In Lorraine Roche v Trustees of the Roman Catholic Church for the Diocese of Wagga Wagga  FWC 3933, a diocese was ordered to reinstate a school officer, Ms Roche, after she was dismissed following a heated argument with a colleague who was known to be 'predictably volatile'.
Ms Roche and her colleague, Ms Culla, had a 'problematic working relationship'. Both had previously made formal complaints about each other. In an attempt to resolve the issues between them, the Diocese initiated numerous meetings and discussions. Ultimately, both employees received a formal warning from the Diocese in 2017 and were told that any future incidents between them could affect their ongoing employment and might result in their dismissal.
In August 2017, an incident occurred where a conversation between Ms Roche and Ms Culla became very heated. Ms Culla returned to her office and Ms Roche approached her to attempt to 'smooth things over'. During this interaction Ms Culla could be heard to repeatedly shout 'get away from me' at Ms Roche. Ms Culla made the following allegations:
- Following the conversation, and despite being told by Ms Culla that she did not wish to discuss the issue further, Ms Roche followed Ms Culla into her office and continued to raise the issue.
- When Ms Culla tried to close the door, Ms Roche blocked it with her arm and leg, which resulted in an injury to Ms Roche's hand and arm.
- Ms Roche refused to leave despite being asked to do so by Ms Culla. By doing this, Ms Roche essentially blocked Ms Culla's exit from the office despite being able to see that Ms Culla was very distressed.
While allegations 1 and 3 were substantiated by an internal investigator, the Commission:
- did not accept that the investigation report had identified that Ms Culla had told Ms Roche that she did not want to talk about the issues
- accepted that it was possible that there was a period of 10 minutes between the altercation and when Ms Roche went to Ms Culla's office
- considered that the evidence did not demonstrate that Ms Roche had prevented Ms Culla from exiting her office by not 'going away'.
The Commission held that 'there is no basis to find that either allegation was a contravention of the Guidelines of Professional Conduct nor any other requirement' of Ms Roche's employment with the Diocese.
The basis for this decision was as follows:
- While there was no doubt there was interpersonal conflict between Ms Roche and Ms Culla, it was clear from the evidence that had been provided by other employees that Ms Culla was often in a heightened state.
- It was unfair and unreasonable to attribute so much of the responsibility for the quality of the interaction to Ms Roche, such that it warranted her dismissal.
- It was hard to see what Ms Roche could have done in the circumstances, given Ms Culla's behaviour was, on any reasonable view, often irrational and inappropriate.
- Ms Roche had gone to Ms Culla's office to attempt to smooth things over. There was nothing inappropriate about this and no evidence to suggest that Ms Roche's approach to Ms Culla was inappropriate. While it was potentially unwise of Ms Roche not to leave when Ms Culla started shouting at her, given the speed that the incident escalated, the manner in which she acted was not unreasonable.
The Commission held that the Diocese's requirement 'that Ms Roche "work effectively with Ms Culla" in circumstances where Ms Culla was "predictably volatile" and regularly "heightened" was an unreasonable one'.
As Ms Culla was no longer employed by the Diocese and there was no evidence to suggest that there had been an irretrievable breakdown of trust and confidence in the employment relationship, the Commission ordered that Ms Roche was to be reinstated.
It is important for decision makers to carefully examine the facts that have led to investigators making a finding to substantiate an allegation (or otherwise).
In cases where there is a complicated history between two employees and multiple warnings have been issued in relation to their conduct, employers should still be careful before using a further incident as justification to terminate an individual's employment. The facts of the incident that is being relied on for the termination should be carefully considered.
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