Department of Health v Kaplan

LEGISLATION CITED: Industrial Relation Act 1996

Kaplan v Dept of Health Support Service [2009] NSWIRComm 1088 CASES CITED: Department of Health v Perihan Kaplan (No 1) [2010] NSWIRComm 65 Department of Health v Perihan Kaplan (No 2) [2010] NSWIRComm 122 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186

HEARING DATES: 24 March 2010, 8 June 2010, 29 July 2010, 14 October 2010

Mr M Easton of counsel (Appellant) Director-General of NSW Health Department, Health Support Services Division LEGAL REPRESENTATIVES:

Mr E Schofield (Respondent) Schofield King Lawyers

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, Vice-President HAYLEN J BISHOP C Thursday 2 December 2010

Application by Director-General of NSW Health Department, Health Support Services Division for leave to appeal and appeal against the decision of Commissioner Ritchie given in Kaplan v Dept of Health Support Service [2009] NSWIRComm 1088

DECISION OF THE COMMISSION [2010] NSWIRComm 170 1 The factual background to this matter is set out in the Full Bench decision of 28 May 2010 in Department of Health v Perihan Kaplan (No 1) [2010] NSWIRComm 65 ('Kaplan No 1 '). 2 In that decision, the Full Bench rejected a challenge to the finding of harshness made by Ritchie C in Kaplan v Department of Health Support Service [2009] NSWIRComm 1088. However, the Full Bench found errors of law with respect to the Commissioner's determination under s 89 of the Industrial Relation Act 1996 ('the Act') and upheld the appeal in that respect. 3 The Full Bench's approach to the disposition of the matter in Kaplan No 1 was as follows: 46 Having regard to the lengthy history of the proceedings, the continuance of orders requiring payment of wages to the respondent until the disposition of the appeal and the relatively complete state of the evidence as to the question of "impracticability", we have decided not to remit the matter and will determine, for ourselves, (as the parties accepted might be open) the appropriate orders to be made in disposition of the appeal. 4 Following that decision, the parties undertook, by consent, a conciliation before a Member of the Full Bench. Subsequent to that conciliation, the appellant sought leave to discontinue the appeal proceedings. That application failed: Department of Health v Perihan Kaplan (No 2) [2010] NSWIRComm 122 ('Kaplan No 2'). The Full Bench in Kaplan No 2 then determined the further conduct of the proceedings as follows: 16 The last issue concerns the process required to conclude the appeal. The appellant has failed in its challenge to the finding that the dismissal was harsh and the parties were proposing to address the issue of appropriate remedies when conciliation, by agreement, was taken up. If any further brief written submissions are required in relation to this issue, the appellant shall file and serve such submissions within seven days of the delivery of this judgment and the respondent shall have a further seven days to file and serve her submissions regarding that issue. The Full Bench will contact the parties to arrange a brief hearing to address this issue if the parties express in writing their desire to do so, otherwise the issue will be dealt with on the written submissions filed and served by the parties. 5 In the result, the parties filed further written submissions. In those submissions an application was made by the appellant to admit fresh evidence. At the request of the appellant, the Full Bench heard the parties as to the balance of the appeal and the motion to call fresh evidence in a short oral hearing on 14 October 2010. This decision concerns the matters so reserved for attention in Kaplan Nos 1 and 2. 6 During the course of the argument as to the appropriate remedy, the parties put various submissions as to the power of the Full Bench to award reinstatement or re-employment in these proceedings. It is, however, unnecessary for us to resolve these questions as, in our view, the only available conclusion which may be reached, on the evidence in the proceedings, is that reinstatement and re-employment are impracticable and, hence, remedies are not available under ss 89(1) or (2) of the Act. We have, in that context, decided not to grant leave to admit fresh evidence. It is convenient to provide our reasons for that later decision before moving to the reasons for our conclusion as to "impracticability". FRESH EVIDENCE

7 By Notice of Motion, the appellant sought leave of the Full Bench to call fresh evidence on appeal. That evidence was contained in an affidavit sworn by Mr Cook. Briefly, the affidavit concerned a so called 'Heads of Agreement' between the parties, costs and proceedings in the Local Court of NSW as to an Apprehended Personal Violence Order ('APVO'). 8 The appellant put the following submissions in relation to the application to call fresh evidence: 6. The further evidence goes entirely to events occurring later in time than the date of the decision appealed against. 7. The further evidence goes an agreement reached in June 2010 between the parties that resulted in, inter alia, the reinstatement of the Respondent and the payment of certain monies. 8. This Agreement has been subject to controversy in relation to costs. It has not been controversial as to the reinstatement and immediate voluntary redundancy of the Respondent, and subsequent payments made to the Respondent. 9. The further evidence also goes to the practicability of reinstatement and the Respondent's characterisation of these proceedings. The characterisation is material to the Full Bench's consideration of whether reinstatement is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer's business" Nicolson v Heaven & Earth Gallery (1994) 57 IR 50 at [61] or "whether [this particular] employment relationship is capable of withstanding some frictions and doubts" Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at [191]. 10. It also evidences ongoing legal proceedings in another jurisdiction in relation to an APVO. The existence of these proceedings (as opposed to the matters in contest) are material to the Full Bench's consideration of the practicability of reinstatement. 11. The evidence therefore satisfies the discrete statutory test of dealing with matters later in time than the decision appealed against. It was demonstrably not available at the time of the decision below being made. 12. Further, the evidence has, in circumstances where the Full Bench is proposing to determine the outcome of the s.84 application for itself and there is a sufficient degree of probability to have an impact on the final verdict: NSW Local Government Clerical Union v MM Kembla Products (2004) 138 IR 217 at 218; Austeck v Astalos (2003) 128 IR 141. 13. It is expressly not required that the evidence must mean that a different verdict would be reached; CCH Australia v Bowen (1998) 79 IR 206 at 211. The test is that it must have a capacity to impact on the verdict, and that capacity to affect is certainly the case here. The Full Bench, if it did come to considering what, if any, remedy might now be appropriate would have to at the least have regard to and deal with the facts disclosed in the evidence; in that circumstance those facts might well affect the outcome. 14. The evidence also satisfies the discrete test of 'special grounds'. 15. While the general principles going to 'special grounds' are guides ( Scevola v Workcover NSW (2005) 142 IR 233 at 240) and need not be satisfied in all cases ( Wilson v The Prothonotary [2000] NSWCA 23 at [47], cited and adopted in Scevola loc cit), those principles are: that the evidence must not have been able to be brought with reasonable diligence at first instance; that it must have sufficient degree of probability to have an impact on the final verdict; and that it must be credible. 16. It is already apparent that the first of those limbs is satisfied. The evidence is only sought to be adduced now because it did not exist before, and refers to events after the decision. It has a capacity to affect the outcome: as submitted above, it must be a consideration, at least, for a tribunal considering whether a re-establishment of an employment relationship. 17. It is apparent enough that the evidence is credible; it consists essentially of a written agreement, correspondence and a sworn court document.

9 In resisting the application to admit fresh evidence, the respondent made the following submissions:

20. It is submitted that the Affidavit of Mr Cook reflects a version of events as recounted by Ms Noelene Salmon in her Affidavit of 4 February 2010, about which Ms Salmon has refused to produce evidence to the Respondent and upon which she has refused to be cross-examined.

21. Accordingly, the Affidavit of Mr Cook represents an attempt by the Appellant, to reformulate Ms Salmon's evidence in a version that is not subject to being tested through cross-examination.

22. Where this evidence has already been heard and was the basis of the Respondent's case at First Instance, it is not "fresh evidence". It is therefore not probative of anything relevant to the appeal and should not be admitted.

23. In the alternative, the Respondent submits that should the Appellant be granted leave to hear fresh evidence, the Respondent must be given the opportunity to cross-examine the witness. In this event, it is submitted that the Respondent must also be given the opportunity to put-on fresh evidence of its own, outlining the Respondent's evidence in reply to the issues raised by the Appellant. 10 We reject the application to admit fresh evidence and dismiss the appellant's motion. This conclusion is reached for three reasons:
24. In part, the application is inconsistent with our rulings in Kaplan No 2 and, by extension, our reasons for refusing an application to discontinue;
25. We do not consider the proceedings in another jurisdiction regarding an APVO to be relevant in the present case and certainly they are not such as to establish 'special grounds' to allow the further evidence;
26. The application is, for the most part, otiose, in view of the conclusion we have reached as to impracticability. REINSTATEMENT OR RE-EMPLOYMENT : THE QUESTION OF IMPRACTICABILITY 11 As to the question of impracticability of reinstatement or re-employment and applications for those remedies, the appellant made the following submissions (excluding footnotes): 9. In the alternate, if there be a power to order reinstatement the Full Bench should not displace Commissioner Ritchie's finding that reinstatement was not practicable. 10. Whilst Commissioner Ritchie erred in failing to give reasons for finding that reinstatement was impracticable - he nonetheless gave active consideration to the issue: Kaplan v Department of Health [2009] NSWIRComm 1088 at [120-122].

12. Further, if the Full Bench considers afresh the circumstances leading to Ms Kaplan's termination including the events which the Commissioner found to have occurred in November 2008, it must conclude that reinstatement is impracticable. 13. The Appellant submitted to the Full Bench that Ms Kaplan told a series of untruths to both her employer and to the Commission. The Full Bench did not accept this submission in the context of harshness. 14. However, when considering afresh Ms Kaplan's responses and representations to the Appellant and to the Commission in the context of s89, the Respondent's conduct weighs heavily against the practicability of reinstatement. 15. The Full Bench found that Commissioner Ritchie preferred the account of other witnesses over that of the respondent in certain respects (as opposed to Ms Kaplan having told a series of untruths). In considering whether "a reinstatement order is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer's business" ( Nicolson v Heaven & Earth Gallery (1994) 57 IR 50 at [61]) or "whether [this particular] employment relationship is capable of withstanding some frictions and doubts", Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at [191] the Full Bench can consider:

a. The nature of the conduct Ms Kaplan engaged in (harassment from a vehicle, a telephone threat against an employee's children, a threat against the life of an employee); b. The way in which Ms Kaplan attacked her accusers prior to termination, including: i. Accusing others of lying; ii. Making references to two employees allegedly having had a previous relationship; iii. Calling for other employees to be dismissed; and iv. Concocting a false allegation of harassment against another employee Kaplan v Department of Health [2009] NSWIRComm 1088 at [115]. c. The fact that Ms Kaplan adhered to these accusations and attacks during the hearing of the proceedings; d. The fact that many witnesses were cross-examined about not only their own accounts of the incidents but cross-examined about Ms Kaplan's unsustained allegations; e. The fact that Commissioner Ritchie substantively accepted the evidence of the Appellant's witnesses; f. The reality that these other witnesses would be obliged to work again (to varying degrees) with Ms Kaplan; and g. Ms Kaplan's apparent lack of remorse and inability to see her own blameworthiness. 16. In the alternate the Appellant submits that it has already reinstated the Respondent and she has accepted voluntary redundancy. As such the Commission would not make orders for the Appellant to reinstate her again.

12 In contrast, the respondent made the following submissions in favour of re-employment and, in some respects, reinstatement: (i) Reasons for Re-Employment

3. It is submitted that the remedy of re-employment, ordered at First Instance, could be restored and cured by the Full Bench, provided reference was made to reasons that were reasonably open to the Commissioner at First Instance but not expressed.

4. At First Instance, the Commissioner gave the Appellant ample opportunity to articulate reasons as to why another position within NSW Health would not be suitable to the Respondent (see Transcript 23/10/09, pp. 65-67). Counsel for the Appellant was unable to articulate any reason as to why re-employment might be inappropriate in the circumstances (see comments of the Commissioner Ritchie, Transcript, 23/10/09, p66, lines 25-30).

5. Commissioner Ritchie failed to refer to this exchange in his decision. It is submitted that the Full Bench might refer to these findings on Appeal in order to restore the decision to re-employ the Respondent.

6. Neither were reasons given in ordering re-employment instead of reinstatement. Commissioner was silent as to whether tensions might have remained between the Respondent and her employer and colleagues. Given the dispute between the parties, it is submitted that the Full Bench might draw an inference that there existed tensions between the parties, indicating that re-employment might be preferable to reinstatement. ...

Commissioner Ritchie failed to articulate "fresh" reasons accompanying an order for re-employment or reinstatement. Nevertheless, it is submitted that some of these reasons are present in the body of the decision. It is further submitted that other reasons supporting a remedy of either re-employment or reinstatement were ventilated during the hearing and that it is reasonably open to the Full Bench to cite these reasons in ordering either remedy.

At First Instance, Commissioner Ritchie found that the Respondent's questionable behaviour during the meeting of 1 December 2008, was diminished by the fact of medical evidence showing her to be mentally unwell, "at the time of that meeting", Kaplan v Dept of Health Support Service. [2009] NSWIRComm 1088, at [118]. Ipso facto, it is implied that in normal circumstances, Ms Kaplan is capable of exercising rational judgment and a collegiate demeanour in the workplace. Perhaps the Full Bench might make this finding explicit in providing a fresh assessment of circumstances in support of an order under ss. 89(1) or (2).

This is also confirmed by the evidence of the Respondent's direct manager, Mr John Wragg, who stated in evidence that he had never before heard anyone complain about the Respondent's conduct at work until the events following 8 October 2008 (see Transcript 1/10/09, p105). This Respondent had been employed with the Appellant for 19 years. Mr Wragg further confirmed that the Respondent was a good employee with competent skills and training (Transcript 1/10/09, p106). Neither did any other witness disparage the Respondent or refer to any difficult behaviour displayed by her prior to 8 October 2008. As Commissioner Ritchie found, "the applicant prior to October 2008 had a blemish free work history", Kaplan [123].

The Commissioner also found that the Respondent's questionable conduct on the 3rd and 5th November 2008 could be remedied simply by issuing a first and final warning, Kaplan at [117]. That is, the Respondent's behaviour was such as to require no further action beyond a warning. It is submitted that this warning forms part of the circumstances favouring the Respondent's reintegration within the workplace by either re-employment or reinstatement. It is further submitted that the Respondent's return to work should be conditional upon this warning.

As stated above, the Appellant appears to have already undertaken to re-employ the Respondent in "another available position", pursuant to the relevant internal policy. Clearly, this means that a remedy involving reintegration is not impracticable.

In the alternative, it is submitted that reinstatement of the Respondent to the former position of a "displaced employee" is also available to the Full Bench under s. 89(1) for the reasons outlined in paragraphs 12-15 of these submissions. We would further contend that reinstatement to the position of a "displaced employee" need not involve reinstatement within Parramatta Linen Service. Rather, it is submitted that the respondent might be reinstated to the position of a "displaced employee", elsewhere in NSW.

Further, it is submitted that reinstatement is not impracticable where the Respondent is ready and willing to be reinstated to her former position (see Transcript 23/10/09 - pp. 26-27). 13 A number of allegations were made against the respondent by her employer which, after substantiation by the appellant's officers, resulted in her dismissal. Those allegations, as recorded in the Commissioner's decision, were: · Aggressive behaviour towards Kylie Summers and accusing her of taking her job. · Making false accusations against Christian Komarek, Operations Manager Parramatta Linen Service, accusing him of invading Ms Kaplan's privacy and making threats about writing complaints about it; · Not following instructions by taking Paul Deacon's car (NSW Linen Manager) without approval. · On 3rd November 2008 Ms Kaplan followed Ms Summers out of the work car park and stopped her in the road and verbally abused her regarding Ms Summer's being appointed to a position for which Ms Kaplan was unsuccessful and taking her job. · On 5th November Ms Kaplan telephoned Ms Summers on her mobile telephone and was aggressive and abused her regarding Ms Summer's being appointed to a position for which Ms Kaplan was unsuccessful and taking her job. 14 Commissioner Ritchie found the first, fourth and fifth allegation were substantiated: see Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [69].

15 In relation to the first allegation, the Commissioner concluded, at [113]: 113 The first allegation was that which occurred on 8 October between the applicant, Ms Summers and Zaba. In reviewing the evidence with respect to this matter it would seem that it was not the raising of her voice by the applicant but the questioning by the applicant as to Ms Summers competency to do the job that Ms Summers objected to. I note the evidence of Ms Teoman when she stated that a Turkish speaker with a restricted command of English, will sound abrupt and inappropriate and also the evidence of Ms Ibrahim who acknowledged that the applicant sometimes too much speaks her mind. The alleged comment made by the applicant to Ms Summers to the effect that "she took her job" would not have sat well with a new incoming person. Whilst the applicant may not have wished to project herself during this conversation in an off putting manner which resulted in Ms Summers being upset, the result on this occasion was that Ms Summers with Mr Zabel reported the matter to Mr Wragg. Notably it was the first time in her employment with the respondent that Ms Summers had reported a fellow employee. At this point the respondent failed to adhere to the "Framework For Managing The Disciplinary Process In NSW Health" in that neither Ms Summers or Mr Zabel were required to complete a statement detailing what was alleged by whom, how it was said and where it was said. Having not generated such documents which would have then been provided to the applicant so as she was aware at first instant as to what was being alleged, was unfair on the applicant. The subsequent interview of the applicant with respect to this allegation was based on brief notes that Mr Wragg had jotted down as a consequence of speaking to Ms Summers and Mr Zabel. It was also inappropriate for Mr Wragg to be involved in the interview of the applicant when he himself had raised an allegation that she had hung up on him during a phone conversation. Mr Wragg should not have had anything to do with the applicant with respect to the 8 October investigation. It was raised by the applicant that another employee by the name of John may have overheard the conversation yet no attempt was made by the respondent to investigate this aspect. The non-appearance by Mr Zaba in these proceedings, an obvious witness to the 8 October exchange, is somewhat perplexing. I do not accept Mr Easton's submission that his evidence would not have added anything more. On the contrary his evidence of what he saw and heard on that day would have been beneficial to the Commission. Whilst I note that this incident by itself would not have resulted in a termination of the applicant I do not believe I can make a positive finding that the applicant sought to be intentionally aggressive towards Ms Summers.

16 Commissioner Ritchie found that the fourth allegation, concerning the incident on 3 November 2008, was a "more serious matter". He preferred the evidence of Ms Summers and found the respondent followed Ms Summers in her car out of the car park, pulled up alongside her and "yelled" the following words: Why did you complain about me? Why are you doing this? Pull up so we can talk about it.

17 The Commissioner also found: A series of car manoeuvres then took place with the applicant driving in front of Ms Summers and then stoping at the next set of lights.

18 As to the final allegation, the Commissioner found that, on 5 November 2008, telephone records indicated that the respondent contacted Ms Summers on two separate occasions. He found, at [115]: In summary it is my finding that I prefer the evidence of Ms Summers with respect to this issue. It is my view that the applicant during this period was in an agitated state, brought on in my view by Ms Summers reporting their 8 October meeting, and the subsequent action that occurred. In my view the applicant did indeed loose her temper and in doing so made the comments to Ms Summers about her car, where she lived and what school her children attended. Such comments are clearly inappropriate and unacceptable. I accept the submission of Mr Easton that a subsequent text message by the applicant to Mr Swarmy complaining about the actions of Ms Summers indicated a presence of mind and that what she had just done may land her in more trouble, and so she told a new story that she was being set up. I do not know what benefit Ms Summers would derive if that was true. 19 The Commissioner accepted that the respondent made threats towards a fellow employee in a meeting on 7 November 2008 in the following terms:

I have seven brothers. My husband has seven brothers and many cousins. I will show Kylie what aggression is. I will go to court tomorrow and she will be dead. 20 The question of reinstatement or re-employment was addressed by Ritchie C as follows (at [122] and [123]): 122 It is my view that the respondent is a large organisation with a number of outlets that the applicant could be considered for as a displaced person in accordance with the Managing Displaced Staff of the NSW Health Service Policy. Such consideration should take into account that the applicant has little or no contact with Ms Summers.

123 The applicant had a long history of employment with the respondent. Other than a warning in February 2004 the applicant prior to October 2008 had a blemish free work history. The failure of her applications for the Customer Relationship Co-ordinator positions was in my view not accepted by the applicant with good grace and a catalyst for what next occurred. This was a failure on the part of the applicant to recognise that there are very few certainties in the promotion process.

21 In Kaplan No 1, the findings by Ritchie C as to harshness were not disturbed by the Full Bench, which found (at [31] - [35]): 31 The Commissioner was entitled, on the evidence, to reach the conclusion that the respondent was "not in a mentally fit state to handle (the meeting of 1 December 2008) and, therefore, had a diminished responsibility for what she expressed during such a meeting". That conclusion was available on the medical evidence and the evidence otherwise available as to the respondent's state of mind in the weeks immediately preceding and at the meeting of 1 December 2008. It was also available to the Commissioner to take into account that the two incidents of inappropriate behaviour on 3 and 5 November 2008 by the respondent and the behaviour of the respondent on 1 December at the meeting convened by the appellant's officers, as he apparently did, represented conduct which was, to some extent, unusual or aberrant, having regard to the respondent's lengthy and incident free employment record prior to October 2008. These were mitigating circumstances which were required to be considered by the Commissioner. 32 In concluding whether the dismissal was harsh, the Commissioner had to balance these personal and mitigating considerations against the gravity of the misconduct. The Commissioner plainly undertook that task and properly had regard, in our view, to all relevant factors. 33 We consider that the Commissioner understood the seriousness of threats of harm being made by one employee to another and, in particular, the significance of an apparent threat to kill. In this respect, the principle stated in Bhattacharya v Director-General of the Department of Education of Training [2000] NSWCA 74 at [23] may be accepted but does not add greatly to the disposition of the appeal. The question the Commissioner had to answer was what was the gravity of that conduct, on the evidence before him at the hearing of the s 84 application. In that respect, the Commissioner was required to, as he did, make an assessment as to whether the respondent was incapable of rational behaviour at the time of the meeting, and to the extent that she was not, to take that into account in diminishing the severity of the conduct. It should be remembered that, absent the incident which occurred at that meeting, the employee would not have been summarily dismissed, although warnings had been issued and voluntary redundancy was under consideration. 34 We agree with the submission made by Mr R Reitano of counsel, for the respondent, that the character of the threat must be also judged against the fact that it was made at a meeting where the respondent was gravely distressed and where the person to whom the threat was apparently levelled was not present. In this respect as well, the Commissioner was entitled to have regard to the failure of the appellant to allow the respondent an opportunity to explain herself after the meeting of 1 December 2008, as a factor going to the harshness to the dismissal, albeit as a consideration of a procedural kind.

35 This approach does not involve, as the appellant submitted, a conclusion that the threat "warranted no sanction whatsoever", but that, upon proper investigation and assessment, the conduct was so diminished by the respondent's state that no further step was required other than the acknowledgement of the final warning which had been issued because of prior misconduct engaged in on 3 and 5 November 2008. Likewise, the Commissioner's decision did not ignore the basis upon which the decision by the appellant was made but, rather, had regard to the failure of the appellant to place sufficient weight upon the mental state of the respondent in reaching the conclusion that it did in all of the circumstances.

22 There was no discussion in the proceedings at first instance or in the Commissioner's reasons as to whether the respondent had 'recovered' from the afflictions which had diminished her responsibility for her misconduct, or that the risk of re-occurrence was low or removed.

Consideration Re Reinstatement and Re-employment Remedies

23 The focus of the respondent's submissions were upon the re-employment of the respondent, although some contentions were also advanced as to the issue of reinstatement. Our assessment does not require a distinction to be drawn between the two remedies, as we consider that it is not practicable to grant either form of relief in this case. 24 We agree with the submissions of the appellant that, even adopting a robust approach to the restoration of the employment relationship (as per Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186), and allowing, as the Commissioner did, for the greater scope to reinstate or re-employ in large organisations, the conduct of the respondent was such as to effectively prevent any practical resumption of the employment relationship, particularly in the absence of any evidence as would sustain a conclusion, to a satisfactory degree, that there was a low or no risk of re-occurrence. There is simply nothing in these proceedings which would provide the requisite degree of comfort as to permit orders of reinstatement or re-employment.

25 Having reached those conclusion, the question arises as to whether the Commission should order compensation under s 89(5). 26 The appellant made the following submission in relation to the remedy of compensation: 17. The only available remedy in the present matter is compensation under s89(5). 18. The matters identified in s89(6) are not necessarily to be reflected in any particular, arithmetic or definitive way in the money order for compensation made: D and R Commercial Pty Ltd v Floo d (2002) 113 IR 344 at [64]. 19. If the Full Bench were of a mind to award compensation it would be in the lower range because of the nature of Ms Kaplan's conduct as found by Commissioner Ritchie. The Appellant does not need to recite again the unsatisfactory aspects of the Respondent's conduct. 20. Whilst Commissioner Ritchie ultimately found that the dismissal was harsh, the degree of harshness (which must now properly be assessed objectively by the Full Bench) is not high. 21. The allegations were serious, the conduct unsatisfactory and the compensation should not be large (despite the harshness of the dismissal itself). 22. Further, the Appellant submits that any compensation contemplated would be discounted by payments made to Ms Kaplan since her termination. Ms Kaplan has been paid significant sums of money by the Appellant by way of an agreement reached in 2010. 23. The Appellant concedes that Mr Cook's affidavit would only be before the Full Bench by leave under s191(2). However, if leave not be granted, the Appellant submits that the Commission is also informed of the payments made to the Respondent by way of: a. Its knowledge of the terms of the stay order granted by consent on 30 November 2009; and b. Its knowledge of the Heads of Agreement document signed by the parties in June 2010 (notwithstanding the controversy between the parties as to some aspects of the agreement). 24. The Appellant would be pleased to attend a hearing to address any matters sought by the Full Bench but does not otherwise, subject to receiving the submissions of the Respondent, seek a further hearing.

27 The respondent made no submission in relation to compensation. 28 Commissioner Ritchie found, in relation to back pay, the following (at [120]): 120 The applicant seeks reinstatement or reemployment as a displaced person with no requirement that she be located at PLS. Her claim also seeks back pay for the period that she was terminated plus continuity. Mr Reitano for the applicant recognised that the hearing had been delayed by application of the applicant as a consequence of ill health and that would have to be dealt with in respect to back pay.

Also medical evidence would have to be provided by the applicant during the period since termination in consideration of the back pay quantum, and if there was any workers compensation involved plus a medical clearance to return to work. 29 Reference should also be made to the terms of the Stay Order made on 30 November 2009 which was in the following terms:

1. That the Orders made on 10 November 2009 in Kaplan v Dept of Health Support Service [2009] NSWIRComm 1088 be stayed pending the hearing and determination of this appeal;
2. That the appellant pay the respondent her normal wages from 1 December 2009 until the hearing and determination of this appeal;
3. That the appellant shall make no claim against the respondent for the repayment of any wages paid pursuant to Order 2 irrespective of the outcome of this appeal;
4. That Order 3 shall cease to apply should the respondent, or her legal representatives, unreasonably cause the hearing of this appeal to be delayed, including as a result of acts or omissions. 30 In the absence of some contention under cl 3 of those Orders of 30 November 2009, we do not consider that the payments made to the respondent pursuant to those Orders should result in any discount or adjustment under s 89(6). Nor is there any necessary basis to discount such Orders in the ordinary course. Each case will need to be evaluated on its own merits. 31 We do not, however, express any view as to how the sum of compensation we will order should be assessed in any proceedings between the parties as to their alleged 'Heads of Agreement'. We have simply decided not to take that matter into account. 32 There is no other evidence before us as would warrant a discount under s 89(6). Having regard to our prior finding regarding harshness, we consider that the maximum available compensation should be ordered and, accordingly, we will order the appellant to pay the respondent an amount of compensation equal to the amount of remuneration earned by the respondent during the six months immediately before her dismissal.

33 The respondent submitted the following as to costs: Costs and Unpaid Wages

On 30 November 2009, the parties agreed that NSW Health was to pay the Respondent's wages for the period throughout the Appellant's Appeal (see Attachment). On 16 June 2010 and without warning, the Appellant ceased paying the Respondent's wages.

Accordingly, we are specifically instructed to request that the Commission intervene to enforce the Agreement between the parties of 30 November 2009.

The Respondent seeks to recover all unpaid wages since 16 June 2010.

The Respondent seeks the costs of all proceedings to date.

In support of such an order, the Respondent submits that it has ultimately been successful at First Instance and in substantive proceedings on Appeal. It is further submitted that the Appellant has unnecessarily prolonged proceedings by seeking to admit fresh evidence on Appeal which carries scant probative value. Accordingly, the Applicant has been put to substantial and unnecessary expense for litigation brought by an opponent backed by significant financial resources that has waged in an ongoing legal battle with apparently no result. 34 The appellant made no submission as to costs, having regard to the intimation from the Full Bench that the question was properly addressed in the light of our ultimate rulings in this matter. 35 The question of costs, if it arises, will require determination under s 181(2)(c) of the Act. By way of brief, preliminary and general observation, however, we would note that the parties' successes in these proceedings have been mixed. 36 We will, therefore, reserve the question the costs. Any further submission as to costs (by either party) should be filed and served within seven days of this decision. This is a strict timetable and we will resolve the question on the papers (given that we have already received some oral submissions on the issue) in accordance with any submissions received within the time specified. 37 As to the question of the respondent's wages after 16 June 2010, arising under the Orders of 30 November 2009, we do not propose to take any further steps whether by Final Orders or some form of enforcement. The Orders or any agreement underpinning it, can be enforced, so far as applicable, by the parties, as they might be advised, in separate proceedings.

1. The Department of Health shall pay Perihan Kaplan compensation equal to the amount of remuneration earned by Perihan Kaplan during the six month period immediately before being dismissed;

2. The Stay Order of 30 November 2009 is dissolved effective from the date of this decision;

4. The parties shall, within seven days of the date of this decision, file and serve any further submissions they may make with respect to the question of costs.

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