ASMOF (NSW) (on behalf of Dr Wojtulewicz v Director General of NSW Health Service

Industrial Relations Act 1996 Rail Safety Act 2008 LEGISLATION CITED: Rail Safety (General) Regulation 2008 Transport Administration Act 1988 Transport Administration (Staff) Regulation 2005

ASMOF (NSW) (on behalf of Dr Wojtulewicz v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 299 CASES CITED: Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57 Baker v Australian Workers' Union [2005] NSWIRComm 1225 Hill v Director-General of the Department of Education and Training (NSW) (1998) 85 IR 201

APPLICANT: Wei Fen Xian LEGAL REPRESENTATIVES: RESPONDENT: Mr P Ginters of Counsel, Deacons Lawyers

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Wei Fen Xian re unfair Dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This is an application by Wei (Mary) Xian against the Rail Corporation New South Wales (RailCorp) for a remedy pursuant to s. 84 of the Industrial Relations Act 1996. Ms Xian has alleged in her application that she was threatened with dismissal from her position of Technical Specialist 3 (Testing) by RailCorp on the 26 June 2009. She sought "unconditional" reinstatement to her position. 2 The matter was listed for conciliation and directions before Commissioner Connor on the 6 August 2009 at which time conciliation took place. The matter was re-listed for mention on the 19 August 2009. As no settlement could be reached, directions as to the filing and exchange of witness statements were issued pursuant to Practice Direction 17 and the file returned to the Registry. 3 The matter was listed for hearing before the Commission as currently constituted on the 12 October 2009. 4 At the hearing Ms Xian appeared on her own behalf and gave very brief oral evidence in addition to the witness statements that she had filed (Exhibits 3 and 4). 5 Mr Ginters, of Counsel, appeared on behalf of RailCorp with the only witness being Ms Alison Bruchhauser, HR Manager, RailCorp Communications and Control Systems (Exhibit 2). 6 There was no cross examination of either witness although the Commission did direct some questions of clarification to Ms Xian. 7 At the commencement of proceedings it was indicated to the parties that the Commission would need to be satisfied that there had in fact been a threat of dismissal of Ms Xian in order to establish the jurisdiction to enable the Commission to proceed to determine if such threatened dismissal was harsh, unjust and unreasonable and sufficiently so as to make what would be an interlocutory order pursuant to s.89(7). It was further indicated that only evidence and submissions relevant to establishing whether or not a threatened dismissal existed would be considered in the proceedings. It was not the intention of the Commission to traverse the evidence concerning those issues and events that would be usually be dealt with in considering whether or not the decision of an employer (either arising from an actual or a threatened dismissal) was harsh, unjust or unreasonable. 8 Mr Ginters submitted that RailCorp pressed the jurisdictional issue that there had been no threat of dismissal and advised that written submissions had been filed in the Industrial Registry on 9 October 2009 and served on Ms Xian by courier. Unfortunately that document had not yet come to my Chambers and was therefore the subject of tender (Exhibit 1). 9 It was further indicated to the parties that, as the respondent was pressing the issue that the Commission did not have the jurisdiction to make the orders sought as no threat of dismissal existed and that the application should therefore be dismissed, the onus moved to the respondent to satisfy the Commission as to that fact rather than the applicant. 10 The relevant factual background to the application is set out in the respondent's written submissions and in the evidence filed, principally the witness statement of Ms Bruchhauser (Exhibit 2). However the applicant does dispute certain matters which, where relevant, will be dealt with below. 11 As a Technical Specialist 3 in RailCorp's Communications and Control Systems Division, Ms Xian's main duty is to test ATRICS (the "Advanced Train Running Information Control System). Ms Bruchhauser deposed that "this system improves train management with daily, timetable-based, automatic route setting, visibility to RMC (Rail Management Centre) and a remote view of signalling to the ICC (Incident Control Centre). In layman's terms ATRICS is the control system that the signallers use to view the status of the signalling infrastructure and it is their interface to safe working controls to manage the movement of trains". 12 Ms Xian's employment is covered, inter alia, by the terms and conditions of the Rail Corporation New South Wales Union Collective Agreement (Exhibit 2 - AB7). 13 Given the nature of the work performed, Ms Xian is classified as a Category 3 Rail Safety Worker and as such is required to attend medical assessments as directed by RailCorp. There are scheduled periodic regular health assessments and Ms Xian's next scheduled assessment is due to take place in November 2009, on or about the fifth anniversary of her commencement with RailCorp. In addition to the periodic medical assessments there is also provision for "triggered" assessments in certain circumstances. 14 Ms Bruchhauser deposed as to the relevant statutory and regulatory basis of the requirement for such health assessments (both periodic and "triggered") arising as a consequence of the Rail Safety Act 2008 (NSW) and the Rail Safety (General) Regulation 2008 which mandates compliance with the relevant provisions of the National Standard for Health Assessment of Rail Workers, published by the National Transport Commission and as in force from time to time. She further deposed that in implementing the National Standard, RailCorp has its own "Management Standard for Health Assessment of Rail Safety Workers" which interfaces with the National Standard. Relevant extracts were attached to Exhibit 2 and included the relevant provisions concerning health assessments appearing in the Union Collective Agreement. 15 Ms Bruchhauser deposed that Triggered Health Assessments are conducted in response to concerns regarding a worker's ability to perform their job safely. Ms Xian disputes the basis and reason for those concerns and contends there has been no evidence provided to support such a claim. 16 A meeting was conducted on 13 January 2009 to discuss some management concerns with Ms Xian. Ms Bruchhauser and Mr Stephen Templeton, Control Systems Engineering Manager were in attendance representing RailCorp management. Ms Xian was advised of the requirement to attend a medical assessment and was provided with a formal letter dated 13 January 2009 advising of the requirement to attend a fitness for duty assessment (which included a psychological assessment) and a standard category 3 health assessment medical on 16 January 2009 (Exhibit 2 - AB9). 17 Ms Xian subsequently sent emails on 14 January (Exhibit - AB8) to various RailCorp management personnel that essentially protested at the direction to attend the health assessments and raising various issues and concerns (as detailed in her witness statements). 18 Ms Xian has also detailed in her witness statement (Exhibit 3) letters and representations made to various persons about the direction to attend the health assessments and detailed her concerns about certain safety incidents she has raised, and RailCorp's handling of such matters.

19 Ms Xian also complains that she was not informed at the meeting that the health assessment would include a psychological assessment, that was only raised in the letter. 20 Ms Xian did not attend the two medical assessments and Ms Bruchhauser deposed that no notice was received from Ms Xian as to her inability to attend or her intention not to attend. RailCorp was charged for the scheduled appointments. 21 A meeting subsequently took place between Ms Xian and Mr O'Donnell, the General Manager Human Resources and Mr Julian Richards, the General Manager C & CS to discuss Ms Xian's concerns. Further advice was given about dates for re-scheduled assessments, which were confirmed in writing by letter dated 14 April advising as to appointments made for the 22 April 2009 (Exhibit 2 - AB10). The letter also indicated as follows: Attendance at these appointments is mandatory. It is a requirement of your employment to attend all medical assessments as required and failure to do so may result in disciplinary action (emphasis added). 22 Ms Xian did not attend the appointments and Ms Bruchhauser deposed as to no notification from Ms Xian and consequential costs incurred by RailCorp. 23 On 29 April 2009, Ms Xian was issued with a written warning (Exhibit 2 - AB11) about her non-attendance at the health assessments and that this conduct constituted a breach of RailCorp's Code of Conduct in failing to carry out a lawful direction from a manager. She was also advised that ... "Any further proven breach(es) of this nature may result in disciplinary action up to an (sic) including dismissal"... (emphasis added). 24 A further letter of 29 April 2009 (Exhibit AB - 12), advised of the requirement to attend medical assessments scheduled for the 27 May 2009 and was in the same terms as previously advised, including that failure to attend "may result in disciplinary action" (emphasis added). 25 Ms Xian again did not attend the scheduled appointments and failed to notify RailCorp as to her intentions, leading to a second warning letter of 2 June 2009 (Exhibit AB - 13) being issued to her. The letter was in similar terms to the first warning issued and concluded as follows: As you were previously advised disciplinary action, up to and including dismissal, may now occur (emphasis added). 26 Further appointments were made for 16 June 2009 and advised to Ms Xian by letter dated 10 June 2009 (Exhibit AB - 14), in identical terms to the earlier letters advising of such appointments. 27 Ms Xian did not attend the appointments and RailCorp, as a consequence, incurred costs. 28 Ms Bruchhauser deposed that on 6 June 2009, a disciplinary investigation was commenced and that RailCorp is empowered to take such action in accordance with the relevant provisions of the Transport Administration Act 1988 (NSW) (Exhibit AB - 18). 29 Ms Bruchhauser deposed that RailCorp considered it appropriate that Ms Xian be required to remain away from work on pay (base pay as per the Certified Agreement). Such suspension from duty (on a temporary basis) is permitted under Regulation 38 of the Transport Administration (Staff) Regulation 2005 (Exhibit AB - 19). 30 Ms Xian was advised of the disciplinary investigation and the process to be followed by letter of 26 June 2009 (Exhibit AB - 20) from Mr Richards. The letter also indicated as follows: After considering all available information, including any interviews conducted, a written report of the investigation will be completed. The report will be forwarded to the disciplinary review panel that will make a recommendation as to what action, if any , should be taken (emphasis added).

31 The letter also directed her not to attend work until further notice and to immediately surrender her RailCorp ID Card, Security Access cards and RISI card. 32 On that same day Ms Xian was handed the letter by Mr Vince Lofaro whilst she was in the lunch room eating her lunch. He also required that she hand over the RailCorp items referred to in the letter as well as her mobile phone. Ms Xian would not sign the acknowledgement section attached to the letter and handwritten comments to that effect were made by Mr Lofaro. Ms Xian was then escorted from the premises. 33 Ms Bruchhauser deposed that on 26 June, as part of the internal investigation commenced on 6 June, the matter was referred to Mr Derek Wilson, a Senior Investigator in the Investigations Unit. Mr Wilson advised Ms Xian by letter of 9 July (Exhibit AB - 21) that he had now been instructed to conduct a disciplinary investigation into "the possibility" that she had breached the RailCorp Code of Conduct. The allegation was detailed as follows: On 16 June 2009, you failed to comply the written direction of Julian Richards, General Manager, Communications and Control Systems, Asset Management Group, that had been served upon you, in that you failed to attend for medical appointments, the particulars of which were set out in that written direction.

34 The letter advised that that the conduct, "if found proven" would constitute a breach of the "Acceptable behaviour and responsibilities" of the RailCorp Code of Conduct. The relevant extract from that Code was then set out in the letter. Ms Xian was requested to respond fully, in writing, within 7 days, and her response could include her "version of events, provide an explanation and/or outline any mitigating circumstances with regard to the matters." If she did not respond in writing to the alleged breach, the disciplinary investigation would continue in the absence of any response. 35 The letter gave details of the Disciplinary Investigation process to be followed and went on to say: After considering all available documentation and any interviews conducted, a written report will be prepared of the Disciplinary Investigation. The report of the Disciplinary Investigation may be forwarded to the Disciplinary Review Panel. The role of the Disciplinary Review Panel is to make a recommendation as to what disciplinary action, if any , should be taken (emphasis added). Disciplinary options included: s Counselling s Caution or Reprimand s Regression s Fine s Transferred s Suspension s Dismissal s Proceedings under legislation, for example referring the matter to the police for potential criminal investigation.

You will be provided with an opportunity to make further representation prior to any disciplinary option being taken. I have included a copy of the RailCorp Code of Conduct and RIC Disciplinary Policy for your information as the RailCorp Disciplinary Policy has not been ratified. 36 Ms Xian did respond to Mr Wilson in a detailed 5 page letter of 20 July (Exhibit AB - 22). She challenged the applicability of the RIC (Rail Infrastructure Corporation) Discipline Policy as she was an employee of RailCorp (the policy referred to in Mr Wilson's letter) and advised she had filed an application with the Industrial Relations Commission. However she went on to outline her reasons (which are also replicated in her witness statements (Exhibit 3 and 4) and submissions) which may be summarised as follows: 1 The direction by Mr Richards to take Health Assessments was based on Ms Bruchhauser and Mr Templeton "illegally alleged" that she had health problems on 13/1/2009. 2 She was a very healthy person and had a medical certificate from her family doctor to prove that. 3 Her health status for RailCorp employment was valid until 11/11/2009 and the Health Assessments they had been forcing her to take since 13/1/2009 were different to the ones she should take every five years as a condition of her employment. 4 She did not fail to attend the Health Assessments but had been continuously disputing the decision of RailCorp Managers to force her to take Health Assessments and was still waiting for a response from the RailCorp CEO, the Minister for Transport and the Premier of NSW. 37 Ms Xian then detailed a number of concerns about certain safety incidents reported and actions of RailCorp (which are dealt with extensively in her witness statements) and went on to say that: 3) Since 13/1/2009, RailCorp Managers have been alleging me have health problems and then forced me to take Health Assessments, because I escalated the safety issues over the last couple of years when the RailCorp Managers twisted the facts of the safety incidents. 4) Since 13/1/2009, I have been disputing the decision which RailCorp Managers forced me to take Health Assessments, with the management, up to the Premier of NSW. As disputing the RailCorp Managers' decision continuously, I did not take any of the Health Assessments which RailCorp Managers forced me to.

38 Ms Xian concluded by listing 5 "mitigating actions" that, as "expectations", she was seeking from RailCorp: 1. Unconditional reinstatement of her position, 2. Stopping RailCorp Managers forcing her to take Health Assessments, 3. Rectification of issues to do with a specific safety incident referred to (with detail given), 4. Written apologies from a specific list of 13 RailCorp Managers and staff, 5. A substantial nominated amount of monetary compensation. 39 Ms Bruchhauser deposed that by letter of 26 August 2009 (Exhibit AB - 23) Mr Wilson invited Ms Xian to attend a disciplinary interview scheduled for 4 September 2009. She was advised that she could have a support person present, that the interview would be recorded and she would be provided with the transcript and the letter went on to say inter alia that: ..................................... Please note that the Discipline Investigation being undertaken by me only concerns your alleged breach of the RailCorp Code of Conduct on 16 June 2009 and no other matters therefore the interview will not include questions touching upon ancillary issues.

If you do not attend the scheduled interview to respond to the alleged breach the investigation will continue in the absence of any oral representations made by you.

After considering all available documentation, your responses and any interviews conducted, a written report of the investigation may be forwarded to the Disciplinary Review Panel. The role of the Disciplinary Review Panel is to make a determination as to what action, if any, should be taken. You will be provided with an opportunity to make further representation prior to any final decision being made . (emphasis added). 40 Ms Bruchhauser further deposed that Ms Xian did not attend the interview and did not contact Mr Wilson. 41 Ms Bruchhauser deposed that by letter of 21 September (Exhibit AB - 24) Mr Wilson wrote to Ms Xian to keep her informed of RailCorp's Investigation. The letter went on to advise that the Investigation had been completed and that an Investigation Report was being prepared and would be "forwarded shortly to the Disciplinary Review Panel for consideration". 42 Ms Bruchhauser finally deposed as to the range of outcomes which the Disciplinary Review Panel (DRP) could recommend. It could recommend that no sanction be imposed, in which case an employee who had been suspended would return to work. Alternatively, the DRP could recommend any one of the following sanctions which were set out in both the relevant Regulation (referred to above) and the Collective Agreement: 1 Caution/reprimand; 2 Demotion/regression; 3 A fine; 4 Suspension without pay; or 5 Dismissal 43 Mr Ginters submitted that the Commission did not have the jurisdiction to deal with Ms Xian's application as there had been no threat of dismissal. All that had occurred was that a disciplinary investigation had been instituted and Ms Xian had been advised that a possible outcome of that disciplinary investigation was the imposition of disciplinary action which entailed a range of sanctions up to, and including, dismissal.

44 Mr Ginters took the Commission to the relevant factual background as detailed in Ms Bruchhauser's witness statement and as outlined above. He particularly drew the Commission's attention to relevant sections of the various letters that had been sent to Ms Xian (again as outlined above). He submitted that the wording of those letters clearly showed that no decision had been made as to whether disciplinary action would be taken and further, even if assuming disciplinary action was taken, no decision had been taken as to what sanction was to be recommended. 45 There had not, and could not, have been a threat of dismissal. The Commission's attention was also drawn to the definition of "threat" as set out in the Macquarie Dictionary: "declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course." 46 It was submitted that no declaration of intention or determination to dismiss had been made, nor could it be said that a dismissal was "imminent". In this regard reliance was placed on Hill v Director- General of the Department of Education and Training (NSW) (1998) 85 IR 201 at 206.2 and Baker v Australian Workers' Union [2006] NSWIRComm 1225 at 3. 47 Further, a right pursuant to s.89(7) of the Act would only " crystallise" at the point at which Ms Xian received a letter indicating a recommendation that the disciplinary outcome be dismissal and that she had seven days in which to respond ("a 7 day letter"). This had not occurred. 48 It was further submitted that the Commission was not in a position to "speculate" or "pre-empt" decisions that may be made by the respondent and Ms Xian still had the time protection time available through the issuing of a 7 day letter. 49 It was submitted that the principles to be applied by the Commission in determining whether to make an order pursuant to section 89(7) were set out in ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 299 wherein Boland P noted that in exercising its s.89(7) power the Commission will not lightly interfere with an employer's contractual (or statutory) right to terminate the employment of an employee. 50 It was also submitted that the appropriate test to be applied by the Commission had been articulated by the High Court in Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57. 51 Ms Xian had not made out a prima facie case. There was no serious question to be tried, as there had been no threatened dismissal and the balance of convenience did not favour the granting of relief. 52 Mr Ginters pointed out that in other s.89(7) cases, the Commission, in assessing the balance of convenience, had had particular regard to the damage that may be inflicted upon an individual's reputation if orders were not made. Typically those cases, in large part, involved medical specialists who would be likely to suffer considerable damage to their professional standing if s.89(7) orders were not made. Those consideration were not relevant in the circumstances of this matter. 53 It was further submitted that if respondent did dismiss Ms Xian and that dismissal was found to be harsh, unreasonable and unjust, then an application could be made and the Commission could make orders of reinstatement and restitution of lost remuneration and any prejudice visited upon Ms Xian by virtue of her dismissal could be remedied. 54 Finally it was submitted that the application was premature, misconceived and lacking in merit and ought to be dismissed. 55 Ms Xian submitted that the two warning letters she had received constituted a threat of dismissal. They were based on her alleged failure to attend health assessments. 56 Ms Xian considered that the referrals for health assessments were illegal and maintained that she had been advised by the Anti-Discrimination Board of New South Wales that there was no employment legislation existing in Australia that obliged her to be forced to take health assessments because it was alleged she had health problems. 57 She was of the very firm belief that the allegations that she had health problems and was sent for health assessments was made to cover up the wrongdoing within RailCorp and arose because she had made reports of safety incidents to management. 58 She disputed that she had not advised RailCorp that she would not attend the health assessments, as she had sent e-mails and told Mr Richards in the meeting with him and also had sent letters to the Minister for Transport and the Premier. She was still waiting for replies to those letters 59 Ms Xian queried why, if she had not been threatened with dismissal, her RailCorp ID etc had been taken off her. She even had her key to the filing cabinet under her desk with her personal possessions taken back. The requirement to hand back these items supported her firm view that she was threatened with dismissal. 60 Ms Xian also firmly believed that the direction to attend the health assessments was victimisation for her reporting of various safety incidents and escalating those issues to RailCorp management. 61 She was not going to "fall into that trap" and believed that the actions of RailCorp were being carried out to achieve her dismissal. 62 Ms Xian also challenged the accuracy and veracity of certain sections of Ms Bruchhauser's witness statement. 63 In response to the specific issue of the attachments to that witness statement the Commission indicated that the attachment of, and reference to, those type of documents by an authorised manager who was a witness on behalf of a respondent was standard practice in cases before the Commission and acceptable to the Commission. Ms Xian also acknowledged that she received the letters attached to the witness statement and referred to above. 64 Ms Xian did acknowledge that she was receiving fortnightly pay and was still an employee of RailCorp. However she maintained that she was not receiving full pay, only base pay. The Commission drew Ms Xian's attention to the Certified Agreement which provides for a 76 hour fortnight and 7.36 hour day and that when 8 hours is worked, the extra time is accrued across for an RDO. Thus if the extra time was not physically worked and the value not accrued, 76 hours pay would be payable in accordance with the Certified Agreement. 65 Ms Xian seeks unconditional reinstatement to her position. 66 Mr Ginters indicated in reply that it was the standard practice of RailCorp to request the handing back of RailCorp ID, Security cards etc when an employee was suspended.

67 I have very carefully considered the relevant evidence and submissions of the parties. 68 The jurisdiction of the Commission to hear and determine a Part 6 claim concerning the dismissal or threatened dismissal of an employee is to be found in s. 83 (5) of the Act: 83 (5) [Terms Defined] In this Part: Dismissal includes: a. the threat of dismissal, and b. in the case of a public sector employee - dispensing with the services of the employee, dismissing the employee as a consequence of disciplinary proceedings against, or the commission of an offence by, the employee or annulling the appointment of the employee. 69 In determining an application the provisions of both s.88 and s.89 (7) are relevant: 88 In determining the applicant's claim, the Commission may, if appropriate, take into account: a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and c) whether a warning of unsatisfactory performance was given before the dismissal, and d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and e) whether or not that the applicant requested reinstatement or re-employment with the employer, and f) such other matters as the Commission considers relevant. 89 (7) Threat of Dismissal. In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat. 70 Mr Ginters has rightly identified the leading authority on the issue of a threatened dismissal namely Hill v Director-General of Education as cited with approval in subsequent cases before this Commission including Baker v Australian Workers' Union and Wojtulewicz. 71 In Hill, a decision to dismiss had been made by the Director-General, and this decision had been conveyed to Mr Hill in writing with an actual date of effect also advised. Schmidt J. observed at p 205: That brings me to question of whether this is a case which concerns a threatened dismissal or not. It seems to me that until the dismissal which has been foreshadowed is given effect, it is not a dismissal, but a threatened dismissal, in the sense in which both words are ordinarily understood. That is even more so in the case of a statutory scheme of employment which does not contemplate the common law concept of dismissal upon notice. Under this statutory scheme, Mr Hill remains an employee of the Department until dismissed. For reasons connected with this litigation, he has not been dismissed as yet. The reason why that is so, seems to me to be of little consequence to the end result. There has been no dismissal as yet, but it is clearly threatened and indeed, imminent, the dismissal having been put off on a number of occasions, most recently until 20 November. (emphasis added)

72 Similarly in Wojtulewicz, and indeed in the similar cases cited in that decision, Doctor Wojtulewicz had been advised in writing of his dismissal and the effective date and thus an actual threatened dismissal did exist. 73 In Baker v Australian Workers Union, Connor C observed at para 3. "For the threat to be sufficient to ground that remedy, in my opinion it must be certain, imminent and unconditional to give rise to a claim under Part 6." He further observed that "Mr Baker has jumped the gun". As Mr Baker was still on the payroll, was still the subject of a disciplinary procedure that had not been completed, and no final decision had been made, Commissioner Connor did not make the orders sought under s.89(7). 74 Mr Ginters has also rightly drawn the Commission's attention to the usually accepted definition of "threat". I have in turn very carefully considered the wording of the various letters that RailCorp have sent to Ms Xian as detailed above. The relevant sections of those letters have been reproduced above and I have emphasised in italics any specific word(s) I consider particularly pertinent (e.g "may"). The language contained in those letters in referring to the disciplinary outcome is "may" and "if any". 75 The Macquarie Dictionary relevantly defines "may" terms as follows: "May" - possibility, opportunity 76 Use of the word "may" does not convey any concept of either the certainty of an outcome or the inevitability of an outcome such as dismissal. 77 It is abundantly clear to me from the letters referred to above, that the investigation process is still underway and has not yet been concluded. No final decision has been made as to what sanction or penalty, if any, is to be imposed on Ms Xian. Indeed, it is not yet known whether the Investigative Report has found that Ms Xian has breached RailCorp's Code of Conduct. Dismissal is a possibility, but, as at the date of the hearing, no outcome of the investigative process has been made known to Ms Xian. She remains an employee of RailCorp, on suspension with pay, pending the outcome of that disciplinary process. It is also clear on the evidence that she will have the opportunity of responding to the outcome prior to any final decision being made. 78 Whilst Ms Xian may be of the firm belief that dismissal is inevitable, the Commission is not entitled, on the evidence available, to draw that same conclusion or make such a finding. 79 Should a dismissal ultimately take place, either as a consequence of the disciplinary process currently being undertaken, or indeed arising at some time in the future due to other circumstances entirely, then Ms Xian will be entitled to make an application pursuant to s. 84 and have the Commission determine whether such dismissal is harsh, unjust or unreasonable and sufficiently so as to warrant the intervention of the Commission. 80 After applying the relevant authorities and after carefully considering the relevant evidence, I do not consider that a threat of dismissal exists in relation to Ms Xian's employment with RailCorp. 81 The application is therefore dismissed.

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