Australian Services Union of NSW on behalf of Valentina Angelovska and St George Youth Services Inc. [2010] NSWIRComm 1051 - NSWIRComm 2010 case summary — Zoe

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Australian Services Union of NSW on behalf of Valentina Angelovska and St George Youth Services Inc. [2010] NSWIRComm 1051

[2010] NSWIRComm 1051

Industrial Relations Commission (NSW)|2010-07-01

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Industrial Relations Commission (NSW)

Decision date

2010-07-01

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Judgment (336 paragraphs)

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CITATION: Australian Services Union of NSW on behalf of Valentina Angelovska and St George Youth Services Inc. [2010] NSWIRComm 1051

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APPLICANT Australian Services Union of NSW on behalf of Valentina Angelovska PARTIES: RESPONDENT St George Youth Services Inc.

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CATCHWORDS: UNFAIR DISMISSAL - small community based service organisation - dismissal of manager for serious and wilful misconduct - unblemished record and service of 9 years - allegations of taking work/files home & working from home without approval - carrying out work for another community based organisation using employer's time and resources without approval - grievances from staff - meetings with manager - suspended for not following directions - manager maintained had long standing approval from committee of management - work carried out in own time/time in lieu - manager's computer & phone examined after suspension - further documentary evidence found and further allegations made - applicant not provided with evidence - not told about grievances - issues raised re investigation - procedural fairness issues re compliance with policies and procedures followed in terminating manager - reinstatement sought. HELD - onus on employer to establish misconduct - onus not discharged - no evidence to contradict applicant's position - evidence of approval from former committee - never revoked - no proper investigation - employer failed to follow own procedures - procedurally unfair - reinstatement not impracticable - reinstatement ordered with backpay.

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2 The matter was listed for conciliation and directions before Commissioner Connor on the 15 January 2010 at which time conciliation took place. The matter was set down for further conference on 29 January and further directions on the 5, 12 and 26 February 2010. However as no settlement could be reached, directions as to the filing and exchange of witness statements were issued pursuant to Practice Direction 17. 3 The matter was re-allocated to Commissioner Tabbaa and listed for the 29 March 2010 to deal with a Notice of Motion filed by Jobs Australia Ltd as agents on behalf of the respondent in relation to a Summons for Production issued by the ASU pursuant to s.165. Further conciliation, at the request of the parties, was also conducted by Commissioner Tabbaa on that date but was unsuccessful, however the ASU withdrew the Notice of Motion. 4 The respondent subsequently exercised its rights pursuant to s.173 of the Act and as a consequence the file was re-allocated to the Commission as currently constituted and set down for hearing on the 17, 18 and 19 May and the 7 and 8 June 2010. 5 On the 27 April 2010, a Summons to Give Evidence pursuant to s.165 was issued by Jobs Australia with respect to Ms Phuong My Vo who appeared before the Commission on 18 May 2010 and gave evidence. 6 A s.90 undertaking signed by Ms Angelovska was tendered at the commencement of proceedings on the 17 May 2010 (Exhibit 1). 7 At the hearing Mr Slevin, of Counsel, appeared on behalf of the ASU and Ms Angelovska and called the following witnesses who had all filed witness statements: Valentina Angelovska.......applicant (Exhibits 2 and 3) Mark D'Astoli....................former Chairperson, Management Committee SGYS (Exhibit 4) Nicole Scobie.....................former Management Committee member SGYS (Exhibit 15) 8 Mr Godrey, from Jobs Australia, appeared on behalf of SGYS and called the following witnesses who had also filed witness statements: Vicki Petrakis.............Chairperson, Management Committee, SGYS (Exhibit 8) Mariam Faraj..............Management Committee, SGYS (Exhibit 10), John Dangas................Acting Manager, SGYS (Exhibit 16) 9 Witness statements on behalf of SGYS were also filed for following persons who were not required for cross examination: Anna Pedone..............Youth Worker SGYS (Exhibit 11), Vera Nedelkovska......Youth and Family Worker SGYS (Exhibit 12), Angela Roberto..........Administrative Officer SGYS (Exhibit 13), Janeta Gravche.........Project Officer, Community Development - Culturally Diverse Community Projects (Exhibit 14),

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13 The Contract also covered annual salary, time in lieu entitlements, travel allowance, (weekly car allowance etc.,) sick leave, leave without pay, educational leave, Christmas closure and Civil Liability. 14 At the time of Ms Angelovska's dismissal she was employed as the Manager of SGYS at Grade 6 - Level 2. 15 During Ms Angelovska's employment with SGYS she was also on the management committee of the Macedonian Australian Welfare Association of Sydney (MAWA) and had been so since 2001. 16 Mr D'Astoli was the chairperson of the Management Committee (formerly known as the Executive Management) from 1999 to 2007. He undertook this role as it related to his duties as a Community Worker - Youth Service with Hurstville City Council. He resigned from the position of Chairperson consequent upon his resignation from his employment with Hurstville City Council in 2007. He briefly rejoined the Management Committee from March to November 2008, in order to assist SGYS concerning the planned demolition of their Rockdale premises and negotiations with Rockdale City Council about ongoing accommodation arrangements. 17 Mr D'Astoli deposed that during his time as Chairperson the organisation expanded from a basic interagency (then known as the St George Youth Workers Network) with a budget of $600 per annum to an integrated service provider (now the SGYS) with an annual turnover of over $800,000. 18 Ms Scobie has worked in the community welfare sector for the past 25 years. She was a member of the Management Committee (formerly known as the Executive Management) of the St George Youth Workers Network (now the SGYS) since 1993 and since the organisation's incorporation, a member of the Executive Committee for SGYS up until 2002 and held the position of Secretary for the majority of that time. She now works as a self-employed consultant in the community welfare sector. She provided consultancy services to SGYS on a fee for service basis for a period of approximately 5 years until November 2009. 19 Ms Petrakis became a member and Chairperson of the Management Committee of SGYS in December 2008. She holds tertiary qualifications in Business (majoring in Employment Relations) and Occupational Health & Safety. She is currently employed full time as the Service Manager of a community services organisation. She has worked in the community services sector for a number of years in both aged care and youth services. 20 Ms Faraj became a member of the Management Committee of SGYS in February 2007. She holds tertiary qualifications in education and social science. She is currently employed as an Adolescent and Mental Health Program Officer in the health industry. Ms Faraj is also a member of another community organisation which receives funding fom various sources. 21 Ms Roberto is the Administration Officer for SGYS and commenced with the organisation in March 2005. She works part time, 2 days per week. 22 Mr Dangas commenced his employment with SGYS as a Youth Worker in February 2005, progressed to Team leader in August 2006, and is currently the Acting Manager of SGYS. 23 Ms Nedelkovska has been a Youth and Family Worker with SGYS since November 2004. 24 Ms Pedone has been a Youth Worker with SGYS since April 2007. 25 Ms Gravche previously worked at SGYS and has been employed as a Project Officer, Community Development - Culturally Diverse Community Projects since March 2009.

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26 Ms Vo works five days per week (based on a seven hour day) for SGYS as their Bookkeeper and Receptionist. She commenced employment with SGYS in 2003 as a part-time employee working three days per week. In 2007 she took up a full time position which involved a job-share arrangement of the receptionist work. She currently job-shares that function with Ms Roberto. Prior to 2007 she was employed for two days per week at the St George Migrant Resource Centre. She also commenced doing bookkeeping work for MAWA in mid-2008 and worked about two hours a week on Saturdays. MAWA had one full time and two or three part time employees in 2008 in addition to Ms Vo's casual employment. She resigned from her position with MAWA in January 2010. 27 During the second half of 2009 Ms Angelovska was on 5 weeks annual leave commencing 4 September and returning to work on the 26 October. On her return she received an email from Ms Petrakis instructing her to attend a meeting at 6 pm on the 27 October, with Ms Petrakis and Ms Faraj to discuss issues that had arisen whilst she was on annual leave. 28 At that meeting Ms Angelovska was advised that it was "not a disciplinary meeting" and a range of matters were then raised with her, including keeping electronic files at home and that she had the only key to SGYS filing cabinets etc. A further meeting was arranged for the 10 November 2009. 29 There were no formal minutes kept of the meeting but Ms Angelovska subsequently received an email from Ms Petrakis on 2 November with notes about issues raised at the meeting and with 7 "Action" items identified for her to follow up (including dates listed for completion), which are summarised as follows (Exhibit 8 - C1): · All directives from Management Committee must be followed with Management Committee member to be contacted if in doubt, copy of contract, job description and last performance appraisal to be provided and subject of future discussion; · N. Scobie to be advised SGYS ceasing to use her consultant services; · Files to be organised into secure and accessible area and spare key for filing cabinet provided to Management Committee member or delegated staff member; · Financial reports - various issues raised re MYOB and including finalising internet banking arrangements; · Staff structure - current organisational structure to be circulated with proposed new structure to be discussed at next meeting; · Proposed dates for completion of annual report and dates for AGM to be circulated; · Table of programs and progress on reports to funding bodies to be provided by next meeting. 30 Ms Angelovska disputed that all of the issues listed in Ms Petrakis' notes had been discussed or that deadlines for all issues had been discussed. She kept notes during the meeting which she subsequently typed up (Exhibit 2 - MFI.5). 31 A further meeting was held on 10 November 2009 between Ms Angelovska, Ms Petrakis and Ms Faraj. Again no formal minutes were kept and following the meeting both Ms Angelovska and Ms Petrakis typed up their version of the record of the meeting. 32 A further meeting was held on the 20 November between Ms Angelovska, Ms Faraj and Ms Petrakis concerning instructions from the Management Committee on issues such as signing of timesheets, time in lieu and leave requests to be signed by the Chairperson. 33 This meeting had commenced at 2 pm and because Ms Angelovska had a prearranged meeting at 2:30 pm, she had to leave the meeting before all items had been addressed. Before she left she was given a document, "Items for Action" (Exhibit 2-MFI.9) listing various items under the following headings, with dates for implementation ranging from 23/11/2009 to 4/12/2009: a) Hours of Work b) Staff Contact with Management Committee c) Delegation of Budgets and Access to Funding Agreements d) Internal audit of Financial Records e) Computer network f) Staff contracts, job descriptions and appraisals g) Involvement with Macedonian Welfare Association 34 Under item a), 'Hours of Work' a number of matters were raised that affected Ms Angelovska: Hours of work would be 9 to 4:30 pm (to be implemented on 30/11); no accrual of time in lieu or variation to core hours without prior approval from the Chairperson; no working from home; Chairperson to be notified if out of the office for 1 or more days; evidence of communication with staff at lease 2 days prior to absences; all leave forms for Manager to be signed by Chairperson. (The last 4 items to be implemented by 23/11.) 35 Under item g), 'Involvement with Macedonian Welfare Association' was noted the following: To what extent is your involvement with MWA during work hours and outside work hours. What if any SYS resources are being used to support/partner with MWA? 36 On the 23 November 2009, Ms Angelovska received the following email from Ms Petrakis, which had been circulated to other Committee members (Exhibit 2 -MFI.11):

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Dear all, As per very brief meeting with Vale, I attach an electronic copy of the document provided to Vale, detailing items requiring action and timeframes, I have suggested that if Vale has any questions that she contact me. (Vale's 2.30pm appointment arrived early, and Vale felt it was more important to attend meeting than to conclude meeting with committee members). 37 Ms Angelovska forwarded a copy of this email and the 'Items for Action' list to the ASU asking for their assistance. 38 On 25 November 2009, following advice from the ASU, Ms Angelovska sent an email to the Management Committee indicating that she was currently seeking advice in relation to the meeting of 20 November, the content of the email and the list of "Items for Action" (Exhibit 2-MFI.13). She then indicated inter alia as follows: I have been advised to continue work as normal while I seek advice as such I am unable to agree to the short deadlines included in your list of "Items for Action". This is particularly the case in those items that pertain to the proposed unilateral altering of conditions of employment. I will respond further and in due course as I am advised and on all items. 39 She also responded to certain financial matters and then went on to say: Should the Management Committee have any allegations to put to me in relation to my involvement with MWA, or regarding finances, or any other matters, for my response please put them to me in writing with adequate detail to allow me to respond. I will then seek advice and respond in due course, in keeping with principles of natural justice. Should you require any further information please contact myself or, or (sic) in relation to industrial issues or questions, my representative - Emily Mayo at the Australian Services Union. (with email address supplied) 40 On the 25 November 2009, Ms Petrakis replied by way of the following email (Exhibit 8- F4): Dear Valentina, I am disappointed that you opted to a) leave our meeting early and b) not follow our request [to] contact me should [you] wish clarification. Note also you were given a hard copy of the action items, and we had commenced going through the actions still outstanding and then the items for action, them (sic) when you opted to leave our catch up. These items were raised by myself and Mariam (who are the chairperson and Mariam who has been the longest standing member of our committee), as the representative of the management committee and as such are the specific request of the committee, not a reflection of my particular thoughts. We have discussed on numerous occasions our way forward and had hoped that you would have come on board with our request for certain tasks to be completed. We certainly have no concerns about your ability to complete these tasks. In short, yes we want to pursue an internal audit, and would like you to provide us with accountant details as requested. Secondly we have made no 'allegations' against you or your work with MWA - I believe we have supported you by both allowing you time off to attend conferences and I believe we even made a comment about future formal partnerships. We simply asked what your and SYS current involvement with MWA was. If nothing else this process is about accountability and transparency, for the organisation as a whole. Please note that the timeframes and length of actions have been deemed realistic given that most require little of your time, and many have been on the agenda with the management committee for some length of time. However you have been given the option to discuss these directly with me, and to date have not made any contact with either myself, or any other member of the committee. The tasks indicated also fall well within your position description, however if you require further clarity around your responsibilities am I (sic) happy to meet with you to go through these. I look forward to the completion of these so we can move forward to a more strategic focus in the new year. Thanks 41 On or about 30 November 2009, Ms Angelovska forwarded an email to the Committee of Management concerning the "Items for Action", seeking clarification and providing relevant information and comment in a "reply" document (Exhibit 2- MFI14) in which she indicated as follows: Reply to Items for Action from Manager I am quite confused about the following items for action, plus I need clarification. None of these items have been discussed in board meetings this year, I have checked minutes to make sure, so I am confused about the items which were first presented to me through this document and without discussion. They were given to me during a recent half-hour meeting during the last few minutes, when I was already running late for my next appointment (10 minutes late). I seek clarification about some items and comment as follows: 42 Then followed various specific items and the clarifications sought and comments were made concerning past/existing practice in relation to certain other items. 43 On the 4 December 2009, Ms Petrakis and Ms Faraj attended the workplace and provided Ms Angelovska with the following suspension letter. She was also required to hand over her keys, mobile phone and the token for internet banking (Exhibit 2 - MFI15): We refer to our meeting on 27th October 2009, 10th November 2009 and 20th November 2009, and the issues/items that you were required to address within the deemed timeframes, as directed by the Board of Management. Rather than address these matters, you have decided to provide 'responses' and arguments for matters not relevant to you being directed to complete the tasks. In addition, your behaviour is disrupting the workplace and endangering the health and safety of staff. Therefore we have decided to suspend you, on full pay, until such time as directed by the management committee. In the meantime we require from you a written explanation as to why you refuse to comply with reasonable direction, by failing to comply with the action items identified. You are required to provide a written explanation by close of business (4:30 pm) Friday, 11th December 2009. During this time you are not to discuss the matter with staff or the Board of Management or to attend any premises of the St George Youth Services. The letter was signed by Ms Petrakis, Ms Faraj (Secretary) and Mr Gillies (Treasurer), as the Executive Committee. 44 Following Ms Angelovska's suspension John Dangas was asked to act in the capacity of Manager of SGYS.

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48 The ASU forwarded a further email to Ms Petrakis in reply on 11 December 2009 (not in evidence). 49 On 15 December 2009, Ms Petrakis sent a letter to the ASU in reply to that email, confirming that the timeline for providing a written response had changed and also enclosing documents in relation to the previous matters as requested (meeting notes and the "Items for Action" list), the letter then went on to indicate (Exhibit 2 -MFI.19): In addition to the matters above, the following additional matters have come to our attention, we now require a written response from Ms Angelovska of these matters as well: · Organisational files, to which only she has access, including staff personnel files have been removed from the organisation, without authorisation. · Electronic copies of documents dating from 2008 onwards to which only she has access have been removed from the organisation, without authorisation · Evidence that Ms Angelovska has during paid SGYS time been working on matters of behalf of the Macedonian Welfare Association, including tracked correspondence which demonstrates using the St George Youth Services time and resources to support the Macedonian Welfare Association · Furthermore we have evidence that Ms Angelovska has been copying and amending tenders written for St George Youth Services, to submit on behalf of the Macedonian Welfare Association, who are in direct competition with St George Youth Services, and that such action is a breach of her duty of fidelity to her employer. We require a written response relating to all of these matters, but because of the new matters, we have decided to extend the deadline to close of business, (4.30 pm) Monday 21st of December 2009. In addition we note your comments regarding clause 48 of the SACS award. This award provision clearly excludes matters relating to work performance, and conduct, and therefore does not apply in this instance. 50 On the 18 December 2009, the ASU responded in writing to this letter (Exhibit-MFI.20) seeking the immediate reinstatement of Ms Angelovska to her position to enable work to continue as normal while the matter was resolved "as is her right". It was indicated that, in the ASU's view, being stood down was not warranted in these circumstances and was completely disproportionate to what was being alleged. It was also advised that, as there were no details forthcoming in relation to the allegation concerning "behaviour disrupting the workplace and endangering health and safety", this matter was "resolved". Further and better particulars were sought in relation to the allegation that Ms Angelovska had failed to comply with a reasonable direction. A response was also provided in relation to the documents forwarded as follows: s our member does not endorse the notes as a complete and true record of the discussions and we understand that no official minutes were taken of the meeting - however, in good faith, we refer to them to make response. s The documents state that "these gaps were not anyone's 'fault'..." s Our member was not informed that the various meetings were part of a disciplinary process or that disciplinary action could result from her participation in the meetings. Given our member has now been stood down this is a clear breach of both the organisation's own policy on grievance and disciplinary procedures and the principles of natural justice. s The documents clearly demonstrate our member's willingness to follow reasonable directions, particularly our member's response to the items for action which you have a copy of. 51 The letter then advised that, given the above information, it was considered that the matter in relation to the alleged failure to follow a reasonable direction was "resolved"; a separate one and a half page document prepared by Ms Angelovska was attached providing her response to the "additional matters" contained in the letter of 15 December; relevant award provisions concerning the decision to restructure were drawn to the Committee's attention and serious concerns raised about what had occurred on 4 December. The Union reiterated its position that Clause 48, Grievance and Disputes, in the SACS Award applied and that the ASU's communications were "a formal grievance" on behalf of their member. Both the allegations and the manner in which the Organisation had dealt with them was disputed and it was indicated that it was inappropriate to continue to raise additional matters before this had been concluded and it was requested that this course of behaviour cease. A specific response by Tuesday 22 December was also sought to the following: 1. Your agreement to our position that the initial allegations are resolved. 2. Your agreement to our member's reinstatement to her normal duties. 3. Your fair and reasonable outcome in relation to the additional claims on considering our member's response

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52 In Ms Angelovska's specific response she indicated, in summary, as follows: · That she had taken organisational files from the office in the past to work on at home or at other venues in line with fulfilling her duties and responsibilities but had always returned them. The Service did not have a policy about the removal of files and she did not know this required authorisation. She would produce a policy if such was sought. · All electronic copies of Manager's documents were on the C-drive of the Manager's computer in the office. She had taken electronic copies of documents to work on at home and in other places of work and deemed this as appropriate as Manager to fulfil her work obligations. There was no policy about removing electronic copies of documents and she did not know this required authorisation. If a policy was required to be produced she would be happy to work on this. · She had previously informed Committee members of her volunteer involvement with MWA. There might be occasions when MWA would contact her during work time even though she had told them not to and she followed this up on either break or time off/after hours. There was no policy preventing staff from sitting on management committees and she had been told this might be a good partnership to have. · She denied copying and amending tenders written for SYS and the MWA was not in direct competition with SYS as it was a Sydney wide service and specifically targeted Macedonian people primarily aged over the youth aged 25, including older people, carers and new migrants in particular. · She also stressed her length of service and commitment to the organisation, that no previous performance issues had ever been raised with her and indicated she was happy to work with the Management Committee in identifying areas of service improvement and to implement changes that were in the best interests of SYS. 53 On 21 December 2009, Ms Petrakis sent the following termination letter to Ms Angelovska (Exhibit 2-MFI.21): ..................................... Your responses to the new matters have been discussed by management who have decided the following; o Point 1. Your response is factually incorrect. You are aware that you were instructed not to take organisational files home and not to work from home, as clearly instructed on 20 November 2009. Your answer is therefore factually untrue and an attempt to misinform the board of management. o Point 2. The direction regarding working from home and storing matters on a private computer drive are both in direct contradiction to the directions of your employer. o Point 3. While you may have informed the board of management that you were a volunteer with MWA, you were not given any approval to use work time and resources to support MWA. We have evidence including emails that clearly show that you have used St George Youth Services time and resources to conduct work for MWA. o Point 4. Your comments in regard to MWA are not relevant to you taking and using documents which are clearly the legal property of St George Youth Services, and you had no authority to do so. Using SGYS documents by changing the name and details to MWA is clearly misappropriation of SGYS property. The Board of Management have decided that these actions breach your fiduciary duty of fidelity to your employer, are totally unacceptable, and are considered serious and wilful misconduct. Therefore your employment with St George Youth Services is terminated with immediate effect. Any outstanding entitlements will be paid directly into your bank account, and, all St George Youth Services property including documents and files you have in your position must be returned forthwith. 54 The SGYS Policies and Procedures Manual was also in evidence (Exhibit 3-MFI.24). 55 During the evidence the following extract from Section 2 Staffing & Employment of the Manual was relevantly referred to by the parties: Staff Files Upon commencement of employment, an individual staff file will be established and maintained. This file will include copies of; · Resume/application for the position · Letter of appointment · Details of above award conditions · Reports of performance appraisals · Other records relevant to employment with the Association Staff may have access to their own file, however no staff file or any file contents may be removed from the SYS office. 56 The Grievance & Disciplinary Procedure as set out in Part 2 of the Manual was also referred to in evidence in relation to 'Step 6 - Termination' as follows: Termination may be a Planned Termination or Summary Dismissal. Neither step should be taken until a full investigation has been carried out . A decision to terminate an employee should be taken at a meeting of the whole Executive Committee, with all levels of management represented (ie Manager/Line Managers and the Executive). All parties should be given 7 days notice of such a meeting, and representatives of the ASU and Jobs Australia may be present. Before the meeting: 1. Steering Committee should discuss the situation thoroughly, making sure all facts and documentation are considered. It must be objectively clear that termination is not harsh, unjust or inequitable; and consistent with treatment of other employees. 2. A planned termination should come as no surprise to the employee if the correct procedure has been followed. The Manager (or Line Manager) should ensure all award and legal obligations have been met (eg notice, leave owing etc.) 3. Consider the possibilities of potential industrial action involving other staff; and anticipate any questions the employee may ask eg a request for a final chance. During the Meeting : 1. Tell the employee that he or she has been terminated. 2. Verbally explain the reasons for the termination. 3. Give the employee any information needed re. Payments, entitlements etc. 4. Ask for and answer any questions the employee may have. 5. Pick up any SYS property in the employee's possession eg keys. 6. Confirm the employee's current address and telephone number. 7. Give the employee their final pay, Employment Separation Certificate and, if requested, a Certificate of Service in the following form :- Employee's name Period of employment Title of position Salary scale Nature of work (including if applicable, details of other staff supervised by employee) Signed by a Committee member Date 8. End the conversation on as positive a note as possible. Recognise positive contributions the employee has made or express confidence that they will find more success with another employer. After the meeting: The Manager (or Line Manager) will write a memo, including: employees name; date of the incident; specific explanation of the incident which resulted in the employee's termination; the nature and dates of all previous disciplinary actions Summary Dismissal In a Summary Dismissal, the employee commits an offence which is so serious that firing on the spot is appropriate regardless of previous disciplinary actions taken. There is no period of notice nor payment in lieu of notice to be considered. 1. Upon receiving a complaint of an action warranting summary dismissal, the Manager (or Line Manager) must give the matter priority attention. 2. Have the employee stop work and meet with Executive Committee as soon as possible. Ask the employee to explain their side of the matter. Direct them not to resume work until they have been instructed to, then complete your inquiries by speaking personally to all who can put light on the situation. 3. Call an urgent meeting of the Executive Committee (including Line Manager and Executive representatives) to discuss the complaint and any action to be taken. During the meeting: 1. Executive Committee should ascertain and document which facts are agreed, contested and unclear. It must be objectively clear that termination is not harsh, unjust or inequitable; and consistent with treatment of other employees. 2. Consider whether the employee clearly understood the rules or policy that was broken. Did they know in advance that such action would be subject to disciplinary action? Was the rule/policy related to the safe, efficient and orderly conduct of the organisation? Is there substantial evidence that the employee did actually break the rule? 3. Consider: is the action planned reasonably related to the seriousness of the offence? The employee's record? Action taken with other employees in similar circumstances? Is the issue gross deliberate wilful misconduct? This may affect an employee's entitlements and lead to further legal action. 4. Consider any other statutory obligations under industrial awards etc. 5. Consider whether the ASU and/or Jobs Australia should be consulted. 6. Review all options from warnings through to dismissal. If the Executive Committee decides, having reviewed all facts and examined all options, that summary dismissal is warranted: 1. Invite the employee to join the Executive Committee meeting. 2. Advise the employee that they have been dismissed and put (briefly) the reason. 3. Proceed in accordance with steps for a planned termination. 57 Since her termination Ms Angelovska had not been able to secure alternate employment in the community services sector. The Evidence

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64 Ms Petrakis said that she was not aware of Ms Angelovska's hours of work. 65 Ms Angelovska gave evidence that the SGYS phone bill was on a month by month plan and they had a certain number of free calls. So as long as she monitored that and made sure that it was kept within that range it was fine. There wasn't any problem with that the whole time she had been there. The monthly phone bill would go to SGYS but she did not have to differentiate which were personal and which were business calls. She was given the mobile phone at some stage during the first few weeks after she first commenced with SGYS. 66 Ms Angelovska was the one who would look at the phone bills in terms of signing cheques being paid for them and that was for all the mobile phones in the organisation. The bookkeeper and accountant would also be overseeing them as well as the auditor. There were also monthly or bi-monthly reports given to the Board of Management as required by the Board and they would get a financial report specifying how much was spent on phone calls and things like that. It was not broken down on an individual staff member bases. It was just on an overall basis or a project basis as a whole. There was an annual budget for the telephone and it would be monitored on a monthly or bimonthly basis by the Board of Management as well as herself. There were never any problems with expenditure for phone calls during the time she had been there. 67 Mr D'Astoli deposed that Ms Angelovska consistently demonstrated commitment to her work and the organisation. He had signed off on her work times for some years as her line manager and was satisfied (as was the Management Committee) that she managed her time and SGYS resources effectively and professionally. She was authorised by the Management Committee to work from home occasionally, at her discretion, in a suitable environment that satisfied SGYS's OH&S requirements. This authority to work from home extended to her occasionally taking home administrative files to work on when required. However confidential Client records were always kept in a locked filing cabinet at SGYS premises. 68 He confirmed in cross-examination that the approval that was given to Ms Angelovska was done at a formal Committee meeting. He was not able to supply evidence to that effect but was sure that if the minutes of the Committee meetings were gone through then those decisions would be clearly documented. She was authorised to do the general administrative tasks that would normally be undertaken as a Manager. 69 He clarified what he meant in his statement about "to work from home occasionally" and indicated that the discussion at the time generally meant between a half day to one day a week. It was around about the same time that Ms Angelovska's father was gravely ill and died and she was at home doing some support there and basically it was acknowledged that there was a need to be looking out for the mother and that kind of thing. So they said "alright you can complete some of this work from home". He agreed that the request arose out of a specific need in her private life and was also around the time that email and internet usage was becoming more and more prevalent. The ability of people to work from home and work on electronic files was becoming more commonplace. They saw no reason to prevent that. They also allowed her to take electronic files home. 70 Mr D'Astoli indicated that his experience on the SGYS Committee was that there was a stable core group of 3/4 maybe 5 members over his eight year period. 71 Initially there was a small Committee and other people who came on board. The Committee met at varying times. Initially it would have been monthly when they were starting up new projects and starting up the first project. There was a minimum requirement for three Committee meetings per annum so there would have been at least one every four months. By and large it would be monthly or bi-monthly. There were also different points of time where they had different subcommittees operating, concentrating more closely on specific projects and they may have had a managing committee meeting every two months and the other committees might meet on alternate months. 72 Mr D'Astoli also said that there were certainly minutes and agendas kept more often than not. He could not swear that every meeting was documented perfectly, but major decisions and policy changes were documented. Ms Angelovska developed the delegation manual and he spent a lot of time working with her on the policies and procedures manual for the organisation and that sort of thing was done very much with the Committee's involvement. 73 He also indicated that Ms Angelovska, as Manager, reported to the Committee of Management at each meeting, usually by way of a written report, although as the organisation grew those reports would have taken a different format and may have been more of an overview in the latter part of the period. Ms Angelovska confirmed in oral evidence that reports she had attached to her witness statement (Exhibit 3-M27) were typical of the reports she would provide for tabling at Management Committee meetings. The headings were those that she had used for a number of years and the Management Committee were always satisfied with the reports.

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77 Ms Petrakis said in evidence that she did not formally meet with Ms Angelovska outside of the Management Committee meetings, there were the odd occasions when she would come into the office. She did not hold regular supervision meetings with her. She had correspondence with Ms Angelovska on a regular basis via email and they worked together, and with other staff members, on projects. She considered that they were working on particular tasks together. 78 Mr D'Astoli agreed that when he left the Committee, having been a chair for eight years, it would have been a fairly substantial change in the organisation. Subsequently one or two other people did leave. He had flagged quite some time prior to his departure that he would be leaving and worked with Ms Angelovska and the Committee to try and handover and step back from a lot of the things he had been doing so that it wasn't a surprise to people when it happened. When he left he recalled that there were new members of the Committee elected and he believed that not all of them stayed around for the long term afterwards. He was aware of a least a couple of them being there for a while and one was still there. There would certainly not have been the same kind of continuity. 79 He could not recall specifically mentioning to the incoming Committee the arrangements with Ms Angelovska and her doing work for MAWA, but there would have been some members of the Committee who continued after he left who would have been aware of that. It would also have been documented in earlier Committee decisions if people wanted to look for it. It did not appear to be a live concern at the time against many other things, he didn't specifically identify that as something to pass on. 80 He also indicated that during his time on the Committee with the use of electronic equipment expanding and growing, the Committee did give consideration to developing and implementing policy in relation to the use of the internet and emails but did not ever get around to finalising the policy. They had a "reasonable use" policy and certainly had conversations saying they should write something up. He remembered discussing with different staff who had more outreach kind of roles where they travelled around and used a laptop and sometimes they asked whether they could use it for personal use and that kind of thing. So there were some considerations but they may not have been formalised. 81 He also said that during his time on the Committee there were no perceived issues with staff generally about excessive use of email, internet, computer or mobile phones. He was aware of one staff member that they took disciplinary action against. The person subsequently left and two weeks after they left they found his mobile phone records detailing a number of phone calls that clearly had not been made from work. Ms Angelovska had tracked his whereabouts on the white whiteboard and they didn't match with his phone records but that had been picked up and they had gone through the appropriate channels. The Union represented the staff member and agreed that it was best that they move on. Apart from those kind of situations they didn't have any issues. 82 In relation to that person terminated, the use of a mobile phone was the least of the issues. They had accessed the phone records as part of monitoring the work activities. Ms Angelovska was very closely under the Committee's instruction monitoring his movements because they had reason to believe he wasn't going to places where he said he was going. There was very thorough documentation because the person had a reasonable understanding of their industrial rights and they needed to be extremely thorough in proceeding with that matter. 83 He conceded that it was reasonable that the current Committee would look at similar records if they had concerns but said that there was "a whole bunch of steps that ought to happen before you get to that point including asking a staff member to provide that information for you". There was no reason such a staff member could not go through their phone records and say these are all the MAWA calls for instance . 84 He also did not think that when a person was acting up in the Manager's position that they would necessarily have access to the Manager's email account. He could only recall one other position who acted up and he could not imagine there would have been particular issues that required Ms Angelovska's email account to be accessed for that. The Acting Manager would not necessarily access the Manager's account. Mr D'astoli said that even he, in his management position, did not have automatic access to her emails. If someone sent an email to the Manager he would expect the person on leave to have an out-of-office reply saying that the current Acting Manager is 'so-and-so' and please contact them at 'such-and-such'. 85 In relation to his knowledge of Ms Angelovska's involvement with MAWA, the following exchange took place: Q. How can you say it's a voluntary capacity when the time she was using for this was put on her timesheets and there was no indication that she had volunteered for something and noted that on the timesheets? A. Well, again I would say we didn't have any concern that the work that she was doing was impacting unduly on her paid work. I was aware from very early on in Valentina's employment that she had a tendency to work very long hours and that was her prerogative. And I was aware that some of those long hours she would stay back till 6.00/6.30 and she would use the last half-hour to do some MAWA committee kind of follow-up, that kind of thing. So in that context, again it didn't concern us greatly that she was undertaking some of that work with resources that were, as far as we were concerned, public resources, publicly funded, they were all going towards the same kind of community benefit in the long term. It wasn't like she was making any personal profit, it wasn't costing us anything personally, you know, I think it was putting what resources were there to related and constructive use. Q. Are you saying it was not costing St George anything? A. It was not costing St George enough to concern us, you know, it wasn't a significant impost on the organisation. Q. But ever (sic) time she worked late, every time she worked extra, she put it on her timesheets as time in lieu as a charge against St George Youth Service? A. Not necessarily, I don't think. Q. Well, can you give me an indication of when she didn't, because if you want to look at the timesheets, which you say you signed off on, they're all full of time in lieu that you're saying she did up to half an hour's work for MAWA. A. Yes, I wouldn't have signed off on time in lieu for another organisation. As far as I was concerned, I was signing off on hours that she'd worked for the organisation, which were often time in lieu in relation to the work that she did with SGYS. Q. So as far as you were aware, she was working for St George Youth Services? A. Yes. 86 Ms Angelovska indicated that she did not have to get her time-in-lieu approved beforehand. Mr D'Astoli would look at her timesheets or she would have meetings with him where they would go through her times and he would look over things. She could not remember who did it after he left, she thought that it would have been the responsibility of the Chairperson. She did not know if those timesheets after 2007 were approved by Management, she didn't know that was her responsibility. 87 She did not approach the Committee for approval to work additional hours because from her memory of her contract that was not what it said in regards to time-in-lieu. She had the discretion to use and take time-in-lieu at her own discretion. She would accrue time-in lieu to do work time and she did a lot of extra hours for the organisation over the whole 9 1/2 years she been there and when she took time-in-lieu that was her personal time and she do not have to write it down anywhere. It was all logged on her timesheets. 88 Sometimes she would take it as a half-hour here or there. Every staff member had a similar arrangement so that they could do it at their own discretion, take an hour here or there if they had time accrued but sometimes it would add up to one day or two days at most, but usually one day. It was in their contracts that the maximum number of hours that could accrue was 14 hours or two days within the space of a month. She also vetted and oversaw staff time-in-lieu and kept a really close eye on that. 89 She had never been asked by the current Committee to provide her timesheets. 90 Mr D'Astoli agreed that he signed off on, and approved, the time-in-lieu for Ms Angelovska when he was the Chairperson and he did not pass on to the incoming Committee the specific information that they had the obligation to approve that time-in-lieu, but he would have expected them to do so.

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91 Ms Petrakis said that she had never seen any of Ms Angelovska's timesheets or any request for time-in-lieu, she had only sighted her request for the annual leave in 2009. 92 Mr D'Astoli was also aware of the kinds of files that Ms Angelovska might have been taking home, for instance a funding application that might have been due in a couple of days. 93 He indicated that there would have been a number of occasions with different organisations when Ms Angelovska would be involved in working on submissions with them. He didn't remember any specifically with MAWA. He considered it quite normal for people to work with other organisations whether as partner organisations, or in his case, as an employee of the local Council, but also a member of the Committee of SGYS to work on a funding project or a funding submission to that organisation. 94 He also detailed the variety of funding agencies applicable to SGYS. He could not recall all of them, but said there were a large number of funding bodies. 95 He did not consider that Ms Angelovska was "working" for another organisation, as far as they were concerned she was working for them. 96 When asked about the large number of documents concerning MAWA that were on Ms Angelovska's can work computer and asked if he was aware of the extent of the work she was doing he indicated that it would depend on the content of those documents. He used his own work as an example and said that you would have found a number of folders relating to a number of different organisations with whom he worked and corresponded on a regular basis. He knew of at least one or two projects where Macedonian young people were a targeted group and were a shared targeted group in the sense of both MAWA and SGYS, and that would have been a clear reason for having a number of emails, phone calls and files, working in partnership with that organisation. 97 He also thought that in working with any organisation there was going to be a fair amount of correspondence, phone calls etc. From the Committee's perspective, they were not concerned at any particular point that the involvement Ms Angelovska had with MAWA was of concern in terms of her capacity and demonstrated work with SGYS. The extent of the MAWA work wasn't a concern to them because as far as they were concerned she was doing her job as the Manager of SGYS so what she did in her voluntary capacity with another organisation didn't unduly impact on them. 98 He went on to indicate that he would was not surprised that there was quite a lot of documentation considering the fact that she'd been involved with MAWA for over 10 years. He said he would be very surprised if it showed that it was all done in SGYS time. He would be extremely surprised if she could do the amount of work that she did for SGYS and do a significant amount of work for another organisation at the same time. 99 Mr D'Astoli indicated that he now worked the Department of Community Services, the Department of Human Services. He was no longer on any committees. He indicated that if he was found to be working on other community organisations when he was working for DOCS, "then the DOCS policy on things like reasonable personal use of electronic or mobile phone policy states the odd phone call, email, bits and pieces here and there, reasonable use. Reasonable use was perfectly within the policy".

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The meeting of 27 October 2009 113 Ms Angelovska deposed that the meeting commenced with Ms Petrakis making a general statement about the need to fill some gaps and that it was not anyone's fault and that no one was to blame. She then proceeded to raise a number of issues, including their proposal to Council for premises, use of consulting services, access to certain documents, financial reports, staff restructure, the AGM and finally, annual accountability. She recalled thinking that those items surprised her and she did not know why most of them were being raised this time. 114 She also noted that neither Ms Petrakis nor Ms Faraj were taking any minutes and when Ms Petrakis noticed that she was taking minutes, she actively discouraged her from doing so, saying words to the effect of "why don't you put down your pen, so that you may listen more clearly to what we are saying to you". Ms Angelovska told her that she was listening and wanted to have a clear record of what they were discussing. 115 Ms Angelovska deposed that whilst she was a little perplexed by their request for meeting at such short notice she did not sense any hostility from the invitation to the meeting. However, during the nearly two-hour meeting she said that she "felt under siege and offended on a number of occasions" especially when it was stated that she had not done anything on the Council building proposal since March 2009, which she felt was untrue. She also thought that Ms Petrakis was "critical, condescending and intimidating in her communication and manner". She was provided with little opportunity to properly respond to questions and statements and, in addition, felt that Ms Petrakis would not respond to her questions when she sought on a number of occasions to clarify items. 116 She also recalled taking "particular offence" to Ms Petrakis' claim that in future all directions from the Committee of Management must be followed, as this implied that she had failed to do so in the past and she felt strongly that this was untrue and not an accurate representation of her overall performance. Her performance was not raised during the meeting and no issue was tabled to suggest that she was not following directions or performing poorly. 117 Ms Petrakis deposed that during Ms Angelovska's annual leave urgent matters arose, and it was at this time that the Management Committee became aware that no one within the organisation could access hardcopy or electronic copies of important organisational documents. 118 She further deposed that during the meeting Ms Angelovska stated that she kept electronic files at home on an external hard drive, and had also given her sister a USB with organisational files that she should not have access to.

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121 Ms Faraj also indicated that Ms Angelovska had taken a longer break than usual and that normally the Team Leader acted up into the Manager's position and then they would take over the role of Manager, however that didn't quite happen this time that was why there was some gaps in information. 122 Ms Angelovska denied saying during the meeting that she had stored electronic files at home on an external hard drive. She also maintained there was no discussion about what was or wasn't on her computer at home. She said she did not say that she had given her sister a USB with organisational files that she should not have access to. The first time she saw the allegation of storing electronic files at home was in the termination letter on 22 December 2009. 123 Ms Angelovska acknowledged that she had a USB and had electronic copies of files on it. 124 Ms Petrakis deposed that it was also revealed during conversations in this meeting that Ms Angelovska had the only key that unlocked the SGYS filing cabinets where all documents were kept. Ms Petrakis deposed that this was in direct contradiction of the SGYS Policies and Procedures Manual. The Management Committee requested that she move all files so that they could be appropriately accessed. 125 Ms Angelovska denied that she had the keys to all of the filing cabinets where all documents were kept. The first time she had seen this allegation was in Ms Petrakis' witness statement. 126 She explained that there were approximately 9 filing cabinets in the SGYS office at Rockdale where she was based. Staff had access to organisational files to be able to do their work. Documents were kept in all of these filing cabinets with various staff having keys and access to them. There was a 'keys' register' that she had set up for this purpose. One of the filing cabinets was in her office and was known as the Manager's filing cabinet. It was in that cabinet that she kept confidential records, including Management Committee files, some confidential staff files, funding contracts and confidential recruitment files. She also kept other files on which she was working on a day-to-day basis in that cabinet. She acknowledged that she was the only one who had a key to that cabinet, but said that at no stage was it raised with her that this was contrary to the Policy and Procedures Manual. 127 In relation to the issue of the key to the cabinet in her offices she maintained that when this was raised during the meeting she said that it had never come up as an issue in the years that she had been the Manager and she had never been asked for access to the filing cabinet before. If they had needed access to the filing cabinet then she could have made keys available to pick up from home through her sister. They told her they wanted to have a copy of the key for emergencies as a backup because of what had apparently happened while she was away on leave. However the organisation had been in touch with her on other matters while she was on annual leave.

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The Meeting of 10 November 2009 134 Ms Angelovska deposed that at the commencement of the meeting she stated that she had some serious concerns about the process in which the previous meeting was conducted and particularly the notes of the meeting which contained a number of issues with which she disagreed. She then deposed as to the following discussion taking place with words to the effect of: Ms Angelovska: I need to let you know that I have concerns about the nature of our previous meeting. I think there were a number of mistakes in the notes which you produced of that meeting. I had prepared my own minutes and I'd like to issue those today...... Ms Faraj: Val, that's inappropriate. The meeting was a friendly chat. As Vicki said in the meeting, "no one is to blame". So, I think it's inappropriate for you to have your own minutes. Ms Angelovska: I am just worried that your notes had a series of errors and did not reflect what I thought had occurred at our last meeting..... and also I have concerns about the way I was spoken to at the last meeting Ms Faraj: I have no time to listen to this! I'm really busy and I have kids you know! ! Ms Angelovska: I'm wondering if this is about my performance and not some so-called "gaps". If this is about my performance then you need to formally inform me, so that I may get some representation. In addition, you need to also inform you of what I'm alleged to have done Ms Petrakis: Do you want this to be about your performance? Ms Faraj: These are friendly chats Val! It's not about your performance. Stop over reacting... now let's move on. 135 Ms Faraj did not agree with Ms Angelovska's account of that conversation and considered that she "put words in my mouth." However Ms Faraj agreed that at some stage she was told that this wasn't a disciplinary matter in response to her raising that. 136 Ms Angelovska maintained that after this discussion she felt "restricted" in what she could say, especially if she was taking a different position. She thought that she was being "railroaded" and that her concerns were being "devalued". Also, as the meeting progressed, she realised that it did not appear to be about the restructure as she had originally been told, she realised that Ms Petrakis was going through items of the last meeting and checking on their progress to date.

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140 Ms Faraj indicated that most of the meeting was "consumed" by Ms Angelovska's disagreement with the minutes that were taken and she spent all her time arguing about how that meeting was recorded rather than following through on some of the things that they were asking. 141 Both Ms Petrakis and Ms Faraj deposed that it was evident that Ms Angelovska did not follow the direction of the Management Committee, including the matter of access to organisational files. They relied on the evidence for this as being contained in Ms Petrakis's minutes of the meeting. Those minutes indicated inter alia the following: 2. Consultant Services: ACTION: .... STATUS: Partially completed ......This needs completion by the end of the week (Is by Friday 13th November) 3. Keys and access to important documents. ACTION: Vale to organise files into a secure and accessible area, possibly behind front reception. The spare key to Vale's filing cabinet to be given to management committee member (or delegated staff member), so that when Vale is not in the office, important documents can be accessed. STATUS: Not completed. Vale has assured Mariam and Vicki that this will be completed by Friday 13th November 2009. 4. Financial reports ....................... 5. Staff Structure ACTION: Vale to circulate current organisational structure. Mariam and Vicki will meet with Vale on Tuesday 10th November 2009, to review proposed new structure ready for presentation to management committee STATUS : Not completed. Current structure not circulated until 1.30 pm Tuesday 10th of November 2009. Draft proposal involved only request to recruit two vacancies and not proposed savings/changes to structure as a result of no consultant, changes to workload in admin etc. Vale to provide draft proposal to Vicki and Mariam by close of business (4.30 pm), Monday 16th November 2009 6. Annual Report and AGM ACTION: Vale to circulate proposed dates for completion of annual report and time for AGM STATUS: not completed. Vale to finalise dates for Annual Report completion and AGM by end of week (i.e. by Friday, 13th November 2009). 7. Annual Accountability ACTION: Vale to provide table of programs and progress on reporting to funding bodies by next meeting with Mariam and Vicki. STATUS: Not completed. Vale had indicated she had the document but couldn't locate it on her drive. Vale to forward by close of business (i.e. 4:30 pm Tuesday, 10th November 2009). Based on completion of the above tasks, the Committee will work through proposals and schedule next meeting. Vale will be notified of when the meeting will occur.

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Based on completion of the above tasks, the Committee will work through proposals and schedule next meeting. Vale will be notified of when the meeting will occur. 160 On 23 November, Ms Angelovska received an email from Ms Petrakis which also attached the "Items for Action" list. She noted that it was also sent to all Committee members and felt that it portrayed her in a "negative light" and was "patronising to her". She considered that Ms Petrakis made an "inappropriate comment" that she felt her next meeting was more important than finishing the meeting with them. She had not said anything of the kind. She forwarded the email to her Union asking for assistance. 161 When she received Ms Petrakis' notes of the meeting she was again concerned about the "negative and critical wording" and about the additional items and tasks which appeared in the notes and which were not discussed. She also considered that even though she had completed all the tasks from the previous meetings, she was still being criticised and portrayed negatively to other Committee members. 162 After reading and discussing the "Items for Action" list with the ASU she found the first few items concerning her working conditions to be totally unreasonable in that she was being instructed to change the industrial conditions under which she had been working since her commencement in 2000. She considered that she did not have clear information of what was required in many of the items. She also considered that the deadlines for most of the items were unreasonable and impossible with the resources and instructions provided and also considering that the information she needed to get the tasks done was being held back from her. This was also a busy time when she was preparing for the AGM and the end of year period 163 In relation to the email exchange between Ms Angelovska and Ms Petrakis concerning the "Items for Action" list (see Background and Chronology), Ms Angelovska deposed that she believed that Ms Petrakis' email response of 25 November could not have been endorsed by other Committee members as she knew they were not in their office that afternoon and she was concerned that it was going against SGYS decision-making policy. She again considered that the email was misrepresenting events to other Committee members. The email mentioned that she had been supported by being allowed time off to attend conferences, but she had not been to any conferences at all. Further she was shocked at the statement by Ms Petrakis that the "Items for Action" had been on the agenda of Management Committee meetings for some length of time. She had been to all Committee meetings and had not heard or seen any of these "Items for Action" discussed at any of those meetings nor had she seen any minutes of such discussion. 164 Ms Angelovska maintained that following the meeting she continued to work on commencing what new tasks she could do at that point (giving examples), and said that this was on top of a busy week where she was coordinating the AGM on behalf of the organisation. 165 Ms Angelovska did not agree that in relation to the "Items for Action" concerning hours of work, that the Committee were making it clear what hours of work she could do and when, or what processes she would have to follow to have extra time approved. This was given to her on the 20 November two weeks before her suspension. Based on the advice that the Union gave her, it was not a reasonable instruction and she told the Committee she would need to continue working as normal and in the meantime get advice from her Union to make a response. She said that she and the Union felt that those items were directly in contradiction to her contract of employment and the good conditions of employment that she had had for the last five years.

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186 Ms Petrakis said that when they suspended Ms Angelovska they expected that she would take the time away to reflect on her behaviour and they hoped that she would come back and apologise and then they could move forward. The purpose of the meetings and the actions they required was to progress the Service forward. There were issues of concern that had been discussed at previous Committee meetings and they were now becoming pressing and they wanted action on them. They did not consider that the suspension was a disciplinary process. It was a strategy to help her work in line with the organisation. 187 Ms Angelovska deposed that at approximately 4.50 pm on Friday 4 December 2009, she had a "surprise visit" from Ms Petrakis and Ms Faraj who handed her the letter of suspension dated 4 December 2009. The letter was not discussed with her and she was only told that the Committee had asked them to give the letter to her. She had no idea why this was occurring and it came as a complete surprise to her. She had had a full day of meetings and activities. 188 Ms Angelovska was shocked at the situation and both Ms Petrakis and Ms Faraj stood over her in the office while she was sitting at her desk. 189 Ms Angelovska deposed that she asked them what was going on and what behaviour was disrupting the workplace and endangering the health and safety of staff and what instructions she wasn't following. Ms Petrakis told her to just give her the keys. Ms Angelovska indicated that she didn't understand what was going on and needed to ring her Union and ask about it and wasn't sure if what they were doing was right and what she should do. Ms Petrakis told her that she could ring the Union in her own time and that she needed to leave right now and then told Ms Faraj to ring the police. 190 After a quick phone call to her Union, during which she could hear Ms Faraj talking to what appeared to be the Police on another phone, she gave Ms Petrakis her keys, her mobile phone and the internet banking token. She did not have time to look for any personal things or take any personal belongings with her. She indicated in oral evidence that she still had not had her own property returned to her.

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224 In cross-examination she was referred to an extract of the SGYS Policies and Procedures Manual - "Staff Files" (see Background and Chronology above), but said that that was part of the induction and orientation policies for new staff. She believed that that the 'staff files' that this policy referred to were the staff files that were kept permanently in the administration filing cabinet and they did not get removed out of the office at all. 225 She said that they were individual staff files that were commenced when an employee started. They contained the employee record form, tax declaration, their appointment letter and things like that from when they first started. Leave applications were just filed with timesheets and they were not kept in those files. She had different files for performance appraisals and those were kept in the Manager's filing cabinet. There were also other staff who would keep the relevant performance appraisals of the staff they were supervising. 226 Ms Angelovska considered the reasons given for her dismissal to be unfair, unjust and unreasonable. She had adequately addressed the concerns contained in the 15 December letter from Ms Petrakis via her letter of response of 18 December. She considered that the Committee did not consider this response in deciding to dismiss her and that it was unfair that new allegations were added to the dismissal letter for the first time without providing her with a chance to address them prior to her dismissal. She was also not provided with the alleged evidence relied on in relation to the allegations concerning her involvement with MAWA prior to her dismissal. 227 Ms Angelovska said in cross examination that she was not provided with the specific evidence referred to in the letter of termination. She was not given the actual copies of the tender documents that were being relied on. She acknowledged that she did not ask for a copy at that point because she thought it would be adequate to say what was true. What she said was that she did not copy and amend tenders and that was a true answer.

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257 Ms Faraj confirmed that there were at least three or four staff members that mentioned that there were MAWA staff that met with Ms Angelovska at the Service. They said it was frequent and happening over a long period of time. They did not give any indication of the time that was involved and she did not ask them about that. She acknowledged that she did not know whether it was someone dropping in to say hello as they were passing or staying for half an hour or an hour. She would not be able to say accurately or what the nature of the meetings were. 258 During November 2009 Mr Dangas and the staff contacted the Management Committee and raised a number of grievances including the amount of time and resources Ms Angelovska was using to undertake work for MAWA. 259 Ms Roberto deposed that she had also previously worked at the St George Migrant Resource Centre (where MAWA is based) and was familiar with, and had contact with MAWA staff. 260 Part of her duties as Administration Officer at SGYS was to answer phone calls and "Meet and Greet". She deposed that over the five years of working for SGYS it always a concern to her as to the number of phone calls for Ms Angelovska from MAWA staff. She listed five Christian names of such staff with whom she was familiar. Ms Angelovska also received visits on SGYS premises from MAWA staff. She also deposed that on many, many occasions when she received calls from MAWA staff, Ms Angelovska would call them back, however this involved using the cordless phone and she would make the calls in a private room. Similarly when she received visitors from MAWA staff they would either be ushered into a private room or she would deal with them downstairs. 261 Ms Roberto deposed that, "either way it was MAWA matters on SGYS time". She was also aware that Ms Angelovska photocopied MAWA paperwork. She also observed her making visits to the St George Migrant Resource Centre during SGYS work time and her observation was that these visits usually occurred after several phone calls from MAWA. 262 She further deposed that she had considered raising the issue of her concerns about Ms Angelovska's "second job" with the Management Committee however she did not believe that was possible. She maintained that Ms Angelovska denied staff any direct line of contact with management. She had directed staff to make any complaints/grievances to her and then, if needed, she would bring it to management's attention. This was a very difficult situation especially as many of her grievances related to Ms Angelovska herself. Furthermore she deposed that she did not trust some of the earlier Management Committee members and was unsure of the "agendas" of some of the others.

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263 Ms Nedelkovska deposed that on many occasions since she commenced with SGYS she had answered phone calls from MAWA staff wanting to speak to Ms Angelovska. (She gave the name of one of those persons) She was always under the impression that these phone calls related to Ms Angelovska's community work and her role with SGYS. 264 In 2007 Ms Angelovska and Ms Nedelkovska ran an information session targeting Macedonians who were parenting teenagers. This was a partnership between SGYS and MAWA. They both delivered the information session with MAWA translating the flyer and advertising the information session. 265 Ms Gravche deposed that around the middle of September 2009 she was told that Nicole Scobie (whom she knew as a consultant for SGYS) was working on a submission application for a Grant from the Drinkwise government initiative for MAWA. Ms Gravche had herself previously applied for this grant for SGYS, at around the same time as Ms Scobie was working on this initiative. 266 She also deposed that she was instructed by Ms Angelovska to help Ms Scobie with any information that she had from her own submission. Her contributions/help towards the submission was supplying Ms Scobie with cultural and ethno-specific information regarding the Macedonian culture for the purpose of the application, which was conducted on the premises of SGYS at around the same time (that is the middle of September 2009). Ms Scobie had also frequented their Service and was sharing/using Ms Gravche's computer. 267 Ms Scobie confirmed that she was contacted by Ms Angelovska in September 2009 regarding her interest and availability to undertake paid work for MAWA to write an application for funding under the Department of Health and Ageing. A decision still had to be made by their management committee however. Ms Scobie told her that she would be interested and that her contact details should be passed onto the MAWA Secretary. 268 She was subsequently contacted the following week by Dragana Bozinovski from MAWA to ask if she would be available and interested to do this submission and they spent some time discussing project ideas. However Ms Scobie maintained that the submission she was to work on was not the Drinkwise government initiative as stated by Ms Gravche. The submission she was writing for was the "National Binge Drinking Strategy - Community Level Initiative" funded by the Department of Health and Ageing. She was subsequently forwarded similar projects that MAWA had written in the past to provide her with requisite background information. 269 Three days later after this contact she met with Ms Bozinovzki at the St George Migrant Resource Centre to discuss the draft submission she had written and the attachments that were required. She also had a meeting that same day with Ms Gravche from SGYS to assist her with the community development project that she was currently working on. This was done as part of Ms Scobie's role with SGYS. Ms Gravche was aware that Ms Scobie was working on a submission for MAWA and offered her help if needed. She told her it was fine but that she may need some clarification on the 'culture of drinking' in the Macedonian community from another perspective, specifically regarding the 'homebrew' and whether that was the correct name. They discussed this issue for about 5 minutes.

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270 Ms Scobie deposed that at no time was she ever aware that Ms Angelovska had asked Ms Gravche to assist her with that application for funding. 271 Ms Angelovska confirmed that the grant Ms Scobie was working on was a submission for funding from the Department of Health and Ageing. She denied instructing Ms Gravche to help Ms Scobie with information from her submission. She also denied instructing her to supply Ms Scobie with cultural and ethno-specific information concerning Macedonian culture nor to use the SGYS premises this purpose. 272 She deposed that Ms Gravche was not working on a submission for that same funding. The submission that she referred to was 'Drinkwise Australia - Building Safer Drinking Cultures Innovation Grants' and this was an alcohol industry-based initiative not a government initiative. Furthermore it was not undertaken around the same time as the MAWA submission worked on by Ms Scobie. Ms Gravche completed a draft submission for Drinkwise as per her instructions, prior to the deadline of 11 September 2009 and Ms Angelovska edited, completed and emailed the submission that same day to the funding body. 273 Mr D'Astoli deposed that during his 8 years experience he recalled that there were very few occasions where there was potential for competition between SGYS and another local agency for the same funding opportunity. In these events the issue was discussed by the SGYS Management Committee with a view to negotiating a collaborative or mutually agreeable approach. Of those few occasions he could not recall any that resulted in an unsatisfactory outcome for SGYS. 274 Ms Angelovska deposed that she was never advised of the concerns expressed by Mr Dangas, Ms Pedone, Ms Roberto, Ms Nedelkovska or Ms Gravche about her involvement with MAWA. She did not believe the calls made to her from MAWA were of a continuous high-frequency as alleged and she told them on many occasions not to contact her whilst at work unless it was an emergency. However there were times when they did still contact her or attempt to contact her. She was never informed by either Ms Pedone or Mr Dangas of any "continued interruptions" regarding these calls. She would most often make calls to MAWA either on her break, during time-in-lieu or in her other own time. 275 She rejected the claim that she denied any staff any direct line of contact with Management. She said that Ms Roberto had contact with various Management Committee members when she would "meet and greet" them when they came for meetings or when she would take calls from them. Ms Roberto was also the staff member who updated the SGYS telephone number directory which included Management Committee contacts. Ms Angelovska had also distributed this directory to all staff in 2009 after it was updated and kept a copy on her desk for regular usage. 276 Further, staff should have been aware that any complaint about her could be made directly to the Committee in line with the SGYS grievance policy. The policy manual was provided to each staff member to read at the commencement of their employment and ask questions, and the process was communicated to staff in other ways from time to time.

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Emails sent to and from MAWA 299 Mr Dangas also deposed that he discovered a number of emails on Ms Angelovska's computer relating to MAWA. On accessing those emails it was evident to him that Ms Angelovska was doing this during work time. He attached copies of those emails to his witness statement (Exhibit 16-G). 300 Ms Angelovska was not aware of any email or Internet policy of SGYS which permitted management to look at an employee's email account. As Manager she did not, and would never, read the emails of employees without having their permission. 301 She was not shown any of the emails that Mr Dangas had annexed to his witness statement before she was dismissed. If she had been she would have explained that a number of the emails referred to were done as part of her SGYS role. Other emails were initiated to her by MAWA where she had made no reply and only a couple were brief emails that she sent to MAWA. She had also stated on two of those emails to MAWA not to use the SGYS email for MAWA correspondence and to email her instead at the MAWA email address. If a document was created by MAWA staff and emailed to her than her usual practice was to save that to the SGYS computer and then save it on a USB so that she could take it home to work on. 302 Ms Angelovska was taken to certain emails (9 November 2009 3:12 PM), she indicated that it was an email from Tatjana who was the manager of MAWA. She would have read the email as it was a quick email to read but couldn't remember what she did with it afterwards. Someone sent the email to her Manager's email address. There were very occasionally emails sent to the Manager's email address because she did have a MAWA address so there weren't many occasions for people to send her emails. There were a few emails sent whilst she had been on annual leave in October and for some reason at that time she got a couple of emails sent from MAWA to the Manager's email address. 303 She said that it was easier to send a two-second email to her MAWA email address, when someone had already sent that email to her Manager's email address. She just forwarded it to herself at MAWA. She had told people at MAWA not to send emails or text messages to her SGYS account or phone but they still did that at various times especially when there were urgent things going on and people were panicking. That was the same when people would call her at the office when there were emergencies on. 304 She went on to say that if she got an urgent enquiry from MAWA to do something, she addressed it urgently if she had the time and wasn't doing anything else and it was something quick. She was not able to establish whether or not she did it in time that she recorded on her time sheets as time worked for SGYS as she did not have access to those records. She mostly used the MAWA email address and forwarded it to that so she could access it from her home computer. 305 She acknowledged that she could have on her home computer the records of whatever it was that the computer had received/sent relating to MAWA and that even if it had been deleted it would be retrievable. She could have had a computer expert look at her home computer and she could have refuted these issues and she had had six months to do so. She acknowledged this, but said that she did not think that it was a big deal because it was a small number of emails that were sent to her work email address and most of them were forwarded straight away to her MAWA email address without her spending any time on them.

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314 Ms Angelovska denied that the funding applications were copies of each other and said that they were from 2006. As an experienced funding submission writer of over 20 years she was aware that funding bodies typically used the same pro-forma for a grants application and they asked the same questions to be answered of any applicant. She deposed that that explained the similar format of the documents. 315 Ms Angelovska indicated in cross examination that the Community Fund application form came from Rockdale Council and was a standard form that all organisations used. The headings and questions were standard and most times they had a word limit as well, usually one could not go outside of the boxes very much, so the length of space would be the same for everyone. 316 When taken to a comparison between the two documents and the actual wording she was asked whether she thought that they were .. "in all respects the same except for the number of services", she responded that she did not consider they were the same, they referred to different groups. Her name and contact were there because she was on the board (of MAWA). She thought that having the phone number there was a mistake that she made because there was a phone number at MAWA but because she was at work all the time that was the common phone number that she used. 317 She acknowledged that the applications were for the same funds but did not believe that the MAWA application was in direct competition to the SGYS application because MAWA had been in existence for many more years than SGYS and they had been getting funds from Rockdale Council prior to SGYS obtaining funds. The organisations were not seeking the funds for the same type of service. 318 She went on to indicate that they were both different types of services that they were seeking to provide in the funding proposals. One was of a research project specifically for Macedonian families and young people to print a research project, and the SGYS one was to provide group work activities for disadvantaged young people from all cultures who were at risk of dropping out of school. 319 She acknowledged that both tenders were looking for funding for youth from the one bucket of money. However she did not believe they were competing for the same funds, although it was from the same pool of money, because both of the organisations had been obtaining funds from Rockdale Council each year. 320 She acknowledged that she did put in an application for funds for SGYS from the same fund that she put in a competing application for MAWA but did not agree that they were competing applications because the funding body looked at organisations separately and they looked at ethnic specific services differently to youth organisations.

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350 She acknowledged that she was not given permission by anyone at SGYS to do this sort of thing on behalf of MAWA during her work time and knew that she was not supposed to do that. She said that Ms Angelovska sometimes said to her that she should send it to her private email but Ms Vo just opened her email and saw it and thought it was just convenient to forward it to her at SGYS because it took only one or two seconds so she did that and went back to her normal tasks. Ms Angelovska also said to her to be aware that she still had to perform her work and don't do anything and she never did she only forwarded email. She also said Ms Angelovska said to her "don't do it in case other staff assume you're doing work for MAWA", but she never did that. Submissions on behalf of the Applicant 351 Mr Slevin on behalf of the ASU and Ms Angelovska made oral submissions in addition to the detailed written submissions as filed (Exhibit 18) and indicated that orders of reinstatement, lost remuneration and continuity of service were sought. 352 Mr Slevin detailed the relevant background and context to Ms Angelovska's employment at SGYS as well as her relevant experience and qualifications and in so doing took the Commission to the evidence relied upon. 353 It was submitted that during Ms Angelovska's employment she was highly regarded by the organisation and was not the subject of any warnings or other disciplinary action. This was confirmed by the evidence of Mr D'Astoli, the former Chairperson and Ms Scobie formerly on the Management Committee and who had also worked with her in various capacities during her employment period. A letter from the Executive of SYS in early 2006 also confirmed and acknowledged her work. The Chairperson's 2008 report also acknowledged her work: "very special thanks to the Service's Manager who 'kept it all together'. Valentina not only maintained the infrastructure and management of the service during a challenging time, but worked tirelessly to secure alternate premises." 354 Further the consultant's Report from the Strategic Planning Day in July 2009 included the following observations - "Highly skilled and committed manager". An assessment that Ms Faraj agreed with during cross examination. The Chairperson's 2009 report also included the following: Many of us are new members and it has been a steep learning curve. Thank you to both our Manager Valentina Angelovska, and all the staff for their flexibility, openness to change and hard work. 355 It was submitted that on the 22 December 2009, following correspondence with Ms Angelovska's Union in December about the suspension, she was summarily dismissed by the Committee of Management with the reason for the dismissal was given as serious and wilful misconduct. The Committee did not meet together to make the decision and the decision was made in a number of phone calls between Committee members. A process described by Ms Faraj, one of those members, during re-examination, as "unusual". Further the Committee did not meet with Ms Angelovska. 356 It was contended that her dismissal was harsh, unreasonable and unjust. Specifically it was: · unjust as she was not guilty of serious and wilful misconduct; · unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer; · unjust because the employer failed to follow its own disciplinary procedure; · unreasonable because the employer failed to give Ms Angelovska the details of allegations made against her or a proper opportunity to respond to them; and · harsh as the employer failed to take into account the consequences for her personal and economic situation. 357 Mr Slevin took the Commission to the relevant provisions of s.88 of the Act. He relied on Byrne v Australian Airlines (1995) 185 CLR 410 and the High Court's consideration of the meaning of the expression 'harsh, unjust or unreasonable'. 358 It was submitted that the principles applying to unfair dismissal proceedings in circumstances of alleged serious misconduct were summarised in the decision of Sams DP in New South Wales Fire Brigade Employees' Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440. The Commission's attention was drawn to the 4 questions posed by Sams DP in relation to a consideration of misconduct. Further, in Natoli Sams DP also indicated that the summary dismissal of an employee for misconduct could have serious and sometimes long term implications for an employee.

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364 Mr Slevin submitted that, regardless of any finding by the Commission as to the accuracy of Ms Petrakis' notes, on their face they did not indicate anything more than meetings to deal with day-to-day type issues. 365 It was contended that in cross examination both Ms Petrakis and Ms Faraj said the purpose of the suspension of Ms Angelovska on the 4 December was to give her some time away from the Centre to reflect on what she had done in the hope that she would apologise, however both witnesses conceded that she was never told this. 366 It appeared from the evidence of Mr Dangas, who was appointed Acting Manager, that there was an "ad hoc process" initiated as soon as the suspension occurred and occurring over December 2009, January, February March and April 2010 involving an inspections of the Ms Angelovska's computer, her email account and her mobile phone. In doing so documents relating to MAWA were discovered. Mr Dangas provided Ms Petrakis and Ms Faraj with these documents as they were requested but he could not say when documents were provided and in what form. 367 The ASU sought clarification and specifics of the reasons for the suspension (4 December) but the 15 December letter from Ms Petrakis did not respond to this request for particulars and raised four additional matters and required a response by 21 December 2009. 368 The Commission was taken to the ASU's correspondence in reply and Ms Angelovska's own written response to the Committee in some detail. 369 Over the weekend of 19 and 20 December 2009 there were a number of phone calls between the members of the Management Committee and these calls resulted in Ms Angelovska being dismissed by way of the letter of 21 December 2009 also forwarded to the ASU. 370 It was submitted that the reasons for dismissal were set out in the letter of termination, however Mr Godfrey representing SGYS, contended contrary to that letter, that the sole reason for the termination was the Ms Angelovska's involvement with MAWA and told the Commission that the matters raised before the suspension had nothing to do with the termination. 371 It was submitted that the details of the allegations about Ms Angelovska's involvement with MAWA were not raised with her prior to her dismissal. The first reference of any concern was raised in the "Items for Action" document provided to her on the 20 November 2009. She responded to this allegation before she was suspended by requesting details of the allegation. None were provided. 372 The allegation was made again, after Ms Angelovska was suspended, in the letter of 15 December 2009 and references were made in that letter to "evidence" that she had used SGYS time and resources to support MAWA and "evidence" that she had been copying and amending tenders written for SYS to submit on behalf of MAWA. The "evidence" relied upon was not supplied to Ms Angelovska. 373 It was submitted that Ms Angelovska did however respond by informing the Committee that she had been given permission to do work for MAWA by previous Committees. She also denied the allegation that she had been copying tenders. 374 In the termination letter the Committee's conclusions about the MAWA allegations were stated as: Point 3. While you may have informed the Board of Management that you were a volunteer with MWA, you were not given any approval to use work time and resources to support MWA. We have evidence including emails that clearly show that you have used St George Youth Services time and resources to conduct work for MWA.

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Point 4. Your comments in regard to MWA are not relevant to you taking and using documents which are clearly the legal property of St George Youth Services, and you had no authority to do so. Using SGYS documents by changing the name and details to MWA is clearly misappropriation of SGYS property. 375 It was submitted that it was not until the evidence was filed in these proceedings that any "evidence" about Ms Angelovska's role with MAWA was made available to her. The Commission was taken to that evidence which was summarised as being: · Print outs of computer screens showing documents which have MAWA in the title found on her work computer; · Community Development Fund submissions for SGYS and MAWA; · A funding application from MAWA to Kogarah Council; · A document which set out a work plan for a MAWA employee which was on the her computer; · Financial records relating to MAWA which were on the Applicant's SYS computer. (Annexure F to Mr Dangas' Affidavit) · Emails to and from MAWA which were sent or received on her SGYS email account; · Text messages on her SGYS work phone; and, · Evidence from staff members about observations they had made about the her phone contact and occasional personnel contact with MAWA staff and volunteers whilst at SGYS. 376 It was submitted that Ms Angelovska had responded to this evidence in her witness statement in reply in which she repeated her response from the letter of 18 December 2009 that she had had permission from the Committee to be involved in MAWA. So much was confirmed by Mr D'Astoli, the former long time chairperson of SGYS, and Ms Scobie. In her oral evidence Ms Petrakis gave evidence that she checked the minutes for confirmation of any permission, but only went back to 2007 and did not make reference to Mr D'Astoli or anyone else who could have provided her with information about that approval. 377 In relation to the "evidence" of Ms Angelovska's activity on behalf of MAWA it was submitted that that evidence did not substantiate the reasons given in the termination letter. There was no evidence before the Commission that would lead to a conclusion that she "was not given any approval to use work time and resources to support MWA". To the contrary the evidence was that she was given such approval. There was also no evidence to support the allegation that she was "using SGYS documents by changing the name and details to MWA" which was said to be "clearly misappropriation of SGYS property".

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378 It was submitted that the print-outs of computer screens showing documents in a folder bearing the name MAWA were not probative of anything other than that at the time the print-outs were made the documents were on the computer. They did not show, as the allegation appeared to be, that Ms Angelovska was spending vast amounts of time using the SGYS computer to write documents and submissions on behalf of MAWA. This was conceded by Ms Petrakis in cross examination when she agreed that she was mistaken about what the print-outs meant. 379 It was submitted that the presence of MAWA documents on the SGYS computer was explained by Ms Angelovska who described her practice of saving documents that she was sent to the hard drive so that she could then email them to her MAWA email account which she accessed at home. Any work on those documents was done by her at her home. 380 Submissions were made in rebuttal about the specific documentation relied on by the respondent and in so doing the Commission taken to the relevant evidence, which may be summarised as follows: · The Community Development Fund submissions for SGS and MAWA did not demonstrate anything other than that submissions made funding bodies for moneys were made in a standard format. The substance of the two documents were completely different. It was only the format that was the same. · The presence of the funding application from MAWA to Kogarah Council on the SGYS computer was explained by Ms Angelovska's practice of saving documents she was sent onto the hard drive of the computer so that she could email them to her MAWA account to work on at home. · The presence of the document which set out a work plan for a MAWA employee was also explained by this practice. · Ms Angelovska explained that the MAWA financial records on the computer were documents contained in a ZIP file which she emailed to herself at home. The suggestion that she worked on these documents on the SGYS computer was also refuted by the fact that the majority of these files were MYOB files and that computer did not have the necessary software to open those files. · As to the emails to and from MAWA which were sent or received on Ms Angelovska's email account there were only 8 emails from MAWA addresses and only 9 emails to MAWA included in the bundle. The times they were sent was dealt with by Mr Slevin. It was noteworthy that in the email exchange on 17 November 2009 with Dragna Bozinovski, Ms Angelovska asked that her MAWA address be used for MAWA business. · Similarly there were very few text messages to MAWA people on her SGYS work phone. It was noteworthy that most of these messages were out of work hours. Further, the evidence was that Ms Angelovska's SGYS phone was provided as a benefit of employment and that she was permitted to use the phone for reasonable personal use. 381 It was submitted that the affidavits of the staff who deposed as to witnessing Ms Angelovska communicating with MAWA people during the day were vague and unreliable and some of those witnesses deposed as to the content of conversations made in other rooms. No evidence was provided of phone records that could give this evidence some specificity and reliability. Such records would be available to SGYS, but were neither sought or obtained prior to the dismissal. Further no such evidence had been provided to the Commission.

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384 It was contended that the employer drew inferences from the material that led to a conclusion that Ms Angelovska had inappropriately used SGYS resources to assist MAWA but those inferences were not available on the so called "evidence". None of the material presented lead to a conclusion that she did anything beyond what she was authorised to do by the former Committee. 385 Mr Slevin submitted in summary that the evidence did not make out the two allegations in the termination letter about Ms Angelovska's involvement with MAWA. The first allegation about not having approval to use work time and resources to support MAWA was not made out on the evidence of both Ms Angelovska and Mr D'Astoli, the former Chairperson. She did have authority and she did nothing that was outside the authority given. The second allegation about taking and using documents which were property of SGYS was also simply not made out. She did not take or use property or documents by changing the name and details to MWA. 386 It was also submitted that it was curious that an allegation would be made against a worker in the social and community services sector that they have done something wrong by being involved in a voluntary capacity with another organisation in the sector. It was noteworthy that every witness that gave evidence had some involvement in another organisation and sometimes spent time doing tasks associated with that other organisation during their working day. The allegation itself demonstrated a double standard by the Management Committee and unequal treatment of the Applicant vis a vis other employees. 387 Whilst it appeared during proceedings that the other two matters referred to in the termination letter had apparently been abandoned as reasons for the dismissal (Points 1 and 2), Mr Slevin pointed out that the evidence showed that the direction issued on the 20 November did not include a direction about taking organisational files home. Further Ms Angelovska had always returned files and there was no policy on removing organisational files. 388 It was also submitted in relation to the other allegation in the termination letter that the Ms Angelovska had acted contrary to the directions of her employer regarding working from home and storing matters on a private computer drive, that it was unclear what directions were referred to in that allegation. There was a direction in Ms Petrakis's notes of the 20 November meeting as set out in the 'Items for Action', concerning working from home and that was that she should not work from home after 23/11/09. There was no evidence that she had worked from home after this date. The evidence of Ms Angelovska, Mr D'Astoli and Ms Scobie was that she had authority from the Management Committee to work from home. 389 Mr Slevin further pointed out that SGYS also had a "Working from Home" policy and took the Commission to the relevant extract (Exhibit 3-MFI24-p.13). 390 The allegation of removing electronic copies of files was also raised in the letter of 15 December 2009 and Ms Angelovska responded in the 18 December explaining that: she was unaware of what files were being referred to; she had taken documents home to work on; and copies of all documents she had were on the Manager' computer at SGYS. 391 The question of the storage of files on an electronic drive was also explained in Ms Angelovska's oral evidence as being the means by which she would transport information to allow her to work at home. This was consistent with evidence of Mr D'Astoli that working from home became more efficient with the advancement of office technology. 392 Mr Slevin submitted that the attempts by the employer during the proceedings to suggest that there was some breach of SGYS policy and procedures was misplaced. There were no particulars nor evidence of such a breach and there was nothing done by Ms Angelovska that could be said to have contravened the SGYS policies. 393 The two suggested breaches were summarised as follows: · Taking documents away from the SGYS Office which was said to be in contravention of the procedures relating to induction and orientation. However whilst the Induction & Orientation Policy refers to documents not being removed, those documents were of a specific class - staff files. The Commission was then taken to the relevant extract of the Policy. Ms Angelovska explained in her evidence that she had three files at the time of her suspension, they were not staff personnel files and they were returned by the ASU. · Breaching the Code of Ethics. Again no particulars are given of the breach and there is nothing in the evidence that would suggest that Ms Angelovska did anything in contravention of that policy. 394 In summary it was submitted that, based on the evidence, it had not been established that Ms Angelovska was guilty of the alleged serious and wilful misconduct. Consequently, the dismissal was unjust. 395 Mr Slevin also made submission about procedural fairness and took the Commission in some detail to the SGYS Grievance & Disciplinary Procedure, as referred to in Ms Angelovska's contract of employment and in particular 'Step 6 - Termination', as well as the provisions relating to summary dismissal. 396 It was submitted that it was quite clear from the evidence that this procedure was not followed when Ms Angelovska was terminated and so much was conceded by Ms Petrakis and Ms Faraj in cross examination. Thus it was unjust for the employer to act contrary to its procedures and contrary to the Ms Angelovska's contract of employment. 397 Further it was raised for the first time by Mr Dangas in his evidence that there were Grievance reports provided by staff members during December 2009 concerning Ms Angelovska. However he did not say how many or what they were about and confirmed that they were not raised with the her. The SGYS Policy manual included a Grievance procedure and that policy was not followed either. 398 In relation to procedural fairness reliance was placed on the principle enunciated in Byrne v Australian Airlines (1995) 185 CLR 410. This principle is expressed in s.88(b) of the Act and has also been considered by Full Benches of the Commission (see particularly Antonakopoulos v State Bank of NSW (1999) 91 IR 385). 399 It was submitted that Antonakopoulos was particularly apposite in the present case. Ms Angelovska was not given the opportunity to see the evidence against her in relation to the allegation about her work for MAWA and had she been given that chance she could have provided the explanations that she provided in these proceedings. There were innocent and appropriate explanations for the perceived misconduct. Some of which were foreshadowed in the correspondence of 18 December 2009. The full explanations could have been given if full particulars and evidence of the allegations had been provided. It was unreasonable for the employer to act as it did. 400 Mr Slevin also submitted that the dismissal was harsh on the basis that Ms Angelovska had worked at SGYS for 10 years; she had worked with the Management Committee to build the service from a $600 per annum operation to an organisation with a budget of over $800,000 and was a very committed employee. To be treated in the way she was treated being accused of serious and wilful misconduct and denied the opportunity to properly respond to allegations was harsh.

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402 Reliance was also placed on decisions of the Commission as currently constituted in Harley Bell v Linfox [2006] NSWIRComm 1025, Janaki Kasippillai and St Joseph's Village Limited [2006] NSWIRComm 1069, Sharma v Sydney South West Area Health Service [2006] NSWIRComm 1157 and Australian Services Union of N.S.W. v Sydney Water Corporation [2008] NSWIRComm 1064 where in each case it was found that the misconduct alleged did not take place and that in those circumstances to not order reinstatement would be to visit further injustice on the applicant/s concerned. 403 It was submitted that the reasoning in those cases applied equally to the current case. Allegations of misconduct were made against Ms Angelovska and the serious sanction of summary dismissal used. Her reputation had suffered with her dismissal being reported in a local newspaper and the newspaper story appears on the website for the paper and was a prominent search result for internet searches using her name. If left to stand unchallenged then these allegations will hamper her future employment prospects. 404 In conclusion it was submitted that the allegations made against Ms Angelovska were unsubstantiated, SGYS failed to follow its own procedures in dealing with those allegations and she was not provided with an opportunity to defend herself against them. A failure to reinstate would visit another injustice upon Ms Angelovska. 405 Mr Slevin sought specific orders as to reinstatement, continuity of service and payment of the amount she would have otherwise received had she not been dismissed less any other earnings received during the time from dismissal to reinstatement. Submissions on Behalf of the Respondent 406 Mr Godfrey, on behalf of SGYS, made oral submissions and in doing so took the Commission to the relevant evidence in support of those submissions 407 In opening Mr Godfrey submitted that this matter was about the events after the suspension of Ms Angelovska and the process of handling the termination, not matters that happened prior to her suspension. This matter had been portrayed as SGYS not pressing all, and in particular the first two, issues contained in the letters of termination from the Chairperson, Ms Petrakis. However SGYS terminated Ms Angelovska for all four reasons, this was clear on the evidence and the facts.

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408 Whilst the events prior to the suspension of the Ms Angelovska on 4 December 2009 were not directly related to her subsequent termination it was submitted that they provided a clear insight into the operations of SGYS and the relationship between the Ms Angelovska, the Committee of Management and the staff. 409 Mr Godfrey summarised the first of the key elements relied upon by Ms Angelovska in later events as follows: i. She claimed that she had the approval of her employer in undertaking both the work from home and the work for MAWA. There was no evidence for this, other than vague, untested statements from Ms Angelovska, Mr D'Astoli and Ms Scobie. It would have been easy to provide documentary evidence of these claims, but none was produced and therefore no facts supported these statements. ii. Since the terms commenced of most of the current Committee of Management, there had been no information provided by her about this alleged approval, no reports about her activities and no requests for approval to undertake activities from home or from MAWA. iii. This compared with the related evidence of Ms Petrakis, Ms Faraj and Mr Dangas, all of whom either worked for other organisations or served on other committees of management in addition to their principal employment. Each of them, as loyal, committed employees, fully informed their respective employers on a regular basis, seeking clear permissions to undertake duties and to attend meetings for their other outside interests. They also provided reports on a regular basis to the primary employers. iv. This was in contrast to the actions of the allegedly loyal and diligent worker Ms Angelovska claimed to be. Since late 2007, in the time of its current Committee of Management, she did not fully inform her present employer; did not seek clear permission to undertake outside duties, and she did not provide regular reports on these activities. In fact, the opposite was the case. She did everything in her power to conceal these activities from her employer, using misinformation, dissembling and obstruction to avoid her being accountable. 410 It was submitted that these were not the actions of a loyal, committed employee and any positive statement made about her such as those referred to by Mr Slevin, were made in ignorance by SGYS. They did not know what was happening, so to say nice things about her was because they did not know otherwise.

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416 The following was submitted in relation to the termination, the reasons for the termination and the process undertaken: · Firstly the Committee of Management appointed Mr Dangas as Acting manager on 4 December, immediately after the suspension of Ms Angelovska. This involved doing all the duties of the position of Manager, accessing the computer, emails and the phone relating to the Manager's position. It had been wrongly alleged that these items were the personal property of Ms Angelovska. This was not so. They were the property of SGYS and anyone who became or undertook the position of Manager of the Service had these items for their use and their duties. Everything concerned with them was the property of SGYS and not any individual. · The Acting Manager, Mr Dangas, rightly accessed these items and was surprised by what he found. It was his evidence that he found numerous computer files and emails which were relevant not to the activities of SGYS, but to those of MAWA. In addition, having access to the filing systems of SGYS, it was discovered that hard copy of files relating to staff were missing and that files and other electronic files were also missing and/or deleted. He reported his findings to the Committee of Management as any loyal and proper employee would do. 417 It was submitted that the Committee of Management rightly looked at these matters and decided that they must take action and they did so in their letter to the ASU of 15 December 2009 setting out the allegations against Ms Angelovska and requesting her to provide a response. The specific allegations were the four matters for which Ms Angelovska was dismissed: 1. Organisational files to which only she had access, including staff personnel files, had been removed from the organisation without authorisation; 2. Electronic copies of documents dating from 2008 onwards, which only she has access, had been removed from the organisation without authorisation; 3. Evidence that she had, during paid SGYS time, been working on matters on behalf of the MAWA including tracked correspondence that demonstrated using SGYS time and resources to support MAWA; 4. Evidence that she had been copying and amending tenders written for SGYS to submit on behalf of the MAWA, who are in direct competition with SGYS, such action a breach of her duty of fidelity to her employer. 418 A response was received from the ASU, attaching a detailed response from Ms Angelovska on 18 December 2009. The Committee of Management considered the responses and made a decision that they were inadequate and decided that they warranted termination for serious and wilful misconduct and advised Ms Angelovska of this in a letter of 21 December. 419 It was submitted that this was a reasonable decision based upon the facts and evidence when each allegation was looked at in turn as follows: Allegation 1 Ms Angelovksa admitted in her response to taking the files home, tried to justify this by saying she had approval and that there was no policy to say that she could not. This was untrue. It was clear from the policies and procedures of SGYS, that "Staff may have access to their own files, however no staff file or any file contents may be removed from the SYS offices". The statement that there was no policy was false and even if there was an alleged approval to do so from the former Committee of Management, which was disputed, such approval was contrary to the policy and procedure. Allegation 2 Ms Angelovska again admitted that the files in question were taken home and tried to rely on the same defence as in allegation 1. This response was also untrue. The relevant policy and procedure was that case documentation was not to be taken out of the Service's office without permission. Again reliance was placed on unsubstantiated evidence from long ago Committee members and not current Committee members and was dissembling at least, and, it was submitted in this matter, lying. Allegation 3 In Ms Angelovska's response, this allegation (using resources of SGYS for non-SGYS purposes without permission) was avoided entirely and she did not address the concerns of the Committee of Management. Once again the Committee of Management decided that this was probably untruthful and at the least misleading. Much has been made of the alleged lack of evidence provided to Ms Angelovska in support of this allegation. However a reasonable employee or her representative in other matters similar to this might have sought additional information and this would have been provided if such a request had been made or received. But in her and her Union's arrogance, they chose not to respond or, ask for additional information. Allegation 4 Ms Angelovska gave a flat response that this did not happen. The Committee of Management in looking at the documents in question did not believe her. Her later explanation was that the document in question had been sent to her by a MAWA employee for her to review. It was beyond belief that people with apparently no contact could use the same types of statement and language in supplying two totally unrelated matters. The question is why didn't this go to her private email or wasn't available on the MAWA email address, which was easily accessible by her from the Manager's computer. 420 It was submitted that the proof of the first two allegations was confirmed by the reference to the files being returned to the organisation by Ms Angelovska's Union. It could not be disputed that both hard copy and electronic files were taken and her witness statement confirmed this. This was one of the reasons why that matter was not pursued further. From the Committee's point of view the evidence, the acceptance of non-denial of having done it, did not require anything further. The allegation was put and confirmed, it was contrary to policy and the answer that was given about it being approved by policy was not true.

[210]

450 In relation to the submission that SGYS were a small organisation Mr Slevin also relied on a decision of Ritchie C in reinstating an employee in a similar organisation in the community services sector in Doyle v Kempsey Work Pool [2005] NSWIRComm 1029. It was noted that Jobs Australia appeared for the respondent in that matter as well. 451 It was submitted that the suggestion that the relationship with other staff was also somehow affected by these proceedings should be rejected. The evidence given by them simply went to what they saw and perceived in relation to the work done for MAWA and Ms Angelovska responded to that evidence, addressed those concerns and explained how she performed her work. In doing so, all that had occurred was an exchange through the evidence that should have occurred at the workplace. It was submitted that had proper procedure been followed - whereby the employees raised what they perceived was occurring, then Ms Angelovska could have answered and explained. It was not an exchange that would suggest a breakdown in a relationship. It was an exchange that occurred in the manner that it did, because the Committee of Management acted the way they did outside their own policies and procedures. There was nothing malicious in that exchange ands nothing of concern that would result in a conclusion that there had been any breakdown in the relationship with other staff. 452 Mr Slevin concluded by submitting that Ms Angelovska's claim was for reinstatement. However if the Commission was not minded to reinstate and compensation was considered, then Mr Slevin rejected the submission made on behalf of SGYS that Ms Angelovska had been deceptive and disloyal. There was is no basis for such a finding to be made and that the nature of the compensation should be assessed in the usual fashion in relation to the extent of the unfairness visited upon Ms Angelovska which was great, and the question of the length of service, which was nine years and three months, and the impact on the her given the specialised nature of her experience in a small sector of the community and social services industry. She had been unable to find employment since her termination.

[316]

563 Bankstown City Council v Paris (1999) 93 IR 209, is authority for the necessity of the Commission making a positive finding as to whether the termination was harsh, or unjust, or unreasonable (or any combination thereof) and the grounds upon which the Commission so finds. 564 This approach was reiterated by the Full Bench in National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at paras [64] and [65]: 64 Finally, we stress the importance of a Member of the Commission at first instance in s 84 proceedings dealing expressly and specifically with the tripartite statutory test. As the Full Bench observed in Outboard Marine Pty Ltd T/As Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the tribunal should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, whether the dismissal was or was not harsh, unreasonable or unjust. 65 In the present case, Cambridge C found that the dismissal of the applicant was not harsh, unreasonable or unjust and we consider an examination of the Commissioner's reasons support his conclusion. It would have been preferable, however, if the Commissioner had spelt out in clear terms why, under each limb of the tripartite test, the dismissal was not an "unfair dismissal". 565 As indicated above I have found that, based on the evidence, SGYS have not discharged the requisite onus upon it to establish that Ms Angelovska committed misconduct. Having found that she did not commit misconduct, and that the process followed by SGYS was procedurally unfair I have also found on both a substantive and procedural basis that her termination was harsh and it was unjust and it was unreasonable. 566 Ms Angelovska has sought reinstatement to her former position. Reinstatement is the primary remedy envisaged by the Act as enunciated repeatedly in numerous decisions of this Commission as comprehensively summarised by the Full Bench in NSW Nurses Association (Rudder) v Booroongen Djugan Aboriginal Corporation. What I am required to do is to consider whether reinstatement is practicable in the particular circumstances of this case.