal leave is certified, however 34 days within a 12 month period is considered excessive. • Council advised that consideration had been given to her response to a show cause as to why her employment should not be terminated, received on 13 October 2017; • Council also noted having fully considered her written statement regarding conduct and all the evidence available that Alderton had failed to conform to the standard of behaviour expected by a council officer in particular: - your reaction to the missing files was inappropriate. Your response focuses on the missing files, however the concerns raised were in relation to your reaction to the missing files and how you spoke to and acted towards another employee. You note in your response you were aggravated during the conversation with Tim; - you state that both Tracey and Lauren should have listened to you properly and it is as a result of them that you felt agitated; - you do not accept accountability for your conduct. You have failed to have an awareness of yourself and how you conduct yourself in the workplace, despite many discussions and previous discipline warnings; - your behaviour including tone and actions in the workplace has been perceived rude and unprofessional on more than one occasion and by more than one employee; - this is not an isolated issue, a verbal warning was issued to you on 3 November 2016 outlining the requirement for you to uphold your responsibilities as a Council employee and ensure your performance reflects the standard required in the Council Code of Conduct. Further, you were issued with a written warning on 2 May 2017, outlining your responsibilities and the requirement for you to make immediate improvement in your attitude at work. [5] The letter also noted concerns held by the Council with regard to the failure of Alderton to take accountability towards any of her actions and to demonstrate the Council's values -- 5 of 42 -- 6 of Trust, Respect, Accountability, Initiative, Teamwork and Service. The concerns held by the Council regarding Alderton's conduct were said to be numerous, collective and generally demonstrated an ongoing pattern of non-performance and unacceptable workplace behaviour including a high level of absenteeism. [6] The conduct engaged in by Alderton was said to have been in breach of the following Council principles as set out in the Code of Conduct, Management Policy2: 2.4 Performance at Work . . . Employees should take "ownership" over, and be accountable for, their actions and decisions. Examples of this include: • Employees performing duties to the best of their ability; • Be open about reporting mistakes; • Give priority to official duties over personal activities during work time; • Employees conducting themselves in a way that allows others to gain confidence and trust in the way Council does business; • Not allowing conduct to distract or prevent others from working; or • Following Council agreements and policy on attendance at work and leave. This includes not being absent without authority and accurately and truthfully recording work and leave periods. . . . Employees should act professionally and avoid situations where their behaviour could reflect badly on Fraser Coast Regional Council or impact on their workplace. 4.2 Obligations Employees have a general legal duty to take reasonable care to avoid causing harm to themselves, another person or to the environment. Employees are required to exercise the degree of care that could reasonably be expected from a competent and skilled person in their job. Furthermore, employees are required to comply at all times, with relevant legislation standards including Council policies. . . . 4.3 Behaviour towards each other Employees should treat other employees with respect, honesty, courtesy, fairness, sensitivity and dignity, regardless of their employment status within Council. . . . Effective teamwork is an essential part of a productive workplace culture. Each team member needs to work cooperatively with fellow staff and actively and willingly take part in team activities. [7] Alderton claimed that her employment had been terminated in a harsh, unjust and unreasonable manner as a result of unreasonable management action taken around her employment from January 2015 until the termination on 22 March 2018. It was contended that the alleged behaviour and the complaints made against her had been misconstrued, collaborated and made vexatiously by a group of Council employees who 2 Exhibit 50. -- 6 of 42 -- 7 were trying to have her employment ceased at the Council. She had also experienced bullying, stress, agitation, aggravation, alienation, exhaustion and frustration which had impacted negatively on her job performance at the front counter. [8] The ineffective resolution of her workload concerns, inappropriate meetings held with her and the ignoring of her grievances had not assisted her situation. A first written warning given to her was said to be issued unjustly and not followed up with the provision of a behavioural management plan to correct the behaviour reported and the complaints received about her. Note: When questioned by the Commission about her conclusion of people wanting her removed, she replied "I have no proof, and I have no evidence . . ."3. [9] Alderton whose employment extended over 10 years with the Council had obtained a Diploma in Local Government Planning in November 2014 to secure her employment with the Council and from her commencement in November 2007 until the informal meeting of 14 January 2015 her employment record was unblemished. [10] Alderton took issue with a written warning given on 2 May 2017 but dated 24 March 2017 on the basis that there were questions over the status of the Chief Executive Officer (CEO) and being signed off prior to a response to the show cause notice provided by her on 12 April 2017. As a result of the questions regarding the issue of this written warning it was contended that: • a final written warning had not been issued; • a deed of settlement offered to her on 20 October 2017 would have effectively terminated her employment; • the Council had failed to follow its own disciplinary process outlined in their discipline management policy and procedure; and • her termination had been a breach of process. [11] Alderton contended that she had been required to undertake work on the front counter beyond her position description which had caused her stress, agitation and had negatively impacted on her work performance. Despite having made numerous verbal and written requests to have the situation rectified she was ignored and this lead to her suffering a psychological injury which was later the subject of a rejected claim for workers' compensation. On 17 March 2015 she was absent from work on sick leave due to stress followed by subsequent absence through to November 2015 all supported by medical certificates. [12] On 13 January 2016 she attended a performance appraisal with Cockburn and the manager of her Department where she raised concerns about a change to her job description which made a tertiary qualification mandatory rather than desirable with 3 T3-20, L17. -- 7 of 42 -- 8 Cockburn agreeing to revert it back to desirable. At her next performance appraisal which was held on 14 February 2017 his promised changes had not been made. The failure to change had "very little impact" on her in this period. Whilst she received written correspondence on 24 March 2017 that her job description had been rectified it caused her anxiety about job security and it had been unreasonable management action. [13] Alderton was advised on 16 March 2016 that a number of complaints had been received indicating she had demonstrated inappropriate behaviour towards customers and colleagues and her manner was considered abrupt and aggressive during interactions. The concerns had not related to an isolated occurrence but appeared to be a continuing pattern of behaviour. Alderton was given an opportunity to respond to the allegations in which she indicated her behaviour had been misconstrued and that she had been exhausted and annoyed about her workload. It was also put that other staff were trying to get her into trouble. Cockburn in correspondence dated 5 April 2016 informed Alderton that her issues of workload had been noted and "that whilst no action is being taken on this occasion, further instances of these types of behaviour may result in further action being taken". [14] Alderton attended a performance meeting on 9 June 2016, where Paul Rice (Rice) the Principal Officer of Development Assessment, advised the meeting was being held to discuss concerns with her "continuing pattern of behaviour, specifically, abrupt and aggressive manner during interactions with other staff and members of the public". There was also a need to discuss her level of absenteeism, pattern of absences and punctuality. It was said her performance had not improved since the meeting of 9 March 2016. Following the exchange Rice provided correspondence outlining the improvements within her role as a Council Officer that needed to be immediately addressed: • Comply with Council's management policies and Code of Conduct and ensure your behaviour reflects the standard outlined in the Code of Conduct; • Demonstrate a consistently high level of customer service, providing a professional image for Council and the Fraser Coast region; • Exemplify Council's image of a friendly, motivated, enthusiastic, positive and helpful employee; • If unable to attend work, you must contact your supervisor directly within 30 minutes of your designated start time stating the reason for and duration of your absence, in the absence of Jeff being available, you should contact me directly by telephone; • Arrive at work in a timely manner to enable commencement of duties. You are required to acknowledge any late arrival with your supervisor, and any lateness anticipated to be greater than 10 minutes should involve phoning your supervisor to advise when you expect to arrive. Further, she was informed that should there be no improvement there would be "no option but to address the matter formally". -- 8 of 42 -- 9 [15] Alderton claimed that her attendance at the meeting on 9 June 2016 was unfair because it had not complied with the Council's staff grievance resolution procedure and management policy. Alderton had not been given the opportunity to talk during the meeting, respond to the allegations and had been bullied in the course of the meeting. [16] On 7 September 2017 she attended another meeting with Rice who advised her of complaints received about her that included: • repeatedly slamming the counter door shut; • slamming the counter drawers shut; • tapping nails on the counter; and • shaking her head in an apparent disapproving manner while other staff attended customers. Upon responding to the complaints Rice advised no further investigation would be carried out or disciplinary action required. She believed the meeting was held to make her upset and that the allegations against her were vexatious. [17] On 6 October 2017 she was issued with a show cause notice which identified a number of allegations and instances where it had been determined no action or discipline was required to show a pattern of unacceptable behaviour. [18] Alderton in her evidence-in-chief continued to take issue with the failure of the Council to comply with Council's staff and grievance procedures in responding to workplace issues raised by her in the course of her employment, which was in conflict with correspondence tendered by her in which Paton had stated in response to allegations made by her regarding sexual harassment and victimisation: The information provided to Caitlin Noble on 31 August 2017 has been assessed in line with Council's Staff Grievance Management Policy and Procedure and it has been found that there is insufficient evidence and supporting examples to investigate your Grievance further. The Staff Grievance Resolution Procedure depicts that a grievance will be closed in cases where the grievance is identified as being vexatious, misconceived or without substance. Employees should be aware that there are serious implications for lodging vexatious claims. [19] Alderton attended a meeting with Council officers (including Noble) on 24 March 2017 where she noticed documents on the table, one of which was a Council response to concerns previously raised by her, and the other a notification of four further allegations concerning her behaviour. There were issues at the meeting regarding a written warning which left her feeling bullied because the Council had failed to comply with the provisions of the Code of Conduct and the Disciplinary Management Policy. Information regarding the identity of the complainants had been withheld from her which was described as unfair. The conduct of the Council according to the witness had a connection with her rejected workers' compensation claim. Due to the conduct of the Council she had sought assistance from Workplace Health and Safety and the Crime and Corruption Commission which was said to demonstrate the unfair treatment she was experiencing at the hands of the Council. Also contributing to her condition were -- 9 of 42 -- 10 concerns about bullying, alienation and job security which were heightened by the further four allegations that had been made against her by the Council. The allegations were vexatious and not "collaborated" having been made by the Customer Service Department and its supervisors and were in response to complaints she had made about being bullied by the Plumbing/Building Department supervisors. The allegations had no standing because she had not been provided a behavioural management plan in respect of past behavioural conduct. [20] Alderton continued to press issues about the written warning on 2 May 2017 that had been signed by the interim chief executive on 24 March 2017 prior to the receipt of her written response of 12 April 2017 which was unjust as it had failed to comply with policy and procedures. There was evidence of absences from work from May 2017 due to stress and other factors all of which were certificated. In terms of the allegations the subject of disciplinary findings, Alderton had not sought to challenge the written warning because she did not realise her appeal rights at the time. [21] Alderton attended a formal meeting with Council officers (including Noble) on 20 October 2017 where she was advised that a without prejudice deed of settlement would be discussed which had confused her because at that time there had been no discussion about her response to the show cause notice. She was advised that she had until 24 October 2017 to accept or decline the offer which referenced the termination of her employment and the payment of an agreed sum of money. Alderton in the course of the meeting raised issues of concern that included: • false transcripts used in the investigation of allegations against her; • complaints against her were untrue; • Council had not supported her with workload issues; and • sexual allegations made by her against an external customer. The deed of settlement was unjust due to a breach of Council's process. [22] Alderton gave evidence of the lead up to her termination which included the following: • 19 January 2018 Paton called her about when she would return to work; • Alderton advised she was not fit for any type of duties until 8 February 2018; • 30 January 2018 Paton telephoned seeking consent to contact her general practitioner which was granted on 2 February 2018; • Council arranged an appointment with their selected general practitioner (Dr Cotton) which occurred on 5 March 2018 with Alderton's husband in attendance; and • Paton contacted her by email on 21 March 2018 informing her "Dr Cotton has provided advice to Council that he does not consider you fit to attend any face to face meeting in the medium to long-term to finalise the formal disciplinary process which commenced on 6 October 2017. Dr Cotton further advised his opinion, having discussed the matter at length with you, -- 10 of 42 -- 11 the matter would be best to address in writing. Dr Cotton has provided support of the proposed process as outlined". [23] An email was received from Paton on 22 March 2018 which provided details of the considerations of Alderton's show cause notice including references to a finding that despite having been provided with clear expectations of the conduct expected, she had failed to conform to the standard of behaviour expected of a council officer, demonstrated poor judgement and displayed no accountability towards her actions. Further, it recorded that: • Alderton had demonstrated an ongoing pattern of non-conformance and unacceptable workplace behaviour; • Alderton had high-levels of absenteeism; and • Alderton's termination was to be effected with payment of four weeks' pay in lieu of notice. [24] The termination was challenged on the basis of Alderton not having received a "final warning" letter which rendered the dismissal unjust as the Council's discipline management policy and procedure were not followed for the following reasons: • Stage One - Council had met the criteria with a "verbal" written warning dated 3 November 2016; • Stage Two - first written warning dated 24 March 2017 (received on 2 May 2017) was issued unjustly in that she was denied a fair opportunity to respond to the allegations and there were questions over the date of issue and receipt. The criteria had not been met; • Stage Three - on 20 October 2017 she was offered a deed of settlement in lieu of a final warning breaching the criteria; and • Stage Four -which provides for dismissal was activated without Stage Three criteria being met and was therefore unjust. [25] A further issue regarding the termination was that at the time of dismissal she was on certified sick leave, commencing on 23 October 2017 and until 20 February 2018 she was paid sick leave. From the ceasing of paid sick leave until 26 March 2018 she was on unpaid sick leave which was less than three months in the one year period identified in the certified agreement. [26] Alderton addressed allegations that had been made against her by Dean denying the alleged conduct and contending that video surveillance would prove the allegations false. Alderton expressed concerns about numerous other allegations claiming they were unfounded and in some cases vexatious and not dealt with appropriately by the Council. [27] In regard to remedy, Alderton evidenced that to return to employment with the Council would not be a healthy option and she was seeking the maximum compensation available in the form of 26 weeks' wages. -- 11 of 42 -- 12 [28] Under cross-examination it was conceded by Alderton that in the course of performance appraisals in 2015/16 the Council had concerns about a matter of tardiness and her conduct but no disciplinary action occurred. There was a change to her position description to reflect a mandatory tertiary qualification which the Council later failed to correct, although it had little impact on her at the time. At a meeting with Cockburn in March 2016 it was discussed that she had continuing behavioural issues whilst interacting with Council employees and members of the public and she had been given reminders to comply with Council's Code of Conduct and to abide by the behavioural standards under the Code. [29] The workload increased through the requirement to cover the front counter for the Planning and Building Department that caused her anxiety and stress. She had gained limited knowledge of plumbing and building inquiries whilst working in the Customer Service Department but she had not been required to deal with complex issues. Alderton attended a meeting with Rice on 9 June 2016 where issues were raised about her late attendance at work which she disputed at the time. At the same meeting it had been raised that she was exceeding her delegations as a planning technical officer and Rice also informed her that she had been creating a "divide, or divisiveness" between departments. Alderton agreed she had assisted an external customer with a planning application without Council authorisation. In regard to the complaints she had raised with her by the Council at the 9 June 2016 meeting she had sought the names of the complainants which had been refused. [30] On 31 August 2016 she was advised that a pattern had been identified with her personal leave, in particular absences on a Monday which she disputed and declined an offer of the Council's Employee Assistance Program to assist in her personal circumstances. A further meeting was held on 27 October 2016 to discuss her late arrivals at work and in the course of the meeting she conceded at times she became rude and inappropriate in response to the conduct of other employees but it had not been intentional and mainly due to her workload and interruptions at work. At another meeting with Noble on 15 November 2016 she was issued with a verbal warning due to continuing behavioural and conduct issues plus late arrivals at work which she believed was unfair. [31] Alderton attended another meeting on 30 January 2017 which was a "fact finding" process following an issue with Councillor Denis Chapman where she had said "bullshit" as he walked past because he was speaking very loudly and interrupting her work. She accepted that her conduct was unprofessional. Having become agitated in the course of the meeting she was given the next day off. In correspondence provided to her on 1 February 2017 regarding allegations involving Alderton and a Councillor which did not identify the complaint by name she acknowledged that in some circumstances it was reasonable for Council to protect the identity of a complainant. Alderton agreed that the number of grievances made by her to Council may have led to additional time being required to investigate. -- 12 of 42 -- 13 [32] A show cause notice was issued on 24 March 2017 which nominated four allegations against Alderton and according to her a written warning was prepared on the same day in respect of the same allegations. Council provided her with an extension of time to respond to the allegations and following consideration of her response a written warning was issued. After receiving the warning she made complaints to the Crime and Corruption Commission and Workplace Health and Safety with both organisations declining to progress the complaints. A further complaint was made by a member of the public against her on 24 April 2017 which in part was unsubstantiated by Council. An incident occurred between Tim Simons and Alderton on 10 August 2017 which led to another show cause letter being issued on 6 October 2017 alleging inappropriate and disrespectful behaviour. Alderton in a meeting held on 31 August 2017 made a complaint against another employee having sexually harassed her and this was the subject of an investigation by Council which determined that no sexual harassment had occurred. At another meeting held on 31 August 2017 she raised with Council that a group of employees and management were teaming up to "get her out of Council". [33] On 30 August 2017 Alderton was involved in two separate incidents with other employees where she had become agitated with persons who were her supervisors. In an exchange with Rice in September 2017 about alleged inappropriate behaviour she conceded that she had made the following comment "Can you provide me a list of actions and mannerisms that everyone thinks is appropriate and then watch me not comply with them". A further concession was made in regard to expectations under the Code of Conduct having been brought to her attention through verbal and written warnings. In all disciplinary type meetings she had always been given the opportunity to have a support person present. [34] Alderton claimed that it had been unreasonable for Council to have offered a deed of settlement in lieu of a final warning at a meeting in October 2017 but agreed that in correspondence Council had noted her lack of accountability, extensive disciplinary history and continued non-compliance with Council's behaviour expectations. The correspondence had also contained the following commentary: Given the ongoing and consistent nature of this issue, taking into account the history and pattern of inappropriate behaviour, I am providing you with the opportunity to show cause why disciplinary action up to and including termination of employment should not be taken against you. [35] By 20 October 2017 she acknowledged there was a risk of termination of employment. The deed offered by the Council for her employment to end included a goodwill payment, applicable notice period, long service leave payment (although employment was one month short of ten years) and the opportunity to resign. There had been no obligation to accept the deed and it had been found by Local Government Workcare and an appeal body that the offer did not constitute unreasonable management action. Alderton accepted the proposition that the deed of settlement was an attempt to look after her best interests given her health at the time and offered a substantial financial benefit although her ongoing employment was considered more important. On 23 October 2017 the -- 13 of 42 -- 14 appellant commenced a period of personal leave and remained on such leave until her termination on 22 March 2018 which included a period of annual leave. [36] Contact was made in late January 2018 by Paton for the purposes of seeking authorisation from Alderton to allow Council to discuss medical advice in relation to the fitness of Alderton to return to the workplace to discuss the disciplinary process that had been commenced. Authorisation was provided by her on 2 February 2018 however her doctor failed to respond to Council and subsequently Council arranged for Dr Cotton to examine her and this occurred on 5 March 2018 after which he advised that it would be best to have the disciplinary process dealt with in writing. Discussions had occurred with Council about the possibility of a meeting involving Alderton's partner (on her behalf) however that did not eventuate and following a written response given to Council she was notified on 22 March 2018 that her employment was terminated. [37] Alderton alleged that her dismissal had been premature and unjust because the dismissal had not complied with clause 5.2.8 of the Certified Agreement, not accepting that the clause allowed the Council to terminate an employee if it was established through medical evidence there was no likelihood of the employee returning to work due to incapacity. Further the termination was premature because she had not been absent on unpaid leave through illness or injury for more than three months within a one year period. The clause had been used to allow the Council to continue the disciplinary process against her and effect the termination with Alderton subsequently agreeing that the clause was not relied upon to terminate her employment. Alderton agreed that within four months of the written warning being issued on 2 May 2017 there were further allegations received by Council in respect of her behaviour and conduct. [38] The issue of the written warning had followed a verbal warning issued to her in November 2016. Alderton did not accept that the Council was under an obligation to issue a final warning notwithstanding previous verbal and written warnings and a multitude of discussions. Alderton confirmed that Council offered access to their Employee Assistance Program which she had refused. Dr Gilbert [39] Dr Gilbert, a consultant psychiatrist, first saw Alderton in December 2017 following a general practitioner referral which had expressed an opinion that she was suffering psychological trauma linked to a work-related traumatic issue. [40] Dr Gilbert obtained a history from her at a consultation on 11 December 2017 and with additional information provided by a psychologist (Humberdross) regarding symptoms of anxiety and depression whilst employed at the Council, he found that her current symptoms were likely to have arisen as a consequence of difficulties experienced in the workplace. Dr Gilbert diagnosed she was suffering an adjustment disorder as a result of a reaction to usually a specific stressful or series of stressful events. Alderton had informed him about a WorkCover claim that was pending. -- 14 of 42 -- 15 [41] Dr Gilbert in cross-examination was asked to comment on the report prepared by Dr Jetnikoff (dated 22 December 2017) which had indicated that "in my opinion I have no doubt that Ms Alderton has experienced a degree of work stress as a result of accumulation of complaints which predate 2017". Dr Jetnikoff also referenced: • Alderton was highly anxious and had likely personality vulnerabilities; • Alderton would be at high risk of further conduct problems on a return to work; and • Alderton had developed a sense of victimisation, mainly due to the fact that she shows no accountability and no contribution to the complaints. [42] Dr Gilbert was hesitant to offer an opinion due to a lack of direct firsthand information regarding her workplace situation. Dr Gilbert had only seen Alderton on two occasions and felt there was no ongoing role for him because of her preference being for naturopathic and psychotherapy interventions. Humberdross [43] Humberdross, a registered psychologist, treated Alderton firstly on 12 October 2017 following a referral from a general practitioner and assessed she was suffering psychological trauma and requested that the general practitioner refer her to a psychiatrist. Humberdross continued to provide ongoing treatment to Alderton under a mental health care plan and it was her opinion, based on Alderton's disclosures, that her stressors were mainly workplace issues. [44] Humberdross had accepted the self-report of Alderton about workplace issues conceding she had not made enquiries of the workplace. Alderton had informed her of having received warnings in the workplace about her conduct. Dr Min [45] Dr Min provided Alderton with a referral to Dr Gilbert on 7 November 2017 on the same day she had issued her with a work capacity certificate due to stress and anxiety suffered in the workplace. Harwood Harwood, a registered chiropractor, gave evidence that Alderton had been a patient between January 2015 and March 2018 with her most common complaints being reoccurring neck problems and back pain, which Harwood described as "chronic" and caused by activities that included traumas and episodes of emotional stress, although postural fatigue is also common in work situations that involve long-term desk and computer work. -- 15 of 42 -- 16 Respondent Cockburn [46] At the time of Alderton's employment with the Council, Cockburn held the position of Executive Manager, Development and Planning, describing his professional relationship with Alderton as a "partially direct working relationship" which allowed for the authorisation by him of part of her duties. Whilst he had a working relationship it did not involve any direct supervision of the work undertaken by her. [47] In the period between 2015 and 2018 the nature of the workload for the planning team fluctuated with there being on occasions "quite substantial workloads". In the case of Alderton her key role was a counter position that included giving basic planning advice about applications and preparing background information for planning certificates. [48] In 2015 there were reports of interactions with Alderton and other staff that were concerning because they related to "somewhat overt behaviours" and were considered by the other party to be aggressive or intimidating. A number of recommendations were made to Alderton regarding general respect, courtesy and the sensitivities of other employees with her attention also drawn to the Code of Conduct applicable in the workplace. [49] On 9 March 2016 he participated in a meeting with Alderton and a senior Human Resources Advisor where concerns were discussed with her about the manner in which she dealt with internal and external customers. The issues identified included: • not being professional in her tone or manner; • being rude and abrupt; and • staff feeling intimidated. [50] Alderton stated that she had work pressures, high work load and felt that the concerns were being blown out of proportion. [51] A File Note of the meeting recorded the following comments: • Sally acknowledged that she was short and could be considered rude by some in her tone and manner; • Sally acknowledged that she needed to change her behaviours; • Sally noted that she had personal issues going on and that they were impacting her, she stated that she was dealing with them and would work on ensuring they don't impact work; and • Sally apologised for the behaviour she had been displaying. It was determined that there would be no further formal action at that point. -- 16 of 42 -- 17 [52] Under cross-examination the witness recalled a performance appraisal he conducted with Alderton on 13 January 2016 and concerns expressed by her regarding a change to her position description and a requirement for a mandatory tertiary qualification rather than it being desirable. He recalled advising that the reference to mandatory had been an error and it would be changed. It was acknowledged when her next performance review was held in 2017 the change had not been made. [53] At the meeting on 9 March 2016 he agreed that Alderton was informed her manner was considered to be abrupt and aggressive and it appeared to be a continuing pattern of behaviour. Cockburn recalled that at the same meeting Alderton had claimed the complaints against her were "targeting" her and she was informed this needed to be raised separately and dealt with separately. In or around March 2016 an additional Planning Technical Officer was appointed and this had the effect of assisting with the workload issues. On grievances raised by Alderton about her workload on or around 1 November 2016, he gave evidence that they weren't resolved and the same issue still arises today. Alderton was advised on numerous occasions to comply with the Code of Conduct in the Workplace but the Council had not put a behavioural management plan in place to improve her behaviour. Cockburn was aware of several occasions where the Employee Assistance Program was offered to Alderton and on each occasion refused. [54] In re-examination he gave evidence that there were procedures in place to respond to behavioural issues which he expected would set out goals and objectives. Noble [55] Noble, the acting Employee Relations Manager at the Council, held the role of Human Resources Advisor between 2015 and 2018. In June 2016 she was indirectly involved with Alderton when her manager requested advice to address some concerns and later became directly involved in or around 31 August 2016, when she met with Alderton and her direct supervisor in an absentee interview over the taking of 18 days personal leave within the preceding twelve months with a pattern of Mondays being taken as the leave day. Alderton claimed that it had not been intentional and just a coincidence that the leave day fell on a Monday and that some personal matters had contributed to the absences. There were some agreed outcomes being that absenteeism would be monitored within the next three months and certificates would be provided within that period. In the course of the meeting the Council treated her with "professionalism, respect and courtesy". [56] On 25 October 2016 a complaint was forwarded to her which contained allegations of Alderton slamming drawers and banging on desks loudly whilst another employee was endeavouring to work. An informal meeting occurred between Alderton and her supervisor which was followed by a further meeting on 27 October 2016 involving Noble where these matters were discussed along with continuing concerns about her lateness at work. A File Note of the meeting recorded the following recommendations: -- 17 of 42 -- 18 • Verbal warning issued to Sally Raub (Alderton); and • Regulatory Services team member's actions to be addressed by management. A follow-up meeting was held on 15 November 2016 which confirmed the issue of a verbal warning. [57] An email was forwarded to Noble on 18 January 2017 whereby an incident involving Alderton allegedly using "completely inappropriate" language in the work environment, expressed with "such anger" in the presence of Councillor Chapman. A formal meeting in respect of this incident was held on 30 January 2017 when at the conclusion Alderton was informed that consideration was being given to whether disciplinary action would be taken. [58] In correspondence dated 1 February 2017 reference was made to Alderton regarding her conduct on 17 January 2017, identifying the following concerns: • allegations that you displayed behaviour that was unprofessional and reflects poorly on Fraser Coast Regional Council, including the irate and repeated use of profane language within the workplace on Tuesday 17 January 2017; and • allegations that this behaviour occurred in front of Councillor Chapman and in hearing distance of the Development and Planning customer service area. Alderton was provided with an opportunity to respond to the allegations which could result in disciplinary action in accordance with the Council's Discipline Management Policy in particular, "Clause 2.4 - Performance at Work and 4.3 - Behaviour towards each other". A response was received on 8 February 2017 in which Alderton raised a number of concerns about bullying which the Council investigated. On 13 and 24 February 2017 further complaints were received by the Council in relation to Alderton's conduct at work. Another complaint was made against her on 27 February 2017 about work conduct which was followed with an additional complaint on 10 March 2017 also about work related conduct. [59] As a result of all the complaints, a formal meeting was held on 24 March 2017 where Alderton was provided with an updated show cause letter outlining the further allegations and a response was sought from her by 12 April 2017. Upon receipt of the response, due consideration was given to the content before it was decided to issue a written warning on 2 May 2017. The warning outlined that her behaviour had been a breach of the Council Code of Conduct and consideration had been given to the already issued verbal warning. (Note: The date on the warning letter was incorrect as a result of an administrative error which occurred when Noble drafted the document and relied on a "cut and paste" method.) [60] Whilst the show cause process in March/April 2017 was being conducted a further complaint against Alderton was received on 24 April 2017 from a person conducting -- 18 of 42 -- 19 training for Council employees, claiming Alderton had been extremely rude to a point where the claimant was "shaken and in shock" after the incident. The complaint was the subject of an investigation with a Report finding in respect of her failure to treat members of the public and fellow Council employees with fairness, sensitivity and dignity that: • evidence does not support the allegations that Sally 'chucked the paperwork' off the desk nor that Sally 'slammed' things around the office; and • evidence supports the allegation that Sally's tone was abrupt and that the complainant and witness found it intimidating and rude. The Investigation Report made a number of recommendations one being that "no formal disciplinary action to be taken, as the incident occurred prior to written warning issued and warnings outlined expected behaviour moving forward". [61] Following the issue of the written warning on 2 May 2017 a further four complaints were received in relation to Alderton's behaviour in the workplace on the following dates: • 11 August 2017; • 29 August 2017; and • 30 August 2017 (two complaints). [62] A meeting was held on 6 October 2017 involving Alderton, the Director, Development and Community and Noble for the purposes of providing a show cause notice in regard to a "pattern of behaviour" around "behavioural issues and absenteeism". At the conclusion of the meeting Alderton indicated she would probably stay home the next week. [63] In the meantime Council had investigated complaints made by Alderton that a fellow female Council employee had sexually harassed her, however upon the review of CCTV footage the allegation was unsubstantiated. A further allegation regarding a member of the public attempting to kiss Alderton on the hand was unable to be investigated by the Council because the subject person was not a Council employee. [64] A response to the show cause notice issued on 6 October 2017 was received by the Council on 13 October 2017. After consideration of the response an alternate solution to the matter by way of a deed of settlement was offered to her on a without prejudice basis following comments by Alderton that as her 10 year anniversary was coming up she may decide to leave the Council. In a File Note from a meeting held on 20 October 2017 attended by Alderton, her husband, the Director, Development and Community and Noble the following was written in respect of the offer: • The deed was offered without prejudice, the offer included SA the ability to resign from her position, no admission of fault or liability, TA would be happy to provide a reference for her technical abilities, the offer included 6 weeks' pay, the balance of leave entitlements as at date of resignation, along with long service leave entitlements paid up to 19 November 2017 (anniversary date). -- 19 of 42 -- 20 • The offer was for SA's consideration until COB Tuesday 24 November 2017, that the offer was completely for SA's consideration, not obliged to sign, if SA can consider and let us know. On 24 November 2017 Alderton advised she was declining the deed of settlement. In the course of Noble's evidence in chief audio and video recordings were played, soliciting at times commentary from her regarding the content. [65] Under cross-examination Noble confirmed that she had prepared a number of file notes in October/November 2016 and January, August and October 2017 all of which did not contain the dates they were created or who they were created by. Alderton had not been required to sign off on the file notes. Noble conceded the file notes were "strictly Council's record on my [Alderton] employment file". Noble agreed the allegations against Alderton were that she displayed behaviour that was unprofessional, irate and the repeated use of profane language had reflected poorly on the Council. [66] Noble accepted that the investigation of Alderton's behaviour in front of Councillor Chapman had not included an interview with the Councillor but in a meeting attended by Alderton she advised she had sworn to her supervisor using the term "bullshit". In any event the Councillor made no complaint. Noble chose to accept the supervisor's statement and not sought to corroborate her account by contacting the Councillor. The incident had not been the subject of a formal complaint and the name of the person wasn't given to her because it hadn't been a complaint as such. [67] Noble denied that at the meeting of 24 March 2017 a written warning letter issued on 2 May 2017 had already been prepared and she also denied having snatched documents away from Alderton at the meeting. There had been no decision made at the time of the meeting about a written warning. Also there were no discussions at the meeting surrounding the Chief Executive Officer's position. The date on the written warning that was eventually issued was incorrect due to an administrative error. Noble gave evidence that the response submitted on 12 April 2017 by Alderton had been dated 8 February 2017 which was also an error. Noble denied allegations that she had falsified a written warning or for that matter any other "letter in my life". [68] Noble had been unaware of behavioural issues involving Alderton in the workplace in 2015/16, nor was she aware Alderton may have been "targeted" by other employees. At no time during the discipline procedure did Council consider offering Alderton a position in a different building because the behaviour needed to be addressed and moving the behaviour was not going to be a resolution. Noble recalled at the meeting of 6 October 2017 Alderton was offered a support person which she had refused because she "didn't trust anyone at that point of time". Noble conceded that Alderton had been upset in the "whole course" of all the meetings dealing with complaints about her. Noble did not believe the actions of another Council employee accused by Alderton of sexual harassment had met the definition of such conduct. Noble had recall of Alderton at a meeting advising that she was upset and "looking to quit" but had no recall of ever being -- 20 of 42 -- 21 advised Alderton was suffering mixed anxiety and depression. The deed of settlement offered to Alderton was at the discretion of the Council and not related to any Council policy. Noble had no recall of Alderton in October 2017 indicating she had no intention of leaving her employment with the Council and would be looking to utilise her maternity benefits. Alderton had never been offered a behavioural management plan as no such plan existed in the Council. Noble considered Alderton's behaviour had been because of the ongoing nature of the conduct to be wilful or deliberate. Paton [69] Currently the acting Talent and Retention Manager, Paton held the Human Resource Manager's position at the Council between 2015 and 2018. In terms of her involvement with Alderton prior to January 2018 it had been indirect in assisting Noble with the discipline process, however in January 2018 when Council decided it would be in the best interests of the parties to finalise the disciplinary process she became directly involved. The disciplinary process had at that time been halted as a result of Alderton's absence from work on sick leave and she had also submitted a claim for workers' compensation. [70] On 19 January 2018 she telephoned Alderton as to her absence from work after having been made aware her workers' compensation claim had been finalised and her absence would now be managed by the human resource section. In the discussion with Alderton she indicated Council were seeking to finalise the disciplinary process that had commenced prior to her absence. Paton had previously sought to speak to Alderton's general practitioner seeking a medical report on whether she was fit to participate in a meeting. The doctor's office requested a worker's authorisation form which had then been referred back to Alderton seeking her signature. On 30 January 2018 she again telephoned Alderton, having not received a response, and was handed over to her husband with whom she discussed the workers' authorisation form and the possibility of the Council requiring Alderton to attend an independent medical examination. At that stage the Council did not have any issues with her capacity to perform her work tasks but were just seeking her fitness to attend a meeting. [71] On 27 February 2018 Alderton's husband telephoned Paton concerning whether it was Council's intention to send his wife for their own medical assessment and if so he also had concerns that her attendance at a new doctor would send her backwards. Eventually Alderton attended upon Dr Cotton who provided a medical report that she was not fit for a face to face meeting in the medium to long term and the matter would be best addressed in writing. Paton emailed Alderton on 21 March 2018 proposing two options being that her husband as a delegated authority could meet to discuss the outcome of the disciplinary process or a letter could be forwarded to her with Alderton electing the second option. On 22 March 2018 a letter advising Alderton her employment had been terminated, effective immediately was sent by the Council. [72] In terms of the disciplinary process the following had occurred: -- 21 of 42 -- 22 • at all stages Alderton was offered a support person; • she was offered access to the Employee Assistance Program; • provided with the allegations in writing; • given an opportunity to respond to the allegations in writing; • provided with paid time off work to respond to the show cause letter in October 2017; and • granted extensions of time upon request for the purposes of responding. [73] On the issue of whether a final warning should have been given to Alderton it was the Council's position that they had complied with their disciplinary process and had attempted to address the issues at the beginning in an informal manner. Alderton at this time had continued to breach the Council's Code of Conduct and had been issued with a verbal warning. There was no improvement in her behaviour and her continued lack of accountability, coupled with her disciplinary history established grounds that were serious enough to warrant her dismissal. [74] Under cross-examination Paton did not recall asking Alderton in a telephone conversation on 30 January 2018 when she would be returning to work so the disciplinary proceedings could continue. Paton had no recall of her crying in the course of that conversation but did recall that her partner took the phone. Paton did not accept her telephone contact with Alderton on 19 January 2018 advising that a letter had been sent to her doctor amounted to bullying. In relation to the opinion of Dr Cotton in his report dated 6 March 2018 that it may have been of value for Alderton to have approved access to the existing psychologist for two to three sessions, it was Paton's evidence that throughout the process and even in the outcome letter she had been offered access to the Council's Employee Assistance Program. [75] In regard to clause 5.2.8 of the Certified Agreement about an employee being absent on unpaid leave, it was Paton's position that Alderton's employment was not terminated for the reason of incapacity. Paton was aware of a verbal warning given to Alderton in November 2016 and a written warning issued on 2 May 2017 agreeing that the written warning was stage two of the disciplinary procedure. Paton confirmed the deed of settlement offered on 20 October 2017 was not a policy of Council and did not fall into any stage of the disciplinary process. Paton accepted that wilful or deliberate behaviour inconsistent with the Council's Code of Conduct could be considered gross misconduct. Note: It was accepted by Alderton that her employment was not terminated for gross misconduct because she was paid an amount of money in lieu of notice. Paton considered the Council had complied with the disciplinary policy and procedure. Applicant's Submissions [76] From 14 January 2014 Alderton claimed to have been the subject of workplace bullying, submitting that circumstances were raised with the Council at informal and formal meetings on: -- 22 of 42 -- 23 • 14 January 2015; • 9 March 2016; • 9 June 2016; and • 8 February 2018. [77] Council in correspondence dated 24 March 2017 advised that they had noted and fully considered her comments specifically about being bullied but from the evidence it was clear that her claims had never seriously investigated the workplace issues. Further the Council indicated that an investigation into her grievances would have delayed the Council's response to her correspondence. [78] The failure of the Council to seriously investigate her workplace bullying concerns had the effect of the Council failing to perform their duties in accordance with clauses 4.2 and 4.4 of the Council's Code of Conduct and had also failed to uphold the ethics values of promoting the public good. The end result of the Council's failure to uphold their obligations allowed the bullying to continue which was harsh, unjust and unreasonable. [79] In regard to the allegations about the incident of 17 January 2017 the Council had failed to undertake a thorough investigation with Noble confirming in cross-examination that Councillor Chapman had not been questioned even though he witnessed the incident. The actions of the Council in failing to meet their obligations allowed the workplace bullying to continue and was harsh and unreasonable as it impacted on the termination. Council had also failed to act upon workplace issues raised on 24 February 2017 and in doing so again had failed to meet their obligations in accordance with the Council's staff grievance management policy. [80] At the formal meeting held on 24 March 2017 four further allegations were raised against the appellant which were said to demonstrate a continuing corroboration of complaints initiated from the Plumbing/Building Department front counter staff and their supervisors which was the same department she had raised bullying allegations against. Alderton maintained that a written warning had been prepared at the time prior to her response indicating document tampering by the Council. [81] A further grievance raised by Alderton on 10 August 2017 involving two persons had never been finalised by Council which was again a breach of the Council's Code of Conduct and comments made by a supervisor around the failure to close the grievance had demonstrated poor behaviour towards her by the employer. At a meeting on 6 October 2017 she raised a grievance against an external person which was not processed by the Council and at no point did Noble inform her that these types of grievances would need to be referred to the police. During a formal meeting held on 20 October 2017 a Council officer informed her that the grievance should be referred to police as they were not able to investigate but failed to provide a full explanation. -- 23 of 42 -- 24 [82] Alderton's employment with the Council between commencement in November 2007 and 14 January 2015 had been unblemished, with the Council commencing a disciplinary process on 3 November 2016, which had failed to allow for other potential avenues for dealing with her behaviour to be explored and fully exhausted as outlined in the Council's discipline process. The implications of the written warning issued by the Council were that it was extended for two years and was active for disciplinary purposes for twelve months. Council had failed to provide every possible assistance and support to help her achieve the standard of conduct expected of her. [83] A without prejudice deed of settlement offered during the formal meeting of 20 October 2017 indicated that the Council had made the offer after consideration of the history of disciplinary action and her response of 13 October 2017. Noble in evidence had misrepresented Alderton's intentions to leave her employment at the Council. There had been a failure by the Council to acknowledge her mental health condition and following the issue of the without prejudice deed she had gone on an indefinite period of certified leave from the workplace. The Council had failed to uphold their obligations which was harsh, unjust and unreasonable. [84] There was evidence from Humberdross that confirmed Alderton had been suffering from psychological trauma due to work related stress diagnosed initially as Post Traumatic Stress Disorder. On 11 December 2018 Dr Gilbert diagnosed her with an adjustment disorder of a mixed, anxious and depressive type secondary to work related difficulties and again confirmed on 18 January 2018. The termination of employment was harsh due to the Council taking action against her whilst she was suffering a psychological injury. [85] There was evidence in the proceedings from a Chiropractor (Harwood) that confirmed she was suffering from chronic reoccurring neck pain, including upper trapezius hypertonicity and tension headaches from January 2015 until the termination on 22 March 2018. Postural fatigue and emotional stress were confirmed of likely stress. Council were made aware of her chronic neck pain in the course of the absentee management interview of 31 August 2016. [86] The Council's request for medical advice to her general practitioner on 19 January 2018 was made without her consent and therefore an unlawful act. On 27 February 2018 Paton was made aware that the medical advice requested from her general practitioner would be available on 9 March 2018 but this apparently was not acceptable to the Council and she was required to attend a medical review with the Council's appointed medical practitioner. Council had failed to perform their duties in accordance with the Council's Code of Conduct and demonstrated inefficiency with her medical information. [87] The disciplinary process commenced with a verbal warning being issued on 3 November 2016, a first written warning dated 24 March 2017 but there had been no final written warning issued. The termination of employment allowed for four weeks' notice payment therefore the termination was for misconduct and not gross misconduct. Her behaviour in the workplace was not according to the submission wilful or deliberate behaviour -- 24 of 42 -- 25 inconsistent with the Council's Code of Conduct and the dismissal should not have occurred prior to the issue of a final written warning. The termination of employment should have been in accordance with clause 5.28 of the Council's Certified Agreement on grounds of incapacity and not before 20 May 2018. [88] The Council had failed to perform their duties in accordance with the Council's Code of Conduct with the decision to terminate her employment having not been made responsibly, impartially, or equitably and was harsh, unjust and unreasonable. [89] Reinstatement or re-employment would not be a healthy employment option with the remedy being sought of 26 weeks' wages as compensation. Respondent's Submissions Overview [90] The employment of Alderton was terminated on 22 March 2018 on the basis of her ongoing inappropriate behaviour, failure to comply with the Council's Code of Conduct, continual poor attitude and conduct in the workplace and the continual lack of accountability for her actions. [91] The disciplinary history that led to the decision to terminate Alderton's employment was summarised as: • 14 January 2015 - informal meeting discussed conduct issues regarding tardiness; • 9 March 2016 - formal meeting to discuss continuing conduct issues; • 9 June 2016 - informal meeting to discuss continuing conduct issues in addition to her tardiness; • 27 October 2016 - formal meeting to discuss Alderton's conduct towards another employee; • 15 November 2016 - formal meeting to issue a verbal warning due to continuing conduct issues; • 30 January 2017 - formal meeting to discuss continuing conduct issue; • 24 March 2017 - formal meeting in respect of further conduct issues; • 2 May 2017 - written warning issued following consideration of Alderton's written response (dated 12 April 2017); • 7 September 2017 - informal meeting to discuss conduct issues; and • 6 October 2017 - formal meeting to discuss continuing conduct issues. [92] The employment was terminated on 22 March 2018 following the consideration of Alderton's response (dated 13 October 2017) on the basis of her: • ongoing lack of accountability; • poor attitude; -- 25 of 42 -- 26 • continuing breaches of the Council's Code of Conduct; and • wilful or deliberate behaviour in breach of clause 3(f) of the Respondent's Discipline Management Policy. [93] The termination of Alderton's employment was not unfair within the meaning of s 316 of the Industrial Relations Act 2016 (the Act). Relevant Law [94] The onus in respect of matters commenced under s 317 of the Act is to prove her dismissal was harsh, unjust or unreasonable with the words "harsh, unjust or unreasonable" given their ordinary meaning. [95] The matters that must be considered by the Commission in an application commenced under s 317 of the Act are set out in s 320 of the Act. Issues with Alderton's Submissions [96] Alderton made a number of submissions regarding Council failing to uphold ethics values which were not put to Council witnesses. [97] By virtue of the rule in Brown and Dunn4 the Respondent invites the Commission to exclude such submissions in its consideration of the application. The self-represented status of Alderton does not exempt her from complying with the rules of evidence. Council's Case [98] On 16 March 2018 the Council received correspondence from Dr Cotton which indicated the best way to resolve the disciplinary process which had commenced on 6 October 2017 would be in writing, in lieu of a meeting with Alderton. [99] On 21 March 2018 Paton forwarded an email to Alderton which informed her of Dr Cotton's medical opinion and later the same day Alderton requested that written correspondence be sent to her nominated email address. [100] On 22 March 2018 Paton forwarded by email the outcome of the disciplinary process that had commenced in respect of Alderton on 6 October 2017 which included a letter of termination setting out the reasons for her dismissal. [101] Alderton was therefore notified of her dismissal by Council on 22 March 2018 pursuant to s 320(a) of the Act. 4 Brown v Dunn [1893] 6 R 67. -- 26 of 42 -- 27 Did the dismissal relate to the operational requirements of the Council or Alderton's conduct, capacity or performance? - s 320(b)(ii) of the Act [102] The dismissal related to Alderton's conduct as an employee of the Council for the reasons set out in the letter (dated 22 March 2018). [103] The Council used clause 5.28 of the Council's Certified Agreement to obtain a medical opinion of Alderton's ability to participate in a disciplinary meeting but otherwise had no concerns with her capacity. [104] The Commission ought to conclude that Alderton's dismissal related to her conduct only, pursuant to s 320(b)(ii) of the Act. Had Alderton been warned about the conduct, capacity or performance or given an opportunity to respond to the claims? - s 320(c)(i) and (c)(ii) of the Act. [105] The Council put Alderton on notice as early as 14 January 2015 that there were concerns about her conduct, albeit not necessarily a warning, and in any event the first warning in relation to her conduct was given on 5 April 2016. There was a subsequent warning given on 13 June 2016 regarding continued concerns in respect of her conduct in which Alderton was required to: Comply with Council's management policies and code of conduct and ensure your behaviour reflects the standard outlined in the Code of Conduct.5 [106] A verbal warning was issued to Alderton at a meeting held on 15 November 2016 which reiterated the need to comply with the Council's Code of Conduct. [107] Notwithstanding the verbal warning there was an incident involving Councillor Chapman that was discussed at a meeting held on 30 January 2017 which saw Alderton offered the opportunity to respond verbally and in writing. In the written response received on 8 February 2017 she raised a number of concerns which resulted in a suspension of the disciplinary process to allow the Council to investigate her concerns. Prior to making the written response there were a further four complaints made by Council employees against Alderton. Subsequently, following a response to the further allegations a written warning was issued to Alderton on 2 May 2017 which specifically directed her to: Comply with Council's Code of Conduct and ensure [Alderton's] behaviour reflects the standard required in the Code of Conduct. [108] Prior to the written warning being issued a complaint was received from a member of the public about Alderton which upon investigation was partially substantiated but it was determined that the written warning sufficiently addressed the conduct. Alderton was put on notice at a meeting held on 6 October 2017 that termination of employment was possible depending upon her response to a show cause notice. The response was received 5 Exhibit 25. -- 27 of 42 -- 28 by the Council on 13 October 2017 and after being duly considered a letter was issued on 22 March 2018 confirming the termination of her employment. [109] The Commission was invited to conclude that Alderton had been warned on numerous occasions that her conduct was in breach of the Council's Code of Conduct and of the requirement to comply with the Code. The Council had satisfied s 320(c)(i) of the Act in that Alderton had been provided an opportunity to respond, either verbally or in writing to each allegation made against her, satisfying s 320(c)(ii) of the Act. Any other matters the Commission considers relevant - s 320(d) of the Act Psychological Injury of Alderton [110] The Council agrees with the preliminary view expressed by the Commission that the medical evidence led by Alderton that she suffers from psychological injuries arising from her employment does not have any relevance to the application under s 317 of the Act. In any event the psychiatrist had given evidence that it was possible her injuries may have arisen even if the Council's actions had been entirely reasonable. [111] It had been conceded by the psychologist that her evaluation had been made on Alderton's self-report and she was unaware whether Alderton had been given an opportunity to improve her conduct. Given that the psychologist had not been furnished with the full details of Alderton's disciplinary history, low weight should be assigned to her evidence. Allegation that the Council should have issued a written warning [112] A final written warning had not been issued by the Council because it had been determined that Alderton was engaging in a wilful and deliberate breach of the Code of Conduct. The Council's Discipline Management Policy is clear at clause 3(f) that wilful or deliberate behaviour inconsistent with the Code of Conduct may lead to summary dismissal. [113] The Council denied that it was obliged to issue a final written warning prior to making the decision to terminate the employment and in respect of whether the decision to refrain from issuing a final written warning was unfair, it ought to be noted that: • Alderton had been warned in writing, on numerous occasions, of the need to comply with the Code of Conduct but nonetheless had continued to engage in breaches of the Code of Conduct notwithstanding the warnings; • Alderton had failed to demonstrate any meaningful improvement; and • any further warning issued by the Council would likely have negligible effect in addressing the misconduct. Allegations that the Council ignored Alderton's grievances -- 28 of 42 -- 29 [114] The assertion made by Alderton that the Council had ignored her grievances was not necessarily relevant or conclusive given that the grievances were actioned on a number of occasions and the assertions in respect of this matter were not relevant to the application under s 317 of the Act. Allegations that the complaints against Alderton were collaborated [115] Alderton raised these concerns with Noble on 31 August 2017 and following an investigation Noble found no evidence of a collaboration. Alderton admitted she had placed no evidence before the Commission of a collaboration of complaints which would allow for a conclusion that the misconduct relied upon by the Council had not been collaborated. Allegations that the Deed of Settlement should not have been offered [116] The assertion that the deed of settlement offered in lieu of a final warning to Alderton had traumatised her, causing amongst other things to feel anxious and depressed and were more relevant to a WorkCover claim. [117] The offer by the Council was made in circumstances where comments had been made by Alderton that she was giving consideration to resigning due to her well-being. [118] The offer was not a breach of the discipline procedure as asserted by Alderton because such offer was a discretionary measure separate to Council policy. Submission as to Costs [119] The Council seeks to make an application pursuant to s 545(2) of the Act requesting that the Commission will hear the parties as to costs. [120] In support of the application it was submitted that: • Alderton rejected a "Without Prejudice" offer (dated 11 December 2018) offering 8 weeks' gross salary for full and final settlement; • Alderton made a counter offer (dated 19 December 2018) of 20 weeks' gross salary for full and final settlement; • Council gave genuine consideration to Alderton's counter offer and made a further offer (dated 21 December 2018) offering 12 weeks' gross salary for full and final settlement being approximately half the prescribed statutory limit; and • Alderton rejected the Council's second offer. [121] The Council submitted that the Commission conclude, in the event it orders a remedy no more beneficial than the Council's offer (dated 21 December 2018), that Alderton caused -- 29 of 42 -- 30 the Council to incur costs because of an unreasonable act, namely the refusal of a reasonable offer to compromise having regard to the merits of the matter. [122] Alderton was self-represented in the Commission and had access to a publication of the Commission titled "Unfair dismissal and reinstatement guide" which specifies under s 3.2 the basis upon which an application for reinstatement is considered by the Commission. [123] In this case, Alderton instead relied upon a substantial number of arguments and material more relevant to a WorkCover claim and failed to address the criteria at s 320 of the Act. The contention that changes to her position description had led to bullying and stress and that there had been a collaboration of employees was clearly made without any reasonable basis. [124] It should have been apparent to Alderton that her application was made without reasonable cause because there was no substantial prospect of success having regard to the lack of an evidential basis for a number of the key arguments. [125] The Council reserves the right to make further submissions in respect of costs in the event the Commission makes orders hearing the parties in relation to costs. Appellant's Submissions in Reply [126] Alderton conceded that her dismissal by the Council had related to her conduct as an employee and did not relate to capacity or performance. Warnings had been given about misconduct as follows: • verbal warning (confirmed in writing) issued 15 November 2016; and • written warning issued 2 May 2017. [127] In addition, the Council had raised concerns about her conduct commencing 14 January 2015 and continuing throughout the employment thereafter: • conduct concerns raised informally on 14 January 2015; • further allegations about conduct raised formally on 9 March 2016; • continuing conduct concerns were discussed on 9 June 2016; • concerns about her conduct were discussed informally and formally in October and November 2016, leading to a verbal warning (confirmed in writing) issued on 15 November 2016; • further allegations regarding her conduct were raised formally on 30 January 2017; • further allegation about her conduct was raised formally on 24 March 2017, leading to a written warning being issued on 2 May 2017; • further allegations about her conduct were raised on 3 May 2017; and -- 30 of 42 -- 31 • further allegations about her conduct were formally raised on 6 October 2017. [128] Alderton claimed not to have been given an opportunity to respond to claims about her conduct and in particular: • performance meeting held on 9 June 2016 failed to provide a fair and reasonable opportunity to verbally respond to each of the claims raised about her conduct; and • a fair and reasonable opportunity to respond to the show cause notice of 24 March 2017 her written warning was already in existence. [129] The Commission was invited to recognise that Alderton was provided with an opportunity to respond verbally or in writing to the issues of conduct in each instance and to determine if the psychological injury suffered by her at the time of her termination was relevant in the reinstatement application. [130] The submission by the Council that a final written warning had not been issued because Alderton had engaged in a wilful and deliberate breach of the Code of Conduct was said to be inconsistent with the reason for dismissal notified in the letter of termination. Furthermore, the termination of employment was not an instant dismissal, taking place approximately five months after a show cause notice was issued (on 6 October 2017) and whilst she was on certified leave from the workplace. [131] In determining the fairness of the decision to terminate the employment without issuing a final written warning the Commission was invited to consider: • whether Alderton was provided a fair and reasonable opportunity to respond to allegations in the 9 June 2016 meeting and the show cause notice of 24 March 2017; • her workplace bullying concerns were not being taken seriously by the Council; and • other potential avenues for dealing with her misconduct were not explored. [132] It was submitted that whilst the grievances raised by Alderton with the Council were more relevant to a general protections' application, however that they were ignored by the Council, invites the Commission to find that this was unfair and relevant to the reinstatement application. The same would apply to the alleged complaints that Council employees had collaborated against her which were ignored, bringing into question the fairness of the dismissal. [133] The Commission was invited to determine that the offer of a deed of settlement as a measure to resolve the misconduct issues was also unfair and relevant in the reinstatement application. -- 31 of 42 -- 32 [134] On the issue of costs it was argued that the application for reinstatement had not been made vexatiously or without reasonable cause or prospects of success. In the event that the Commission determined to hear the Council on the matter of costs, Alderton would seek to make further submissions on this point. [135] Finally, the Commission was invited to determine that the decision to terminate her employment, on grounds of misconduct, had been made unfairly in accordance with s 316 of the Act for the reasons: • the respondent did not at all material times undertake full and extensive investigations concerning her misconduct; • the respondent did not at all material times provide a reasonable opportunity to respond to allegations concerning her misconduct; and • the evidence relied upon by the respondent which identified her termination of employment was on grounds of gross misconduct is inconsistent with the reasons for dismissal notified on 22 March 2018. Conclusion [136] The matter for determination was whether the termination of Alderton's employment, effective from 22 March 2018, had been harsh, unjust or unreasonable. In consideration of the Application for Reinstatement, it is a requirement for the Commission in deciding the matter to observe the following provisions of s 320 of the Act: 320 Matters to be considered in deciding an application In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider - (a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to - (i) the operational requirements of the employer’s undertaking, establishment or service; or (ii) the employee’s conduct, capacity or performance; and (c) if the dismissal relates to the employee’s conduct, capacity or performance - (i) whether the employee had been warned about the conduct, capacity or performance; or (ii) whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and (d) any other matters the commission considers relevant. [137] For Alderton to succeed in the application she must establish on "the balance of probabilities" that the Council by way of their conduct had caused the termination of her employment to be harsh, unjust or unreasonable. Whether the employee was notified of the reason for dismissal? [138] Alderton tendered in the proceedings correspondence (dated 22 March 2018)6 under the signature of Ken Diehm, Chief Executive Officer in which the following was recorded: 6 Exhibit 1. -- 32 of 42 -- 33 • meeting held on 6 October 2017 to discuss ongoing concerns relating to her behaviour and conduct in the workplace and her decision to decline a support person; • Council commenced formal disciplinary process following the meeting which was subsequently delayed due to her absence from work from 23 October 2017 on certified sick leave and a worker's compensation claim regarding being bullied at work and as a result suffering a stress-related condition' • on 15 January 2018 Local Government Workcare advised Council that having considered the information provided and a subsequent investigation of her workers' compensation claim, that the application for compensation had been rejected; • Council considered that it was in the interest of all parties that the disciplinary process be finalised as soon as possible, rather than have the process "left hanging". [139] Council sought professional medical advice regarding the fitness of Alderton to attend a disciplinary meeting which eventuated in her attendance upon a medical practitioner (Dr Cotton) on 5 March 2018 who in a medical report (dated 6 March 2018) advised she was not fit to attend any "face to face" meetings in the medium to long term but having discussed the matter at length with Alderton was of the opinion the disciplinary process could be addressed in writing. [140] Details of the misconduct were outlined: • allegations of inappropriate and disrespectful behaviour towards a Council employee on 30 August 2017; • allegations of inappropriate and disrespectful behaviour towards a second Council employee also on 30 August 2017; • allegations of inappropriate and disrespectful behaviour towards a third Council employee on 10 August 2017; and • excessive level of absences within the past 12 months being 34 days personal leave, acknowledging that most of the leave was certified; and • Alderton had responded to the show cause notice (dated 13 October 2017) which the Council had fully considered before determining that all the evidence available supported that she had "failed to conform to the standard of behaviour expected by a Council Officer". [141] The correspondence further noted that throughout the relevant period she had displayed no accountability toward her actions, demonstrating poor judgement and attitude. The behaviour had been perceived as rude and unprofessional with the following warnings issued by the Council: • 3 November 2016 - verbal warning; and -- 33 of 42 -- 34 • 2 May 2017 - written warning. [142] Alderton over this period, it was noted, had been provided with clear expectations of the conduct required of her and given substantial assistance on her role requirements and Council's policies. [143] There were concerns regarding her conduct that were numerous and collective and were said to generally demonstrate an ongoing pattern of non-conformance and unacceptable workplace behaviour including a high level of absenteeism. Alderton's actions were considered breaches of the following principles: 2.4 Performance at Work 'Employees should take ownership over, and be accountability (sic) for, their actions and decisions. Examples of this include: • Employees performing duties to the best of their ability • Be open about reporting mistakes • Give priority to official duties over personal activities during work time • Employees conducting themselves in a way that allows others to gain confidence and trust in the way Council does business • Not allowing others to distract or prevent others from working • Following Council agreements and policy on attendance at work and leave.' 'Employees should act professionally and avoid situations where their behaviour could reflect badly on Council or impact the workplace.' 4.2 Obligations 'Employees have a general legal duty to take reasonable care to avoid causing harm to themselves, another person or to the environment. Employees are required to exercise the degree of care that could reasonably be expected from a competent and skilled person in their job. Furthermore, employees are required to comply at all times, with relevant legislation standards including Council policies.' 4.3 Behaviour towards each other 'Employees should treat other employees with respect, honesty, courtesy, fairness, sensitivity and dignity, regardless of their employment status within Council.' 'Effective teamwork is an essential part of a productive workplace culture. Each team member needs to work cooperatively with fellow staff and actively and willingly take part in team activities.' [144] Alderton was informed that due to her "ongoing inappropriate behaviour, failure to comply with Council's Code of Conduct, your poor attitude and conduct, in the workplace and your continual lack of accountability for your actions" her employment was being terminated effective immediately with the payment of four weeks' pay in lieu of notice. [145] The evidence before the proceedings supports the proposition that Alderton was unequivocally notified of the reasons for dismissal pursuant to s 320(a) of the Act. Whether the dismissal related to the employee's conduct, capacity or performance? [146] The termination letter clearly identified the reasons for dismissal related to conduct, over a period of time that constituted breaches of the Council's Code of Conduct. -- 34 of 42 -- 35 Additionally, in the same letter the Council outlined that the misconduct also included an excessive level of absences within the past 12 months, being in excess of 34 days personal leave, most of which was certified leave. It was reasonable to draw an inference that the reference to the excessive absences may have gone to the issue of "capacity" and in particular the capacity to present for work on a regular basis. [147] In Schipp & Anor v The Star Entertainment Qld Limited7, Merrell DP addressed matters relating to capacity: The noun 'capacity' in the phrase 'conduct, capacity or performance', in provisions like those referred to above, is referrable to the circumstance where an employee is dismissed because the employee does not have the skill to perform the job for which he or she is employed. However, during the operation of the 1990 Act, the Queensland Industrial Relations Commission accepted that the noun 'capacity' in the phrase '… reasons related to the employee's conduct, capacity or performance' in s 292(1) of the 1990 Act, operated where a dismissal was on the basis of an employee's physical or mental incapacity. A similar approach was taken by the Queensland Industrial Court. The same approach was taken under the 1997 Act and under the 1999 Act. The same approach was also taken under the equivalent Commonwealth legislation. For example, in Shaw v University of Queensland, the Industrial Relations Court of Australia, in considering s 170DE(1) of the Industrial Relations Act 1988 (Cth), held that 'capacity', in that section, comprehended the employee's capacity to perform, in the future, the duties required pursuant to the contract of employment and if an employee's state of health had significantly diminished the employee's capacity to perform his or her duties pursuant to the contract of employment, then the employer had a valid reason for termination under that section. That same approach was taken under the equivalent provisions in the Workplace Relations Act 1996 (Cth). The same approach is also taken under the Fair Work Act 2009 (Cth). The noun 'capacity', in the sense it has been used in the phrase 'conduct, capacity or performance' in unlawful and unfair dismissal provisions of industrial legislation since 1990, includes, for the reasons referred to above, the physical or mental state of health of the employee to perform the work for which he or she is contracted. The Full Bench, in the 2000 Review, was referring to 'capacity' in that sense when it referred to ' … a valid reason for the dismissal related to the employee's conduct, capacity or performance.' (references omitted) [148] On the date of termination (22 March 2018) Alderton had been absent from the workplace since 23 October 2017 however on the reading of the termination letter the reasoning for the dismissal generally focused on Alderton's inappropriate behaviour and conduct with only a mention of her "high level of absenteeism" unaccompanied by any other commentary. [149] In the course of cross-examination, Paton gave evidence to the effect in regard to clause 5.2.8 of the Certified Agreement about an employee being absent on unpaid leave that this had no relevance in these proceedings as the employment had not been terminated for the reason of incapacity. [150] I am satisfied that the decision of the Council to terminate Alderton's employment had related to the employee's conduct in accordance with s 320(b)(ii) of the Act. 7 Schipp & Anor v The Star Entertainment Qld Limited [2019] ICQ 009, [46]-[49]. -- 35 of 42 -- 36 [151] If the decision relates to the employee's conduct, capacity or performance - • whether the employee had been warned about conduct, capacity or performance; or • whether the employee was given an opportunity to respond to the claim about conduct, capacity or performance. [152] On the basis of having found that Alderton's employment had been terminated due to her conduct, it is firstly necessary to determine whether there had been warnings given in respect of concerns held by the Council regarding the said or similar conduct. [153] The Council's Discipline Procedure (Procedure No: 805734) relevant to Alderton's employment contained the following provisions in respect of the application of the procedure: Stage 1 - Verbal Warning If the conduct does not meet acceptable standards, the employee will normally be given a formal verbal warning in the first instance. This will be confirmed in writing to the employee by the Chief Executive Officer. He/she will be advised of the reason for the warning, that it is the first stage of the disciplinary process and of his/her right of appeal. The employee will be informed of the standard of conduct required and the consequences of further breaches. Stage 2 - First Written Warning If a further offence occurs, or if the offence is a serious one, a written warning will be given to the employee by the Chief Executive Officer. The written warning will: • give details of the misconduct or work performance issue, necessary corrective measures and a timeframe for improvement and review; and • caution that further disciplinary action will be considered if there is no improvement or if there is any further breach of the Council policies and protocols. A copy of the written warning will be kept on the Council's Discipline file for two years but will be disregarded for disciplinary purposes after 12 months, subject to satisfactory conduct being maintained. Stage 3 - Final Written Warning If there is still a failure to improve and conduct is still unsatisfactory, or if the misconduct is sufficiently serious to warrant only one written warning but insufficiently serious to justify dismissal, a final written warning will be given to the employee by the Chief Executive Officer. The final written warning will: • give details of the misconduct or work performance issue, necessary corrective measures and a timeframe for review; and • caution that dismissal may result if there is no satisfactory improvement. A copy of the final written warning will be kept on the Council Discipline file for two years but will be disregarded for disciplinary purposes after 12 months, subject to satisfactory conduct being maintained. Stage 4 - Dismissal -- 36 of 42 -- 37 If conduct is still unsatisfactory or if a further offence occurs (or in the case of gross misconduct - see below), dismissal will normally result. Only the Chief Executive Officer has the delegated authority to dismiss an employee. The employee will be provided with written reasons for the dismissal and the date on which employment terminates. [154] A verbal warning (confirmed in writing) was issued to Alderton by the Acting Chief Executive Officer (dated 3 November 2016) which amongst other things stated: In view of your actions, it has been decided to issue you with a verbal warning. In accordance with Council's Discipline Procedure, a file note of this warning will be kept on Council's discipline file. You are reminded of your responsibilities as a Council employee and your obligations to act in accordance with Council's Certified Agreement and Code of Conduct at all times. In particular you are required to: 1. Arrive at work on time to commence your day at 8.15 am, as per your current flexible working arrangement, unless otherwise arranged with your supervisor; 2. Uphold your responsibilities as a Council employee and work in line with your position description requirements; 3. Comply with Council's Code of Conduct and ensure your performance reflects the standard required in the Code of Conduct; and 4. Exemplify Council's image of a friendly, motivated, enthusiastic, positive and helpful employee. Council will keep your performance and conduct under review and I caution that further unsatisfactory conduct may result in further disciplinary action. [155] A first written warning was issued to Alderton by the Acting Chief Executive Officer (dated 24 March 2017) on 2 May 2017, which amongst other things stated: In view of your actions, given the ongoing nature of your poor attitude and conduct whilst at work and taking into consideration you were issued a verbal warning for breaching Council's Code of Conduct on 15 November 2017, it has been decided to issue you with a written warning. This warning covers all aspects of your behaviour and performance at Council and will remain on Council's discipline file for a period of two years and remain active for disciplinary purposes for a period of 12 months from the date of issue. As a Council employee, it is expected that your conduct in all areas of your position be satisfactory. In particular you are required to: 1. Make immediate improvement in your attitude at work and operating as a member of the team; 2. Treat others with respect, honesty, courtesy, fairness, sensitivity and dignity; 3. Undertake training in prioritising and managing your work, to be scheduled by human resources; 4. Comply with Council's Code of Conduct and ensure your behaviour reflects the standard required in the Code of Conduct; and 5. Exemplify Council's image of a friendly, motivated, enthusiastic, positive and helpful employee. Council will keep your performance and conduct under review and I caution that further unsatisfactory conduct may result in further disciplinary action. -- 37 of 42 -- 38 [156] The First written warning had its genesis from a disciplinary meeting held on 24 March 2017 and followed a response to a show cause notice by Alderton received on 12 April 2017. Issue was taken by Alderton with the written warning due to the date on the letter being 24 March 2017 which was a date prior to the Council having received Alderton's response, prompting an allegation that the written warning had been prepared prior to her being given the opportunity to respond to the allegations regarding her conduct. [157] The evidence in the proceedings clearly pointed to the date on the warning letter having been an error and there is no question in my mind that it had been generated after the response provided by Alderton on 12 April 2017, due to particular references in the correspondence to her response. [158] The conduct of Alderton to continue to maintain that the written warning was tainted in my view was spurious in nature and likely for the reason of discrediting the warning to suit her "own ends" in prosecuting the application for reinstatement. [159] There is sufficient evidence to conclude that effectively Stages 1 and 2 warnings pursuant to the Discipline Procedure had been issued to Alderton however it is not of contest that a Stage 3 Final Written Warning was not issued prior to the decision to terminate Alderton's employment. [160] The Discipline Procedure identifies that if there is still a failure "to improve and conduct is still unsatisfactory" but insufficient to warrant dismissal, a Stage 3 Final Written Warning would be given to the employee. In this case Alderton had engaged between 10 and 30 August 2017 in conduct that was found to have been in breach of the Council's Code of Conduct in the form of: • Allegations of inappropriate and disrespectful behaviour displayed towards Council employee, Tracey Dean, when discussing phone duty responsibilities on 30 August 2017. It is alleged you asked Tracey what was happening with the phones then proceeded to continuously speak over the top of Tracey in a confrontational and disrespectful manner, interrupting Tracey each time she tried to answer you. • Allegations of inappropriate and disrespectful behaviour displayed towards your supervisor, Lauren Payler, when you approached her to discuss work allocation on 30 August 2017. It is alleged that you continuously spoke over the top of your supervisor when she was trying to explain and discuss workloads with you, that your tone was confrontational, aggressive and disrespectful. • Allegations of inappropriate and disrespectful behaviour displayed towards Tim Symons when discussing two building files that were missing on 10 August 2017. It is alleged that when Tim offered to check your work area to assist you to look for two missing building files, that you started speaking over the top of him, saying that you had already checked the files you had at your desk and 'if you don't believe me then that's your problem'. It is alleged that you continued to speak over the top of Tim in a confrontational and aggressive tone when he tried to explain the situation. it is noted that these files were later found within the files at your desk. -- 38 of 42 -- 39 [161] The continued inappropriate behaviour and conduct exhibited by Alderton in not only the period between the issue of the Stage 2 First Written Warning and the meeting held on 6 October 2017 but beyond to the verbal warning (confirmed in writing) issued on 3 November 2016 allowed for the Chief Executive Officer to reasonably move forward to the Stage 4 - Dismissal of the Discipline Procedure without having to enliven the Stage 3 - Final Writing Warning. [162] On whether an opportunity was provided to Alderton to respond to the allegations of the conduct that lead to the termination of employment, it was the case that a meeting was convened by the Council on 6 October 2017 to discuss ongoing concerns with her conduct and behaviour and following the meeting Council commenced a formal disciplinary process which was placed on hold upon her commencement of sick leave on 23 October 2017 and a claim which had been made for workers' compensation. [163] The Council through Paton in January 2018 sought to move the disciplinary process towards a conclusion and in doing so contacted Alderton and later her husband for the purpose of having her medically assessed to determine her fitness to participate in the process. Evidence given in the proceedings confirms that a period of time elapsed before Alderton was able to attend upon Dr Cotton who ultimately found she was not fit to participate in a "face to face" meeting but the matter could be addressed in writing. [164] Prior to the decision to terminate the employment the following had occurred: • at all stages Alderton was offered a support person; • she was offered access to the Employee Assistance Program; • she was provided with the allegations in writing; • she was given an opportunity to respond to the allegations in writing; • she was provided with paid time off work to respond to the show cause letter in October 2017; and • she was granted extensions of time upon request for the purposes of responding. [165] The evidence in the proceedings supports the proposition that s 320(c)(i) and (ii) of the Act had been satisfied regarding Alderton having been provided with warnings about her conduct and afforded an opportunity to respond to claims about her conduct in the workplace. Other Matters [166] In the course of prosecuting the application Alderton had relied upon a number of matters set out below that warrant consideration by the Commission in the determination of the application. Psychological Injury -- 39 of 42 -- 40 [167] Alderton had been examined by a consultant psychiatrist (Dr Gilbert) on 11 December 2017 at which time she was diagnosed as suffering from an adjustment disorder. Prior to the consultation she had lodged a claim for workers' compensation that had ultimately been rejected by the insurer and the insurer's decision was supported by a decision of the Workers' Compensation Regulator on review. [168] In the course of the proceedings, in particular the cross-examination of Alderton, the Commission stated: COMMISSIONER: And Ms Alderton's brought a lot of material to the Commission about her WorkCover matter that's not - it's really not of any benefit to her, the case she prosecutes for . . . termination, in terms of that. And, I mean, whatever Local Government Workcare decide in relation to what's reasonable or not reasonable management action doesn't affect what the Commission - can't impact on what the Commission finds in terms of what occurred with her termination.8 The Commission maintains the position subject of the above extract from the transcript. Council employees colluded against her [169] In the proceeding Alderton in her evidence made claims that Council employees had vexatiously collaborated to make allegations against her until her employment ceased. [170] The following exchange occurred between the Commission and Alderton during her evidence in chief: COMMISSIONER: How do you come to the conclusion that they wanted you removed from Council? ALDERTON: I have no, and I have no evidence. I say it was Amanda Genrich and Karen Connor, or that was the root of it.9 The claim by Alderton was not supported by any evidence. Council failed to investigate allegations made by Alderton regarding sexual harassment and victimisation [171] Alderton's evidence was that Council had failed to comply with the Staff and Grievance Procedures in responding to issues raised by her in the workplace. [172] In correspondence (dated 5 October 2017) tendered by Alderton in the proceedings10, Paton informed her the following concerns raised by her had been assessed: • Allegations of inappropriate behaviour and sexual harassment on 28 August 2017 by Council employee Jodie Clough, you advised that Jodie crouched down at your knees at one side of your chair trying to get to the other side. 8 T5-12. 9 T3-20. 10 Exhibit 32. -- 40 of 42 -- 41 • Allegations that your supervisor did not address your concerns that you were sexually assaulted by a Council employee, and just asked you if you need to take a break, • Allegations your workload as Planning Technical Officer is resulting in your work satisfaction and motivation decreasing, that there is too much work and not enough resources, • Allegations that management within your area are teaming up to 'get you out', • allegations that a group of people keep making complaints about you because they don't want you in your job. Paton went on to state: The information provided to Caitlin Noble on 31 August 2017 has been assessed in line with Council's Staff Grievance Management Policy and Procedure and it has been found that there is insufficient evidence and supporting examples to investigate your Grievance further. The Staff Grievance Resolution Procedure depicts that a grievance will be closed in cases where the grievance is identified as being vexatious, misconceived or without substance. Employees should be aware that there are serious implications for lodging vexatious claims. The information provided by you does not identify unreasonable action by management. It is acknowledged that you stated you feel your current workload is too high and you are encouraged that you raise these concerns with your supervisor to ensure an ongoing flow of communication. This matter is now considered closed. If you have further information and specific examples to support your grievance please contact Caitlin Noble on the number below so that matter can be investigated further. [173] The claim by Alderton regarding non-compliance appears to be without standing and in any event was not relevant to the current proceedings. Deed of Settlement [174] In the course of the disciplinary process in October 2017 the Council offered a deed of settlement (dated 20 October 2017) whereby Alderton would exit her Council employment on mutually agreed terms. The Deed was offered on a without prejudice basis and allowed for a letter of resignation to be tendered by her and accompanied by an offer of an "agreed sum" in the form of a settlement payment. [175] The deed included amongst other things the following provision: The parties without any admissions have freely entered into without prejudice discussions to resolve the issues between them and have mutually agreed to the terms set out in this Deed. -- 41 of 42 -- 42 [176] I am unable to conclude as alleged by Alderton that the deed of settlement was part of the disciplinary process or that it was a relevant factor to the termination of her employment. Findings [177] On consideration of the evidence, material and submissions before the proceedings pursuant to the requisite standard of proof, the Commission finds that: • the allegations relevant to the conduct engaged in by Alderton were reasonably open to be substantiated by the decision maker; • the disciplinary process engaged in by the decision maker had been compliant with the legislative and policy procedures relevant to the circumstances with Alderton being afforded procedural fairness and natural justice at all times; • the penalty of termination was warranted in circumstances where the conduct and behaviour displayed by Alderton over an extensive period of time had breached the Council's Code of Conduct; • the decision to terminate Alderton's employment effective from 22 March 2018 was not harsh, unjust or unreasonable; and • the application for reinstatement is refused. Costs [178] The Council's submissions foreshadowed an application for costs pursuant to s 545(2) of the Act which would require the Commission to hear the parties as to costs. Should such an application in the existing proceedings be made, the Commission would issue appropriate directions to facilitate the hearing of such application. [179] I order accordingly. -- 42 of 42 --