Cannon v Queensland Aboriginal and Torres Strait Islander Legal Services Secretariat [2001] QIRC 107 (2001) 167 QGIG 298

298 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 27 July, 2001 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Cheryl Cannon AND Queensland Aboriginal and Torres Strait Islander Legal Services Secretariat (No. B1739 of 2000) COMMISSIONER FISHER 16 July 2001 Application for Reinstatement – Attitude and management style – Secondment or resignation – Entitlements paid and received – Applicant denies receiving counselling – Applicant rejects demotion and salary reduction – Compensation awarded. DECISION Cheryl Cannon has filed an application for reinstatement to her former position of Manager, with the Queensland Aboriginal and Torres Strait Islander Legal Services Secretariat (QAILSS). Ms Cannon commenced work with QAILSS in March 1996 as a Social Worker. In July 1997 QAILSS received funding from ATSIC to monitor the State Government’s implementation of the Royal Commission into Aboriginal Deaths in Custody. As a consequence of this funding, Ms Cannon was employed in the Deaths in Custody Monitoring Unit as a Researcher. In April 1998 Ms Cannon was given the opportunity to work as the Acting Chief Executive Officer of the Goolburri Land Council. There is a dispute over whether this position was a secondment or whether Ms Cannon resigned to assume this role. This will be addressed in more detail later. It is agreed that Ms Cannon performed work in the acting position before resuming her former position of Researcher with the Deaths in Custody Monitoring Unit. When the Manager of that Unit resigned due to ill health, Ms Cannon assumed that role. She continued in that position until her employment was terminated on 30 October 2000. The dismissal followed Ms Cannon’s refusal to accept a demotion to a position of Researcher and to undergo training to allow her to resume management duties on satisfactory completion. This offer was made against a background of growing discontent by Ms Cannon’s superiors and subordinates about her management style. Ms Cannon persisted with a contention that she had been summarily dismissed until late into the hearing. This contention was based on confusion over entitlements paid on termination. The position was ultimately abandoned. The Commission has not approached consideration of this matter on the basis that the dismissal was summary. The credibility and veracity of the witnesses is important to the determination of this matter. There are some fundamental issues in dispute, for example, the Goolburri appointment and whether Ms Cannon was counselled over her perceived failings as a manager. The only witness on whose evidence I believe I can rely is Mr Russell Bellear, the Chairman of QAILSS. His evidence was balanced and rational. I found the evidence of Ms Cannon’s subordinates, Vern Hopkins and Mervyn Graham to be vague. John Leslie, the National Coordinator of the National Aboriginal and Torres Strait Islander Legal Services Secretariat (NAILSS) and the Acting Coordinator of QAILSS until approximately February 2000, has a long family relationship with Ms Cannon as well as a working relationship. This enabled him to be insightful but also judgemental. The evidence of Ian Delaney, the Coordinator of QAILSS after Mr Leslie, was imprecise and voluble. Except for Mr Bellear, the witnesses called by QAILSS mentioned were so disparaging of Ms Cannon that their credibility suffered. In addition a significant amount of their evidence could not be recalled from memory but only given after prompting from their witness statements. At times their oral evidence departed from their affidavits. -- 1 of 6 -- 27 July, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 299 I found Ms Cannon gave credible evidence on some matters, however, there were occasions where I believe her to be deliberately vague and non- committal to protect a position she did not wish to reveal. From time to time under cross-examination, Ms Cannon became angry and heated, which gave complexion to the criticism of her management style. Other witnesses were called by both applicant and the respondent. The evidence from those witnesses not mentioned I have found unhelpful. I should mention that one witness appeared on the last day scheduled for evidence as a result of an Attendance Notice issued by the Registrar that morning. The Commission expressed its concern to the Respondent about the late application before the Registrar. Under the Industrial Relations (Tribunal) Rules 2000, the Court, Commission and the Registrar have the power to waive the period of notice. The Rules are silent about the issuing of Attendance Notices during a hearing. An improvement would be for the Rules to provide for the Registrar to consult with the Commission during the conduct of a hearing before an Attendance Notice is issued. I now turn to the various matters in contention. The Goolburri Appointment Mr Leslie was approached by Ray Robinson, the Chair of Goolburri Land Council and Deputy Chair of QAILSS when that organisation was experiencing some internal difficulties in April 1998. Mr Robinson asked whether Ms Cannon would be available to assume the role of Acting CEO. Mr Leslie’s evidence was that he was opposed to Ms Cannon’s appointment as he did not believe she had the necessary skills to make an effective CEO, especially in such difficult circumstances. He discussed the matter with Mr Bellear, who also had reservations, but not it seems to the same extent as Mr Leslie. Mr Bellear took the view that there is a limited pool of Aboriginal people who are capable of assuming managerial roles. As a result it is sometimes necessary for a person who does not possess all of the required skills to assume positions for which they might not be entirely qualified or suited. Such was his belief about Ms Cannon and the Goolburri position. None of this concern was communicated to Ms Cannon. It appears the first she became aware of it was after her application for reinstatement was filed. The parties agree that Mr Leslie raised the possibility of the appointment as a secondment for a period of approximately three to six months. Before accepting the position Ms Cannon wanted to ensure that her position on the Community Corrections Board could be retained. Confirmation that she was able to continue with this role was given. The dispute arises over whether Ms Cannon accepted a secondment to the Goolburri Land Council or whether she resigned from QAILSS to take up the position. The issue needs to be resolved as the outcome may impact on her entitlements paid on termination. By letter dated 1 May 1998 Mr Leslie wrote to Ms Cannon congratulating her on her secondment to the position of Chief Executive Officer of the Goolburri Land Council for the next three to six months. The letter confirmed that Ms Cannon’s position with QAILSS would remain available to her upon the completion of the secondment. This letter was provided to Ms Cannon prior to her taking up the position. Mr Leslie then said that shortly after handing Ms Cannon the letter she enquired about receiving her entitlements as she needed the money. Mr Leslie advised her the only way she could receive the entitlements was to resign her position from QAILSS. He said Ms Cannon agreed and provided a letter of resignation. A letter of resignation dated 30 April 1998 signed by Ms Cannon is attached to his affidavit together with a letter dated 1 May 1998 accepting the resignation. Ms Cannon denied that she sought to resign. Although acknowledging it was her signature which appeared on the letter of resignation, Ms Cannon denied she prepared or signed such a letter. She said that she would not have written a resignation on QAILSS letterhead, moreover, she had no wish to resign as the Goolburri position was not permanent and she wanted to ensure her position at QAILSS remained available on completion of the secondment. Her family was going to remain in Brisbane while she commuted to Toowoomba each day. In addition Ms Cannon indicated she had no need for her entitlements to be paid; she was not short of funds at the time and the Goolburri position paid more than her research position at QAILSS. Ms Cannon said the first time she saw the letter of resignation was July 1998. She believed it had been prepared at the request of administrators who were then in QAILSS. Mr Leslie said Peter Thomas, the Financial Officer, had been approached by Ms Cannon to pay out her entitlements. Mr Thomas was called to give evidence about Ms Cannon’s final termination pay at a time when the applicant was arguing she had been summarily dismissed. He was not produced to testify about the Goolburri dispute. He was clearly available to give such evidence. The respondent also showed its willingness to produce witnesses at short notice to respond to matters raised in evidence. It seems to me this should be a case where the rule in Jones v Dunkel should apply. [(1959) 101 CLR 298] Having said that, there is no dispute that the entitlements were paid. According to her evidence Ms Cannon queried the payment with Mr Thomas but was advised that as the secondment may extend beyond six months, the entitlements could not be held and needed to be paid out. While I harbour doubts about whether Ms Cannon tendered her resignation as claimed by Mr Leslie, I am satisfied the entitlements were paid and received. Ms Cannon was absent from QAILSS for a period of sixteen weeks. In all of the circumstances Ms Cannon cannot claim continuous service in accordance with Chapter 2, Part 6 of the Industrial Relations Act 1999. Performance Management Ms Cannon was criticised for her management style by those who reported to her and by her managers, Mr Delaney and Mr Leslie. They variously described her style as abrupt, aggressive and abusive. While a number of examples were given of her poor management style, the criticism was generally directed to her manner in dealing with staff in the preparation of the Deaths in Custody Implementation report. This is not to indicate that the other issues raised in evidence regarding her handling of the use of the organisation’s vehicle and the purchase of computer equipment have been overlooked in the consideration of this matter; only that such issues stem from Ms Cannon’s management style and are subsidiary to that. Reservations about Ms Cannon’s ability to manage were also raised by Mr Leslie and Mr Bellear when the Goolburri Land Council secondment was mooted. According to their evidence, Ms Cannon experienced problems in managing staff during that appointment. These concerns have to be considered in the context of a hostile working environment. The parties agreed that the workplace was characterised by infighting and personality clashes. For her part Ms Cannon denied she managed staff in the manner described. She acknowledged becoming frustrated and angry with staff over the delays in preparation of the Deaths in Custody Report. She further acknowledged she had regular disagreements with her staff. -- 2 of 6 -- 300 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 27 July, 2001 QAILSS had received funding from ATSIC to prepare this report. Its preparation included monitoring implementation by State Government Departments of the Recommendations of the Royal Commission into Black Deaths in Custody. All relevant witnesses commented on the difficulties and delays in receiving information from Departments which contributed to the delay in preparation of the report. In Ms Cannon’s view, QAILSS staff were also being tardy in their work associated with the report. She constantly sought to remind them of the timelines and to hasten their work. She said their attitude towards her approaches was not helpful and at times resistant. Ms Cannon’s evidence was that she constantly raised her frustrations with Mr Leslie and later Mr Delaney. The evidence of Mr Hopkins and Mr Graham was that they objected to being abused and treated aggressively by Ms Cannon. It was her demeanour that caused some resistance from the staff. If their vagueness in answer to questions when giving evidence was any indication of the response Ms Cannon received when pursuing matters associated with the Report then it is clear why she became frustrated and angry with the staff. The Report was due to be completed while Ms Cannon was employed with QAILSS. The organisation attributed the delay in finalising the Report to her attitude and approach to staff management. Yet the evidence revealed that the Report had not been printed at the time of hearing, some seven and a-half months after Ms Cannon’s dismissal. Mr Delaney and Mr Leslie acknowledged that Ms Cannon constantly raised her frustrations with staff with them. Mr Delaney stated when this occurred he would offer suggestions to Ms Cannon about the best way in which to respond to these matters. He referred to these discussions as counselling sessions and was adamant Ms Cannon would have realised she was being counselled about her own performance. He said he would counsel Ms Cannon approximately two to three times a week. Mr Leslie also gave evidence about the counselling of Ms Cannon regarding her attitude to staff. He said prior to Ms Cannon taking up the Goolburri appointment he would talk to her two to three times per month. This continued on her return. The approach adopted by Mr Leslie in counselling Ms Cannon was low key and informal. Like Mr Delaney however, Mr Leslie was confident Ms Cannon understood she was being counselled. He said that he identified problems and suggested ways of improvement. The confidence of Mr Delaney and Mr Leslie was sadly misplaced. Ms Cannon denied receiving counselling from either Mr Delaney or Mr Leslie. She agreed she regularly met informally with Mr Delaney or Mr Leslie and raised her concerns. Ms Cannon described these meetings as management discussions about problems being experienced with staff. At no stage did she realise that it was her management style being criticised or commented on. Ms Cannon refuted the discussions being characterised as counselling sessions. Ms Cannon had completed a Masters Degree in Social Work. Through her education Ms Cannon was conscious of what counselling was. She had also completed a human resources management subject as part of her course so was familiar with counselling in a human resource setting. Ms Cannon said that her discussions with Mr Leslie or Mr Delaney did not fall into either framework. Ms Cannon also referred to disputes in the QAILSS office between other staff which had resulted in mediation. This was a formal process including the involvement of staff members to take notes. Ms Cannon suggested that if management had such concerns with her performance then the organisation was able to institute a formal process if required. The response of QAILSS to this aspect of Ms Cannon’s evidence was to draw distinctions between processes adopted for white staff and which involved personality clashes between the individuals. Through the evidence of Mr Delaney and Mr Leslie it was submitted that such formal processes or adherence to protocols are not part of black culture and would not be utilised in the type of circumstance being experienced with Ms Cannon. The Commission is prepared to accept the evidence of Mr Leslie and Mr Delaney that formal processes are foreign to black culture. It is evident however, that formal processes have been used in a black organisation to resolve issues, albeit with white staff. Generally, employees are entitled to have a reasonable expectation to be treated fairly, equally and consistently. Where such approaches are not applied, for whatever reason, organisations leave themselves open to criticism and complaint. There is agreement that Ms Cannon was not counselled in any formal way. The question is whether the discussions referred to by Mr Leslie and Mr Delaney could be construed in any way as counselling in human resource terms. The Commission rejects Mr Delaney’s evidence that he counselled Ms Cannon two to three times per week. He may well have exchanged opinions and given advice – a process which meets a dictionary definition of “counsel” – but to consider this process and its frequency as counselling in human resource terms is improbable. Counselling refers to a process where the employer advises an employee that problems with performance or conduct have been identified, a discussion occurs about those problems and a plan for improvement is established. The process need not be elaborate nor overly formal but to avoid confusion and misconception should be clearly outlined for what it is to an employee. Even making allowances for the informality in process in a black organisation, the discussions between Mr Delaney or Mr Leslie and Ms Cannon do not meet the standard of counselling. On this point it is interesting to contrast the evidence of Mr Bellear. He commented that he would discuss matters with Ms Cannon which would touch on her management style and provide feedback to her. Mr Bellear acknowledged that these discussions – which appear to be similar in substance to those described by Mr Delaney and Mr Leslie – could not be construed as counselling. The Commission is not satisfied that Ms Canon was completely ignorant of her managers having problems with her management of staff within the Unit. Any manager, particularly one who holds professional qualifications and who was constantly relaying concerns to his or her superiors, should have reflected on the reasons the problems were arising and their own management performance. Reflection is an essential component of the work of any professional. As Ms Cannon said in her evidence, she holds a Masters Degree in Social Work and has completed a subject in human resource management. Her qualifications in Social Work ought to have equipped her with the professional skills to identify and resolve problems. While not absolving her managers of any responsibility to more formally raise their concerns and undertake more formal counselling, Ms Canon was better placed than many to recognise concerns were being raised about her performance. Indeed the regularity of the discussions should have alerted her to this. Having reviewed all of the evidence I am satisfied that Ms Cannon was abrupt and aggressive with staff on occasion and constantly demanding of their performance. This management style would naturally have caused resentment and complaint from the staff. The evidence of Mr Bellear and Mr Leslie was that concerns existed about Ms Cannon’s attitude to staff for many years, including prior to and during her appointment at the Goolburri Land Council. On her return to QAILSS, Ms Cannon was appointed as Acting Manager of the Deaths in Custody Unit after the resignation, due to ill health, of the incumbent. Mr Leslie expressed in evidence his concern held at the time of Ms Cannon’s ability to assume the position because of her attitude towards staff. Despite these concerns continuing and according to the evidence of Mr Bellear, Ms Cannon was confirmed in the position of Manager. -- 3 of 6 -- 27 July, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 301 S:\QIRCDEV-BASE\QGIG\2001\167\NO.14 27.07.01.DOCno.14 27.07.01 The Commission can accept that appointments might be made to positions of staff who are not considered completely suitable because of the unavailability of an adequate pool of qualified staff. Such appointments allow the employee to gain experience and, with adequate support and explanation of the reason for the support, obtain the necessary competence. In this case Ms Cannon was perceived to be deficient in particular skills for many years. Yet Ms Canon was given greater responsibility both within and external to the organisation. At no stage when these appointments were being made was Ms Cannon advised that areas of weakness were perceived and moreover that support would be provided to allow her to reach the required standard of performance. In my view if the deficiencies were as severe as identified by Mr Leslie in particular then Ms Cannon was entitled to be afforded adequate formal support to ensure she could fulfil the roles to which she was being appointed. This should be essential at any time when an organisation realises that it does not have a sufficient pool of competent people to assume the various roles required and is consistent with the view expressed by Mr Bellear. The informal discussions and feed-back offered to Ms Cannon were inadequate given the problems of which the senior officers of the organisation were aware. Given Ms Cannon was not advised of her managers’ long held concerns, their token efforts of support and Ms Cannon’s inability to recognise that some of the performance issues in the Unit were attributable to her, it is not surprising that matters came to an unfortunate end. Demotion and Dismissal It was Mr Bellear’s evidence that he decided some decisive action needed to be taken about Ms Cannon after an incident occurred at a meeting which he and Ms Cannon attended, along with other QAILSS staff and representatives of a number of other organisations, including State Government Departments. It was a significant meeting held over 16 and 17 October 2000 to negotiate a Justice Agreement about indigenous peoples rights and treatment in prisons and watch houses. At this meeting an altercation occurred between Mr Bellear and Ms Cannon over the use of the organisation’s vehicle. Without going into detail about the issue, the dispute was over whether an employee of QAILSS should use a car to take a Social Work student to visit Cherbourg or whether Ms Cannon could use it to attend a District Health Council meeting. Attendance at that meeting was not associated with Ms Cannon’s employment. She had been appointed to the Council prior to her appointment to QAILSS and the organisation had allowed her to continue her attendance. Ms Cannon drove the car to and from work and garaged it at her residence. She regularly used the vehicle to attend the District Health Council meeting, however, the organisation’s priority was for the vehicle to be used for QAILLS business. There is a dispute in the evidence of Mr Bellear and Ms Cannon about the altercation, particularly in relation to the time and location and which of them lost their temper and raised their voice to the other. Each levels that accusation at the other. Mr Bellear did admit he was abrupt with Ms Cannon as he thought the time and manner in which she raised the matter to be most inappropriate. He said others attending the meeting were within earshot and her unprofessional behaviour reflected poorly on the organisation. Given he had been constantly been made aware by Mr Leslie and Mr Delaney of Ms Cannon’s attitude problem and also had some personal knowledge, this incident prompted him to realise that action had to be taken in a formal way to address the issue. After consultation with Mr Leslie and Mr Delaney, the decision was made by Mr Bellear that Ms Cannon could not continue in the role as Manager and she would be offered a temporary demotion to the position of Research Officer for a period of six months. This would mean a reduction in salary of $10 000 per annum as a result of budgetary constraints. Ms Cannon would also be offered the opportunity to undertake training to assist in improving her relations with staff. Should she satisfactorily undertake the training then consideration would be given to reallocating managerial responsibility to her. After the incident at the meeting above, Ms Cannon become very upset and distressed. Ms Cannon took sick leave for the balance of the week and annual leave for the week of 23 October. During that week she had intended to visit relatives in western Queensland. On 21 October (a Saturday) Ms Cannon received a telephone message from Mr Delaney to contact him. She spoke to him later that day. In that conversation Mr Delaney advised Ms Cannon she was required to attend a meeting at work on 23 October. After some prompting about the reason for the meeting, given her annual leave arrangements, Mr Delaney advised of the decision to demote her temporarily. Ms Cannon disputed the reasons for the demotion and took objection to the salary reduction. Later that afternoon she contacted Mr Delaney again to advise of her rejection of the offer. Despite this, Ms Cannon attended work on 23 October. She initially met with Mr Delaney to discuss the matter. Some time later Mr Leslie arrived with a letter signed by Mr Bellear. It conveyed the offer being made and the reasons for it. Although said to be a Board decision the evidence revealed the decision was made by Mr Bellear and only confirmed by the Board after the delivery of the letter. The letter also advised that her further employment with the organisation would have to be considered in the event the offer was declined. Ms Cannon advised Mr Leslie she would not accept a demotion as she had not received any warnings nor had she done anything wrong. Ms Cannon also attempted to clarify the type of training she was being required to undertake. There is a dispute in the evidence about whether the type of training was particularised. I am satisfied Ms Cannon was advised it was in relation to people skills and that she would be allowed time off work to attend. Ms Cannon told Mr Leslie she wanted to discuss the matter with Mr Bellear. Until the incident of 16 October, Ms Cannon and Mr Bellear had enjoyed a good working relationship. In discussion with Mr Bellear, Ms Cannon restated her concerns. She suggested she be retained as Manager on her present salary but undertake the required training. She negotiated an extension to her response time in light of her absence on annual leave. Mr Bellear said the extension was granted to allow both parties to consider their positions. On her return to work on 30 October, Mr Leslie gave Ms Cannon a further letter from Mr Bellear which restated the Board’s concerns and offer. The letter indicated her suggestion had been considered as it advised that the Board “remain definite about the need for you to be redeployed to another non- managerial position . . . at a salary equal to that payable in that non-managerial position.”. The letter invited Ms Cannon’s immediate response “so that appropriate arrangements for the redeployment and for the training courses can be made without delay”. Mr Leslie sought Ms Cannon’s response. She said she would give it directly to Mr Bellear and contacted him to advise that the demotion was rejected. Some time later Mr Leslie provided Ms Cannon with a letter from Mr Bellear terminating her employment. She was directed to return her keys and mobile telephone then escorted from the premises. Notice and other entitlements were paid to her before the end of the day. In my view the organisation’s offer to provide access to formal training came far too late given Mr Bellear’s and Mr Leslie’s clearly stated position in evidence that for a considerable period Ms Cannon lacked appropriate human resource management skills. The opportunity to undertake training or some form of mentoring should have been made available to her on her appointment as Acting Manager of the Deaths in Custody Monitoring Unit. Her appointment should also not have been confirmed in that position had those concerns been as serious as expressed in evidence. Had she remained as Acting Manager, the dismissal might not have occurred. It would have simply been a matter of removing Ms Cannon from an acting capacity. Clearly the organisation must accept a significant amount of responsibility for the position in which it found itself. The demotion of an employee with a consequent loss of income is a serious step for an employer to take. In the range of disciplinary penalties, a demotion would be considered to be more severe than a reprimand or a warning and a step above a dismissal. Even a demotion for a limited period and -- 4 of 6 -- 302 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 27 July, 2001 accompanied by training is a serious penalty. Ordinarily, a demotion would follow other formal processes including counselling and warnings which have been documented and acknowledged by both the employer and the employee. That the employer is contemplating such action should also be made known to the employee. In this case the proposal to demote was communicated in writing when until that time no concerns had been addressed formally with Ms Cannon. The taking of formal action is at odds with the informality said to be the culture of a black organisation. Any organisation which is selective about how, when and to whom formal actions are to apply does not convey consistency and certainty to its employees. The letter of 23 October and the first letter of 30 October 2000 were couched in terms of an offer. This is the required process as the law is clear that it is not open to an employer to unilaterally vary the terms of the contract of employment. (RS Components Ltd v Irwin (1974) 1 ALL ER 41 @ 43). Unless there is agreement between an employee and employer to change the employee’s duties and nature of employment, the employer can not lawfully do so. (See Hodges v Buderim Ginger Ltd (1995) 148 QGIG 644). In this case QAILSS were seeking Ms Cannon’s agreement to change her contract of employment. Such consent was not given and Ms Cannon was not demoted. Consequently the Commission rejects the applicant’s contention that the demotion constituted the dismissal. The dismissal occurred after agreement was not given to the variation of the contract of employment. It remains to be determined whether in all of the circumstances, the dismissal was harsh, unjust or unreasonable. Having regard to s. 77 of the Industrial Relations Act 1999, Ms Cannon was given written notification of the reason for her dismissal. She had not received any warnings about her performance or conduct. Nor had she received any formal counselling. The Commission has accepted that nature and extent of discussions between Mr Leslie, Mr Delaney and Ms Cannon and her own professional standing would have alerted a reasonable person the concerns held by her managers about her performance. QAILSS argues that the dismissal was for operational reasons. It could not afford to pay Ms Cannon a managerial salary while she was either unable to perform all of the duties and responsibilities of that role or performed a lesser role. Underpinning that reason was dissatisfaction with conduct, capacity and performance. This is a case where an organisation decided to place an employee in a position for which her management knew the employee lacked competency. Although the evidence of her incapacity became increasingly evident to her managers, her appointment to the position was confirmed. When the employee inevitably failed, the organisation initially decided to offer demotion and when this was rejected, perhaps also inevitably, the employee was dismissed. While the Commission considers Ms Cannon must assume some responsibility, in my view the greater responsibility rests with the organisation which elected to promote the employee despite her failings and neglected to provide adequate support to allow her a reasonable prospect of being able to meet the required standards. To dismiss an employee in such circumstances, in the absence of prior formal processes or reasonable exploration of alternative solutions, is in my view, harsh, unjust or unreasonable. Ms Cannon does not seek reinstatement and given the level of criticism meted out by her managers and subordinates, reinstatement clearly is impracticable. In addition, Ms Cannon’s evidence was that she remains distrustful of Mr Leslie, who while not an employee of QAILSS, continues to enjoy influence in the organisation. QAILSS submitted that in the event the Commission found against them, compensation should not be awarded because of Ms Cannon’s actions later on the day she was dismissed. It is not disputed that following her dismissal Ms Cannon downloaded certain QAILSS information on to a computer disc and threatened to withhold it until her entitlements were paid. There is a dispute in the evidence about whether the return of the disc was prompted by Mr Leslie’s threat to call the police. Ms Cannon denied she was upset or in a rage about her dismissal. Her actions are not consistent with this. Given also her distrust of Mr Leslie it is unlikely she would have returned the disc on his word of ensuring the entitlements were paid. It is much more likely that a threat had to be issued to ensure return of the information. QAILSS described these actions as gross misconduct warranting a summary dismissal. Ms Cannon’s representative described the events as petty mischief. The correct representation lies somewhere in between. QAILSS had advised her that her entitlements would be made up and paid within the day. This task took some time to complete as the calculations involved salary sacrifice arrangements. Nonetheless, Ms Cannon received her entitlements that day. Moreover, and despite her distrust, Mr Leslie provided a personal cash advance to Ms Cannon to enable her to meet certain financial obligations that day. Considered in this light Ms Cannon’s actions were inappropriate and unnecessary. Although Ms Cannon was entitled to be upset and even angry about her dismissal, given the circumstances, it did not entitle her to remove information from the organisation without authority nor to issue her ultimatum. The unfairness of the dismissal is undone in part by her own actions. In my view her actions can not be characterised as gross misconduct. In Callaghan v RSPCA (1997) 156 QGIG 676, Bougoure C., set out a number of cases dealing with “misconduct” and considered what is meant by “gross misconduct”. Relying on those considerations it would appear that Ms Cannon’s actions do not fall within the meaning of gross misconduct. Ms Cannon has sought compensation in the order of $15, 000 which is in excess of the loss she suffered. Ms Cannon was able to obtain employment from 9 January to 25 May 2001. Her actual loss was $10,454. The material before the Commission on which to assess compensation is not altogether satisfactory. The parties were given appropriate opportunities to address on this point but the amounts sought by the applicant is in excess of that which could be awarded on her best case while the respondent argues for no compensation based on the alleged gross misconduct; an argument which I have not accepted. The Commission was given no information on any attempts made by Ms Cannon to mitigate her loss prior to obtaining employment in January. Doing the best I can on such limited information, the Commission has decided to award a global sum of compensation in the amount of $5,000. Such amount takes into account the loss suffered, discounted for Ms Cannon’s actions on the day of dismissal and absence of information about mitigation for which the applicant must be responsible. It considers the length of service (from the date of her return to QAILSS), her position in the organisation, the amount paid on termination and the circumstances of her dismissal. The sitting fees received as a result of Ms Cannon’s appointment to the Community Corrections Board have not been taken into account. These fees were paid during Ms Cannon’s employment with QAILSS and were additional to the salary received by her. The Commission orders that the Queensland Aboriginal and Torres Strait Islanders Legal Services Secretariat Limited trading as QAILSS do pay to Cheryl Cannon compensation in the amount of $5,000. Such amount is to be taxed according to law. The Commission further orders that such amount be paid within 22 days of the date of release of this decision. -- 5 of 6 -- 27 July, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 303 Order accordingly. G.K. FISHER, Commissioner. Appearances:– Ms K. Prior (Prior & Associates) for the applicant. Released: 16 July 2001 Mr J. Hodgens (Nicol Robinson Halletts) and with him Mr J. Robinson for the respondent. -- 6 of 6 --