Oyang v Community Relations Commission

We note that CRC Language Services is responsible for delivering approximately 48,000 individual assignments per annum. We operate in a competitive market place where our quality of service is of utmost importance. The performance of casual CRC Language Services employees on each assignment is very important; it reflects on the Commissions reputation and facilitates the delivery of fair and equitable access to NSW Government Services. Most CRC language Services clients have detailed memorandums of Understanding or a contract which outlines the conditions of service provision including requirements for ethical and professional conduct by casual CRC Language Services employees. A great deal of valuable management time has been devoted in dealing with issues arising from your employment and your performance exposes the Commission to significant risk in measuring its contractual obligations to clients. As a result, we have suspended your current employment from the Commissions panel of casual interpreters until 31 March 2011. Please note your name will be withdrawn from already accepted assignments. Please return your Interpreter's Record Book and CRC ID card immediately in the enclosed envelope." 5The appellant was advised that her current employment from the CRC's panel of casual interpreters was suspended from 15 October, 2010 until 31 March, 2011. 6As the appellant is not an "officer" of the Public Service within the meaning of the Public Sector Employment and Management Act 2002, she is not subject to Part 2.7 Management of Conduct and Performance of that Act. 7Under the Industrial Relations Act 1996 the appellant is entitled to appeal to the Commission under section 98(1) by section 98(3)(c)(i) of that Act.

Issues 8Were the charges of non-attendance of previously accepted assignments and translation errors proven; Was the appellant afforded procedural fairness in relation to the charges; and Was the disciplinary sanction of suspension from employment from 15 October, 2010 until 31 March, 2011 appropriate in all the circumstances given the protective jurisdiction of the Commission under Division 3 of Part 7 of the Industrial Relations Act 1996.

Respondent's and Appellant's Cases 9The respondent stated that at all times CRC has provided the appellant with opportunities to improve her performance and warnings as to the consequences of ongoing poor performance. In accordance with the Complaints Handling Policy and Procedures for Casual Interpreters and Translators the appellant was issued with two warnings and despite these the appellant continued to fail to attend allocated assignments and continued to submit work which was of poor quality. The appellant's conduct, behaviour and service were considered by the CRC management to be contrary to the expectations of interpreters outlined in the Code of Ethics for Interpreters and Translators. The respondent considered the action taken by CRC management in suspending the appellant from 15 October, 2010 until 31 March, 2011 from the panel of casual interpreters was appropriate given the protective nature of the Commission's jurisdiction. 10The appellant stated that the charges against her were flawed and she had been denied procedural fairness. The procedures in the Complaints Handling Policy and Procedures for Casual Interpreters and Translators were not followed. The quality of her translations suffered from a lack of style guide from the CRC and beside this, her inaccuracies were approximately 2% of her work per year. She received no guidelines or code from the CRC that her inaccuracies were unacceptable. The appellant stated that she always completed her assignments that she is aware of and acknowledges and rectifies her mistakes. She cannot notify the CRC when she rejects an assignment when she is not aware of it. She was given to understand that the issues regarding her failure to attend accepted interpreting assignments had been dealt with and the matters resolved. The CRC provided no opportunity to improve her performance and she received no warning letter from the CRC until 1 June, 2010. The CRC have not taken into account her unsolicited commendations from customers or clients regarding the quality of her service, willingness to accept urgent cases, her co-operative attitude and her good faith and trust in her exchanges with management. The CRC's communication with her are equivocal, they do not convey to her that her explanations were not acceptable to them. The disciplinary action taken was disproportionate and too harsh when compared to that taken against other interpreters. She seeks reinstatement from 15 October, 2010 until 31 March, 2011 and she does not want the charges used against her in future employment.

Mr Doreteo Viloria Alava 11Doreteo Viloria Alava is the on-line systems administrator within the CRC. He has held that position since 2006. One of his main responsibilities is to be the system administrator for the LanguageLink system which is the system used by the CRC to book, track and manage interpreting and translation assignments. In 2006 LanguageLink became accessible to casual interpreters and translators. 12In June, 2006 the CRC issued a detailed User Guide to casual panellists explaining the new LanguageLink system. A copy is accessible to those who log into the system should they need to refresh their knowledge of the system. Upon introduction of the system casual panellists of interpreters and translators were informed of the new LanguageLink system and offered the opportunity to undertake a familiarisation training session on the new system. There has also been a help desk facility available to those panellists should they have any specific or general queries about how the LanguageLink system operates. To the best of his recollection the appellant telephoned Mr Alava in the past to seek guidance on particular aspects of the operation of the system. 13The LanguageLink system is accessed by the internet. To gain access a user (such as a panellist on the casual interpreter's panel) is issued a username and individual confidential password to enable them to log in. The adoption of the accredited username and password recognises the user's security setting and enables their access to the system to be tracked. After a successful login, the user will see the main page with the Active List. The Active List appears every time a user logs in. It provides an immediate list of all assignments that have been allocated to the panellists to work on. The Active List shows assignments that are in the work flow, which means any assignment which is not in a completed or cancelled status. Assignments are ordered by date/time received and new assignments come on top. For interpreting assignments, the assignment disappears from the Active List one day after the date of the assignment. 14For a panellist to withdraw from an interpreter assignment the panellist has to click on the withdraw button of the assignment in the Active List. Upon doing so a new screen will open which requires the panellist to click on the Withdrawal Reason drop down box and select the reason. The panellist is then required to click the Submit button which then results in the assignment being removed from the panellist's Active List. The withdrawal function cannot be activated by anyone other than the accredited user and a select number of accredited customer service staff who may action a withdrawal at the request of the interpreter. 15An interpreter's Record Book has 3 coloured pages to record each interpreting assignment. The pink sheet stays with the Interpreter's Record Book and remains with the interpreter. Accordingly, the loss of a pink sheet by the appellant would have no bearing on what appears on the LanguageLink system. 16The appellant stated that on the LanguageLink System there may have been a cancellation of appointment by her without it being recorded in the LanguageLink System. According to Doreteo Viloria Alava this is not possible. The withdrawal needs to be effected by the interpreter using t he system itself. If the interpreter telephoned the CRC to request a withdrawal on her behalf then requests for such a withdrawal are very reliable. The panellist also has the opportunity when they next access LanguageLink, (assuming it is before the date of the assignment), to satisfy themselves that the withdrawal has been implemented by looking at the Active List to see if the assignment had been removed if the request had been activated. 17Doreteo Viloria Alava stated that if the appellant had exercised her right to withdraw from a previously accepted assignment and she had made some entry error that rendered the intended withdrawal ineffective then an assignment would have remained on her Active List telling her she was still expected to complete the assignment.

Ms Devinder Pal Kaur 18Ms Kaur is employed as the Customer Service Manager at the CRC. In this position she oversees and is responsible for the management of the Language Services Division, its 26 full time staff and nearly 650 panel interpreters/translators in a complex 24 hour call centre and customer service environment. Language services is the commercial arm of the CRC which delivers approximately 50,000 interpreting and translation assignments in approximately 100 languages/dialects per year, including the translation of 3.9 million words annually. 19The primary focus of her position is the external client, tracking performance and measuring customer satisfaction. She is responsible for monitoring, investigating and handling/resolving complaints received via telephone, facsimile, letter or in person in a timely manner from the time they are registered until they are resolved. She is also responsible for the effective management of service issues and managing the performance of interpreters/translators to ensure quality outcomes. 20Failure by an interpreter to attend an allocated assignment without reasonable explanation constitutes poor work performance pursuant to the Complaints Handling Policy and Procedure for Casual Interpreters and Translators. The appellant's failure to attend allocated and accepted assignments were brought to her attention as a result of the monthly reconciliation of outstanding assignments. The CRC uses LanguageLink for the provision of interpreting and translation assignments from the booking to the payment/invoice stage of an assignment. All CRC interpreters and translators have access to this LanguageLink to accept/reject/withdraw and perform both interpreting and translation assignments. 21The appellant failed to attend an accepted assignment for interpreting services for 26 August, 2009 without notifying the CRC. She also did not attend another previously accepted assignment in May, 2009. As a result on 26 October, 2009 Ms Kaur wrote to the appellant reminding her of the importance of reliability and professionalism when delivering services to clients. 22On 26 October 2009 the CRC received an email from the appellant advising that she had not attended another previously accepted assignment on 20 August 2009. Consequently, on 27 October 2009 Ms Kaur sent an email to the appellant indicating that repeated failure to attend accepted assignments without reasonable explanation is considered unsatisfactory performance and that it was not in CRC interest to suspend her from the panel but improvement was required. The appellant was also told that the provision of quality language service is part of the CRC values and that this can only be achieved if all interpreters follow the set standards. 23In response to Ms Kaur's email, the appellant sent an email on 28 October 2009 which stated that she could have cancelled the appointment and somehow the computer failed to register it. Ms Kaur has been informed by Mr Alava that the failure to register an entry in the system is rare and that from a system point of view he is unaware, as Ms Kaur is, of any such problems. 24Part of Ms Kaur's role as Customer Service Manager is to ensure that service standards are maintained and that the language service provided to the public is of a high quality. Accordingly, she emailed the appellant on 30 October 2009 and advised her that the 3 non-attendances of accepted assignments within 6 months had caused her to become deeply concerned. The appellant replied by email on 31 October 2009 raising a number of possible reasons for the non-attendance without identifying any particular one as the cause of the problem. The possible reasons were computer problems or the loss of a form but she did not acknowledge any difficulty with her non-attendance. Ms Kaur was not satisfied that the factors referred to by the appellant could be attributable to her non-attendance. 25In April 2010 during the monthly audit of outstanding assignments it became apparent that the appellant failed to attend another accepted assignment on 23 March 2010. In an email on 31 May 2010 to Ms Kaur, the appellant indicated that she had no record of this assignment in her diary and stated that she might have rejected it as it was not registered. 26Ms Kaur became seriously concerned that the appellant's performance had not improved even though she had raised it with her in October 2009. She informed her supervisor, Ms Ann Groth. As a result of the appellant's performance issues Ms Groth wrote to the appellant on 1 June 2010 and issued her with a formal warning. 27During the June 2010 audit of outstanding assignments it became apparent the appellant did not attend an accepted interpreting assignment for 31 May 2010. The CRC received a hand written note from the appellant which said that she thinks she rejected the assignment to Fairfield and that she would not have accepted it. 28On 9 July 2010 Ms Kaur informed Ms Groth of this incident but was advised that as it had occurred prior to the issuing of the formal warning the appellant should not be removed from the panel of interpreters. 29On 11 October 2010 as a result of an outstanding assignment audit the appellant contacted the CRC and informed a customer service officer that she did not attend a previously accepted assignment on 23 July 2010 because she had nothing about the assignment in her diary and was not aware of it. Ms Kaur advised Mr Hakan Harman, the Director Operations. 30As regards inaccuracies in translation assignments, the appellant was registered as a casual translator from Chinese into English language from 5 February 2003. The CRC required translators to observe the professional standards for translations as set out in the "Policy Guidelines For Translators", a copy of which was provided to the appellant. 31In July 2010 Ms Kaur felt it was necessary to raise the quality of the appellant's translations from February to June 2010 with Ms Groth due to the frequency of inaccuracies. Ms Kaur is aware Ms Groth wrote to the appellant about the quality of her translations on 16 July 2010 and sought her co-operation and improvement. 32Ms Kaur noted further inaccuracies in the appellant's translations from July to October 2010 and these were raised with Mr Hakan Harmer, the Director Operations, prior to 13 October 2010. 33Since the appellant's suspension on 15 October 2010 it has become apparent that she has failed to attend another accepted assignment on 11 October, 2010. The appellant advised the CRC that she overbooked the appointment. Further, payment claims for 4 assignments accepted by the appellant for the period 2 - 24 September 2010 remain outstanding, which may indicate that the appellant did not attend the assignments. Ms Kaur wrote to the appellant about these assignments but has not received a reply from the appellant. 34It was Ms Kaur's objective to encourage and support the appellant in improving her service and reliability as it is not in CRC's interest to suspend an experienced panellist.

Ms Ann Groth 35Between April 2001 and 16 July 2010, Ms Groth was the Director of Language Services. An important responsibility of her duties was to enhance the deliver of the quality of interpreting and translation services of the CRC. 36As a result of an audit of outstanding assignments in May 2010 she became aware that throughout 2009 and 2010 the appellant failed to attend 4 accepted assignments (25 May 2009, 20 and 26 August 2009 and 23 March 2010) without notifying the CRC. On 1 June 2010 Ms Groth wrote to the appellant and issued a formal warning about non-attendance at previously accepted assignments. She told the appellant that she was prepared to give her one more chance and should a similar occurrence happen she saw no other way than to remove her from the casual interpreter/translation panel. She also explained to the appellant that failure to attend already accepted assignments without reasonable explanation constitutes poor work performance and reflects badly on the CRC. 37Ms Groth stated that Ms Kaur had given repeated reminders to the appellant about CRC notification procedures and the ramifications for her own employment as well as the ramifications for the client. She stated that she could not accept these continuing occurrences as it could jeopardize the quality and reliability of CRC services. She does not accept that the cause of the appellant's non-attendance was due to a failure in the CRC's online system. 38In July, 2010 Ms Kaur raised concerns about the quality of the appellant's translations. In order to maintain the CRC's high translation standard and to try and improve the appellant's work in this regard, it was necessary to write to the appellant about the quality of her translation work which Ms Groth did on 16 July, 2010. 39Ms Groth stated that it is expected that CRC interpreters/translators carry out their functions in accordance with the standard outlined in the Code of Ethics for Interpreters and Translators. The appellant received a copy of the Code upon accepting the CRC's first offer of employment and from 2007 onwards compliance with the Code formed part of each panellist's employment agreement. The appellant's behaviour and service fell short of that outlined in the Code.

The Appellant 40The appellant stated that she checked her diary and the previously accepted but missed assignments were not written in it. If she had accepted the assignments something went wrong on either her side or LanguageLink's side. She stressed that she did not intentionally miss previously accepted assignments. 41The translation errors were due to a lack of style guidelines. Her mistakes were no more than to be expected. Taking away these stylistic issues, her inaccuracies were about 2% of her work per year. 42In cross-examination the appellant stated that it was not until Mr Alava gave his evidence that she fully understood how LanguageLink operates. She went to one session on the use of LanguageLink when it was introduced but she did not review the online system. She agreed that she knew how to accept, reject and withdraw from a previously accepted assignment. She accepted that CRC's reputation as a reliable service provider was dependent upon its interpreters being reliable in meeting their responsibilities but she stated that her failure to attend previously accepted assignments did not happen in important cases and that there were no major repercussions. The appellant expressed regret that she had failed to attend previously accepted assignments although this was the first time that she had expressed such regret. In explaining how she had failed to attend previously accepted assignments, the appellant stated that she forgot to press the submit button. 43The appellant stated that after Ms Kaur's letter to her of the 26 October, 2009 she began to copy all assignments from her Active List into her diary. However, there were gaps in her diary and by December, 2009 this had fallen by the wayside. The appellant stated that she did not know this letter was an informal warning letter and it was too bureauatic, Further, the respondent stated that the appellant did not accept responsibility for failing to attend previously accepted assignments. 44The appellant stated that Ms Groth's warning letter of 1 June, 2010 was a shock to her and that it was too severe. The respondent pointed out that in Ms Kaur's email of 27 October, 2009 CRC stated that it was not in their interest to suspend the appellant but there must be an improvement to meet the appropriate performance standards set by the CRC and Ms Groth's letter stated that if there was a similar occurrence of failure to attend previously accepted assignments the appellant would be removed from the casual interpreter/translators panel. 45The respondent stated to the appellant that these two letters lead to her suspension but the appellant stated that the letters did not state this. The appellant stated that Ms Groth's warning letter referred to her failure to attend previously accepted assignments which were before the date of her one year contract which she considered unfair. She stated that prior to receiving the Complaints Handling Policy and Procedures for Casual Interpreters and Translators from Ms Groth in her letter of warning of 1 June, 2010 she did not know that the CRC had such a policy. Ms Groth sent the appellant an email on 18 June, 2010 explaining that in 2002 the Complaints Handling Policy and Procedures for Casual Interpreters and Translators had been developed and was widely distributed to all panellists and has been discussed at several of the face to face feedback sessions. It was also part of the CRC's yearly induction information. 46The appellant stated that the list of her failures to attend previously accepted assignments in Ms Kaur's email of 15 December, 2010 made her angry because the CRC had already punished her by suspending her and the extra assignments were after the date her suspension on 15 October, 2010. Further, she had not been given the opportunity to explain her failure to attend previously accepted assignments prior to receiving Ms Groth's warning letter. 47The respondent tendered an email of 26 June, 2009 from Ms Kaur sent to all Chinese translators concerning translation errors to improve the overall quality of translations. The email lists several steps that the translator can take to improve the accuracy of translations and it stated that the CRC requires translators to observe the professional standard for translations as set out in the "Policy Guidelines for Translators". Translators were told that the CRC will not be able to continue to accept these "mistakes" from experienced panellists. They were also advised that the provision of quality language service is part of the CRC values which the public pay for and expects and that this can only be achieved if translators follow the set standards. The appellant stated that she did not remember seeing the email. The respondent tendered a letter from Ms Groth dated 16 July 2010 in which there were 13 instances of errors in the appellants translations. Ms Groth stated that she trusted that this would not be recurring and that the necessary steps would be taken to avoid translation errors in the future. 48In summary, the appellant stated that the disciplinary sanction of suspension was disproportionate to the other interpreters who had been suspended only for 5 days for non-attendance at previously accepted assignments. Further CRC wanted to regenerate their panels and to remove older panellists. The appellant stated that she had been denied procedural fairness.

Procedural Fairness 49The requirements of procedural fairness are set out in the Complaints Handling Policy and Procedures for Casual Interpreters and Translators - Procedures following Unsatisfactory or Poor Work Performance. The procedures set out in Steps 1, 2 and 3 are to ensure that casual interpreters and translators are given adequate opportunity and assistance to improve their performance. 50The respondent has not complied fully with Step 1 in relation to the appellant's non-attendance of previously accepted assignments in that the Director or the Customer Service Manager did not discuss the matter with the appellant to determine the reasons for the unsatisfactory performance or poor work performance. Further, it is not clear that a written warning was given to the appellant in the letter of 26 October 2009 and the email of the 27 October 2009 from Ms Kaur. The appellant stated that she did not know it was a warning. 51The respondent has not complied fully with Step 2 in relation to the appellant's non-attendance of previously accepted assignments in that in the letter of 1 June, 2010 a formal improvement plan aimed at assisting the appellant to meet the required standards was not set up nor were the requirements contained within a formal improvement plan. 52The appellant stated that she was not given the opportunity to explain her unsatisfactory or poor work performance prior to the warning letter issued to her on 1 June, 2010. I do not accept this as her emails sent to Ms Kaur on 28 October, 2009, 31 October, 2009, 25 May, 2010 and 31 May, 2010 clearly presented the appellant with an adequate opportunity to explain her unsatisfactory or poor work performance. 53Further, there was evidence that Ms Groth sent the appellant a copy of the Complaints Handling Policy and Procedures for Casual Interpreters and Translators on 1 June, 2010. It is not credible that the appellant had not received a copy prior to June, 2010, as copies were given to all panellists in 2002 and had been discussed at face to face feedback sessions. Further, it was part of the CRC's yearly induction program. 54The respondent has not complied with Steps 1 and 2 in relation to the translation errors. The translation errors were the subject of a letter written to the appellant by Ms Groth on 16 July 2010. It was not a written warning letter or a further written warning letter, the matter was not discussed with the appellant seeking the reasons for the poor work performance and a formal improvement plan was not set up to assist the appellant to meet the required standards nor were the requirements contained within a formal improvement plan. 55Section 100C(3) of the Industrial Relations Act 1996 states: 100C Decisions with respect to appeals (1) ........ (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (3) Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission: (a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or (b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer. (4) .......................... 56On balance, the respondent has complied substantially with the Complaints Handling Policy and Procedures for Casual Interpreters and Translators and given that this disciplinary appeal is an administrative appeal de novo (see Calman v Commissioner of Police (1999) 73 ALJR 1609) I find that I may proceed to decide the appeal on its merits in conformity with section 100C(3)(a) of the Industrial Relations Act 1996.

Charges 57The evidence shows that in June, 2010 the CRC attempted to bring the breaches of unsatisfactory work performance or poor work performance to the appellant's attention and she was told that an improvement was required and should a similar occurrence happen again she would be removed from the casual interpreter translator panel. The appellant regarded these communications as bureaucratic and some form of harassment and victimization and the appellant made no attempt to improve her performance. It was after receiving the letter of 1 June, 2010 and further communications that the appellant was suspended. Further instances of her failure to attend previously accepted assignments were found after the appellant was suspended revealing that the appellant had further not responded to communication from the CRC that her past work performance must improve. 58I do not accept that the appellant's failure to attend previously accepted assignments was because she failed to or forgot to press the submit button. The appellant agreed that she knew how to accept, reject and withdraw from a previously accepted assignment. The computer printout of the appellant's assignments from 2009 through to 2010 reveal a number of instances where the appellant successfully withdrew an assignment by pressing the submit button. It is not the case that the appellant learnt about the submit button for the first time from Mr Alava as she had successfully used it in many instances over the years 2009 and 2010. Further, the appellant's diary was unreliable as shown against the computer printout for accepted assignments in 2009 and 2010. If the appellant had alternatively used the Active List she would have seen a list of all assignments that had been allocated to her and if it remained accepted by her the assignment remained on her Active List until the day after it was due. 59The standard that casual interpreters/translators were required to meet was set out in the Code of Conduct and Ethics. The appellant agreed to comply with that Code in her acceptance of an offer of employment. 60The appellant gave evidence that she did not fail to attend previously accepted assignments intentionally. The evidence reveals that she repeatedly failed to attend previously accepted assignments over a period of 15 months between May 2009 and October 2010. The appellant sought to assert that she was the subject of a discriminatory allocation policy in regards to interpreting assignments. There is no evidence to support such an assertion. The appellant asserted a perception of harassment by her in regard to the communications from the CRC. Again there is no evidence to support such an assertion. The appellant referred to purported difficulties in communicating with CRC's management. She stated that she had attempted to explain her behavior and find out management issues relating to her performance. I find that the appellant failed to take responsibility for her actions and attempted to deflect responsibility for her failure by calling into question the reliability of LanguageLink. The appellant asserted that she had no opportunity to explain her unsatisfactory work performance or have an opportunity to improve before the warning letter of 1 June, 2010. Again I reiterate that her emails sent to Ms Kaur on 28 October, 2009, 31 October, 2009, 25 May, 2010 and 31 May, 2010 presented the appellant with adequate opportunity. There was no acceptance by the appellant that there was a problem that had to be addressed. Further, there was no evidence that the CRC tried to replace older panellists with younger panellists. 61The appellant in evidence said it was unfair for the CRC to bring details of her failure to attend previously accepted assignments outside the dates of her contract of employment being 1 April 2010 to 31 March 2011. Further, it was also unfair to bring details of her failure to attend previously accepted assignments after the date of the suspension letter of 13 October 2010. The appellant has been employed by the CRC on a continuing basis since July 1997 until the date she was suspended. Further, in Gregory Franks V Roads and Traffic Authority [1996] NSWCA 192 the Court of Appeal said: "....in disciplinary appeals the Tribunal is entitled to decide the appeal by regard to matters other than those on which the employer has based its decision. An appeal is against the decision of the employer, and what is in issue is whether the decision should be struck down (appeal allowed) or upheld (appeal disallowed) or replaced by a different decision (such other decision with respect to the appeal as the Tribunal thinks fit) (see s.48(2)). It is the decision that must be addressed, and the decision is distinct from the grounds for the decision. The Tribunal can, indeed must, act upon material freshly placed before it, with the employer bearing the initial burden, and may require the lodging and service of written cases by the parties to an appeal. The fresh approach and the provision for such other decision with respect to the appeal as the Tribunal thinks fit point strongly to an appeal in which the employer is not confined to the grounds on which it based its original decision." 62The Court of Appeal was referring to section 48 of the Government and Related Employees Appeal Tribunal Act 1980 and the Tribunal constituted under that Act. This Act has since been repealed and the exact provisions are now enacted into Part 7, Division 3 of the Industrial Relations Act 1996. Thus the respondent is entitled to bring the breaches of 9 September, 2010, 2 breaches on 24 September, 2010 and 11 October, 2010 of the appellant's failure to attend previously accepted assignments. 63Thus in failing to rectify her work performance by failing to attend previously accepted assignments the appellant undermined the quality of the professional services of the CRC to its clients and the reputation of the CRC. The appellant could not be relied on in the provision of the services to the CRC. 64I find the charges proven that the appellant did not attend previously accepted interpreting assignments on 27 May, 2009, 20 August, 2009, 26 August, 2009, 23 March, 2010, 31 May, 2010, 23 July, 2010, 9 September, 2010, two on 24 September, 2010 and 11 October, 2010. The appellant also failed to notify the CRC of her non-attendance on each occasion. 65In relation to the charge of translation errors made by the appellant, she calculated that her margin of error was approximately 2% of her work. This was not challenged by the respondent. Due to the lack of procedural fairness I find the charge not proven.

Disciplinary Sanction 66The nature of the Commission's jurisdiction in a disciplinary appeal is protective rather than punitive (see Commissioner of Police v Donlan; Commissioner of Police v Hanson [1995] NSWCA 468 and Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102). 67Clark JA said in Commissioner of Police - v - Donlan; Commissioner of Police -v- Hanson: "GREAT's jurisdiction in a disciplinary appeal such as this is of a protective nature. This principle has been laid down in a line of cases relating to the exercise of disciplinary jurisdiction of which New South Wales Bar Association v Evatt (1967) 117 CLR 177, at 183-4 is a good example and has been applied in the context of a Commonwealth policeman in Hardcastle v Commissioner of Police (1984) 53 ALR 593, at 597 where the Full Federal Court has said: "the object of disciplinary proceedings under the Discipline Regulations is to protect the public to maintain proper standards of conduct by members of the Australian Federal Police and to protect the reputation of that body. The object of disciplinary proceedings is not to punish.' That seems to me to be a concise and admirable description of the relevant principle." 68The same principles apply to Part 7, Division 3 of the Industrial Relations Act 1996. 69Analogous considerations apply in respect of a casual interpreter/translator employed by the CRC. 70It is clear that a failure to attend previously accepted assignments falls within all three limbs of the Commission's protective jurisdiction. The issue to be determined is whether the disciplinary sanction of suspension from 15 October, 2010 until 31 March, 2011 is appropriate. 71For a general discussion of the types of factors which the Commission may/may not take into account when deciding whether the disciplinary sanction of suspension for approximately 6 months is appropriate see Lambert's case. 72The appellant's unsatisfactory or poor work performance is not acceptable as either a standard of conduct or a standard of work-related performance for casual interpreters/translators under the Code of Conduct and Ethics. It damages the reputation of the CRC as a service provider in that it undermines the quality for the professional services of the CRC to its clients and the reputation of the CRC. There is a clear public interest in ensuring casual interpreters/translators are contributing to the delivery of a quality of interpreter/translation services by performing their duties to the best of their ability and at an acceptable standard of work-related performance. 73The Commission notes that the length of time that a casual interpreter/translator was suspended, being approximately 5 days, was for failure to attend one previously accepted assignment not failure to attend 10 previously accepted assignments as was the case with the appellant. 74Further, the Commission notes that the appellant continually sent emails to the CRC which indicate that she took no responsibility for her poor work performance. The appellant could have rectified the situation by making sure that she did not fail to attend anymore previously accepted assignments after June, 2010. Instead after she had received her suspension letter of 13 October, 2010 there are another 4 instances of non-attendance at previously accepted assignments. 75After carefully considering these factors, the Commission has concluded that the suspension of the appellant from 15 October, 2010 until 31 March, 2011 is appropriate.

ORDER 76The appeal is disallowed. P Lynch Acting Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 April 2011

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