Ms McDonald's engagement and subsequent employment
11 Parnell Laboratories develops, manufactures and sells veterinary products both in Australia and overseas. Sale of the products is subject to strict compliance standards. Prior to 2005, Parnell Laboratories' licence by the Australian Pesticides and Veterinary Medicines Authority allowed it to sell its injectable products in Australia and overseas but not in the United States of America and the European Union. According to evidence from Mr Bell, in about 2005 Parnell Laboratories decided to sell into the American and European Union markets. To do so it needed to comply with additional specific regulatory codes which included stipulations as to quality.
12 At about the same time, the Australian Pesticides and Veterinary Medicines Authority also foreshadowed the introduction of a new regulatory code. Mr Bell decided to employ someone with experience in the compliance requirements under the American and European Union regulatory codes. Ms McDonald, who trained and worked in the field of quality assurance in the United States of America, met the requirements. She was first identified by a recruitment agency Mr Bell had engaged for that purpose. She was subsequently interviewed, in December 2005, by Mr Bell and then offered employment. One of the advertisements published by the recruiting agency described the character and general responsibilities of the position as follows:
'As a direct result of exceptional, sustainable growth combined with plans for extensive expansion in the immediate future, our client is looking to appoint an experienced Quality Assurance manager to their executive team. Pivotal within the strategic senior management team, this role offers an energetic and ambitious individual the opportunity to create their own goals, to engage across the entire organizational matrix, and by the proactive implementation of quality systems, to make a significant contribution to the ongoing success of this high achieving, high growth, active organisation.
With a tertiary qualification in Microbiology or Life Sciences and 5 years plus experience in Pharmaceutical QA and QC roles, the successful applicant will report directly to the Managing Director
As a QA professional currently working within pharmaceuticals, preferably parenterals, you will hold sufficient breadth and depth of experience to lead the management of all quality systems across the existing and planned parenteral facilities, to implement new systems, and to guide and lead the organisation through US FDA and TGA audits.
You will also be decisive leader with strong influencing and relationship building skills, an effective people manager and trainer, and will be able to demonstrate a high level of self motivation combined with a passion for achieving results.'
13 Making due allowance for the 'upbeat' nature of such advertisements it is clear that the position was to be a responsible one involving a high level of personal commitment and responsibility. The letter of offer to Ms McDonald dated 21 December 2005 attached a position description for the position of Quality Manager. It is too lengthy to set out here. It drew attention to the need for a high level of achievement, including with respect to matters concerning attention to detail and those involving quality and accuracy.
14 The letter of offer dated 21 December 2005, which Ms McDonald signed by way of acceptance on 18 January 2006, contained the following matters which are relevant to issues to be later discussed:
'The terms and conditions of your appointment by Parnell Laboratories (Aust) Pty Ltd, its nominees or assigns ("Parnell" or "the Company") as Quality Manager are set out below.
…
You are appointed to the position of Quality Manager reporting to the Managing Director.
The appointment is to a full time, permanent position, and is subject to performance review and probation as provided below.
Your responsibilities and key performance indicators are outlined in the attached Quality Manager Position Description, to which you are referred for guidance on the Company's expectations of you and against which your performance will be regularly reviewed.
The Company's Staff Guidelines, a copy of which will be provided to you during induction, contain many of the personnel policies and procedures that govern your employment and that of all Staff Members.
…
Hours of work will be based on a normal working week of 37.5 hours, from 9.00am to 5.00pm. However, due to the nature of your position you may be required to work additional hours to fulfil the necessary responsibilities.
…
Your performance will be reviewed monthly by KPI self-assessment and by the Company's formal Performance Review at the end of probation, after six months' tenure and at least annually thereafter.
Meeting agreed performance criteria, then assessing and reporting attainment in accordance with Company policy, are essential to satisfactory Performance Review and thus to your ongoing employment.
Hours of work will be based on normal working hours of 9am to 5pm weekdays. However, due to the nature of this appointment you may be required to work outside those hours to fulfil the necessary responsibilities. Your salary includes payment in lieu of reasonable overtime.
…
In the event you wish to terminate your employment after probation you are required to give the Company eight (8) weeks' notice, in writing.
Likewise the Company is required to give you eight (8) weeks' notice, in writing, if your employment is terminated except in the case of serious, wilful or persistent misconduct on your part in which event your employment may be terminated without notice.
The Company may not require you to work out all or part of your notice in which event you will be paid an amount equal to the remuneration you would have been paid for the remainder of the notice period.
…
You agree that you shall during the course of your employment:-
(a) faithfully and diligently perform the duties and exercise the powers from time to time assigned to or vested in you. You shall perform those duties and exercise those powers in a proper and reasonable manner, with all due care and diligence.
(b) obey all reasonable and lawful directions given by the Company.
(c) without further remuneration, accept those offices in the Company or related bodies corporate of the Company as the Company may from time to time reasonably require.
…
Your leave entitlements and related obligations are set out in detail in the Staff Guidelines.
...
You agree to be bound by the policies of the Company, as set out in the Company Staff Guidelines and elsewhere, and as amended from time to time. You acknowledge and accept that it is the prerogative of the Company to vary, change or terminate existing Company policies as well as devise and introduce new policies for the Company.
…'
(emphasis in original)
15 Ms McDonald was initially engaged for a probationary period of three months but that period appears to have passed without any particular formality and without a formal performance review.
16 It will be noted that the letter of offer referred in two places, in slightly differing terms, to arrangements concerning hours of work. It is clear that the 'normal working week' and 'normal working hours' involved a traditional 9am to 5pm, 5 day week common for office workers. It is equally clear that the nature of the position, the responsibilities entailed and the salary provided contemplated some requirement to work in addition to those hours and outside their limits.
17 Shortly after Ms McDonald commenced her employment, she attended the first meeting of a new project called 'El Dorado'. It was a project which involved review of business processes. The first meeting took place at 4pm on 17 February 2006. Ms McDonald's evidence was that on about 27 March 2006 the El Dorado project meetings were scheduled on a weekly basis on Monday and Thursday mornings at 8.30am.
18 Each month she was invited to 'MD drinks' which she described as 'a monthly scheduled meeting for Department Managers' commencing at 4.30pm. Other evidence suggests that the monthly Managing Director's drinks were less formal, non-obligatory and open to many more staff than department managers. This occasion however was not completely informal or social. It provided an opportunity to emphasise achievements in particular departments and frequently involved a short presentation by a departmental nominee.
19 About 10 April 2006 a new project commenced which was called 'Project Eclipse'. Meetings for this project were to take place on Wednesday mornings commencing about 8.30am.
20 Ms McDonald gave evidence that '[o]n a number of occasions I arrived at the El Dorado and Project Eclipse meetings late'. The question of Ms McDonald's ability to attend meetings at 8.30 in the mornings was an important part of her case alleging that she was discriminated against because of her family responsibilities. She attributed her inability to arrive before the commencement of the meetings to the need to take one of her sons to a child care facility. On her evidence the earliest he could be left was 7.30am when the facility opened. Ms McDonald sought to rely upon a general inference that her family responsibilities prevented her from arriving at work at 8.30am. The evidence does not support such a proposition. Ms McDonald gave no evidence, even when she was called in reply and in circumstances where the absence of such evidence had been mentioned, that she in fact regularly dropped her son at the facility at 7.30am. The evidence certainly discloses that she regularly arrived at work later than 8.30am and, as will in due course be further explored, often after 9am but it did not establish the basic factual premise upon which her case depended (that she was unable to arrive at work before 8.30am) much less that she was dismissed for that reason.
21 On Ms McDonald's evidence there was, at one time, a suggestion by another staff member that the meetings be moved to 9am to accommodate Ms McDonald's difficulties but the proposal was resisted by other attendees and not implemented. Ms McDonald's recollection is supported by evidence given by other persons who attended the meetings although it is clear from their evidence that the meetings remained at 8.30am because they were generally suitable to those attending in the light of their own responsibilities and not for reasons which had any particular connection with Ms McDonald. One of the attendees, Mr Kenrick, who was at the time the Procurement Manager for Parnell Laboratories, gave evidence, which I accept, that at one meeting at which Ms McDonald was present his suggestion that the meeting time might be moved to accommodate the fact that she regularly arrived late, to his surprise, was firmly resisted by her and the matter was not raised again.
22 Ms McDonald's frequent failure to arrive on time for 8.30am meetings does not appear, on the evidence, to have had any adverse consequence for her or played any part in the termination of her employment. There were, however, concerns about her general pattern of attendance which were linked with a perception by some other members of the management staff that her lack of regular and sufficient attendance caused delays in the discharge of some of her responsibilities which affected their own work. Some of this evidence was general and some of it was quite particular. Mr Kenrick, for example, gave the following evidence:
'21. During the time that the Applicant worked with the First Respondent my office was located two offices down the hallway. Due to my close proximity to the Applicant it was my observation that the Applicant was regularly absent during the middle of the day. In particular this came to my attention during the months of May 2006 and June 2006.
22. I observed that in the middle of the day, between two or four times a week, the Applicant was absent from her office for over an hour and that upon her return she thereafter ate her lunch at her desk. One of the reasons it was apparent to me that the Applicant was absent is because on average, on several times a day, I needed to liaise with the Applicant about my work or to obtain her sign off on work … When I specifically went to find her to do this she was often absent.
23. I also observed other employees, including senior executive management, attempting to find her to have work authorised when the Applicant was absent.
…
25. I also observed that the Applicant regularly arrived late, often arriving between 9-10am (sometimes later). The Applicant also sometimes left work between 4 and 5pm. To the best of my knowledge, the Applicant did not make up these hours on other occasions.
26. I do not recall the Applicant ever communicating in advance with me or other management that she was likely to be absent from the office on these occasions, or the reasons for her absence. In my experience it is both necessary and common courtesy in a manufacturing environment, and in accordance with the First Respondent's policies, that absences and whereabouts be communicated to other senior staff and specifically the direct line Manager.
27. On one occasion (I do not recall when) when the Applicant had arrived at work at 10.00am, left between 4.00 and 5.00pm and had more than a one hour lunch break, I recall Ms Bateup and I had a conversation to the following effect:
LB: "I have serious concerns about Deme. I'm going to start recording her hours."
Me: "This is an appropriate action to take to protect the interests of the company and its staff. It is an unusual and a difficult situation."
28. Although I do not remember when, I recall attending a meeting about "future business planning" with James Wynn, Chief Financial Officer, and Dr Alan Bell, the Second Respondent in these proceedings. During this meeting I said words to the following effect;
Me: "I have concerns about the quality department and that it is going backwards and that Deme McDonald is having difficulty coping. There's something not quite right there. Compared to Clare (the Applicant's predecessor), she is not even in the ball park".
29. I raised these concerns because … the Applicant's absences and delays were impacting on my own work as Procurement Manager.'
23 Mr Kenrick was cross-examined extensively about this evidence but adhered to his recollection and did not relevantly qualify his affidavit evidence.
24 Ms Lisa Bateup, to whom Mr Kenrick referred in his affidavit evidence, was no longer employed by Parnell Laboratories at the time of the proceedings. She was subpoenaed to give evidence and gave her evidence orally. She had been, during the period of Ms McDonald's employment, the Production Manager. She occupied an office next door to Ms McDonald. The petitioning between the offices contained large areas of glass and she was able, without difficulty, to see Ms McDonald come and go from her office. From about the beginning of June 2006 she began to pay particular attention to Ms McDonald's movements. When asked why she had done so she replied:
'There were - there were aspects of the production chain that relied on quality sign-offs as well, for the product to get released to customers. And I had performance management things that I had to meet that related to product getting to the customer within a certain timeframe that quality also impacted on.'
25 Ms Bateup became concerned that delays in Ms McDonald attending to her responsibilities were holding up necessary documentation for a week or more rather than a day or so. The following evidence was given:
'HIS HONOUR: What sort of delay are we talking about?---there was time required to do sterility testing, and so on, on batches, and that took up to a couple of weeks, and so, when that information got back, the expectation would be that the documentation was looked at fairly quickly and released, and so sometimes, even after the documentation - the sterility tests were returned, the products sat in quarantine for a week or more.
MS THEW: So, Ms Bateup, just going back one step, what time - what kind of time would you expect Ms McDonald to have signed the batches off within?---Within, you know, a day or two of receiving all the necessary information back from test results.
…
So you're saying that the batches should have been signed off within a day or two, but sometimes it was taking up to one or two weeks?---Correct, a week or more.
Is that why you had concerns - the concerns that you spoke about?---Yes.'
26 These concerns led Ms Bateup to do two things. She commenced to make notes in her diary of Ms McDonald's arrival and departure times, and sometimes her absences at lunchtime, and she spoke to Mr Bell about her concerns. Her evidence was that her concerns developed in the period from April to June 2006 and she commenced to make a record in her diary from the beginning of June. The first record is on Thursday, 1 June and shows Ms McDonald arriving at 9.45am. The following day she arrived at 9.37am. There is no reason to doubt the general reliability of Ms Bateup's observations. They disclose a general pattern, over the period in which she kept a record, that Ms McDonald arrived more often than not substantially later than 9am, on four occasions at about 9am or shortly thereafter, on no occasion before 9am and that she left, generally speaking not long after 5pm. Occasionally, according to Ms Bateup's observations, she was absent for quite lengthy periods at lunchtime. The four longest periods were one hour 7 minutes, one hour 20 minutes, one hour 37 minutes and two hours 12 minutes.
27 There was some other material from both Parnell Laboratories and Ms McDonald which was advanced by each of them as a foundation to draw inferences about Ms McDonald's attendance. In the case of Parnell Laboratories the material concerned an analysis of records generated by the use of a swipe key issued to Ms McDonald. The first and last use of the key on any particular day was extracted. These entries do not give any reliable picture of departure from the premises because use of the swipe key was not required to exit. So far as arrival times are concerned they confirm an initial pattern of arrival during February 2006 generally between 8.30 and 9am (although sometimes earlier and on one occasion at 10.16am), a mixed position through March 2006 with arrivals in the week commencing 6 March 2006 between 8.31am and 9.29am, in the following week between 7.56am and 9.52am (three occasions substantially after 9am), in the week of 20 March 2006 between 8.24am and 9.28am, in the week of 27 March between 7.05am and 8.33am and thereafter a general pattern through April of attendance between roughly 8.30am and 9.30am and a pattern of arrival in May 2006 generally between 8.30am and 9.00am (on one occasion 10.28am) until the records which were in evidence cease at 19 May 2006.
28 Ms McDonald produced records relating to the roam tag in the motor vehicle she used to travel to work. On her evidence it took about 20 to 30 minutes after passing through the toll collection point for her to arrive at work. For the period 1 May to 19 May it generally confirmed the swipe card records. Thereafter for the balance of May it suggests that Ms McDonald arrived at work generally between 8.30 and 9.00am although there are some earlier exceptions. In the period during which Ms Bateup kept her diary the roam tag records seem to confirm the general accuracy of Ms Bateup's observations during the first week in June. Thereafter the roam tag records for arrivals were not made available.
29 Although Mr Kenrick and Ms Bateup were concerned about Ms McDonald's pattern of attendance the significance of the records to which I have referred for the present case is not, in the first instance, that they showed dilatory performance on the part of Ms McDonald. Some of these records were not available at all to Mr Bell when he terminated Ms McDonald's employment. He certainly did not have the swipe key records nor Ms McDonald's roam tag records. His evidence was that he had received oral reports from Ms Bateup about the matters which she had recorded in her diary but did not have the diary record itself. The material to which I have referred does however confirm an objective foundation for subsequent events.
30 As earlier observed no formal performance review was carried out at the expiration of Ms McDonald's probationary period. According to Mr Bell's evidence the usual general performance review for all staff members was due to commence some time in May and would conclude with a review of remuneration at the end of June. His evidence was that he sent Ms McDonald a self-appraisal form for the purpose of the general review towards the end of May. On 9 June he sent a general reminder by email to all his reportees indicating that he wished to complete their performance review by 19 June. On 26 June he sent an email to Ms McDonald asking 'when can I expect your PR DP' (performance review development plan). Ms McDonald replied that afternoon that she would complete the PR/PD (sic) after completing some other tasks on 27 June. The following morning (27 June) Mr Bell sent Ms McDonald a further email. It is possible to infer from its tone and contents that there were a number of matters of concern to him and that he wished to emphasise the necessity for Ms McDonald to comply with his requests. The email read:
'Deme,
- By COB today, please provide me:
1. Record of your daily attendance at Parnell premises over the last 3 weeks. Note the time of arrival, lunch break duration and time of departure.
2. Status Report of your priority responsibilities on which we have been meeting regularly - see my unanswered email request of yesterday. Please be sure to include:
• all Internal Audit Reports for recent months
• schedule for the Internal Audit Program for the next year
- By 9am tomorrow, please provide me your completed PR DP Self Assessment
- By COB Friday please provide me a Doctor's Certificate explaining the medical reasons for your absence Monday last week
The above is non-negotiable and without exception must be complied with. Once I have reviewed the documentation from 1 & 2 above we will meet this week.
Thx, Alan'
(emphasis added)
31 Ms McDonald responded by inserting text in the body of Mr Bell's email. For present purposes it is item 1 in his request which is of significance. Her response to that item read as follows:
'Unfortunately I do not maintain a log of my arrival/departure and lunch and therefore can not comply with this request at the level of detail requested. In general I arrive at 9:00 (if there is an 8:30 meeting 3 times/week I arrive at 8:15) and Depart at 5:20, in addition I average a 20 minute lunch break twice/week in which I walk to the local café and back to my desk. There are exceptions to these times, however, they are not excessive or result in my working less hours than a full work week.'
She added the following at the end of the email:
'I understand your need to assess my performance and status of deliverables since we have not met in a couple weeks, however, I am perplexed and concerned by the request for detailed account of my arrival/departure time and Lunch durations. I am here to be a part of the Parnell team and I take pride in my work and meeting the company objectives. I always endeavour to do my best and perform in the best interest of the organisation. I have been understaffed for some time and have been working diligently to recruit for the vacant roles while during this time I have managed the Quality Team to meet the increased production export demands with multiple OOS and deviations hindering the process. I am here to assist Parnell and the continued development of the organisation and its people and if I am not performing to your satisfaction, I ask that you advise me so that we can be successful.'
32 It seems reasonable to infer that Ms McDonald appreciated that Mr Bell had a specific and active concern about her pattern of attendance. Mr Bell's very specific request and the severe note of his concluding remarks required, in my view, a conscientious answer. At a minimum Ms McDonald would have been wise to ensure that her response was generally accurate and reliable.
33 When the meeting between Ms McDonald and Mr Bell occurred on 30 June 2006 Mr Bell had arranged for a Ms Slatery to be present. On Ms McDonald's account of the conversation which ensued, and Mr Bell's, she was challenged about her response. There are some discrepancies and differences in their accounts but they do not change the general picture. Ms McDonald was accused of lying to Mr Bell about her attendance. She denied that she had done so and insisted that she had in fact attended work as stated in her email. One feature about Ms McDonald's account of the conversation should be mentioned. She said that the following exchange occurred:
'DM: "… I do have to take my kids to school sometimes and have to drop them off at 7:30am and that gets me to work by 9:00am."
AB: "So you take your kids to school everyday?"
DM: "No, I don't. When I have 8:30am meetings my husband takes the kids to school. My husband usually drops off my oldest son because his school is in St Ives and it is on his way to work."'
34 The apparent lack of conformity between this exchange and Ms McDonald's other evidence (that taking at least one of her children to child care inhibited her attendance at 8.30am meetings) was never explained. As I earlier indicated she did not, in any event, give direct evidence that in fact she left either child at school or at a child care facility at 7.30am on the days when she had 8.30am meetings.
35 Ms McDonald accepts that she said to Ms Slatery that she would resign as a result of the matters which had been raised. There is a difference between her and Mr Bell about whether he was still present. She says he had left. He says that he heard what she said. Nothing really turns on whether he was present or not. It is common ground that shortly after agreeing to resign Ms McDonald returned to the meeting room and said to both Ms Slatery and Mr Bell that she would not in fact resign and insisted that she be terminated. She demanded a letter of termination. She was directed by Mr Bell to go to her office and collect her things and leave. On her evidence she agreed to do so. However, she stopped instead at the office of Ms Fenella Cochrane, a senior manager with Parnell Laboratories, and attempted to enlist Ms Cochrane's help to obtain a letter of termination before she left the premises. It is events which then occurred which provide the foundation for Ms McDonald's allegation that Mr Bell assaulted her. In her affidavit evidence she said the following (after referring to a statement made to Ms Cochrane):
'112. Just as I finished saying these words Alan Bell entered Ms. Cochrane's office and approached me from behind. Alan Bell then grabbed my jacket sleeve and pulled me in a sideways motion out of Ms. Cochrane's office. Alan then motioned with his hand for me to go down the stairway which we were now standing near. As Alan Bell motioned for me to go down the stairs Alan Bell said:
AB: "You get out of this office. You go now. You leave now."
113. As Alan Bell escorted me, by walking immediately behind me to the stairway, we passed the boardroom. As we passed the boardroom I heard Alan Bell say to Pam Slatery who was still sitting in the boardroom:
AB: "It looks like I have to escort her after all. She can't be trusted."
114. As I proceeded to walk down the hallway towards the staircase I recall Alan Bell walking at all times very close to me. This made me feel very uncomfortable and threatened. Alan Bell remained in very close proximity to me as I was escorted down the unlit stairway and into a vacant warehouse. Alan Bell then said to me:
AB: "I can't believe you disobeyed my orders. You are to go to your office, collect your things, and don't speak to anyone."
115. By this stage I was feeling very afraid, anxious and concerned for my safety. Alan Bell and I were now walking in a vacant warehouse, there were no other people present and I was very fearful of my safety as I believed that Alan Bell may physically assault me. This experience had a very traumatic effect on me and I continue to be affected by this experience.
116. Alan Bell and I passed through the warehouse, as we did so Alan Bell saying to me in a raised voice:
AB: "Just go straight to your office, get your things and don't talk to anyone."
117. The staff working on the production floor stopped what they were doing to watch as Alan walked me through the warehouse and to the stairway, which led to my office. I felt extremely humiliated …
118. I was then escorted through the alley behind the office and to the manufacturing facility door. Once entering the manufacturing warehouse, I said to Alan Bell:
DM: "Can I have a box to put my things in?"
AB: "I will get you a box."
119. I then entered my office and begun [sic] to collect my personal possessions, as all the administrative staff stood in the hallway and watched me pack my things through the window. A few minutes later Alan Bell joined me with an empty box for my belongings. Within 5 minutes I had collected my possessions. As I begun [sic] to make my way out of my office Alan Bell remained very close to me and walked right behind me as I walked through the warehouse and toward the warehouse door. This was observed by all the administrative staff as well as the manufacturing personnel working that day. This scene was extremely distressing and humiliating for me as this scene was witnessed by staff that I had previously been responsible of in my role as Quality Assurance Manager. I was also saddened that I could not say good bye to any of my colleagues.'
36 Mr Bell, on the other hand, gave affidavit evidence as follows:
'58. When I entered Ms Cochrane's office, the Applicant was talking to Ms Cochrane asking her for a letter of termination. I said words to the effect of:
"Deme, would you please leave?"
59. The Applicant ignored me and continued talking to Ms Cochrane and I therefore said these words to her again. The Applicant again ignored me and kept talking so I gently took her by the crook of her arm and said words to the following effect:
"Time to go. I'll walk with you."
60. In relation to paragraph 113 of the McDonald Affidavit, I deny that I walked "immediately" behind the Applicant but simply walked with her. I deny that I said the words attributed to me. I said words to Ms Slattery to the following effect:
"I'm taking Deme to her office to get her things."
61. In relation to paragraph 114 of the McDonald Affidavit, I deny that I walked "very close" to the Applicant or that I said the words attributed to me. I recall that the stairway was not dark. I said words to the following effect:
"I'm surprised that you disobeyed a direct instruction. We'll go to your office and collect your things."
62. In relation to paragraph 115 of the McDonald Affidavit, I say that I did nothing to make the Applicant "very afraid" or feel as though I was going to "physically assault" her.
63. In relation to paragraph 116 of the McDonald Affidavit I deny that I raised my voice to the Applicant and deny that I said the words attributed to me.
64. In relation to paragraph 117 of the McDonald Affidavit, I do recall that there were staff around although I do not recall any staff watching the Applicant and I.
65. In relation to paragraph 118 of the McDonald Affidavit, the Applicant and I walked down the driveway behind the office through the centre of the estate. This is not an "alley" but a broad open sealed area for pedestrian, car and container truck access to the estate.
66. In relation to paragraph 119 of the McDonald Affidavit, I do not recall seeing other employees watch the Applicant pack her things. I deny that I "remained very close" to the Applicant.'
37 None of the persons said by Ms McDonald to have observed any of these events were called to give evidence, except Ms Cochrane who was called by the respondents. Ms Cochrane's affidavit evidence was as follows:
'28. I then saw the Second Respondent walk past the doorway of my office. The Second Respondent did not enter my office but stood outside in the hallway. I heard the Second Respondent say words to the Applicant, from outside my office, to the following effect:
"I told you to leave."
29. As he said this I recall the Applicant, who had been standing in front of my desk, turned and left my office.
30. In response to paragraph 112 of the McDonald Affidavit, I say as follows:
(a) From where I was sitting I could not see the Second Respondent because he was outside my office and my view of him was obstructed by the Applicant, who was by this time in the doorway of my office;
(b) I did not see that [sic] the Second Respondent "grab" or touch the Applicant;
(c) I did not see the Second Respondent motion his hand for the Applicant to go down the stairway.'
38 During her oral evidence, when asked again what had happened Ms McDonald gave evidence which was a little more explicit. She said:
'My back was to the door and I was facing Fenella. So basically the doorway was behind me, I am facing Fenella's desk, I am standing. I didn't see him come up behind me and when he did come up behind me he grabbed my left sleeve of my jacket here and he pulled me out and I went sort of turned around sideways and lost my footing as he pulled me into the hallway.'
39 In his own oral evidence Mr Bell denied that anything of this kind had happened. His evidence was, in cross-examination:
'And you walked towards Ms Cochrane's office, didn't you?---Yes.
And Ms McDonald was talking to Ms Cochrane, wasn't she?---Yes.
And she had her back to the doorway, didn't she?---I don't recall.
You then - you went into Ms Cochrane's office, where she was talking to her, didn't you?---Yes.
And you grabbed her jacket sleeve and pulled her sideways out of Ms Cochrane's office, didn't you?---No.
Well, Mr Bell, you say in your affidavit that you took her by the crook of the arm. By the crook of her arm, do you mean her elbow?---Yes.
So you took hold of her elbow; is that right?---No.
Well you touched her elbow; is that what your evidence is?---Yes.
And you then pulled her out of Ms Cochrane's office, didn't you?---No.'
and:
'You grabbed her sleeve and pulled her forcefully out of Ms Cochrane's room, didn't you?---I categorically deny that. I did not.'
40 Had matters occurred as Ms McDonald alleged it seems impossible that Ms Cochrane could have remained unaware of it. In her oral evidence the following exchange occurred, in cross-examination:
'Right?‑‑‑And noticed that Ms McDonald was in my office, at which point he spoke.
And that's when he said, "I told you to leave"?‑‑‑Words to that effect, yes.
Yes. All right. And the next thing you see is Ms McDonald - did you see - did you - sorry, I withdraw that. Did you see Mr Bell enter your office?‑‑‑No, I can't recall that he entered my office at all.
Is it possible that Ms McDonald was blocking your vision of the doorway?‑‑‑She was effectively in the doorway, I believe.
All right. And then she abruptly turned her body and left the room?‑‑‑That's probably the way it happened, yes.
Yes. All right. And she stumbled, didn't she?‑‑‑No, I can't recall seeing her stumble at all.'
41 In re-examination Ms Cochrane confirmed that she did not see Mr Bell touch Ms McDonald. There is no reason to doubt the general reliability of Ms Cochrane's evidence which appeared to be given in a straightforward and honest fashion. Ms Cochrane, for a number of reasons, appeared to me to be not unsympathetic to Ms McDonald. Had Ms McDonald been pulled forcibly from Ms Cochrane's office, or even lost her footing as she turned, I would have no doubt that such a circumstance would be in Ms Cochrane's plain view and there is no reason to believe that she would or did conceal it when she gave evidence. In relation to this incident I prefer Mr Bell's evidence to Ms McDonald's. I accept that Ms McDonald turned abruptly when touched on the elbow (or taken by the elbow) by Mr Bell but I do not accept that that was the result of any force applied by Mr Bell or that he pulled Ms McDonald into the hallway.
42 There was other evidence from Ms McDonald designed to suggest that she was, generally speaking, a good and reliable employee making a useful and uncriticised contribution to Parnell Laboratories' operations. Some of her evidence appeared designed also to suggest that Mr Bell had a tendency to be erratic and even dictatorial. The respondents, on the other hand, called evidence designed to demonstrate that by reason of matters which were apparent before Ms McDonald's dismissal and also matters which only became apparent subsequently, she was by the end of June 2006, and earlier, in manifest default of her obligations to properly supervise and manage Parnell Laboratories' quality control and audit systems. Mr Bell gave evidence that if he had not dismissed her for misconduct on 30 June he would have sought her resignation on that day for other reasons.
43 There was a good deal of debate about the requirements and operation of the performance counselling guidelines in relation to these other aspects of Ms McDonald's performance of her duties. When taken to the matter in detail Mr Bell conceded that he would, in all probability, have felt it appropriate and necessary to follow the procedures set out in the Staff Guidelines and, in particular, to give Ms McDonald an opportunity to remedy deficiencies in her performance at each stage of the process. As I understand his evidence he was not able, ultimately, to say that her employment was necessarily forfeit had those procedures been carried out and had she been given the opportunity which the procedures contemplate to respond positively to constructive criticism.