Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70

APPLICANT Mr A Britt of Counsel SOLICITOR Mr J Rafferty G H Healy & Co, Hurstville LEGAL REPRESENTATIVES: RESPONDENT Mr J Murphy of Counsel Instructed by Mr C Brown Western Sydney Area Health Service

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 6 February 2002

JACQUELINE YOUSSEF AND WESTERN SYDNEY AREA HEALTH SERVICE

Application by Jacqueline Youssef re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This is an arbitrated decision upon an application, pursuant to s84 of the Industrial Relations Act 1996 ("the Act"), filed by Jacqueline Youssef ("the applicant"), seeking relief in respect to her alleged unfair dismissal on 31 July 2000. Prior to her dismissal, the applicant was employed as a social worker by the Western Sydney Area Health Service at Westmead Hospital ("the respondent") on a salary of $52,000 per annum. She had been employed at the hospital for a period of nine years.

2 The applicant was dismissed following a disciplinary meeting convened on 24 July 2000, to consider the respondent's charge that the applicant had refused to obey the lawful and reasonable instructions of her employer. It was alleged that she failed to attend a meeting with management on 20 July 2000 and failed to respond to messages for her to contact management on that day.

3 Conciliation proceedings commenced on 10 October 2000. Mr J Rafferty, Solicitor, appeared for the applicant and Mr J Murphy, of Counsel, appeared for the respondent. The matter was adjourned to 20 October, at which time the Commission formed the view, pursuant to s87 of the Act, that the applicant's claim could not be settled by conciliation. The matter was set for hearing and directions were issued for the filing and service of evidentiary material.

4 It is relevant to note that many of the issues canvassed during the proceedings originated from an incident involving the applicant and another employee in April 1998 (hereinafter referred to as the "Norwood incident"). The Commission has prepared a chronology of key events from that time until the applicant's eventual dismissal on 31 July 2000. 1) The applicant was assaulted in the workplace by a fellow employee, Mr John Norwood, on 30 April 1998. Another employee, Vera Reiner, witnessed the assault. Mr Norwood was charged, convicted of assault and subsequently dismissed by the respondent on 8 May 1998.

2. In November 1998, another employee, Mr Eric Percival complained to Ms Rosalie Pockett, the Director of Social Work, about the applicant's conduct. The applicant made counter claims against Mr Percival. The applicant sought, and obtained, a three year apprehended violence order (AVO) against Mr Percival on 17 November 1998.

3. The applicant's then solicitor, John H Maait & Co, wrote to the respondent on 3 December 1998, alleging harassment of the applicant by Mr Percival and inviting the respondent to take disciplinary action against him. A disciplinary interview was conducted. It resulted in no action being taken against Mr Percival. However, he was told not to make any contact with the applicant. 4) On 13 February 1999, a subpoena was served on the respondent seeking all files and records relating to Mr Percival. 5) The applicant's solicitor wrote to the hospital on 23 March 1999, raising eleven matters and making certain allegations against Mr Percival.

6. The applicant's solicitor wrote to the respondent on 11 May 1999 seeking copies of her complete personnel file. She was permitted access to her file and allowed to take notes. However, she was not permitted to copy the file. 7) Arising from the AVO proceedings against Mr Percival, a subpoena for production was issued on 1 July 1999. It sought the applicant's personnel file and other documents. 8) On 6 January 2000, the applicant's new solicitor, G H Healy & Co, sought copies of the applicant's employment file, personnel file and a print out of internal calls to a particular pager number within the hospital. The letter alleged the respondent had breached the Occupational Health & Safety Act and practised workplace discrimination against the applicant.

9. The applicant's solicitor wrote to the respondent on 22 February 2000 listing a series of concerns in relation to: a) supervision of staff in the Social Work Department; b) a failure to offer the applicant any counselling or debriefing over the Norwood incident; c) whether any check was made of Mr Percival being diagnosed with Hepatitis B;

d) whether any check was made of the criminal records of Mr Norwood and Mr Percival;

10. By letter dated 23 February 2000, the respondent refused permission for the applicant to copy her file. The respondent rejected the allegations in the 6 January letter (see point 8). 11) The hospital responded again on 2 March. It denied the applicant was not offered counselling and invited her to contact her departmental head, Ms Rosalie Pockett, to discuss the issue of supervision. The letter made no comment on the Percival and Norwood incidents. The applicant did not contact Ms Pockett. 12) The Service's Employee Relations Manager, Mr Chris Brown, wrote to the applicant on 13 March, asking her to phone him to arrange a meeting. He suggested Ms Pockett should attend. 13) On 27 March, the applicant's solicitor sought further information as to the counselling offered her by the respondent. (Her medical certificate following the Norwood incident recommended independent counselling). The applicant requested that her supervision be conducted through the Area Health Service and not by her immediate supervisors.

14. On 29 March Mr Brown wrote again to the applicant asking her to phone him. 15) On 18 April, Ms Pockett questioned the applicant over her sick leave record and supervision concerns. A letter, dated the same day, proposed monthly supervision sessions with Ms Pockett and confirmed the sick leave issue had been discussed.

16. On 8 May, the applicant's solicitor responded to Ms Pockett's letter. The applicant did not regard the 18 April meeting as an interview and did not agree to the schedule of supervision meetings proposed. She wished her supervision to be conducted by an external person. The applicant complained that her periods of sick leave were " misdescribed" . 17) The Director of Human Resources, Mr John Kilkeary, wrote to the applicant's solicitors on 24 May regarding her supervision and refusal to attend pre-arranged meetings with Ms Pockett. She was warned that staff are required to carry out all reasonable directions of the employer and a failure to do so may place employment in jeopardy. 18) The applicant's solicitor replied on 31 May. The letter complained about the role of Mr Chris Brown and advised that the applicant would be willing to attend a meeting with Ms Pockett provided her union representative and a support person could attend. She also wished to discuss three other issues: i) the harassment by Mr Percival; ii) her sick leave and other leave; and iii) her working conditions in the Department. 19) A meeting was scheduled for 5 June. However, the applicant did not attend and it did not proceed. 20) The respondent wrote to the applicant on 7 June 2000 indicating that only a union representative was appropriate to attend the meeting. The respondent rejected any discussion of the Percival matter - an issue which it regarded as closed.

21. On 16 June the applicant's solicitor insisted on a support person being in attendance at the meeting. The letter queried what policy, or procedure, did not permit her to have such a person in attendance. 21) On 20 June, Sir Francis Emery, a former patient of the hospital, wrote to the Area Health Service praising the work of the applicant.

22. On 27 June the applicant sought, under the Freedom of Information Act , the files she had requested on 6 January 2000. The material was provided. 23) On 7 July, the Service's Acting Director, Mr Kevin Gillies, wrote to the applicant's solicitor, again rejecting a support person being in attendance at any meeting and indicating that in future, the employer intended to correspond directly with the applicant and her union. 24) Soon after, the union representative, Mr McIntosh, withdrew from representing the applicant. The applicant was unable to arrange a support person for a meeting arranged for 17 July. The meeting did not take place. 25) On 17 July, Ms Pockett spoke to Professor Emery in what the Professor later claimed was a disrespectful, angry and accusing manner. He wrote a letter of complaint to the Service's CEO, Mr Allen McCarrol. The CEO wrote back to apologise.

26. Mr Brown wrote to the applicant on 18 July, insisting she attend another meeting on 20 July with, or without, a support person. 27) The applicant's solicitor wrote to the respondent on 20 July indicating she had not cancelled the meeting on 17 July, but rather had wished it adjourned in order for a support person to attend.

28. On 20 July, the applicant did not attend the meeting. She was later advised, in writing, that her refusal to do so may be regarded as gross misconduct. She was directed to attend a disciplinary meeting on 24 July with either a union representative, or support person, with her. 29) The disciplinary meeting was held on 24 July. It was attended by the applicant, her support person Magdy Massoud, Mr Brown and Ms Pockett. The meeting was taped and a transcript made. At the conclusion of the meeting, Mr Brown advised he would recommend dismissal and invited the applicant to put any matters in mitigation. She declined to do so.

30. The next day, 25 July, the applicant's solicitor wrote to the CEO of the hospital, Mr Mills, complaining that the respondent's disciplinary procedures in the Procedure Manual were not complied with (particularly para 3). It enclosed the letter from Professor Emery, which, it was said, indicated a " certain attitude" of Ms Pockett towards the applicant. The applicant enclosed a medical certificate indicating she was unfit for work until 25 August. 31) The termination of employment was confirmed and advised to the applicant in a letter dated 31 July.

5 Detailed evidence was provided by the applicant and supported by the evidence of Mr Magdy Massoud.

6 The respondent provided evidence from: Christopher John Stuart Brown Employee Relations Manager, Western Sydney Area Health Service Rosalie Barbara Pockett Director of Social Work, Westmead Hospital Brenda Lennox Neurosurgery Social Worker, Westmead Hospital Christina Gargoura Social Worker, Westmead Hospital Gay Shanahan Social Worker, Westmead Hospital Greg Ellison Social Worker, Westmead Hospital Roslyn Curran Social Worker, Westmead Hospital Joanne Brown Social Worker, Westmead Hospital Jennifer Nelson Clerical Co-ordinator, Department of Social Work, Westmead Hospital Vera Reiner Social Worker, Westmead Hospital Peter Whincop Senior Social Worker, Specialist Team Westmead Hospital Eileen Patricia Walker Deputy Director of Social Work Department, Westmead Hospital

The Applicant's Grievances 7 The applicant claimed that after the Norwood and Percival incidents in 1998, she was treated differently and unfairly by her managers at the hospital. She named the managers - Mr Garry Gordon, Mr Chris Brown, Ms Rosalie Pockett, Mr Peter Whincop and Ms Eileen Walker. In view of the multitude of complaints made by the applicant, I have grouped the complaints into subject matters and included the replies provided by the respondent.

8 The applicant said that Ms Pockett supplied her assailant, Mr Norwood, with a copy of her statement prior to being interviewed by the Police. The applicant said Ms Walker told her Ms Pockett had given Mr Norwood her statement. The applicant believed that, even though Mr Norwood was facing serious disciplinary action, he shouldn't have her statement. Ms Pockett said she did not give the applicant's statement to Mr Norwood. Three people had the statement - Ms Walker, Ms Pockett and Mr Gordon. Ms Walker denied telling the applicant she had given the statement to Ms Pockett. She said she couldn't have, as Ms Pockett was on leave at the time.

9 The applicant gave evidence that she was refused leave to attend court to give evidence against Mr Norwood. In oral evidence, the applicant conceded that she was granted special leave, but only after she had raised the matter with Head Office. She accepted she was paid in the same pay cycle without any delay. These facts were not mentioned in her affidavit.

10 The applicant claimed she was not offered any counselling or debriefing in respect to the Norwood incident.

Ms Reiner said immediately after the Norwood incident, Ms Walker had suggested both she, and the applicant, seek outside counselling. After the incident, Ms Walker had advised the applicant and Ms Reiner to go home if necessary, document events, seek medical advice, seek a debriefing from a counsellor and take an AVO out against Mr Norwood. Both employees chose to remain at work. Ms Pockett offered counselling to both the applicant and Ms Reiner. Both employees declined the offers of counselling.

11 The applicant said Ms Walker threatened her with dismissal over the Norwood incident.

Ms Walker's evidence was that there appeared to be a discrepancy in the statements of Ms Reiner and the applicant about whether Mr Norwood had slapped the applicant's face. Ms Walker had only counselled the applicant to make sure her statement was accurate. Ms Walker said the applicant became angry with her for not supporting her version of events.

12 The applicant claimed in oral evidence that Ms Walker had threatened her not to go to Court over the Norwood incident.

This allegation was not mentioned in the applicant's affidavit as her solicitor told her it was not relevant. Ms Walker had no recollection of this conversation.

13 The applicant said it was unfair to be counselled by the same person who counselled Mr Norwood. The applicant said her doctor had advised her that counselling should be by an independent person. The applicant did not regard Mr Norwood's counsellor as an independent party. She said an independent person should be independent of the hospital. She said there was correspondence to the hospital setting out the reasons why she rejected counselling. No letter was produced. She said she told Ms Walker of the reasons.

14 The applicant said the respondent did not check Mr Norwood's and Mr Percival's criminal records. Nor had Mr Percival's hepatitis B status been checked by the hospital. The applicant asked her solicitor to raise Mr Percival's hepatitis B status because she was concerned other people at the hospital might get infected. She denied it was a vendetta against him. The applicant raised the issue of criminal records even though Mr Norwood hadn't been employed by the respondent for twelve months. Mr Brown said he reviewed Mr Percival's and Mr Norwood's personnel files. They revealed nothing about criminal records. He was satisfied the Norwood incident was closed when Mr Norwood was dismissed.

15 The applicant said she was never provided with a copy of Mr Percival's complaint against her, or Mr Norwood's statement.

The applicant was aware that there was no written complaint from Mr Percival. The applicant claimed the Percival matter was not fully investigated by the hospital. She was dissatisfied that Mr Percival had only been reprimanded. Her evidence was that she took her dissatisfaction no further, despite being invited to do so. Mr Brown had called up the records of the Percival matter and discussed it with Ms Pockett and Mr Mills. He regarded the matter as external to the hospital as it involved AVOs being sought by both parties. He said there were no adverse comments about the applicant on her file in regard to this incident.

16 The applicant claimed Ms Pockett threatened her by saying "you just wait to see how I am going to deal with you". Ms Pockett denied using these words and said that she was looking forward to the meeting with Mr Brown because she had become frustrated with the applicant's non co-operation. The applicant said Ms Pockett had threatened to dismiss her. However, she acknowledged these weren't the exact words.

17 The applicant complained that Mr Whincop told other staff members about the Percival matter.

Mr Whincop denied this and said only he, Ms Walker and Ms Pockett knew about it.

18 The applicant claimed the manager of the Social Work Department, Ms Rosalie Pockett, treated her rudely and in a degrading manner in the presence of other staff. The applicant said Ms Pockett would ignore her, speak harshly and loudly to her, leave stickers for her with messages and demand written requests for leave. The applicant named other employees who would corroborate Ms Pockett's behaviour towards her.

Ms Pockett denied treating the applicant rudely. Rather, she said, the applicant was surly, disrespectful and argumentative. Ms Reiner, Ms Lennox, Ms Gargoura, Ms Shanahan, Mr Ellison, Ms Curran and Ms Brown gave evidence that they had never heard Ms Pockett speak in a degrading or insulting manner to the applicant.

19 The applicant claimed Ms Pockett pursued her "relentlessly" in regard to minor matters. The applicant said Ms Pockett had no compassion, was rather harsh and had blamed her for the Norwood incident. Ms Pockett would constantly check her time in lieu and call her to the office to hand her letters, rather than putting them in her pigeonhole. She believed she was being singled out when Ms Pockett questioned her about arriving late for work. Ms Pockett denied pursuing the applicant. She did, however, have occasion to speak to her about punctuality and attendance. The evidence shows that the applicant's sick leave record was twice as high as the next highest employee's record. Ms Pockett gave evidence that she had approved the applicant's requests to change offices when she had felt unsafe or had complained of the cold. Ms Pockett had also told her an AVO was an option in respect to Mr Percival.

20 The applicant said Ms Pockett had a conflict of interest as there was a complete breakdown in the relationship between herself and Ms Pockett. Ms Pockett was not aware the relationship had broken down until 18 April 2000. The applicant relied on Professor Emery's letter which indicated Ms Pockett was biased against her and should not have participated in the disciplinary meeting. However, as the applicant's direct superior, the respondent believed it was entirely appropriate for Ms Pockett to attend the disciplinary meeting.

Ms Pockett agreed it was unusual to follow up Professor Emery's letter. She had done so because she was concerned at the timing of the letter and the possible influence the applicant had over Professor Emery.

21 The applicant said the interview with Ms Pockett on 18 April concerning her sick leave and supervision was merely a conversation with no agenda. She was given no time to prepare her defence or response. As there had been a breakdown in the relationship with supervisors, the applicant wanted other options in respect to her supervision. Ms Pockett expressed concern to the applicant with her sick leave. It was the applicant who required written confirmation of the discussion.

22 The applicant believed she was singled out for supervision when others were not. The applicant accepted she had not raised this complaint with Ms Pockett. However, this was because of Ms Pockett's hostility. Instead, she had her solicitor write to the CEO of the hospital. She said other employees would confirm they had not been supervised. She said Greg Ellison, Roslyn Curran and Joanne Brown told her they hadn't been supervised. Mr Ellison denied telling the applicant he had not been supervised and in fact he had been during 1999 and 2000. Ms Curran and Ms Brown denied discussing supervision with the applicant. In particular, they both denied telling the applicant they had not been supervised.

23 The applicant complained she had received no supervision prior to 1999 and didn't regard meetings with Mr Whincop to discuss personal matters as supervision. Mr Whincop said all attempts to engage in supervision of the applicant were met with suspicion and non-cooperation. The applicant was evasive and would not answer questions. He said he had not "singled out" the applicant as all team members were supervised. After April 1999, Mr Whincop wanted to make employee supervision more structured. He said he had tried to be supportive of the applicant. However, she was accusing, resentful and would not co-operate.

24 Mr Brown gave evidence that he discussed the matters of supervision and performance appraisals with Ms Pockett. He believed the supervision, which included sessions every six to eight weeks, was adequate. Ms Pockett said prior to 22 February 2000, the applicant had never expressed any dissatisfaction over her supervision.

25 The applicant believed her supervision should be conducted by someone external to the hospital. The applicant pushed this matter through the Area Health Service and believed she could not be supervised by Ms Pockett because of the breakdown in their relationship. Ms Pockett made it clear that external supervision was not an option.

26 The applicant said she had never agreed to any schedule of supervision meetings. The applicant believed her supervision must be agreed with her and she had not done so. Ms Pockett said that both she and the applicant consulted their diaries on 18 April 2000 and agreed to the supervision schedule which the applicant later rejected.

27 The applicant complained there was no explanation given as to why Mr Whincop felt uncomfortable during the supervision. The applicant believed Mr Whincop may have felt guilty in not having properly supervised her. She believed the relationship with Ms Pockett had broken down making it impossible for her to be the supervisor. Mr Whincop felt he couldn't supervise the applicant because of her claims to have been "singled out" and her behaviour in a team meeting where she was hostile and resentful towards him in front of staff.

Other Complaints 28 The applicant said she was denied an opportunity to act as team leader in Mr Whincop's absence. She had been told it was by rotation. The applicant said she had asked Mr Whincop if she could be acting team leader on three occasions. It had been denied because Mr Whincop said she was thought to be an inappropriate person. Ms Pockett said the applicant had never approached her about this matter. Mr Whincop gave evidence that the applicant never indicated a desire to perform higher duties or expand her role and experience. When he offered all staff the opportunity to be team leader, the applicant never responded. Ms Lennox gave evidence that acting as team leader was offered to the team in order to share it around.

29 The applicant said she was denied an opportunity to photocopy her file. She believed parts of the file belonged to her. The applicant said every time she asked to see her file she was refused. She conceded that this was not true, but rather she had been refused permission to copy the file. She could take notes and had done so. She also believed there was an internal file kept on her, which she was denied access to. Ms Pockett deposed that there were no internal files kept on employees.

Mr Brown deposed that it was Departmental policy that files were not to be copied. Reference to copying of files in the policy manual related to entries criticising performance and couldn't be applied to these circumstances. In any event, he said, the applicant secured her file under the Freedom of Information Act .

30 The applicant believed her sick leave was misdescribed when some of the time should have been RDOs or FAC leave. The applicant said when she took FAC leave, it would be wrongly described as sick leave on the file. She claimed that she was sick more often because her office was cold. In any event, she had not taken more sick leave than the award entitlement. Ms Pockett said she was concerned with the applicant's excessive level of sick leave - almost twice that of anyone else in the Department. Ms Pockett monitored all sick leave. Ms Pockett advised the applicant to report her cold office to the OH & S representative and she had moved office as a result.

31 The applicant said Mr Brown was selective in his dealings with her and didn't respond to her messages for many months.

The applicant conceded that Mr Brown had only started at the hospital on 24 May 1999 and he spoke to her in June.

32 The applicant claimed, in January 2000, the respondent had breached the Occupational Health and Safety Act and practiced workplace discrimination against her. She said the OH & S breach concerned a noisy office she occupied in 1997. The discrimination was the respondent allowing Mr Percival to continue harassing her.

The respondent strenuously denied both allegations.

33 The applicant believed that both her union official and a support person should be able to attend meetings with her and the management. This request was denied. The applicant said she needed both persons - the union official to deal with one issue and the support person, the other. She couldn't get someone at short notice for the meeting on 17 July, although she accepted she hadn't asked anyone. She said both the union and support persons were unavailable for the meeting on 20 July. Mr Brown deposed that he had not discussed the applicant's convenience to attend the 20 July meeting and had directed the applicant to attend with, or without, a support person.

34 The applicant claimed the respondent did not follow it's own disciplinary procedures. In particular that: i) she was refused an opportunity to fully explain her position;

ii) the committee acted in an aggressive and insensitive manner towards her support person and didn't allow him to act in the role;

iv) the respondent proceeded with undue haste in recommending her dismissal;

v) she received no warnings and had never been disciplined; vi) she received no warnings of dismissal; vii) there had been no appraisals of her performance; viii) she had been denied supervision. Mr Brown said that the proposed 17 July meeting was not a disciplinary meeting. The first, and only, disciplinary meeting was on 24 July. He acknowledged that he had not told the applicant she could seek an adjournment during the meeting to talk with her support person. He had not discussed with the applicant, prior to this meeting, the matters said to have contributed to the breakdown in the working relationship. Mr Brown accepted that the applicant received no written warnings and had not been summarily dismissed. He believed she was provided with every opportunity to respond to the allegations against her. He accepted the Department's policy had not been strictly complied with. However, he believed there were grounds for summary dismissal. This would have meant the forfeiture of entitlements to long service leave. He wouldn't recommend summary dismissal, unless absolutely necessary. Mr Brown said, despite being invited to, the applicant put nothing in mitigation of her dismissal.

35 The applicant said a roster drawn up on 21 July had not included her name. This was before the disciplinary meeting and proved the respondent had already decided to dismiss her. Mr Whincop, who drew up the roster, did not know the applicant had been recommended for dismissal on 24 July. She had been included on the roster commencing 26 July. In fact, she was due to cover for an absent employee in another Department from 31 July and would not have been shown on the usual roster.

36 The applicant claimed the respondent failed to maintain a dialogue with her solicitors on the issues which were of concern. The applicant said she had not wanted to contact Mr Brown to arrange a meeting as she wished to take legal advice. Even though she had been using her solicitors throughout 1998 and 1999, the respondent had later refused to deal with her solicitors at all. Ms Pockett said the letter from the applicant's solicitor of 22 February 2000 was the first time the applicant had criticised the hospital management. Mr Brown believed the matters pursued through the solicitor were best handled directly with the applicant.

37 The applicant claimed that no one else had been disciplined for failing to attend a meeting. Similarly no one had been disciplined if they were attending to an important family meeting and failed to respond to a phone call or page. Ms Gargoura said on rare occasions she had missed a team meeting or was late if she had a meeting with a family - but she had never been disciplined. Mr Ellison said he had never been disciplined for not attending a meeting, answering a phone call or a page during a family conference.

The respondent said this was not an ordinary meeting, but one involving a very serious matter which the applicant was aware of and she had an obligation to attend. The applicant had a duty to comply with management's direction to attend such a meeting.

38 Mr Magdy Massoud is a friend of the applicant who attended a number of meetings with her as a support person. He is employed as a social worker in the Central Sydney Area Health Service.

39 Mr Massoud deposed that on the day of the Norwood incident in 1998, he attended the hospital to assist the applicant and saw Ms Pockett there several times. He said Ms Pockett had spoken to the applicant in the corridor of the Social Work Department and had accused the applicant of embarrassing the Department.

40 Mr Massoud attended the disciplinary meeting on 24 July 2000. He said Mr Brown was very accusing and the applicant was shaking and visibly devastated. When Mr Massoud tried to speak he was warned that he was only an observer. He deposed that in fourteen years working in the health system and having attended many disciplinary interviews, he had never seen a more "unprofessional, intimidatory, oppressive and exploitive" interview. He said he had felt degraded by the experience.

41 Mr Massoud was asked if the applicant had requested him to attend any other meetings with her. He said sometime around 15 to 17 July she had asked him to attend a meeting on the 17th. However, he was unavailable. She asked again if he could attend a meeting on 20 July. He couldn't do so as he would be in Brisbane.

42 Mr Britt submitted that the Norwood incident was the trigger for much of the applicant's discontent with the hospital and her perception that it had not provided her with an appropriate level of support. The applicant's concerns were compounded by the harassment of her by Mr Percival and the failure of the hospital to properly address this harassment. He said, there was no evidence that the applicant was, in any way, at fault in respect of either matter.

43 He said the consequences of these incidents led to a breakdown in the relationship between the applicant and Ms Reiner and the applicant and Ms Pockett. What followed were a series of solicitors' letters raising matters of concern to the applicant involving her supervision and performance appraisals. Mr Britt referred to Ms Pockett's evidence that appraisals had not been undertaken as frequently as they should be.

44 Mr Britt put that the applicant was never directed to attend the meetings suggested to be held with Mr Brown. Similarly, there was no direction for her to attend supervisory meetings with Ms Pockett.

45 Mr Britt accepted that the proposed meetings of 17 July and 20 July were not disciplinary meetings. Nonetheless, he submitted, it was reasonable for the applicant to have a support person with her. When the first meeting was cancelled, it was unreasonable for the respondent to organise a new meeting without her agreement and without her being able to have a support person present. Her solicitor had requested a postponement. He said the applicant's reasons for not attending the 20 July meeting were understandable in that she was involved in a number of family conferences that day. Considering the long history of the matter, Mr Britt said, there was no reason the meeting of 20 July could not have been postponed.

46 As to the 24 July meeting, Mr Britt submitted that the applicant should have been provided with the respondent's notes and a written copy of the complaints against her. The respondent's evidence was that this was the first disciplinary meeting. It resulted in her dismissal. She was not told she could seek an adjournment during the meeting. Mr Britt highlighted Mr Brown's and Ms Pockett's evidence that no warnings were given to her.

47 Despite criticism in the proceedings of the applicant's attitude and sick leave record, no disciplinary action was ever initiated against her about these matters. It followed, Mr Britt argued, that the applicant's dismissal was, both substantially, and procedurally unfair.

48 He submitted this was not a case of an employee wilfully refusing a lawful and reasonable instruction from the employer. She was honest and respectful and, in any event, had not been summarily dismissed. Mr Britt contended that the applicant's behaviour did not constitute a repudiation of the contract of employment or gross insubordination. At most, a warning may have been appropriate.

49 Mr Britt submitted that the respondent did not observe and apply it's own policies and procedures. For example, no warnings were given to the applicant.

50 Dismissal was harsh, in respect to the applicant's personal circumstances, including her ten years' service. It was disproportionate to the gravity of the misconduct. Moreover it was unfair, in that there was evidence from other employees that social workers had discretion when responding to phone calls, or pagers if they were conducting difficult family meetings. No employee had been disciplined for failing to do so.

51 Following inquiries from the Bench, Mr Britt submitted that, even if the Commission ignored the conflict of evidence, there was a sufficient basis for a finding that the reason for dismissal and the process, was unfair. The respondent was a large organisation and the applicant could be employed as a social worker in a number of the respondent's hospitals or health facilities. Even so, while there may be difficulties with reinstatement, it would not be impossible to reconstruct the employment relationship.

52 In the alternative, having regard for the applicant's length of service and the loss suffered by her, Mr Britt submitted that compensation at the maximum level should be awarded. For the Respondent

53 Mr Murphy opened his submissions by putting that the applicant was dismissed for gross misconduct in refusing to obey a lawful direction of the employer. The applicant failed to attend the 20 July meeting and deliberately failed to respond to messages from management.

54 Despite these grounds for dismissal the respondent did not act summarily. The respondent cannot be criticised for expressly imposing a less draconian outcome which would have denied the applicant benefits to accrued long service leave.

55 In response to the argument that the respondent breached its own policies, Mr Murphy said that written policies are not a "straight jacket" binding on employers - particularly in the unusual and bizarre circumstances of this case. It was simply wrong to suggest the applicant received no warnings. The evidence was that there were numerous and substantive warnings.

56 The applicant claimed that she could not attend the 20 July meeting nor could she respond to management messages because she was in a family conference. Mr Murphy submitted that such a claim was unreal and in any event, it was untrue. He said the demands of clients are secondary to the directions of her employer. It is not open for an employee to decide if, and when, she will attend a meeting directed by the employer. The applicant's own evidence was that she saw two persons in the morning of 20 July, went to lunch at 1.30pm and handed a letter to a Mr Marcos at 3.00pm, the scheduled time for the meeting. On her own evidence, Mr Murphy said the applicant wasn't in a family conference at all immediately before the scheduled meeting. Mr Murphy submitted the applicant had no intention of attending the meeting or responding to messages. Her defiant attitude was demonstrated in Ms Nelson's evidence that the applicant had said to her " I'll ring him (Mr Brown) when I am good and ready ".

57 Mr Murphy dealt with the applicant's grievances against the respondent in this way. He said they were not genuine and never raised internally before her solicitor's letter of 22 February 2000. The applicant's position on a number of the complaints changed during the case when faced with the corroborated evidence of other witnesses. He traced the extensive exchange of solicitors' letters with the respondent and said that nothing the hospital did would satisfy the applicant. A growing level of hostility was disclosed in the correspondence, which culminated in the 22 February letter. This letter constituted a "declaration of war". It was clear from the evidence that the matters complained about in the letter had never been raised in an appropriate way. Some were about matters two years old and others were simply not true. Mr Murphy submitted that the letter was little more than part of a wider vendetta against the respondent. He cited later correspondence which was dismissive of Mr Brown, cut off communication at the local level and sought involvement of higher management. The respondent, at all times, exhibited remarkable restraint. It had acted sympathetically and appropriately to the Norwood and Percival incidents. However, it wasn't prepared to accede to the applicant's continuing and inappropriate demands.

58 Mr Murphy dealt with Mr Massoud's claim to have been in Brisbane on 20 July and was therefore unavailable to attend the meeting as the applicant's support person. Exhibit "X" makes clear Mr Massoud was in Sydney on 20 July and either the applicant, or both of them acting in concert, determined the meeting would not go ahead.

59 Mr Murphy said Mr Massoud's evidence that he saw Ms Pockett at the hospital on 30 April 1998 is also unreliable and not supported by any other evidence.

60 Mr Murphy identified a number of claims made by the applicant which were later found to be untrue:

· that she had been offered no counselling in respect to the Norwood incident;

· that Ms Pockett gave Mr Norwood a copy of the applicant's statement;

· that the applicant was refused leave to attend court;

· that she was denied an opportunity to be team leader;

· that she was treated in a degrading manner by Ms Pockett;

· that Ms Pockett had said "just wait and see how we are going to deal with you". These untruths, he said, prove the applicant to be a witness of little credit.

61 Mr Murphy said the applicant would say anything in the witness box to support her case. She simply cannot be believed. He contended that this cannot be a case involving an employee of ten years' service being dismissed for failing to attend one meeting. The full and real picture discloses an absolute and irrevocable breakdown in the employment relationship based on a vendetta against Mr Norwood and Mr Percival which the respondent would have no part of. There was a five month period of non co-operation and wilful defiance of the reasonable directions of the employer.

62 Mr Murphy submitted that raising matters such as Mr Percival's health status and Mr Norwood's alleged criminal record were a disgrace and nothing more than part of her vendetta against both of them. Mr Murphy said that the applicant could not expect the respondent to be her ally in this vendetta and then declare war on the respondent when it refused to become involved.

63 He argued there was no unfairness in, either the dismissal, or the process leading to it. Mr Murphy stressed it would be absolutely impossible for the applicant to return to Westmead Hospital. Moreover, he said, this employee should not be inflicted upon any of the respondent's other facilities.

64 Mr Britt agreed that employer policies ought not be seen as a "straight jacket". However, the Commission is obliged to take into account whether the employer's policies had been followed. In this case they weren't. For example he claimed the letters from Mr Kilkeary were not warning letters as envisaged by the respondent's own policy.

65 He conceded that if this was a case of gross misconduct, warnings were not necessary. He accepted that it was "more fair" to terminate with pay in lieu of notice, than by summary dismissal.

66 Mr Britt said the only reasons for dismissal were for not attending the 20 July meeting and for refusing to respond to messages.

67 Mr Britt explained, on instructions, Mr Massoud's whereabouts on 20 July. While the health service records show he was working on that day, he had taken time off in lieu and was in Brisbane from 17 to 20 July. He returned on the morning of the 20th and worked in the afternoon.

68 When the applicant's employment was terminated she was paid four weeks' salary in lieu of notice and pro rata long service leave. In light of these payments, it is clear the applicant was not summarily dismissed. I shall say more about this later. However, Mr Murphy submitted that the respondent was entitled to regard the applicant's refusal to attend the meeting on 20 July 2000, and her failure to respond to urgent messages from management on that day, as deliberate refusals to comply with the lawful and reasonable directions of her employer. Such behaviour, he said, constituted gross misconduct warranting instant dismissal.

69 Five matters immediately arise from this submission. Firstly, the onus is on the employer to prove the misconduct which it alleged; secondly, did the applicant refuse a lawful and reasonable direction of the employer? thirdly, did the misconduct constitute a repudiation of the contract of employment by the employee? fourthly, was the respondent entitled to take account of the applicant's long history of non-cooperation and her overall employment record? and fifthly, was the dismissal "harsh, unreasonable or unjust" within the meaning of the Act?

71 1) The onus is on the employer to prove the misconduct which it alleged. As a result of a number of decided cases of the Commission, this proposition is now well settled. The most oft referred to is in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70, and I quote from it: It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street (1947) AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) (1949) AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 at 279 and Homebush Abattoir (1966) AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson (1957) AR (NSW) 547 at 552, 553; North v Television Corporation Ltd (1976) 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr Newall submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643, and in that passage from his Honour's judgment which said at 644: Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principle to regard fault as a particular exception defeating the right only when alleged and proved.

The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it. In support of his submission on onus, Mr Walton referred to the judgment of Dey , J. in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355, in which his Honour clearly held that the necessity for proving misconduct lay upon the party setting it up, namely the employer, and even though the union had the responsibility for establishing a proper case for reinstatement. I respectfully agree with his Honour's conclusion, it being entirely consistent with well established authority. See also Shop Distributive & Allied Employees' Association v Jewel Food Stores , 22 IR 2; Franklins v Webb 72 IR 257 and Bigg and Anor v New South Wales Police Service , 80 IR 434 1999 and Thornton and Happy Hours Pre School Kindergarten (unreported Sams DP IRC5333 of 1998, 29 July 1999). It is unarguable from the evidence, including that of the applicant herself, that she failed to attend the 20 July meeting and did not respond to messages from management. In light of this, it is unnecessary to make findings as to whether the respondent has discharged the onus of proving the misconduct. The reason for the dismissal is established. Mr Britt 's concession that the misconduct may have only warranted a warning, demonstrates no issue with the respondent's allegation, but rather with its consequences. Whether these were reasonable directions and failure to comply warranted dismissal are entirely different propositions which will ultimately require determination in this case.

72 2) Did the applicant refuse a lawful and reasonable direction of the employer? It is trite law that an implied term of a contract of employment requires an employee to obey a lawful and reasonable instruction or direction of the employer. A failure to do so may constitute a repudiation of the contract and lead to the employer summarily dismissing the employee. In Izdes v L G Bennett & Co Pty Ltd (1995) 61 IR 439, Beazley J said at p451: In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee's conduct. In Clouston and Co Ltd v Corry [1906] AC 122, Lord James of Hereford stated at 129: There is no fixed rule of law defining the degree of misconduct which will justify dismissal". In Laws v London Chronicle (Indicator) Newspapers (Ltd) [1959] 1 WLR 698, Lord Evershed MR (Jenkins and Willmer LJJ agreeing) stated at 70: The question must be - if summary dismissal is claimed to be justifiable - whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. In Pastrycooks Employees v Gartrell White (No 3), Hungerford J in reviewing these, and other authorities stated at 74: Permeating all of those earlier cases on this aspect of the law was the concept that the act of misconduct or of disobedience had to strike at the fundamental aspect of the relationship of employer-employee so as to make it plain that the conduct complained of was such that the non-offending party may properly conclude that the offending party no longer intended to be bound by the provisions of the employment contract. In other words, so it seems to me, the test comes down to the question whether the employee's conduct has been so inconsistent with his duties under the employment contract that it strikes down any reasonable suggestion that the employer-employee relationship can be continued in the future. His Honour then said at p78: Summarising the law, then, as I see it according to the authorities, conduct justifying summary dismissal arises where the employee concerned has wilfully failed to obey the lawful and reasonable orders of the employer in such a way as to amount to an intention by the employee no longer to be bound by an essential condition of the contract of employment; in assessing an employee's intent, consideration needs to be given to whether he is acting reasonably, that is, with full knowledge of all the circumstances and in an honest and respectful way.

To my mind, there can be no doubt here that the employer's directions were lawful. In deciding whether they were reasonable requires further consideration of the seriousness of the directions, whether there had been a repeated refusal to comply, whether there was a wilful and deliberate intention to disobey and other mitigating factors. I have no doubt that an employer's direction for an employee to attend a disciplinary meeting is a reasonable direction of the employer. Indeed, one might say it strikes at the very heart of whether the employment relationship is to continue. It seems to me that a failure to attend a disciplinary meeting could only be excused where very sound and cogent reasons are able to be demonstrated. However, it was acknowledged that the 20 July meeting was not a disciplinary meeting. It was, nevertheless, a meeting convened to discuss very serious matters and one which, in my opinion, the applicant had a duty and obligation to attend. The Commission will later discuss the reasons put by the applicant as to why she declined to do so.

73 3) Did the misconduct constitute a repudiation of the contract of employment by the employee? Although an employee may be guilty of misconduct, non constat that the conduct will be of such gravity as to constitute a repudiation of the contract of employment by the employee. The notion of what might constitute an employee's repudiation of the contract of employment in the context of a summary dismissal has often been referred to. It was helpfully discussed, and I should say with some striking similarities to this case, in a judgment of the New South Wales Court of Appeal in Byrnes v Treloar (1997), 77 IR 332. In the judgment of Stein JA (with whom Gleeson CJ and Powell J agreed), his Honour described certain circumstances which justify summary dismissal (p335): It is clear that an employee may be summarily dismissed if she or he has acted in a manner which is incompatible with the employees' duty, inconsistent with her or his duty to the employer or in a manner which is destructive of the confidence between the parties, Blyth Chemicals Ltd v Bushnell (1953) 49 CLR 66 at 72, 81. It is apparent that the appellant refused to recognise the authority of the acting Executive Director (Mr Atterton) as well as his authority as President of the association. Bearing in mind the provocative content of the allegations the appellant made against him on 19 October 1992 (and its dissemination by the appellant) he was giving her a lawful direction to respond. In effect, she refused to obey any directions given by Mr Atterton in his capacity as President or in his capacity as acting Executive Director. Her refusal was deliberate and intentional and her failure to obey a lawful instruction went to the root or foundation of the contract of employment ( Adami v Maison de Luxe Ltd (1924) 35 CLR 143). Her conduct cannot be regarded as a merely trivial or mild form of insubordination or as a purely personal dispute. It was a direct challenge to the management of the association. Under the contract of employment the appellant was responsible to the Executive Director. … His Honour had the benefit of observing the demeanour of the appellant and the association's witnesses and to judge their respective credibility. His conclusions were well and truly open on the evidence. In particular, his Honour was entitled to conclude that the appellant's "entire course of action" between 19 October and 8 December 1992 was inconsistent with her continuing to be bound by the contract. She displayed intransigence, insubordination and disloyalty. These matters (individually or collectively) are sufficiently serious to justify summary dismissal. I refer also to North v Television Corporation Ltd (1976) 11 ALR where Franki J said at p616: It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions. The reference to the 1959 English case Laws v London Chronicle (Indicator Newspapers) Ltd makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be "wilful": … I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions. (p288).

Hungerford J of this Commission in Day v Lumley Life , 90 IR 70, describes the employment relationship as a serious contractual relationship involving rights and obligations on both sides: The employment relationship, I have to say, is a serious relationship with important incidents for both parties to it. It is a consensual relationship based on contract and with respective rights and obligations. It should not, I think, operate, or to be so seen, in practice in a way which permits one party, here the employer, to act in a one-sided manner contrary to the legitimate expectations and understandings of the other party, here the employee, and particularly where such action damages or detrimentally affects the career interests of the employee. Employees have a corresponding duty to act with fidelity and good faith.

74 4) Was the respondent entitled to take account of the applicant's long history of non-cooperation and overall employment record? In cases where misconduct is admitted, or proven to have occurred, a dismissal might still be characterised as "harsh" having regard for the severity of the misconduct and other mitigating factors. Put in common parlance - "did the penalty fit the crime?" This principle was expressed in Electricity Commission of New South Wales t/as Pacific Power v Crump , (1993) 48 IR 296 at p302: The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233 as follows: I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal . The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. (Our italics) See also Busways v Johnson (1994) 55 IR 255 and Byrne & Anor v Australian Airlines .

75 Just as the employer is entitled to have regard to, and take account of an employee's otherwise exemplary record of employment when considering whether dismissal is warranted, the reverse must equally apply. In John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (unreported Sheppard J, Matter 259 of 1972, 14 September 1972) his Honour said: The union's argument in relation to this matter is not easy to understand. It suggests that although the record is not a satisfactory one, it should be overlooked because the company, except for a warning and a suspension here or there, allowed it to run on and in effect condoned or waived it. It further says that the record has to be looked at in the light of the fact that here is admittedly a good deal of absenteeism generally in the plant. If one were to take this argument to its full extent, it would involve the union in saying that Mr York should have been dismissed long ago. It is no doubt possible for the company to waive particular acts of misconduct that would otherwise justify dismissal without notice. These particular acts could not subsequently be used for this purpose once a decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about dismissal. This will be all the more so where, as here, the dismissal is upon notice. In Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16, Cook J said at p27: … In my view, when an employer is considering whether or not he will exercise his undoubted rights in relation to the selection and retention of employees, subject to the observance of any award requirements, he is entitled to have regard to the previous conduct of an employee. For example, an employee might be late for duty on one occasion and his employer may overlook this. The employee may, likewise, be late on a number of subsequent occasions and the employer may decide not to take any action. If, however, the employee's punctuality does not improve, I would think it clear that an employer would be entitled on the latest instance of unpunctuality to review the record of that employee and if he decided that his record was unsatisfactory and that he no longer wished to retain him in his employment he would have a right to dismiss him by giving the requisite notice of dismissal. In such a case, I think that the employer's action could not ordinarily be said to be such a harsh and unjust exercise of his legal right as to justify an order of reinstatement …

In other words, when dismissing an employee, an employer is entitled to have regard to the employee's past performance and other factors, even if such matters did not warrant formal warnings at the time they occurred. Put another way, the particular incidence of misconduct cannot be viewed in isolation from the employee's overall performance. Indeed, the actual misconduct might have as its genesis, a series of incidents, or a change in attitude of the employee over a period of time. So much so is evident in this case. In my opinion, the respondent was entitled to have regard to the applicant's overall conduct and behaviour but, most particularly, from about the time of her solicitor's extraordinary letter of 22 February 2000. I am also satisfied that the Norwood and Percival incidents are relevant background events which explained the applicant's overall conduct and behaviour. In this regard I refer to a recent Full Bench decision in CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia [2001] NSWIRComm 287: … When considering an application under s84 of the Act, the Commission is entitled, and indeed required, to determine whether the dismissal of an applicant was harsh, unreasonable or unjust in light of all the circumstances of the case. Although the determination to be made must be whether the dismissal was objectively harsh, unreasonable or unjust, background events may be relevant to the extent to which they cast light on the actions of all persons involved: see, for example, the approach adopted in Burge v NSW BHP Steel Pty Ltd at 342-343.

76 4) Was the dismissal "harsh, unreasonable or unjust" within the meaning of the Act? The relevant provisions of the statute - Pt6, ch2 of the Act - describe an unfair dismissal as one which may be "harsh, unreasonable or unjust". It is now well settled that each of these words has its own discrete meaning and has different implications in an industrial context. The lead authority for this proposition is to be found in Byrne and Anor v Australian Airlines (1995) 185 CLR 310, where the High Court considered the expression "harsh, unreasonable and unjust"; albeit in the context of an Award provision. In their joint judgment, McHugh and Gummow JJ said at p465: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. The principle was further discussed in Outboard World v Muir (1993) 51 IR 167, where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session ( Perrignon , Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'.

It has been said that those words are a 'tautological trinity' ( Davis v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power.

In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made.

A more recent authority for the same proposition is to be found in Bankstown City Council v Paris (1999) 93 IR 209: The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made.

77 Procedural Fairness Mr Britt placed much reliance on allegations that the applicant was denied due and fair process. In other words, her dismissal was procedurally unfair. It is worthwhile to spend some time in examining the legislative basis for considering matters of procedural fairness and to refer to the relevant authorities which deal with the issue. The expression, procedural fairness, is not identified, or defined, in the statute. Nevertheless, the matters the Commission may take into account in determining a claim under Pt 6 ch 2 of the Act, referred to in s88, undoubtedly relate to matters of procedural fairness. 88 In determining the applicant's claim, the Commission may, if appropriate take into account: a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and c) whether the warning of unsatisfactory performance was given before the dismissal, and d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and e) whether or not the applicant requested reinstatement or re-employment with the employer, and f) such other matters as the Commission considers relevant.

There are a number of observations to be made about s88:

· The factors to be considered are discretionary. · The Commission is not limited to the matters identified in the section. · The matters which may be taken into account are both particular, eg whether warnings were given, and general - sub para (f) · s88 applies in respect to dismissals on notice and summary dismissal for misconduct. It is now well established that a finding of "harsh, unreasonable or unjust" can apply to both the substance of the dismissal, and/or the procedure leading to the dismissal.

The oft quoted authority for this proposition is Byrne & Anor v Australian Airlines at p465:

The distinction between procedure and substance is elusive. This is so even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights, and the Statute of Frauds, where it has an entrenched operation (217). In our view, it is unhelpful and contrary to the tenor of the Award to introduce it into cl.11(a). That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable (218).

But the question under cl.11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking at the first issue before there is seen to be any need to enter upon the second . See also Bigg v New South Wales Police Service, 80 IR 434, where a Full Bench said at p454: As the Full Commission made plain in Busways, an employee is entitled to know prior to dismissal the nature of and, as necessary, the detail of the material known to the employer which is against the employee's interests. The employee is also entitled to an opportunity to respond to that material. If an employer fails to give an employee such an opportunity before dismissal, that is a matter which the Commission may take into account in proceedings brought under s.246 in determining whether the dismissal was harsh, unreasonable or unjust. 78 See also Burke v McGirr (1995) 87 IR 54 at 55-56; Oswald v New South Wales Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta, 87 IR 57 at 64; Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 and my discussion of the principle in Myers v New South Wales Police Service, 93 IR 123; National Union of Workers, New South Wales Branch, on behalf of Phillip Charles Mumby, and Davids Distribution Pty Ltd (unreported IRC2056 of 1999, 9 February 2000); Herson and One.Tel Ltd (unreported IRC5181 of 1998, 18 February 2000) and Yopp v Advanx (Gosford) Motor Services Pty Ltd (unreported IRC4592 of 1998, 7 May 1999)

79 The principle has been recently reaffirmed in Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 where the Full Bench said at p389: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. and later, at page 390: While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust . The Commission intends to apply these principles to the facts and circumstances of this case.

80 The Commission was deeply troubled by the unreliability of the applicant's evidence and that of Mr Massoud. It was a farrago of inconsistencies, omissions, misrepresentations, half truths, fantasies and downright lies.

81 The applicant's affidavit evidence was drafted in such a way as to give a false impression of what had really occurred. For example, the applicant said she had been denied leave to attend Court over the Norwood incident and that she had been offered no counselling after the incident. Both claims were patently untrue and she knew it to be so.

82 I note that the applicant first denied to Ms Walker any personal relationship with Mr Norwood. However, when faced with contrary evidence (another woman's phone call from Adelaide) she was forced to admit she had had a relationship with him.

83 The applicant interpreted words so as to suit her own purposes. An example was when she said Ms Pockett had told her "just wait and see how I will deal with you". Ms Pockett denied using these words and said she told the applicant she was looking forward to the meeting with Mr Brown to have the matter of her supervision finally resolved.

84 There are many examples of inconsistencies in the applicant's evidence. i) The applicant gave evidence that she had asked Mr Massoud to attend the 17 July meeting but he was unavailable. In later evidence, she accepted she had not asked anyone. ii) The applicant complained that Ms Pockett would call her to the office, rather than putting messages in her pigeonhole. Strangely, at other times, she complained about notes from management being put in her pigeonhole. iii) In Ex'1' Annexure K, point 5, the applicant's solicitor writes " Our client is interested and keen to meet with Ms Pockett to re-establish a proper working relationship ". Given numerous opportunities to do so she threw up every conceivable excuse as to why she couldn't meet with Ms Pockett.

iv) The applicant said she was slapped in the face by Mr Norwood during the assault in 1998. Ms Reiner was present and did not see this and did not record it in her statement. The applicant's treating doctor made no reference of any injury to the face, nor did her superior, Ms Walker, observe it. Ms Walker was concerned with this inconsistency. The closest evidence corroborating the applicant's version of this aspect of the event was the security guard's statement (Ex'23'): S/O Ware and myself now aware who he was left him and went to Social Workers level 2 where we spoke to Vera Reiner and Jacqueline Youssef in front of their Acting Director Eileen Walker - F50017. Reiner stated Norwood followed Jacqueline into her office and asked her to leave. She did not, she was verbally abused and insulted. She told him to leave, he abused Jacqueline and slapped her face … Putting this evidence at its highest, the security guard was recounting what either Ms Reiner or the applicant had told him. He was not a witness to the assault, nor did he ever express a view that there were marks on the applicant's face consistent with her being slapped.

85 It was hardly surprising that not one person who worked at the hospital was either called, or subpoenaed, to give evidence on the applicant's behalf. On the other hand, a number of her work colleagues corroborated the employer's concerns and expressed unease at the prospect of working with the applicant again. I would note that none of the witnesses expressed any personal animosity towards the applicant. I am satisfied each of them gave honest and credible evidence.

86 Nevertheless, the applicant claimed a number of employees would corroborate her complaints against the hospital. In cross examination she was pressed to name the employees and did so. When called to give evidence, seven of the employees denied the conversations alleged by the applicant. This weight of evidence, entirely credible as I believe it was, is overwhelmingly against the applicant. In my opinion, this evidence demonstrates the applicant sought to crudely and unfairly implicate her own colleagues in a web of deceit against the employer. It strengthens my view that much of her evidence was, at best, a figment of her imagination; or, at worst, outright lies.

87 Confirming my view of the applicant's lack of credibility, was her claim that she was in a family conference on 20 July and couldn't take phone calls or return pager messages from management. This was untrue. The applicant said she was contacted only once by Mr Chris Brown on 20 July. This is a lie - Ms Nelson and Ms Brown had both conveyed messages to her. Ms Brown gave evidence that she wrote a statement on 20 July and typed it up on 25 July (Ex'N'). In the statement, she said she was asked by Ms Walker to find the applicant and she went to her office. Upon entering, the applicant was sitting at her desk. No one else was present. Ms Brown was a confident and impressive witness. Her account of the incident is to be believed.

88 Similarly, I found Ms Nelson to be a straightforward and truthful witness. The applicant denied conversations with Ms Nelson in which she sought confidential information about Mr Whincop. She denied saying to Ms Nelson on 20 July that she would ring Mr Brown when "she was good and ready". In accepting Ms Nelson's evidence on these matters, it follows that the applicant's denials are not to be believed. In addition, I find the applicant's demands on Ms Nelson to be grossly improper. If she had given the information to the applicant, Ms Nelson's own employment would have been seriously at risk. Wisely, she declined to do so. This is another example of the applicant's vendetta against the hospital and her seeking to enlist anyone to her cause, no matter what the implications.

89 The Commission found Ms Reiner to be an open and sincere witness. She was understandably unhappy when the applicant named her, in a solicitor's letter, as a witness against Mr Percival. The applicant had done so without authority. Ms Reiner refused to be a witness for the applicant in the proceedings against Mr Percival. For not co-operating, the applicant ignored and ostracised Ms Reiner.

90 The Commission found both Ms Pockett and Ms Walker to be impressive witnesses. In my view, where there is any conflict of evidence with the applicant, their evidence is to be preferred.

91 Notwithstanding my criticism of the applicant's evidentiary case, she gave her evidence calmly, courteously and without waiver. She was completely unflappable. When confronted with an inconsistency in her evidence, she quickly responded, without flinching by providing a curious excuse or absurd explanation. I believe the applicant could find an excuse or explanation for almost anything. It was a breathtaking witness performance - but utterly unreliable.

92 Mr Massoud's evidence is tainted by a blatant lie as to his whereabouts on 20 July (T.p104, Ex'X' and Ex'CC'). He claimed to be in Brisbane and unable to attend a meeting as the applicant's witness. Summonsed diary records disclose he was at Westmead around 3.00pm, using a vehicle of the Central Sydney Area Health Service.

93 When queried from the Bench, Mr Britt's explanation, upon instruction, was that Mr Massoud returned to Sydney from Brisbane on the morning of 20 July. Notwithstanding the Area's records showing him at work in the morning, Mr Britt said these were not correct as Mr Massoud was actually taking time off in lieu. There was no corroborative evidence, such as an airline ticket, of this preposterous explanation. I accept that Mr Britt's explanation was upon instructions. However, I find the explanation to be utterly unbelievable and offensive.

94 Mr Massoud's evidence was self serving and deliberately designed to corroborate the applicant's false testimony. For example, both claimed to have seen and spoken to Ms Pockett on 30 April 1998 at the hospital (the day of the Norwood incident). Ms Pockett was not even there. Despite irrefutable evidence that this was so, both Mr Massoud and the applicant didn't even have the good grace to accept they may have been mistaken.

95 I find Mr Massoud's evidence to be completely without credit and manifestly unhelpful to the applicant's case.

96 While the litany of complaints by the applicant is nothing short of extraordinary, what is more disturbing is that most of the complaints were either trivial, completely exaggerated or, even worse, fabricated.

1. The applicant claimed she was "degraded" and "pursued relentlessly" by Ms Pockett. She said Ms Pockett would put notes on her desk, call her into the office, and check her time off in lieu records. This was said to constitute "relentless pursuit". What nonsense. The evidence was that the applicant would alter her own timesheets. Moreover, her sick leave record was appalling - more than double anyone else. Why wouldn't her supervisor be concerned about such matters and raise them with an employee in a perfectly civilised and reasonable way? 2) The applicant moved offices four times as a result of complaints that she felt unsafe, or the office was cold or noisy (Ex'5' p6). 3) The applicant complained that Mr Brown had not contacted her for many months. The correct evidence was that his first contact with the applicant was a few weeks after he had commenced working at the hospital.

4. On one hand, the applicant complained she wasn't properly supervised but then complained she was singled out for supervision. Notwithstanding that the evidence is overwhelmingly against her on both claims, this is a strange contradiction.

5. The applicant complained she was not provided with external supervision in accordance with hospital policy. This is absurd. Her view of external supervision totally misapprehends the role of outside consultants in the process. Consultants were to provide specialist advice, not actually to participate in the supervision. It would be ridiculous and unhelpful to have an external person supervising an employee of the hospital. There would be no continuity of the relationship or understanding of issues relevant and specific to the hospital. Supervision must surely involve the person being supervised having a direct relationship to the supervisor. It couldn't be supervision otherwise.

6. Claiming dissatisfaction with the Police investigation into the Percival incident, the applicant lodged a complaint with the Ombudsman against Police Constable Martin. This complaint went nowhere and is further evidence of the lengths the applicant would go to to discredit Mr Percival and impugn anyone who would not assist her vendetta against him. 7) The applicant complained that during her employment she had never been given an opportunity to be team leader. However, the evidence disclosed that she never asked to take on the role. 8) The applicant claimed she was denied access to her personal file. This was untrue. She had access, could make notes but not copy the file.

9. The applicant was moved from neurosurgery to cardiology because she believed the nursing unit manager in neurosurgery was a " racist ". Notwithstanding there was not a scrap of evidence that this was the case, she was moved anyway. 10) The applicant claimed to have been offered no counselling after the Norwood incident. Faced with the contrary evidence of Ms Reiner and Ms Walker, she was forced to admit that this was not true. In her affidavit, the applicant claimed that she was refused leave to attend court over the Norwood incident. She was forced to subsequently admit this was also untrue.

A correct analysis of these complaints and the many others referred to in this decision, leads me to the view that the applicant was looking for any issue, no matter how remote or trivial, to cause annoyance to the employer because it failed to be her ally in her vendetta against Mr Norwood and Mr Percival.

98 Contrary to the applicant's claim of victimisation, Mr Whincop gave many instances of the support offered to the applicant. For example, he allowed her time off to arrange travel overseas and extended her leave to do so; on a number of occasions, Mr Whincop arranged to move her office as she felt "unsafe"; he had filled in for her during an inservice session in April 2000; he gave her first choice on annual leave requests; and, he supported her over the Norwood incident. Mr Whincop said the applicant was moved out of neurosurgery to cardiology after she complained the nursing unit manager was a "racist". Without any evidence, her request was granted. He had also reorganised the team when the applicant said she was very busy and needed assistance. A plan was drawn up, but later changed at the applicant's own request.

99 In my opinion, the respondent went to exceptional and unnecessary lengths to accommodate the applicant's alleged issues of concern. However, I am convinced that no matter what the respondent did to address these concerns, she would never have been satisfied. As each issue was addressed in turn, she would trowel around for something else to complain about.

100 In my view, there was only one cause which motivated the applicant. It was her relentless obsession to destroy Mr Norwood's and Mr Percival's employment. She succeeded with one, and failed with the other. She craved the hospital as an ally in the pursuit of revenge against Mr Percival. When the respondent found no substance to the allegations made by the applicant against Mr Percival, and took no disciplinary action against him, she turned her venom against the hospital. I have no doubt at all, and agree with Mr Murphy, that the applicant had a vendetta against the hospital, for its failure to dismiss Mr Percival. Everything she did, and every other complaint, stems from this extraordinary and irrational preoccupation.

101 Whatever motivated Mr Norwood's behaviour on 30 April 1998, it could in no way justify assaulting fellow workers at the workplace. He paid a high price for his behaviour. No doubt his dismissal was warranted in such circumstances. However, not content with his dismissal, the applicant continued to plague the respondent with accusations about Mr Norwood for over twelve months after he was terminated. This was bizarre and irrational behaviour. Still not content, the applicant queried the respondent as to whether Mr Norwood and Mr Percival had criminal records and whether Mr Percival was positive to Hepatitis B. She claimed she was a concerned social worker, worried about the health of others. This is baloney. These queries were no more than outrageous attempts to dig up whatever dirt she could on Mr Norwood and Mr Percival to pursue her revenge against them.

102 Further, she sought information from the hospital about Mr Percival's accommodation on the hospital grounds and raised questions as to the employment of his ex de facto (Ex'V') by the hospital. I ask rhetorically, what in the world could these matters have to do with her?

103 The respondent, correctly and appropriately, regarded both the Norwood and Percival incidents as closed. In any event, what could the respondent possibly do about Mr Norwood who had been dismissed twelve months earlier.

104 In my view, the applicant's behaviour was offensive, unreasonable and verged on paranoia.

105 I intend to make it absolutely clear that this Commission will not condone an employee's personal vendetta against an employer or other employees. Nor will this Commission tolerate an abuse of its processes in pursuit of personal vendettas.

106 Other aspects of the applicant's conduct can only be regarded as most improper. 1) The applicant asked Ms Nelson for the sick leave, annual leave and ADO records of her supervisor, Mr Whincop. Ms Nelson wisely refused to provide such confidential information. It is abundantly clear from the evidence, that the applicant did so in the hope of impugning and discrediting Mr Whincop. The applicant also sought copies of correspondence between the respondent's Directors and a Lee Collins about her case against the hospital. 2) The applicant made serious allegations that the respondent had breached the Occupational Health and Safety Act and practiced workplace discrimination against her. There was no evidence then, or subsequently put in the proceedings, to substantiate either allegation.

3. There was evidence (para.39-Ex'F') that on one occasion after being given approval to attend a conference, and Ms Pockett had notated the time sheet as three days' FAC leave, the applicant, without informing Ms Pockett, altered the leave to one ADO, one day annual leave and one day FAC leave. This was grossly improper. It amounted to falsification of time sheets. What right does the applicant claim to alter time sheets which have been expressly notated by her supervisor? It was a defiant and reprehensible act. It demonstrates to me, as do other matters relating to her taking of leave, that she seemed intent on manipulating whatever leave was available and abusing it. This conduct sits rather oddly with her claim of professional commitment and outstanding service. 4) Ms Reiner found out that the applicant had used her name without permission or authority as a witness against Mr Percival. Ms Reiner had no desire to be involved. The applicant's conduct was grossly impertinent and invasive.

107 Two witnesses, Ms Brown and Ms Nelson, gave corroborative evidence of what occurred on 20 July 2000 and their involvement in conveying urgent messages to the applicant to attend the meeting with management. I have earlier indicated my preference for their evidence over that of the applicant. From the evidence, it seems the following scenario can be constructed.

108 At about 12.40pm, Ms Nelson was asked by Mr Brown to inform the applicant that she was to contact him urgently. Ms Nelson handed the applicant the message. Her response was she would do so when she was "good and ready". Mr Brown and Ms Pockett asked Ms Nelson to page the applicant. There was no response. Between 2.00 and 2.20pm Ms Walker and Ms Pockett went to the applicant's office and found the door locked. At 2.25pm, Ms Walker asked Ms Brown if she would go to the applicant's office, see if she was there, and pass on the message that there was a need for her to urgently contact the Department. When Ms Brown knocked and entered, she saw the applicant alone in her office. Ms Brown informed the applicant that Ms Walker was trying to page her about something urgent. The applicant shrugged her shoulders and said sarcastically "Did someone die or something?". Ms Brown left. About thirty minutes later Ms Walker asked her if she had found the applicant as no contact had been made. Ms Brown explained what had happened.

109 In my opinion, there can be absolutely no doubt that the applicant knew why she was required to attend the meeting. She wilfully sought to avoid being contacted or making contact with management. There is no evidence that she was in a family meeting which could not be interrupted. In any event, I regard this excuse, made as it was, well after the event, as a complete fabrication. There is no doubt in my mind, the applicant had absolutely no intention of attending the meeting of 20 July 2000, no matter what the circumstances. It is inexplicable that the applicant just would not attend any meetings with management to discuss what she herself had complained about.

110 The respondent had been trying since February to have the applicant make contact and arrange a meeting to discuss her grievances and concerns. Every attempt to do so was met with obstacles, obfuscations, refusals and solicitors' letters with new and spurious complaints and excuses. In my opinion, the respondent behaved with admirable tolerance and restraint in circumstances which were becoming increasingly damaging to a harmonious workplace environment.

111 Moreover, these were not issues outside the ordinary course of employment. Her complaints were initially about supervision and appraisals. It was absurd that the applicant would have her solicitor respond on matters so basic to the relationship between employee and employer. The number and content of her solicitors' letters, no doubt on instructions, was mind boggling. There were no fewer than thirteen letters from her solicitors during this period - some of these letters were three to four pages long. It needs to be emphasised that if an employee believes he/she can conduct the ordinary employment relationship through solicitors' letters, then he/she is sorely mistaken and/or poorly advised. It was completely intolerable and inexcusable. Is it any wonder the respondent felt totally frustrated?

112 There can be no doubt that the applicant was told clearly and explicitly to attend the meetings on 17 July and 20 July. In my view, she had no intention of attending any meetings with management until the seriousness of her refusal to do so became glaringly apparent. I note what Harrison DP said in Wells and Lloyd Moffat Investments , 83 IR 226: The tenability of the applicant's position is totally destroyed by the unrefuted evidence that she adopted a position of refusing to converse with Mrs Moffat (the employer) from late August, and maintained this stance up to the time of termination of employment on 22 September 1997. Any employee who takes a deliberate and sustained attitude of non-communication cannot expect their employment to continue . (my emphasis) I respectfully agree with his Honour's observation. It is germane to this case.

113 It wasn't only the direction to attend the 20 July meeting which is relevant here. The applicant refused to respond to urgent messages to contact management on 20 July. Other reasonable directions of management were either ignored, or frustrated. For example, the applicant would not agree to the Head of Department being her supervisor. She had no right to insist on who would supervise her or, more particularly, insist on someone from outside the hospital. The applicant also seemed to think she could veto directions to attend supervision sessions at times directed by management.

114 Mr Britt carefully and comprehensively crafted a defence of the applicant's position by pointing to numerous examples of alleged procedural faults leading up to, and after, her dismissal. In particular, he highlighted alleged faults in the disciplinary interview.

115 It was a valiant effort, but with respect, the issues he identified are of so little moment as to take the applicant's case nowhere.

116 I refer to some examples. The applicant bitterly complained that the respondent did not follow, and breached, it's own procedures and policy. I shall deal with this complaint shortly. However, I would initially observe that this claim sits rather uncomfortably with the applicant's raising of her grievances through numerous lengthy solicitors' letters rather than the correct and usual procedure. I note the applicant would not adhere to Departmental procedures concerning the taking of leave and punctuality. The Commission also observes that the policy does not permit an employee to unilaterally refuse to attend a disciplinary meeting.

117 The applicant says she couldn't have been summarily dismissed because she received four weeks' pay in notice. On this logic it was argued that according to the respondent's policy, the applicant should have been issued with three warnings. There is ample evidence that the applicant was spoken to on a number of occasions about a range of issues. This was a professional employee for whom formal written warnings would have been inappropriate and, no doubt, would have provoked a flurry of many more solicitors' letters. On one view of it, if formal warnings had been issued on every justified occasion, I venture to say there would have been many more than three warnings. 118 The applicant claimed she received no written warnings that her employment was in jeopardy. I would remind her of Mr Kilkeary's letter of 24 May 2000 (Annexure J to Ex'1'): As you are no doubt aware, all staff are required to carry out all reasonable directions of the employer or its delegate which obviously include meetings. Failure to do so may place the employment in jeopardy . Notwithstanding this warning, there was another letter of 18 July (Annexure Z to Ex'1') which said in part: I feel it is important to realise that it is incumbent on all employees to follow the reasonable directions of their employer or employer's delegate. I regard attendance at such meetings to promote communication and consultation between an employee and supervisor as a reasonable direction. Nothing could have been clearer. It is errant nonsense for the applicant to claim she received no formal warnings. Even if the applicant didn't regard these letters as warnings, I hardly think her solicitor would have been in any doubt. 119 Mr Brown explained his decision not to summarily dismiss the applicant by saying he was reluctant to do so, as her entitlement to long service leave would have been forfeited.

Rather than summary dismissal, the respondent took the less draconian step of dismissal on notice. Summary dismissal for misconduct has other serious immediate and long term implications for an employee. These implications were discussed in Franklins v Webb , 72 IR 257 at 261: We consider that the significance of decisions by employers to dismiss employees in circumstances such as occurred here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account. It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employers of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal. I also refer to my comments in Hill v Department of Juvenile Justice (unreported, Matter IRC6474 of 1999, 27 July 2000): The serious unproven allegations made against the applicant have gravely impugned his reputation. Left to stand unchallenged, these allegations would seriously hamper his future employment prospects, damage his reputation and more than likely, deleteriously affect his well being and that of his family. It is the Commission's duty - indeed, its obligation - to correct the injustices the applicant has so plainly suffered. I unreservedly intend to do so. The respondent's patience and sympathetic concern has now been turned against it by a claim it breached its own policy. Such a proposition is disingenuous in the extreme. Rather than criticise the respondent, I find it acted with commendable sensitivity and fairness. In any event, as Mr Britt correctly acknowledged, if the applicant's conduct amounted to gross misconduct then three warnings would be unnecessary. In view of my findings as to the applicant's conduct, the failure to issue warnings is moot.

120 The applicant complained that she couldn't copy her personal files. One might ask what difference would it have made? She had complete access to her files and could make notes. She did so. Moreover, she obtained her files under the Freedom of Information Act. Was she prejudiced in not being able to copy her files? I don't believe so.

This was a nit picking and paltry complaint. It has no merit.

121 The applicant said that she wanted her complaints dealt with by a higher authority. She reserved the right to choose who she would communicate with, regardless of their position in authority. This was completely contrary to hospital policy, the grievance procedure and any reasonable standard of behaviour.

122 There were many complaints about the meeting on 24 July 2000. I shall refer to some of them: 1) The applicant insisted that two people attend the disciplinary meeting on her behalf - a union person and a support person. Notwithstanding there is no provision in the policy for two witnesses to be present, this was an unreasonable demand designed to frustrate the process. 2) The applicant insisted that "support persons" be from outside the hospital. Again, there is no provision in the policy for this demand. It was unrealistic and unreasonable.

3. The applicant was critical of not being able to discuss the dates for the meeting and her convenience to attend. I ask, since when do employees dictate, not only the terms of how disciplinary meetings are conducted, but when they are held and who can attend?

4. The applicant complained that she was not provided with the notes of the meeting of 20 July - a meeting she refused to attend. It seems obvious enough. Why should she get notes of a meeting that she didn't attend?

5. The applicant criticised the fact that the Chief Executive Officer, Mr Mills, made the decision to dismiss her on the recommendation of Mr Brown. Two things need be said about this. Firstly, I have no doubt she would have criticised the decision if it had not been made by the most senior person at the hospital. Indeed, all her earlier complaints were that she wanted to deal with senior area health service officials. Secondly, the applicant was offered an opportunity to put anything she wished in mitigation. Having regard for the applicant's past form in questioning anything with which she didn't agree, it seems extraordinary that when offered an opportunity to defend herself, the silence was deafening.

123 In my opinion, this case revealed the most irrational and unco-operative employee behaviour I have ever encountered. Her behaviour was appalling. The applicant's conduct constituted a repudiation of her contract of employment for which she alone was responsible. I find the following words from Byrnes v Treloar particularly apposite to this case: She displayed intransigence, insubordination and disloyalty. These matters (individually or collectively) are sufficiently serious to justify summary dismissal.

124 It follows that this is a claim of unfair dismissal devoid of any merit. I cannot imagine a more sound basis for terminating an employee's employment than what the evidence disclosed in this case.

125 The Commission declines to intervene in the respondent's decision to dismiss the applicant.

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