Burge v NSW BHP Steel Pty Ltd

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, PRESIDENT WALTON J, VICE-PRESIDENT HARRISON DP CONNOR C Monday 8 September 2003

MATTER NO IRC 1097 OF 2002 JACQUELINE YOUSSEF AND WESTERN SYDNEY AREA HEALTH SERVICE

Application by Jacqueline Youssef for leave to appeal and appeal against a decision of Deputy President Sams given on 6 February 2002 in Matter No IRC 4193 of 2000 DECISION OF THE COMMISSION [2003] NSWIRComm 284

1 This matter is an application by Jacqueline Youssef ("the appellant") for leave to appeal and, if successful, appeal against a decision of Sams DP in Matter No IRC 4193 of 2000 on 6 February 2002: Youssef v Western Sydney Area Health Service [2002] NSWIRComm 8. In the event that the decision of the Deputy President is set aside, the appellant seeks reinstatement to her former position.

2 In these proceedings the appellant was represented by Mr C Magee of counsel, instructed by John H Maait & Co, Solicitors. The respondent was represented by Mr J Murphy of counsel.

3 In the decision subject to appeal the Deputy President declined to intervene in the dismissal of the appellant; refusing re-instatement, re-employment or compensation. The conclusions of the Deputy President are found at paras [123], [124], and [125] of his decision in the following terms: [123] In my opinion, this case revealed the most irrational and unco-operative employee behaviour I have ever encountered. Her behaviour was appalling. The applicant's conduct constituted a repudiation of her contract of employment for which she alone was responsible. I find the following words from Byrnes v Treloar particularly apposite to this case: She displayed intransigence, insubordination and disloyalty. These matters (individually or collectively) are sufficiently serious to justify summary dismissal. [124] It follows that this is a claim of unfair dismissal devoid of any merit. I cannot imagine a more sound basis for terminating an employee's employment than what the evidence disclosed in this case. [125] The Commission declines to intervene in the respondent's decision to dismiss the applicant.

4 His Honour grounded these conclusions on findings that the appellant had failed to attend meetings as requested and had been difficult in communications with the employer including her use of solicitors to communicate with it.

5 The appellant was first employed by the respondent at Westmead Hospital in 1991 following a period of employment at Cumberland Hospital as a Social Worker. The appellant's employment was terminated on 31 July 2000.

6 The circumstances of the termination of employment are succinctly set out in the Deputy President's decision at paras [2] to [4] which appear below. This background is not contested in any material way. [2] The applicant was dismissed following a disciplinary meeting convened on 24 July 2000, to consider the respondent's charge that the applicant had refused to obey the lawful and reasonable instructions of her employer. It was alleged that she failed to attend a meeting with management on 20 July 2000 and failed to respond to messages for her to contact management on that day.

[3] Conciliation proceedings commenced on 10 October 2000. Mr J Rafferty , Solicitor, appeared for the applicant and Mr J Murphy , of Counsel, appeared for the respondent. The matter was adjourned to 20 October, at which time the Commission formed the view, pursuant to s87 of the Act, that the applicant's claim could not be settled by conciliation. The matter was set for hearing and directions were issued for the filing and service of evidentiary material. Background to the Dismissal [4] It is relevant to note that many of the issues canvassed during the proceedings originated from an incident involving the applicant and another employee in April 1998 (hereinafter referred to as the "Norwood incident"). The Commission has prepared a chronology of key events from that time until the applicant's eventual dismissal on 31 July 2000. 1) The applicant was assaulted in the workplace by a fellow employee, Mr John Norwood, on 30 April 1998. Another employee, Vera Reiner, witnessed the assault. Mr Norwood was charged, convicted of assault and subsequently dismissed by the respondent on 8 May 1998. 2) In November 1998, another employee, Mr Eric Percival complained to Ms Rosalie Pockett, the Director of Social Work, about the applicant's conduct. The applicant made counter claims against Mr Percival. The applicant sought, and obtained, a three year apprehended violence order (AVO) against Mr Percival on 17 November 1998. 3) The applicant's then solicitor, John H Maait & Co, wrote to the respondent on 3 December 1998, alleging harassment of the applicant by Mr Percival and inviting the respondent to take disciplinary action against him. A disciplinary interview was conducted. It resulted in no action being taken against Mr Percival. However, he was told not to make any contact with the applicant. 4) On 13 February 1999, a subpoena was served on the respondent seeking all files and records relating to Mr Percival. 5) The applicant's solicitor wrote to the hospital on 23 March 1999, raising eleven matters and making certain allegations against Mr Percival. 6) The applicant's solicitor wrote to the respondent on 11 May 1999 seeking copies of her complete personnel file. She was permitted access to her file and allowed to take notes. However, she was not permitted to copy the file. 7) Arising from the AVO proceedings against Mr Percival, a subpoena for production was issued on 1 July 1999. It sought the applicant's personnel file and other documents. 8) On 6 January 2000, the applicant's new solicitor, G H Healy & Co, sought copies of the applicant's employment file, personnel file and a print out of internal calls to a particular pager number within the hospital. The letter alleged the respondent had breached the Occupational Health & Safety Act and practised workplace discrimination against the applicant. 9) The applicant's solicitor wrote to the respondent on 22 February 2000 listing a series of concerns in relation to:

a) supervision of staff in the Social Work Department;

b) a failure to offer the applicant any counselling or debriefing over the Norwood incident;

c) whether any check was made of Mr Percival being diagnosed with Hepatitis B;

d) whether any check was made of the criminal records of Mr Norwood and Mr Percival; 10) By letter dated 23 February 2000, the respondent refused permission for the applicant to copy her file. The respondent rejected the allegations in the 6 January letter (see point 8). 11) The hospital responded again on 2 March. It denied the applicant was not offered counselling and invited her to contact her departmental head, Ms Rosalie Pockett, to discuss the issue of supervision. The letter made no comment on the Percival and Norwood incidents. The applicant did not contact Ms Pockett. 12) The Service's Employee Relations Manager, Mr Chris Brown, wrote to the applicant on 13 March, asking her to phone him to arrange a meeting. He suggested Ms Pockett should attend. 13) On 27 March, the applicant's solicitor sought further information as to the counselling offered her by the respondent. (Her medical certificate following the Norwood incident recommended independent counselling). The applicant requested that her supervision be conducted through the Area Health Service and not by her immediate supervisors. 14) On 29 March Mr Brown wrote again to the applicant asking her to phone him. 15) On 18 April, Ms Pockett questioned the applicant over her sick leave record and supervision concerns. A letter, dated the same day, proposed monthly supervision sessions with Ms Pockett and confirmed the sick leave issue had been discussed. 16) On 8 May, the applicant's solicitor responded to Ms Pockett's letter. The applicant did not regard the 18 April meeting as an interview and did not agree to the schedule of supervision meetings proposed. She wished her supervision to be conducted by an external person. The applicant complained that her periods of sick leave were " misdescribed" . 17) The Director of Human Resources, Mr John Kilkeary, wrote to the applicant's solicitors on 24 May regarding her supervision and refusal to attend pre-arranged meetings with Ms Pockett. She was warned that staff are required to carry out all reasonable directions of the employer and a failure to do so may place employment in jeopardy. 18) The applicant's solicitor replied on 31 May. The letter complained about the role of Mr Chris Brown and advised that the applicant would be willing to attend a meeting with Ms Pockett provided her union representative and a support person could attend. She also wished to discuss three other issues: i) the harassment by Mr Percival; ii) her sick leave and other leave; and iii) her working conditions in the Department. 19) A meeting was scheduled for 5 June. However, the applicant did not attend and it did not proceed. 20) The respondent wrote to the applicant on 7 June 2000 indicating that only a union representative was appropriate to attend the meeting. The respondent rejected any discussion of the Percival matter - an issue which it regarded as closed. 21) On 16 June the applicant's solicitor insisted on a support person being in attendance at the meeting. The letter queried what policy, or procedure, did not permit her to have such a person in attendance. 21) On 20 June, Sir Francis Emery, a former patient of the hospital, wrote to the Area Health Service praising the work of the applicant. 22) On 27 June the applicant sought, under the Freedom of Information Act , the files she had requested on 6 January 2000. The material was provided. 23) On 7 July, the Service's Acting Director, Mr Kevin Gillies, wrote to the applicant's solicitor, again rejecting a support person being in attendance at any meeting and indicating that in future, the employer intended to correspond directly with the applicant and her union. 24) Soon after, the union representative, Mr McIntosh, withdrew from representing the applicant. The applicant was unable to arrange a support person for a meeting arranged for 17 July. The meeting did not take place. 25) On 17 July, Ms Pockett spoke to Professor Emery in what the Professor later claimed was a disrespectful, angry and accusing manner. He wrote a letter of complaint to the Service's CEO, Mr Allen McCarrol. The CEO wrote back to apologise. 26) Mr Brown wrote to the applicant on 18 July, insisting she attend another meeting on 20 July with, or without, a support person. 27) The applicant's solicitor wrote to the respondent on 20 July indicating she had not cancelled the meeting on 17 July, but rather had wished it adjourned in order for a support person to attend. 28) On 20 July, the applicant did not attend the meeting. She was later advised, in writing, that her refusal to do so may be regarded as gross misconduct. She was directed to attend a disciplinary meeting on 24 July with either a union representative, or support person, with her.

29. The disciplinary meeting was held on 24 July. It was attended by the applicant, her support person Magdy Massoud, Mr Brown and Ms Pockett. The meeting was taped and a transcript made. At the conclusion of the meeting, Mr Brown advised he would recommend dismissal and invited the applicant to put any matters in mitigation. She declined to do so.

30. The next day, 25 July, the applicant's solicitor wrote to the CEO of the hospital, Mr Mills, complaining that the respondent's disciplinary procedures in the Procedure Manual were not complied with (particularly para 3). It enclosed the letter from Professor Emery, which, it was said, indicated a " certain attitude" of Ms Pockett towards the applicant. The applicant enclosed a medical certificate indicating she was unfit for work until 25 August.

31. The termination of employment was confirmed and advised to the applicant in a letter dated 31 July.

7 The appeal proceedings focused on the evidence and conclusions reached by the Deputy President and, in particular, the findings made as to the conduct, character and credibility of the appellant expressed by his Honour in particularly strong terms as a vendetta against her employer and other employees.

8 The proceedings before the Deputy President dealt substantively with the conduct of the appellant and what could be described as the deterioration of her relationship with the employer.

9 The Deputy President, so led to this course by the parties, was, it would appear, distracted from a consideration of a number of substantial issues relevant to the determination of the application before him. For example, it was not put in issue before the Deputy President, nor is it put in issue before the Full Bench, that the appellant had a record of exemplary service, unblemished by any controversy prior to the Norwood and Percival incidents, yet this situation features little in the determination by his Honour.

10 The appellant sought assistance from her employer after these incidents which, on the evidence, was not forthcoming in any sensitive or constructive manner. It was not, in our view, reasonable to examine the conduct of the appellant without consideration of the conduct of the employer and the circumstances giving rise to the difficulties identified somewhat colourfully by the Deputy President. Both parties dealt with the issue by way of correspondence, punctuated by substantial delays, proving to be a process that only took them further apart and diminished their ability to resolve the issues. Whilst the appellant may well have resorted to legal advice, it does not follow, in our view, that it was appropriate for her then to insist on communications by correspondence through her solicitor, thereby further frustrating the final stages of the communication process (in conjunction with the inappropriate management of the problem by her employer). Similarly, it is regrettable that the employer did not seek direct discussion and approach to the issues of concern at a far earlier date than 20 July 2000.

11 There is an incongruity in management's conduct in that it placed little or no weight upon the effect of the Norwood and Percival incidents on the appellant, engaged in discourse with her by correspondence over a lengthy time period, and ultimately grounded the termination of employment on the appellant's failure to attend a meeting arranged with officers of the employer in whom the appellant had lost all confidence. The position of the appellant was succinctly put in her affidavit evidence in the following terms: (f) I was dissatisfied with the attitude of personnel employed by the Respondent subsequent to the Norwood and Percival incidents.

g) (i) Subsequent to the reported assault by John Norwood on 30 April 1998, I was spoken to by Ms Pocket who used words to the effect: "You have embarrassed the Social Work Department" and further; "If you are lying, you will be liable for dismissal" (ii) Ms Pocket, supplied John Norwood with a copy of my statement prior to him being interviewed by police. (iii) Ms Pocket refused to grant me leave to attend court at the hearing of the assault charges against John Norwood at Parramatta Local Court on 1 October 1999 even though I was a witness for the Crown. In addition, my witness to the assault, Ms Vera Reiner was also denied leave.

12 The initial response by the employer to the Norwood incident was critical of the appellant. The evidence of Ms Walker is found at pp330 and 331 of transcript before the Deputy President in the following terms: Q. This refers to the events of 30 April 1998 as reported to yourself about Mr Norwood by Ms Youssef and Ms Reiner? A. Yes. Q. You were the acting head of the department on that day? A. Yes I was. Q. Did you make any handwritten notes on that day of the events that occurred? A. Yes. Q. Would you look at this document (shown)? A. Yes. Q. Is that a photocopy of the notes you kept? A. Yes, it looks like it. Q. Where were those notes kept? A. I kept those notes in a folder in a filing cabinet in my office? Q. What else is in that folder? A. Well, nothing really, they were just the handwritten notes that I kept relating to this incident.

Q. Ms Walker, have you also prepared a statement for the purpose of these proceedings dated 28 February 2001? A. Yes, I have. I think I have a copy of that, yes. ... Murphy : Your Honour, there are just a few matters arising from the affidavit in reply of the applicant and some of the material that emerged in cross examination of the applicant and I might deal with those. Q. Now, Ms Walker, can I take you to the events of 30 April 1998. You understand that both Ms Youssef and Ms Reiner prepared handwritten statements or, at least, written statements as to what had occurred in the office involving Mr Norwood - do your recall that? A. Yes, I asked them to do that. Q. And you read those statements? A. Yes. Q. Did you notice any discrepancy or inconsistency between them? A. The only discrepancy was in Jacqueline's statement, that John Norwood had hit her face and that was absent from Vera Reiner's statement, otherwise they were very consistent. Q. Did you do anything when you noticed that discrepancy? A. I was a bit concerned about it and I did raise it with Jacqueline in one of the discussions I had with her subsequently. Q. What did you say to her? A. I said to her that the situation for John Norwood was very serious - this would have been in the period between 30 April and his dismissal interview, which was on 6 May, I don't remember the precise date, but the situation for John was very serious and I wanted to make sure that Jacqueline understood that any statement she had made needed to be very accurate in every detail. Q. Did you say anything to her? A. Well, yes, I said to her that I had noticed this discrepancy in the statements and that I wanted her to think very carefully about the events that had happened during that period in the office and to make sure that her statement reflected accurately everything that had happened. Q. How did she respond? A. I think she was angry with me. I think she thought she knew what I was referring to and I think she thought I didn't believe her. Q. What would you say to the suggestion that you threatened her with dismissal over that matter? A. I did say to her that I wanted her to be sure that her statement was accurate and true in every detail because if a statement made about another staff member in those serious circumstances was found subsequently to be not true, then that could be grounds for dismissal. 13 There is clear error of fact in the decision of the Deputy President in relation to that aspect of the evidence. At para [84] of his Honour's decision he deals with the evidence of the security guard, Mr Hedges, in the following terms: Putting this evidence at its highest, the security guard was recounting what either Ms Reiner or the applicant had told him. He was not a witness to the assault, nor did he ever express a view that there were marks on the applicant's face consistent with her being slapped. 14 This is directly contrary to the evidence of Mr Hedges found in his report (exhibit 23 before the Deputy President) wherein Mr Hedges, who was not called for cross-examination, stated: Jacqueline rang security for help, he was still verbally abusing them when I arrived. Both women were visibly upset. Jacqueline Youseff's face was red the way it would be as if it had been hit. I advised both women to attend the police to take further action by way of charge of assault and an AVO. On return to the office I made a verbal report to Ken Lingard who contacted the Employee Relations Department and reported this incident.

15 We are satisfied on the available evidence that the Norwood incident was particularly violent and that the appellant suffered physical and emotional trauma. 16 There was no evidence that the employer retracted or sought to remedy its position of doubt and concern as to the appellant subsequent to the conviction of Norwood. Nor did the employer temper its responses to the appellant in the light of her adverse experience at work. Indeed, much of its approach to the appellant seems to have been conditioned by its officer's earlier inappropriate response to the appellant as one of its employees who was the victim of an assault at work. 17 We are unable to come to the conclusion that the appellant conducted a vendetta against her employer or other employees. Viewed appropriately with the benefit of assistance from counsel in these appeal proceedings, the conduct of the appellant is more correctly categorised as a cry for help which went unheeded. We are not impeded in coming to this conclusion by the credit findings made by the Deputy President as our conclusion derives squarely from the objective facts in the record of proceedings at first instance: Joy Maree Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211.

18 The appellant relied upon the principles discussed and accepted in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325, further submitting that the conclusions of the Deputy President were erroneous and grossly overstated so as to be called into question by process of appeal. 19 The respondent submitted that neither the findings nor the language used to express them provided grounds for leave, asserting that there is no error of fact or law such as to warrant the grant of leave having regard to the statutory intent of limiting appeals from single members. 20 The respondent contended that damage to career and reputation consequent upon the findings made by the Deputy President and his expression thereof were not unusual in the event that an applicant is unsuccessful in s 84 proceedings. 21 In our view of the conduct of the matter before the Deputy President, the strength of findings made by him, and the injustice which would result from a failure to correct the judgment at first instance (and the implications of such an approach for the jurisprudence of the Commission in s 84 matters and for the appellant personally and in terms of her career) we come to the conclusion that leave to appeal should be granted. The relevant principles, in this respect, are discussed in Knowles v The Anglican Church Property Trust (1999) 89 IR 47 (see also Burge v BHP Steel Pty Ltd (2001) 105 IR 325 and Re Crown Employees (Teachers, Locality Allowance, &c) Award [1981] AR (NSW) 1017).

22 We find a substantive miscarriage occurred in the conduct of the proceedings by the parties at first instance. The focus entirely upon the conduct of the appellant after the Norwood and Percival incidents completely overlooks the fact that she was the victim in those circumstances and that her conduct after those events was completely out of character and inconsistent with her exemplary service of the eight years prior thereto.

23 The appellant had a personal relationship with Mr Norwood and subsequently Mr Percival. It would appear both ended badly with violence in the case of Norwood and acrimony in the case of Percival. While it is ordinarily the case that personal relationships involving work colleagues should remain so, these were workplace relationships, the unfortunate events taking place in the workplace. 24 It is not open on the evidence to conclude the appellant was the aggressor in either case; she was subject to unprovoked physical violence from Norwood and a campaign of harassment from Percival. The appellant was vindicated in each case; Norwood was convicted of assault causing actual bodily harm; and the appellant was successful in obtaining an apprehended violence order against Percival. 25 The error of fact made by the Deputy President in respect to the Norwood assault raises considerable question in respect to subsequent findings of credit in respect to the appellant and criticism of her conduct in the circumstances. More significantly, that error is demonstrative of the failure at first instance to sufficiently have regard to mitigating factors in favour of the appellant (see, for example, Metropolitan Meat Industries Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233 - 234; Little v Commissioner of Police (No 2) (2002) 112 IR 212 and D & R Commercial Pty Ltd v Flood (2002) 113 IR 344) and the inappropriate and insensitive conduct of the respondent after the assault upon the appellant at work. 26 The appeal is upheld and the orders of Deputy President Sams are set aside.

27 The determination of an appropriate remedy in this matter is not without difficulty. The relationship between the appellant and those charged with the management of the section of the respondent's operation where she worked became quite strained. As we have noted, this was partially a result of the procedure adopted by the appellant to deal with her employer and, in large measure, in consequence of the approach of the respondent in managing its employee after the trauma of the assault. On balance, and having regard to the principles stated in Burge v BHP Steel at [35], we consider that reinstatement is not impractical for two reasons:

1. The relationship between the parties may be quickly restored by a changed management of the problem and a modified approach by the appellant in dealing with the management of the respondent; and

2. The employer is of sufficient size and diversity to sensibly accommodate the reinstatement of the appellant.

28 Hence, we order the reinstatement of the appellant without loss of continuity of service which shall be effective on and from 15 September 2003.

29 As to the quantum of back pay, we do not consider that restitution of all wages lost is appropriate given the length of delay arising from communication by correspondence from the appellant's solicitors to the respondent without pursuit of reply or insistence upon direct discussion, the appellant's obligation to mitigate any losses to salary etc. and the loss of the initial hearing date for the appeal because of default of the appellant or her representatives. As we have mentioned, we do not consider that the means of communication by solicitors was a desirable or appropriate course in this matter. We order that payment be limited to nine months of the salary lost from date of termination of employment.

30 The appellant is directed to bring in orders within seven days reflecting this decision.

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