Pecotic v. A V Jennings Holdings Limited [2007] NSWIRComm 1001

Anti Discrimination Act, 1977 Crimes Act, 1900 LEGISLATION CITED: Industrial Relations Act, 1991 Industrial Relations Act 1996 Occupational Health and Safety Act, 2000 Workers Compensation Act, 1987

Antonakopoulos v. State Bank of New South Wales (1999) 91 IR 385 Bankstown City Council v. Paris (1999) 93 IR 209 Berger Paints Case (1984) 9 IR 273 Blyth Chemicals Limited v. Bushnell (1933) 49 CLR 66 Brown v. Coca-Cola Amatil (Australia) Pty Limited (2002) 123 IR 33 Browne v. Dunn (1893) 6 R 67 Burge v. BHP Steel Pty Limited (2001) 105 IR 325 Busways v. Johnson (1994) 55 IR 255 Byrne and Frew v. Australian Airlines Limited (1995) 185 CLR 410 CCH Australia Limited v. Bowen (1998) 79 IR 206 CGEA Transport Limited v. Transport Workers Union of Australia (2001) 110 IR 211 Clyne v. New South Wales Bar Association (1960) 104 CLR 186 Commissioner of Police v. Police Association of New South Wales [2005] NSWIRComm 132 D and R Commercial Pty Limited v. Flood (2002) 113 IR 344 Devey v. Enacon Parking Pty Limited - unreported Elizabeth Drive Nursing Home Case - unreported Fletcher v. Commissioner of Taxation (1988) 84 ALR 295 Henderson v. Rural Lands Protection Board (1997) 74 IR 142 Hollingsworth v. Commissioner of Police (No.2) (1999) 88 IR 282 Hospital Employees' Federation of Australia v. Western Hospital (1991) 4 VIR 309 Humphries v. Cootamundra Ex-Services and Citizens Memorial Club Limited (2001) 121 IR 122 Little v. Commissioner of Police (No.2) (2002) 112 IR 212 Re Loty and Holloway and the Australian Workers Union (1971) AR 95 CASES CITED: Macleay Valley Health Service v. Jeffree (1994) 58 IR 187 Moran v. Abbott Australasia Pty Limited (1994) 54 IR 288 North v. Television Corporation Limited (1976) 11 ALR 599 Nowra Bomaderry Leagues Club v. Federated Liquor and Allied Employees' Union of Australia (1986) 15 IR 463 Oldfield v. Keogh (1941) 41 SR(NSW) 106 Outboard World Pty Limited v. Muir (1993) 51 IR 167 Parker v. Capital Painters Pty Limited (1996) 68 IR 100 Parramatta City Council v. Health and Building Surveyors Association of New South Wales (1988) 26 IR 398 Pacific Power v. Crump (1993) 48 IR 296 Perkins v. Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 Public Service Officers Case (1979) AR 375 Public Service Professional Officers Association of New South Wales v. Forestry Commission of New South Wales (1990) 39 IR 46 Reece v. Trye (1846) 9 Beav. 316 Riteway Express Dispute Case [2002] NSWIRComm 1009 Roupell v. Haws (1863) 3 F and F 784 State of New South Wales v. Seedsman - unreported Sukkar v. Video Intercom Pty Limited [2006] NSWIRComm 1088 Tasovac v. New South Wales Police Service (1998) 83 IR 410 Todd v. Mainfreight Distribution Pty Limited - unreported Tringali v. Stewardson, Stubbs and Collett Pty Limited (1966) 1 NSWR 354 Ueckert v. Australian Water Technologies Pty Limited [2000] NSWIRComm 123 Waind v. Hill and National Employers' Mutual General Association Limited (1978) 1 NSWLR 372 Walsh v. Sangra Holdings Pty Limited [2006] NSWIRComm 1094 Western Suburbs District Ambulance Service v. Tipping (1957) AR 273

HEARING DATES: 01/06/2006, 04/08/2006, 23/09/2006, 24/08/2006, 25/08/2006, 01/09/2006, 07/09/2006, 25/10/2006, 26/10/2006, 27/10/2006, 14/12/2006, 21/02/2007, 29/03/2007, 27/04/2007

APPLICANT Robert Dean LEGAL REPRESENTATIVES:

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Elma Mary Pecotic and A V Jennings Holdings Limited

Application under S.84 of the Industrial Relations Act, 1996

1 Mrs E M Pecotic was employed as service manager with A V Jennings Holdings Limited. She commenced employment on Friday, 22 March, 2002 and her services were terminated on Monday, 31 May, 2004 for misconduct - essentially alleged bullying in the workplace, which she denies. A letter dated Monday, 31 May, 2004 which she received from A V Jennings outlines the reason for her dismissal, viz:

"...your conduct including the circulation of a damaging and distressing rumour that Ms Dianne Buhagiar (an employee) made plausible threats to physically harm Ms Belinda Simonetta-Burrows (another employee)..."

She lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act on Thursday, 17 June, 2004. In her Part 6 application Mrs Pecotic has claimed that the termination of her services was unfair.

2 Mrs Pecotic's Part 6 application has followed a very tortuous path to conclusion and it concerns me at the delays in advancing this matter. A range of issues has disturbed the progress of the hearing. In my opinion, many issues that have been ventilated in the proceedings did not really serve to advance the matter in any constructive way. Much of this unnecessary material was no more than smoke and mirrors which tended to cloud the real issues in dispute. And, indeed, I regard the threshold issues which had to be addressed in the course of these proceedings as far out of proportion to what I have found ultimately to be a relatively straightforward issue at the heart of this Part 6 application - essentially a disagreement involving three employees.

3 This is clearly a case where from the outset, in the interests of everybody - and certainly Mrs Pecotic - the matter should have been settled by conciliation, especially in view of the fact that any remedy which Mrs Pecotic could ultimately receive from an arbitration of her Part 6 application was bound to come nowhere near the legal costs she has actually incurred, and the inconvenience to her, to achieve it. But all attempts at conciliation have fallen on stony ground.

4 Initially the matter was allocated to O'Neill C by Registry staff who set it down on Tuesday, 10 August, 2004 for a conciliation and directions hearing. Those proceedings were adjourned for preliminary proceedings on Wednesday, 13 October, 2004 which was vacated and the conciliation of the matter actually took place on Wednesday, 20 October, 2004. Conciliation failed to settle the matter. It was programmed for arbitration on Monday, 7 February, 2005, Tuesday, 8 February, 2005 and Wednesday, 9 February, 2005. But that did not proceed. The file was subsequently re-allocated to me on Tuesday, 29 March, 2005.

5 The file contains a notation by O'Neill C dated Monday, 21 March, 2005 that an application had been made under S.173 (on behalf of Mrs Pecotic) for the arbitration to be convened before another member of the Commission, viz:

"(1) The member of the Commission who attempts conciliation of an industrial dispute or other matter is not to exercise arbitration powers in relation to the dispute or matter if a party to the arbitration proceedings objects and requests that a different member of the Commission exercise arbitration powers.

(2) A member of the Commission is not, for the purposes of this section, taken to have attempted conciliation merely because:

(a) the member attempted conciliation after having begun to exercise arbitration powers ; or

(b) the member arranged or gave directions for a conference of the parties involved in the industrial dispute or other matter, or their representatives, to be presided over by the member, but the conference did not take place or was not presided over by the member, or

(c) the member arranged or gave directions for those parties or their representatives to confer among themselves at a conference at which the member was not present."

6 There was, in fact, a notice of motion filed on Tuesday, 15 March, 2005 by Mr Dean, who represented Mrs Pecotic in the proceedings, that sought, among other things, that O'Neill C:

"...recuse himself from further taking part in the proceedings..."

And citing the decision of the Full Bench of the Commission (Walton J - Vice President, Sams DP and Tabbaa C) in Humphries v. Cootamundra Ex-Services and Citizens Memorial Club Limited (2001) 121 IR 122 as his authority for that application. He had also raised in issue apprehended bias on the part of O'Neill C.

7 Certain interlocutory orders had, in fact, been made by O'Neill C on Tuesday, 7 February, 2005, essentially for the production of documents. Mr Dean had in his notice of motion sought that O'Neill C supply copies of all correspondence, e-mails and attachments relevant to the interlocutory orders made, asserting that O'Neill C:

"...was deceived and placed his signature and seal on the orders in the mistaken belief that the orders reflected the orders made on Tuesday, 7 February, 2005 (and)...was mislead by the representative of the respondent in the creation of such orders..."

Mr Dean sought access to certain material on the file from O'Neill C. That request had been refused by O'Neill C and an appeal had been lodged against that decision by Mr Dean on behalf of Mrs Pecotic - subsequently resolved.

8 The conduct of the proceedings to that time suggested to me that the position had, in fact, been reached where S.173 was no longer available. The time for making an application under S.173 actually expires when a matter has entered the arbitration phase. The words in S.173(2)(a) which I have highlighted earlier in this decision - ...after having begun to exercise arbitration powers..." - have significance in that respect. As I indicated in my unreported decision of Wednesday, 20 February, 2002 in the Riteway Express Dispute Case [Matter No. 6583 of 2001] directions given to parties and a series of vacated hearing dates had moved that matter well into arbitration. McKenna C took a similar approach in Brown v. Coca-Cola Amatil (Australia) Pty Limited (2002) 123 IR 33 at pp.44 and 45. As indeed did the Full Bench of the Commission (Wright J - President, Grayson DP and Ritchie C) in its unreported ex tempore decision of Tuesday, 20 April, 2005 in Commissioner of Police v. Police Association of New South Wales [Matter No.IRC 1580 of 2005].

9 In this particular case, a decision had been made by O'Neill C on a procedural matter (which at that time had formed the basis of unresolved appeal proceedings). I would have thought therefore that Mrs Pecotic's Part 6 application had reached well beyond the conciliation phase and be inside the arbitral phase. The appeal itself confirmed that fact. As such, in my opinion, an application under S.173 would no longer be available to a party.

10 Nevertheless, the matter was reallocated to me. I set it down for a mention for programming purposes on Thursday, 7 April, 2005. A V Jennings did not appear in the proceedings but Mr Dean foreshadowed that he would be seeking from me the material which had been refused him by O'Neill C. That material was not, in fact, before me at all. The questions concerning O'Neill C's refusal to give Mr Dean access to the material in question was something which Mr Dean should pursue through the appeal process which he had already initiated.

11 When I receive a matter by way of re-allocation for arbitration by virtue of S.173 (or where there is a perception of apprehended bias) I do not believe that what has gone before me in the file is my concern: indeed, it would be improper for me to look into the file beyond what is strictly required for my arbitration of the issues in dispute, ie the Part 6 application itself and the formal response to it by A V Jennings. It is important to appreciate that when a matter is reallocated to another member of the Commission for arbitration following a S.173 notification, the issue is looked at afresh. It would taint such arbitrated proceedings if matters from earlier proceedings were revived and readdressed - especially when there was argument concerning them, as was the case here.

12 In the absence of A V Jennings in the mention on Thursday, 7 April, 2005, I adjourned the proceedings for a further mention on Wednesday, 20 April, 2005. The matter was adjourned for an interlocutory hearing on procedural matters, ie the directions concerning subpoenaed material, on Wednesday, 27 July, 2005. A V Jennings' representative in the proceedings at that time, had sought access to records on Mrs Pecotic's personal computer. That was opposed by Mr Dean. The hard drive from Mrs Pecotic's computer has been produced to the Registry in response to summons and was being held by it but an argument remained over what access was permitted to that computer by A V Jennings. Mr Dean had sought that access to that computer be restricted to certain files and had claimed legal professional privilege to some of those files. Jenning's representative at that time had sought a "global image" which would reveal all files on the computer, including those that had been deleted. My decision was to permit that process to be undertaken.

13 Mr Dean also sought to amend Mrs Pecotic's Part 6 application to take up other remedies he believed were possibly available to her. The amendments concerned a claim that she may properly be regarded as a worker injured in the course of her employment within the terms of Part 7, Protection of Injured Employees [Ss.91 to 100] of Chapter 2, Employment, a claim relating to issues of occupational health and safety and an argument that Mrs Pecotic's dismissal actually involved her being victimised for making a complaint about a workplace matter she considered unsafe [S.210(1)(j)]. Ultimately, whilst I informed Mr Dean that he may raise these issues in the proceedings as grounds for a claim that Mrs Pecotic had been unfairly dismissed, at this late stage in the proceedings, I was not prepared to permit him to amend Mrs Pecotic's Part 6 application. Indeed, I believed that amendment to the Part 6 application was, in all the circumstances, unnecessary and irrelevant to the issues in dispute.

14 Mrs Pecotic's Part 6 application was again adjourned for further mention and programming on Thursday, 22 September, 2005, Friday, 4 November, 2005, Friday, 9 December, 2005 and Thursday, 13 April, 2006. It has been estimated that in excess of five days was required for this hearing and by the time that this matter was readied for hearing the new stricter regime flowing from Practice Direction No.17 had been introduced and my diary had been committed by Registry staff for the remainder of 2006. I therefore referred the matter to Registry staff for them to allocate days for the hearing and they did so.

15 The hearing of this matter commenced on Thursday, 1 June, 2006 for some preliminary arguments. The hearing then continued with evidence being taken on Friday, 4 August, 2006, Wednesday, 23 August, 2006, Thursday, 24 August, 2006, Friday, 25 August, 2006, Friday, 1 September, 2006, Thursday, 7 September, 2006, Wednesday, 25 October, 2006, Thursday, 26 October, 2006, Friday, 27 October, 2006, Wednesday, 13 December, 2006 and Thursday, 14 December, 2006. Final submissions were to be given on Wednesday, 21 February, 2007. The delay for the submissions was to permit the parties time to access the transcript and prepare written submissions to complement what they intended to provide orally to me on Wednesday, 21 February, 2007. However, it became necessary (for reasons I will outline shortly in this decision) to vacate the hearing on Wednesday, 21 February, 2007 and set the hearing for final oral submissions on Thursday, 29 March, 2007 and Friday, 27 April, 2007.

16 In the hearing Mr Dean continued to represent Mrs Pecotic and A V Jennings was now represented by Mr Cross. Annexed to this decision is a list of witnesses called to give evidence in the hearing by either Mr Dean or Mr Cross. There is a disturbing conflict in the evidence adduced from different witnesses in this hearing and the hearing turns essentially on the credibility of those witnesses, requiring me to set out that evidence in considerable detail in this decision.

"The Commission must not determine an applicant's claim by making an order under S.89 if: (i) another Act or a statutory instrument provides for redress to the person in relation to the dismissal, and (ii) the person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument."

18 On Friday, 4 August, 2006 Mrs Pecotic filed a S.90 undertaking indicating that she will not:

"proceed for redress under, or seek an inquiry under, the New South Wales Anti-Discrimination Act, 1977 and the Workplace Relations Act (Commonwealth) relating to my dismissal or threatened dismissal on Monday, 31 May, 2004..."

Mrs Pecotic's S.90 undertaking was therefore not expressed in general terms but was confined to one piece of State legislation and one Federal Act alone. Mr Cross was not prepared to accept Mrs Pecotic's S.90 undertaking in those terms.

19 Strictly speaking, as I read S.90, Mrs Pecotic is obliged to complete the undertaking prescribed by S.90 if, and only if, there is another statutory remedy available to her over her dismissal; it is really meaningless where no such other remedy exists. There is really no reason to provide a more comprehensive S.90 undertaking if there are actually no other statutory remedies available to her. In such a situation, there should be no reason for the Part 6 applicant to complete the undertaking under S.90.

20 Furthermore, S.90 only presents a barrier if the litigation being contemplated elsewhere concerns the actual dismissal and not, say, the terms of employment. The words that govern S.90 are "...in relation to the dismissal..." [Tasovac v. New South Wales Police Service (1998) 84 IR 410 at p.413]. It may be that the more restricted undertaking Mrs Pecotic gave would suffice to meet her obligations under S.90. But, equally, there would be no harm to her in providing a more comprehensive S.90 undertaking either. In any event, in the proceedings on Friday, 4 August, 2006 Mrs Pecotic was prepared to amend her S.90 undertaking in more general and comprehensive terms which satisfied Mr Cross.

21 The first issue for consideration in the hearing on Thursday, 1 June, 2006 concerned whether or not some subpoenaed material should be provided. What A V Jennings had been seeking under summons, and what Mrs Pecotic had to date failed to provide, was:

(i) all bank statements held in Mrs Pecotic's name, including any joint accounts, from early in 2002 to the middle of 2004;

(ii) all Mrs Pecotic's tax returns for the financial year ending 2002, 2003 and 2004;

(iii) all tax returns for a business of which Mrs Pecotic is a partner (Zelel Enterprises) for the year ending 2002, 2003 and 2004.

22 The bank statements have been provided in evidence but Mr Dean claims that Mrs Pecotic has not completed tax returns for herself or Zelel Enterprises - a submission I find surprising in view of the obligations she has to furnish tax returns annually. But if that material does not exist, it is not available to be produced in response to the A V Jennings subpoena. The obligation on a litigant is only to produce such material that is actually in existence. In those circumstances, Mrs Pecotic, through Mr Dean, had undertaken to provide by Wednesday, 28 June, 2006 group certificates and other relevant documents for her and Zelel Enterprises - tax invoices, profit and loss statements, etc.

Restrictions on the Evidence in Reply of Ms Simonetta-Beddows

23 The second issue of concern ventilated in the hearing on Thursday, 1 June, 2006 and later in more detail on Friday, 1 September, 2006 centred on the written statement of Ms Simonetta-Beddows, whom Mr Dean called to give evidence in the hearing. That written statement was provided in reply in response to the material already adduced from A V Jennings and Mr Cross asserted that it contained material which was fresh evidence. He is correct in that assertion, in my opinion. There is a substantial amount of material contained in Ms Simonetta-Beddows' statement which is fresh material (and which, in any event, may also not be particularly relevant to the issue before me - whether or not Mrs Pecotic's dismissal was unfair). In that respect I indicated in the hearing on Thursday, 1 June, 2006 that, if Ms Simonetta-Beddows' written statement was provided in response to the evidence adduced on behalf of A V Jennings, I would not be prepared to accept into evidence anything that was not properly responsive to the evidence already led on behalf of A V Jennings.

24 That is the position I took in my unreported decision of Wednesday, 7 June, 2006 in Sukkar v. Video Intercom Pty Limited [Matter No.IRC 6200 of 2005 at pp.4 and 5], viz:

"...(The applicant) had provided an affidavit as his response to the evidence adduced by (the respondent). It was filed and served on Thursday, 27 April, 2006 - one day beyond the deadline set... (The respondent) did not take issue with the fact that the material was late: one day is not an issue of any concern, in my opinion. But (the respondent) did challenge the contents of much of that affidavit as going beyond what was strictly a response to the evidence adduced for (the respondent). In the circumstances, I confined his affidavit only to what could properly be regarded as a response to the evidence of (the respondent)..."

That is the only fair way to proceed in this hearing in the interests of both parties. The other alternative, to adjourn the proceedings to permit A V Jennings to respond to the fresh material contained in Ms Simonetta-Beddows' written statement, was not an attractive option for either Mrs Pecotic or A V Jennings, in my view. Or me for that matter. Neither Mr Dean nor Mr Cross advocated that course of action.

25 In the hearing on Friday, 1 September, 2006 Mr Cross renewed his objection to a substantial amount of Ms Simonetta-Beddows' written statement being adduced into evidence. Mr Dean argued that I should admit all of the contents of the written statement into evidence, asserting that it was, in fact, responsive to the evidence adduced by A V Jennings. I disagree. In the light of the dispute between Mr Cross and Mr Dean on this issue, it became necessary for me to determine what parts of Ms Simonetta-Beddows' written statement were properly responsive to the evidence led for and on behalf of A V Jennings. A cursory examination of Ms Simonetta-Beddows' written statement confirms that much of it was fresh evidence. Moreover, the relevance of much of that evidentiary material is doubtful, in my opinion. Consequently, a substantial amount of Ms Simonetta-Beddows' written statement will not be admitted into evidence.

26 It was, of course, always open to Mr Dean to call Ms Simonetta-Beddows in chief and for her witness statement to be admitted in its entirety, subject to its relevance, which would permit A V Jennings to respond properly to that evidentiary material. I would have thought that to have been the preferred course. But since Ms Simonetta-Beddows' witness statement was provided after the evidence adduced by A V Jennings it must follow that the evidence of Ms Simonetta-Beddows is restricted to only what is responsive to the evidentiary material advanced on behalf A V Jennings.

27 Since there was no agreement reached between Mr Dean and Mr Cross over the parts of Ms Simonetta-Beddows' written statement that would be excluded on the basis that I had decided, it became necessary for me to decide what part of her statement to exclude. I did so in the proceedings on Friday, 1 September, 2006, limiting much of what had been contained in Ms Simonetta-Beddows' written statement.

28 A third problem arose from the evidence of Mrs Buhagiar. On Thursday, 27 September, 2006 Mrs Buhagiar was called by Mr Cross to give evidence. I admitted her written statement into evidence but Mrs Buhagiar became extremely distressed during subsequent cross-examination by Mr Dean. I found it necessary to adjourn the proceedings frequently to permit Mrs Buhagiar to compose herself. Mrs Buhagiar consistently informed me that she was anxious to proceed - "...to get it over..." - but, ultimately, because of her distress, it was not possible to continue with her cross-examination on Thursday, 27 September, 2006. Moreover, because of her distressed state, the point had been reached where I did not believe that I may depend upon what she said in her evidence. I adjourned the proceedings and called for the assistance of a first aid officer for Mrs Buhagiar who was having difficulties breathing and was obviously ill.

29 I then suggested in chambers to Mr Dean and Mr Cross that the parties give some further consideration as to whether any further evidence was actually required from Mrs Buhagiar. Mr Dean indicated that he had still substantial cross-examination of her, essentially over issues going to her credibility as a witness, ie I would anticipate somewhat invasive cross-examination. Mr Dean was not prepared to forego any of his cross-examination of Mrs Buhagiar. That is his right. His position is clear: because he had not completed his cross-examination of Mrs Buhagiar, he opposes any of Mrs Buhagiar's evidence being admitted in this hearing. He nevertheless indicated that he would not oppose Mr Cross withdrawing Mrs Buhagiar's witness statement from evidence if he chose to do so. Mr Cross, naturally enough, was not prepared to forego Mrs Buhagiar's evidence.

30 A summons to Mrs Buhagiar was issued on behalf of A V Jennings to resume her evidence on Thursday, 14 December, 2006. Mr Cross nevertheless made an application that I accept Mrs Buhagiar's written statement into evidence but that I grant leave to excuse her from giving evidence. Mr Cross referred me to Rule 122(3) in that respect, viz:

"Where the attendance of a person is required...the affidavit may be used unless the person attends or is dead or the tribunal grants leave to use it ."

The evidence of Mrs Buhagiar was made not by affidavit but by written statements and Rule 122(3) does not therefore apply. But Rule 179(3), dealing with witness statements, is to similar effect, viz:

"If an intended witness, to whose evidence a statement...relates, does not give evidence, no party may put the statement in evidence at the hearing without leave of the Commission ..."

31 In any event, I declined to grant leave. To do so, in my opinion, would do a considerable disservice to Mr Dean's case on Mrs Pecotic's behalf. The credibility of Mrs Buhagiar is very much under challenge by Mr Dean in this hearing and that would not be something that could effectively be determined on the bald written statement provided by her alone in this hearing. Nevertheless, in view of Mrs Buhagiar's distressed state, Mr Dean's cross-examination of her was abridged and concentrated only on the central issues in dispute. She gave her evidence accompanied by her husband and a friend and with my assistant and the first aid officer present in the hearing.

32 To the extent that Mrs Buhagiar's written statement, which I had already admitted into evidence before problems emerged and before Mr Dean's cross-examination of her had commenced, goes to illustrate the extraordinary level of animosity between Mrs Buhagiar and Mrs Pecotic, it is vital information for me to consider and I still believe that I may rely on much of that written statement, at least to the extent that it expresses Mrs Buhagiar's attitude to Mrs Pecotic. I have therefore referred to comments that Mrs Buhagiar has made in her written statement later in my decision, notwithstanding that, as I saw the situation, it was not really pressed by Mr Cross or pursued by Mr Dean.

33 As I indicated earlier in this decision, it became necessary for me to vacate the hearing of the matter for final submissions on Wednesday, 21 February, 2007 and set the matter down for those submissions on Thursday, 29 March, 2007 (and subsequently Friday, 27 April, 2007). At the commencement of the hearing on Wednesday, 21 February, 2007, Mr Cross submitted that I should adjourn the proceedings and I agreed to do so. His reason for making that submission were essentially on the grounds of natural justice. 34 The fact is that Mr Dean had on Tuesday, 30 January, 2007 provided written submissions - some 20 pages in length - to me and to Mr Cross in support of his argument that Mrs Pecotic's dismissal by A V Jennings was unfair. He did not address the fundamental issue of the remedy Mrs Pecotic would be seeking, which I understood to be primarily reinstatement in employment, however. Mr Cross' written submissions, provided to me and Mr Dean on Wednesday, 14 February, 2007, was 16 pages in length and it did address the question of the appropriate remedy. On Monday, 19 February, 2007 Mr Dean filed his written response to Mr Cross' written submissions but that document was 142 pages long. 35 That is an eccentric procedure. I do not accept that a reply to written submissions of fairly modest proportions would permit such a lengthy document in response. It seems clear to me that Mr Dean has simply held his primary submissions back to inconvenience Mr Cross, giving him only two days to address the issues in that lengthy document. I do not propose to rely on it. It would appear that, although Mr Dean has conceded in written submissions he supplied to me, the onus of proof rests on him to establish the unfairness of Mrs Pecotic's dismissal, he has adopted an approach where, in fact, he is expecting A V Jennings to really advance a case that it has not acted unfairly. 36 Written submissions are provided to assist the parties - and the Commission - in the preparation of their respective cases. They are not designed to provide some tactical advantage by one party over another. And since the process of proceeding with written submissions has created this problem, I rejected any further written submissions and indicated that I proposed to proceed instead only with oral submissions. 37 On Monday, 19 February, 2007 Mr Dean also filed a written response - 43 pages - to material which Mr Cross had provided in the proceedings on Wednesday, 25 October, 2006 concerning the lengthy delays in the proceedings (which Mr Cross attributes primarily to Mr Dean's conduct of the case). Mr Dean disputes the allegation made by Mr Cross that he was responsible for the delays in this matter proceeding, asserting instead that A V Jennings and its representatives in this hearing were primarily responsible for that delay. I was prepared to accept that material and will discuss it later in this decision. But clearly Mr Cross is entitled to more than two days to examine Mr Dean's written submissions, necessitating the vacation of the hearing on Wednesday, 21 February, 2007 and its rescheduling to Thursday, 29 March, 2007. 38 Mr Dean's oral submissions extended for the whole of Thursday, 29 March, 2007. Consequently, it became necessary for a further day to be allocated for Mr Cross' submissions and for Mr Dean to reply - Friday, 27 April, 2007.

39 Those preliminary issues out of the way, I now turn to examine the evidence in this matter. Mrs Pecotic was called to give evidence by Mr Dean. She commenced employment with A V Jennings on Friday, 22 March, 2002 as a settlements officer. In that capacity she co-ordinated the settlement of home contracts and ensured compliance with the terms and conditions of those contracts, checking that all customers receive satisfactory after sales service on new homes. She was promoted to the position of warranty manager on Tuesday, 6 August, 2003 and effective from Saturday, 1 May, 2004 she was appointed as service manager.

40 There is evidence before me to suggest that Mrs Pecotic had for some time performed her duties satisfactorily. The regional manager (Mr Ian McLean) had written a memorandum to her in the following terms:

"...I wanted to take this opportunity to express my gratitude to you for your outstanding response to the needs of the company and the associated workload and responsibilities. You are to be congratulated for the professional and calm way in which you have taken on the role and dealt with the ongoing demands. Your extra hours of work have not gone unnoticed.

We are delighted with your performance and want to send our thanks in a memorable way. Please enjoy a lovely evening with your family at your favourite restaurant and send the bill to me..."

The memorandum is undated but Mrs Pecotic asserted in the written statement which accompanied her evidence that it was given to her in early 2003. She recorded in her written statement that:

"...these comments made me comfortable and that any extra effort I was putting in was being appreciated by my employers, and made me want to do better for the benefit of my employer..."

41 However, Mrs Buhagiar has thrown some doubt on Mrs Pecotic's claims in that respect and she appears to be critical of Mrs Pecotic's work performance in general. She claimed in the written statement that formed the basis of her evidence that:

"...I date stamped all correspondence that went across my desk and I gave it to her and put it in her office and attached relevant information. It was normally about three or four weeks before the mail came back from Mrs Pecotic. Some of the correspondence was lost in her office..."

42 Mrs Pecotic claimed in her evidence that she often worked weekly from 55 hours to 60 hours. She asserted in her written statement:

"...It was not uncommon for me to stay late to work in the office: I would stay as late as 10:30pm on many occasions. It was normal to work until 7.30pm. This was mainly due to understaffing, larger construction area to cover, increased workload (ie more clients complaining) and merging of old systems and creating new ones..."

Mr Mark Bunter, the former construction manager of A V Jennings, who was called to give evidence in the hearing by Mr Cross , confirmed that Mrs Pecotic worked long hours - 8 or 9 hours every day for 5 days a week - often out of hours and that she regularly took work home.

43 Notwithstanding Mrs Pecotic's assertions and Mr Bunter's corroboration to the contrary, Mrs Buhagiar has disputed that Mrs Pecotic worked such long hours. She asserted that Mrs Pecotic frequently worked from 15 to 20 hours, often out of ordinary hours and that she did not know what Mrs Pecotic was doing or where she was at times. Mrs Buhagiar indicated in her written statement that:

".. Mrs Pecotic often sent me an e-mail to say that she was working late or ring the next morning on the mobile to say that she had worked until late the previous night. She made a point of sending e-mails late at night so that people would know that she worked late. She did not send the e-mails to say she arrived late. She actually boasted to me a few times about that... In other words, she sent an e-mail either from work, or from home as the last thing she did before going to bed, to give the impression that she was working very late but she laughed that sometimes she had been out socialising and then would send an e-mail just before she went to bed (at 2.00am in the morning) and that it was clever because it gave people the impression she was working late. Another example she said was how she would have a cup of tea before going to bed and that when she finished her cup of tea she would then send an e-mail. I knew that she was my boss and I didn't tell on her about it. I didn't think it was a very good thing to do but it wasn't my place to say..."

"...It is misleading to say that she was not paid for her additional work time. I believe that she took time in lieu... "

44 It appears that Mrs Pecotic took a somewhat casual and erratic approach to her timekeeping, often turning up at work very late in the mornings - up to 11.00am, according to Mr Bunter. If she worked back, arguably she may only be making good the time that she had not been in the office. And primarily I would expect that her work would involve some contact with members of the public which would not really be easy outside ordinary working hours. Moreover, as far as working back late, often on her own, Mr Bunter recalled in the written statement which formed the basis of his evidence in this hearing that:

"...if it was late, I would ask Mrs Pecotic what she was still doing in the office. I recall that she once said to me that she would prefer to be at the office than at home. On occasion, she would talk about the problems she had at home..."

45 It is suggested that Mrs Pecotic had domestic problems - her husband had been ill for some time and has now left her and returned to live in Croatia, apparently permanently. According to Mrs Buhagiar, Mrs Pecotic also preferred to remain at work than be with her children. It has been suggested that domestic issues were the reason for her frequent work after hours - her wish not to go home. But, in any event, the fact that Mrs Pecotic often worked alone in the office after hours, whilst it was still permitted, was apparently still a cause of concern for A V Jennings on occupational health and safety grounds. That concern was not without some foundation in the light of a break-in after working hours of the A V Jennings premises to which I will refer later in this decision.

46 Matters seem to have come to a head with the departure of Mr Peter Copeman, the warranty manager, and Mrs Pecotic's immediate supervisor until he was retrenched on Friday, 25 September, 2003. Mrs Pecotic recorded in her written statement that:

"...When Mr Copeman was made redundant I took on his workload as well as mine which was already heavy. This was made more difficult because Mrs Simonetta-Beddows...was only there 3 days, sometimes 4 days, and Mrs Buhagiar was taking more and more time off. During the day I handled the clerks' roles and, after hours, did my normal job. It was a constant struggle..."

Mrs Buhagiar claimed in her evidence that Mrs Pecotic complained about the additional work given to her following Mr Copeman's departure and that she was not receiving support she needed from Mr Bunter who had by that time replaced Mr Copeman as Mrs Pecotic's immediate supervisor, following a major restructuring of the A V Jennings operations.

47 Mr Bunter's recollections, recorded in his written statement, were that:

"...When the warranty department became part of my responsibility and Mrs Pecotic started reporting to me at meetings, I recall her saying that warranty issues were decreasing, not increasing. It became obvious that she was not following up on the signing off of jobs with the warranty supervisors. Work numbers on site were falling. Quality was improving and therefore issues raised by clients were easing. However, Mrs Pecotic was not following up sign offs of job sheets which falsely inflated numbers. I knew this, or suspected it, through many years of experience.

Also because of the way the contractors' pay was structured, it was more profitable for them to inspect than get sign offs. Once I directed her to get all of the completed jobs signed off properly, the number of jobs dropped each week. Mrs Pecotic also made comments that the quality of work was improving and three month maintenance items were decreasing. So, overall, I consider that her workload was actually lessening..."

48 Mrs Buhagiar claimed in her written statement that Mrs Pecotic "...would not let us tell anybody that there was a problem in relation to work load or any other matter...". Mrs Buhagiar volunteered to talk to Mr Bunter herself, viz:

"If you don't want to do it, I'll do it and I'll talk to him."

But Mrs Pecotic always stopped her from doing so, saying:

"He's going to think that we're not coping without Mr Copeman."

Mrs Buhagiar nevertheless e-mailed to Mr Bunter her concerns and she claimed in her evidence that Mrs Pecotic "...was not happy about that...". From Mrs Pecotic's perspective, it is understandable that she would be concerned if she felt that Mrs Buhagiar had gone over her head in that way. If Mrs Pecotic had instructed Mrs Buhagiar not to raise the matter with Mr Bunter, she should not have done so. Any problems in the warranty department were primarily Mrs Pecotic's responsibility.

49 According to Mrs Pecotic, it was at that time she noticed a cooling in her working relationship with A V Jennings management and, in particular, Mr Bunter and Ms Janelle Goulding, the former general manager, to the extent that she believed her employment was in jeopardy. Mr Bunter and Ms Goulding, who was also called to give evidence by Mr Cross, deny that their relationship with Mrs Pecotic had cooled.

50 Mrs Pecotic believes that several issues at work had led to that deterioration of her relationship with A V Jennings management, viz:

• In the middle of 2003 Mrs Pecotic claims that she discovered that some invoices for payment were with respect to work which had already been performed by a contractor - an estimated overcharge of approximately $5,060.00. It is Mrs Buhagiar's claim that it was she who first raised the discrepancies in the invoices with Mrs Pecotic and Mrs Pecotic directed her to undertake further investigations concerning the issue. In any event, Mrs Pecotic referred the matter to Mr Copeman. When there was subsequently no action taken by him within a week, she brought it to the attention of Mr Bunter, and again when after a further week nothing had eventuated, she brought it to the attention of an internal auditor. Ms Goulding subsequently approached her and requested documentation relating to the contractor's jobs, which she supplied. The contractor was directed to repay the outstanding $5,060.00 and his services were terminated by A V Jennings. Mrs Pecotic claims that Mr Bunter's attitude to her changed at that time and he became "...cold, indifferent and curt..." with her. The conclusion I draw from Mrs Pecotic's comments in that respect is that she believed that Mr Bunter was angry with her for going over his head over the matter to Ms Goulding.

• Mrs Pecotic originally had an office with a glass wall from ceiling to floor and a door. The other employees worked in an open office plan. In late 2003 the warranty department was moved. At first, for a period of two weeks, Mrs Pecotic was provided with an office, but she was subsequently transferred to a small open area into what she described as a cubicle. She believes that she was being "marginalised" and given what she described as the "...smaller office treatment..."

• On Wednesday, 29 October, 2003 Mrs Pecotic was working alone after ordinary working hours. At 9.15pm she heard noises and she went to investigate. She discovered two men wearing baseball caps, polo shirts, jackets, shorts and joggers. They told her that they were cleaners but she did not believe them and she became concerned over her safety. She went to her desk and telephoned the security company. A short time later police arrived. She subsequently made a statement to the police and responded to a subpoena to give evidence in court against one of the men who has pleaded guilty to the break-in. Meetings with Ms Goulding and Mr Bunter.

51 Mrs Pecotic recalled in her evidence a meeting with Ms Goulding and Mr Bunter on Wednesday, 12 November, 2003 in Ms Goulding's office. Mr Bunter described that meeting as having been conducted in "...a relaxed and laid back..." atmosphere. Ms Goulding shared that view, telling Mrs Pecotic:

"We want to have a chat about what's going on in the department and if there's anything we can do to alleviate some of the workload problems."

52 Mrs Pecotic saw things differently. She claimed that Ms Goulding and Mr Bunter "...attacked in a forceful and aggressive manner regarding work related matters...". Mrs Pecotic claimed that Ms Goulding spoke to Mr Bunter in the following terms, as if she was not present at the meeting:

"It is time to see what's happening in the warranty department and see what is going on. Once I have your findings, we will have to decide if indeed we have the right people in the warranty department."

"The department may not need a manager but just clerks to take the calls."

According to Mrs Pecotic, Mr Bunter had on several occasions expressed the view that he believed the work should be organised differently. Mrs Pecotic recorded in her written statement that Mr Bunter:

"...made no secret that the change would be dramatic, eg that there be no managers and clerks would take all calls and then simply transfer to supervisor."

53 Mrs Pecotic met with Mr Bunter on Thursday, 13 November, 2003 to discuss work issues. At Mrs Pecotic's request, that meeting took place in her work area and not in Mr Bunter's office. Mrs Pecotic was also directed by Ms Goulding to meet with her on Friday, 14 November, 2003. She was not anxious to attend that meeting alone but Ms Goulding said to her:

"Things had gotten out of hand and you would meet with me on your own. You do not have anything to be worried about."

And, in Mrs Pecotic's opinion, the meeting was less confrontational. It was conducted over cups of coffee. According to Mrs Pecotic's written statement, Ms Goulding "...did a complete about face..." and apologised for her conduct on the previous day. Mrs Pecotic asked her why she had been "ambushed" at the meeting arranged on Wednesday, 12 November, 2003. Ms Goulding replied:

"I think ambush is a harsh word but you are right. We could have handled things better. This is part of the reason we are here today. Your job is safe. You are important to us. We need you more than you need us."

54 Ms Goulding remained concerned that Mrs Pecotic was working back alone at nights and she said:

"Instead of working back, take work home with you and do it from there."

"I already do that in many cases. If the department gets the right resources and setup then it would not be necessary for me to work back nor work from home."

According to Mrs Pecotic, the meeting concluded on a "positive note" and she believed that there would be an improvement in the work.

55 In the night of the break-in - Wednesday, 29 October, 2003 - Ms Goulding was at home when she received a telephone call concerning the situation in the office. She immediately telephoned Mrs Pecotic on her mobile telephone. She asked Mrs Pecotic how she was and claimed that Mrs Pecotic informed her that:

"I am a little bit shaken up but I'm fine. The police are here and so is the security guard."

Ms Goulding asked her if she would like her to return to the office and stay with her. Mrs Pecotic said:

56 Following the break-in Mrs Pecotic asserted that Ms Goulding's attitude to her was "...cold and curt...". Ms Goulding rejects that allegation. Ms Goulding sat down with Mrs Pecotic and spoke to her at work on Thursday, 30 October, 2003 and asked her why she had come to work. Ms Goulding claimed that Mrs Pecotic replied:

"Why don't you go home. You would be better off being at home and just getting some rest."

According to Ms Goulding, Mrs Pecotic was "...quite teary...". Mrs Pecotic told Ms Goulding that she had a few things to do in the office and she would then go home. But two hours later Mrs Pecotic was still in the office and was still upset.

57 I accept that the break-in incident on Wednesday, 29 October, 2003 was a very traumatic incident for Mrs Pecotic. Following it, Mrs Pecotic indicated that she was very anxious. She claimed in her written statement that:

"...I was not sleeping well. When I did manage to sleep, I would wake up screaming. I kept seeing faces. I was afraid because they had seen me and they would follow me. After a few days I found it difficult to concentrate and do my work. I was still trembling and felt unsafe. I requested the company to assist me with medical intervention..."

58 Ms Goulding and Ms Fiona McCaskey, the personnel manager for A V Jennings made the joint decision to obtain some help for Mrs Pecotic. Ms McCaskey arranged for Mrs Pecotic to attend an appointment with Ms Lynn Everingham, a clinical psychologist whom she apparently selected at random from the telephone book. That appointment was on Monday, 10 November, 2003. Ms Everingham provided a report to Ms McCaskey dated Tuesday, 11 November, 2003, viz:

"...Thank you for your referral. Mrs Pecotic attended a consultation on Monday, 10 November, 2003 in respect to the traumatic impact of a break-in at the work premises on Wednesday, 29 October, 2003. It was reported that she had been working back in the building alone in the evening at 9.45pm when she confronted intruders in the building. The matter was referred to the police and investigated. She has continued in full time work at her former duties.

Psychological assessment indicates significant symptoms of acute stress disorder. These problems appear to have been exacerbated by other workplace issues. It is recommended that she attend a short program for psychological treatment to resolve the psychological symptoms which include 'flash backs', avoidance behaviours, hyper vigilance and persistent emotional distress. It is also recommended that the workplace liaison officer assist to facilitate workplace issues which would aid in her rehabilitation. This matter may be compensable through workers compensation insurance.

If you require further information please contact me again. I am happy to assist in the provision of treatment or with any other support..."

59 Ms Everingham was called to give evidence in the hearing by Mr Dean. Because she had formed the view that the work environment was exacerbating Mrs Pecotic's acute stress disorder and impeding her recovery, she considered it appropriate to contact a senior member of A V Jennings management. She spoke to Ms Goulding who appears to have resented what she saw as Ms Everingham's intrusion into work issues which were not her concern. Ms Everingham claimed in her evidence that she was shocked by Ms Goulding's response to her telephone call. She claimed that Ms Goulding's manner was abrupt, commanding and derisive and she formed the view that she was discrediting her professional standing. That view was no doubt correct.

60 In fact, Ms Goulding conceded in her evidence that the telephone conversation she had with Ms Everingham became heated. She indicated in her evidence that she had formed the view that Ms Everingham was chiefly interested in the financial benefits that would follow from further counselling of Ms Pecotic. She recorded in her written statement that:

"I did question whether Ms Everingham was working with Mrs Pecotic to ensure that she got through the trauma of the break-in.... Ms Everingham was extremely aggressive towards me and seemed to be more focused on ensuring that she received further fees by providing Mrs Pecotic with ongoing treatment, rather than demonstrating to me that we should pay because Mrs Pecotic actually needed the ongoing treatment to overcome her stress related to the break-in. Ms Everingham seemed to be 'against' the company from the outset of the conversation and to have pre-decided what the outcome of our discussion was to be..."

61 Ms Everingham formed the opinion, accurately enough, in my opinion, that, as she recorded in her written statement, notwithstanding the fact that A V Jennings had requested the consultation for Mrs Pecotic in the first place:

"...I was giving an assessment that Ms Goulding did not want to hear and certainly did not want to accept. I was aware from my consultation from Mrs Pecotic that she was looking for more support from A V Jennings, as she had apparently been made to feel responsible or to blame for the incident..."

"There is nothing wrong with her. She is overreacting. These are not work related problems. These are related to personal and family issues. You should not be commenting on work matters."

Ms Goulding had earlier been informed that Mrs Pecotic's husband, who was a painter, was suffering from injuries and that he was being sued by one of his customers over the quality of his work.

"It is a matter for A V Jennings how they dealt with internal matters, but from a point of view of the employee's health, her symptoms of acute stress disorder were likely to worsen unless other issues were also dealt with."

"I dispute the cause of the psychological problems and I do not accept your professional opinion on that point."

63 Ms Goulding recorded in her written statement that she believed that Ms Everingham was:

"...twisting my words. I asked Ms Everingham in her opinion whether she thought Mrs Pecotic's stress was a result of the break-in or work-related or whether it involved other issues. It is important to understand...that I knew that Mrs Pecotic had a lot of issues that caused her anxiety that had nothing to do with work. Therefore I would have expected that when she spoke to Ms Everingham she would have told her about at least some of those issues. I was trying to get Ms Everingham to try to distinguish between the counselling that I wanted the company to have provided for Mrs Pecotic, relating to any trauma or stress about the break-in, from her other issues. I wanted to help her on the first, but the company does not have a policy of providing unlimited endless counselling on peoples' private lives.

In to-day's times, many people have a lot of pressures in their lives, whether it's personal, financial, etc that do not relate to work. If every company provided unlimited personal counselling, it would be a very large medical bill indeed. At A V Jennings I wanted to give counselling about work related issues, but not to provide what Ms Everingham seemed to want, which was counselling for Mrs Pecotic on an ongoing basis, with whatever issues she had. I knew there were a lot of other issues and I wanted Ms Everingham to stick to the trauma counselling for the break-in.

The problems that I knew Mrs Pecotic had included, for example, that her husband had received some sort of injury to his back and was unable to work. I knew that there were financial pressures on them that I presume was related to him not working. I know, for example, that there was a day where he had collapsed in the front yard at his home because of the back problem and needed help...(and) that he was being sued for some business related issue. Another example is that she had asked to be set up so that she could do her work at home via computer - and yet many times she would prefer to work at the office rather than go home in the evening. From time to time when I worked late, I would see her working late and I remember thinking that if she was able to work from home, and was choosing to stay here, and had a family of a husband and children at home, that she must not be anxious to get home to her husband and children. Mrs Pecotic never spoke directly to me about the problems she had and why she didn't like to be home with her family, but with what else I knew, it was not hard to work out that there were problems at home. I was sorry to hear, after I had left A V Jennings, that her husband, in fact, moved overseas.

The points I am making are simply to illustrate the reason that I had a difficult conversation with Ms Everingham... I wanted her to distinguish between two different issues and she seemed to want to just deal with everything altogether..."

64 I believe that Ms Goulding was simply misunderstanding the legitimate role which Ms Everingham had with Mrs Pecotic. In treating Mrs Pecotic it would be anticipated that Ms Everingham would have to take an holistic approach, addressing all environmental factors. The treatment which Ms Everingham could offer Mrs Pecotic could not just take the break-in issue alone. It would not be possible for Ms Everingham to separate the stress and anxiety Mrs Pecotic had over that break-in from stresses due to other factors - work related or domestic - and treat only one part of the problem.

65 And Ms Everingham was not interfering in the work of A V Jennings, as Ms Goulding appears to have been suggesting. I accept that Ms Everingham would not have been entitled to explore the internal operations of A V Jennings but I do not believe that she was actually doing so. She was simply treating Mrs Pecotic. In that role she was entitled to explore every avenue to ensure that Mrs Pecotic recovered from the stress she had. Ms Everingham had formed the view that part of Mrs Pecotic's problems lay in the place of work. Whether or not Mrs Pecotic was justified in forming the view that there was a problem for her at work or not, that was her perception and Ms Everingham was simply treating her for that stress, based on what she was being told by Mrs Pecotic. She was her patient and she was entitled to adopt what she said, whether it was accurate or not, in treating her.

66 Mrs Pecotic attended several sessions with Ms Everingham. A V Jennings paid for the first session only, however. Ms Everingham recorded in her written statement that:

"... I had been informed by Mrs Pecotic that she had not received any comforting support from the senior management of A V Jennings and felt isolated. I was also informed that she was scared of contacting me, that she had to go to the car park of A V Jennings and phone from her mobile in case A V Jennings found out she was still in contact with me... Mrs Pecotic contacted me on Monday, 24 May, 2004 in relation to further workplace stress. She was emotional and very worried about her job... Her psychological condition had deteriorated. She was at breaking point where she could not continue working. She indicated she would take leave. She did not contact me for treatment at that time. Mrs Pecotic contacted me on Tuesday, 2 November, 2004. She related the events of leaving her employment and her psychological recovery. The symptoms had subsided, although some residual emotional impact had persisted..."

67 Mrs Pecotic claims to have received criticism from Ms Goulding and Mr Bunter at the meeting with them on Wednesday, 12 November, 2003. At the meeting Ms Goulding pointed to the report she had received from Ms Everingham and spoke of its contents, saying to Mrs Pecotic:

"You had no right to talk about work matters. You were there to discuss the break-in only. The company only sent you as a favour. This is not a work issue. You do not need to see anyone. This was a gesture of goodwill by the company and we did not need to do it in the first place."

68 Following the meeting Mrs Pecotic was in a distressed state and she contacted Ms Everingham. She claimed that Ms Everingham informed her:

"You need to call WorkCover. Your company does not care about you. You need help and this company will not help you. They seem to be against you."

According to Mrs Pecotic, at the meeting she held with Ms Goulding on Friday, 14 November, 2003 Ms Everingham's report was shown to her. Ms Goulding described Ms Everingham's assessment that Mrs Pecotic was suffering an acute stress disorder as "...a load of rubbish..." and said:

"I have spoken to Ms Everingham. That woman was not out to help you but line her own pocket. You are not crazy. You are not suffering from any disorder. There is nothing wrong with you. If you need to talk to someone, come up and sit on my lounge and talk to me. This woman will be of no benefit to you. I will arrange for Ms McCaskey to cancel any further appointments."

69 Ms Goulding claimed that she had spoken to Mrs Pecotic in the following terms:

"The psychologist report mentioned that there were some other issues that were causing you stress. We need to get to the bottom of it. If there are work related issues, then we should talk through them. It is better for us to deal with them here than for you to try and deal with them through the psychologist. The company sent you to the psychologist to try and help you through some of the stress you were experiencing from the break-in but if you have issues about workload causing stress, the people to talk to are us, because if you discuss them with us, we can actually make changes."

70 Mrs Buhagiar had commenced employment as a warranty clerk with A V Jennings on Tuesday, 29 April, 2003, initially on a 6 month probation. She was directly responsible to Mrs Pecotic who was required to train and supervise her work. It will be obvious from the evidence already referred to earlier in this decision that a very corrosive and venomous atmosphere had developed in the office between Mrs Pecotic and Mrs Buhagiar. Mrs Pecotic claimed in her written statement that when Mrs Buhagiar commenced work, she was warm, friendly and competent, but her attitude changed and "...an atmosphere started to develop in the office..." and her attitude towards the rest of the staff began to change. Mrs Buhagiar did not attend staff functions and when Mrs Pecotic asked her the reason for her decision in that respect, she replied:

"I don't like being a hypocrite. I don't like some of the people here and don't want to socialise with them."

71 Clearly, the relationship between Mrs Pecotic and Mrs Buhagiar had become strained. With respect to the investigation which Mrs Pecotic directed Mrs Buhagiar to perform in the middle of 2003 over the discrepancies in the invoices from the contractor to which I have referred earlier in this decision, Mrs Buhagiar recorded in a witness statement which formed the basis of her evidence that:

"...In fact, Mrs Pecotic directed me to work until approximately 11.00pm in order to do the investigations, despite her knowing that my daughter had only left hospital a few days earlier. I asked her if I could leave at my usual time so that I could be at home to care for my daughter, but she said no and seemed annoyed that I made this request. This was upsetting to me but I did what I was told..."

And Mrs Buhagiar subsequently claimed in her written statement:

"...it now seems to me that Mrs Pecotic deliberately tried to set some of her team members against each other: me against Ms Simonetta-Beddows; me, Mr Barry Wheatland (formerly employed by A V Jennings as a warranty supervisor until he was retrenched in late 2005) and Ms Simonetta-Beddows against others in the company. For example, in turning me against Ms Simonetta-Beddows, she would often say to me that Ms Simonetta-Beddows didn't think that I was pulling my weight or that she can't talk to you because she thinks that you are always too serious or she doesn't like you because you won't muck around with her... Ms Simonetta-Beddows told me face to face...that she had been told by Mrs Pecotic that I had said that I hated her guts - which was absolute rubbish because I never said anything like that at all.

She tried to turn Mr Wheatland against me, for example, by telling me that he was annoyed with me because he had asked four times for something from me and hadn't got it - but when I went to Mr Wheatland he said that he had never said anything of the sort and didn't know what she was talking about. I wonder whether she just made that up... She wanted to have me attend the lunches where she, Mr Wheatland and Ms Simonetta-Beddows would criticise other people in the company, spread gossip or complain about them..."

72 Mrs Buhagiar also recalled in her written statement an occasion in late 2003 when she was speaking with Mrs Pecotic in her office about her daughter who was ill at the time. She admitted that she was very upset. She also spoke at that time about the workload and expressed the view that Ms Simonetta-Beddows was not taking her fair share of the work. Mrs Buhagiar conceded in her evidence that she did not like Ms Simonetta-Beddows. Mrs Buhagiar recalled Mrs Pecotic saying to her:

"You need to calm down and think if this is the right job for you. Do you really want to be here? You've got two options. You either do it or leave."

(This appears to me to be the conversation out of which Mrs Buhagiar's alleged threat against Ms Simmonetta-Beddows emerged. I will discuss that alleged threat later in this decision.) Mrs Buhagiar had assumed that Mrs Pecotic would keep her comments about Ms Simonetta-Beddows confidential but she subsequently found out (from Mr Bunter) that Ms Simonetta-Beddows was aware that she did not like her and believed that Mrs Pecotic had betrayed her confidence.

73 It was part of Mrs Pecotic's duties to make recommendations concerning Mrs Buhagiar's continued employment. As Mrs Buhagiar's period of probation came to an end, Mrs Pecotic was called upon to make a recommendation concerning her continued employment. Mrs Pecotic formed the view that she could not recommend Mrs Buhagiar's employment to continue. Her comments were noted by A V Jennings management but Mrs Buhagiar retained her position.

74 Mrs Pecotic was concerned over what she regarded as the frequent absences from work by Mrs Buhagiar - 26 days for the period from Monday, 11 August, 2003 to Friday, 14 May, 2004 - for sick leave or to care for her children. Those absences placed additional burdens on the other staff and, Mrs Pecotic claimed, was one of the main reasons she had to frequently work back after hours. Mrs Pecotic also continued to note issues involving Mrs Buhagiar that she believed were adversely affecting work performance and the general atmosphere in the office.

75 On Wednesday, 11 February, 2004 Mrs Pecotic forwarded an e-mail to Mr Bunter regarding Mrs Buhagiar's conduct at work as she assessed it, viz:

*that her demeanour with other staff members was unhelpful and sarcastic;

• that work had been left incomplete or inaccurate;

• that the manner she adopted when speaking to clients was not satisfactory;

• that she made unjustified complaints that the majority of the workload fell on her; and

• that too much time was being spent in the office on "...negativity and conspiracy theories..."

76 Mrs Pecotic met with Mr Bunter on Monday, 16 February, 2004 concerning Mrs Buhagiar and complained about her. She understood that a warning was given to Mrs Buhagiar and committed to written form but she believes that the written warning was not transmitted to Mrs Buhagiar. In fact, Mr Bunter interviewed Mr Wheatland and Ms Simonetta-Beddows, who essentially confirmed Mrs Pecotic's view of Mrs Buhagiar. Consequently, Mrs Buhagiar gave Mrs Buhagiar the warning notice. He claimed that Mrs Buhagiar expressed some surprise that Mr Wheatland would not support her. She nevertheless accepted the warning notice.

77 That warning notice to Mrs Buhagiar was subsequently withdrawn by Mr Bunter when, following discussions with Ms Goulding, he took the position that, notwithstanding the corroboration of Mrs Pecotic's criticisms of Mrs Buhagiar by Mr Wheatland and Ms Simonetta-Beddows, there was really nothing more than conflicting claims between the two women. It is Mr Bunter's assessment of the situation that the matter boiled down to no more than a personality clash between Mrs Pecotic and Mrs Buhagiar. If that were the case, putting the women back to work together, with Mrs Pecotic being Mrs Buhagiar's immediate supervisor, was nothing less than a recipe for the continuation of disharmony in the workplace, in my opinion. I am led to believe that A V Jennings had no alterative employment available within its operations and it therefore had no other options but to again put the two women together.

78 Up to the time of her dismissal Mrs Pecotic claims that she did not note any improvement in Mrs Buhagiar's attitude or work performance. On Friday, 20 February, 2004 when Mrs Pecotic arrived at work she discovered that a wall to her work station had been removed and now from her chair she was looking straight at Mrs Buhagiar. She was informed by other staff members that Mr Bunter had removed the petition. Mrs Pecotic recorded in her written statement that from that time:

"...the attitude of Mrs Buhagiar did not change and I was concerned about her performance. I would try and assist her in a helpful, friendly manner and show her the right way to accomplish her tasks..."

79 The central issue in the dismissal of Mrs Pecotic is a threat that Mrs Buhagiar allegedly made against Ms Simonetta-Beddows in a conversation she had with Mrs Pecotic on Friday, 10 October, 2003. That allegation is denied by Mrs Buhagiar. According to Mrs Pecotic, Mrs Buhagiar approached her in her office on that day. Mrs Pecotic claimed that Mrs Buhagiar looked depressed and she informed Mrs Pecotic:

She indicated that she did not like Ms Simonetta-Beddows and that:

"I will knock her down and believe me she will not get up."

"I strongly suggest that you think very carefully about what you have just said. The company and I will not stand for any threats being made against staff. You will lose your job and charges may be laid against you."

"You need to calm down and you may like to think about whether this job is for you."

In her evidence Mrs Buhagiar denies that she made any such threat at all.

81 Mrs Pecotic claimed that she took Mrs Buhagiar's alleged threat against Ms Simonetta-Beddows seriously. She did not mention it to Ms Simonetta-Beddows at that time but she asserted that she spoke to Mr Bunter and Ms McCaskey about it on Wednesday, 22 October, 2003, ie 12 days after it had allegedly been made. Mr Dean has indicated in his submissions that he understood that, whilst Mrs Pecotic did delay bringing the alleged threat by Mrs Buhagiar to the attention of Mr Bunter and Ms McCaskey, he disputed that she had delayed for 12 days but I am satisfied from Mrs Pecotic's own evidence that was the extent of her delay. In any event, Mr Bunter and Ms McCaskey, who was also called to give evidence in the hearing by Mr Cross, denied that she had spoken to them concerning the matter at that time.

82 Ms McCaskey recalled in her evidence that Mrs Pecotic did not raise the incident with her until early 2004 - apparently as an afterthought. She recorded in the written statement which formed the basis of her evidence that:

"...Mrs Pecotic actually informed me about the alleged threat in about February, 2004. She came into my office to discuss a number of concerns about Mrs Buhagiar. She told me that she did not like Mrs Buhagiar because she was a violent person and Mrs Pecotic was afraid of her. She also said that Mrs Buhagiar was probably the one that set up the break-in. I didn't pursue the issue of the office break-in with Mrs Pecotic because it seemed such a ludicrous suggestion. I did ask her why she thought Mrs Buhagiar was a violent person. She told me that Mrs Buhagiar had made a threat about Ms Simonetta-Beddows because she didn't like her and Ms Simonetta-Beddows was so scared of Mrs Buhagiar and what she might do to her and her children. Because of the threat Ms Simonetta-Beddows slept with a baseball bat at night..."

83 Ms McCaskey asked Mrs Pecotic to explain what was the alleged threat made by Mrs Buhagiar to Ms Simonetta-Beddows. According to Ms McCaskey, Mrs Pecotic raised the alleged threat as a "...throw-away line..." and when she made those inquiries concerning it she believed that Mrs Pecotic "...started to backtrack..." and she did not answer any of Ms McCaskey's questions, saying words to the following effect:

"Don't worry about it. I'm probably just overreacting. It wasn't really that serious."

84 Ms McCaskey formed the impression that all that Mrs Pecotic was prepared to advance in the discussion were vague comments. Ms McCaskey indicated in her written statement that:

"...I thought this was very strange. It was clear to me that Mrs Pecotic was trying to give me the impression that Mrs Buhagiar was a problem and that she had done something but didn't want to actually back it up with anything other than this vague comment. The strange thing was that she had specifically come into my office to talk about this, yet when I asked her to actually go into the detail she wouldn't do so and then made out like it was a minor thing..."

85 At that time Ms McCaskey spoke to Mr Bunter about the alleged threat Mrs Buhagiar had made against Ms Simonetta-Beddows. Mr Bunter recorded in his written statement that:

"...Ms McCaskey contacted me to say that Mrs Pecotic had brought a threat to her attention by Mrs Buhagiar against Ms Simonetta-Beddows. She also told me that during her conversation with Mrs Pecotic she had told her that it was a fairly serious accusation to make against Mrs Buhagiar and that Mrs Pecotic needed to think about it carefully. She also told me that she had told Mrs Pecotic that Ms McCaskey would have to take the matter up with Ms Goulding if Mrs Pecotic wanted to pursue it. Ms McCaskey told me that Mrs Pecotic had then said she did not want to pursue the matter as she did not feel the threat was serious and that she wanted to keep the matter confidential. I told Ms McCaskey that I hadn't heard anything about it. I did not take any action in relation to the threat..."

Mr Bunter went on in his written statement to record:

"...I do not recall when exactly, but I believe that Mrs Pecotic did bring the issue of the threat up with me at some stage. It was certainly and without any doubt some time after I had heard about it from Ms McCaskey. Her comments about the threat were only in passing and she did not indicate to me that it was a genuine threat of violence..."

86 Mrs Pecotic also asserted that she raised the threat at that time with Ms Helga Linacre, the secretary and corporate counsel for A V Jennings, Mr James Thompson, the general manager (now retired) and Ms Fay Finniss, his personal assistant. Ms Linacre, Mr Thompson and Ms Finniss were called to give evidence by Mr Cross. They deny that Mrs Pecotic raised that alleged threat by Mrs Buhagiar with them. 87 Mr Thompson recalled in his written statement (which he amended in the proceedings): "...I knew that Ms Simonetta-Beddows said that she had learned about this alleged threat from either Mr Bunter or Mrs Pecotic and Mr Bunter had made it clear that he had only ever heard about it from Ms McCaskey in October, 2003 but that he had not passed it on further. Ms McCaskey said the same thing. ..."

I think that inconsistency in Mr Thompson is simply explained as confusion on Mr Thompson's part as to dates. I prefer the evidence of Mr Bunter and Ms McCaskey.

88 Mr Wheatland was called to give evidence in the hearing by Mr Dean and he recalled in his evidence a similar outburst by Mrs Buhagiar in Thursday, 10 February, 2004. He claimed that at that time Mrs Buhagiar spoke to him of Ms Simonetta-Beddows in the following terms:

"She's driving me nuts. I am not going to put up with it or else I'll kill her. I'm serious. I'll knock her down so hard she won't get up. I've spoken to Mrs Pecotic and she won't do anything about her. She said that I have to be tolerant. I tell you, I'm not going to take it."

89 Mr Wheatland was surprised by Mrs Buhagiar's comments. He said:

"That's her being her normal self. You have to be tolerant."

He at first did not take Mrs Buhagiar's threat seriously but later had reason to reconsider his position. He claimed that Mrs Buhagiar had told him late in 2003 that she would take revenge on any person whom she believed had done her wrong. Mr Wheatland claimed that Mrs Buhagiar had told him that she wanted to have Ms Simonetta-Beddows "sacked". Mr Wheatland recorded the incident in his diary. I will comment further on that diary entry later in this decision.

90 Mr Wheatland claimed in his evidence that he spoke to Mrs Pecotic concerning what Mrs Buhagiar had said and that Mrs Pecotic replied:

"Yes, she has made the same sort of comments to me. I told her to calm down and think about what she was saying and that Ms Simonetta-Beddows would not be getting the sack."

Mrs Pecotic does not recall any such discussion with Mr Wheatland and asserted that it did not take place.

91 In any event, those threats were kept from Ms Simonetta-Beddows for some time until both Mrs Pecotic and Mr Wheatland informed her of them - sometime later in 2004 (possibly May), it would appear. Ms Simonetta-Beddows indicated in her evidence that she was concerned over the threats and, in particular, the fact that both Mrs Pecotic and Mr Wheatland had kept the information from her for so long. She became very upset that such a threat had been made and concerned for her safety and the safety of her children. Mrs Pecotic denied that she had informed Ms Simonetta-Beddows of the alleged threat by Mrs Buhargiar at that time but the evidence before me does not appear to support Mrs Pecotic's claim. I am satisfied that Mrs Pecotic did communicate the alleged threat by Mrs Buhargiar to Ms Simonetta-Beddows at that time.

92 As I indicated earlier in this decision Mrs Buhagiar refutes that any such threat was made by her. That was her evidence in this hearing and what she informed A V Jennings management when the matter was ultimately raised by them with her. Mrs Buhagiar claimed in her written statement that:

"Obviously, Mrs Pecotic tried to turn Ms Simonetta-Beddows against me with this accusation about the threat which I never made. I don't know what else she might have said to Ms Simonetta-Beddows about me..."

93 Mrs Pecotic records details of her daily activities in her personal computer and, after the objections made concerning those computer records made by Mr Dean were resolved, her computer records were provided in evidence in these proceedings under subpoena. The entries in the computer records are a brief shorthand record of her daily activities. Relevantly, her computer records the following matter in her diary on Friday, 10 October, 2003:

4.15pm - 4.30pm: Spoke to Dianne re her job and attitude towards staf ( sic ) Dianne said she did not care she can not ( sic ) stand Belinda and said Elma, I'll knock her & believe me she will stay down.

4.45pm - 5-15pm: I said to her that she can not ( sic ) threaten staff & asked her to discuss further she repeated her threat. I said to her that if she did that she would be instantly dismissed & could be charged by the police.

5-15pm - 5.45pm: she said I don't care it would be worth it. Advised Dianne that she needs to calm down

And with respect to the meeting with Ms Goulding and Mr Bunter on Wednesday, 12 November, 2003 Mrs Pecotic's computer entry records:

3.00pm - 5.00pm: about 3.00pm pulled up to Janelle's office without notice. Absolutely humiliated by Janelle & Mark

6.00pm - 7.00pm: made distraught call to Lynn. I have never been belittled so much in my life

And with respect to the meeting with Mr Bunter on Thursday, 13 November, 2003:

10.00am - 10.30am: Meeting with Mark to discuss dept issues. Mark did not show i ( sic ) thought due to my call the night B4 Lyn. I was so scared of what was going to happen next (all I want is to do my job and have some sort of support from my boss). I feel so disallusioned ( sic ), Io ( sic )

11.00am - 12.00pm: It turned out that he thought the meeting was in his office. I said to Mark that last night Janelle said that it would be held in the W dept, where all the info was that he wanted to discuss.

12.00pm - 1.00pm: Mark said that there would have to be privacy [double standard] and that is why it had to be in his office. I said that it made more sence ( sic ) to be in my cubicle

1.00pm - 2.00pm: Mark came up about 2.00pm and started to go question everything I did in the department which I explained in great detail. No system when I started to where it had progress to now. He challenged my decision on just about everything we discussed, but when I

2.00pm - 3.00pm: asked what other way I could do it or some direction if I was doing it wrong but the only suggestion Mark continuously made were to simplify to the system to the extent of just about no documentation I explained that in 2003 this was not possible and tha ( sic)

3.00pm - 4.00pm: precisley ( sic ) that type of system had been used in the past and had prooved ( sic ) over and over again to be unsuccessful. He then said OK do change leave it the way it is and I will get back to you. Again nothing has happened since that day for any form of

4.00pm - 5.00pm: direction actuall ( sic ) the exact opposite has happened. Mark has said to me on several occasions that he want the department set up differently and has made no secret that the change would be dramatic eg NO MANAGER clerk take all calls and simply transfer to

5.00pm - 6.00pm: supervisor. I have said to Mark on several occasions, that this has gone on too long and that the department needs direction and that the restructure needs to be put in place so we all know what we are doing

And concerning the further meeting with Ms Goulding on Friday, 14 November, 2003:

3.00pm - 5.00pm: Meeting with Janelle, complete turnaround from 12/11. spoke about my job, car, money, security that I am important etc

94 Mrs Pecotic also has a palm pilot - a computerised daily date book - in which she records her daily activities as they occur and subsequently transposes them into her personal computer as part her records. There was a significant delay in providing the hard drive for that palm pilot under subpoena and by the time it was supplied much of the relevant material in the hard drive had been deleted. Mrs Pecotic claimed in her evidence that her daughter, who also had access to the palm pilot, had deleted the material from the hard drive. Moreover, with respect to those palm pilot entries which were available, Mrs Pecotic has made changes when she transposed them to her personal computer, sometimes fleshing out the material - using the word "department" instead of the abbreviation "dept", for instance, correcting grammar and punctuation and changing the font.

95 Mr Cross has submitted that Mrs Pecotic's computer records are self-serving and that she has simply fabricated the computer records to support her claims in this hearing. To my mind, that is especially the case since she has actually conceded in her evidence that she has altered some of the computer entries - "...tidied them up..." - after her dismissal. What reason would she have to do that other than to prop up her arguments before me in this hearing? The tampering with evidence in any litigation in that manner is, of course, a serious matter - an offence for which Mrs Pecotic is open to prosecution. There is insufficient evidence to support such a prosecution, in my opinion. But, as Mr Cross has asserted in his submissions, it would certainly be unsafe for me to accept the computer entries as in any way corroboration of Mrs Pecotic's evidence.

96 Similarly, I am not satisfied that Mr Wheatland's diary for 2004, which he retained and which was provided into evidence by Mr Dean following an application for discovery by Mr Cross, provides any corroboration of his evidence. He recorded the following entry at the foot of the page in his diary for Tuesday, 10 February, 2004:

"...Words from Diane's mouth - in supervisor's room:

'Belinda's driving me nuts. I'm not going to put up with it or else I'll kill her.' 'I'm serious. I'll knock her down so hard she won't get up.' 'I've spoken to Elma about her but she wouldn't do anything about her. She said that I have to be more tolerant. I tell ya', I'm not going to take it..."

97 That entry in Mr Wheatland's diary appears at the end of the page and there is nothing written after it. Mr Cross has suggested in his submissions that Mr Wheatland has simply added the entry to provide some support for his allegation that Mrs Buhagiar had actually made the threat. Also what makes this entry suspicious is that, with the exception of two other entries concerning Mrs Buhagiar in Mr Wheatland's diary (which I describe shortly in this decision), the diary tends to be confined entirely to issues related to the work Mr Wheatland was performing for A V Jennings - requirements for particular jobs, reminders of work to be performed, arrangements for inspections of sites, appointments made, orders to be placed, telephone numbers required, etc - and not any issues relating to personal relationships in the office. 98 On Monday, 2 August, 2004 Mr Wheatland wrote in his diary: "...WORDS OF WISDOM BY DIANNE I joked that I'd have to slash Phil's tyres to stop him going to clients homes and agreeing to do works which I'd already knocked back and Dianne said:

'Be careful what you say, because that's what happened to her. At her home, not at work, she had had nails & screws put under her tyres which caused flats, had her tyre slashed by presumeably [ sic ] a screwdriver to the inside wall under the car & a large hole torn out, causing a deliberate loss of brake fluid.'

She said she mentioned it to the police, but they were unable to do anything for lack of any specific evidence towards anyone..."

And on Tuesday, 3 August, 2004 Mr Wheatland recorded in his diary:

"...ANOTHER PEARL FROM DIANNE BUHAGIAR - after Phil Coffey had remarked on doing work for a client, Di said to me - 'Your [ sic ] a man, you've got a dick, why don't you stick your dick in Phil's ear and fuck some sense into him.' Not what you'd expect from a lady..." Both of those entries were made after Mrs Pecotic's dismissal. Again those two entries are at the bottom of the page, leaving me with the suspicion that they were added by Mr Wheatland to his diary some time after the incidents he recorded to provide support Mr Pecotic, with whom he is obviously friendly, in her claims in these Part 6 proceedings. One thing is clear from Mr Wheatland's comments in his diary: he was antagonistic to Mrs Buhagiar.

99 Mr Wheatland indicated in his evidence that at first he did not take Mrs Buhagiar's threat of violence by Mrs Buhagiar to Ms Simonetta-Beddows seriously. And yet he found it sufficiently important to record details of it in his diary for Tuesday, 10 February, 2004. His credibility as a witness in this hearing is clearly in doubt as a result, in my opinion. I deduce that he was far from an impartial witness and his support for Mrs Pecotic and Ms Simonetta-Beddows seems to have coloured his evidence somewhat.

100 On Friday, 30 April, 2004 Mrs Buhagiar made a formal complaint against Mrs Pecotic and Ms Simonetta-Beddows that they were harassing her at work and forwarded that formal complaint to Mr Thompson, viz:

"...This is a formal complaint about the level of workplace bullying I am currently experiencing from my current supervisor, Elma Pecotic, and workplace colleagues. The bullying is making it extremely difficult for me to perform to my optimum as the workplace environment has become hostile and stressful. This issue is causing deterioration in my health due to the stress and is affecting my family and social life.

I have sought professional workplace advice and have been informed that the employer has an obligation to address my issues under the New South Wales Occupational Health and Safety Act, 2000, and the New South Wales Anti-Discrimination Act, 1977.

Prior to listing the issues that need to be actioned I outline the WorkCover Authority of New South Wales definition of workplace bullying: 'Workplace bullying is aggressive behaviour that intimidates, humiliates and/or undermines a person or group. Bullying can be defined as repeated less-favourable treatment of a person by another or others in the workplace. Examples of bullying at work may include yelling, screaming, abusive language, continually criticising someone, isolating or ignoring a worker, sabotaging someone's work or their ability to do their job by not providing them with vital information, appropriate training and/or resources. Bullying results from one person or a group needing to dominate or show superiority over another person.'

I require the following issues to be addressed urgently:

All my phone calls are currently monitored. As far as I am aware I am the only employee that has all phone calls monitored. There is no acceptable reason for this, nor has any acceptable reason for this been explained to me. The monitoring of all my phone calls must cease immediately.

All my toilet breaks are currently monitored. As far as I am aware I am the only employee that has all toilet breaks monitored. There is no acceptable reason for this, nor has any acceptable reason for this been explained to me. The monitoring of all my toilet breaks must cease immediately.

Elma talks down to me in a derogatory tone, side glares at me to others within earshot and generally spends her time trying to intimidate me. Elma has also alluded to an alleged attitude problem but has not spoken to me about anything specific. Elma has chastised me for not socialising with other staff or not smiling, however she has made it difficult for me to enjoy my work and other staff are now avoiding me because they do not want to suffer the same type of treatment from Elma.

Elma goes through my desk and moves my work from my desk and puts it on the common table. She has also asked that I put my tray between Belinda and myself so it looks like we share the work, but we do not: it is all my work. She has also asked that I distribute work as I finish, so it is not on my desk. I believe this is designed to make it look as though I am not doing a lot of work when I am.

This type of behaviour from Elma towards me commenced after she had come to my home and telephoned several times demanding that I say certain things to the management in her defence of an alleged incident in the workplace and I refused to do as she demanded. She demanded that I do not leave my desk when Mark had a pre-arranged meeting with her in her office. She then asked me to verify things that were not said.

Elma discusses my personal & work business with other employees at work. This must cease immediately.

On Friday, 19 March, 2004 Elma contacted me at home in the evening to ask if I would be at work the following Monday and proceeded to ask a number of personal questions that were not relevant to her. This upset my family and me. I ask that Elma cease to contact me at home.

Elma constantly questions me about Mark and then writes down anything I say. I have ceased to answer her questions about Mark, but Elma must cease to question me inappropriately about Mark.

I am being excluded from all discussions at work that are relevant to my job. This practice must cease immediately.

Although I have proved myself to be a dedicated employee that constantly works long hours, I had my request for leave over Easter denied without any understandable reason being given. There were no other employees taking leave at the time I had applied. A credible reason should have been given for the rejection of leave that I am legally entitled to take.

Belinda deliberately pushes my chair and slams my drawer. I have previously asked her to stop this practice and made a complaint. Belinda claims that she does this because she is uneasy about working with me. This is no excuse to allow her to continue to bully me in this manner. Belinda must cease bullying me immediately.

I recently received a commendation from a client. Elma took it from me but has failed to communicate to me what she has done with it. Elma needs to inform me if this commendation has been placed on my file or return it to me.

I was recently told that I would be receiving a letter of warning. The General Manager addressed the issue at the time and I was informed that the matter was closed and I should continue as I had been doing. Since the State Manager has left, the issue has been raised again. There have been no specific allegations levelled against me, no reasons given for any investigation and the former State Manager has declared the matter closed. As far as I am concerned, this matter is closed and any further perusal of the matter will be regarded as bullying.

No employee should have to suffer the indignity of being treated in the manner I am currently being treated. It is clearly bullying in the workplace. It is unlawful. All the issues above are to be addressed within 14 days from the date of issue of this complaint. Failure to adequately address the issues will lead me to pursue the matter further.

I am willing to meet at a time convenient to discuss the complaint further in order to resolve the issues..."

101 Mrs Buhagiar claimed in her evidence that she prepared the letter herself with the assistance of a friend (not legally qualified). I think otherwise. The correspondence is particularly forceful with demands made against A V Jennings and the threat that, unless her problems were addressed by management, she would take the matter further, impliedly with some legal action. The letter suggests to me a woman of strong and forceful personality, supported by a person with some legal training. Accepting that her cross-examination in this hearing may not have been particularly comfortable to her, the letter sits oddly against the very sensitive, stressed and emotional woman I observed when she gave evidence. But I am satisfied that her distress in the witness box was not an act, as Mr Dean appears to be believe.

102 Any employee has the right to the quiet enjoyment of her work without being bullied or harassed by fellow employees and/or supervisors. An employer has a duty of care to provide a safe system of work for all of his employees and, in that connection, to guard them against risk not only of physical injury but the mental or psychological injury which would flow from bullying and harassment as well. 103 I note in that respect the unreported judgement of the Court of Appeal of the State Supreme Court (Spigelman CJ, Mason P and Meagher JA) on Friday, 20 May, 2000 in State of New South Wales v. Seedsman [Matter No. CA 40918 of 1998] and, in particular, the judgment of Spigelman CJ (with whom Mason P and Meagher JA agreed). His Honour commented (at p.7) that the trial judge had:

"…identified a duty of employers to provide a safe system of work, which included a duty to take reasonable precautions against the risk of mental or psychiatric injury, as well as against that of bodily injury. He propounded a test expressed in terms of whether or not the (employer) had, or ought to have had, knowledge of the risk and the means of reducing or avoiding it…" Also I note the comments made by Sams DP in his unreported decision of Tuesday, 25 July, 2000 in Ueckert v. Australian Water Technologies Pty Limited [Matter No.IRC 5553 of 1999 at p.58], viz: "...It is trite for the Commission to observe that there is absolutely no place, or reason for, the harassment of one employee by another employee, be it sexual or otherwise, in or outside the workplace. Indeed, such behaviour is unlawful. When proven, it will, in my view, be a sound basis for disciplinary action and, if the behaviour continues, or is of a serious nature, it may constitute grounds for summary dismissal..." 104 But Mrs Pecotic has denied that she at any time bullied or harassed Mrs Buhagiar. She asserted that she was doing no more than what would be required to supervise Mrs Buhagiar, which was her job. Mrs Pecotic has claimed that the allegations made by Mrs Buhagiar were both untrue and hurtful to her.

105 Ms Finniss was nominated by A V Jennings as a contact officer for Mrs Buhagiar and she was subsequently approached by her. Ms Finniss recorded in the written statement which formed the basis of her evidence that:

"...on Friday, 30 April, 2004 I met in person with Mrs Buhagiar who told me that the environment that she worked in with Mrs Pecotic and Ms Simonetta-Beddows was intolerable. She told me, for example, that her phone calls and toilet breaks were closely monitored by Mrs Pecotic. She also said that Mrs Pecotic bullied her in relation to her work, which caused her to lose confidence in her ability and lose the motivation to attend work. I listened but it was not my role to consider if she was right or wrong, or truthful or not. My role was to explain the procedure and options..."

106 Mr Trevor Lapham, the purchasing officer, has also been appointed by A V Jennings as resolutions officer for the purpose of handling equal opportunity complaints. Mr Lapham was called to give evidence in the hearing by Mr Cross. He described his role in the written statement which accompanied his evidence in the following terms:

"...My role as a resolution officer in the complaint handling process is not to investigate whether someone is telling the truth or not, or is guilty of discriminating or harassing another employee. I do not play a disciplinary role. Rather, my role is to try to help the parties agree on resolving a workplace issue regardless of who was right or wrong, and even if one of the parties has done something justifying potential discipline or dismissal. If a complaint did require discipline, a separate process would be implemented which, as a resolution officer, I am not involved in. For example, serious sexual harassment might possibly result in discipline or dismissal - but the job of the resolution officer is to ignore what may or may not happen in relation to discipline or dismissal and to focus on trying to get the parties involved in the dispute to agree on some sort of resolution. That way, if discipline or dismissal does not occur, then the people involved in the dispute still agree on a way forward at the workplace..."

And later in Mr Lapham's written statement he commented further:

"...It is important to remember that the resolution process is not a disciplinary process, nor is it a formal warning or anything like that. Those are separate processes (which Ms Linacre later pursued). The idea of the resolution process is not to get bogged down in the detail of exactly what one person said and what the other person said, but to focus simply on trying to get a resolution. As was explained in our training, it is somewhat like the conciliation process in an unfair dismissal - where people outline the general nature of the issues and see if they can come to a resolution, rather than debating the detail of each allegation, and putting defences to each allegation and so forth - which can actually lengthen the process and stop a resolution being achieved. My focus as a resolution officer was to try to outline the nature of the problems being identified and hear Mrs Pecotic's response and Ms Simonetta-Beddows' response and then move to trying to find areas of common ground and mutual desires to fix the problem and move along - without attributing blame or necessarily one party making admissions. In other words, similar to the process for conciliations in unfair dismissals or equal opportunity cases..."

Mr Lapham indicated in his evidence in this hearing that he was not "...a judge or jury..." in that respect.

107 On Tuesday, 11 May, 2004 Mrs Pecotic met with Mr Lapham at a local cafe and he informed her in general terms concerning the complaint. Mrs Pecotic requested that she be given a copy of Mrs Buhagiar's letter. Mr Lapham refused to provide her with that letter. Nor was he prepared for Mrs Pecotic to be accompanied by any other person: the emphasis of the discussions was to preserve confidentiality which Mr Lapham believes would be lost unless the counselling was conducted one-on-one. Nevertheless, Mr Lapham subsequently interviewed Ms Simonetta-Beddows (on Wednesday, 12 May, 2004), Mr Wheatland (on Thursday, 13 May, 2004) and Mr Bunter (on Friday, 14 May, 2004) and received written reports from them. Some confidentiality would have been lost in the process of further investigating the matter with those other employees.

108 Mr Wheatland's report actually contained what Mr Lapham considered, correctly in my view, was inappropriate and unhelpful in the task he was called upon to perform. For instance, Mr Wheatland described the actions of Mr Bunter as indicating an "...attitude of male chauvinism, wanting 'yes men' around him and building a secure empire around him..." and that Mrs Pecotic and Ms Simonetta-Beddows:

"...cannot be expected to 'lay down' and not fight for what is right. If this management is using these great people as 'pawns' or 'scapegoats' then not only does it not deserve loyal hardworking people, it deserves to suffer legal action against them..."

Mr Thompson requested that Mr Lapham direct Mr Wheatland to remove those comments and those comments were removed. Bearing in mind Mr Lapham's brief was essentially to smooth over the issues in dispute between Mrs Pecotic, Ms Simonetta-Beddows and Mrs Buhagiar, those comments by Mr Wheatland were more likely to inflame the problem rather than resolve it. Mr Thompson and Mr Lapham were right to press Mr Wheatland to amend his report accordingly. And those comments by Mr Wheatland reveal to me that he was far from an impartial observer in any disagreement between Mrs Pecotic, Ms Simonetta-Beddows and Mrs Buhagiar and I should consider his evidence in this hearing in that light.

109 Mr Lapham's approach in not providing Mrs Pecotic with a copy of Mrs Buhagiar's letter and not inviting her to have a witness present complied strictly with the policy that has been adopted by A V Jennings for equal opportunity. For instance, the Equal Opportunity Compliance Manual for A V Jennings sets out steps for the counselling process and gives the following instruction to the person conducting the counselling session:

"...Outline briefly the details of the complaint as well as the identity of the alleged victim. Do not show the alleged discriminator /harasser/bully what the alleged victim has written..." But that policy is inconsistent with another A V Jennings policy document prepared in early 2001 and which deal specifically with sexual and racial harassment in the workplace, viz:

"...Copies of statements made by witnesses will be made available to the harasser and the complainant. Witnesses will be encouraged to appear at the complaint hearing if requested by either party... The employee accused of harassment will also have the right to be accompanied at the hearing..."

110 Whilst the allegation made against Mrs Pecotic was neither sexually or racially based, I see no reason for different rules to apply to different types of bullying and harassment allegations. And I have some difficulty with any employer policy which denies an employee being confronted with allegations made by a fellow employee with full access to any documents relating to complaints made. I believe that Mrs Pecotic had been placed in something of a disadvantage in the process. I accept that Mr Lapham's role was confined to investigating the matter and not making any conclusions concerning it. But he ultimately provided a report of his counselling session to A V Jennings management, attaching his notes of the interviews he conducted and commenting:

"...I do not have any suggestions other than all parties should (minimum) be given a formal warning on the basis that the situation and issues presented have disrupted the workplace in the warranty department..."

To that extent, I consider that Mr Lapham's role was not entirely as benign as he may have wished it to be or as he has described to me in his evidence.

111 Mrs Pecotic took her own notes of the meeting. She asserted that she spoke to Mr Lapham as follows:

"You're going to have to give me more information and details. I cannot understand what you're talking about."

Mrs Pecotic claimed that Mr Lapham's reply was words to the following effect:

"Off the record, this is a load of bullshit. Don't worry about it. Just tell the truth."

Mr Lapham denied that he made any such off the record comments.

112 Mrs Pecotic was distressed over the allegations and was absent from work on Wednesday, 12 May, 2004. When on Thursday, 13 May, 2004 Mrs Pecotic returned to work Mr Lapham gave her a typed document which purported to be notes from the meeting he had held with her on Tuesday, 11 May, 2004 which Mrs Pecotic claimed were not accurate and at Mr Lapham's request, she typed up a document to be a record of the meeting.

113 Mrs Pecotic was also given a copy of a document as the A V Jennings equal opportunity policy and a counselling acknowledgement form to sign to acknowledge that A V Jennings:

"...has a policy that discriminatory or sexually or racially harassing behaviour will not be tolerated...I understand that if I victimise or treat badly the alleged victim or in any way cause anyone else to do so then I could be liable for the unlawful act EVEN IF THE ALLEGED VICTIM'S ALLEGATIONS ARE NOT TRUE..."

The words in capital letters actually appear in capital letters in the counselling acknowledgement form. I have to say that I regard those words, and the concept that appears to be behind them, as very odd indeed; if an allegation of harassment is not true, then there is no unlawful act at all. It is Catch 22. Just because an allegation of any kind is made does not make it true. Unproven allegations should be dismissed by an employer. An employee wrongly accused of harassing or bullying another employee is entitled to clear her name in that respect. And I would expect an employer to fully investigate any complaint before it acted on it. It does not appear to me, in the initial stages of the counselling process at least, that A V Jennings management carried out any real investigation of the allegations made by Mrs Buhagiar.

114 I appreciate that in the first place it was A V Jennings' intention to bring the disputing parties together in an amicable resolution of the dispute between them. That is the proper course to adopt, in my opinion: As Mr Lapham has suggested in his evidence, that is what I do in the resolution of any industrial disputes and unfair dismissal claims before me. But once the matter progresses to a stage where disciplinary action is contemplated it is necessary for an employer to fully investigate the allegations and draw some conclusions from those allegations. Difficult and sensitive as that task may have proven to be on this occasion, before any claim of harassment against Mrs Pecotic may be substantiated, full investigation of the issues should have taken place. I do not believe that actually occurred. Mrs Buhagiar's allegation of harassment by Mrs Pecotic and Ms Simonetta-Beddows remains unresolved - and probably unresolvable after this length of time.

115 In any event, Mrs Pecotic signed the counselling acknowledgement form in the place provided on Friday, 14 May, 2004 but placed a footnote on the bottom of the form, viz:

"...I resentfully put my name to this form as all these allegations are fabricated and totally untrue..."

Mrs Simonetta-Beddows put her signature to a similar counselling acknowledgement form on Friday, 14 May, 2004. She made an identical comment as a footnote:

"...I resentfully put my name to this form as all these allegations are fabricated and totally untrue..."

116 I am informed by Mrs Pecotic and Ms Simonetta-Beddows that they did not discuss with one another what they intended to write. I find that hard to believe. In view of the unusual word - "resentfully" - appearing in the two separate comments made by Mrs Pecotic and Ms Simonetta-Beddows as footnotes in their individual counselling acknowledgement forms, I do not accept that they did not at least discuss how they would proceed in signing the form and attempt to adopt a common approach to the issue. Mr Lapham indicated in his evidence that he had not volunteered that unusual word "resentfully" to them so that word did not come from him. Mrs Pecotic and Ms Siomonetta-Beddows obviously conferred over their approach to the counselling.

117 The counselling acknowledgement form was forwarded on to Mr Thompson. Mr Lapham said to Mrs Pecotic that he would be forwarding a recommendation to him concerning the issue. Mrs Pecotic claimed that Mr Lapham said to her:

"It is clear that the relationship is irretrievable. You will probably hear something next week."

"The reason I have survived for so long is by staying under the radar. I would not like to be in the position you're in, especially as you have indicated Mr Bunter in all this. We already have a statement from him."

118 Mr Lapham emphatically denied that he made any such comment. He claimed instead that he spoke to her in the following terms:

"The company has certain policies in place and you may not always agree or like them but you are aware of them when you take up employment with the company and you have to abide by the rules. Mr Bunter has been interviewed by me as a witness and his comments will be included in my report to the general manager."

119 One thing was clear, however: the attempt at counselling by Mr Lapham failed. Mr Lapham recorded in his report to A V Jennings:

"...Both 'parties' believe they are telling the truth. It appears to me that the issues raised over the last nine months never seem to have been deemed 'finalised' in their minds. The issues now appear 'personal' and continue to emanate growing resentment between both 'parties'... I have spoken to both 'parties' and asked if I can get them together and discuss the issues and try and find an amicable resolution. Both said the issues have been going on too long and they see no immediate resolution..."

Mr Lapham indicated in his report that there was conflicting evidence before him and he asked rhetorically: "Who do you believe?"

120 The counselling process was taken further by more senior management. On Tuesday, 18 May, 2004 Mrs Pecotic accompanied Mr Lapham to an unoccupied part of the A V Jennings premises to a meeting attended by Mr Thompson and Ms Linacre. She was informed that A V Jennings would deal with this matter internally. Mrs Pecotic claimed that Ms Linacre said that:

"None of this would go on anyone's employment record. All of this was going to be treated separately. Hopefully by the end of this afternoon we will have everyone feeling warm and fuzzy."

121 Ms Linacre requested that Mrs Pecotic prepare a "wish list" and informed her that Mrs Buhagiar and Ms Simonetta-Beddows were doing the same. Ms Linacre also informed Mrs Pecotic that her "wish list" would have one restriction on it: she would not be permitted to go so far as to propose that Mrs Buhagiar be dismissal. Mrs Pecotic's response was:

"This department seriously requires team work to function and Mrs Buhagiar has continually shown that she wants to be on her own and not work as part of a team."

Mrs Pecotic's "wish list" included the need she saw for real support and the provision of resources from A V Jennings management (Mr Bunter). She requested the retraction of Mrs Buhagiar's complaint and that a formal warning be given to her. Mr Thompson and Ms Linacre informed Mrs Pecotic that, whilst Mrs Buhagiar's complaint was not going to be withdrawn, it would not go on Mrs Pecotic's employment file.

122 At the conclusion of the counselling session, Ms Linacre said to Mrs Pecotic:

"I feel very positive about this and we will have a positive outcome that everybody will be able to live with."

That positive view of Ms Linacre was obviously not shared by Mrs Pecotic, however. 123 The decision was taken by Mr Thompson, conveyed to Mrs Pecotic in a letter from him dated Wednesday, 19 May, 2004, that the matter was to be kept confidential between the three women, viz:

"...This letter confirms that the company is continuing to conduct a resolution process. It is vital to the process that the following are observed:

The matter is to be discussed with no one . Confidentiality must be maintained. This also applies to all conversations within your department.

There is to be no victimisation of the complainant.

This directive is effective immediately. Should it come to my attention that there have been breaches of the above, a formal warning letter will be issued to you..."

124 The matter did not end there - as to my mind it should have done. Mrs Pecotic and Ms Simonetta-Beddows were not prepared to let the matter lie. On Thursday, 20 May, 2004 solicitors acting on their behalf wrote to Mr Thompson as follows:

"...In accordance with A V Jennings policy documents and the principles of procedural fairness, we request that you provide in writing to us the following:

2. The nature of the alleged harassment or misconduct.

Dates and times when harassment or misconduct occurred.

Names of witnesses to any incidents of alleged harassment or misconduct.

Any action taken by the complainant in relation to stop the alleged harassment or misconduct.

Any evidence that is relied upon by the complainant.

Failure to provide this information is a denial of natural justice. Until such time as the abovementioned material is provided, our clients decline to further participate in any discussions or meetings that relate to this matter. We request that any further communications in relation to this matter be directed to our office.

Our clients reserve their rights under law. As part of A V Jennings policy, we note that all staff have a right to work in an environment that is free from intimidation or threat. In this regard we trust that this matter can be resolved amicably..."

125 The solicitors whom Mrs Pecotic and Ms Simonetta-Beddows approached apparently specialize in property law and not necessarily industrial law. But a letter from them is nonetheless a letter from a solicitor expressing certain legal consequences for A V Jennings. Mrs Pecotic was taking the issue up a notch. Mr Thompson indicated in his evidence that he was at first irritated by the solicitor's letter and later angry about it. He was anxious to ensure that this matter was handled sensitively in-house. By this time, that was a vain hope on Mr Thompson's part.

126 Parts of the solicitor's letter neither make sense nor seem particularly appropriate to me. For one thing, the name of the complainant was certainly known by Mrs Pecotic and Ms Simonetta-Beddows, as was, at least in general terms, the nature of the harassment or misconduct alleged. And, what is meant when the solicitor's letter speaks of the "...action taken by the complainant to stop the alleged harassment or misconduct..."? It seems to me that the solicitor's letter is suggesting that Mrs Buhagiar was guilty of harassment and misconduct. It was Mrs Pecotic and Ms Simonetta-Beddows who were allegedly guilty of the alleged harassment of Mrs Buhagiar - a claim which admittedly they deny - and there it is no action on the part of Mrs Buhagiar, the complainant, which would address the issue still in dispute.

127 Mrs Pecotic was absent from work. On Friday, 21 May, 2004 Mr Thompson responded by letter, directly to Mrs Pecotic in the following terms:

"...I was surprised and disappointed to read your solicitor's letter. At this stage we will not be responding to your solicitor as we wish to deal with you. This is a workplace issue of conflict for three employees, which I am seeking to resolve in the workplace under our process.

The company has in place a resolution procedure to deal with internal interpersonal work related issues arising from bullying, harassment and discrimination complaints. The resolution process is based on co-workers finding a positive way forward. It relies on the goodwill of all involved, wanting to find a workable solution moving forward. As has been stated to you on numerous occasions, the process does not involve an in depth investigation into who was right or who was wrong in relation to each and every allegation made in relation to a history of interpersonal workplace issues. The company has found from experience that where allegations involve the unwitnessed conduct of two people towards each other it is very difficult to make an absolute fact-finding. What we focus on is trying to find a workable solution for all, moving forward.

...My sense of matters was that all three of you had started to look for positive ways to achieve a resolution to the issues raised. As was pointed out to all three of you...issues regarding workflow and amenity of the warranty department were being addressed. I had hoped that by continuing the resolution process...a workable solution would be found. Unfortunately, your conduct in refusing to come to work today and to engage any further in the company's resolution process has put the company into the position where it has a non-functioning important work department. You do not have the right to, in effect, hold the company to ransom by refusing to attend to do your job unless we follow a process you demand. We have been and will continue to be fair in the process. We just want to work constructively to find a proactive solution for all and not have employees entrench themselves in positions.

Please return to work on Monday, 24 May, 2004 and we can avoid having to take a negative path should you refuse to participate in the process and refuse to attend work in this central area in the business while we work through the issue. We don't want to be put in a situation where we form the view that the relationships are so broken down that none of you can continue in the job. That is not what we want. Please come back to work so we can try to find a way through together... This is the last chance to do so or I will have no choice, with regret, but to take that negative path and consider whether your employment can continue, with you refusing to attend work or participate in our resolution process..."

Mr Thompson's letter concludes with a warning that Mrs Pecotic's non-attendance at work: "...may lead to us having to replace you as we cannot have no one staffing our warranty area. A V Jennings require a functioning warranty section..."

128 Mrs Pecotic forwarded an e-mail to A V Jennings on Friday, 21 May, 2004 indicating that she was ill and that she hoped to resume work on Monday, 24 May, 2004. She has a certificate from an attending medical practitioner dated Thursday, 20 May, 2006 indicating that she was suffering an anxiety state and excusing her from work on Thursday, 20 May, 2004 and Friday, 21 May, 2004.

129 Mrs Pecotic resumed work on Monday, 24 May, 2004. She was provided with a copy of a document which had been prepared by Ms Linacre which was designed to reflect the "wish lists" of Mrs Pecotic, Ms Simonetta-Beddows and Mrs Buhagiar and an attempt to provide a common document - "Proposed Resolution Process" - on which the three women would be prepared to "...sign off on...". 130 Mrs Pecotic informed Mr Thompson and Ms Linacre that she had an appointment with a medical practitioner later that day. Mrs Pecotic asserted that Ms Linacre said:

"Of course you have a doctor's appointment: you all have doctor's appointments."

Mrs Pecotic asked if she should cancel that appointment and Mr Thompson responded:

"No you go and see your doctor but make sure you are here tomorrow morning."

Mrs Pecotic's appointment was with Ms Everingham. She attended the appointment and made further appointments with her.

131 On Tuesday, 25 May, 2005 when Mrs Pecotic arrived at work and logged on her computer, she found an e-mail from Mr Thompson which outlined the way forward and she was informed that there would be a further meeting arranged with Ms Linacre, Ms McCaskey and Mr Thompson later that morning. Mrs Pecotic understood that Mrs Buhagiar and Ms Simonetta-Beddows had received an identical e-mail. When Mrs Pecotic was called to the meeting she discovered that Mrs Buhagiar and Ms Simonetta-Beddows had already attended a meeting and were presently together in another room in discussions. Ms Linacre informed Mrs Pecotic:

"We wanted both girls to sit down and talk before calling you in."

132 Mrs Pecotic claimed in her evidence that Mr Thompson pounded on the desk with his closed fist and demanded that the letter from the solicitor be retracted. Mrs Pecotic replied:

"I only sent the solicitor's letter because the accusations that had been put against me were totally untrue and I feel that I wanted to know more about the accusations. What I was afraid of is now happening. I am being ambushed and not able to defend myself properly."

133 Mr Thompson continued to press for the solicitor's letter to be retracted. Mrs Pecotic informed Mr Thompson that she had been to see Ms Everingham and, according to Mrs Pecotic, Mr Thompson became even more angry and said words to the following effect:

"You were told to discuss this with no-one and yet you have spoken to a solicitor and a psychologist."

Ms Linacre apparently intervened to reinforce Mrs Pecotic's right to seek independent legal advice but Mr Thompson stood up and said:

134 Mr Thompson and Ms Linacre left the office. Ms McCaskey remained and said to Mrs Pecotic:

Ms Linacre returned and the meeting continued without Mr Thompson. Mrs Buhagiar and Ms Simonetta-Beddows joined the meeting and it continued in an apparently amicable fashion. Mrs Pecotic recorded in her written statement that:

"...I spoke to Mrs Buhagiar and Ms Simonetta-Beddows about all sorts of issues within the department and lack of support from within the company. Everybody agreed that if the department had the resources, ie staff and space as well as upper management support, that the pressure would be less on everyone. Mrs Buhagiar agreed that this had gone on for too long. I said to Mrs Buhagiar that I have never done anything against her and that I wish her no harm. I told her that I cared and supported all staff in the department. I said that I treated people the way I liked to be treated - with respect. I spoke to Mrs Buhagiar about her daughter and how I had helped her whilst she was in hospital. Mrs Buhagiar was very emotional and agreed..."

135 Ms Linacre suggested that the three women have a "group hug". Mrs Pecotic claimed that, whilst she was uncomfortable about that "group hug", she shared in it. Mrs Pecotic, Mrs Buhagiar and Ms Simonetta-Beddows then signed off on the document which represented the resolution agreement. Ms Simonetta-Beddows, who was on sick leave at the time, went home. Mrs Buhagiar also went home. Ms Linacre asked Mrs Pecotic to staff the warranty department and she agreed to do so.

136 But the attempts to resolve this internal dispute between Mrs Pecotic, Mrs Buhagiar and Ms Simonetta-Beddows were to fail. Later on Tuesday, 25 May, 2004 Ms McCaskey directed Mrs Pecotic into Mr Thompson's office. Ms McCaskey did not know the reason for the meeting but when Mrs Pecotic arrived at Mr Thompson's office, Ms Linacre told her:

"This is a serious meeting and you need to know that we wanted to give you the chance to respond to our feeling that you may be largely to blame for many of the problems in the team that have gone on in the last six to seven months."

137 Ms Linacre was referring to the alleged threat that Mrs Buhagiar had made concerning Ms Simonetta-Beddows and sought more information concerning it. Mrs Buhagiar had just become aware of the allegation that she had threatened Ms Simonetta-Beddows (presumably from the discussions she had with her) and she had become very distressed. Mrs Pecotic said that she had reported the incident (to Mr Bunter and Ms McCaskey) shortly after it had occurred but since A V Jennings had done nothing about it she believed that had been the end of the matter. As I have indicated earlier in this decision, that was neither the evidence of Mr Bunter nor Ms McCaskey.

138 Ms Linacre said that Mrs Buhagiar had denied making that threat at all. Mrs Pecotic insisted to Ms Linacre that the threat had been made, that she had spoken to Mrs Buhagiar about it at the time and that Mrs Buhagiar had indicated that she had not been sorry she had made the threat. Ms Linacre then asked Mrs Pecotic what Mrs Buhagiar's reaction had been and she claimed that Mrs Pecotic responded:

"I wasn't worried about it because it had been a throw away line and Mrs Buhagiar was just upset about not finding a piece of paper."

139 That is where the difficulties arise for Mrs Pecotic with her version of events. If the threat Mrs Buhagiar allegedly made to Ms Simonetta-Beddows on Friday, 10 October, 2003 was to be taken as genuine and serious, as Mrs Pecotic now suggests in her evidence, it would certainly have been something that, as a supervisor, she should have taken up at that time with A V Jennings management immediately: she had a duty to do so. If, on the other hand, the alleged threat was just a "throw away line", why did she feel the need to raise it at all or to tell Ms Simonetta-Beddows about it?

140 Mrs Pecotic claimed that at the meeting she asked:

"Why is this being brought up now when this happened in October last year?"

Ms Linacre told Mrs Pecotic that she regarded her conduct as serious. The meeting continued until Ms Linacre said to Mrs Pecotic:

"I would like to believe you but it doesn't add up. If you knew Mrs Buhagiar made a throw away statement and that Ms Simonetta-Beddows was scared because of it, why didn't you tell her it was a throw away line? Why say anything at all? You are the manager of the department. You knew one of your workers was very scared of the other because of what you said was just a throw away line. Why didn't you do something to clear the air and resolve the problem? You told management a threat had been made but it was a throw away line. Why didn't you tell your staff? You knew the effect this was having on Ms Simonetta-Beddows and causing problems in the team?"

141 At this point Mrs Pecotic closed her eyes and remained silent for some considerable time. She then looked at the ceiling and started to cry. To break the silence Ms Linacre asked:

"Management needs an explanation. This is very serious. You have caused enormous problems in the group with this. The consequences of what Ms Simonetta-Beddows was told about the threat were terribly serious. She was incredibly stressed and so was Mrs Buhagiar. Both nearly collapsed when the topic was raised."

Mrs Pecotic remained silent, looking at the ceiling and sobbing. Ms Linacre said:

"You are very distressed. So it is probably better if you go home for the day. We will progress this later. I will arrange a taxi for you to go home as you are not in a state to drive."

142 Mrs Pecotic declined that offer of a taxi but she remained silent and crying. Ms Linacre said:

"This is Mr Thompson's office and we need to leave it so he can get on with his work. I will see if I can find somewhere quiet for us to go so you can gather yourself. I will organise a cab for you."

"That's okay. That will solve all your problems. I'll leave. I'm going now."

And she stood up and tried to walk to the door. Ms Linacre took her arm but she brushed her off and left the office. Both Mr Thompson and Ms Linacre were concerned at her mental state and did not want her to drive her vehicle. So was Mr Lapham. He tried to block her but she pushed past him too. Mr Lapham recorded in his written statement that:

"...as I approached Mrs Pecotic's office she was very distressed and just pushed me out of the way. I called after her that I wanted to talk to her because she was in no condition to leave the office and especially drive a car in wet conditions. I followed Mrs Pecotic out to the car park but she just drove straight past me..."

143 Mrs Pecotic also indicated in her evidence that she had been very upset. She got in her car and went home. She admitted that she was in no state to drive her car and she claimed that she cannot recall anything until her daughters found her face down in the gravel in front of her home. She went to the bedroom, helped by her daughters, and locked herself in until her husband broke the door down to find her curled up in the corner.

144 On Wednesday, 26 May, 2004 Mr Thompson wrote to Mrs Pecotic in the following terms:

"...We refer to the discussion that took place following the resolution agreement reached concerning a bullying complaint at the workplace. As you are aware, at the centre of the bullying allegation was a 'rumour' passed on by you that threats of physical harm were made by a fellow employee.

Following discussions...yesterday, it became evident that the most that can be said about this 'rumour' is that it was an 'off the cuff' comment, if it was said at all. Your explanations concerning the rumour, and how you allegedly heard the rumour (ie while in another room and answering telephone calls) are completely unsatisfactory. This matter has caused serious problems and discontent at the workplace. Your failure to provide adequate background concerning the rumour and to correct the impression created by the rumour is an extremely serious matter. Your behaviour constitutes serious misbehaviour (especially on the part of a senior employee) and has imposed an intolerable burden on other employees. These matters may result in the termination of your employment.

The company has serious concerns about the continuation of your employment for the following reasons:

• there is, as a result of these matters, a complete breakdown of trust between you and the company;

• you have failed to comply with your contractual obligation to co-operate with the company (which we consider is a higher obligation in the case of a management-level employee);

• you have impugned the reputation of a fellow employee;

• you have failed to correct the impression created by the rumour outlined above, despite having a number of opportunities to do so; and

• your conduct has resulted in a significant amount of management time being spent to address serious levels of discontent at the workplace.

In an effort to resolve your employment status, the company directs you not to attend for work or undertake any company work from home until further notice. You will continue to be paid during this period.

The company requires you to respond to the allegations outlined in this letter by 3.00pm on Monday, 31 May, 2004. Once the company has heard your response, it will make a final decision concerning your employment. It will advise you of this decision on Tuesday, 1 June, 2004. We suggest that you telephone Ms McCaskey...to arrange a meeting to respond to the allegations raised in this letter. If the company hears no further from you it will proceed to make a decision concerning the continuation of your employment and will advise you on Tuesday, 1 June, 2004..."

145 Mrs Pecotic did not respond to Mr Thompson's letter. She claimed that she was in no fit emotional state to do so. She visited a medical practitioner on Thursday, 27 May, 2004 and he gave her a certificate - the standard WorkCover medical certificate asserting a workplace injury (aggravated depression) - which excused her from attending work until her medical condition was reviewed on Tuesday, 27 July, 2004 which she claimed her son delivered to A V Jennings. It is Ms Linacre's opinion that the medical certificate was no more than a "tactic" on Mrs Pecotic's part to avoid answering the questions put to her and delay the matter further. A V Jennings therefore acted without waiting for Mrs Pecotic to respond to Mr Thompson's letter.

146 Mrs Pecotic's employment was terminated with a letter from Mr Thompson on Monday, 31 May, 2004, viz:

"...I have considered the discussions we had on Tuesday, 25 May, 2004. These discussions have concerned your conduct, including the circulation of a damaging and distressing rumour that Mrs Buhagiar made plausible threats to physically harm Ms Simonetta-Beddows. As you have not responded to my letter dated Wednesday, 26 May, 2004, I can take no other action than to terminate your employment effective from Monday, 31 May, 2004.

We require you to return all company property to Ms McCaskey by Wednesday, 2 June, 2004... You will be paid one month's salary in lieu of notice, as well as your annual leave entitlements... The net amount, after deductions, will be paid to you by electronic funds transfer into your nominated financial institution account. All termination payments will be held until such time as all company property has been returned in a satisfactory condition..."

Mrs Pecotic in letters dated Monday, 27 September, 2004 and Wednesday, 29 September, 2004 requested A V Jennings to re-instate or re-employ her. A V Jenning's response in a letter dated Thursday, 30 September, 2004 was to decline that request.

147 The principal issue before me in this hearing is to determine whether or not, in all the circumstances, Mrs Pecotic's dismissal was unfair - whether or not she actually received a "fair go", to use the long established concept approved by Sheldon J of the former State Industrial Commission in Re Loty and Holloway and the Australian Workers Union (1971) AR 95 at p.99 or, more accurately, whether or not her dismissal was "harsh" , "unreasonable" or "unjust", to use the actually language of S.84(1). [Outboard World Pty Limited v. Muir (1993) 51 IR 167 at pp.182 and 183, Busways v. Johnson (1994) 55 IR 255 at p.261 and Macleay Valley Health Service v. Jeffree (1994) 58 IR 187 at p.192].

148 In the written submissions which he provided to me Mr Dean described the words "harsh", "unreasonable" and "unjust" in S.84(1) as the key to my jurisdiction under Part 6 and he pointed out that those words are read individually and not cumulatively. As the Full Bench of the Commission (Wright J - President, Peterson J and Bishop C) commented in Bankstown City Council v. Paris (1999) 93 IR 209 at p.212: "...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..." But in my experience there is a some similarities in the words "harsh", "unreasonable" and "unjust" and it is not uncommon that all three words will be relevant at the same time in a particular dismissal of an employee. In Parker v. Capital Painters Pty Limited (1996) 68 IR 100, for instance, I commented in that respect (at p.104) that:

"…I recognise a certain amount of imprecision in the expressions 'a fair deal' or 'a fair go all round' in Loty's Case , but it still seems to me that the words 'harsh', 'unreasonable' or 'unjust' contemplate that long established principle of industrial fairness in the State unfair dismissal jurisdiction under the 1996 Act (as it did under the 1940 Industrial Arbitration Act) and which, to my mind, flows naturally out of the ordinary meaning of the words 'harsh' (meaning too severe, having regard to all the circumstances), 'unreasonable' (meaning immoderate, excessive or extravagant) and 'unjust' (meaning unfair, inequitable, undeserved or biased)..."

I expressed similar views in my unreported decision of Wednesday, 13 December, 1995 in Devey v. Enacon Parking Pty Limited [Matter No.IRC 1866 of 1995 at pp.10 and 11].

149 That having been said, a dismissal may be unfair because it was not justified in the first place on the basis that the allegation against a dismissed employee is not established (substantive unfairness). Alternately, a dismissal may be substantively unfair if it is too harsh in the circumstances: to use the words of the Full Bench of the Commission (Fisher J - President, Hungerford J and Connor CC) in Pacific Power v. Crump (1993) 48 IR 296 at p.302), "...the ultimate sanction of termination of employment was too severe a penalty...". A dismissal may also be unfair because the manner in which it was put into effect was unfair in some manner (procedural unfairness). 150 With respect to the question of procedural unfairness, the Full Bench of the Commission (Wright J - President, Walton J - Vice President and Redman C) in Antonakopoulos v. State Bank of New South Wales (1999) 91 IR 385 commented (at p.389):

"…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 S.84. Further…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…"

151 The High Court (Brennan CJ, Dawson and Toohey JJ) in its judgment in Byrne and Frew v. Australian Airlines Limited (1995) 185 CLR 410 concluded (at p.468) that:

"…the propositions we have set out support the submissions for the respondent that it was necessary for the Full Court to look at the whole of the relevant circumstances which were taken into account by the primary judge in determining that there had been no breach of the Award; and, in particular, that it was an error to reverse that ultimate holding purely for reasons associated with what are identified as procedural defects in the steps taken by the respondent to dismiss the appellants. Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or reasonable. The submissions for the respondent in the present appeals appear to concede this. But the burden of the respondent's submissions is that there was an error in determining the issue without regard to the very material circumstances of the finding of the primary judge as to the complicity of the appellants in pilfering. Those submissions should be accepted…"

152 In my opinion, there were, in fact, many procedural flaws in Mrs Pecotic's dismissal, viz:

• the evidence reveals to me a somewhat unsympathetic and far from compassionate approach to Mrs Pecotic mental state following the break-in, particularly from Ms Goulding who appears to have rejected the legitimate role that Ms Everingham had in Mrs Pecotic's recovery from the stress she suffered as a result of that break-in;

• to suggest, as Ms Goulding has in her evidence, that A V Jennings interest as far as Ms Everingham's treatment of Mrs Pecotic was concerned was confined only to the actual break-in was, in my opinion, unrealistic and would have made any assistance Ms Everingham was able to provide to be next to worthless;

• the intention of A V Jennings management was always to smooth over the working relationships and, as far as I can see, no real efforts were made to get to the heart of the difficulties that had emerged in the relationship between Mrs Pecotic, Mrs Buhagiar and Ms Simonetta-Beddows and determine where the faults actually lay until the disciplinary procedure from which Mrs Pecotic's dismissal ultimately flowed was well under way;

• the emphasis on the part of A V Jennings management from the outset was to preserve a level of confidentiality concerning the issue and a resentment on the part of Ms Goulding and Mr Thompson of what they saw as outside interference (from Ms Everingham and Mrs Pecotic's solicitors): an employee always should have the right to seek legal and medical assistance in that respect;

• at the counselling sessions Mrs Pecotic had with Mr Lapham and later with Mr Thompson and Ms Linacre, Mrs Pecotic was given no access to Mrs Buhagiar's letter of complaint - a denial of natural justice, in my opinion - nor was she permitted to have a witness present; * Mrs Pecotic did not appear to receive any warning that her continued employment was in jeopardy until the disciplinary process which led to her dismissal was well under way: in terms of S.88(c) an employer has an obligation to give a warning of unsatisfactory performance prior to dismissal; and

• I appreciate that at the time of Mrs Pecotic's dismissal she was still in a somewhat distressed state, supported by medical certificates: some consideration should have been given to her in that respect and, perhaps, delay any final decision to terminate her services until she was less stressed: looked at in that light, it is arguable that Mrs Pecotic was not given sufficient opportunity to defend her position with A V Jennings management: as outlined in S.88(b) a dismissed employee should be given an opportunity to make out a defence or give an explanation for her conduct and to justify her reinstatement or re-employment.

153 But as Cross indicated in the written submissions he provided to me, in Part 6 proceedings, intervention by a member of the Commission in support of a dismissed employee is always a matter for the discretion of that member. It is still open to the member of the Commission, in the proper case, notwithstanding a technical unfairness about a dismissal, not to intervene in a Part 6 proceeding [Moran v. Abbott Australasia Pty Limited (1994) 54 IR 288 at p.291]. Moreover, procedural issues alone do not conclude this matter. They should not be considered in isolation but in the context of the overall employment and all the circumstances of the dismissal of an employee. In Hospital Employees' Federation of Australia v. Western Hospital (1991) 4 VIR 309 Lawrence DP of the Victorian Industrial Relations Commission commented in that respect (at p.321):

"… It is established that a dismissal may be unfair for substantive reasons or procedural reasons. However, these two are not co-extensive. Just as a dismissal which appears to be procedurally unfair might turn out to be fair, so the observance of procedural fairness might result in a dismissal that is substantively unfair …"

154 In her written statement Ms Linacre recorded her views on which A V Jennings justified the dismissal of Mrs Pecotic. Those views are shared by Mr Thompson who adopted them in his evidence:

"...With the benefit of consideration of all matters in this case, Mr Thompson and I share the opinion that the dismissal by the company of Mrs Pecotic was not harsh, unjust or unreasonable, assessed on the basis of a '...fair go all round...' bouncing both fairness to the employee and fairness to the employer and considering the totality of the circumstances. Whilst it is my understanding that the unfair dismissal laws permit consideration of all information available, whether available at the time of dismissal or subsequently (ie to avoid an employee successfully claiming that they were unfairly dismissed on substance and process up to the date of dismissal, but where subsequent information exposes the true conduct and/or performance of the employee, which further supports the fairness of the dismissal). I believe that Mrs Pecotic should not benefit from information that has come to light, or fallen into context, subsequent to her dismissal, which thwarts the fairness of the dismissal. Mr Thompson and I believe that reasons justifying the fairness, on a fair go all round, of Mrs Pecotic include the following:

(a) her conduct in relation to the alleged threat...;

(b) her various attempts to unjustifiably have Mrs Buhagiar either dismissed or formally warned;

(c) making false, unreasonable, unjustifiable or incorrect allegations regarding Mrs Buhagiar;

(e) deceiving management as to her whereabouts during working hours;

(f) breaching her duty to well and faithfully serve her employer, devoting 100% of her efforts during ordinary working hours for the benefit of A V Jennings as opposed to, and for the benefit of other interests and/or failing to be working for A V Jennings;

(g) by her acts and omissions, causing undue stress or anxiety to Ms Simonetta-Beddows;

(h) by her acts or omissions, causing undue stress or anxiety to other employees;

(i) by her acts or omissions, deliberately, recklessly or negligently acting in such a way as to turn employees against one another, rather than acting in the best interests of A V Jennings to create a positive and encouraging team-based work environments...;

(j) deliberately misleading management of A V Jennings: examples of misleading conduct towards management include misleading management in relation to Mrs Buhagiar's conduct and work performance;

(k) exposing management to potential legal claims by Mrs Buhagiar had we followed Mrs Pecotic's recommendations regarding dismissal or warning of Mrs Buhagiar, and exposing the company to vicarious liability for occupational health and safety or workers compensation claims by Mrs Buhagiar and/or Ms Simonetta-Beddows against the company;

(l) providing differing or misleading explanations of when the alleged threat occurred, whom in management she claimed to have told about the alleged threat and when the alleged threat was reported to management, etc;

(m) grossly unsatisfactory conduct or performance in her leadership role as a manager in A V Jennings not only in relation to the manner in which it appears that she was misleading senior management but also manipulating of emotions and feelings of employees in the company and leading by what appears to be fear and divisiveness, either deliberately or recklessly;

(n) a break down in the company's trust and confidence in her: given many of the abovementioned matters, the company was justified in terminating her employment, and justified in believing that it could not trust her nor have any reasonable confidence in her that would be of a necessary level to have any workable kind of relationship: her acts and omissions means that we cannot trust her as an employee of our company, and have no confidence in her in her integrity: an inherent part of being an employee in a company is not just whether you are mentally and physically capable of doing particular work but also how you conduct yourself as a member of an organisation and as a member of a group of fellow employees;

(o) her conduct and her omissions, and her lack of total honesty and transparency regarding the issues within her group and her claims in relation to workload and the causes of workload led to tying up management in an unjustifiable manner in the latter part of 2003 and 2004: Such management time would not have been necessary if not for her misleading management and, indeed, even deceiving management as to what was really going on within her team and what was causing it;

(p) failure to comply with her obligations of good faith and to act at all times in the best interest of the company in relation to the acts and omissions that are set out above in breach of the company's code of conduct;

(q) failure to meet the requirements of the job description to such an extent as justifying termination of employment;

(r) we consider that some of the matters above are encapsulated within the reasons given in the letter to her dated Wednesday, 26 May, 2004 and where the matters above do not cover each of those points set out in that letter, then we also rely on those other reasons set out in that letter.

Mr Thompson and I consider that the matters above in totality certainly justify dismissal, but even some of them on their own would justify dismissal..."

155 With the exception of paragraphs (e) and (f) in Ms Linacre's written statement, ie "...deceiving management as to her whereabouts during working hours..." and "...breaching the duty to well and faithfully serve her employer, devoting 100% of her efforts during ordinary working hours for the benefit of A V Jennings as opposed to for the benefit of other interests and/or failing to be working for A V Jennings...", Ms Linacre appears to me to be simply saying the same thing 18 times. (I do not believe that the evidence supports the contention that Mrs Pecotic was deceiving management concerning her whereabouts during working hours [paragraph (e)]. Her casual timekeeping was tolerated by A V Jennings management and it cannot now be a ground for her dismissal. With respect to the claim that she breached her duty to devote her efforts entirely to A V Jennings' interests during working times [paragraph (f)], any evidence before me in this hearing is inconclusive.) Ultimately, Mrs Pecotic was dismissed because, in the perception of A V Jennings, she had caused unnecessary friction in the workplace and had spread unsubstantiated rumours concerning an alleged threat by Mrs Buhagiar against Ms Simonetta-Beddows which, in the view of A V Jennings management, was designed to cause disruption in the office and which, in fact, did so.

156 The letter from Mr Thompson on Monday, 31 May, 2004 identifies one issue as the reason for Mrs Pecotic's dismissal, viz:

"...your conduct including the circulation of a damaging and distressing rumour that Mrs Buhagiar made plausible threats to physically harm Ms Simonetta-Beddows..."

I am satisfied that Mrs Pecotic's dismissal flowed entirely out of a simple disagreement which she had with Mrs Buhagiar. As such, the extensive litigation that has flowed from it is most regrettable. This case was never as complicated as Mr Dean appears to me to have from the outset been determined to make it. I would have thought that initially the dispute between Mrs Pecotic, Ms Simonetta-Beddows and Mrs Buhagiar was always eminently capable of being addressed without the unnecessary complications which confronted A V Jennings and which subsequently have plagued the hearing of the matter from the outset - and was probably capable of conciliation if the excessive litigation of the matter had not intruded. I believe that the dispute between the three women was a tempest in a teacup. But it certainly was a tempest that confronted A V Jennings management - and me in this hearing.

157 Mr Dean has primarily pressed for Mrs Pecotic to be reinstated in employment under S.89(1), viz:

"The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed."

Mr Cross has indicated that Mrs Pecotic's position no longer exists. It has been lost in the restructure of the operations of A V Jennings which commenced before Mrs Pecotic was dismissed and has subsequently continued after her dismissal. Mr Dean disputes this claim but, recognising that there may have been changes in the operations of A V Jennings, he has alternatively sought her re-employment under S.89(2), viz:

"If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable."

Mr Dean has submitted that A V Jennings still has a warranty department and that "...someone must run it...". But there is no evidence before me of what work is available were Mrs Pecotic to be either reinstated or re-employed with A V Jennings or whether the level of remuneration provided to any employee working in the reorganised warranty department would be attractive to Mrs Pecotic. 158 Pursuant to S.89(3), Mr Dean has also pressed that Mrs Pecotic receive compensation:

"…that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed…"

He has not made any submissions as to the amount of any remuneration to Mrs Pecotic by virtue of S.89(3), apparently leaving that matter to my discretion, but there is a period of three years from the date of Mrs Pecotic's dismissal to the date of my decision at his disposal.

159 Reinstatement under S.89(1) or re-employment under S.89(2) remain the primary remedy for an unfairly dismissed employee. The preference for reinstatement for an unfairly dismissed employee over monetary compensation has frequently been confirmed by the Commission. For instance, the Full Bench of the Commission (Walton J - Vice President, Hungerford J and Bishop C) in Burge v. BHP Steel Pty Limited (2001) 105 IR 325 commented (at pp.345 and 346) that:

"…in considering the practicability of reinstatement, we are very much mindful of the approach adopted by a Full Court (Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia in Perkins v. Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 at pp.191 and 192 where their Honours observed that '…each case must be decided on its merits…' but that '…in most cases, the employment relationship is capable of withstanding some friction and doubts…'. As their Honours observed further, '…what is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive…' and '…if the employer is of even average fair-mindedness, (the problems) are likely to be short-lived…'. Those comments have been cited with approval by Full Benches of this Commission in Hollingsworth v. Commissioner of Police (No.2) (1999) 88 IR 282 at pp.341 and 342, CCH Australia Limited v. Bowen (1998) 79 IR 206 at pp.217 and 218 and Oswald v. New South Wales Police Service (1999) 90 IR 42 at pp.67 and 68. We affirm the approach as appropriate in the present case…"

And again in Little v. Commissioner of Police (No.2) (2002) 112 IR 212 the Full Bench of the Commission (Wright J - President, Walton J - Vice President and Boland J) commented (at p.243) as follows:

"…Where the Commission finds that the removal of an officer or employee was harsh, unreasonable or unjust, the primary remedy available is reinstatement or re-employment. It is only in circumstances where reinstatement or re-employment are found to be impracticable that the Commission will give consideration to the remedy of compensation… This conclusion is, in any event, clear on the plain words, structure and evident purpose of the terms of S.89..."

160 Many of the players in this sorry saga - Mrs Buhagiar, Ms Simonetta-Beddows, Ms Goulding, Mr Bunter and Mr Thompson - have moved on and there is an entirely new employment environment in A V Jennings operations. Consequently, that may provide Mrs Pecotic a chance for a new start. As Cahill J - Vice President of the former Commission commented in Public Service Professional Officers Association of New South Wales v. Forestry Commission of New South Wales (1990) 39 IR 46 at p.50: "...In this regard, industrial tribunals should examine with some rigour, and should not too readily accept, claims made on behalf of an employer who has been found to have treated an employee unfairly in the matter of termination of employment that there would be '...practical uselessness...' in attempting to re-establish the previous employment relationship..."

But with the extraordinary amount of heat and passion which has been generated in this case - and the delay - is reinstatement or re-employment of Mrs Pecotic with A V Jennings practical? I do not believe so. There has certainly been a loss of trust between Mrs Pecotic and A V Jennings management which would be essential in a position of responsibility. 161 As was stated in Perkins v. Grace Worldwide (Australia) Pty Limited (at p.191):

"...trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause... The implication is not confined to employers; it extends to employees: see for example Blyth Chemicals Limited v. Bushnell (1933) 49 CLR 66 at pp.81 and 82 and North v. Television Corporation Limited (1976) 11 ALR 599 at p.609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based..."

162 And as I indicated to Mr Dean several times during the course of this hearing, the unfortunate delay in resolving this matter acts against Mrs Pecotic's interests in that respect. Macken J of the former Commission in the Berger Paints Case (1984) 9 IR 273 commented (at p.274) that a delay in that case of nearly twelve months in processing an application for reinstatement was an "…almost unsuperable barrier…" for such an application succeeding. And McClelland J of the former Commission also indicated in the Public Service Officers Case (1979) AR 375 at p.378, that the discretion of a member of the Commission to intervene and order reinstatement must always be exercised "…with an eye to the time factor…".

163 That is not to suggest that an employer guilty of stalling the hearing of a claim by an unfairly dismissed employee for her reinstatement or re-employment would be entitled to benefit from such a tactic: he would not. In my opinion, the clock should not run against an unfairly dismissed employee where the delay was due to the conduct of the employer. But for reasons I will outline later in this decision, I believe that the delay in this case was primarily the responsibility of Mr Dean. 164 That would take Mrs Pecotic's Part 6 application to monetary compensation alone in terms of S.89(5):

"If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of six months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave."

And S.89(6) provides directions to me in assessing monetary compensation under S.89(5) in the following terms:

"When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant had succeeded in obtaining alternative employment."

165 McKenna C described the position with Ss.89(5) and 89(6) best in her unreported decision in Henderson v. Rural Lands Protection Board (1997) 74 IR 142 at p.150, when she indicated that the purpose of monetary compensation in Part 6 proceedings:

"…is not to enrich an applicant nor to punish a respondent. Rather, as the remedy indicates, the purpose of the remedy of compensation is to compensate for losses occasioned by a harsh, unreasonable or unjust dismissal..."

Monetary compensation under S.89(5) is not damages. S.89(5) speaks of only "remuneration", meaning actual earnings, and it concerns loss of income. 166 Still, as I indicated in my unreported decision of Wednesday, 23 May, 2001 in Todd v. Mainfreight Distribution Pty Limited [Matters No. IRC 5572 and 5708 of 2002 at p.30]:

"…It seems to me that a certain level of speculation is still suggested by the wording of S.89(6) itself - '…whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment …'. The underlined words suggests to me that members of the Commission are not constrained to concrete facts alone but must make an assessment catering for a range of possibilities, provided always that they do not exceed the six month time limit prescribed by S.89(5)…"

That approach has been confirmed by the Full Bench of the Commission (Wright J - President, Walton J - Vice President, Tabbaa C) in D and R Commercial Pty Limited v. Flood (2002) 113 IR 344 when (at p.363) it said that:

"…the power in the Commission to make a money order, subject to the limitation on the quantum of compensation and the matters required to be taken into account by S.89(6), is nevertheless within the Commission's discretion. Whilst the Commission is required to take into consideration the matters identified in S.89(6), those matters are not necessarily to be reflected in any particular, arithmetic or definitive way in the money order for compensation made…"

I understand that Mrs Pecotic had alternative arrangements for employment soon after her dismissal, although the evidence concerning that employment is, in fact, sparse. Delay

167 Mr Cross has argued in the hearing that Mrs Pecotic and, more particularly Mr Dean representing her, was solely responsible for the delay and what he regards as stalling tactics in advancing this matter. Mr Cross has provided details of the unfortunate history of this matter in a comprehensive document comprising two binders - "Chronology of Delay" - which I admitted into evidence over the objection of Mr Dean who has restated his objection in his written submissions, viz:

"...The respondent had the opportunity to raise the issue of delay during the period of December, 2004 to February, 2006 and have the respondent's evidence tested in cross-examination. The inference may be properly drawn that the respondent did this for the following purposes:

(i) to avoid having a respondent witness being cross-examined on these issues; or

(ii) to rely upon documents that are not properly evidence before the Commission as a tactic in the proceedings.

This effectively denied the applicant the opportunity of having such evidence tested under cross-examination. The respondent now apparently asks the Commission to rely upon selective documents and the submissions as being the complete scenario.

The respondent cannot have it both ways: the respondent chose not to adduce evidence as to delay and should not now be allowed to persuade the Commission of delay by way of the introduction of documents through improper means. It is well settled that final addresses should only refer to evidence adduced in the hearing and properly before the tribunal...What the respondents effectively seek to do is to re-open their case and adduce fresh evidence... The applicant contends that the respondents have sought to introduce evidence (by way of the bundle of documents) which was not called earlier and which has been held back as deliberate tactic..."

But, as Mr Cross has indicated when he provided that material, the document which he supplied and the submissions he made with respect to them are not evidence (even though I treated them as exhibits): they are part of Mr Cross' case in submissions and by supplying them when he did Mr Cross was being fair to Mr Dean , not prejudicing his position. He was foreshadowing to him well in advance that his final submissions would touch on the question of delay and giving Mr Dean ample opportunity to respond to such submissions. The material which Mr Cross supplied to support his comprehensive submissions on the question of delay were essentially court documents and transcripts of proceedings and what I would regard as non-contentious correspondence - material that is not ordinarily adduced as evidence but is simply part of the record. It is material with respect to which Mr Dean was entitled to respond - and he ultimately did so in document which I also marked as an exhibit. 168 The chronology of events Mr Cross summarised (and to which I have added, having regard to developments that have occurred after Mr Cross provided his material) are as follows:

• Mrs Pecotic was dismissed on Monday, 31 May, 2004 and she lodged her Part 6 application on Thursday, 17 June, 2004;

• A V Jennings provided its formal reply to Mrs Pecotic's Part 6 application on Monday, 19 July, 2004;

• a conciliation conference was arranged before O'Neill C on Tuesday, 10 August, 2004 but on Friday, 6 August, 2004 Mrs Pecotic wrote seeking an adjournment of the proceedings until no earlier than Monday, 4 October, 2004;

• on Thursday, 30 September, 2004 Mrs Pecotic amended her Part 6 application to support her allegation that her dismissal was unlawful since at the time of her dismissal she was on sick leave and workers compensation - an issue that fell under a separate section of the 1996 Act (Part 7);

• on Friday, 19 November, 2004 the Part 6 application was further amended to support a further argument that the dismissal was in breach of S.23(1) of the 2000 Occupational Health and Safety Act;

• on Monday, 22 November, 2004 a further amendment to the Part 6 application was made based on an alternate claim that A V Jennings had victimised her in employment over her report of the alleged threat of violence, ie that she made a complaint about a workplace matter that she considered to be unsafe [S.210(1)(j)];

• the matter was mentioned before O'Neill C on Wednesday, 1 December, 2004 at the request of A V Jennings to, among other things, deal with the numerous amendments to the Part 6 application: O'Neill C reminded Mr Dean , appearing for Mrs Pecotic, that the appropriate way to proceed to amend the Part 6 application was by way of a notice of motion;

• in a written statement filed and served on Tuesday, 9 November, 2004 Mrs Pecotic made reference to entries made in her personal computer and electronic storage devices used as a diary or organiser and on Wednesday, 1 December, 2005 A V Jennings filed a notice to produce that material;

• in the proceedings on Wednesday, 1 December, 2005 O'Neill C ordered compliance with that notice to produce;

• on Friday, 10 December, 2004 Mr Dean filed a notice of motion on behalf of Mrs Pecotic that, among other things, the notice to produce by A V Jennings be stayed, varied or set aside: Mrs Pecotic indicated in an accompanying affidavit that she objected to the production of her personal computer in that manner;

• in proceedings on Monday, 20 December, 2004 O'Neill C declined to set the notice to produce aside, although he varied it to permit Mrs Pecotic to comply with it when the proceedings resumed before him on Thursday, 23 December, 2004;

• on Wednesday, 24 December, 2004 A V Jennings filed a notice of motion requiring that Mrs Pecotic's personal computer and related devices be delivered for "imaging" by a forensic accounting team;

• in the further proceedings before O'Neill C on Wednesday, 24 December, 2004 he directed compliance with the notice to produce and the issue would be dealt with in subsequent proceedings (Monday, 7 February, 2005) when the objections by A V Jennings to the amendments to the Part 6 application would also be considered;

• the parties met in the Registry office on Friday, 31 December, 2004 to discuss arrangements for the copying of the computer: the computer was supplied but there was a disagreement over how, and how much of, the computer records would be copied;

• on Tuesday, 4 January, 2005 Mr Dean filed a notice of motion attempting to restrict access to the computer records;

• on Monday, 10 January, 2005 the Registrar made an ex parte order permitting A V Jennings to image the computer's contents in their entirety;

• the hearing took place on Monday, 7 February, 2005 and O'Neill C reserved his decision on the question of the amendment of the Part 6 application;

• on Friday, 25 February, 2005 Mr Dean lodged an appeal against interlocutory orders made by O'Neill C for the production of certain documents;

• on Thursday, 17 March, 2005 Mr Dean filed on Mrs Pecotic's behalf a notice of motion that, among other things, sought that O'Neill C hand down his reserved decision and in proceedings on that date O'Neill C indicated that the file was to be returned to Wright J - President of the Commission for reallocation;

• the matter was set down on Thursday, 7 April, 2005 and Wednesday, 20 April, 2005 before me and programmed for arguments on the amendments to the Part 6 application on Wednesday, 27 July, 2005;

• in the proceedings before me on Wednesday, 20 April, 2005 I vacated the orders made by O'Neill C and adjourned the proceedings until Wednesday, 27 July, 2005 to determine all outstanding procedural matters;

• submissions on the question of the amendment to the Part 6 application were filed and served by Mrs Pecotic on Monday, 20 June, 2005 and A V Jennings' response was filed and served on Wednesday, 20 July, 2005: A V Jennings continued to press for access to Mrs Pecotic's computer and electronic organiser;

• in the hearing before me on Wednesday, 27 July, 2005 I indicated that, whilst issues in relation to victimisation in employment [S.210(1)(j)] or relating to any occupational health and safety issue may be raised in the Part 6 proceedings, such matters would require separate application and I was not prepared to amend the Part 6 application at this stage: there was finally general agreement over Mrs Pecotic's computer records being provided;

• on Thursday, 8 September, 2005 Mrs Pecotic filed a further notice of motion asserting that, among other things, certain documents were privileged and should be returned within seven days to Mrs Pecotic;

• following proceedings before me on Thursday, 22 September, 2005 the parties met and privilege was waived with respect to some documents;

• the Part 6 application was the subject of further mentions for programming on Friday, 4 November, 2005, Friday, 9 December, 2005 and Thursday, 13 April, 2006;

• the file was forwarded to the Registry for the allocation of hearing dates before me commencing on Thursday, 1 June, 2006;

• Mr Cross objected to the S.90 undertaking and it was amended in the proceedings on Friday, 4 August, 2006;

• argument over the production of certain financial records under subpoena was resolved in the proceedings on Thursday, 1 June, 2006;

• in the hearing on Thursday, 1 June, 2006 Mr Cross foreshadowed his objection to much of the material in the written statement of Ms Simonetta-Beddows which was provided in reply and which nevertheless in his view (and mine) contained much fresh material: before Ms Simonetta-Beddows gave her evidence on Friday, 1 September, 2006 Mr Cross pressed his objection to much of the material contained in Ms Simonetta-Beddows' written statement being admitted into evidence and, failing an agreement being reached with Mr Dean , I deleted a substantial part of the evidence;

*further problems arose when Mrs Buhagiar became distressed whilst giving her evidence in the hearing on Thursday, 27 September, 2006 and later, under subpoena, on Thursday, 14 December, 2006, requiring her evidence being given in a somewhat abridged form;

• there was a further delay on Wednesday, 21 February, 2007 when Mr Dean provided detailed material on which he intended to rely for his final submissions only two days before the date allocated for the hearing of final submissions, leaving Mr Cross insufficient time to prepare for his case and leaving me no alternative but to adjourn the proceedings to ensure that he was not disadvantaged;

• final submissions were provided orally on Thursday, 29 March, 2007: I eliminated any requirement for written submissions, which were simply complicating the proceedings, and rejected Mr Dean's request for a further day for his submissions; and

• nevertheless, Mr Dean's submissions extended for the whole of Thursday, 29 March, 2007 and it became necessary for a further day of hearing - Friday, 27 April, 2007 - for Mr Cross' submissions in reply and for any further response from Mr Dean .

I will now deal with some of those issues separately. 169 Firstly, the frequent amendments to the Part 6 application. In the written submissions contained in the document Mr Cross supplied, he commented on the delay in the proceedings, arguing that:

"...The applicant...attempted to amend the Form 7A three times without properly making an application to do so. At the hearing on Wednesday, 1 December, 2004 the applicant's representative indicated that the applicant would provide an amended document that would take out the references to the statutory contraventions but show that the applicant was terminated while she was on workers compensation and/or sick leave and in the alternative that it was unfair for her to be terminated for reporting a threat of violence that was made by an employee to management.

Instead of actually undertaking to do this to try to reach agreement with the respondent on the substantive issue, the applicant a few days later (on Monday, 6 December, 2004) filed and served a notice of motion. At the hearing on Monday, 20 December, 2004 before O'Neill C, the applicant was ordered to report back on her decision as to whether she wanted the matter referred...for determination. On Friday, 24 December, 2004 the matter was adjourned to be dealt with on Monday, 7 February, 2005. At the hearing on that day O'Neill C determined that a separate hearing would need to take place to deal with the amendments. On Thursday, 17 February, 2005 the matter was heard by O'Neill C who reserved his decision.

The applicant on Friday, 25 February, 2005 then lodged an application for leave to appeal and appeal the orders of O'Neill C made on Monday, 7 February, 2005, seeking a stay of the proceedings and a stay of compliance with the orders. On Thursday, 17 March, 2005 the applicant then filed and served a notice of motion seeking that O'Neill C make a determination regarding the amendment to Form 7A. On that date, he made his decision to stand down from the proceedings and hand the file back to the President for re-allocation.

On Wednesday, 27 July, 2005 a determination was made by Connor C that with a S.210 claim, a separate application must be brought. With respect to the occupational health and safety claim, the claim could not be brought before Connor C and the applicant agreed not to pursue a S.93 claim. The matter took over one year to be determined. The delay with respect to dealing with the applicant's amendments was most certainly not due to the respondent. The delay in this matter was completed as a result of the frivolous and vexatious claims, and disregard for the procedures and rules of the Commission..."

170 Mr Dean asserts in his written submissions that it was open to Mrs Pecotic to raise additional grounds in support of Part 6 application "...especially in light of the fact that the evidence supports a cause of action under various other grounds..." and "...the Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice...". That is no doubt correct. But not on the run. These issues should have been brought forward from the outset and not as the proceedings were progressing. 171 Secondly, the problems with Ms Simonetta-Beddows' evidence. Mr Cross commented in his written submissions:

"...At a number of direction hearings - Wednesday, 20 October, 2004 and Wednesday, 1 December, 2004 - before O'Neill C, the applicant was directed to submit all material in chief first, and advised that new material could not be submitted in response to the respondent's reply evidence. Connor C also made an observation on this matter in the proceedings on Wednesday, 27 July, 2005. The applicant was given a number of revised directions and was also given a number of opportunities to put on all of her material first - on Wednesday, 1 December, 2004, Wednesday, 27 July, 2005, Friday, 16 September, 2005 and Friday, 9 December, 2005.

Disregarding the clear directions of the Commission, the applicant on Wednesday, 22 March, 2006 then filed and served material not in reply from a new witness - Ms Simonetta-Beddows. The respondent highlighted the issue it had with the applicant's disrespect for the Commission's directions on Thursday, 13 April, 2006.

The matter was heard subsequently before Connor C on Thursday, 1 June, 2006 and then again on Friday, 1 September, 2006 where it was determined that sections of Ms Simonetta-Beddow's written statement not be allowed as evidence. This delay wasted in effort half a day of the hearing. This delay was solely caused by the applicant's disregard of the Commission's directions and rules..."

172 Mr Dean argued in his written response to Mr Cross' submissions on delay that:

"...the need to have Ms Simonetta-Beddows give any evidence only arose after the respondent introduced additional grounds for just cause termination... If the respondents were so sure of the substance of the matters set out in the witness statement of Ms Linacre, then the respondents should have approached her and asked her to put on a witness statement... The respondents (through Ms Linacre) was clearly endeavouring to rely upon the fear of Ms Simonetta-Beddows to support an additional ground for just cause - item (g) of the witness statement of Ms Linacre - '...causing undue stress or anxiety to Ms Simonetta-Beddows...'.

This improper characterisation of this evidence, required the applicant to call Ms Belinda-Beddows in reply to dispel this mendacious allegation. Prior to that time, there had been no evidence that she could provide as to the unfair dismissal. The best that she could say was: 'I was treated in a similar manner.' That would not have assisted the applicant as to how the respondent treated the applicant, not Ms Simonetta-Beddows..."

To my mind, that is a surprising assertion. I would have thought that Ms Simonetta-Beddows was always an important witness for Mrs Pecotic, not as to the manner A V Jennings management treated her, but as to her attitude to the alleged threat made against her by Mrs Buhagiar and how she was affected by it.

173 Thirdly, the problems in A V Jennings obtaining access to Mrs Pecotic's personal computer records. Mr Cross indicated in his written submissions:

"...The applicant went to significant lengths to ensure that the respondent did not have access to the applicant's computer. The applicant chose not to comply with an initial direction by O'Neill C to comply with the respondent's notice to produce. The applicant attempted on numerous occasions, and unsuccessfully, for the notice to produce to be set aside or varied.

The applicant's representative then claimed that he was 'confused' by O'Neill C's orders given on Friday, 24 December, 2004. The applicant then sought an ex parte order which was given on Monday, 10 January, 2005. If that was not enough, after further orders were made by O'Neill C on Monday, 7 February, 2005, the applicant sought to have those orders set aside due to the extraordinarily alleged 'deception' of the respondent and the applicant appealed the proceedings.

The applicant then attempted to have certain documents not provided to the respondent (excluded), including as well privileged documents, documents that the applicant considered were 'commercially confidential' and the documents that were considered 'irrelevant' without giving reasons. Agreement was finally reached regarding the documents in September, 2005 - over ten months after the initial notice to produce was filed and served. The applicant has vigorously defended the requirement to produce her computer. The delay on this matter has been totally at the behest of the applicant, with no mileage gained, given that the end result was that the applicant provided the computer, access to all documents was allowed, save the documents that were legally privileged..."

"...Given that the computer contained privileged, confidential and thousands of irrelevant documents, it is little wonder that the applicant sought to have some protection. As the Commission will observe...this was a perfectly proper, appropriate and sensible step to take in the proceedings... In a spirit of co-operation, the applicant wrote...on Tuesday, 21 December, 2004, seeking the respondent to identify what documents the respondent was seeking production of from the applicant's computer so that a search may be conducted and ascertain the existence of same..."

"...From the time of being served with the notice to produce in the Commission on Thursday, 9 December, 2004 and the final resolution of what document could be removed from the 18,000 documents by way of privilege was a period of approximately 11 months. The unnecessary requirement for access to the applicant's computer was done simply to delay the proceedings and cause more delay to protect the company and its managers..." 175 Mr Dean further submitted that:

",,,the Commission is entitled to draw the conclusion that the steps taken by the applicant, preserving the integrity of documents printed out from her computer, was well and truly justified. The obvious need to put security in place for the benefit of the applicant all took time to put the security so rightly needed in place. If the applicant had not taken such steps the applicant would have been at the mercy of the respondent and therefore in a very vulnerable position..." 176 The proper approach with any subpoenaed material was described by Moffitt P of the State Supreme Court in Waind v. Hill and National Employers' Mutual General Association Limited (1978) 1 NSWLR 372 at p.381 as three steps, viz:

"…The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document, in whole or in part; or the use of the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights and the functions of the judge differs…"

177 Whilst material called under subpoena may be rejected on the grounds of relevance or privilege, that is an argument made after the material is actually produced in court. For any rational argument on those issues, it is, of course, necessary for the party calling for the material to have access to it [Parramatta City Council v. Health and Building Surveyors Association of New South Wales (1988) 26 IR 398 at p.404]. On the question of privilege, the law recognises the need for candour and confidentiality between a litigant and his or her professional advisers [Reece v. Trye (1846) 9 Beav. 316 at p.319]. Where commercial sensitivity on certain material is an issue, material may be supplied on the basis of undertakings that the party calling for the material will treat it confidentially. But, in the interests of justice in any litigation, a party should be in a position to present any proper argument and, to do so, may require access to material under subpoena. It is essentially a question of balancing the need for privacy of sensitive information against the need for a party to be in possession of all relevant material to present arguments in support of any claim.

178 Fourthly, on the issue of the problems with the respondent's notice to produce filed on Tuesday, 14 December, 2004, Mr Cross indicated in his written statement that:

"...the applicant attempted on numerous occasions for the notice to produce of the respondent filed on Tuesday, 14 December, 2004 to be set aside or varied. When orders were made on Monday, 7 February, 2005 that the applicant provide certain documents related to the notice to produce, the applicant then agitated the issue by mounting an appeal stating that the respondent's legal representative 'deceived' the Commission. The matter was then delayed for a substantial period of time before the notice to produce was finally complied with. The delay on this matter had been totally due to the applicant..."

I summarise Mr Dean's response on that issue as follows:

"...It was perfectly proper for the applicant to seek to limit the time and expense of producing items and or documents that had no probative value... The applicant took a reasonable position and objected to such an irrelevant matter being a matter of production.... The respondent was clearly endeavouring to manoeuvre the applicant into a position they could manipulate to their own advantage..."

179 And, fifthly, on the question of Mrs Pecotic's appeal against the decision of O'Neill C, Mr Cross commented:

"...The applicant's appeal caused considerable delay to the proceedings and involved O'Neill C standing down and re-allocating the matter to Connor C. The respondent submits that the applicant completely abused process by pursuing its appeal. At the initial hearing of the appeal before Kavanagh J, the issue regarding S.173 was set aside and her Honour could not deal with the issue regarding the orders. Her Honour held that a further decision was required of O'Neill C and Kavanagh J refused to deal with the issue regarding the implied refusal of O'Neill C to provide certain alleged documents of correspondence between the respondent and the Commission.

A hearing on Wednesday, 13 April, 2005 before Wright J - President held that Connor C could deal with the interlocutory matter dealing with the release of the correspondence documents between the respondent and the Commission. Wright J recommended to the applicant to obtain legal advice regarding its appeal claim. The respondent was forced to file and serve a notice of motion requesting that the leave be refused and the appeal be dismissed. On Tuesday, 26 April, 2005 the matter was once again before Wright J where the appeal was dismissed.

The appeal process initiated by the applicant was a total abuse of process, where the applicant's representative made scurrilous and defamatory allegations about the respondent's representative. The only outcome from the appeal was that the applicant had further delayed the matter from proceeding..."

180 Mr Dean indicated in his written response to the document Mr Cross had supplied that it had not been Mrs Pecotic's intention to delay the proceedings and, indeed, he argues that it was A V Jennings that was responsible for the delays. Mr Dean sets out his own chronology of events. Essentially, he has argued that from the outset the conduct of the representative of A V Jennings in the initial proceedings before O'Neill had mislead him in the interlocutory orders he made on Tuesday, 7 February, 2005, adversely affecting Mrs Pecotic's rights in relation to the prosecution of her Part 6 application and necessitating O'Neill C to recuse himself and for the matter to be reallocated to me. The solicitor representing A V Jennings had contacted O'Neill C on Wednesday, 9 February, 2005, sending by electronic means to him a letter enclosing the purported interlocutory orders made and that those orders were inconsistent with the orders made by O'Neill C on Tuesday, 7 February, 2005. 181 In his written submissions Mr Dean highlights the fact that originally A V Jennings had provided only an outline of what it expected Mr Bunter to subsequently provide by way of his evidence on or about Tuesday, 28 February, 2006. A more detailed statement of Mr Bunter's evidence did not come forward until much later. A V Jennings indicated that, since Mr Bunter no longer worked for it, he could not be compelled to provide a written statement at that time. In due course a written statement was provided by Mr Bunter. Mr Dean has asserted that the contents of the outline of Mr Bunter's anticipated evidence and the written statement were in conflict and that A V Jennings was attempting to deliberately mislead me and he relies on that assertion to support his claim that it was delaying him in the proper preparation of Mrs Pecotic's case. I do not see any conflict in the outline of submission provided on behalf of Mr Bunter and what he ultimately gave in evidence that would have in any manner prejudiced Mr Dean in the preparation of his case for Mrs Pecotic or his cross-examination of Mr Bunter. 182 Mr Dean claimed that A V Jennings had not come to these Part 6 proceedings by Mrs Pecotic with "clean hands". He wrote: "...The respondent does not come into the Commission with 'clean hands' and should not now come into what is essentially a court of 'equity and good conscious [ sic ]' and say the conduct of the applicant was the cause of delay when any delay was due to the perverse conduct of the respondent... The applicant is aware of the obligation of the parties to minimise delay and expense... The respondent sought to complicate and confuse the proceedings by trying to portray the applicant as introducing new matters when in fact the matters were introduced by the respondents..."

Mr Dean is correct in his assertion that the Commission exercises an equitable jurisdiction [S.163(1)(c)] but I have to say that his allegations against the representatives of A V Jennings appears to me to be a case of the pot calling the kettle black. 183 Later, Mr Dean asserted in his written submissions:

"...The applicant contends inter alia the real purpose was to eliminate the potential for reinstatement and also to cause delay and expense to the proceedings. The respondent's purpose in terminating the applicant and defending this matter in the robust manner that they have, was because they also wanted:

(i) to appease Mrs Buhagiar and minimise any potential for her to take action against the management and/or the company;

(ii) to make it as difficult as possible for the applicant in prosecuting her case;

(iii) to make it as expensive as possible for the applicant to prosecute her case; and

(iv) send a message through the company grapevine (including Mrs Buhagiar) of '...don't mess with A V Jennings...' because it will cost you more than you can imagine to fight them and, in the end, make the whole exercise unviable.

They were also motivated by...self preservation on behalf of the management and the company against potential prosecutions for breach of the Occupational Health and Safety Act and/or the Anti-Discrimination Act and/or damages personally by the management and/or the company... They were also motivated by hope that, at least, one of the additional grounds as set out in the witness statement of Ms Linacre and Mr Thompson could be made out in these proceedings and thereby justify the termination (of the services of Mrs Pecotic). This could then be used as a defence (or plea in mitigation) in any potential prosecution (or damages action by Mrs Buhagiar). The respondents would be able to say in mitigation: 'We got rid of the troublemaker and it was done very swiftly.'

They were further motivated by the hope that they may achieve a far better solution for management and the company that ...by delaying the proceedings to the extent that the management and the respondent were able to be afforded the protection of any potential prosecutions being statute barred by virtue of S.107 of the Occupational Health and Safety Act (ie 2 years and 6 months).

In order to make this case as expensive as possible and delay as long as possible the respondents sought to rely upon additional grounds for termination. None of which had any substance... The respondent should not be allowed to rely upon such perverse conduct as being proof of delay by the applicant..."

184 Mr Dean regards the conduct of A V Jennings as very serious and that it should "...cause the Commission grave concern...". He suggests that A V Jennings, or its representatives, have been guilty of "...making or using false official instruments to pervert the course of justice..." and devotes some space in his written submissions on the question of delay to explore the relevant provisions of the 1900 Crimes Act concerning the indictable offence of perverting the course of justice. He "...respectfully submits that the only appropriate course of action..." - presumably by me - "...is to refer such conduct to the Attorney-General's Department for consideration...". He further states that the allegations he makes against A V Jennings are:

"...so serious...that if the applicant's contentions be correct (and the applicant says that they are) the conduct of the respondent and its representative are matters that fall within the jurisdiction of the 1900 Crimes Act. Then, in the applicant's submission, there is a more appropriate regime in place to test the veracity of what the applicant asserts... On the admission of the respondent's counsel in his written submissions, the proceedings were delayed. It may therefore be rephrased as '...interfering with the administration of justice...'..."

185 Those are very extravagant allegations - and in my opinion they are not supported by the evidence before me. Because an advocate possesses some immunity from actions in defamation for utterances made in court, the ethics of advocacy means that he is obliged not to make extravagant claims which he does not, or cannot, prove. Nor may he attack any person's reputation without good cause to do so [Roupell v. Haws (1863) 3 F and F 784 at p.787, Clyne v. New South Wales Bar Association (1960) 104 CLR 186 and Tringali v. Stewardson, Stubbs and Collett Pty Limited (1966) 1 NSWR 354]. In my opinion, Mr Dean has crossed the line in that respect.

186 In Oldfield v. Keogh (1941) 41 SR(NSW) 106, for instance, there was approval of the following comments flowing from a 1916 lecture on the ethics of advocacy:

...It is no small responsibility which the State throws upon the lawyer in thus confiding to his discretion the reputation of the citizen. No enthusiasm for his client's case, no specious assurance from his client that the insertion of some strong allegations will coerce a favourable settlement, no desire to fortify the relevance of his client's case, entitles the advocate to trespass, in matters involving reputation, a hair's-breadth beyond what the facts as laid before him and duly vouched and tested will justify. It will not do to say lightly that it is for the court to decide the matter. It is for counsel to see that no man's name is wantonly attacked..."

As I understand the position, Mr Dean is neither a barrister nor a solicitor but he is still not entitled to depart so much from the facts as they are presented to me in this hearing as I believe he has done. And whilst a legal representative in a hearing enjoys some immunity from a suit against him, a lay advocate may not. 187 The approach taken by Mr Dean in this hearing was no doubt always open to him to pursue on behalf of his client, Mrs Pecotic. But that approach has been unhelpful to me and, ultimately, to Mrs Pecotic. If there was ever any possibility of Mrs Pecotic's claims being conciliated - and most unfair dismissal claims are disposed of in that manner in the best interests of both parties - that possibility of conciliation was clearly lost with Mr Dean's approach and his attitude to his opponents. The result has been unnecessary delay and complications. Delay and complications have been Mrs Pecotic's enemies for an amicable resolution of this matter.

188 As I indicated to Mr Dean several times during the course of this hearing, the unfortunate delay in resolving this matter acts primarily against Mrs Pecotic's interests. It certainly makes her reinstatement after this length of time considerably more difficult for her to achieve. And, if the fault primarily rests with Mr Dean for the delay in the matter - and I believe that it does - then any claim under S.89(3) for recompense for remuneration that would have been earned between the date of the dismissal and the date of this decision would be lost.

189 Mr Dean has conceded in his submissions for the hearing that he bears the onus of proof to establish the unfairness of Mrs Pecotic's dismissal [Western Suburbs District Ambulance Service v. Tipping (1957) AR 273 at p.279 and Nowra Bomaderry Leagues Club v. Federated Liquor and Allied Employees' Union of Australia (1986) 15 IR 463 at p.464]. In his oral submissions, Mr Dean has challenged the credibility of the witnesses called by Mr Cross and indicated that the evidence of Mrs Pecotic and Mr Wheatland should be preferred. He has described Mrs Buhargiar as a "...rogue employee..." who was "unbalanced" and that her evidence should not be accepted. 190 Mr Dean has claimed that Mrs Pecotic's dismissal was both substantively unfair (because the basis on which she was dismissed was harsh, flawed and improper) and procedurally unfair (because the manner in which it was put into effect was also flawed and the penalty was out of all proportion to the issue itself). Mr Dean asserted in the written submissions which he provided to me that A V Jennings had acted unreasonably and unjustly in terminating Mrs Pecotic's services - he has not apparently relied on the words "harsh" in that respect. I summarise his assertions as follows: * Ms Goulding intentionally and without reasonable excuse obstructed Mrs Pecotic in obtaining aid for an injury occurring at work, ie the break-in;

• Mr Lapham failed to inform Mrs Pecotic that statements she provided may be used to her detriment in subsequent disciplinary proceedings;

• Mr Lapham did not provide a copy of statements made by Mrs Buhagiar, Mr Bunter, Mr Wheatland or Ms Simonetta-Beddows which were obtained during the course of the grievance settlement procedure: nor subsequently did Mr Thompson and Ms Linacre ;

• Mr Thompson had instructed Mrs Pecotic to keep the counselling process confidential and precluded her from taking the matter up with any other person, eg a solicitor;

• there were flaws in the grievance settling procedure in place for A V Jennings in that Mr Lapham was required to notify management whether any disciplinary action was warranted and what disciplinary action was appropriate;

• Mr Thompson and Ms Linacre failed to inform Mrs Pecotic prior to the meeting on Tuesday, 25 May, 2004 the nature and subject matter of the meeting, that it was a disciplinary meeting and that her employment may be terminated following it: she had previously been informed that her employment was not in jeopardy;

• there was not a proper investigation into the alleged threat made by Mrs Buhagiar against Ms Simonetta-Beddows by A V Jennings management or, alternatively, if such investigation took place and conclusions drawn from it, those conclusions were not drawn to the attention of Mrs Pecotic or her agents;

• A V Jennings management had failed to provide any conclusive evidence to Mrs Pecotic to support its assertion that she had made a false rumour;

• Mr Thompson and Ms Linacre apparently determined Mrs Pecotic's guilt as a consequence of her strong emotional reaction to the questioning she received in the meeting on Tuesday, 25 May, 2004;

• the letter dated Wednesday, 26 May, 2004 from Mr Thompson required Mrs Pecotic's response (by Monday, 31 May, 2004) to what Mr Dean regarded as unsubstantiated allegations and the letter also contained further allegations not previously mentioned; there were no facts in the letter on which Mrs Pecotic could provide an appropriate answer and the letter contained matters relied upon by A V Jennings which did not provide a factual or legal basis for the termination of Mrs Pecotic's services;

• it was unreasonable to expect Mrs Pecotic to provide a response to Mr Thompson's letter of Wednesday, 26 May, 2004 at the time that she was not in any fit medical condition to do so - and A V Jennings management were aware of that fact; at the time of the dismissal Mrs Pecotic was lawfully entitled to be absent from work due to her genuine medical condition.

• Mrs Pecotic was under an obligation to report Mrs Buhagiar's threat by virtue of Ss.20 and 23 of the Occupational Health and Safety Act and should not therefore be dismissed because she made that threat known to A V Jennings management;

• the dismissal of Mrs Pecotic had no basis in fact, either at the time it was made or subsequently in the light of the evidence before me in this hearing; and

• Mrs Pecotic was given no opportunity to make out a defence of her position or give an explanation of her conduct; nor had she received any warning of her unsatisfactory conduct.

191 It is Mr Dean's assertion, contained in his written submissions, that Mr Thompson and Ms Linacre "...prejudged the guilt of the applicant prior to the meeting on Tuesday, 25 May, 2004. He has relied on comments made by Cambridge C in his unreported ex tempore decision of Friday, 2 June, 2006 in Walsh v. Sangra Holdings Pty Limited [Matter No.IRC 5923 of 2005 at p.4], viz:

"...The Commission finds that the dismissal of the applicant was harsh, unreasonable and unjust. The dismissal was, harsh, unreasonable and unjust because it was without proper basis and implemented with deficient process. The applicant was not provided with proper opportunity to make out a defence or offer an explanation...Therefore the primary substantive basis for dismissal cannot be established as a finding of fact..."

192 Mr Dean has also relied in his written submissions on the statutory protection provided to employees injured in the course of their employment. At the time of her dismissal - Monday, 30 May, 2004 - the relevant provision was S.92 - Part 7, viz: "(1) If an injured employee is dismissed because he or she is not fit for employment as a result of the injury received , the employee may apply to the employer for reinstatement to employment of a kind specified in the application.

(2) The kind of employment for which the employee applies for reinstatement cannot be more advantageous to the employee than that in which the employee was engaged when he or she first became unfit for employment because of the injury.

(3) The employee must produce to the employer a certificate given by a medical practitioner to the effect that the employee is fit for employment of the kind for which the employee applies for reinstatement." (The 2006 amendment to the 1987 Workers Compensation Act to which Mr Dean referred in that connection in his written submissions commenced operation only on Friday, 1 December, 2006 and, consequently, it is the provisions in Part 7 which apply). However, the fact remains that Mrs Pecotic was not dismissed because of any injury she received in the course of her employment. S.92 does not apply to Mrs Pecotic's dismissal. I am satisfied that the break-in was no more than background to what was to follow. The issue really centres on the relationship between Mrs Pecotic and Mrs Buhagiar. 193 Mr Dean also referred in his submissions to the obligation that fell on Mrs Pecotic to report any issue of workplace safety. In that respect S.20 of the Occupational Health and Safety Act provides as follows: "(1) An employee must, while at work, take reasonable care for the health and safety of people who are at the employee's place of work and who may be affected by the employee's acts or omissions at work.

(2) An employee must, while at work, co-operate with his or her employer or other person so far as is necessary to enable compliance with any requirement under this Act or the regulations that is imposed in the interests of health, safety and welfare on the employer or any other person."

And, more importantly, S.23(a) of the Occupational Health and Safety Act and S.210(j) of the Industrial Relations Act provides protection to any employee who makes a complaint over an issue raising occupational health and safety issues. Submissions of Mr Cross

194 In written submissions Mr Cross has emphasised that the onus for making out a case in these Part 6 proceedings to warrant the intervention of the Commission in support of Mrs Pecotic falls on Mr Dean and he sees the hearing as essentially a question of determining, where the evidence is in conflict, which of the witnesses to prefer. He argues that each of the witnesses he called for A V Jennings: "...gave their evidence freely and openly, and the Commission can have no cause to disbelieve any of the respondent's witnesses... In contrast, the witnesses called by the applicant were particularly guarded and we submit unreliable in the evidence that they gave..."

Mr Cross submitted that I should prefer the evidence of Mrs Buhagiar that she never made any threat against Ms Simonetta-Beddows at all or, in the alternative, that if such a threat was made it was not intended to be serious. 195 In particular, Mr Cross asserts that the evidence of Mrs Pecotic should be treated with extreme caution, having regard to the inaccuracy of the entries she recorded in her computer diary and the delay in providing that material. The veracity of the diary entries could not really be tested until the hearing had commenced. It was established in cross-examination that all computers and palm pilots would have the same entries: the only difference would be in styles of print and even if an entry had been altered, the two versions should be identical but there were differences in the font and the order of diary entries. The changes to the records were described by Mrs Pecotic as "...tidying up..." some four months after the entries had been made and, it appeared from the evidence, on some occasions after her employment had been terminated. Mr Cross described the computer records as a "...creation or a fabrication..." 196 Similarly, Mr Cross challenges the evidence of Ms Simonetta-Beddows and Mr Wheatland. As far as Mr Wheatland's evidence is concerned, Mr Cross commented in his written submissions:

"...Mr Wheatland...was called, in part, in relation to 'helpful' diary entries that he was alleged to have made. The Commission would be understandably sceptical as to the veracity of those entries in the circumstances where, when the whole diary is considered, it is clear that the only entries regarding detail of conversations that were made by Mr Wheatland, were solely in relation to the applicant and Mrs Buhagiar and he made no entries regarding matters of significance to himself, such as his six monthly job review that management were not prepared to approve.

The Commission will also be understandably sceptical of Mr Wheatland's curious explanations of the locations of the placement in the diary of entries of some alleged conversations... Of course, it was Mr Wheatland's evidence that he thought it was important to make note that may be supportive of the applicant's case..."

197 Mr Cross asserted in those written submissions that:

"...the principal reason for the termination of employment was the conveyance by the applicant of the alleged threat of physical harm by Mrs Buhagiar against Ms Simonetta-Beddows and the motivation, effect and implications of that conveyance. A part of the consideration of that reason also involves a determination of the time at which the alleged threat was conveyed, the context in which it was conveyed and whether the alleged threat was, in essence, an 'off the cuff.' comment that was ultimately exaggerated by the applicant. A significant exacerbating feature was that the applicant was the responsible manager of the area, thereby possessing greater responsibility and accountability. It is the contention of the respondent that the threat was conveyed by the applicant to Ms Simonetta-Beddows during the investigation of the bullying complaint by Mrs Buhagiar, at a time when the applicant had been asked to keep the complaint confidential in order to deflect attention away from the bullying complaint made against the applicant... It would appear that the cause of the applicant acting as she did was her disquiet at having her recommendations for termination/ disciplining of Mrs Buhagiar turned down on October, 2003 and February, 2004..."

198 Mr Cross has rejected what he claimed was the basis of Mr Dean's submissions, ie that there was a "conspiracy" by A V Jenning's management against Mrs Pecotic. In any event, Mr Cross also emphasised that such a complaint was put to none of the members of A V Jennings management when they were giving their evidence and Mr Dean's claim should be dismissed on that basis alone.

199 To ensure fairness between the parties in a hearing, whilst it may generally be undesirable, it may still be sufficient for such an allegation to be raised for the first time only in the hearing in the final submissions of Mr Dean because Mr Cross would still be able to refute such an allegation in his submissions in reply - as he has done [Fletcher v. Commissioner of Taxation (1988) 84 ALR 295 at pp.307 to 310]. As the Full Bench of the Commission (Wright J - President, Walton J - Vice President and Neal C) indicated in CGEA Transport Limited v. Transport Workers Union of Australia (2001) 110 IR 211 at p.221]:

"...Fairness requires that each party be given an opportunity to meet the case which is put against him or her. In adversarial proceedings, this ordinarily means that the decision maker is precluded from addressing issues not raised by the charges or pleadings and the submissions of the parties at hearing ..."

200 But such an allegation must be on evidence capable of being properly tested in the hearing in the first place. That means Mr Dean has the obligation of putting such an allegation to the management witnesses called by Mr Cross. He did not do so. There is, of course, the well established duty of litigants to put forward to witnesses any allegation they wish to make against them [Browne v. Dunn (1893) 6 R 67]. That applies as much to witnesses representing the employer as it does to a dismissed employee seeking relief in a Part 6 application.

201 Mr Cross concluded his written submissions as follows:

"...Extraordinarily, and notwithstanding numerous directions and a decision of the Commission, the applicant continues to agitate issues not before the Commission. The applicant is pursuant to S.84 and there exist no applications, and as a result there is no ability for the Commission to consider S.210 or any allegation pursuant to occupational health and safety or workers compensation..."

Nevertheless, those issues are, I believe, at least indirectly before me. It must follow, for instance, that if an employee is dismissed - victimised in employment - because she made a complaint over a workplace matter, whatever may flow from the operation of S.210, it would also constitute an unfairness to her within the context of Part 6. Similarly, a dismissal arising from a legitimate occupational health and safety concern or a workers compensation issue would also no doubt raise the question of fairness in the dismissal. 202 But these issues are essentially red herrings for Mrs Pecotic's Part 6 application, as far as I am concerned. Mrs Pecotic was dismissed because she spread a rumour concerning Mrs Buhagiar's alleged threat against Ms Simonetta-Beddows. I see no relevance in these additional issues which Mr Dean has raised. Conclusion

203 Despite the extensive evidence before me, I still do not know the reason why Mrs Pecotic was so antagonistic to Mrs Buhagiar - or why Mrs Buhagiar was so antagonistic to Mrs Pecotic, for that matter. That remains a mystery. The emphasis placed by A V Jennings management on this unfortunate dispute in the workplace, at least initially, was not to investigate the allegations flowing between Mrs Pecotic, Ms Simonetta-Beddows and Mrs Buhagiar but to try to smooth over the cracks in the relationship between the three women and not apportion blame. It was a sensible course for A V Jennings to adopt, in my opinion, but with the benefit of hindsight it was never going to work in this case. The antagonisms in the workplace ran too deep for any really effective working relationship between Mrs Pecotic and Mrs Buhagiar to be restored. 204 Once A V Jennings management had reached a point where Mrs Pecotic's dismissal was being contemplated, possibly a greater effort should have been made to investigate the allegations made by both parties. I am not convinced that really occurred. But, in any event, such subsequent investigation as was conducted by Ms Linacre seems to have come up against the same brick wall that I have been faced with in this hearing.

205 The disturbing conflict in the evidence before me in this hearing means that this case must ultimately turn on the credibility of the witnesses and, in particular, Mrs Pecotic. Although I have referred to Mrs Buhagiar's comments in her written statement, because Mr Dean was not able to complete his cross-examination of her, I do not believe that I may with any confidence rely on what she wrote - except to the extent that it goes to illustrate the extraordinarily poisonous relationship which had developed between her and Mrs Pecotic and Ms Simonetta-Beddows. But, in my opinion, that does not necessarily mean that I must automatically adopt the version of events as outlined by Mrs Pecotic, whose evidence I am still not prepared to accept in its entirety.

206 For the reasons I outlined earlier in this decision, neither Mrs Pecotic's computer records nor the evidence and diary entries of Mr Wheatland are acceptable as corroboration of Mrs Pecotic's version of events. They are suspicious, self-serving evidence at best. And, in my opinion, the claims made by Mrs Pecotic, supported by Ms Simonetta-Beddows and Mr Wheatland in this hearing, that Mrs Buhagiar was a dangerous woman simply do not stack up in view of the emotionally drained woman I observed giving her evidence up to the time that she broke down. Her demeanour in the witness box is so far from Mr Dean's characterization of her in the hearing, as to reach the level of absurdity.

207 That having been said, it would seem to me from the evidence led in this hearing that it was highly likely that Mrs Buhagiar actually did make the alleged threat on Friday, 10 October, 2003 as Mrs Pecotic asserted, notwithstanding Mrs Buhagiar's denials that she had not done so. If the allegation was to be taken as serious, on the basis of Mrs Pecotic's own evidence in this hearing - which, in any event, on balance and in the light conflicting version of events advanced by Ms McCaskey and Mr Bunter in this hearing, I am not prepared to accept - Mrs Pecotic did not make the alleged threat by Mrs Buhagiar known to representatives of A V Jennings management until twelve days later. I am satisfied that Mrs Pecotic did not immediately communicate that threat to A V Jennings management for the simple reason that it was no more than a figure of speech on Mrs Buhagiar's part. It was an off-the-cuff remark which was not meant to be taken seriously - and which, more importantly, Mrs Pecotic did not take seriously until later when she decided to use it as a weapon to bring Mrs Buhagiar's employment to an end.

208 It appears to me that Mrs Pecotic was prepared to use Ms Simonetta-Beddows as a pawn in her attempts to undermine Mrs Buhagiar. I assessed Ms Simonetta-Beddows from her demeanour when she gave evidence to be a woman of somewhat sensitive disposition and highly open to any suggestion made to her. It was wrong for Mrs Pecotic to involve her in her campaign to get rid of Mrs Buhagiar and stir up trouble in the workplace at Mrs Buhagiar's expense.

209 The sequence of the events suggests to me the following scenario:

• Mrs Pecotic sought to have Mrs Buhagiar's probationary period brought to an end, ostensibly because she had assessed her as an unsatisfactory employee;

• she was frustrated in that course of action when her recommendation to terminate Mrs Buhagiar's employment was not accepted by Mr Bunter and Ms Goulding and even a formal warning given to Mrs Buhagiar was subsequently withdrawn;

• in early 2004, to assist her argument for Mrs Buhagiar to be dismissed, Mrs Pecotic raised the alleged threat with Ms McCaskey and Mr Bunter in an informal manner but she did not provide anything to back up her allegation nor did she really press it at that time;

• Mrs Buhagiar either discovered that Mrs Pecotic was seeking to achieve the annulment of her employment or suspected it - the warning she received and which was then withdrawn would have informed her of Mrs Pecotic's intentions with respect to her - and she responded with the complaint that she was being bullied by Mrs Pecotic and Ms Simonetta-Beddows;

• without attempting to apportion blame, A V Jennings management set out to provide counselling in an effort to smooth over the friction in the working relationship between Mrs Pecotic, Ms Simonetta-Beddows and Mrs Buhagiar;

• Mrs Pecotic took the matter further with a solicitor's letter, breaching the confidentiality which A V Jennings management had believed was so important for the resolution of the dispute and which in any case served to raise the dispute to a higher level rather than end it;

• Mrs Pecotic (and Mr Wheatland) told Ms Simonetta-Beddows about the alleged threat - sometime in May, 2004, it would appear: I believe she did so to cause trouble between Mrs Buhagiar and Ms Simonetta-Beddows and that is what occurred; * during the discussions as part of that counselling process, Mrs Buhagiar became aware of Mrs Pecotic's allegation that she had threatened Ms Simonetta-Beddows, upsetting the counselling process and, in the view of A V Jennings, causing unnecessary trouble in the workplace between the three women;

• in the subsequent disciplinary hearing conducted by Mr Thompson and Ms Linacre, Mrs Pecotic refused to give a satisfactory answer for her conduct; and

• she declined to give any further defence for her position, although she was given an opportunity to do so.

210 As the Full Bench of the Federal Court indicated in Perkins v. Grace Worldwide (Australia) Pty Limited (at p.191), trust and confidence is a necessary ingredient in any employment relationship, "...provided that such loss of trust and confidence is soundly and rationally based...". That is particularly the case for a person occupying a supervisory role, as was the case of Mrs Pecotic. Whilst a senior employee is still entitled to be treated fairly in her employment and in the termination of her services, as McLelland J of the former Commission indicated in his unreported decision of Friday, 8 December, 1978 in the Elizabeth Drive Nursing Home Case [Matter No.537 of 1978 at p.7] "...different rules apply to chiefs than to mere indians...". A V Jennings' lack of trust and confidence in Mrs Pecotic has been due to her own conduct and I am satisfied that it is based on reasonable grounds. 211 I believe that Mrs Pecotic has no one other than herself to blame for the situation in which she found herself. I am satisfied that A V Jennings management did everything it could to resolve the workplace dispute amicably in everybody's interests but it appears to me that Mrs Pecotic ignored efforts by A V Jennings in that respect and chose instead to simply throw petrol on a fire that was smouldering away. Ultimately, Mrs Pecotic's dismissal became an unfortunate inevitability, in my opinion.

212 In the circumstances, I propose to dismiss Mrs Pecotic's Part 6 application. I reserve to the parties their position with respect to costs.

Buhagiar, Dianne* former employee Bunter, Mark former construction manager Finniss, Fay administrative assistant Everingham, Lyn clinical psychologist Goulding, Janelle former general manager Lapham, Trevor purchasing manager Linacre, Helga secretary and corporate counsel McCaskey, Fiona personnel manager Pecotic, Elma applicant Simonetta-Beddows, Belinda former sales assistant Thompson, James general manager (retired) Wheatland, Barry former warranty supervisor

• Cross-examination aborted due to the emotional state of witness

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