Byrne v Australian Airlines Ltd

Industrial Relations Commission (NSW)|2015-10-28|Before: Tabbaa AM, Health J

Mr M Paul, Solicitor (Respondent) Bartier Perry File Number(s): 2016/46007

DECISION Background

Ms Stephanie Barbara Smith (the Applicant) commenced employment with the Ministry of Health (the MoH) on 3 May 1973 which morphed into Justice Health on 6 February 1990. She was employed as a clinical nurse specialist 2 at Silverwater Women's Correctional Centre pursuant to the Public Health System Nurses' and Midwives' (State) Award 2011 (the Award).
In addition to her role as the Population Health Nurse for the Centre, she was the only person at the entire Centre with venepuncture accreditation. As a consequence she was taking blood samples ordered by GPs, Psychiatrists and the other Aboriginal Chronic Care workers who attended the site as well as those ordered by Ms Woods for at least 14 pregnant women at the Centre. She was also performing the consequent administrative functions as well as giving vaccinations. She carried out the additional functions at the expense of her own designated work.
There were four fact finding investigations conducted by the respondent in 2013-2014 which resulted in three formal warnings being issued to the applicant.
The first formal warning, issued on 8 August 2012, related to her participation on 27 April 2012 in an indirect form of bullying and harassment towards a staff member. The applicant was informed that the respondent expected her to demonstrate an immediate and sustained improvement in her behaviour and professionalism.

During the arbitration proceedings the applicant sought re-employment to a position other than her former position within the MoH and/or monetary compensation.
The respondent submitted that the termination was neither harsh, unjust nor unreasonable considering that the applicant still cannot see anything wrong with her conduct or behaviour, believes that her actions were justifiable, or that her frustrations somehow explain/excuse her actions. She remains unable to appreciate the impact of her poor conduct and behaviour on her colleagues or unable to view her conduct from the perspective of others.

The first warning

A fact finding investigation was conducted into an allegation of an indirect form of bullying and harassment when, on 27 April 2012, the applicant told Ms Fran Pekin that her new supervisor, Ms Robyn Gilmour, was a "bull dyke lesbian", had a huge history of bullying and many members of staff hated her because she was a bully. She then proceeded to send Ms Pekin and another colleague, Ms Campbell-Davies, a link to a February 2010 decision of the Nursing & Midwifery Tribunal of NSW relating to Ms Gilmour's deregistration.
Ms Smith's evidence confirmed that she did so in order to warn Ms Pekin and without any request being made for the link to be provided. The "history" she was referring to amounted to two incidents - the incident in 2005 when she complained about Ms Gilmour and the incident referred to in the Tribunal matter.
It was noted by the applicant that the fact finding investigation arose because of an email sent by Ms Pekin and not as a result of a complaint by Ms Gilmour. Ms Pekin said she had agonised over the conversation all weekend. She stated that she was not making a formal complaint nor was she seeking a particular outcome. All she wanted was not to be involved in gossip and did not want any preconceptions of her new manager.
In fact, Ms Gilmour was not made aware of the email. The respondent thought "it would be bullying if she found out, which she inevitably would". The respondent noted in the letter of outcome that "what is not clear is the intent behind the email".
The applicant pointed out that she had not been provided with a copy of that email for a response. She also noted that the transcript of the fact finding investigation was neither provided to herself nor tendered in these proceedings.
The respondent pointed out that the applicant had absolutely no explanation as to why she had copied in another colleague other than she did not want anyone to have dealings with Ms Gilmour without being armed with what she did in 2005.
The applicant was held to be in breach of the Code of Conduct. The applicant agreed to the recommendation from the fact finding investigation contained in an email to Mr Grimmond, Service Director Operations & Nursing, dated 16 July 2012 that: 1. Ms Smith receive a first formal warning in relation to the breach of the JH & FMN Code of Conduct and is counselled in relation to her spreading potentially harmful gossip about Ms Gilmour and be advised to desist from further conversations about Ms Gilmour being a bully or from sending the Tribunal transcript; and 2. Ms Smith is not managed by Ms Gilmour at any time.
Ms Smith was issued, on 8 August 2012, with a Letter of Outcome by Paul Grimmond. The recommendation translated as follows: 1. Ms Smith receives a First Formal Warning in relation to the breach of the JH & FMN Code of Conduct and is counselled in relation to her spreading potentially harmful gossip about Ms Gilmour and be advised to desist from further conversations about Ms Gilmour being a bully or from sending the Tribunal transcript; and 2. Ms Smith sign the JH & FMN Code of Conduct as having read and understood and agrees to comply with it.
In addition, Ms Smith was warned that if there was no immediate improvement in her behaviour and professionalism, then further disciplinary action would be applied.
To remove any doubt as to the expected standards of behaviour for employees of the respondent, additional copies of the MoH Code of Conduct and JH & FMHN Code of Conduct were provided to her to certify as read and returned and arrangements were made for Ms Bernadette Hollis, Regional Nurse Manager Metropolitan, to discuss with the applicant the consequences of spreading potentially harmful gossip in the workplace.
The evidence indicated that the applicant did not want Ms Hollis to speak to her about the consequences of spreading potentially harmful gossip in the workplace. Her wish was respected and Mr Grimmond arranged to do it himself.
The respondent further noted that when Mr Grimmond spoke to the applicant after she read the Code of Conduct as a result of the first warning, she had insisted that she had done nothing wrong and attempted to justify her behaviour. When Mr Grimmond insisted that her behaviour had been unacceptable, she had become upset and talked about other people and what they had done. It was submitted by the Respondent that, given her tendency to avoid her own conduct and responsibility and given her attitude that her behaviour did not warrant censure, it was hard to imagine what training could have led to a different attitude.
The respondent submitted that the applicant's insistence that Ms Gilmour was seeking to "remove the problem" was demonstrative of the applicant's ongoing efforts to deny any wrongdoing on her part and always to blame others, a device to avoid confronting her own shortcomings.
In her statement in these proceedings, Ms Pekin said she believed that the applicant was looking after her. The respondent noted that the applicant accepted, under cross-examination, that Ms Pekin had been rather shaken by the contents of the email and the conversation with her. Ms Pekin advised the fact finding investigation that she did not want to be involved in gossip and did not want any preconceptions of a new manager - she "just wanted the gossiping to cease".
It was not disputed that Ms Smith did not engage in that specific identified conduct after that date although the respondent noted that, but for the warning, she would have engaged in similar conduct again as she had not accepted that she had done anything wrong.
It was submitted on behalf of the applicant that the discrepancy between the recommendation of the fact finding investigation and the warning letter was illustrative of the lack of procedural fairness afforded Ms Smith throughout the disciplinary process and the respondent's lack of consistency in applying its policies to Ms Smith's alleged conduct: 1. despite the recommendation of the fact finding investigation and despite the requirements of the Conduct & Discipline Policy, she did not receive any formal counselling and was not provided with any performance management or specific supervision, review or monitoring by the respondent in relation to her conduct. The only intervention was a meeting, requested by Ms Smith, with Mr Grimmond the contents of which he could not recall. It was also noted that he had not kept any notes of that meeting. The applicant noted that, when pressed under cross-examination, Mr Grimmond was unable to identify what improvement was expected of the applicant except that no further warnings were expected to occur; and 2. the fact finding investigation had implied that there was an issue with Mr Gilmour managing her. The applicant gave evidence of Ms Gilmour continuing to manage her from 2012 until her ultimate dismissal and provided evidence of their continued interactions. The respondent strenuously denied Ms Gilmour's involvement in the applicant's employment from 2012. Mr Grimmond displayed a lack of knowledge of the day to day interactions of the applicant with her supervisors/managers.

The Second Formal Warning

The applicant acknowledged that she had a heated verbal altercation with her then supervisor, Rowena Bellwood, Manager Care Navigation Support Program, on 23 April 2013.
The 4-page email complaint from Ms Bellwood had been provided to the applicant.
The applicant also acknowledged that, in hindsight, the conversation could have been handled better. Nevertheless, she maintained that it was a two-sided argument, was heated on both sides and that the volume and tone of her voice was in response to the manner in which she was being addressed by Ms Bellwood. She denied that she used inappropriate, aggressive or intimidating behaviour during that conversation despite three witnesses reporting hearing her yelling or shouting or screaming at Ms Bellwood and one witness reported hearing her using a raised voice at Ms Bellwood.
The applicant criticised the respondent for engaging an independent external investigator to conduct the fact finding investigation stating that it was not warranted given that "typical and heated exchanges often take place".
The respondent noted that the applicant did not offer an apology for her actions. She indicated that she was prepared to participate in mediation "if this would be of any assistance to Ms Bellwood". The respondent read that as implying that the applicant had nothing to learn or gain from such mediation and saw no assistance for herself in participating.
The applicant was held to be in breach of the JH & FMHN Code of Conduct and the respondent's values of care, communication, honesty, professionalism and respect. She was issued with a second formal warning. She was advised that she was to remain in her substantive position as Clinical Nurse Specialist Grade 2 from Monday, 29 July 2013 and her salary would revert to that of her substantive position. There was a reference in that warning letter to a "lack of insight into your own behaviour".
She was warned by Jenny Law, Acting Executive Director, Clinical Operations (Custodial Health), on 2 July 2013, that further disciplinary action and/or termination of her employment may result if she failed to demonstrate an immediate and sustained improvement in her behaviour.
Once again, the applicant pointed to a number of discrepancies in the fact finding investigation conducted by the respondent: 1. an assumption was made that the applicant was probably aware of Ms Bellwood's pre-existing vulnerability and sensitivity to aggressive and intimidating shouting and yelling arising from a previous traumatic incident in her life and that as a trained health professional, and armed with that knowledge, she should have exercised increased care in her behaviour towards Ms Bellwood. It was significant to note that the applicant had not been aware of any reason why Ms Bellwood would require "increased care"; 2. despite her repeated requests, the applicant was not provided with the transcript of the interviews of the witnesses in that matter. She was advised that the witnesses refused to provide consent to the release of the transcript of their interviews. It was noted that the transcripts could have been released suitably redacted; 3. the fact finding investigation recommended, on 21 June 2013, that the applicant be transferred out of her secondment in the Care Navigation Support Program team (intended to continue until 2015) back to her substantive position as a registered nurse. It was significant to note that the recommendation was actually implemented the day after the incident, on 24 April 2013. It had resulted in a serious financial penalty as it involved a reduction in salary and position for her. It had also resulted in her once again being directly supervised by Ms Gilmour. Once again, the applicant had been denied procedural fairness in that the outcome of the investigation was pre-determined and she was not given an opportunity to respond to the recommendation before disciplinary action was imposed. 4. a hearing test undertaken by the applicant on 3 October 2013 revealed high frequency loss in both ears. The outcome was advised to Ms Bettina Larsen, her direct line manager. The Industrial Registrar declined to issue a summons to Ms Larsen to attend to give evidence; and once again the respondent failed to implement its own Conduct and Discipline Policy. Mr Grimmond agreed that the applicant had not been provided with counselling, coaching, regular performance development or review to ensure agreed corrective action had been successful as required prior to disciplinary action being taken.

The Third & Final Warning

A fact-finding investigation found sustained an allegation of unprofessional conduct by the applicant against Ms Jacqueline Wood, Eligible Midwife, on 4 September 2013.
The incident related to a telephone conversation between the applicant and Ms Douglas about Ms Wood. Ms Wood overheard the conversation during which the applicant referred to her working at home as "a bit precious" and commented about her access to the PAS (a record keeping system) at home.
Ms Douglas confirmed to the fact finding investigation that the conversation had indeed taken place during the course of which the applicant told her things about Ms Wood such as she was precious, was never around, worked from home, put people on PAS from her home and was generally not well regarded by other staff members.
The applicant maintained at the time of the incident, and again at the hearing, that she was sorry for making the comment and sorry that she had offended anyone and had apologised to the complainant.
It was noted that the Investigator had identified the actual issues which were manifested in a highly pressured environment on the particular day of the incident. It was held by the fact finding investigation that her actions were unprofessional and considered to be in direct breach of the JH & FMHN Code of Conduct similar to the conduct complained of in, and subject to, the second warning.
The applicant accepted the findings of the investigation and acknowledged she was wrong and undertook that it would not be repeated. She provided detailed reasons for venting on that day detailing the stressful situation she had found herself in.
The investigator recommended formal counselling (relating to appropriate management of professional issues and clinical supervision), education course/s to assist the applicant in dealing with such issues and additional training and accreditation for nurses in venepuncture to relieve the clinical pressure: 8. RECOMMENDATIONS (i) As the evidence supports that Ms Smith was discussing professional issues with Ms Douglas over the telephone, she should receive formal counselling from her Executive Director regarding appropriate management of professional issues and advised to commence clinical supervision and/or an educational course to assist her in dealing with such issues in the future. (ii) The evidence shows both Ms Smith and Ms Wood had discussed the issues regarding venepuncture accreditation for the nurses with the NUM at SWCC but no action had been taken at the time of writing this report. This issue should be reported to the Regional Nurse Manager Metropolitan for resolution, with an outcome that Primary Health nurses in SWCC be trained and accredited in venepuncture by June 2014.
Those recommendations were not implemented. Instead, the applicant was warned, on 27 November 2013, by Gary Forrest, Executive Director, Clinical Operations (Custodial Health) that unless there was an immediate and sustained improvement in her behaviour and professionalism, then further disciplinary action may apply, up to and including termination of her employment.
Mr Grimmond agreed, under cross-examination, that he was not aware of the context in which the reference was made - what the issue the applicant was discussing was about or what her intentions were - as he had not overheard the discussion. Nevertheless he considered the comment about working from home to be bullying in nature and could only be considered as negative.
Mr Grimmond also agreed that he was not aware until the morning of the hearing, upon making an inquiry from Ms Bernadette Hollis, that there had not been any implementation or follow up on the recommendations.
The applicant submitted that, in light of, firstly, the recognised clinical and workplace pressures identified by the fact finding investigation and, secondly, the lack of implementation of the recommendations and, finally, the fact that the incident was not sufficiently serious to warrant a warning, then the disciplinary process was procedurally unfair to her.

The fourth allegation

It was alleged that: 1. On 5 June 2014, Ms Smith stood at the lunch room door and waved a urine specimen in a plastic bag in front of herself. In a raised voice and using an aggressive tone Ms Smith then demanded to know who from the staff present had placed the urine sample in her fridge. 2. When Sonja Laxale, a staff member, responded that she had put the sample in the fridge, Ms Smith threw the urine sample across the table in that staff member's direction yelling in an aggressive tone about correct labelling of pathology before leaving the room.
A fact-finding investigation was conducted by Ms Lisa Hogan, Nurse Manager Women's Health & Metropolitan Cluster, and Mr Andrew Dakin, Nurse Manager Inner Metropolitan Cluster, on Friday 4 July 2014 into the above allegations.
The applicant excused her behaviour by the fact that she had been feeling very frustrated on that day owing to a number of minor incidents that had occurred. She also stated that the tea room was full and therefore she could not walk round to Ms Laxale so she had "tossed" the specimen to her. She offered to apologise to Ms Laxale but stated that she was aware that it was not Ms Laxale who had lodged the complaint but another staff member who had a vendetta against her because she had "caught her out very badly doing something wrong recently". That allegation had not been backed up by any evidence nor was it elaborated on.
The investigators found both allegations sustained based on the statements received from both the applicant and witnesses. It was found that the applicant used unprofessional behaviour, behaved in an inappropriate, aggressive, demanding and intimidating manner towards other members of staff by engaging in a verbal outburst in front of a number of staff in the meal room in breach of the JH & FMHN Code of Conduct and the Harassment, Bullying and Discrimination Policy and the NSW MoH Code of Conduct.
When that behaviour was considered in conjunction with the three previous warnings on her personnel file, it was obvious that the applicant showed poor regard for her colleagues and no regard at all and much antipathy towards her managers and her employer. She had not improved her behaviour despite the three previous warnings for similar conduct. Mr Paul Grimmond, then Acting Executive Director Clinical Operations (Custodial Health) wrote to the applicant on 11 August 2014 advising that he was "considering making a recommendation to the Chief Executive to terminate [her] employment on the basis of [her] ongoing unacceptable aggressive and intimidating behaviour to other staff despite numerous previous formal warnings".
However, before doing so, Mr Grimmond gave the applicant an opportunity to provide a written response by 19 August 2014 to both the investigation outcome and his intended recommendation.
The applicant agreed at the time, and again at the hearing, that her conduct had been inappropriate, however, she denied that her tone and actions were intended to be aggressive or intimidating.
The applicant contended that the entire investigation and outcome were procedurally flawed for a number of reasons: 1. she did not receive the transcripts of interviews of the witnesses until 3 September 2014 - after the allegations were put to her and not before the NSW NMA intervened; 2. Mr Grimmond agreed that in each of the interviews conducted, the interviewer had asked a series of identical leading questions designed to elicit evidence of the applicant's alleged aggression. That evidence would normally be rejected or, at the very least, diminished significantly; 3. the complaint was not made by Ms Laxale. It was made by two other individuals who the applicant believed had a personal vendetta against her. It was made known to Mr Grimmond in correspondence from the applicant dated 22 August 2014 but that was neither investigated nor considered by the respondent; 4. the transcript of the interviews reveal that despite repeated leading questioning by the interviewers, the witnesses denied that the specimen had been "thrown" in an aggressive manner or that she had been aggressive in her manner. Each of the witnesses opined that she spoke "in a loud voice" generally. It was noted that the witnesses were asked to comment on whether the applicant's actions were "unprofessional" without being provided with a context, particularly in the case of Ms Wiseman, a cleaner; 5. despite the respondent's contention that all witnesses had been interviewed, only 6 of the available 10-13 witnesses had been interviewed. For example, Mr Maposa (from the Mental Health Unit) who have not been interviewed provided a statement which, although it did not provide any additional or new information in relation to the incident, is notable in that it does not mention "aggressive tone" or "aggressive conduct" and would have gone some way towards altering the balance of the evidence against the applicant. The finding of "aggression" allowed the respondent to draw a connection between each of the four incidents to demonstrate a "course of conduct" supporting the decision to terminate her employment; 6. in addition to general principles of procedural fairness, the respondent's policies require the interviewer in a fact finding investigation to be independent and impartial. Ms Lisa Hogan's involvement was therefore questionable given that she was a manager at the applicant's workplace, she was intimately involved with the applicant on a day to day basis ad was also the individual who "marched" the applicant out of her workplace on the day of her termination; and 7. it was clear that the respondent was intent on terminating the applicant by June 2014 prior to the investigation report being handed down. The applicant, who had 24 years' service, had been omitted from the first "Recognition of Service Awards" program dated 30 June 2014 which honoured her colleagues of 20 and 25 years' service.

The fifth incident

The Respondent submitted that even if the applicant had survived the 4th formal warning, her employment would have come to an end because of a 5th incident on 28 August 2014.
The respondent received two reports from witnesses to the incident on 28 August 2015. Ms Marilyn Brown forwarded her report in an email on 29 August 2015 and Ms Eleanor Elliott forwarded her report in an email on 3 September 2014.
Ms Brown, an employee of Corrective Services, was organising a clinic room with the assistance of Ms Elliott, an employee of the JH & FMHN (and also a witness to the 4th incident) for the purpose of conducting a rehabilitation assessment with a patient when an altercation occurred between them and the applicant.
Ms Renee Hall, Acting Nursing Unit Manager, forwarded an email to Ms Hogan setting out what she had been informed about the incident by each of the participants who came in to report to her. As this matter has not been investigated, I have set out the relevant reports contained in the said email: Smith: Sometime around 0940 Stephanie approached me in my office to discuss an issue which had just occurred between herself and Eleanor….She stated that the room was booked for the physiotherapists to use as they required two rooms due to a lengthy clinic list. I agreed with Stephanie that the room had indeed been booked to the physiotherapists. She stated that this is a very busy clinic and that we do not have the ability to 'give away' rooms to CSNSW, and that they also have their own rooms in the clinic. She also said she had 'kicked them out' of the room. She stated that Eleanor had given CSMSW access to the room and that if she wanted to give them a room she should give up her own room. Stephanie expressed that Eleanor would not give up her room 'for love nor money'. She stated that Eleanor would probably come to me shortly to complain about Stephanie's actions. I advised Stephanie that I would speak with Eleanor about the issue. Elliott: Shortly thereafter Eleanor came to me upset and wanting to discuss the issue which had just occurred with Stephanie. Eleanor stated that she was aware that physiotherapy had the room booked, and had approached them to see if the AOD worker could use the room for approximately 20 minutes. She said the physiotherapists said that was fine as they were not commencing their clinics yet. Eleanor stated that she like to help the AOD workers out as they help her out. She reported that Stephanie has 'barged in' and started abusing her and stating that we were not giving up our rooms to 'them' (CSNSW). She reported that Stephanie raised her voice and was yelling. She did this in front of the patient, clinic officers and the AOD worker. Eleanor states Stephanie then followed her and continued the verbal abuse. Eleanor became frustrated and called Stephanie a 'room Nazi'. She said she knew she should not have done this but was upset and frustrated…. I had Eleanor in my office on two more occasions crying that afternoon. She was upset that Stephanie appeared to hate her, she was upset at the way she had been treated, that it was done in front other staff and patients, and she was upset that management may perceive her to be a trouble maker. She said she had been a witness to a fact finding about Stephanie and that she had 'gone in' prior to Stephanie. She feels that Stephanie may have thought she as the complainant in that matter, and thus the reason for her attitude. I assured her based on all accounts that I did not view her as the instigator of this incident, and would report this to be the case. After a period of her venting with supportive active listening from myself she stated that she felt much better. Brown: Later in the afternoon I was approach (sic) by the CSNSW AOD worker Marilyn and another CSNSW staff member …. Marilyn was quite angry at the way Stephanie had acted earlier that morning and was particularly disturbed by how upset Eleanor was, and how she was treated by Stephanie. They confirmed that Stephanie had been verbally aggressive and abusive to Stephanie and they were shocked that she did this in front of other staff and patients. They believed that if Stephanie had an issue she should have approached her manager about the matter. They were also concerned about the working relationships between CSNSW and Justice Health staff.
Ms Hall further reported that shortly after Ms Elliott came into her office, the applicant returned. Ms Elliott had attempted to apologise for the name calling. Ms Smith had refused to accept the apology describing it as meaningless. In later discussions in the presence of Ms Hall, the applicant continued to berate Ms Elliott and to criticise her character.
Ms Brown reported the incident to her manager who formally raised the matter with his counterpart in JH & FMHN and to the applicant's Nursing Unit Manager.
A formal meeting was held between Corrective Services NSW and JH & FHMN on 3 September 2015, Mr Morris advised that he was concerned about the working relationship between his staff and the applicant. The applicant did not have the confidence of Corrective Services with whom JH & FMHN co-ordinates in providing health services to inmates.
The only information the respondent was missing in relation to the 5th incident was the applicant's written version of what happened. The respondent pointed out that the applicant was aware that the incident would be a relevant matter to be considered were she to be returned to work. It was expected that the applicant would, if given the opportunity to respond, dismiss her conduct as trivial, or minor, or not disrespectful of fellow employees or not unprofessional or justifiable given her frustrations in working with others. On that basis, it was submitted that reinstatement would be impracticable as it would result in the applicant being immediately suspended pending investigation of the 5th allegation and ultimately dismissed again if the allegation was proven.
The applicant pointed out that Mr Grimmond, under cross-examination, gave evidence that the alleged fifth incident was never investigated. In addition, the respondent gave undertakings, in writing, as a result of a formal dispute raised before the Commission on 8 September 2014, that "at this stage JH & FMHN do not intent (sic) to investigate the alleged incident on 28 August 2014 and this incident is not being taken into consideration to bolster the case to terminate Ms Smith's employment".
It was submitted that the so-called 5th incident cannot now be relied on by the respondent to substantiate or form the basis to support her dismissal or any other disciplinary action.

The day of the termination

Ms Hogan, on 6 February 2015, handed the applicant a letter from the CEO advising of her termination. The letter stated: 1. that the first formal warning was for participating "in an indirect form of bullying and harassment". That was not a finding made by the fact finding investigation and was not mentioned in the two subsequent formal Grimmond letters involving the ensuing warning. In addition, the claim that the applicant had breached the Code of Conduct by emailing the transcript was never established; 2. that the second formal warning followed a "heated discussion" when the applicant "spoke in an aggressive and intimidating manner" yet the fact finding investigation actually found that the applicant had behaved inappropriately. The investigator interpreted that to mean that she had behaved aggressively and therefore in an intimidating manner; 3. correctly that the allegation of "unprofessional behaviour" was substantiated. Nevertheless the term was vague and no clarification was provided by the policy documents. On that basis, there was no justification for the claim in the CEO's letter that the behaviour was in "direct breach" of the Code of Conduct or that, by implication, the behaviour constituted "bullying and harassment" similar to that in incident 2 particularly when the fact finding investigation did not use those terms; and 4. that the procedurally unfair and flawed methodology used in the investigation process cannot be used to establish that the applicant behaved in an "inappropriate, aggressive, demanding and intimidating" manner.
The applicant submitted that she was shocked as she expected a further opportunity to respond. The respondent argued that the expectation was not borne out by the evidence - she had been advised in writing, on 9 January 2015, that dismissal was being considered and given an opportunity to respond. She had declined that opportunity pointing out that she relied on her response as contained in her email of 23 December 2014. She had repeated, under cross-examination, that she had said all she wanted to say in the email on 23 December. It was not until 4 February 2015 that the applicant pointed out that her length of service and medical condition had not been considered by the respondent and sought more time. The respondent pointed out that the assertion was wrong as she had raised them in the said email of 23 December and had been responded to in a reply email by the respondent.
The respondent steered away from bringing evidence in relation to the applicant's departure from the workplace as, with any other dismissal, it carries with it an understandable degree of upset and distress and such matters do not illuminate the question of whether the dismissal itself was harsh. Nevertheless it was submitted that there was no evidence before the Commission that JH & FMHN took any deliberate action aimed at exacerbating the departure. Even if it was submitted that the departure may have been handled better, it was not a sufficient criticism to render a termination as harsh just as cushioning the blow of termination does not render a termination not harsh.
The respondent confirmed that the applicant was escorted from the premises but it was argued that she was allowed whatever time she needed to pack up and depart. It was submitted that none of the observations by her witnesses were surprising - Ms Malone stated that she felt that management drew attention to the dismissal in that others had witnessed the applicant's removal from the premises and she "felt" that she could not approach; and Ms Maireriki believed that the applicant's removal could have been handled better - nevertheless, they did not demonstrate bad intent on behalf of the respondent. It was pointed out that just because they were not required for cross-examination does not mean that their statements were to be given any more weight than any other material before the Commission.
The respondent submitted that it was a matter of reasonable judgment that extending the departure to allow the applicant to say her goodbyes may have ultimately been more distressing for her. It was noted that the applicant was able to meet her colleagues on another occasion.
The respondent noted that a sympathetic supporter of the applicant, Ms Malone, gave evidence that the applicant: 1. had issues with management; 2. could be quite forthright and be taken the wrong way; 3. probably had not handled things properly; and 4. what she did by tossing the urine sample may not have been acceptable.

The Applicant's Submission

It was submitted on behalf of the applicant that her evidence demonstrated her earnestness and her genuineness. It also demonstrated her commitment to assisting the Commission to clarify the various chains of events which led to her warnings, namely: 1. the respondent's governance arrangements and how they impacted on her in a manner which denied her procedural fairness; 2. the conduct in relation to each warning which was unsatisfactory; 3. disclosure of her shortcomings in relation to her interactions with her colleagues; and 4. her acceptance of personal responsibility, regret and remorse for the inappropriateness and seriousness of the relevant conduct and the effect they had on her colleagues.
That was done in a calm and credible manner despite the respondent's attempts to paint her as a witness who was incapable of accepting personal responsibility for her actions.
The applicant demonstrated, under cross-examination, her admission and acceptance of personal responsibility for her actions. She did not consider her unsatisfactory conduct to be "trivial". However, she was not willing to accept that the punishment for each of the incidents was proportional or appropriate. whether the incidents were considered in isolation or considered as a course of conduct.
The applicant denied that her relationship with the respondent soured in about 2002/2003 when she first lodged a complaint against Ms Gilmour. She insisted that it was the formal warnings that commenced in 2012 that caused her concern although she continued to consider her employment to be tenable. It was towards the latter part of 2014 that she began to have concerns regarding the continuity of her employment.
The Commission was urged to review the relevant policies and procedures in force at the time of the various fact finding investigations and at termination in order to determine whether procedural fairness had been afforded to the applicant. It was noted that Mr Grimmond had agreed that the evidence demonstrates that these policies were not complied with by the respondent, either adequately or at all.
A formal disciplinary interview was not conducted in relation of the warnings given to the applicant. It was noted that the MoH's policy document noted that a denial of procedural fairness "as seen by the NSW Industrial Relations Commission" may result in a situation where "while the decision of an employer to terminate the services of a staff member may in itself be fair, the failure to follow the appropriate procedure in reaching this decision may of itself constitute a dismissal which is considered harsh, unjust or unreasonable".
Information sheet 12 included a consideration of "remedial" as well as "disciplinary" action. The respondent did not at any stage consider any alternative to disciplinary action, such as remedial actions despite repeated recommendations to engage the applicant in remedial processes through counselling, training, guidance, the setting of clear performance improvement indicators, and so on.
It was noted that the respondent's Code of Conduct provided, in clause 2.3, that possible outcomes for breaches of the Code included counselling, performance improvement plans and formal disciplinary action.
The Respondent's own policies and procedures also specified: 1. Standard will be established through … performance development and review… workplace training and development; 2. Disciplinary action must be managed … in accordance with the following standards: 1. Assessment and investigative processes have identified the key facts of the alleged breach of discipline before any action is taken; 2. The staff member who is the subject of the allegation is: 1. Advised of the nature and perceived seriousness of the alleged breach of discipline; 2. Given an opportunity to adequately state their case at the appropriate stage within the process; 3. Given an opportunity to correct/comment on any relevant statement(s) relating to their case; 4. Advised of any findings from any investigation; 5.Given the opportunity to respond to a decision on disciplinary action before the disciplinary action is imposed; and 6. Made aware of rights and appeal mechanisms, including the right to have a support person present at any disciplinary hearing. 1. Adequate records are kept at all stages of the disciplinary process and securely stored to maintain confidentiality. 2. For many staff, an initial counselling session dealt with at the department level will correct the unsatisfactory behaviour. This informal procedure involves: 1. Counselling the staff member the issue or problem is clearly outlined, detailing what is expected from the staff member, including advice that if the behaviour continues formal disciplinary action will be taken; 2. Documenting the incident as a contemporaneous file note or if warranted, in a letter to the employee; and 3. Monitoring the staff member's performance through performance development and review. 1. The following must be considered during this process: 1. Life events may adversely affect the performance of an employee. Managers should be mindful of factors which suggest that an employee's personal matters are affecting their performance. While respecting the privacy of staff, it is important and appropriate for managers to offer assistance. This may include using the Employee Assistance Program. 2. Only after performance development and review has failed to correct poor performance should disciplinary action be taken to correct and or improve staff performance.
The Commission was invited to draw a Jones v Dunkel inference that the evidence of other witnesses (such as the three investigators) would not have assisted the respondent's position and that was the reason why Mr Grimmond, who had minimal and peripheral involvement in the applicant's employment, disciplinary processes and termination was the only respondent witness in relation to the applicant's claim. It was submitted that Mr Grimmond was not a credible witness because he could not speak authoritatively on most of the incidents and was reliant on others for information on key aspects leading him to confess ignorance or to offer an opinion. It was submitted that for him to blame his hesitancy and procrastination entirely on the nature of the questions put to him was to attempt to obscure that critical lack of authority.
The respondent's evidence that there were no other records apart from what was already produced of relevant discussions between managers and executive regarding the disciplinary processes for the applicant, her performance reviews, or decisions regarding her employment and termination was in direct conflict with the respondent's policy and procedure: D12: a. Records obtained or generated for the purposes of notifying, investigating and managing breaches of discipline must be captured, managed and disposed or in accordance with JH & FMHN policy 2.014 Corporate Records Management. Records must be retained in the staff member's Personnel File regardless of whether allegations are proven or not.
The Commission was invited to draw the conclusion that either the documents do not exist in which case the respondent was in breach of its own policies or they exist but were not produced because they would have been detrimental to the respondent's case. In either case, the applicant's application would warrant being upheld by the Commission as a result of the respondent's serious breach of procedural fairness.
The applicant gave evidence that she kept the respondent informed of her various health issues as they occurred: 1. Hearing loss - October 2013; 2. PTSD and severe sleep apnoea - 22.08.14; and 3. Cerebral bleed - 21.09.2014 That was denied by the respondent who noted that the applicant had recently worked extra shifts and overtime which did not auger well with her claim of ill health. It was noted that there was no evidence that the respondent had checked the applicant's personnel file or checked with her managers regarding the receipt of such medical advice. In any event, even if it was not received at the relevant time, the information was raised in her letter of 22 August 2014 and the decision to terminate her employment ought to have been considered in light of that evidence prior to termination.
It was disingenuous and unfair to suggest that "evidence of hearing problems does not cause unprofessional and inappropriate behaviour including intimidating behaviour". Mr Grimmond, in cross-examination, agreed that hearing loss would result in an individual using a louder than normal voice. The applicant's voice was considered by the respondent to be "aggressive", "intimidatory" and "unprofessional" leading the applicant, after the 2nd warning to voluntarily undergo a hearing assessment and providing the results to the respondent. Her hearing loss contributed to her loud voice and therefore the perception that she was aggressive, intimidatory and unprofessional. The applicant was not claiming that she was discriminated against nor was she claiming that her health issues were preventing her from working overtime - she was merely pointing out that there were mitigating factors that the respondent needed to take into account in determining whether termination was an appropriate outcome in the circumstances.

The Respondent's Submission

The respondent submitted that there was little dispute about the substance of the applicant's actions and behaviour. The dispute between the parties related to the characterisation of her conduct/behaviour. The applicant had variously characterised her conduct and behaviour as trivial or minor, as not being unprofessional, as not being disrespectful of her colleagues, as not warranting investigation, or not in breach of accepted standards or the Code of Conduct. The respondent disagreed on all points.
The applicant, it was submitted, continued to deny that there was anything wrong with her conduct/behaviour believing instead that what she did was right or somehow justifiable or excusable. She maintained that lack of insight into her behaviour during the arbitration proceedings thereby underscoring the respondent's submission that the applicant was unable to view her conduct from the perspective of others and therefore remained unable to appreciate the adverse impact of her poor conduct/behaviour on her colleagues.
It was noted that the applicant was seeking monetary compensation. The respondent submitted that compensation was not warranted for two reasons. Firstly, even if the dismissal was unfair, her employment would have shortly come to an end anyway because of a fifth incident and compensation could not extend beyond the few weeks it might have taken for that incident to be investigated and decided. Secondly, it was submitted that the applicant had not been diligent in seeking alternative employment and had actually delayed seeking employment during various stages of these proceedings.
The respondent pointed out that the applicant was given the opportunity to respond to all the material attached to Mr Grimmond's statement and chose not to do so in many respects. The Commission can therefore have regard to that material as much as any oral evidence as by section 163 of the Act, the Commission is not bound by the rules of evidence and may inform itself in any way it considers just.
The respondent also pointed out that the applicant had not met her obligations as contained in her position description because of her inability to develop a team approach and in following at least two of the respondent's five Core Values of Respect, Professionalism and Clear Communication. When cross-examined about her position description, the applicant accepted its contents with some qualification as to her reporting line to Ms Gilmour and also in relation to whether the requirement to communicate at all levels was properly characterised as a value when it ought to have been a directive.
The applicant insisted that Ms Gilmour had managerial responsibility for her. The respondent argued that while there was liaison between them in order for the work to be undertaken, Ms Gilmour was in another Stream to that of the applicant and it was Mr Grimmond who had managerial responsibility for the nurses which included the applicant.
The respondent noted that the applicant had accepted, under cross-examination, that Ms Gilmour played no part in the decision in respect of her employment or termination and played no part in the four incidents described above apart from being the person indirectly bullied in the first incident.
The respondent also noted that the applicant did not seem to comprehend the concept of "indirect bullying" that occurred in incidents one and three as Ms Gilmour had not been aware of the email in the first incident and the third incident involved she was overheard talking to another employee over the phone.
The respondent pointed out, in response to correspondence from the NMA, that the applicant had not brought any information to her manager's attention nor lodged a formal complaint against anyone harbouring a vendetta against her.
The respondent pointed out that staff at the Centre where approached by the investigating Manager to ascertain who had witnessed the fourth incident. The roster for that day was also checked to determine possible witnesses. Only six were identified and attended the fact finding interview. It was noted that the applicant had not provided the investigators with any names of possible witnesses to interview.

Consideration

I accept that the application does not give rise to any novel legal questions and may be determined on the well-established principles.
It is also not disputed that the applicant bears the onus of establishing that the termination was harsh, unjust or unreasonable and that she has an entitlement to relief.
I have considered the evidence and submissions regarding the period to 2012 and do not consider the "confidentiality" issue dating back to December 2002 to be a relevant issue in the determination of the incidents relied on for the dismissal.
I have also considered the previous work history and do not accept that the applicant had an unblemished work record. There was an incident in 2003 which had resulted in the applicant receiving a formal letter on 17 April 2003. Nevertheless, one incident in 30 years is a record that the applicant can be proud of.
The NSW Health Code of Conduct 2012 relevantly provides: 4.1 Promote a positive work environment Staff must: 4.1.1 …. 4.1.2 treat all other members of staff (irrespective of whether they are at the same level of seniority, or more senior or junior) in a way that promotes harmonious and productive working relationships, and a collaborative teamwork approach; 4.1.3 not bully or harass other staff, …. Or discriminate against them on the basis of their sex, race, ethnic or ethno-religious background, marital status, pregnancy, disability, age, homosexuality, transgender or carers' responsibilities; 4.1.4 not encourage or support other staff in harassing or bullying, or in acting in a way that is contrary to harmonious working relationships between staff members; 4.1.5 where appropriate, attempt to settle any complaints, disagreements or grievances involving other staff themselves in the first instance; or pursue such matters through their manager or a more senior member of the staff in a way which is proportionate to the issues raised, utilises applicable NSW Health policies, and recognises that in any process to resolve such matters other staff also have perspectives and rights.
The NSW Health, Justice & Forensic Mental Health Network Code of Conduct also relevantly provides: 6.4 Respectful Language in the Workplace Staff involved in the criminal justice system have the right to expect that they will be spoken to in a reasonable manner by colleagues and managers. Harassment, bullying and discrimination of any kind is not tolerated, …. Coarse, loud, abusive and/or obscene language is inappropriate in any workplace, as is sexual banter and suggestive behaviour, whether written, spoken or in images. The use of such language causes offence and may constitute harassment or intimidation. No staff members should use or tolerate such language. Offensive language is equally unacceptable towards inmates, detainees, patients, and of members of other agencies working with Justice Health.
The applicant rejected the first investigation as not warranting the time spent on it and did not accept that she should have received a warning. Under cross-examination, the applicant argued that the investigation was skewed in that it was undertaken by Terri Sheehan, Regional Nurse Manager Rural & Remote, who, she alleged, was a friend of Mr Clegg who was bullying Ms Pekin. I reject that submission. Firstly, a joint investigation was conducted and, secondly, there was absolutely no concrete evidence to support such an allegation by the applicant.
In fact, during the fourth investigation the applicant was asked directly if she considered her behaviour unprofessional. The applicant was quoted as responding: That's a loaded question, because if I say yet what happens? If I say no, I mean this is the fourth fact finding I have done. I was given a fair hearing in the first and third but the second one I wasn't. They employed a lawyer from outside to crucify me and he did. She responded to the question by stating that she did not feel that her conduct had been unprofessional but conceded that, in hindsight, she would have handled the situation differently.
In her response letter to Mr Grimmond, dated 22 August 2014, the applicant admitted that the manner in which she addressed her colleagues in the tea room made her frustration apparent but denied that her tone had been aggressive. She pointed out that she had raised her voice because the tea room was noisy at the time. She also admitted that the "bounced or skimmed the specimen across the table" and it travelled about a metre towards Ms Laxdale but rejected that it was done in an aggressive manner.
I accept that the manner in which the fourth allegation was put to the witnesses was leading: Stephanie Smith stood at the lunchroom door, waving a urine specimen which was in a plastic bag in front of herself and in a raised voice and using an aggressive tone she then demanded to know from staff present in the meal room who placed the urine sample in her fridge. When you had stated that you had put the sample in the fridge Stephanie then proceeded to throw the sample across the table in your direction, yelling in an aggressive tone about not labelling pathology and then left the room.
However, in all four matters, I have considered primarily the evidence of the applicant and the persons at whom her comments were directed. I find that the applicant's responses in each of those incidents lacked respect for other staff members and in particular her supervisors - for example, the willingness to participate in mediation if Ms Bellwood, her supervisor would find it of assistance.
I find that the applicant made allegations against other people but failed to produce any evidence in support of those allegations. She expected to receive procedural fairness yet she did not afford procedural fairness to those at whom she threw mud - for example, the allegation the staff member who shall remain nameless who filed the complaint about her treatment of Ms Laxdale because she had "caught her out very badly doing something wrong recently".
In the applicant's response to Mr Grimmond dated 22 August 2014, she set out her health problems for consideration by the respondent. Firstly, in relation to her hearing, she contended that she had a more than average hearing loss but not sufficient to require hearing assistance. She said she avoids noisy environments such as the tea room for that reason. Secondly, blood tests conducted in about 2012 had revealed that she had a major iron deficiency but that had resolved with medication. That issue is not relevant to the current proceedings. Thirdly, she contended that she has been diagnosed with sleep apnoea and was relieved to have found the source for her tiredness. She was undergoing assistance and her line manager was being very supportive. Fourthly, she has put in extra time in order to participate in a research project that ran for 2 weeks. She received time off in lieu or overtime during that time. No dates have been provided. I cannot see the relevance to the matters raised in these proceedings. Finally, she has been diagnosed with Post Traumatic Stress Disorder owing to her work environment. There was no evidence of a workers' compensation claim in that regard or proof for that matter. It is noted that the respondent advised the NMA, on 3 September 2014, that at no time during the first three incidents did she raise with her manager or the organisation or provide written evidence that she suffers from hearing problems, sleep apnoea and PTSD. Ms Smith was not discriminated against because of her health problems.
I accept that improvement cannot come without insight and the applicant was incapable of learning how to improve her behaviour without the benefit of insight into her own behaviour and admission of wrongdoing when admission was warranted.
Considered individually, the incidents described above may have been able to be resolved had remedial action being taken as recommended by the fact finding investigations. However, that was not done.
Nevertheless, the applicant was on sufficient notice in relation to her conduct.

Harshness of the Dismissal

It was submitted that the manner in which the applicant's termination was conducted, as stated by the applicant and corroborated and supported by Ms Maireriki and Ms Malone's evidence, was particularly distressing, humiliating and upsetting for her and for those who witnessed it.
It was undisputed that the applicant was "marched" or escorted off the premises under supervision by Ms Hogan on the 25th anniversary of her commencement with the respondent. She gave evidence that she was made to feel "like a criminal". It was submitted that such an exit was known in Human Resources literature as "the exit parade. It is globally considered to be a deliberately orchestrated tactic of removing an individual from the workplace in a manner which humiliates and demeans that individual, as well as causing fear and uncertainty in the colleagues witnessing the incident, for the purpose of giving an implied warning as to how they will also be treated if they displease management".
Her departure occurred in front of her work colleagues without an opportunity for her to say her goodbyes or provide an explanation and without an opportunity to conduct an appropriate handover of her patients at a busy time of the workplace. The applicant and her witnesses gave extensive, undisputed evidence to the effect that the respondent took deliberate action to exacerbate the humiliation and embarrassment the applicant suffered as a result of her termination. The dismissal was conducted at a time of the day when the workplace was very busy. It was contended that it was designed to ensure maximum exposure and cause public humiliation.
She was terminated summarily without being informed of her rights or entitlements especially when she had been approached that morning to work overtime; without being provided with an assurance of payment of her entitlements; without being provided with a statement of service for her 42 years' of service with the MoH of which 25 years was with the respondent; and loss of her accumulated sick leave and continuity of service. It was noted that her request to access her long service leave had been denied because the workplace was too busy.
The applicant was left with the impression, following discussions between the respondent and her association, that she risked being placed on the Service Check Register and she held that belief until the conciliation conference before Newall C.
The applicant sought employment immediately following termination and gained casual employment in about March 2015 until mid-May 2015 giving vaccinations. A problem then arose regarding her nurse's registration. Her self-identification to the registration board was required as a condition of her annual application for re-registration. She was required to provide all the supporting documentation in relation to her termination and disciplinary process. The issue was not dealt with quickly by AHPRA. For the first time in 42 years, she was subjected to lack of registration. She was therefore unable to apply for nursing positions until July 2015 when she obtained a 3-month contract. The period during which she lacked registration had a significant impact on her mentally and on her ability to seek, apply for and obtain suitable employment. At the time of the hearing, she was temporarily employed as a case worker in Domestic Violence services which attracts significantly less pay.
The applicant's evidence in relation to the harshness of the termination and its consequences must be accepted by the Commission in the absence of any cross-examination on the subject and in the absence of contrary evidence produced by the respondent. The inference can therefore be drawn that the respondent agrees that the manner in which the applicant was dismissed was harsh.
In conclusion, the applicant submitted that the termination was disproportionately severe in comparison to the gravity of the misconduct given the failure of the respondent to consider alternative forms of discipline and to engage her in remedial actions to correct her alleged conduct.
The respondent relied on Byrne v Australian Airlines Ltd (1995) 185 CLR 410 as authority for harshness pertaining to the consequences for the personal and economic situation of the applicant or because termination is disproportionate to the gravity of the misconduct of the applicant.
The respondent also relied on the decision of the Full Bench in South Eastern Sydney and Illawarra Area Health Service v Dimovski [2011] NSWIRComm 139 as authority for the concept that assessment of what is harsh is to be undertaken in the context of the misconduct of the applicant. The Full Bench upheld the termination notwithstanding the impacts of the decision on the applicant. It was held that the assessment of what was harsh by the Commissioner at first instance failed: 67 …. in a serious way to have full and proper regard to the nature and quality of [the applicant's] misconduct….71. [the] termination will no doubt result in hardship for [the applicant], but [the] dismissal cannot be regarded as harsh when weighed against the misconduct.
The respondent submitted that the principles established in Dimovski included that the events upon, and following, the applicant being advised of the decision to terminate her employment were not factors to be taken into account in the assessment of whether the termination was harsh.
The respondent also submitted that any financial impact on the applicant was of her own making as she was readily able to obtain employment but chose not to do so. It was also submitted that the consequences of her termination on her personal and economic situation were exaggerated by the applicant as evidenced by her admissions under cross-examination: 1. She did not seek work in the immediate period after termination; 2. Her registration was valid through to 31 May 2015; There was no extant condition of registration that prevented her seeking work; 1. Any glitch in her registration arose because, in May 2015, she self-identified the termination as a disciplinary matter warranting disclosure; 2. It was not a matter that warranted disclosure, and that issue was quickly dealt with upon the intervention of the NMA; 3. The gap between the deregistration and unconditional re-registration was only a few weeks; and 4. Her registration is ongoing. It was concluded that any issues relating to registration did not affect the applicant's ability to obtain employment as a registered nurse.
In relation to her claim that another reason she could not look for work was the fact that she was preparing for her unfair dismissal claim, it was submitted that the respondent cannot be held responsible for a deliberate decision made by the applicant who stated, under cross-examination: 1. She did not begin to seek employment until shortly after 5 July (the date the respondent filed its evidence); 2. She obtained employment short thereafter; 3. She continues to work as a registered nurse; 4. She has never been, nor advised that she would be, placed on the Service Check Register; she was not able to name anyone who had told her that she would be; she made no enquiry to determine whether or not she was on the register; she knew, at least from the date of the conciliation proceedings (14 April 2015) that there was no Service Check entry; and since then she has made only one application to NSW Health which was withdrawn prior to it being assessed; 5. A stray comment by someone at the NMA that should not be re-employment was not evidence that she would not be re-employed ever again with NSW Health. It was noted that the applicant did not claim that the NMA told her not to apply for work; and 6. The applicant justified not applying for positions on the contents of Information Sheet 13 (Exh P2). Firstly, she did not give evidence as to when she first became aware of that Information Sheet given it is buried within a policy document. Secondly, she had mis-read the document as supporting the proposition that she would not be re-employed. It was explained that the Information Sheet directs a health organisation intending to terminate an employee to alert another employer within the public health system to review that staff member's employment. Therefore the Information Sheet did not apply as she was not employed by any other health organisation at the time of her dismissal.
The Commission was invited to take judicial notice of the fact that there was a demand for registered nurses which was also demonstrated by the applicant's evidence that she was successful in obtaining employment as soon as she applied in June/July 2015 and has been employed ever since.
It was concluded that the applicant's personal and economic situation after termination, even if harsh, arose largely from her own actions and decisions and not as a consequence of her dismissal.

Unjustness of the Dismissal

It was submitted that the failure to afford procedural fairness can render an otherwise "just" termination unfair. The applicant pointed out that the termination was disproportionate to the gravity of her misconduct. If the Commission was not inclined to accept that submission, then the litany of process flaws and continuous denial of procedural fairness suffered by the applicant throughout the period of the four warnings would be enough to warrant a finding that her termination was not justified: Antonakapoulos and State Bank of New South Wales (1999).

Unreasonableness of the dismissal

The applicant reminded the Commission that Mr Grimmond gave evidence that he was aware of the applicant's 25 years' service but he considered that it was not relevant to the decision to terminate her employment given that she had received three warning in the last two years of her employment.
The applicant submitted that the termination was unreasonable given her long and unblemished employment history (42 years in the public sector of which 25 years was served with the Respondent); given that she had no allegations of misconduct made against her prior to 2012; and had never been subjected to performance management processes. She had informed the respondent of her health issues as soon as she became aware of them despite the respondent's denials. She was 59 years of age and a single parent of a dependant son. Her only realistic avenue for future employment was the private sector in which she has never worked.
The applicant also submitted that the respondent failed to apply and implement its own policies and procedures by its failure to consider alternatives to termination or to engage the applicant in remedial actions to correct the alleged conduct.
The applicant further submitted that the respondent was not qualified to make sweeping statements about the capacity of the applicant to benefit from professional counselling or personal development training and such submissions should be disregarded by the Commission.
The applicant noted that the respondent was relying on decision of the Full Bench of this Commission in Dimovski. It was submitted that the seriousness of the misconduct in that matter was completely distinguishable from that involved in these proceedings and went on to present a comparison of the factual circumstances to demonstrate the significance difference between them.
The applicant concluded that the dismissal was harsh, unjust or unreasonable within the meaning of section 84 of the Act.
The applicant was not seeking reinstatement to the respondent's organisation given the issues identified in the proceedings. She was seeking reinstatement to a position commensurate with her qualifications, training and experience within the MoH, with continuity of service and a reinstatement of her sick leave entitlements.
In the alternative, the applicant was seeking the maximum compensation given the length of her service and the harshness of her dismissal. She actively sought alternative employment following termination and was able to obtain casual then part-time employment in another field in a lesser position and at lesser pay than she earned with the respondent. The applicant would be willing to provide a statement of income earned in the period post termination if compensation was considered by the Commission to be the appropriate remedy.
It was argued that the applicant did not have consistent legal representation throughout the proceedings and was assisted on a limited basis by a firm of solicitors for the sole task of preparing evidence from witnesses. She was therefore not aware of the distinction between an application for reinstatement and an application for re-employment and did not seek advice and was not advised on that issue. She sees no reason preventing her from being employed within the MoH as a whole. There cannot be any prejudice to the respondent in her seeking re-employment. As no evidence has been put on in relation to the issue of reinstatement, it seems unlikely that the respondent would have put on evidence in relation to re-employment.
The respondent also relied on Byrne as authority for the concept that a termination will not be considered unjust if the decision to terminate was based on established facts and will not be unreasonable if the established facts warrant termination. It was submitted that the misconduct and behaviour were proved by the respondent and the applicant was given every opportunity to put her case. Termination was not unreasonable in the circumstances given her conduct and behaviour and the likelihood that they would have continued unchecked but for the termination.
The Respondent, as indicated above, ought to have heeded the recommendations in relation to remedial action and that was not done. It may not have made a difference in the circumstances described above, but we will never know.
The applicant did not deserve to be marched out, or escorted out of the premises considering her length of service and the fact that her work performance was never in question. I accept the submission of the applicant that she would have been made to feel like a criminal and that was completely uncalled for. She ought not to have been made an example for other staff members if that was the intention.
The Recognition of Service Awards are designed to recognise service. The applicant had in excess of the 24 years' service and her performance was not in question at any time. She should, of right, have been recognised alongside her colleagues of 20 and 25 years' service.
Having considered the submissions of the parties in relation to the above, I find that the dismissal of the applicant was harsh but not unjust nor unreasonable.
Re-employment, I am inclined to agree with the respondent, is not a viable proposition in the circumstances described above. The applicant has not shown any insight into the manner in which she conducted herself and no regard for some of her work colleagues and superiors.
I propose to grant monetary compensation in view of the harshness of the dismissal.
The Respondent shall pay to the applicant, within 14 days of today's date, a sum equivalent to 15 weeks' pay less the amount the applicant earned in the period between her termination and the date of commencement of the hearing.
Matter No. IRC 46007 of 2016 is hereby concluded. I Tabbaa AM COMMISSIONER

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2017

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Cases Cited (2)