Carolyn Julie Smith v Walgett Shire Council

Carolyn Julie Smith v Walgett Shire Council - [2010] NSWIRComm 1071 - NSWIRComm 2010 case summary — Zoe

[36]

FURTHER SUBMISSIONS POST HEARING 19 Arising out of my reflection of the final submissions given in Dubbo Court House, the Commission wrote to the advocates, seeking clarification to a particular issue. My correspondence is dated 24 November, 2010. The particular issue goes to "Racial Discrimination" and begins thus, "During final submissions, Mr Wilson, solicitor for the respondent submitted that the applicant was dismissed on the ground of racial discrimination in respect of an alleged incident at the Collarenebri Agency on 25 February, 2010." 20 My correspondence advised that this ground of dismissal was not readily apparent as the ground for dismissal from a reading of the material for the Hearing. Accordingly, the Commission had turned its attention (subsequent to the Hearing) to this issue and referred to the principles contained in the Anti-Discrimination Act 1977. My correspondence asked of Mr Wilson, solicitor for the respondent, as to how the facts of the case before me, met the elements for racial discrimination as set out at section 7 of the Anti-Discrimination Act 1977. (The Industrial Relations Act 1996 makes it mandatory that the Commission take into account the principles contained in the Anti-Discrimination Act 1977). A copy of this correspondence was provided to the Union. 21 Mr Wilson responded to the foregoing correspondence by letter of 1 December, 2010. Mr Wilson advised inter alia, that the respondent was not relying on a breach of the Anti-Discrimination Act 1977, when using the term, "racial discrimination" in his final submissions. Rather, "Our submissions should have more correctly identified the Applicant's conduct as racism (including the substitution of the relevant permutations of that term where applicable throughout our submissions)." His letter went on to say "that the Applicant would have known her conduct was racist, derogatory and disrespectful towards Aboriginal people…" 22 The union responded to my letter of 24 November, 2010 and Mr Wilson's letter of 1 December, 2010. 23 The union's letter asserted, inter alia, that the respondent had not sufficiently made out a case for termination on the grounds of either racism (as that term is defined in the Oxford Dictionary) or racial discrimination.

[47]

The Commission notes that this formal advice made no reference to racism or racial discrimination. 35 The applicant responded by letter of 1 April 2010 and denied the use of "inappropriate language to (a) customer". (Ex 13, Annex N) 36 Ms Bandula and a Barry Murray (an officer also with the respondent) met on 9 April, 2010 with Ms Veronica Murray who confirmed she was a customer at the Collarenebri Agency on 25 February, 2010. She reported that the applicant had given her mail and the applicant had added, "Here you go ya cunt. But she did say it in a joking way." (Ex 13, para 29) 37 Subsequent to a dispute notification being lodged by the Union on behalf of the applicant, the respondent followed up on its investigation into Ms Trindall's complaint. A letter dated 30 April, 2010 was sent to the applicant by Ray Kent, General Manager. (Ex 13, Annex P) 38 The letter sets out Ms Trindall's complaint, broken up into four paragraphs: "(a) On 25 February, 2010, a customer of aboriginal origin, Ms Veronica Murray, attended the agency to collect her mail. (b) You (the applicant) have brought and pushed towards Ms Murray her mail, saying "There you go ya cunt". (c) This was witnessed by Ms Jenny Trindall, a fellow employee. (d) You then turned to Ms Trindall saying "We are like that. It is a wonder she didn't reply by saying 'get fucked ya big white moona' 39 The letter states that Ms Trindall took offence to the above conversation but the Commission notes does not set out the ground(s) for this offence. Specifically, no allegation of racism/racial discrimination is made by the General Manager against the applicant in order for her to make out a defence based on that specific allegation. 40 The letter notes the applicant has denied the allegations raised in the complaint. However, the letter advises that Veronica Murray and Jenny Trindall have confirmed the matters referred to in paragraphs (a) and (b) above and in particular have confirmed the use of the word, "cunt". Ms Trindall has also confirmed in writing, the matters referred to in paragraphs (c) and (d) above. 41 The letter, more particularly and relevantly, the General Manager then asks seven (7) questions of the applicant for response to the matters contained in paragraphs (a) to (d) above. The relevance in identifying the author of the letter goes to the dismissal letter and the particular wording of two of the seven questions. Thus, two of the questions ask of the applicant, "If so, what is your recollection of the conversation?" The applicant responded, "…I have no recollection…" The dismissal letter makes an adverse comment based on the applicant's response. The letter states, "I note that you have previously denied the incident occurred…. You have now amended your position and informed me that you have no recollection of the incident". (Ex 5, Annex J)

[51]

Mr Wilson's written response was that the respondent did not rely upon a breach of section 7 of the Anti-Discrimination Act 1977 as the legal ground for dismissal. He advised that the applicant's conduct should be more correctly identified as "racism". Thus, he said that the applicant's "language drew a distinction between black and white skin, the latter being a characteristic that appertains, or is generally imputed, to Aboriginal persons." (Correspondence of 1 December, 2010) Mr Wilson drew the Commission's attention to a number of matters pertaining to the case and then submitted that the applicant was very familiar with the respondent's Code of Conduct and the general societal principles concerning racism anywhere. Thus, he submitted, the applicant would have known that her conduct was racist, derogatory and disrespectful towards Aboriginal people. 48 The Commission was not provided with case law by Mr Wilson to support the racism reason for dismissal by the respondent. That is, there was no case law to show that the alleged language of the applicant, constituted racist, derogatory and disrespectful language towards Ms Trindall, let alone at large the Aboriginal people. 49 Absent of case law from the respondent to support the dismissal on the ground of racism, the Commission turned its attention to the language alleged to have been said by the applicant and which was said by the respondent to be racist. 50 The alleged conversation has been reproduced elsewhere in this Decision and is divided into four paragraphs: (a) to (d) inclusive. Paragraphs (a) and (b) go to the alleged conversation between the Aboriginal customer (Veronica Murray) and the applicant. Ms Trindall was not part of this alleged conversation but an observer. Paragraph (c) and (d) concern the alleged interaction between the applicant and Jenny Trindall. 51 Ms Trindall never specified which word(s) she found offensive in this alleged conversation. It has to be inferred that she takes offence to the words, "white moona(y)", meaning white vagina, where "moonay" is the Aboriginal word for "vagina". 52 The Commission has difficulty in comprehending what is racist about this term (white moona(y)) given the circumstances of the alleged conversation. It is clearly the case that the applicant has not directed any racist, disrespectful or derogatory remark against Ms Trindall, according to Ms Trindall's version of the alleged conversation.

[52]

53 Ms Trindall's version records the applicant stating how Ms Veronica Murray might speak to the applicant: "It is a wonder she (Murray) didn't reply (to the applicant) by saying 'get fucked ya big white moona(y).'" Thus, the alleged offensive words, "white moona(y)" are being uttered by an Aboriginal person (Murray) to a non-Aboriginal person (the applicant). It is not the applicant who says that she, the applicant, uses the term "moonay". Accordingly, Ms Trindall's version boils down to an Aboriginal person (Murray) as the person who might use the Aboriginal term (moonay) and to which an Aboriginal person (Trindall) takes offence. Given that analysis of the alleged conversation, where is the racism by the applicant? 54 If the alleged conversation did take place, the Commission wonders why Ms Trindall filed a complaint, rather than speak to the applicant there and then. She could have responded along the line that maybe that is the way Ms Murray and the applicant speak to each other but please do not speak that way in front of her. 55 Apart from the express claim of racism (which was not made by Ms Trindall until she took to the witness stand), the respondent also raised the issue that the applicant's alleged "comments were fundamentally in serious breach of Council's Code of Conduct". (Ex 11, para 50 - Carole Medcalf) The memorandum of Ms Medcalf to the applicant, 26 March, 2010, cited breaches of 6.1 and 6.5 of the Code of Conduct. (Ex 5, Annex G) Clause 6.1 goes to "General Conduct" and has seven paragraphs of unacceptable conduct. The Commission was not advised as to which paragraph(s) were said to have been breached by the applicant. Clause 6.5 is one of two paragraphs under the heading of "Fairness and equity". 56 Mr Wilson, in final submissions, advised that the applicant had not been dismissed on the alleged statement by her to Veronica Murray ("There you go ya cunt"). The Commission questioned this submission (in disbelief) but Mr Wilson retorted that the respondent could only act upon the complaint lodged by Ms Trindall. (Tr 05/11/10 - p59, line 23 to p62, line 50) 57 That advice by Mr Wilson means that the alleged breach of the Code of Conduct is restricted to the alleged statement of the applicant to Ms Trindall ("We are like that. It is a wonder she didn't reply by saying - "get fucked ya big white moona'") Given the Commission's finding that racism has not been established by the respondent's case, then the basis for the dismissal and the alleged breach of the Code of Conduct has no merit. If the alleged statement ("We are like that. It is a wonder she didn't reply by saying - "get fucked …") was to be considered in isolation of the racism claim, then the alleged statement (that is, the "get fucked" comment) does not in of itself warrant dismissal. That is so, as the applicant was reporting in a matter of fact way as to how Ms Murray might talk to her. Further, the respondent cannot take this alleged comment ("get fucked") and combine it with the alleged comment ("ya cunt") and say that the applicant engages in offensive language given that the respondent has said it cannot act upon the "ya cunt" alleged statement as Ms Trindall did not make a complaint about it. 58 In consideration of this catalyst reason for dismissal, the Commission finds that the respondent has not shown how the applicant engaged in racism. More pointedly, the Commission fails to comprehend how the alleged statement of the applicant to Ms Trindall constitutes racism. 59 The alleged statement by the applicant to Ms Trindall, accordingly, can not be said to be a breach of the Code of Conduct given that the applicant made no racist remark against Ms Trindall. Absent of racism, the alleged statement of itself does not warrant a ground for dismissal. 60 Finally, the Commission makes one other observation. In doing so, the Commission will assume that the conversation, as alleged by Ms Trindall, took place. Given that assumption, then the applicant's denial of the conversation would be false. That false denial would have some understanding given the circumstances facing the applicant. She had been in the employ of the respondent since 1996. Then in 2009 (thirteen years later), she was given two written warnings in the space of three months.

[55]

First Warning 62 The applicant's first warning was issued as a first and final warning by letter dated 17 September, 2009. Following Union representation, it was re-classified as a first warning by letter dated 10 December, 2009. 63 The starting point for consideration of the applicant's claim that this first warning was procedurally and substantively flawed, is by analysis of the content of the first warning letter of 17 September, 2009 but which was given to the applicant on 23 September, 2009. (Ex 5, Annex A) 64 The first warning letter was authored by Lianne Tasker, Manager Community Services and Tourism. 65 The letter opens with the Paul Macdonald - applicant incident, for which the applicant apologised. 66 The letter then refers to a staff meeting of 30 April, attended by Lianne Tasker, during which meeting she raised feedback on a Customer Survey of the performance expectations of the Collarenebri Agency. 67 In respect of the applicant, Ms Tasker said there was a "statistically very significant level of adverse comment, about the role you (the applicant) played at the Agency". 68 Since that April time, Ms Tasker said (as of August, 2009), that the applicant's performance levels had been raised by town residents - they were highly critical. Ms Tasker said that that situation had been compounded by telephone and personal approaches to herself by community members and the applicant's supervisor. 69 The letter then says that some "complainants have expressed personal fear of the repercussions that would result, should their identity be disclosed to you (the applicant)" 70 Ms Tasker then sets out eight (8) dot points of complaints against the applicant. 71 Before continuing on with the content of the letter, the Commission points out that these eight dot points are just that: mere assertions. That is, no evidence is provided in the letter to support these mere assertions. The need for evidence is abundantly clear given that Ms Tasker describes these complaints as being "serious misconduct". 72 Having listed these dot points, Ms Tasker states, "It is clear from the source and magnitude of these comments that you (the applicant) have not complied with the requirements set out in April. You have breached Council's Code of Conduct and not performed appropriately. This can only be considered as being serious misconduct". 73 As to the foregoing paragraph/quote, the Commission observes that a "magnitude of these comments" is but a mere assertion and does not constitute evidence. There was a time in history when a magnitude of people said the world was flat - that is, a magnitude of comments does not make for valid comments. 74 Having analysed the letter and noted the absence of evidence, the Commission will now turn to what evidence fell during the Hearing to support the giving of a first warning. Given that Ms Tasker has stated that the applicant's performance at the Collarenebri Agency constituted "serious misconduct", then there needs to be an appropriate level of evidence to support the assertions contained in her letter. Apart from the matters contained in the letter, there were two complaints raised at the 23 September, 2009 meeting held by Ms Tasker concerning the applicant's customer service dealings with Allira McGregor and Roger Adams. These two complaints are the only complaints against the applicant where people have put their name to the complaint. 75 The Commission will now consider in detail, matters raised in the first warning letter, given the applicant's claim that this first warning was procedurally and substantively flawed. 76 The opening part of the first warning letter is the Paul Macdonald - applicant incident that occurred in February, 2009. Mr Macdonald made a complaint about a banking transaction. The applicant was asked to apologise and according to the respondent's case only did so, belatedly, and after repeated requests from the respondent to do so. 77 The applicant's case was that she had apologised to Paul Macdonald and further requests by the respondent (including a lawful direction to do so), were therefore redundant. Despite this, the applicant, on her case, apologised to Mr Macdonald for the banking transaction and not belatedly but upfront. 78 The weight of the evidence is against the applicant on this matter as to her claim that she apologised up front to Mr Macdonald and not belatedly. 79 Because the applicant apologised, the Commission is not clear as to why this issue constitutes one of the matters for a warning given that, as well, the warning was issued several months after the apology. 80 The letter sets out eight (8) dot points of anonymous complaints. These are single sentence assertions only. No evidence is provided in the letter to support any of the assertions. 81 The first dot point reads: "Privacy abused, letters tampered with". In order for this assertion to constitute "serious misconduct", then the applicant has engaged in something serious on more than one occasion as to letters handled by her in her job. Ms Tasker did not explain the meaning of "tampered". For this matter to be "serious misconduct", one assumes that "tampered" means 'opened and read the contents'. If that was so, then no evidence was set out in the first warning letter to that effect. 82 The witness statement of Ms Tasker has a file note attached for a staff and individual meeting of 30 April, 2009 held by Ts Tasker. (Ex 10, Annex A). The second file note for the same meeting of 30 April refers to "mail tampering allegations" and the applicant. The file note then reads, "..Carol (the applicant) advised that some mail arrives at the Agency damaged. Discussion around procedures for damaged mail took place (eg: using Australian Post sticky tape for repairs and logging the article as damaged). Carol advised that she follows these procedures usually". 83 The foregoing file note concerns damaged mail being repaired by the applicant in response to mail tampering allegations. The file note records nothing more than that. Her explanation was not challenged by Ms Tasker who is the person who gave a warning letter based on this issue (one of several anonymous complaints). 84 Ms Tasker's witness statement refers to complaints from anonymous customers about the applicant's customer service and these complaints number five. One of these complaints reads, "Tampering with mail". That complaint and the other four contained in her statement are mere assertions (without evidence). (Ex 10, para 27) 85 However, the next paragraph in Ms Tasker's witness statement refers to a meeting on 19 August, 2009 between herself and Ms Chown, the Collarenebri Agency supervisor. That paragraph makes no specific reference to mail tampering but does record Ms Tasker as raising with Ms Chown a matter that might be referring to mail tampering. Thus she asserts that a customer (anonymous) "believes that Carol (the applicant) has made comments about the customer that could have been made as a result of assessing private information. This involved commenting on the source of mail with words to the effect 'they are good solicitors, my son uses them for workers compensation too'" (Ex 10, para 28) 86 The witness statement of Ms Tasker does not record that she raised this anonymous allegation (as said above) with the applicant at the meeting of 23 September, 2009 and for which this mail tampering allegation formed a reason for the first warning, based on serious misconduct. 87 If the above anonymous complaint (as recorded above) was not put to the applicant but then a finding made as it was by Ms Tasker that it constituted mail tampering/privacy invasion, then that would constitute a denial of natural justice. (There was no evidence that Ms Tasker kept minutes of the first warning meeting and disseminated the same to the applicant for feedback if the applicant thought the minutes were not a true and accurate record).

[56]

Even if the anonymous complaint (as recorded above) was put to the applicant, how is it proof of mail tampering? Where is the evidence from Ms Tasker (who says it was mail tampering and warranted a serious misconduct warning) that the applicant did engage in mail tampering? 88 The applicant relevantly said of this first warning meeting that she was provided a list of written complaints, all anonymous, and this complaint merely read "mail open". (Ex 5, para 22(g)) 89 The Commission does not understand how a finding of serious misconduct, going to mail tampering, can be found by Ms Tasker based on the material provided during the Hearing. 90 The overall problem the Commission has with these assertions (nine dot points) is that they are based on anonymous accusations. Ms Tasker says that she has spoken to these accusers and has "believed them". (Tr 04/11/10 - p73) Be that as it may, the applicant is entitled to know who has made these accusations in order to prepare a proper defence, given that Ms Tasker decided to act upon these anonymous accusers - to the detriment of the applicant. Even more so, the applicant should have been provided with the names of her accusers, given that the first warning letter casts the applicant in a negative light as follows, "In some cases the complaints have expressed personal fear of the repercussions that would result, should their identity be disclosed to you (the applicant)". (Ex 5, Annex A) 91 Further, as to an overall problem, the Commission has already observed about this warning letter, that a "magnitude of comments" does not of itself make for valid complaints. 92 Ms Tasker did, however, put two complaints to the applicant where the names of the accusers were given - Allira McGregor and Roger Adams. (Ex 10, para 31) On a reading of Ms Tasker's witness statement, it appears that these two persons have identified themselves as the accusers but see commentary below in this Decision on this point. These complaints were put to the applicant on 23 September, 2009. 93 As to the McGregor complaint, it was asserted that the applicant had said, "You're not supposed to be in here because you are contagious". (Ex 10, para 31) 94 The applicant's reply witness statement says that Ms Tasker had put the above to her but cast it as a "derogatory" statement by the applicant to McGregor. The applicant denied making a derogatory statement. She did not deny that she had had a "chat" with McGregor and said "…not still contagious are you?" (Ex 6, para 12) More importantly, the applicant's reply statement then states as to the alleged complaint by McGregor, that Ms McGregor came into the Collarenebri Agency on 10 December, 2009 and told the applicant that she (McGregor) had not made a complaint to Council, but "…some staff member reported you, not me. If I was you I would be watching your back". The applicant's reply statement then records the applicant deposing, "As she (McGregor) said this, she nodded her head towards Ms Chown".

[59]

Second Warning 99 The second warning given to the applicant arose out of a complaint made by a fellow employee, Ms Jody Simmonds, on or about 8 November, 2009. The complaint was investigated under the supervision of Ms Carole Medcalf, Director Corporate and Community Services. In that regard, the investigation was carried out by Ms Tasker and Ms Samanthi Bandula (Human Resources Manager). 100 The applicant deposed that the first she knew of the complaint was when she read (on 23 November, 2009) a print out of an email addressed to her. The applicant said she had not opened the email or printed it out. She believed her supervisor, Ms Chown, had done so. (Ex 5, para 26) 101 The applicant received a telephone call from Ms Tasker on 24 November to advise of the complaint and the need for a meeting. The meeting (Tasker - Bandula - the applicant) took place on 25 November. 102 The applicant responded in writing on 1 December, 2009, denying the complaint of Ms Simmonds. (Ex 5, Annex D) 103 The applicant and her Union delegate (Andrew Bostock) met with Ms Medcalf and Mr Barry Frew, in relation to the Simmond's complaint. 104 On 11 December, 2009, Ms Medcalf issued the second and final written warning. (Ex. 5, Annex F) 105 The second and final written warning identifies two complaints only: no. 2 and no. 4.2 amongst the list of Simmond's complaints. The letter of Ms Medcalf goes on to say that "it is clear that a number of the allegations are substantiated". The list of complaints by Ms Simmonds tallied fourteen (14). (Ex 13, Annex H) In the witness box, Ms Medcalf confirmed that she only relied upon the two complaints identified in her second and final written warning - that is, no. 2 and no. 4.2. 106 The no. 2 complaint is that the applicant has made rude noises in the past two weeks when customers have walked into the Post Office. 107 In respect to the "customers", only one customer is identified - Laura Simpson. But instead of a rude noise, the Simmond's complaint is that the applicant made a "rude comment". The content of the "rude comment" is not stated by Simmonds. 108 The applicant had responded in writing to the list of fourteen complaints. As to this complaint, she denied making rude noises. She then refers to Laura Simpson's letter which is attached to the applicant's response letter. She says the Laura Simpson letter is about the Simmond's allegation but it is not attached to the applicant's filed witness statement. Accordingly, that Laura Simpson document is not able to be considered by the Commission. 109 The second complaint was no. 4.2 which involves the applicant allegedly saying to Simmonds (her supervisor), "you (Simmonds) can serve Dot (a customer) you need the practice". (Ex 13, Annex H) 110 The applicant's response of 1 December, 2009 refers to attached documents, none of which are attached to her witness statement. Accordingly, the Commission is not able to consider this matter further. 111 In summary of the available material as to this second and final written warning, the Commission is not in a position to ascertain the applicant's claim that she was denied procedural and/or substantive fairness.

[60]

CONCLUSION 112 The Commission has before it, an unfair dismissal application by Mrs Carolyn Smith. She claims that she was unfairly dismissed by the respondent arising out of the Murray - Trindall - applicant incident. She also claims that she was denied procedural and substantive fairness in respect of the two written warnings issued to her in September and December, 2009. 113 The respondent accepted it carried the onus to prove that the facts existed to support the applicant's dismissal. 114 The Commission first considered the evidence pertaining to the Murray - Trindall - applicant incident. In final submissions, the respondent ran the case that the applicant's dismissal was based on the ground of racism - even though that term does not appear in the dismissal letter. 115 The respondent's case was based on Ms Trindall's complaint about an alleged statement made by the applicant to Ms Trindall following an alleged conversation between Ms Murray and the applicant. The Commission noted that Ms Trindall's first use of a claim that the applicant had made a racial remark, was when she gave evidence in the witness box. 116 The Commission found that the respondent had not established that the applicant had made a racist comment to Ms Trindall, assuming that the conversation, as alleged by Ms Trindall, took place. More than that finding, the Commission analysed the alleged racist comment and found that the applicant was only reporting how Ms Murray might speak to the applicant. Therefore any racist remark that might be used by Ms Murray (an Aboriginal woman) is a racist remark to which Ms Trindall took offence. 117 Given the Commission's analysis of the evidence pertaining to this issue, the Commission finds that the catalyst for the applicant's dismissal (the alleged racism) was not only not made out but there was no racist remark by the applicant, even if the conversation alleged by Ms Trindall took place. 118 The respondent relied upon the two prior September and December, 2009 written warnings, to support the applicant's dismissal. The applicant's case was that these two written warnings were procedurally and substantively unfair. 119 As to the first warning, the Commission analysed in detail the contents of the first written warning and made a number of comments against the contents. In particular, the Commission highlighted the mere assertions (no evidence in support) and the anonymous complainants. Despite that the Commission considered what evidence was put during the Hearing about these mere assertions and judged that evidence against the claim in the written warning letter that the applicant had engaged in "serious misconduct" in respect of those assertions. The evidence was found wanting, to say the least. 120 The Commission considered two complaints, in respect of the issuing of the first warning letter meeting, at which two named complainants were put forward (McGregor and Adams). The applicant challenged the McGregor complaint in her filed witness statement in reply, but the respondent did not bring forward Ms McGregor as a witness to counter the applicant's challenge. The Adams' complaint turned out to be a complaint, not made by Adams (as appeared to be previously stated by the respondent), but anonymously made. 121 The overall view the Commission has of the respondent's case to justify the giving of the first written warning, is that there was no justification for doing so. As such, the applicant's claim that the circumstances surrounding the giving of a first written warning to her, was procedurally and substantively unfair is well founded. 122 As to the second warning, the applicant has not produced evidence to allow the Commission to consider her claim that this second written warning was procedurally and substantively flawed. 123 Given all of the above findings, and having considered all of the evidence, the Commission concludes that the dismissal of the Applicant was unfair. Specifically, the Commission finds that the dismissal of the Applicant was harsh: Outboard World Trade Pty Ltd t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 of 183. 124 The dismissal was harsh because the catalyst reason for the applicant's dismissal was that she had made a racist remark against Ms Trindall, but the Commission has found she did not do so. The dismissal was also harsh, because the alleged racist remark, as being the reason for dismissal, was not put to the applicant for comment/defence. This was a denial of natural justice. 125 The applicant's primary remedy is reinstatement to her former position. The respondent is opposed to reinstatement to her former position at Collarenebri. 126 Ms Tasker's witness statement addresses this issue of opposition to reinstatement. She deposes that the remaining staff members at the (Collarenebri) Agency would no longer be able to work with the applicant. Further, she has received a number of internal complaints from the staff concerning their inability to work with the applicant and their lack of trust or respect for the applicant. (Ex 10, para 36) 127 The above criticism of the applicant is, once again, anonymous, and can not be given any weight. 128 One of these staff (Jenny Trindall) who worked with the applicant, gave evidence in the proceedings - at the request of the Commission as she was not being called by the respondent. Not one question was put to Ms Trindall, the applicant's accuser, as to whether she would have difficulty in working with the applicant if the Commission was to order the applicant's reinstatement. The Commission also notes that Ms Trindall gave evidence that she works at the Collarenebri Agency up to three or four times a month. (Tr 04/11/10 p 49, line 42 to 47) 129 Having considered all of the evidence, the Commission will issue an order for reinstatement, without loss of continuity of employment, pursuant to sections 89(1) and (4) respectively of the Act. 130 The Commission will also issue an order that the applicant be paid for the earnings she would have received between the date of dismissal and this order - but for that dismissal. That order is made pursuant to s89(3) of the Act. O R D E R S

At a glance

Court

Decision date

Source

Judgment (65 paragraphs)

Parties

Cases Cited (6)

Cited By (1)