New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation

New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation - [2007] NSWIRComm 89 - NSWIRComm 2007 case summary — Zoe

CATCHWORDS: Appeal - application for leave to appeal - termination of employment - unfair dismissal - summary dismissal for serious and wilful misconduct - other incidents involving allegations against appellant - decision of Commissioner at first instance - finding that misconduct had occurred - finding that dismissal was not harsh, unreasonable or unjust - requirement to be properly satisfied about the strength and reliability of evidence - onus on employer - other incidents did not justify dismissal - no direct sworn evidence that alleged misconduct had occurred - failure to call material witnesses - no explanation for failure to call witnesses - onus not discharged when based on accepting the credit of investigators - second hand evidence relied upon - integrity of investigators not impugned - allegations of serious misconduct denied - reliance on reports from persons not even eyewitnesses to alleged misconduct - hearsay upon hearsay - weight of evidence clearly in appellant's favour - accusers not called to give evidence - statements not allowed - appellant unable to test evidence of accusers - possibility of vendetta - management team had no direct knowledge - Jones v Dunkel principle - error in evaluating evidence - Commissioner erred in finding that dismissal was not harsh, unreasonable or unjust - reinstatement appropriate remedy - no evidence that other employees could not work with appellant - four years previous good service - appellant's critics no longer employed - leave to appeal granted - substantial injustice - appeal upheld - decision of Commissioner set aside - reinstatement on terms no less favourable with continuity of service - orders for lost remuneration - extempore decision and orders made - proceedings re-listed to clarify orders made - order of payment of lost remuneration of no effect - intention of order - intention not to have no practical effect - slip rule invoked - order rescinded and replaced to correct intention of Full Bench.

[24]

3 At this juncture we note that on 13 February 2007 the Full Bench re-listed the appeal proceedings at the request of the appellant's Union following a disagreement between the parties as to the practical effect of Order (5) above. We shall return to this issue later in the reasons for decision, which now follow. Background to dismissal and the Commissioner's decision 4 The Booroongen Djugun Aboriginal Corporation ('BDAC') has operated an aged care facility since June 1991. The aged care facility offers 20 low-level care beds and 40 high-level care beds. The appellant had been employed as an AIN in the aged care facility since October 2000 and had over four years of unblemished service until about March 2005. 5 The reasons for the appellant's summary dismissal were said to be insubordinate behaviour displayed towards senior management, dereliction of duty, intimidation and wilful misconduct. The respondent concluded that each of these allegations had been made out on the balance of probabilities following its investigation into a series of incidents involving the appellant and other staff members, most notably, a registered nurse, Ms Ann Schmidt. 6 The first incident occurred on 30 March 2005 when the appellant was accused of not cleaning faeces from the shower of one of the nursing home residents. When Ms Schmidt asked her to clean the bathroom it was alleged that the appellant ignored the instruction and had said that she did not answer to her or the Director of Operations, Training and Services, Ms Val March. Her attitude and lack of respect towards Ms March was considered by the respondent to be unacceptable and she received a first and final written warning. 7 On 21 April 2005, Ms March observed the appellant smoking with two other staff members while the appellant was not on a scheduled break. She was issued with a second warning regarding the requirement to smoke only in designated areas and only during her breaks. The appellant was also accused of dereliction of duty in that she did not feed a resident her lunch and instructed other staff not to feed her. 8 As to intimidation and wilful misconduct, it was alleged that the appellant had a conversation with another person in which she said that she and others would put heroin in Ms Schmidt's car, stolen goods would be planted on the CEO's premises and that pets of another employee, Ms Lentz, would be harmed. 9 Ms Schmidt did not give evidence in the proceedings below. Whilst the Commissioner noted that the failure to call Ms Schmidt as a witness was significant, McLeay C relied on a number of other matters as forming a "distinctive pattern of behaviour". At para [39] the Commissioner said: 39 Ms Rudder ignored the direction from Ms March and spoke loudly and aggressively to her. Her further actions, during the period when she knew that her conduct would be monitored, included:

[25]

· Ms Rudder filed a Discrimination or Harassment Complaint Form against Virginia Alderton, the Cleaning Supervisor, after the report of the incident on 30 March. · She filed a Discrimination or Harassment Complaint Form against Val March over the same incident. · The cook reported that a resident had not been fed because Ms Rudder had asked for her meal to be set aside. Ms Rudder told two other AINs not to feed the resident. -Ms Rudder admitted smoking in an unauthorised area on an unscheduled break. She said others had smoked in the same area, but offered no defence for the unscheduled break. - At the meeting on 24 May, Ms Rudder tabled a statutory declaration from Ms Eather, having withheld that document for over three months. - Complaints were received from Ms Brockman and Ms Davies regarding statements alleged to have been made by Ms Rudder on 21 May, involving criminal acts intended to take place to cause trouble for a number of members of the management team of BDAC. 10 The Commissioner then found as follows: 49 I find there is a pattern of behaviour by Ms Rudder that is consistent with Ms Lentz accepting Ms Schmidt's report that Ms Rudder had made threats against a number of members of management, including her intention to engage in certain acts which have been correctly described during these proceedings as criminal activity. Speaking rudely to management, lodging formal complaints about supervisors who reported her behaviour and who carried out normal investigatory and/or disciplinary processes, telling other staff not to feed a patient and taking an unscheduled break and smoking in an unauthorised area may not in themselves appear to be serious concerns. However, when such conduct occurs in a short space of time, when a written complaint against the supervising Nurse is withheld for three months, and when such conduct continued when the applicant knew her behaviour was being monitored, a distinct pattern of insubordination and misconduct emerges, providing a background to what followed. ... 53 The ultimate findings of BDAC were that, on the balance of probabilities, Ms Rudder had been insubordinate to senior management, had been derelict in the performance of her duty, had sought to intimidate other members of staff and had displayed wilful misconduct.

[38]

Leave to Appeal 11 Mr M Kimber of senior counsel for the appellant submitted that leave to appeal should be granted, as it was obviously in the public interest that workers not be unfairly dismissed. Mr Kimber said that the Commissioner's decision involved a number of serious errors of law in that the Commissioner: · applied the wrong test (the "Bi Lo" test: Bi Lo Pty Ltd v Hooper (1992) 53 IR 224) when considering if the appellant was guilty of the misconduct justifying summary dismissal. The Commissioner had answered the test by being satisfied that the management's decision-makers believed that the appellant was guilty of the misconduct, rather than being satisfied herself that the misconduct had occurred; · failed to pay any regard to the Briginshaw principles in the face of serious allegations of criminal conduct: Briginshaw v Briginshaw (1938) 60 CLR 336; · failed to pay any proper regard to the principles established by Jones v Dunkel (1959) 101 CLR 298; · reached a conclusion that the respondent had discharged its onus of proof when no witness was called as to the serious allegations against the appellant and where the chief complainant in respect to allegations of insubordination and dereliction of duty, Ms Schmidt, was not called to give evidence; and · took into account entirely irrelevant matters and other matters not even relied upon by the respondent in arriving at its decision to dismiss the appellant. 12 Mr Kimber submitted that it was necessary to grant leave to appeal in order to correct these serious errors and to ensure a substantial injustice was not permitted to stand. 13 Mr P Newall of counsel for the respondent, submitted that it was not enough to gloss over the appellant's onus to establish a proper basis for leave to be granted. It was an onerous requirement: see Harrison's Joinery Pty Ltd v WorkCover Authority of New South Wales (Inspector Richey) (1997) 88 IR 120. He submitted leave will not be automatically granted: see Zoological Parks Board of New South Wales v Australian Workers' Union (2004) 135 IR 56 and there was an emphasis on first instance decision making: see Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 and Crewdson v NSW Department of Community Services (2003) 131 IR 217. 14 Mr Newall said that this appeal did not attract issues concerning the Commission's general principles nor involved a fundamental issue. No public interest consideration arose because there was no wider application of the issues decided other than the interests of the parties.

[41]

18 Mr Kimber submitted that the Commissioner erred in finding that the appellant had engaged in a "distinctive pattern of [unacceptable] behaviour" and she took into account irrelevant matters that the respondent had not even relied upon in seeking to justify the appellant's dismissal. 19 Mr Kimber said most of the allegations of insubordination or dereliction of duty arose from complaints by Ms Schmidt, and were unsupported by anyone else. Moreover, Ms Schmidt was not even called to give evidence in the proceedings. Whilst the Commissioner quite properly excluded Ms Schmidt's statement of evidence, the only direct sworn evidence was that of the appellant who either denied the allegations or otherwise explained them. Her evidence was not challenged or otherwise contradicted. 20 The Commissioner went on to erroneously conclude that the said conduct had occurred because management (Ms Lentz, Ms March and the CEO, Mr Gary Morris) was entitled to believe Ms Schmidt's reports. This was a conclusion akin to that found in Bi Lo Pty Ltd v Hooper, a decision which is not applicable to the law in New South Wales: see Pastrycooks, Biscuit Makers & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 and Wan v Sydney Tower Restaurants Pty Ltd, Zhang v Sydney Tower Restaurants Pty Ltd [2003] NSWIRComm 60. 21 Mr Kimber submitted that the Commissioner also erred by failing to pay any, or proper regard to the uncontradicted and unchallenged evidence of Ms Eather that she had heard Ms Schmidt say "that Debbie (the appellant) will be the next out the door, I'm working on it". One might reasonably assume that this was all "a fix" and when that failed the allegations of criminal activity emerged. 22 As to these allegations of serious and wilful misconduct, including criminal activity, Mr Kimber observed that not one of the persons said to have made the allegations, namely Ms Brookman, Ms Schmidt or Ms Davis, were called to give evidence and Ms Schmidt had not even been present when the conversation was alleged to have taken place. Her statement was hearsay. In light of the appellant's sworn evidence denying the allegations, Ms Stewart's statement denying the allegations and Mr Eddie Morris' statutory declaration stating it was he who made the threats, the only conclusion to be drawn was that the respondent had failed to discharge the onus of proving the serious allegations of criminal conduct. 23 The Commissioner had erred in making findings that the employer had a reasonable basis for believing the allegations rather than on whether there was any probative evidence before her to suggest the misconduct had occurred. 24 Further, there was no explanation, or adequate explanation, as to why Ms Brookman, Ms Schmidt and Ms Davis were not called to give evidence. As Ms Schmidt was pivotal, it was necessary for her to deny the vendetta she had against the appellant: see Jones v Dunkel. 25 Mr Kimber put that the first warning given to the appellant had not been appropriate because the appellant had been wrongly accused of not cleaning the resident's bathroom and had not ignored Ms Schmidt's directions. 26 Mr Kimber contended that leave to appeal should be granted, the appeal upheld and the appellant reinstated with compensation for lost wages: see Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325. Reinstatement was not impractical, particularly as Ms Schmidt, Ms Brookman and Ms Lentz no longer work for the respondent and the appellant was one of 32 to 33 Assistants in Nursing employed at the facility. The appellant had four years good service and there was limited day-to-day contact with senior management: see Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. 27 Mr Newall submitted that the appeal should be dismissed as the asserted errors of law were not present. The findings of fact were available to the Commissioner and it was not sufficient to merely challenge the decision in order to secure a different result: See Western Sydney Area Health Service v Gibson (2001) 109 IR 359; Zoological Parks Board of New South Wales v Australian Workers' Union; Blue Scope Limited v Australian Workers' Union, NSW (2004) 137 IR 176. 28 Mr Newall said the Commissioner was well aware of the need to apply the Briginshaw test and, in fact did so. It was perfectly open and quite proper for the Commissioner to consider whether the respondent was entitled to find that the misconduct had occurred. However, the Commissioner went on to apply the correct test: whether the Commission was satisfied that the misconduct had been proven. She had expressly said so and had not applied a Bi Lo test. The correct test had been applied. The Commissioner then considered whether the dismissal for misconduct was harsh, unreasonable or unjust. 29 Mr Newall said the Commissioner did not find a pattern of unacceptable behaviour. It was simply a recitation of matters which had occurred and were available from the appellant's own evidence. 30 The Commissioner found that there was good reason to doubt Ms Eather's evidence after having the benefit of observing her in the witness box. The Commissioner did not have to give reasons, but did so. Mr Newall submitted that this could not constitute an error. 31 The Commissioner had properly excluded Ms Schmidt's statement. Moreover, the Commissioner considered the weight of evidence without Ms Schmidt's statement. There was no error in this approach. It could not be the case that simply because the primary witness was not called that other evidence would not satisfy the Briginshaw test. At its highest, the complaint was about the weight of evidence. Further, it could not be a criticism that Ms Brookman was unable to be located. 32 Mr Newall said there was no basis for appeal on the issue of the first warning. Findings about the first warning are not the relevant issue when the Commissioner found serious misconduct. 33 As to remedy, the respondent put that without departing from its primary submission, reinstatement was not an option. The difficulties the appellant had with fellow workers were not confined to Ms Schmidt, Ms Brookman or Ms Lentz. The appellant had an aggressive attitude. An aged care facility was different to a factory or a company transporting goods, in that it relied on teamwork. Any level of antagonism would affect the care of the elderly. Threats had been made to the CEO, Mr Gary Morris and Apprehended Violence Orders had been taken out.

[42]

In reply 34 Mr Kimber put that where a strong case has been established that serious errors by the Commissioner produced a substantial injustice, then leave to appeal would be granted. 35 The correct test here was whether the findings of fact were reasonably open on the evidence to establish criminal conduct. In this case, there was no probative evidence, but only hearsay. The reference to misconduct was a reference to the threats. The Commission was led to a conclusion that the threats were made, not by seeing Ms Schmidt or Ms Brookman but because the respondent's managers had been satisfied the threats were made. In addition, a Jones v Dunkel inference clearly arises. 36 Mr Kimber said that the suggestion that this was a discretionary decision was simply wrong as a matter of law. The Commissioner's decision contained a number of errors as to constitute a substantial injustice. The appellant's counsel never had an opportunity to cross-examine her accusers. The Commissioner never had an opportunity to assess their credit. Even if there were a direct conflict of evidence, it would need to be resolved by looking at other objective material. 37 Mr Kimber added that there was no employee called to give evidence that they could not work with the appellant. The fact Mr Gary Morris went to the police is irrelevant because there was no suggestion that the police did anything. There was not a scrap of evidence to suggest that patient care would be jeopardised if the appellant were reinstated. CONSIDERATION Leave to appeal 38 The principles to be applied when considering the grant of leave to appeal pursuant to s 188 of the Act are well established. In Ambulance Service of New South Wales and John Buchtman [2007] NSWIRComm 18 the Full Bench said: 42 The principles to be applied when considering the grant of leave to appeal are well known. Leave to appeal will not lightly be granted: Knowles v Anglican Church Property Trust (No 2) ; King v State Bank of New South Wale (No 2) (2002) 126 IR 407 at 52 ; Commissioner of Police v Evans (2006) 153 IR 144. Leave may be granted if an issue of real significance in the interests of justice has been identified: Austin v NF Importers Pty Ltd and Another (2005) 146 IR 113 at 4. Leave may also be granted where the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implication for the jurisprudences of this Commission, including whether the decision has widespread practical application": Knowles at 382. An appellant will face a significant hurdle in obtaining leave, if the appeal merely seeks to primarily challenge findings of fact which are otherwise reasonably open on the evidence or the exercise of a discretion: Box Valley Pty Ltd v Price (2000) 97 IR 484 at 4.

[46]

The Appeal 40 We begin our consideration by reference to the principles to be applied in an appeal such as this. These principles were conveniently summarised in Burge v NSW BHP Steel, where the Full Bench of the Commission said at para [7]: 7 The general principle is that an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge; in deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusions of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it: Warren v Coombes (1978) 142 CLR 531 at p 551. And, in addressing error, an appellate court should not interfere with the trial judge's conclusions on facts unless it is of the opinion that they were not reasonably open (or were clearly wrong) on the evidence: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at p 107; Autobake Pty Ltd v Budd [1986] 19 IR 18 at p 25; Abalos v Australian Postal Commission (1990) 171 CLR 167 at pp 178 ff; Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at pp 153-155; and Port Macquarie Golf Club v Stead (64 IR at p 59). Importantly in this latter respect, we have in mind the observations by the High Court in London Bank of Australia Ltd v Kendall (1920) 28 CLR 401 at p 407 as to the duty of an appellate tribunal, as follows: But where the law says that the Court, and not a jury, is to determine the facts, and also says that an appellate Court can be asked to reconsider them, and therefore should reconsider them, it is the duty of the appellate tribunal (and it is the statutory right of the litigant who invokes it to require of it the performance of that duty) to determine for itself the true effect of the evidence so far as the circumstances enable it to deal with the evidence as it appeared in the Court of first instance.

[47]

41 Given the seriousness of allegations such as criminal conduct and other conduct that might attract summary dismissal, a tribunal should not lightly make a finding that, on the balance of probabilities the appellant was guilty of the misconduct alleged. In this context, it is appropriate that we refer to the following passage from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 where the High Court observed: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud ((1) See, e.g., Hocking v. Bell (1945) 71 CLR 430, at p 500; Rejfek v. McElroy (1965) 112 CLR 517, at pp 519-521). On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear ((2) Briginshaw v. Briginshaw (1938) 60 CLR 336, at p 362; Helton v. Allen (1940) 63 CLR 691, at p 701; Hocking v. Bell (1944) 44 SR (N.S.W.) 468, at p 477 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Rejfek v. McElroy (1965) 112 CLR, at p 521; Wentworth v. Rogers (No.5) (1986) 6 NSWLR 534, at p 539 or cogent ((3) Rejfek v. McElroy (1965) 112 CLR, at p 521) or strict ((4) Jonesco v. Beard (1930) AC 298, at p 300; Briginshaw v. Briginshaw (1938) 60 CLR, at p 362; Helton v. Allen (1940) 63 CLR, at p 711; Hocking v. Bell (1944) 44 SR (N.S.W.), at p 478 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Wentworth v. Rogers (No.5) (1986) 6 NSWLR, at p 538) proof is necessary "where so serious a matter as fraud is to be found" ((5) Rejfek v. McElroy (1965) 112 CLR, at p 521). Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct ((6) See, e.g., Motchall v. Massoud (1926) VLR 273, at p 276) and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J. commented in Briginshaw v. Briginshaw ((7) (1938) 60 CLR, at p 362; and see, also, Helton v. Allen (1940) 63 CLR, at p 711): "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...". There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. In our view, it was so in the present case.

[49]

44 We turn to the alleged misconduct in this case and the nature and quality of the allegations relied upon by the respondent. The Commissioner considered that Ms Rudder had exhibited "a distinctive pattern of [unacceptable] behaviour". This involved insubordination and dereliction of duty and "statements alleged to have been made by Ms Rudder on 21 May, involving criminal acts intended to take place to cause trouble for a number of members of the management team of BDAC". The statements referred to by the Commissioner arose from the allegation that: On or before 21 May 2005 [the appellant] had a conversation with Ms Judy Stewart and Ms Debrae Brookman. In this conversation, it is alleged that it was discussed that Kerry Donnelly, Judy Stewart, Cheeky Donnelly and yourself were going to put heroin in the car of RN Ms Ann Schmidt; the goods would be stolen from Leading Edge Computers and planted on the premises of Mr Gary Morris to implicate Mr Morris or his sons and that Ms Diana Lentz's dogs were also mentioned in a manner suggesting that they would be harmed. 45 The Commissioner regarded the alleged discussion on 21 May 2005 as the most serious allegation. At [56] and [57] of her decision the Commissioner stated: The threats were so serious as to overshadow all else that had preceded them. ... Making these threats amounts to conduct that is both serious and wilful. The threats made are such as to establish a repudiation of the employment contract. 46 Whilst the Commissioner regarded the threats discussed in the conversation on 21 May 2005 as the most serious of the allegations against the appellant in deciding the dismissal was not harsh, unreasonable or unjust, the Commissioner appears to have taken into account the whole of the appellant's conduct. At [49] the Commissioner observed: 49 I find there is a pattern of behaviour by Ms Rudder that is consistent with Ms Lentz accepting Ms Schmidt's report that Ms Rudder had made threats against a number of members of management, including her intention to engage in certain acts which have been correctly described during these proceedings as criminal activity. Speaking rudely to management, lodging formal complaints about supervisors who reported her behaviour and who carried out normal investigatory and/or disciplinary processes, telling other staff not to feed a patient and taking an unscheduled break and smoking in an unauthorised area may not in themselves appear to be serious concerns. However, when such conduct occurs in a short space of time, when a written complaint against the supervising Nurse is withheld for three months, and when such conduct continued when the applicant knew her behaviour was being monitored, a distinct pattern of insubordination and misconduct emerges, providing a background to what followed. 47 Apart from the alleged conversation on 21 May 2005 where it was said criminal conduct was discussed, when one considers the termination of employment letter provided to Ms Rudder on 28 June 2005, the only incident referred to by the Commissioner as constituting an unacceptable pattern of behaviour at [49] of her decision that was, in fact, relied upon by the respondent to dismiss Ms Rudder was the feeding incident. The other incidents relied upon by the respondent were: an incident on 14 May 2005 where it was alleged that Ms Schmidt witnessed Annette Dunn (another member of the nursing staff) and the appellant denigrating other staff and gossiping about the employer's business; and, an incident on 16 May 2005 where again it was alleged Ms Schmidt saw the appellant and Ms Dunn standing around not having commenced duty. The Commissioner does not appear to have taken these latter two incidents into account. 48 Even if it is accepted that the Commissioner was entitled to take into account matters not relied upon by the respondent in dismissing the appellant, the matters McLeay C did take into account were all (except for the 'criminal conduct conversation') based on complaints by Ms Schmidt, the registered nurse in charge and Ms March, the respondent's director of operations, training and services. Ms March gave evidence in the proceedings and it is to be accepted that she had direct knowledge of the incident where she said Ms Rudder spoke to her loudly and aggressively. This incident occurred after Ms Schmidt had asked the appellant to clean up faeces in a bathroom but that the appellant had allegedly ignored this instruction. Ms Schmidt advised Ms March of Ms Rudder's conduct and Ms March spoke to the appellant about the matter. We accept that Ms Rudder's tone and manner in responding to Ms March about ignoring Ms Schmidt's direction was probably unacceptable. Nevertheless, we note that Ms Rudder denied on oath that she was responsible for the mess in the bathroom and was upset at being admonished by Ms March in a public place. We also note that Ms March was in an upset or agitated state when she spoke to Ms Rudder, which no doubt did not assist the situation. Ms Rudder was warned about her conduct, an appropriate response, but by any measure it was not conduct justifying dismissal. 49 The other incident involving Ms March occurred on 21 April 2005 when she witnessed Ms Rudder smoking in a non-smoking area during an unscheduled break. This was not a matter relied upon by the respondent to dismiss Ms Rudder and even if it is considered, with the earlier incident that attracted a warning, as pointing to a developing pattern of behaviour that was unacceptable it was not conduct justifying dismissal, as we believe the Commissioner recognised at [49] and [55] of her decision.

[52]

53 There were two bases upon which McLeay C sought to support her conclusions that the respondent's managers (Ms Lentz, Ms March and Mr Gary Morris) were entitled to believe Ms Schmidt rather than the appellant. Firstly, the Commissioner did not "accept that Ms Schmidt had the authority to dismiss Ms Rudder, nor did she persuade those in authority to do so" and that "Ms Schmidt did not convince Ms Lentz or Ms March to believe her, rather than believing Ms Rudder...". Secondly, that because the respondent's managers came to their decision (to believe Ms Schmidt rather than the appellant) "on their own knowledge and observations and evidence which included reports from people other than Ms Schmidt" that: It follows that any intention of Ms Schmidt or action by her has not unduly influenced the outcome of the management team's deliberations regarding Ms Rudder. I am satisfied that the management team would have reached the same decision, without any involvement from Ms Schmidt. 54 As to the first matter, that Ms Schmidt did not persuade those in authority to dismiss the appellant and that Ms Schmidt did not convince Ms Lentz or Ms March to believe her rather than believing Ms Rudder, it is difficult to see how the Commissioner could arrive at these conclusions safely when Ms Schmidt was not called to give evidence and face cross-examination. Moreover, there was the evidence of Ms Eather that she had heard Ms Schmidt say in February 2005 that "[the Appellant] will be the next out the door. I'm working on it". Despite the Commissioner doubting the veracity of Ms Eather's statement and statutory declaration it was unchallenged and uncontradicted. The existence of this evidence at least raises the question of Ms Schmidt's motives in making the complaints against Ms Rudder, but the appellant was provided with no opportunity to test those motives. 55 As to the second matter: none of the management team had any direct knowledge of the alleged incidents given rise to the complaints by Ms Schmidt; Ms Schmidt did not give evidence; and, the respondent called no other witnesses to the alleged misconduct by the appellant to attest to their "reports". In those circumstances, we disagree with the Commissioner that it followed that "any intention of Ms Schmidt or action by her has not unduly influenced the outcome of the management team's deliberations regarding Ms Rudder" or that "the management team would have reached the same decision, without any involvement from Ms Schmidt". 56 In finding that the management team could rely on its own knowledge and observations in the absence of any evidence from Ms Schmidt, this would appear to amount to a finding that members of the management team had personal knowledge of conduct by Ms Rudder that constituted an unacceptable "pattern of insubordination and misconduct" and which provided "background" to the discussion that allegedly occurred on 21 May 2005 where the appellant discussed the carrying out of criminal conduct. The only member of the management team that could be said to have possessed such knowledge was Ms March but that was confined to two relatively minor infractions, which could not, by any measure, be regarded as evidence of a propensity to engage in criminal conduct. 57 In finding that it was not open to the Commissioner to rely on the second hand evidence of the management team as a substitute for direct sworn evidence we do not wish to be taken as in any way impugning the honesty or integrity of those persons. We consider they acted in good faith and we can understand the difficulty the Commissioner faced in evaluating the evidence because we believe Ms Rudder's conduct was more than likely less than ideal, that she was not a model employee, and that the choices open to the Commissioner were not clear-cut. Nevertheless, in the circumstances it was not sufficient for the Commissioner to rely on the evidence of the management team, given the serious consequences for an employee who is summarily dismissed.

[57]

63 A critical error in the Commissioner's approach to the evidence in the proceedings was that she relied too heavily on the management team's assessment as to whether the appellant was guilty of misconduct instead of satisfying herself by way of strong and convincing evidence that, in fact, the misconduct occurred. As we have already acknowledged, the Commissioner was confronted with a difficult task, largely created by the respondent because of its failure to call relevant witnesses. However, in trying to get to the truth of the matter, the Commissioner did not pay sufficient regard in this case to the requirement that if an employer is to succeed in justifying the summary dismissal of an employee, especially where there are allegations that may amount to criminal conduct, the evidence must be clear and cogent: Neat Holdings; Briginshaw. 64 The appellant also contended that the Commissioner erred in that she failed to have regard to the Jones v Dunkel principle. In Cook's Construction Pty Ltd v Brown & Anor (2004) 49 ACSR 62 Young CJ in Eq observed: 32 As to this point it must be borne in mind that Jones v Dunkel is actually just one aspect of a wider principle. That wider principle is that in judging evidence the Court has regard to the material available to a party. If the person that the Court is considering is a person who does not bear the onus of proof and that person fails to call a witness, the inference may be drawn that the witness is not likely to assist the person's case. That is Jones v Dunkel itself. 33 If on the other hand the person bears the onus and has a witness which he or she does not call then the Court takes that into account when assessing the evidence as a whole. As good an illustration as any of that point is the judgment of Hodgson JA in Ho v Powell (2001) 51 NSWLR 572 at 576-7. It is that second aspect of the rule that is really relevant in the present case and it is with respect inaccurate to tag it as a Jones v Dunkel point. However, the tag " Jones v Dunkel " does not detract from the point her Honour was making that she can take into account when a witness is not called by a person who bears the onus when she is evaluating whether the onus of proof has been established. 34 Of course if it is shown that there is good reason why the witness is not called the principle does not apply... 65 The onus in the present case at first instance was on the respondent to prove the summary dismissal was justified. It did not call Ms Schmidt, Ms Brookman or Ms Davis and, in our opinion, there was no satisfactory explanation as to why these three persons were not called. The Commissioner was required to take this into account in assessing the evidence as a whole. In our opinion, she did so but, nevertheless, erred in evaluating the evidence overall.

[60]

106 In Plummer v Stannard Bros Launch Service (2005) 145 IR 111 the Full Bench stated the position as (at 115): Reinstatement is the primary remedy under s 89 of the Act: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [34]; Little v Commissioner of Police (No.2) (2002) 112 IR 212 at [88]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37 at [125] . Other remedies may only be ordered if reinstatement is considered to be impracticable. That requires the member of the Commission, in all cases where relief is to be ordered, to give active consideration to the practicability of reinstatement. Indeed, we consider s 89(5) requires a finding that it would be impracticable to reinstate the appellant prior to making an order for compensation and in the process of making that finding to give reasons: Entertainment Distributors Company Pty Limited and Anor v Burnard and Ors (1993) 49 IR 446 at 453. 107 The Full Bench in Little (No 2) considered the test to be applied as to the practicability of reinstatement of re-employment. At paragraph [91] the Full Bench stated: 91 It is in this light that we turn to consider the question of the practicability of reinstatement of re-employment. In this respect, we propose to apply the test in Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186 at 191-192 (which was adopted in Hollingsworth v Commissioner of Police at 341-342). 108 The focus in Perkins was on the issue of whether a loss of trust and confidence was a relevant consideration in determining whether reinstatement was impracticable and it is worth repeating what the Full Bench of the Federal Court had to say: Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Limited (Wilcox CJ, von Doussa and Marshall JJ, 13 December 1996, not yet reported). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushell (1933) 49 CLR 66 at 81-2 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based. At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

[65]

68 Mr Newall drew a distinction between the reinstatement of an AIN to an aged care facility and the reinstatement of an employee employed in a factory or involved in transporting goods. While it may be relevant in a particular case to consider the facts and circumstances surrounding the dismissal, in the context of the nature of the workplace to which an employee might be reinstated, we do not consider that the evidence here disclosed any factors which would militate against reinstatement. There was no evidence of any resentment or antagonism from other staff members towards the appellant, or any suggestion they could not work harmoniously with her. Nor was there any evidence that management could not continue to have trust and confidence in an employee who had already given four years of service. In addition, we think it is a relevant consideration that the main accuser of the appellant, Ms Schmidt, and to a lesser extent Ms Lentz and Ms Brookman, are no longer employed by the respondent. 69 We confirm our orders of 1 November 2006, save for Order (5). Supplementary Submissions and Decision 70 On 17 January 2007, the appellant's Union wrote to the Commission seeking a re-listing of the appeal on the grounds that there was a dispute between the parties as to the effect of Order (5). Accordingly, the matter was re-listed on 13 February 2007. 71 Mr N Dawson of counsel for the appellant submitted that if it had been the intention of the Full Bench to order reinstatement with approximately six months back-pay, then the date chosen by the Commission of 31 May 2006 had the effect of no back-pay being paid. This outcome arose because the appellant was on unpaid maternity leave from 29 November 2005 until reinstatement. The appellant had been suspended on 30 May 2005 and dismissed on 28 June 2005. If an order had been made for back-pay from 28 June to 29 November when the appellant would have been at work, but for being dismissed, the order would have been for around five months, not six months pay. 72 Mr Dawson submitted that the unintended consequence of the order clearly falls within the slip rule and should be corrected to give effect to the intention of the order. 73 Mr C Wurf, for the respondent, put that there was no need to vary the orders, which had been carefully crafted with a date chosen being the date of the Commissioner's decision. The respondent has strictly complied with the orders and the appellant resumed work on 16 November 2006 with no payment for lost remuneration in accordance with the orders. 74 In reply, Mr Dawson queried if the intention of the Full Bench had been that no back payment was to be paid, why would any order be made providing for it. It must be a slip requiring a correction of the Full Bench's intention. 75 It was not our intention that Order (5) would have no practical effect because the appellant was on unpaid maternity leave during the time specified in the order. If the intent had been for no lost remuneration to be paid, we would have hardly crafted an order that referred to the payment of lost remuneration. It is appropriate, in view of what has now been made known to us, to invoke the slip rule in these unusual circumstances.

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