Burge v NSW BHP Steel Pty Ltd - [2003] NSWIRComm 284 - NSWIRComm 2003 case summary — Zoe

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Burge v NSW BHP Steel Pty Ltd

[2003] NSWIRComm 284

Industrial Relations Commission (NSW)|2003-09-08|Before: Wright J, Walton J, Harrison DP, Mr J, Sams DP

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-09-08

Before

Wright J, Walton J, Harrison DP, Mr J, Sams DP

Source

Original judgment source is linked above.

Judgment (38 paragraphs)

[1]

CITATION : Youssef and Western Sydney Area Health Service [2003] NSWIRComm 284 APPELLANT Jacqueline Youssef PARTIES : RESPONDENT Western Sydney Area Health Service FILE NUMBER: IRC 1097 of 2002 CORAM: Wright J President; Walton J Vice-President; Harrison DP; Connor C CATCHWORDS : Appeal - Unfair dismissal - Errors of fact alleged - Whether regard paid to mitigating factors - Employee's history of employment - Dismissed employee had earlier been victim of assault - Leave to appeal granted - Appeal upheld - Decision set aside - Remedy - Reinstatement not impracticable - Prospect of restoration of relationship - Nature of employer's enterprise - Reinstatement - Order for back pay limited in particular circumstances of the matter LEGISLATION CITED : Industrial Relations Act 1996 s 84 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 Joy Maree Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 CASES CITED : Knowles v The Anglican Church Property Trust (1999) 89 IR 47 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Metropolitan Meat Industries Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 Re Crown Employees (Teachers, Locality Allowance, &c) Award [1981] AR (NSW) 1017 HEARING DATES: 04/08/2003 DATE OF JUDGMENT: 09/08/2003

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[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:

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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.

[27]

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.