Is it unfair dismissal? Commission found psychologist was told employment terminated at meeting where decision had already been made
A senior psychologist was dismissed from her employment at a telehealth psychology practice after the employer reviewed transcripts of workplace interactions and formed concerns about her conduct.
The employer operated on an entirely online basis with all employees working remotely, and much of what occurred in the workplace was recorded via various transcription software, including a program called "Tactiq".
The psychologist was dismissed on 30 May 2025 and provided with a letter confirming termination on 2 June 2025, stating the reason was that she had engaged in serious misconduct.
The commission found the dismissal was unfair after examining the evidence and concluded the employer's characterisation of the psychologist's conduct as serious misconduct was overstated.
Employer assigned psychologist supervisory role
The psychologist was employed as a senior psychologist commencing employment in around April 2024 and by the time of her termination had worked for about thirteen months.
In November 2024, the director spoke to the psychologist about concerns regarding the quality of a junior colleague's report writing. The commission found that it was decided the psychologist would take on a supervisory role with respect to the junior colleague, including providing them with feedback about their reports.
The commission found the evidence showed that in private conversations between them, the psychologist and director expressed to one another their critical opinion of the quality of the junior colleague's reports.
The commission found their views were occasionally expressed in forthright or colloquial terms—for example, on one occasion the psychologist described the quality of the reports as "shit" or that the junior colleague "does my head in" or they were "hurting her brain".
Director found marked contrast in feedback
The commission found that later, when the director had cause to review transcripts of exchanges between the psychologist and junior colleague, she found what she considered to be a marked contrast in the nature of the psychologist's feedback provided about the quality of work and general competency, as opposed to what she had expressed to the director in their private exchanges.
The commission found the director ultimately had cause to say to the psychologist "You are telling [junior colleague] that everything is good and improving. This is not what you told me".
The commission found that the psychologist said on occasion words to the effect that the junior colleague was resistant to her feedback.
The commission found upon review of the transcripts of some interactions between the psychologist and junior colleague, that the director said she could find no instances where the junior colleague appeared resistant to feedback and some which appeared to display willingness to accept feedback.
The commission found it was on this basis that the director considered the psychologist made "materially false statements" concerning a supervisee's performance and conduct.
Psychologist made comment about colleague's sexuality
The commission found transcript was provided of a meeting held on 8 May 2025 involving the psychologist, director and several other employees. The commission found during the meeting, a short discussion ensued about the employer's advertising which shows which of its staff are "gender diverse" or "queer" or "LGBTIQA+".
The commission found during this conversation, the psychologist said that one of the staff members which was presented in the advertising in this way was not "queer" and said "she said to me she's very straight" and "she's straight. She's living the traditional male-female life".
The commission found the director later raised this matter with the psychologist in a meeting held on 22 May 2025. The commission found the director asked the psychologist why she had made the comment, referring to the transcript of this conversation.
The commission found the transcript suggested the psychologist told the director she had spoken about the matter to the colleague who "comes to me because she knows I am part of the community for advice".
Colleague gave evidence comment was untrue
The commission found the colleague gave evidence in the proceeding stating she did not discuss her sexuality with the psychologist at any time. The commission found the colleague said the notes provided by the psychologist mentioning "queer ally" related to a client they were discussing, not her.
The commission found the colleague said the continuing assertion that she was not a member of the LGBTIQ+ community was demonstrably untrue and that she considered the comment a gross misrepresentation of her character, professionalism and ethics as well as a deeply personal and harmful attack on her identity.
The commission found that the colleague said she sought psychological support as a result, and the matter disrupted her sense of psychological safety in the workplace and reduced her professional confidence.
The commission found the psychologist under cross-examination appeared to maintain that, despite the colleague having said she had not discussed her sexuality with her at any time, she did at some point have a conversation with her about it.
The commission found it did not consider this evidence to be particularly reliable and had no reason to doubt the evidence of the colleague who said no such conversation occurred.
Commission finds inconsistency in feedback approach
The commission found that, in relation to interactions with the junior colleague, the evidence did not support a finding that the psychologist engaged in conduct capable of being described as dishonest or a breach of trust to the extent described by the employer, or conduct of sufficient gravity to justify termination of employment.
The commission found there was no evidence the employer had taken steps to subject the junior colleague to some kind of performance or conduct management process in relation to the quality of report writing.
The commission found the employer's complaint in relation to the psychologist's conduct with respect to the junior colleague was really about the inconsistency of tone and content as between exchanges with the director and exchanges with the junior colleague—not the consequences which may have resulted from the nature of supervision.
The commission found that it accepted the inconsistency in tone and content at least in the material in evidence was quite pronounced, but there may be a range of reasons for this.
Commission finds comment about colleague inappropriate
The commission found that, in relation to the comment the psychologist made about the colleague's sexuality, it did not consider the conduct rose to the level of misconduct justifying termination of employment.
The commission found a great deal was sought to be made about the psychologist's comment, with the director frequently characterising behaviour as having started "rumours" about these matters. The commission found, however, that a careful examination of the evidence revealed nothing more than this comment having been made at the meeting on 8 May 2025.
The commission found there was no evidence that the comments were malicious and no evidence that the assertion in respect to the colleague was made more broadly than in the meeting on 8 May 2025.
The commission found that, having said this, the effect on the colleague from the psychologist's comment and also its likely effect on the psychologist's standing and level of respect in the workplace was not to be dismissed out of hand.
The commission found a comment about another person's sexuality made to others without that person's consent can in many circumstances be a significant breach of that person's privacy, can be damaging, and will rarely be appropriate subject matter for comment in the workplace.
Commission finds employer characterisation overstated
The commission found it did not consider the employer had established the psychologist engaged in conduct capable of being described as serious misconduct, nor established it had a sound, defensible or well-founded reason justifying termination of employment.
The commission found the psychologist had two meetings with the director in the lead up to termination, the second of which was the meeting in which she was told her employment was terminated for having engaged in serious misconduct.
The commission found in the first meeting held on 22 May 2025, the director did not tell the psychologist she had engaged in conduct in relation to which the employer was contemplating terminating employment—the prospect of termination did not arise at all.
The commission found in the second meeting which occurred on 30 May 2025, the director told the psychologist her employment was terminated—from the commencement of this meeting the decision to terminate employment had already plainly been made.
The commission found that the psychologist was advised of the reason for dismissal when she was advised of termination on 30 May 2025.
The commission found she was not notified of the reason for dismissal before the decision was made to terminate employment, and this factor weighed in favour of a finding that termination was unfair.
The commission found that because the psychologist was not notified of the reason for dismissal before the decision was made, she was not properly given an opportunity to respond to it, which weighed in favour of a finding that the termination was unfair.
Commission finds dismissal harsh unjust unreasonable
The commission found that, in circumstances where the employer relied on allegations of serious misconduct which it found lacked substance, and where there was no notification provided of a valid reason or chance to respond, it was difficult to avoid the conclusion that termination was harsh, unjust and unreasonable.
The commission found the psychologist did not seek reinstatement, and it was opposed by the employer, finding in these circumstances that reinstatement was inappropriate.
The commission found the psychologist suffered financial loss in circumstances where it found she was unfairly dismissed and, in all the circumstances, considered that an order for payment of compensation was appropriate.
The commission found it considered it appropriate to predict that the psychologist's employment might have otherwise continued for another three months had it not been ended through dismissal.
The commission calculated the remuneration the psychologist would have been likely to receive working for a further twelve weeks to be $23,400 gross plus superannuation.
The commission found that after deducting amounts earned from new employment and applying a 10% discount for contingencies, the appropriate compensation amount was $8,479.80 gross plus superannuation.
The commission ordered that the employer must pay this amount, less taxation as required by law, plus superannuation contribution, within 14 days.
