Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White

Industrial Relations Commission (NSW)|2006-05-31

CITATION: New South Wales Nurses' Association (on behalf of Debbie Maree Rudder) and Booroongen Djugun Aboriginal Corporation [2006] NSWIRComm 1005

APPLICANT New South Wales Nurses' Association (on behalf of Debbie Maree Rudder) PARTIES: RESPONDENT Booroongen Djugun Aboriginal Corporation

CATCHWORDS: unfair dismissal - assistant in nursing - series of incidents and investigations - threats made against management team - serious nature of threats - serious and wilful misconduct - allegations proven to civil standard - dismissal not harsh, unreasonable or unjust - application dismissed

LEGISLATION CITED: Industrial Relations Act 1996

Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 71 Franklins Limited v Webb (1997) 72 IR 257 Wang v Crestell Industries Pty Ltd and Anor (1997) 73 IR 454 Shop, Distributive & Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 The King v The War Pensions Entitlement Appeal Tribunal and Anor (1933) 50 CLR 228 CASES CITED: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 Jones v Dunkel and Others (1958-59) 101 CLR 298 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Sandra Gay) and Department of Corrective Services [2006] NSWIRComm 147 Antanakopoulos v State Bank of New South Wales 91 IR 385 Busways v Johnson (1994) 55 IR 255 Electricity Commission of New South Wales t/as Pacific Power v Nieass and Others (1995) 81 IR 46

HEARING DATES: 14/03/06, 15/03/06, 30/03/06

APPLICANT Mr N Dawson, counsel Mr C Blair LEGAL REPRESENTATIVES: New South Wales Nurses' Association

RESPONDENT Mr C Wurf Aged Care Association Australia - NSW

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

New South Wales Nurses' Association (on behalf of Debbie Maree Rudder) and Booroongen Djugun Aboriginal Corporation

Application by New South Wales Nurses' Association on behalf of its member Debbie Maree Rudder

1 This is an application by the New South Wales Nurses' Association on behalf of Debbie Maree Rudder for unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). The application shows that Ms Rudder was dismissed from the position of Assistant in Nursing ("AIN") by the respondent Booroongen Djugun Aboriginal Corporation ("BDAC"). 2 The application was filed on 1 June 2005 when Ms Rudder believed she was threatened with dismissal. She was summarily dismissed on 28 June. Throughout the proceedings Ms Rudder continued to seek reinstatement to her former position. 3 BDAC is an aged care facility which has operated since June 1991. Its community based services include community outreach training and a youth programme, an aged care facility, community aged care packages, social and environment support, outreach food programmes, funeral and information services, aged housing and regional home and community care as well as a volunteer training programme. Ms Rudder was employed in the aged care facility since October 2000. The facility offers 20 low level care beds and 40 high level care beds. The name Booroongen Djugun means "sleeping on home ground" which is a message of ownership for the aboriginal elders for whom the facility was established. Chronology 4 Ms Rudder's dismissal occurred following a series of incidents and subsequent investigation by the respondent. The particulars of these were set out in the letter of termination dated Tuesday 28 June 2005 and were the subject of evidence in these proceedings. The letter of termination commenced as follows: Dear Ms Rudder Termination of employment effective from 28 June 2005 I write following the interviews held with you on 24 May 2005 and 23 June 2005, and further to all correspondence from Booroongen Djugun Aboriginal Corporation to you and to your Union representatives. You were directed to attend two interviews on 24 May 2005 and 23 June 2005, to respond to issues of insubordinate behaviour displayed towards senior management; dereliction of duty; intimidation; and wilful misconduct. Further to your responses in those interviews, your employment with Booroongen Djugun Aboriginal Corporation has now ceased, effective from Tuesday 28 April [ sic ] 2005. 5 Following extensive detail relating to the interviews, the letter concluded as follows:

Outcome of interviews I note that following an interview conducted 4 April 2005, you were issued with a first and final warning for displaying insubordinate behaviour towards senior management. After considering your responses to the issues put to you at these two interviews, and reviewing all of the material available as part of the investigation conducted by Booroongen Djugun Aboriginal Corporation, I have made the decision to terminate your employment with Booroongen Djugun Aboriginal Corporation. It is the finding of Booroongen Djugun Aboriginal Corporation, based on a thorough and complete investigation, that on the balance of probabilities you have been insubordinate in your behaviour displayed to senior management. You received a first and final warning in relation to insubordinate behaviour towards management on 4 April 2005. It is the finding of Booroongen Djugun Aboriginal Corporation, based on a thorough and complete investigation, that on the balance of probabilities you have been derelict in the performance of your duty. It is the finding of Booroongen Djugun Aboriginal Corporation based on a thorough and complete investigation, that on the balance of probabilities you have sought to intimidate other members of staff. It is the finding of Booroongen Djugun Aboriginal Corporation based on a thorough and complete investigation, that on the balance of probabilities you have displayed wilful misconduct. For all of the above reasons, your employment has ceased at Booroongen Djugun Aboriginal Corporation effective 28 June 2005. Your final pay will be processed in to your bank account shortly, and a final pay slip and Statement of Service will be forwarded to you. 6 The first incident which was the subject of investigation by the respondent arose on 30 March when Ms Rudder was accused of not cleaning faeces from the shower of one of the residents of the nursing home. When Ms Schmidt, the Registered Nurse, asked Ms Rudder to clean the bathroom, Ms Rudder allegedly ignored the instruction. When confronted about this by Ms Val March, the Director of Operations Training and Services, Ms Rudder gave evidence that she said: "Diana is my boss and she is the Director of Care and I answer to her not you." She stated, in her contemporaneous written report, that she had refused to lower her voice when talking with Ms March. She also acknowledged that she was aware that she should follow instructions from the Registered Nurse and that she had heard Ms Schmidt's instruction but ignored it because she was "busy at the moment". At the meeting she claimed that she did not deliberately ignore the Nurse. 7 Following the incident Ms Rudder filed a Harassment Complaint against the Cleaning Supervisor and made an official complaint against Ms March. 8 The outcome of the first interview on 4 April 2005 was that correspondence was sent to Ms Rudder as follows: Following our meeting 4 April 2005 you are hereby issued with a first and final warning in relation to the allegations set out in my letter to you dated 30 March 2005. Following the meeting management was not satisfied with your responses to the allegations. Management does accept the fact that you had nothing to do with the personal hygiene of the resident mentioned. However the fact that you ignored the Registered Nurse in charge (Anne Schmidt) is unacceptable and very worrying. Furthermore you [ sic ] attitude and lack of respect to Mrs Val March as second in charge of this organization is unacceptable. In future management expects that you will acknowledge and respond appropriately to the Registered Nurse in charge and any other executive members of management. In addition you must be aware of the Organizational Structure of the Organization. Your behaviour in relation to the above mentioned issues will now be monitored over a three month period. Failure to respond to management directives will result in further disciplinary action being taken. 9 The Association wrote to BDAC on Ms Rudder's behalf contesting the warning, saying it did not "correspond with normal industrial relations standards". 10 On 21 April Ms March observed Ms Rudder smoking with two other members of staff, during a period when Ms Rudder was not on a scheduled break. Following a meeting on 2 May, Ms Rudder was issued with a second warning regarding the requirement to smoke only in designated smoking areas and only during times when she was entitled to take a break. 11 On 16 May Ms Rudder filed a Discrimination or Harassment Complaint Form against Ms Schmidt. On the same day Ms Schmidt lodged a Praise Complaint Form complaining about the conduct of Ms Rudder and another AIN, Annette Dunn. 12 Ms Rudder was directed to attend a third interview on 24 May to discuss two issues. The first was described as insubordinate behaviour displayed toward senior management, and centred on Ms Rudder allegedly saying to the Registered Nurse, Ms Schmidt, "What's this pick on me day? So what's new?" The second issue was described as dereliction of duty, in regard to not feeding a resident her lunch and instructing other staff not to feed her. 13 In response to the first of these issues, Ms Rudder denied certain incidents earlier in the day, but she did not deny that she used these words to Ms Schmidt. She said that she had been shocked at the way Nurse Schmidt had spoken to her. 14 As to the accusation of dereliction of duty, Ms Rudder said that the resident had nearly choked on breakfast. She told other staff not to feed her, asked the kitchen staff to put a meal aside and intended to ask Ms Schmidt to attend to the resident as soon as she was free. She denied speaking to Ms Schmidt in the manner set out in the letter notifying her to attend the meeting. She acknowledged that she had not entered a note in the diary (about the resident almost choking at breakfast) until after lunch. 15 Ms Rudder claimed at the meeting on 24 May that Ms Schmidt had been harassing her for the last three months. She tabled a statutory declaration signed by AIN Kristal Eather, stating that on 4 February 2005 Ms Eather had heard Ms Schmidt say that "Debbie will be the next out the door. I'm working on it." 16 A fourth interview was set for 31 May, prior to a decision being made in regard to the issues raised at the 24 May meeting. Ms Rudder was required to respond to issues of intimidation and wilful misconduct, arising from a conversation in which Ms Rudder is alleged to have said that she and others would put heroin in Ms Schmidt's car, that stolen goods would be planted on Mr Morris' premises and that comments were made suggesting that Ms Lentz's dogs would be harmed. Ms Rudder was suspended from work pending the interview. The meeting was rescheduled, following Ms Rudder's unavailability due to illness, on 23 June. 17 At the meeting, Ms Rudder denied all the allegations. She was given the names of three people who had reported the alleged conversations. 18 On 28 June, Ms Rudder's employment was terminated. Submissions on behalf of the applicant

19 Mr Dawson for the applicant submitted that, as the termination of Ms Rudder's employment was by way of summary dismissal, the onus is on the respondent to prove the misconduct: Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 71; Franklins Limited v Webb (1997) 72 IR 257. In particular, Mr Dawson referred to Wang v Crestell Industries Pty Ltd and Anor (1997) 73 IR 454 where it was said at 463: The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. See also Shop, Distributive and Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 and Coles Myer Ltd v Shop, Distributive & Allied Employees Association (NSW) (1989) 27 IR 299 . 20 The Full Bench in Franklins Ltd v Webb also cited with approval the decision of the former Industrial Commission in Court Session in Shop, Distributive & Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 at 2 as follows: We consider in cases where dishonesty is alleged as the reason for summary dismissal, management should only summarily dismiss if it is fully satisfied after careful investigation that the accusation has been made out. In coming to such a conclusion, a prudent and fair employer will take into account, where relevant, as part of the circumstances of the case, an employee's youth or inexperience, the nature and effect of any interrogation and any admissions or denials made. We consider that this same standard should be applied by industrial tribunals when considering reinstatement. Some argument took place about the admission of character evidence relating to previous good character. We consider that in this class of case, such evidence should be received as tending to prove that the employee should be believed on her oath and that an inference of dishonesty should less readily be inferred against her. Of course, the weight given to any such evidence may vary widely and its effect is always a matter falling within the discretion of the tribunal. 21 In cases such as the present one, the rules of evidence do not strictly apply, in accordance with s163 (1) of the Act. However, Mr Dawson submitted that the subsection was informed by the judgement in The King v The War Pensions Entitlement Appeal Tribunal and Anor (1933) 50 CLR 228 at 256: Some stress has been laid by the present respondents upon the provision that the Tribunal is not in the hearing of appeals, "bound by any rules of evidence". Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice". 22 Further to that, Mr Dawson cited Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 where the case of Browne and Dunn was reconsidered. Hunt J said: It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67. 23 The decision of the High Court in Jones v Dunkel and Others (1958-59) 101 CLR 298 made it clear, submitted Mr Dawson, that if there is a witness who could support a particular case who is not called, the presumption must be drawn that they would not have assisted that case. 24 In particular, Mr Dawson submitted that much of the respondent's case relied on complaints by Ms Schmidt who was not called to give evidence in these proceedings. Accordingly, it was submitted that the presumption must be drawn that Ms Schmidt's evidence would not assist the respondent's case. Because the respondent has the onus to prove that the dismissal was not unfair and because the charges against Ms Rudder were, in part, of a very serious nature, the onus on the respondent was not fulfilled. Consideration 25 Mr Wurf for the respondent invited me to take into account the attendance outside the court during these proceedings of Ms Gloria Rudder, the applicant's mother and a person against whom Ms Lentz had taken out an Apprehended Violence Order. As I have no reason to believe that attendance had any impact on the court proceedings, I make no further comment about it. 26 Mr Dawson for the applicant invited me to consider that the applicant was dismissed after the claim for threatened dismissal was filed. I note that the filing of the claim occurred after the applicant was sent correspondence requiring her to attend a meeting regarding the matters for which she was dismissed. Because of this, it is unsurprising that the respondent concluded the process in a timely way, in accordance with usual procedures. The letter requiring Ms Rudder to attend the final interview had been issued before the application was filed. The only delay that occurred was due to the applicant's unavailability. I accept that the respondent acted appropriately in the circumstances, given the severity of the allegations against the applicant at that time. 27 I cannot agree with the assessment by the Association that Ms Rudder's first warning was inappropriate, as the refusal to obey a reasonable direction by a supervisor and a refusal to acknowledge the authority at an even higher level is a serious wrong-doing. I find that the warning was appropriate. It was responsive to Ms Rudder's admissions made in her contemporaneous report. 28 I am satisfied that Ms Rudder's complaint against Ms March was unsubstantiated. The tone of the complaint is not only discourteous but also offensive. Ms March's actions were consistent with her supervisory responsibilities as Director of Operations Training and Services at BDAC. 29 In regard to the issue of insubordinate behaviour discussed at the second interview on 24 May, I am satisfied that Ms Rudder did speak to Ms Schmidt in the manner described. Because this incident occurred in the period during which she was being monitored, it is open to the respondent to consider the incident as being more serious than the first, in that Ms Rudder had been warned specifically regarding the need to respond appropriately to the Registered Nurse. 30 In regard to the issue of dereliction of duty, I am satisfied that Ms Rudder was at fault. The evidence suggests that her intention was to ensure that the resident's meal was given or at least supervised by a nurse, because she had asked the kitchen staff to put a meal aside for the resident in question. However, she did not write the breakfast incident in the diary or, if she believed that the Nurse in charge at breakfast time was responsible for writing the incident in the diary, then Ms Rudder should have left it to the Nurse to maintain responsibility for any instructions about the lunchtime meal. Ms Rudder should not have taken it upon herself to determine how the resident should be attended.

31 The two issues of intimidation and wilful misconduct discussed at the third meeting both arose from a single incident, in which Ms Rudder is said to have made certain statements which amounted to threats against members of the respondent's management team. 32 On 17 August, Eddie Morris, an AIN and the son of the Chief Executive Officer of BDAC, completed a statutory declaration stating that it was he who said the things about the heroin and the dogs, but that the stolen goods were not discussed in the same conversation. His affidavit (made when he was seventeen years old) is non-specific in terms of identifying particulars, referring only to "that conversation". It may be that Mr Eddie Morris made similar threats during a separate conversation to those alleged to have been made by Ms Rudder. 33 In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Sandra Gay) and Department of Corrective Services [2006] NSWIRComm 147, the Full Bench said of an employee who was dismissed for not submitting to a drug test in accordance with the Department's policy, at [66]: Nor was the challenge to the target testing being required in accordance with the policy met. While neither the statutory scheme nor the policy requires that an employee be given an opportunity to 'confront' their accusers per se, if the fairness of a decision to dismiss is challenged in proceedings such as this, by calling into question that there was 'verified intelligence or compelling circumstantial evidence indicating that the employee may be affected by alcohol whilst on duty or engaged in the misuse of drugs', that challenge must be met. (For example, the question may arise as to whether the intelligence was 'verified'.) 34 When the respondent in the present proceedings became aware that Mr Eddie Morris claimed to have made the statement in question, the challenge should have been met by the respondent calling as witnesses any or all of those who claimed that Ms Rudder made the statement. None of the three people whose made the allegations against Ms Rudder were called to give evidence; nor was Mr Eddie Morris called to have his statement challenged. On the other hand, Ms Lentz, Director of Care at BDAC, provided notes of a conversation between herself and Mr Eddie Morris on 10 August, when Mr Morris told Ms Lentz that he heard Ms Rudder threatening to put heroin on Ms Schmidt's car. At a second meeting later that day, at which Judy Stewart was also present, Ms Lentz's notes show that Mr Morris claimed it was he who said he would put heroin in Ms Schmidt's car, not Judy Stewart. In other words, Mr Eddie Morris' statement was inconsistent with the original reports that the threats were made by Ms Rudder. 35 In all, Mr Eddie Morris' statements changed so often that they cannot be believed. On the evidence, he was a young person who appears to say whatever suits the person or people he is with at the time. 36 The failure to call Ms Schmidt as a witness is significant. Whilst she is no longer employed at BDAC, Ms March gave evidence that Ms Schmidt could probably have been contactable. Ms Eather, an AIN at BDAC, gave evidence that Ms Schmidt had said, in February 2005, that she was working on getting rid of Ms Rudder. Ms Schmidt was then involved in several of the complaints against Ms Rudder that led to the meetings, and ultimately, to her dismissal. A number of documents filed by the respondent were not received in evidence because of Ms Schmidt's absence. 37 It falls to me to give careful consideration to the evidence that does not involve Ms Schmidt directly. 38 Leaving aside any conduct regarding Ms Schmidt, an analysis of the events that followed shows a distinctive pattern of behaviour. 39 Ms Rudder ignored the direction from Ms March and spoke loudly and aggressively to her. Her further actions, during the period when she knew that her conduct would be monitored, included: · Ms Rudder filed a Discrimination or Harassment Complaint Form against Virginia Alderton, the Cleaning Supervisor, after the report of the incident on 30 March. · She filed a Discrimination or Harassment Complaint Form against Val March over the same incident. · The cook reported that a resident had not been fed because Ms Rudder had asked for her meal to be set aside. Ms Rudder told two other AINs not to feed the resident. · Ms Rudder admitted smoking in an unauthorised area on an unscheduled break. She said others had smoked in the same area, but offered no defence for the unscheduled break. · At the meeting on 24 May, Ms Rudder tabled a statutory declaration from Ms Eather, having withheld that document for over three months. · Complaints were received from Ms Brockman and Ms Davies regarding statements alleged to have been made by Ms Rudder on 21 May, involving criminal acts intended to take place to cause trouble for a number of members of the management team of BDAC. 40 Ms Lentz gave evidence that the reports by Ms Brockman and Ms Davies were taken into account as part of the investigation into Ms Rudder's conduct. She had also received a report from Ms March and spoken with Ms Alderton regarding the first incident, and to Ms Annette Dunn, Ms Rhonda Harris, Ms Kayla Shanney and Ms Judy Stewart as part of other investigations. 41 At all times Ms Rudder has denied saying that she was planning any criminal activities or any retaliation by herself or members of her family. 42 At the meeting on 4 April, Ms Lentz said: We accept that Deb was not the one who left the bathroom in a mess. But it was the tone in which she responded to Mrs March that was the issue.

Despite this clarification, and despite the further clarification in the letter that followed the meeting, Ms Rudder continued to complain that she received no apology for having been accused of the misconduct. In my experience, it would be extraordinary for an apology to be given in such circumstances. Rather, it is appropriate to outline in the initial letter to an employee the range of issues to be discussed and to clarify any outcomes in following correspondence, as was done. 43 Ms Rudder also stated that Ms Stewart was accused of the same comments on 21 May but was not suspended from work. The evidence showed that Ms Stewart was subject to a similar disciplinary process as Ms Rudder. Without the same history, it was appropriate that she was not suspended from work, if that was the case. Also, without the same history, it was appropriate that Ms Stewart received a lesser penalty than Ms Rudder. 44 I have reason to doubt the veracity of Ms Eather's evidence. Ms Eather was asked to complete the statutory declaration, and gave it to Ms Rudder rather than to any of her supervisors. If she had any real concern about the words alleged to have been spoken by Ms Schmidt, she would have reported the conversation to Ms Lentz, Ms March, or another of the registered nurses. Ms Eather also acknowledged that Ms Schmidt would not have the authority to dismiss Ms Rudder. Notwithstanding the stated aim to have Ms Rudder "out the door", I do not accept that Ms Schmidt had the authority to dismiss Ms Rudder, nor did she persuade those in authority to do so. I cannot accept that Ms Schmidt somehow contrived to have Ms Rudder take an unscheduled break, smoke in an unauthorised area and admit as much. Nor can I accept that Ms Brookman or Ms Davies would have invented or exaggerated the reports provided to the management team. Ms Schmidt did not convince Ms Lentz or Ms March to believe her rather than believing Ms Rudder, as they came to that decision, in my view, on their own knowledge and observations and evidence which included reports from people other than Ms Schmidt. 45 It follows that any intention of Ms Schmidt or action by her has not unduly influenced the outcome of the management team's deliberations regarding Ms Rudder. I am satisfied that the management team would have reached the same decision, without any involvement by Ms Schmidt. 46 The complaint by Ms Brookman against Ms Rudder was provided in a timely way. Ms Brookman was "very very upset" when she came into a meeting with Ms Lentz, Ms March and Mr Gary Morris. Ms Brookman resigned from her position with BDAC the day she made the complaint and has not been able to be contacted by Ms Lentz on behalf of BDAC since that time. I find no reason to doubt that the management of BDAC had cause to accept the seriousness of Ms Brookman's complaint. 47 Ms Rudder stated twice in her written evidence that it was her belief that BDAC failed Accreditation with the Department of Health and Ageing in late 2005. On the evidence provided, this was not true. No basis for Ms Rudder's statement was presented. I can only conclude that she made the statement in an attempt to disparage the organisation and/or its management team. 48 After the termination of her employment, Ms Rudder said that she sat with Mr Eddie Morris while he completed the statutory declaration in which he said that he had made the comments earlier attributed to Ms Rudder. She then travelled with him to the Post Office to have his signature witnessed by a Justice of the Peace. Because of his relative youth and my earlier comments about him, and because he was not even said to be a part of the original conversation, it would appear that Mr Morris may have felt some duress to complete the statutory declaration as he did. While it was appropriate for Ms Rudder to seek witness statements from a range of people to assist her in her claim for unfair dismissal, a statutory declaration obtained in such circumstances does not assist the Commission. 49 I find there is a pattern of behaviour by Ms Rudder that is consistent with Ms Lentz accepting Ms Schmidt's report that Ms Rudder had made threats against a number of members of management, including her intention to engage in certain acts which have been correctly described during these proceedings as criminal activity. Speaking rudely to management, lodging formal complaints about supervisors who reported her behaviour and who carried out normal investigatory and/or disciplinary processes, telling other staff not to feed a patient and taking an unscheduled break and smoking in an unauthorised area may not in themselves appear to be serious concerns. However, when such conduct occurs in a short space of time, when a written complaint against the supervising Nurse is withheld for three months, and when such conduct continued when the applicant knew her behaviour was being monitored, a distinct pattern of insubordination and misconduct emerges, providing a background to what followed. 50 It is unsurprising that Ms Lentz, Ms March and Mr Gary Morris believed the reports they received about Ms Rudder making a series of threats. The threats represented an escalation of the same type of behaviour they had been experiencing over the previous months. 51 Mr Gary Morris gave evidence that as Chief Executive Officer of BDAC he was responsible for the decision to terminate the applicant's employment. He took into account Ms Rudder's work relationship and history in coming to the decision to terminate her employment. He said that if she had followed the direction of the Nurse on 30 March, "we would not be here". He took into account the incident reports and all documents made available to him at the time of the relevant meetings, including what Ms Rudder had said in her own defence, and Ms Lentz's reports of the investigations. He believed that the threats had been made by the applicant and were sufficiently serious to warrant summary dismissal. 52 Ms Lentz also gave evidence that she had taken the threats seriously. Ms Lentz took the allegations so seriously that she increased her personal security measures at her home. In January 2006, Ms Lentz resigned from her position with BDAC because of the stress arising from disciplinary interviews and threats over the preceding twelve month period. Conclusion 53 The ultimate findings of BDAC were that, on the balance of probabilities, Ms Rudder had been insubordinate to senior management, had been derelict in the performance of her duty, had sought to intimidate other members of staff and had displayed wilful misconduct. 54 The question which arises, therefore, is whether the respondent had sufficient information to satisfy the standards for dismissal for wilful misconduct. 55 The disciplinary process commenced with an incident when Ms Rudder failed to take directions from management and concluded after she was alleged to have made threats against a number of members of the management team, namely, the Chief Executive Officer, the Director of Operations Training and Services and the Director of Care. The issues that arose between these two incidents may not be sufficient to warrant dismissal, but provide a background to the final incident. That incident was a conversation in which Ms Rudder allegedly talked to Ms Stewart and Ms Brookman about threatened actions against Ms Schmidt, Ms Lentz and Mr Gary Morris by Ms Rudder and other members of her family. 56 Ms Rudder denied all allegations in regard to the conversation. Mr Gary Morris, Ms March and Ms Lentz did not accept her denial, in light of the reports given to them about the conversation by Ms Brookman, Ms Davies and Ms Schmidt. I am satisfied that it was reasonable for them to decide to accept the reports as truthful, regardless of Ms Rudder's denial. The threats were so serious as to overshadow all else that had preceded them. The evidence available to them at the time was sufficient to enable them to make a positive finding that the applicant was guilty of the alleged misconduct. 57 Mr Dawson submitted that the reference to wilful misconduct in the letter of termination referred to not feeding the resident. I believe that it refers to the threats issued against a number of employees of BDAC. Making these threats amounts to conduct that is both serious and wilful. The threats made are such as to establish a repudiation of the employment contract. 58 The evidence before me does not include all of the material available to the management team who were required to make the decision about Ms Rudder's employment. It does, on the other hand, include the testimony of the three people who were charged with making the decision. On the basis of their evidence, together with that of the other witnesses and the documentary material in evidence, even allowing for the absence of the witnesses to that conversation, I am satisfied on the civil standard that the applicant was guilty of the misconduct alleged. 59 As to procedural matters, Mr Wurf referred to the well settled law that deficiencies in the process are not necessarily fatal to a decision to summarily dismiss an employee: Antanakopoulos v State Bank of New South Wales 91 IR 385. I am satisfied that the processes relating to investigations, interviews and the decision to terminate the applicant's employment were handled satisfactorily. As to the involvement of Ms March and Ms Lentz, I am satisfied that they acted in accordance with their professional obligations in this matter. I am further satisfied that the respondent carried out a careful investigation, using the standards applying to a fair and reasonable employer as set out in Shop, Distributive & Allied Employees' Association, NSW Branch v Jewell Food Stores. 60 As is required, the applicant was given specific notice of the matters to be discussed at each of the meetings; she was given an opportunity to respond, she brought a Union representative with her to meetings; she was told who had made the allegations against her. All of these are in accordance with the principles established by the Commission and contemplated by s88: Busways v Johnson (1994) 55 IR 255. 61 I have taken into account the absence of Ms Schmidt as a witness. I accept that Ms Brookman was not able to be located. I also note that Ms Stewart, a member of Ms Rudder's family and a witness to the critical incident, was not called to give evidence. As to the submission made on behalf of the applicant that Ms Schmidt's testimony would not have assisted the respondent's case, I have not relied on any allegations or complaints raised by Ms Schmidt. 62 Ms March was aware that Ms Schmidt had previously stated that she was scared of Ms Rudder and her family. It was not inappropriate that Ms March took this information into account, along with other relevant observations and information that became available during an investigation. Ms March is an experienced and educated person who is entitled to rely on her observations and experience in assessing the veracity of one employee over another. 63 It was also appropriate that Ms Rudder's good record of over four years work, unchallenged up to the time of the first incident recorded in the letter of termination, are taken into account, as well as the effects of the dismissal on the applicant's personal and family life: Electricity Commission of New South Wales t/as Pacific Power v Nieass and Others (1995) 81 IR 46. I am satisfied that the gravity of the applicant's conduct outweighs such other considerations. 64 Having considered all of the evidence before me and the submissions of the parties, including the principles contained in the decisions cited by Mr Dawson and Mr Wurf, I find the respondent has proved the misconduct for which the applicant was dismissed. 65 I find that the termination of the applicant's employment was not harsh, unreasonable or unjust. I dismiss the application.

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