286 It was important to note that neither during the interview, immediately afterwards, nor in the first few months of her employment, was the applicant given any kind of instruction or form about disclosing secondary employment by Mr Pillai.
287 By the December 2006 meeting, six months into her employment, the relationship between the applicant and Mr Pillai had seriously deteriorated. They came into conflict essentially during the probationary period over issues around punctuality and attendance. This caused friction and the applicant felt unfairly targeted. By the time of the meeting in December 2006 things that become so bad the applicant had been treated for a couple of months by her GP and there is a medical report in evidence. She then caused a grievance to be sent to her employer on 8 December.
288 It was accepted that there were some discrepancies on the evidence as to when the grievance was received and processed and Ms Ryan acknowledged that it couldn't be explained why a grievance apparently sent by express post on 8 December was not received until 10 days later. However the applicant believed when she walked into the meeting of the 14 December that the respondent was on notice of it and that was important as to her state of mind from this point on, because she felt, not unreasonably, that the meetings were a direct response to her complaint about Mr Pillai.
289 The applicant's diary entry was a contemporaneous account and documented her state of mind at the time. It was evidence of her recollection of the meeting. It was common to the three participants in the meeting that there was a discussion of the overtime roster and that if she was not on the overtime roster then she could work elsewhere, having sought approval.
290 The applicant unequivocally said in cross examination that she never denied working for DSA. She said her last shift was in October 2006 but she was still on the books, but officially worked her last shift in October. So between October and December she didn't work any shifts but she was still employed. She intended to leave the job if she got overtime. She was not on the overtime roster for the 2007 which was why she had brought it up and it was to be looked into. If she was put back on the roster then she could continue and then she would need the written approval to seek employment elsewhere but they never got to that stage because she had the car accident and never went back to that work.
291 It submitted that the evidence of the applicant was given in a forthright manner and was logical and credible. She was quite clear about how she answered the question and she had no reason to deny her employment with DSA at that point in time because as far as she was concerned Mr Pillai knew about it.
292 If there was any inconsistency in the evidence of the parties who were present at the meeting, it was best explained by looking at what happened at the 28 August meeting and it could be seen by that stage that the parties explored the issue further and they realised that they may been talking about two different things.
293 In terms of the information on which the respondent was apparently relying in its December 2006 meeting, the evidence was that Ms Buric said it came from Mr Pilla, he said it came from Mr Loizou, who said in turn that it came from an employee working the same double shifts as the applicant. It was never properly explained by the respondent where the information came from and there was no evidence of any independent inquiry or examination. They were satisfied with the applicant's answers at that time. They didn't have any credible evidence to prove that she was lying.
294 The evidence was that she stopped working for DSA in October 2006. That was consistent with the information given to Ms Buric by Kristian, the Accountant and record keeper at DSA, who said her last shift was 31 October 2006. It was also consistent with the applicant's tax records which were summonsed and tendered in evidence.
295 There was no credible evidence adduced to show that misconduct occurred at this meeting. The only material on which the respondent was relying was the material from Dr Jana.
296 In relation to the discussion at the December meeting about the approval process, it must be kept in mind that in early January the applicant was involved in a car accident which kept her away from work completely for about six months and those discussions possibly were not in the forefront of her mind when she was at home recuperating.
297 By the time of the August 2007 meeting, there was no doubt that Ms Buric was aware of the content of the applicant's grievance and it was submitted that it raised serious allegations against Mr Pillai. Whilst he hadn't seen the content of the grievance he was aware of its existence and its general nature and said that Ms Buric had, by this stage, told him to take a step back in his dealings with the applicant. Despite this, he was allowed to question the applicant during the meeting. Ms Buric made no enquiry as to the source of his information nor its reliability before she allowed this "inquisition" to occur.
298 The parties were in substantial agreement about what was said in the meeting, that is, that the applicant was asked if she was employed by DSA and she said, no. The Union representative sought clarification as to whether that meant physically working or on the books and Mr Pillai said physically working. The applicant acknowledged she was on the books as an interpreter (but hadn't been called up in a couple of years) and DSA and then agreed they could contact DSA to verify this. She also said during this meeting "I told Sudha about this when I was interviewed for the position and he approved it". The applicant raised the issue of other employees also working second jobs, which was flatly denied by Mr Pillai, with subsequent enquiries in fact bearing that out to be the case.
299 The evidence concerning the inquiries of Dr Jana was based on the telephone conversation and the email exchange with him. This was critical information. It was obvious that the information Doctor Jana gave the respondent was quite clearly and obviously wrong. For example, he said that the applicant started with him in August 2006. That was clearly wrong because DSA were nominated as referee in her job application in May 2006, with the reference check disclosing that she had been there 12 months at that time. The investigator realised that this was wrong and almost immediately shot back reasonable inquiries (any interruptions, correct start date, regular shifts). His reply was unhelpful and he didn't participate further in proceedings and was not called give evidence.
300 Nine months later, in June 2008, Ms Buric sought to terminate her employment stating in her memorandum that she was in possession of documentation showing the applicant had been dishonest and had misled the Health Service. When pressed, she admitted that the documentation that was being relied on was the email from Dr Jana.
301 However at the time of the August 2007 meeting the applicant was saying that she was not working there, she hadn't worked there, but she might still be on the books. There was evidence from Mr Wendolin that his recollection was that she wasn't there after the car accident and the car accident occurred six months prior to the August meeting. Yet the respondent insisted that she was lying at this point, on the basis of the documentation which was from Dr Jana, and which was wrong.
302 Soon after the August meeting the applicant stopped working and there was medical evidence verifying that she had a psychiatric disorder at that time with proceedings in another jurisdiction concerning that. There were 17 months between the meeting in August 2007 and her dismissal in December 2008 and during that time the applicant was suffering quite a serious disorder. There was detailed evidence given in the Workers' Compensation proceedings concerning her very serious symptoms. It was submitted that she was very unwell in that period.
303 There was one letter of inquiry within that period that she didn't respond to, that was admitted. But it was submitted that this was highly unusual for the applicant and out of character and possibly attributable to the symptoms she was suffering at the time.
304 The letter from Ms Colbert in November 2007 indicated that in both meetings she had denied being engaged in any form of employment outside the Area Health Service. That was simply wrong. The minutes of the this meeting established that assertion as factually incorrect because of distinction drawn and not only did she talk about DSA, she talked about the interpreting service position. That letter put forward the period of employment as one being supplied by Dr Jana. The applicant gave a very detailed and lengthy response in December 2007 giving a very clear and detailed account of her employment with the Health Service and DSA. That account was entirely consistent with what has been put in evidence in these proceedings and consistent with the various statements she has given during the entire course of this inquiry.
305 They did not take that information back to Dr Jana nor did they interview anyone present during the interview process, nor did they interview Mr Pillai. It is not known what they did with the information, but inexplicably nine months later, they issueed a show cause letter to the applicant simply reiterating matters, it was submitted, that she had answered quite squarely in her letter of 14 December 2007.
306 The show cause letter was responded to by Turner Freeman Lawyers which again said that in the applicant' view she had made full disclosure of her employment and had not therefore engaged in misconduct. In spite of this there was a letter of dismissal of 15 December 2008, some 12 months after the applicant's detailed explanation of 14 December 2007. There was no evidence from Mr Clout, the decision maker, and we could not speculate about the conclusions he had drawn in reaching the decision to terminate. The request to terminate from Ms Buric was based on the documentation, being the email from Dr Jana, which was wrong. The applicant was honest, she did not mislead and she had not engaged in any serious or wilful misconduct.
307 In relation to the Code of Conduct, and the evidence that the applicant's conduct constituted a breach of that Code, there was nothing in the Code that specifically required written approval. It was submitted that the real focus of the Code of Conduct was in avoiding conflicts of interest. There was no suggestion that the applicant's second job presented a conflict of interest or that it interfered in any way with her work for the Health Service.
308 It was further submitted that it was not an offence per se to have a second job. It came out in the evidence arising, from the August 2007 meeting, that other employees had second jobs. Not only that, but they had second jobs without having put in their form. It came out through Ms Buric's evidence that they only thought they had to fill in a form if there was a conflict of interest. Those employees were not investigated, as far as it was known nor were they subjected to any disciplinary processes. It was the evidence of Mr Loizou that other St George employees held positions at DSA. He was told this by one particular employee but he did nothing about that other than to pass the information on, noting she wanted to be kept out of it. It was submitted that of course she would want to be kept out of it if she had some kind of perception that she was doing wrong, she was not subjected to any scrutiny at all from Mr Loizou. The respondent sought to draw distinction between her as a part-time employee, but as Ms Ryan read the Code of Conduct, a part-time employees still had to make a disclosure, although there was no formal requirement about filling in the form. So it was not known if that was a distinction that applied to full-time or part-time employees.
309 It was submitted that another unusual point of Mr Loizou's evidence was that he sought to justify the fact that he singled out the applicant because she was on workers compensation at the time, but these matters were first raised with her at a meeting in December, well before the car accident so she couldn't have been on workers compensation at that time. That excuse from him what was either a significant error on his part or a nonsense.
310 It was also submitted that when this information about the applicant was brought to Mr Loizou's and Mr Pillai's attention, no one checked whether she had ever been given the necessary forms, yet part of their roles was to supervise her, in both a technical and an administrative sense. It would have been logical for both, or either of them, to simply have spoken to the applicant about that. There was no benefit of the doubt given whatsoever, it was escalated to HR and raised formally in a meeting. This was inconsistent treatment and unfair.
311 It was submitted that the applicant's relationship with her superiors was affected by this stage, and this contributed, in part, to the decision of both Mr Loizou and Mr Pillai to raise the allegation formally in a meeting rather than simply asking her the question.