A diocese of the Catholic Church has been ordered to reinstate a school support worker, with the FWC finding it had exaggerated the impact of the worker’s conduct in breaching contractual obligations.
Lorraine Roche had worked as the school support officer at St Patrick’s Primary School in Griffith between May 2013 and her dismissal in November 2017, following an investigation into an incident between her and a colleague at the school.
St Patrick’s is one of 26 primary and five secondary schools operated by Catholic Schools Office (CSO) Wagga Wagga.
Ms Roche and the colleague in question had a “problematic working relationship”, and were each the subject of formal complaints by the other. In 2015, Ms Roche was issued with a formal warning, but she disagreed with the findings of that investigation and objected to being issued a formal warning.
The pair’s dispute escalated on 17 August 2017, when police were called following a conflict in which Ms Roche was allegedly assaulted after her colleague experienced an anxiety attack. But she in turn was reprimanded for unprofessional conduct that contributed to the conflict, including that she followed her colleague despite repeated requests to be left alone and that she had blocked access for her colleague to leave the office.
Following an investigation into that incident, CSO issued Ms Roche a show cause letter on 10 November 2017, which in part read:
“The CSO considers that your conduct has fallen seriously short of the standard it reasonably requires of an employee in your position. Your conduct is inconsistent with the Guidelines, which in turn is a breach of the express term in your contract of employment which requires you to comply with the policies of the CSO.
“Specifically, your conduct is inconsistent with the following provisions of the Guidelines:
5 Expectations of Workers
1.1 Workers are expected to:
- v. be mindful of their duty to the safety of themselves and others
vi. be aware that if their conduct has the potential to damage the reputation of the Diocese, parish and/or school, even if it is in a private capacity, this could lead to disciplinary action
vii. model effective leadership and respect in interactions with students, children and young people, colleagues and others
ix. treat others with care. Rude or insulting behaviour, including verbal and non-verbal aggression, abusive, threatening or derogatory language and physical abuse or intimidation towards others is unacceptable.”
The letter went on: “I am seriously considering terminating your employment with the CSO… To avoid doubt, your employment would be terminated on the basis that you have engaged in behaviour considered to be in breach of your contractual obligations to abide by the policies of the CSO and that this behaviour threatens the health and safety of others.”
A meeting was held 10 days later in which Ms Roche was afforded the opportunity to respond to the situation. She acknowledged that the situation could have been handled better, but again disputed aspects of the investigation into her conduct.
But CSO determined that, in light of the previous warning and subsequent “support” it had provided to her, Ms Roche’s conduct breached operational and safety guidelines and as such warranted termination, which included five weeks’ pay in lieu of notice.
Nevertheless, Ms Roche lodged an application for an unfair dismissal remedy, citing 16 reasons her dismissal was invalid, including that:
- The 2015 warning was unjustified, as concessions made by CSO’s witnesses bore out.
- CSO had failed to differentiate the culpability of both employees in the conflict.
- The source of the 2017 dispute was actually a procedural matter which warranted being raised as part of her duties.
- She was obliged to stay and try to calm her colleague suffering an anxiety attack, meaning her actions did not breach safety obligations as claimed.
- And that her termination letter stated that one reason for dismissal was attributed to CSO having no confidence that the colleagues could continue to work together, despite it already knowing that her colleague had resigned.
While acknowledging that “the Commission does not ‘stand in the shoes’ of the employer but will need to be satisfied that the termination of the employee was for a valid reason”, the FWC sided with Ms Roche, finding that her dismissal was harsh and unjust because her conduct was “nowhere near sufficient to breach the relevant CSO policies, as asserted by it”.
“I am satisfied that Ms Roche’s conduct did not amount to misconduct. The reason for her dismissal was not justifiable on an objective analysis of the relevant facts. Accordingly, I am satisfied that there was no valid reason for Ms Roche’s dismissal as the reason for her dismissal was not sound, defensible and well-founded,” the Commission’s deputy president ruled.
“Notwithstanding the submissions of the CSO, there was no evidence to suggest that there has been an irretrievable breakdown of trust and confidence.”
The Commission also rejected assertions that police findings from the conflict be taken into consideration, given that CSO had not called the relevant officers to give evidence.
A separate order requiring CSO to reinstate Ms Roche, with continuity and backpay, will be issued separately.
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