Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Kylie McKelvie) and Department of Juvenile Justice [2008] NSWIRComm 98

Industrial dispute - unfair dismissal - victimisation - Youth Officer at juvenile justice centre - decision not to offer any further shifts to employee - employee not told of decision - employee and Union not told of reasons for decision - false reason given to employee, Union and the Commission - Union activities of delegate - allegations of bullying and harassment - Spokeswomens' program - Union matters raised with management - notes and record of meetings - conversation between senior managers about other matters - matters of concern never raised with employee - allegation that Union activities prompted dismissal - breach of freedom of association provisions - reverse onus - substantial and operative cause of dismissal - procedural unfairness - whether casual employee may be dismissed at any time - relevant principles. CATCHWORDS: Held; significant issues for the relationship between Union and respondent - public interest - unfair dismissal ultimate manifestation of victimisation - meaning of victimisation - intent of the provisions - unfair dismissal provisions - meaning of harsh, unreasonable and unjust - procedural fairness principles - dismissal at will and at any time - failure to call relevant witnesses to give evidence - admission that prospective witness would be unreliable - admission of procedural unfairness - unacceptable not to inform employees of decision to dismiss or reasons for decision - gross denial of procedural fairness and natural justice - reliance on Public Sector Employment and Management Act not available - false reason given to employee, Union and the Commission - recommendation that investigation be held as to instructions given to Counsel - effect of dismissal - implication of 'coverup' - failure to call relevant persons to give evidence - no note or written record of decision - decision conveyed orally to senior management - no confidence in evidence of decision maker - employee's evidence preferred - no evidence of inappropriate conduct - employee warned about Union activities - finding of unfair dismissal - finding of victimisation - no issue of the impracticality of reinstatement - recommendations - reinstatement ordered - orders for lost remuneration and continuity - dispute discontinued.

Industrial Relations Act 1996 LEGISLATION CITED: Police Act 1990 Public Sector Employment and Management Act 2002

Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Annetts and Another v McCann and Others (1990) 170 CLR 596 Buckman and Another v Burdekin Resources NL (1998) 85 IR 415 Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 Byrne v Australian Airlines Limited (1995) 185 CLR 410 Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364 Donovan and Anor v Kensington Pharmacy and Newsagency [2004] NSWIRComm 385 CASES CITED: Four Sons Pty Ltd v Sakchai Limsiripothong (2000) 98 IR 1 Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd (2003) 128 IR 37 Jarratt v Commissioner of Police for New South Wales and Another (2005) 224 CLR 44 Jarratt v Commissioner of Police for New South Wales and State of New South Wales (2002) 56 NSWLR 72 Jones v Dunkel (1959) 101 CLR 298 Kelly v Commissioner of the Department of Corrective Services and Another (2001) 106 IR 181 New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89 National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 Twentieth Superpace Nominees Pty Ltd (t/as Specialised Container Transport) v Transport Workers' Union (NSW) (2006) 156 IR 323

HEARING DATES: 12 March 2008; 13 March 2008; 10 April 2008

APPLICANT Mr A Hatcher of Counsel Solicitor: Ms A McRobert W G McNally Jones Staff LEGAL REPRESENTATIVES: RESPONDENT Ms T Anderson of Counsel Assisted by: Mr P Houston Department of Juvenile Justice

• 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Kylie McKelvie) and Department of Juvenile Justice

Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of its member Kylie McKelvie re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Kylie McKelvie) and Department of Juvenile Justice

Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of its member Kylie McKelvie for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996

Notification under section 130 by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales of a dispute with Department of Juvenile Justice and another re fixed term contract DECISION [2008] NSWIRComm 98 1 These three matters arise from a decision made on or about 5 August 2007, by the Centre Manager of the Orana Juvenile Justice Centre ('the Centre'), Ms Janet Curran, not to offer any further shifts to Ms Kylie McKelvie, who was employed as a casual Youth Officer at the Centre. Orana is a 30 bed juvenile detention centre administered by the Department of Juvenile Justice ('the respondent') at Dubbo, NSW. 2 It was accepted by the respondent that Ms Curran's decision not to offer any further shifts to Ms McKelvie was effectively a decision to dismiss her for the purposes of Pt 6 Ch 2 of the Industrial Relations Act 1996 ('the Act'). Further, no jurisdictional issue was raised as to Ms McKelvie's casual status at the time of her dismissal. 3 The three matters filed by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ('the Union') were listed for conciliation and directions on 17 October 2007. On that occasion, it was said by Ms Anderson, of Counsel for the respondent, that one of the reasons why Ms McKelvie was not offered any further shifts was that she did not possess a full drivers' licence at the time. Ms McKelvie possessed a green P plate licence until 5 December 2007 when she then became eligible for her full licence. It was never made clear to me why a Youth Officer would be required to possess a full drivers' licence, particularly in circumstances where the respondent was fully aware that Ms McKelvie did not have such a licence during the 18 months of her employment. Nevertheless, during the arbitration of these matters, it was established that this stated reason for not offering Ms McKelvie any further shifts, was not, at all, the reason why the decision had been made by Ms Curran to dismiss her. I shall have more to say about this matter later in this decision. 4 The two applications and dispute notification were not able to be settled and directions were issued in preparation of the matters proceeding to arbitration with the taking of evidence in Dubbo. EMPLOYMENT HISTORY 5 Ms McKelvie is 24 years old and holds a Bachelor of Social Science in Psychology. She is currently completing her fourth year of a Psychology degree and is enrolled in Honours in Criminology / Justice Studies. She also holds the respondent's Youth Worker Certificate 4. 6 Ms McKelvie commenced employment with the respondent on 6 February 2006 as a temporary employee pursuant to s 27 of the Public Sector Employment and Management Act 2002. On 22 March 2006, Ms McKelvie was offered an opportunity to be added to the list of available casual Youth Officers at the Centre. From that time, and until 6 August 2006, she worked approximately 15 to 19 shifts a month. In July 2006, Ms McKelvie applied for a permanent Youth Officer position, but was unsuccessful. Nevertheless, her name was placed on an eligibility list. 7 On 7 August, Ms McKelvie commenced a further fixed term engagement as a temporary employee which expired on 30 October 2006. During the term of this contract, she was again placed on the list of available casual Youth Officers. Ms McKelvie's temporary employment was extended on a number of occasions until 13 May 2007 when she moved from temporary employment to engagement as a casual employee working an average of 15 to 19 shifts a month. 8 Ms McKelvie said she had been asked to drive a vehicle on a few occasions during her employment and she had twice disclosed to management that she held a provisional drivers' licence. Ms McKelvie stated that a Youth Officer may be called on to drive a vehicle either to collect food for the detainees from outside the Centre, to provide a medical escort or when called in to perform a relief shift in the transport/placement unit.

THE EVIDENCE Ms McKelvie's Union activities 9 In November 2006, Ms McKelvie was elected a Union delegate at the Centre and in April 2007 she was elected a Spokeswoman for the Western Region of the Union's Statewide Spokeswomens' Program. She described herself as an active Union delegate. She had represented her members at meetings with management and advocated issues on her members' behalf. She ceased being a Union delegate on 1 February 2008. In cross-examination, Ms McKelvie was asked about notes she had made of various phone calls she had made to management and the procedure she adopted in recording her notes. She said she invariably made a note of the time the call began and when it ended. During the call and afterwards, she would fill in the details of the conversation. 10 Ms McKelvie gave evidence concerning an issue she raised with management in June 2007 about the allocation of behavioural points to a particular detainee. When the matter came to Ms Curran's attention, Ms McKelvie was called in to see her. Ms McKelvie had a support person at this meeting, Mr Mark Pay. She believed that it was necessary for her to have a support person because she did not feel comfortable attending a meeting alone with senior management. Ms McKelvie said that, Ms Curran, in a raised voice, told her that the matter was not a Union issue, the Union should never have been involved and she should not have signed or written the complaint. Ms McKelvie said Ms Curran had also said 'at what point do people go to Kylie McKelvie before they come to their senior management team?' There was then a discussion about grievance officers in which Ms Curran had said that while there was a grievance procedure at the Centre, there were no appointed grievance officers. In cross-examination, Ms McKelvie insisted Ms Curran had raised her voice during this conversation. She described Ms Curran's voice as louder and higher in pitch, although it was not yelling. Ms Curran denied raising her voice and claimed she was not angry with her.

11 Ms McKelvie described two occasions in February and May 2007 in which she was warned about her Union involvement, in the context of her being considered for an opportunity to act up as a Unit Co-ordinator. She said: On 22 February 2007 I was speaking with Ms Paula Mitchell, an Acting Assistant Customer Service Manager, in my role as Union delegate regarding two PSA members, Mr Stewart and Mr Davis who were involved in an incident. We were talking about he need to resolve the issue between them at a local level and I was seeking Ms Mitchell's advice. In the course of this conversation Ms Mitchell said to me words to the effect of: ' Be very careful of Kevin Jones, you're a smart girl, you have to think about your involvement in the union and don't let Kevin lead you astray. ' Mr Kevin Jones is the Chair Person of the PSA Vocational Branch at Orana. On 10 May 2007 I was walking at the far end of the Centre with Unit Manager Patrick Woods when he said words to the effect of: ' You have to see Ron. He wants to talk to you. Management are thinking of giving you the opportunity to act up as the Unit Co-ordinator, but you need to put your union issues on a locked drawer .' I understood that the Ron referred to by Mr Woods was Acting Unit Manager, Ronald Watson. 12 On 10 May 2007, Ms McKelvie phoned Ms Curran to raise an allegation that Mr Danny Rousianos, an Assistant Unit Manager, had harassed and intimidated one of her members, who hereinafter I will refer to as Ms 'B'. As there was disagreement about the contents of this conversation, I quote the two versions of what was alleged to have been said. Ms McKelvie said that Ms Curran said words to the effect of: ' Ms 'B' feels Danny is bullying and harassing her. Danny has threatened to put Ms 'B' and the other Cooks on a rotating roster if the kitchen staff were unable to cover leave and when people are sick.' I also stated words to the effect of: ' Ms 'B' feels bullied by Danny and she felt the manner in which he speaks to her was threatening and intimidating, however, Ms 'B' stated that Danny often ignores her or fails to respond to questions she asks, and he just turns his back and walks away.' Ms Curran responded in words to the effect of: 'Ms 'B' is softly spoken do you believe that Danny may not have heard her?' I responded in words to the effect of: 'No, Ms 'B' feels that Danny deliberately ignores her.' Ms Curran also stated words to the effect of: 'Are you aware that Ms 'B' suffers from an illness and this may impact on her?' I interrupted at this point and stated words to the effect of: 'I was aware that Ms 'B' suffered from an illness, however, if she feels bullied and harassed in the workplace, than (sic) that needs to be addressed.'

Ms Curran's evidence was that: In addition to the emails referred to in paragraph 40, I also had a telephone conversation with Ms McKelvie on 10 May 2007. During that conversation, Ms McKelvie was saying that Mr Danny Rousianos, Assistant Manager (Generalist) was subjecting Ms 'B', who was employed as a Vocational Instructor (Cook) to harassment and that Ms McKelvie and I said words to the following effect: JC: ' Give me an example .' KM: ' Danny keeps emailing her requesting that she provide medical certificates .' JC: ' That is part of his job. He sends those same reminder emails to any number of staff across the centre .' KM: ' He does it repeatedly .' JC: ' When staff do not reply, he sends them another email as a reminder. I would be happy to talk to you and Ms 'B' when I get back from leave .' KM: ' I am sure that Ms 'B' would be happy to talk with you .' As Ms Curran was proceeding on annual leave, it was agreed the matter would be addressed on her return. Ms McKelvie said that on 14 May 2007, Ms 'B' attempted suicide whilst at work. 13 Ms McKelvie was closely cross-examined about this conversation and the notes she had made at the time (Exhibit 5). She said she had not been mistaken about what Ms Curran had said and she denied making up her version of the conversation. 14 On 20 June 2007, Ms McKelvie attended a meeting in Sydney of spokeswomen delegates from the various juvenile justice centres. In cross-examination, she said that this was a private meeting which involved about seven people. This meeting relates to an allegation later raised by the respondent that Ms McKelvie had 'made defamatory remarks about a Mr Danny Rousianos at a public meeting'. In her evidence, Ms McKelvie said that this matter had never been raised with her by anyone in management. Ms McKelvie described what she said at this meeting as follows: ' We have a female member of staff who alleges she is being harassed and bullied by her supervisor over a period of three years. I talked to the member and she wanted it addressed with the Centre Manager. I discussed it with the Centre Manager, and she said she was going on leave and she could pass this onto someone else or could talk to the staff member and me when she got back. I confirmed with the staff member and she stated she wanted Janet to handle the issue. I then informed Janet that the staff member had agreed and would wait till Janet to return and get back in contact with me and the staff member. The Supervisor alleged of the harassment and bullying was then placed in the position of acting Centre Manager in Janet's absence. It was then alleged that a few days later on 14 May the victim attempted to take her own life at work. It is alleged that the alleged harasser had been in contact with the victim during the course of the day .' I then said words to the effect of: 'Did I manage everything correctly? ' Ms Cowan, the Assistant Manager Workforce Planning and Development, said words to the effect of: ' You did everything correctly within the role as Spokeswoman .' Ms Cowan also said words to the effect of: ' How come we didn't know about this ?' I said words to the effect of: 'I don't know how come the Department doesn't know about this?' Ms Cowan said words to the effect of: ' I will look into this .' I have not received a response from the Department in relation to the concerns I raised in that meeting.

15 In oral evidence, Ms McKelvie acknowledged that during the meeting she had named Mr Rousianos, but only after she had been asked to do so by two departmental officers, Jackie Cowan and Catherine Jenkins. In cross-examination, Ms McKelvie agreed that her only knowledge of the allegations against Mr Rousianos had been what Ms 'B' had told her. Ms 'B' had also told her that she had attempted to commit suicide at work. This had been confirmed by a psychologist and a nurse at the Centre who had told her that they had taken Ms 'B' to hospital following this incident. Events surrounding Ms McKelvie's dismissal 16 The Centre's rosters are prepared on a monthly basis and Ms McKelvie worked consistently every week until 8 July 2007. Between May 2007 and August 2007 she had acted up on two or three occasions (single shifts) as a Unit Co-ordinator. On the first draft of the new roster for 9 July - 6 August, Ms McKelvie had been given no shifts at all. When she raised this with Mr Kimble Apleyard and Mr Ronald Watson, the roster was changed and she was given some shifts, but not as many as she had worked previously. In the next draft roster for the period 6 August - 7 September, Ms McKelvie was rostered for seven shifts. However, when the roster was posted, she received no shifts at all and her shifts had been allocated to other staff. She had not worked any shifts since 5 August 2007. 17 Ms McKelvie said that she had made various enquiries of other staff as to why she had not been offered any shifts and she was told that Mr Rousianos had directed that she was not to be offered any further shifts. She had been informed by another casual Youth Officer, Barbara Johnson, that senior management had directed all Unit Co-ordinators not to contact her for work, under any circumstances. Ms McKelvie complained to the Union about the matter. 18 On 23 August 2007, the Union Organiser, Mr Michael Fogarty met with Ms Curran and Mr Rousianos about a range of matters. When Mr Fogarty asked why Ms McKelvie was not getting any shifts, Ms Curran replied that it was because she did not have her full drivers' licence. Ms McKelvie said that this was the first occasion she had heard of the reason why she was not being allocated any shifts. However, the issue of her drivers' licence had been raised when Ms McKelvie had applied for a permanent position a month earlier. A letter from the Workplace Planning Unit, informed her that the selection criteria which prevented her application from proceeding further, was her provisional drivers' licence. Ms McKelvie deposed that the issue of her drivers' licence had never been raised with her before, including when she had previously applied for a permanent position in 2006. She believed that other employees had worked for the Department without holding a current drivers' licence. 19 Ms McKelvie said that when she became aware that 10 Youth Officers had been permanently appointed on 30 August 2007, she had sought to appeal these appointments. However, she was informed by phone that she could not do so because the appointments were not promotional positions. 20 During her oral evidence, Ms McKelvie was shown Exhibit I, which was a record of a conversation between Ms Leonie Bender, Regional Director, Western, Mr Paul Houston, Manager ER&PC and Ms Louise Halloran, Investigations Officer, ER&PC. The file note records as follows: FILE NOTE - Kylie McKelvie 1/08/07 This is a file note of a conversation between Ms Leonie Bender, Regional Director, Western, Mr Paul Houston, Manager ER&PC and myself. Ms Bender advised the following: s Kylie Mckelvie (sic) is a casual employee s She is the union delegate and spokeswoman for Oana (sic) JJC s A staff member overheard her saying 'I won't be here for long but I am going to make trouble' s No proof - it is suspected she has put in the protected disclosure re 30 allegations at Orana JJC s She has made defamatory remarks about AM Danny Rousianos in a public meeting s No apparent problem with her work performance Mr Houston asked what was the proposed workload for the next three weeks and has she been told of any expected upcoming work. If it is decided that she is not to be reengaged she must have no expectation of any upcoming work. Ms Bender said she would ascertain that information and contact ER&PC once she had done so. Louise Halloran Investigations Officer, ER&PC 21 When questioned about Exhibit 1, Ms McKelvie said she had never made any protected disclosure statements and had not made any statement concerning allegations of bullying and harassment at the Centre. The matters in Exhibit 1 had never been raised with her and she had not seen Exhibit 1 until that day (12 March 2008). 22 Following her dismissal, Ms McKelvie commenced work as a case worker for Uniting Care & Burnside Doorways on 12 November 2007. However, she said she resigned on 7 December because she did not agree with the organisation's procedures for working with young people. During this employment, she had earned $2,844.55. Ms McKelvie said that she had attempted to find other work, but had been unsuccessful. 23 Mr Michael Fogarty is the Union's Regional Organiser in Bathurst and is responsible for the Union's members at the Centre. 24 Mr Fogarty stated that a few days before 23 August 2007, Ms McKelvie had phoned him and asked him to attend the PSA Workplace Group meeting at the Centre on 23 August. She had asked him to inquire as to why she had not been given any shifts, as she had been given no reason. 25 At the workplace meeting a number of issues were discussed, including the issue of 'bullying and harassment'. Mr Fogarty said he made brief notes of the meeting and later met Ms Curran and Mr Rousianos to have preliminary discussions about the issues raised in the meeting. During this meeting, Mr Fogarty had asked why Ms McKelvie was no longer receiving any shifts. Ms Curran and Mr Rousianos both said it was because she did not possess a full drivers' licence which was now a prerequisite for employment at the Centre. Mr Fogarty said when he later told Ms McKelvie of the reason, she was, understandably, not happy about it.

26 In cross-examination, Mr Fogarty was asked about the notes he had made of the meeting with Ms Curran and Mr Rousianos. Mr Fogarty could not recall Mr Rousianos saying words to the effect that Ms McKelvie was a casual (employee) employed on shift by shift basis and she would be called in as needed. He said the drivers' licence was the only issue he could recall being raised. 27 Ms Barbara Johnson had been employed as a casual Youth Officer at the Centre for approximately 18 months. She had known Ms McKelvie as a fellow employee and as the Union delegate. Ms Johnson said she recalled that sometime in August 2007, while working on night shift, she was asked by the Operations Officer, Mr Martin Havercroft, to look at the casual list for a person to fill a vacant position on the next 6:00am shift. When she mentioned Ms McKelvie's name, Mr Havercroft had said 'Danny said we are not allowed to call Kylie in'. Later that month, Ms Johnson had a phone conversation with Unit Co-ordinator, Ms Sue McCarney. During the conversation she had asked why Ms McKelvie was not getting any work, and Ms McCarney had replied that 'Danny said not to call her in for any more shifts'. Ms Johnson was not required for cross-examination. 28 Mr Michael James Sinclair is an Organiser with the Union. Mr Sinclair deposed that in August 2007, Ms McKelvie had phoned him to say she was not getting any shifts and she did not know why. On 27 August, Mr Sinclair rang the Centre and spoke to Mr Rousianos. Mr Rousianos had told him that Ms McKelvie was an on-call casual and would be called when required. Mr Sinclair then made representations to the Department's Acting Human Resources Manager, Mr Lindsay Beresford, who referred him to the Acting Regional Manager, Mr Doug Buchanan. Mr Buchanan had said he would get back to him with a response, but had never done so. 29 On 31 August, Ms McKelvie told Mr Sinclair of the appointment of 10 new permanent positions. She believed that she was eligible for one of the positions. Mr Sinclair raised the matter with the Regional Manager, Mr Buchanan who told him that Ms McKelvie had lied on her application form for permanent appointment by not disclosing that she did not have a full drivers' licence. Mr Sinclair had said he was aware of other staff being appointed without a drivers' licence. Mr Beresford had said that any decision on whether or not to offer permanent employment to persons who apply for such positions was at the Department's discretion. 30 Mr Sinclair said he later questioned Ms McKelvie about her licence. She had told him that she had always disclosed information about her provisional licence and she would have her full licence in late 2007. Mr Sinclair was not required for cross-examination. The alleged reason for dismissal

31 Mr Alan John Eggleton was acting in the position of Unit Co-ordinator on 28 July 2007. His substantive position was that of a Youth Officer. 32 Mr Eggleton deposed that around 10:00am on that day, he was walking through the Macquarie Unit and overheard Ms McKelvie talking on a phone located near the door which leads to the dining room. He claimed that he heard Ms McKelvie say 'I will be leaving soon and I am going to cause as much trouble as possible'. Soon after, Mr Eggleton approached the Unit Manager, Mr Ronald Watson and told him what he had overheard. He told Mr Watson that he did not want Ms McKelvie on his team, as he did not need trouble. Mr Eggleton said a few days later, Mr Watson asked him to see Ms Curran about the matter. Ms Curran asked him to make a file note of the conversation. His file note read as follows: On Saturday the 28th July 2007 prior to 10am whilst walking through Macquarie Unit Youth Officers' Office I overheard Youth Officer Kylie McKelvie stating on the telephone that she will be leaving soon and is going to cause as much trouble as possible. I reported this to Unit Manager Ronald Watson. 33 In cross-examination, Mr Eggleton deposed that he did not have a clear recollection of when he had prepared the file note, but he believed it was two or three days later. He had prepared the note on a computer in the admissions / operation area at the Centre. He had not kept a copy of the note and deleted it from the computer. Ms Curran had given him a copy which he had attached to his affidavit. Mr Eggleton said he had not filled in a staff report about the matter because he had just been asked for a file note. He was now aware that the proper procedure for reporting such a matter was to fill in a staff report. 34 Mr Eggleton accepted that he only heard that part of the conversation which he had recorded. He did not know the context in which the words had been used or to whom Ms McKelvie was speaking. Mr Eggleton drew a diagram (Exhibit 13) of where he and Ms McKelvie were located at the time. He said he was about a half to one metre away from her, although he could not remember if she had observed him. He agreed that Ms McKelvie made no attempt to conceal the fact that she was talking to someone. Mr Eggleton further accepted that he made no inquiry of Ms McKelvie about what he had overheard and it had not occurred to him, at the time, to clarify with her what she had been talking about. He had not heard what the 'trouble' might be and he now agreed that he had no factual basis to assume that Ms McKelvie was talking about the Centre or the Department. He had not thought of raising the matter initially with Ms McKelvie's own Unit Co-ordinator. Notwithstanding these admissions, Mr Eggleton said that he reported the matter to Mr Watson a few hours later. Mr Eggleton said he did not realise, at the time, that the matter was so serious. He had only wanted to ensure that Ms McKelvie was not put on his team. He now agreed that what he had reported had determined Ms McKelvie's future employment and it was a serious matter. 35 Mr Eggleton said he had only learnt two weeks ago (around the end of February 2008) that what he had reported to Ms Curran constituted the reason why Ms McKelvie had not been given any further shifts. In retrospect, Mr Eggleton now believed it would probably have been a better course for him to have approached Ms McKelvie and ask her what she was talking about before reporting the conversation to Mr Watson. He conceded that it was possible that he had not recorded precisely what he had overheard. He accepted that changing just one word, or not hearing the beginning or the end of the conversation, could completely change the meaning of what was said. However, in re-examination, Mr Eggleton said it was not very likely that he had misheard the words. 36 In her reply statement, Ms McKelvie responded to Mr Eggleton's affidavit. She said that while she could not recall if she had made a phone call on that day, she may have. The first time she had learnt of this matter was when she had read Mr Eggleton's statement; some seven months later. Ms McKelvie believed that she may have spoken these actual words in some context. In cross-examination, Ms McKelvie answered 'no' when asked if there was any other context, other than her employment, that she would have used the words said to have been overheard by Mr Eggleton. However, she strenuously denied she said anything about leaving the Centre or the Department or of causing any trouble. As she was currently completing a Post Graduate Course in Psychology and hoped to continue to work for the Department, she certainly would not have caused any trouble which might jeopardise her career. 37 Ms McKelvie stated that she had made no secret of applying for permanent positions both in the Department and with other Departments, because she was a casual employee and wanted a permanent position. However, as at 28 July 2007, she had not obtained any other employment and had not made any arrangements to leave the Centre. Ms McKelvie noted that this matter was not even put to her in the conciliation proceedings on 17 October 2007. 38 Ms McKelvie further said that it was the practice at the Centre to use the telephone to call other Units for non-urgent matters during lockdown periods so that the radio could be reserved for emergency communications. In her evidence, Ms Curran denied that this was the practice. 39 Ms McKelvie believed that the normal procedure for reporting an incident such as that described by Mr Eggleton was to formally report the incident in a staff report, not as a file note. She said that had the proper procedure been followed, she would have been made aware of the allegation and been given an opportunity to respond to it. 40 In cross-examination, Ms McKelvie was closely questioned about the conversation overheard by Mr Eggleton. While she agreed that she might have used the words described by Mr Eggleton, she would not have said anything to jeopardise her career as a Juvenile Justice Officer. She reiterated that it was no secret that she had been seeking other permanent employment, because she was a casual. She said she had applied for two permanent positions; one at the Centre and one at the community office. She confirmed that before 28 July 2007, she had also applied for a program officer position at the Wellington Correctional Centre of the Department of Corrective Services. 41 Ms McKelvie had anticipated that with her qualifications and experience she would have been able to secure full time employment. She agreed that there were other positions she could have applied for in the Dubbo area, but these were not in the field she wanted to work. She has since applied for positions at the Department of Community Services and at the Department of Corrective Services. She had now focussed on her university studies until a suitable position arose in her chosen field.

The decision maker 42 Ms Janet Helen Vincent Curran has been the Manager of the Centre since 9 October 2006. Ms Curran has a Bachelor of Arts (Social Science) and is a registered Psychologist. Ms Curran said she is responsible for the safety, custody and development of detainees at the Centre in accordance with the relevant legislation and Departmental policies. 43 In responding to Mr Fogarty's evidence about their meeting on 23 August 2007, she said that when Mr Fogarty had asked why Ms McKelvie was no longer being given any shifts, Mr Rousianos had replied that she was a casual and employed on a shift by shift basis and would be called in if required. Mr Fogarty had said that he was aware of the conditions for casual staff and had asked about the Centre's process for calling in casuals. Mr Rousianos had replied that the whole of the team was considered when calling in casuals, but there was also a problem with Ms McKelvie's drivers' licence. Ms Curran had told Mr Fogarty that the licence issue had only recently been raised by Human Resources. She had not been aware, at the time, that a full drivers' licence was a requirement of the Centre. 44 Mr Fogarty's recollection of the conversation was that it was clear that Ms McKelvie was not to be given any further work. He maintained that Mr Rousianos had not said she would be called in if needed. Mr Fogarty had the clear impression that Ms McKelvie was not to be given any further work because she did not have a full drivers' licence. Moreover, he said that Ms Curran had not expressed any surprise that this was now a requirement of the Centre. 45 Notwithstanding any dispute about this conversation, Ms Curran now deposed that the reason she had decided not to offer any more shifts to Ms McKelvie was the file note she had received from Mr Eggleton. Ms Curran said she had spoken to the Regional Director, Ms Leonie Bender on two occasions to discuss the matter. Ms Curran said she also had concerns as to an email Ms McKelvie had sent to another employee on 10 July 2006, and the fact that Ms McKelvie was absent from work on a number of occasions during July 2007. 46 Ms Curran deposed that in her first conversation with Ms Bender she had said words to the effect of: ' There have been rumours that Kylie is going to leave and work at the new correctional centre at Wellington. I am concerned because she might do something that could compromise the good order of the Centre .'

Ms Bender had said she would seek advice from Central Office. 47 In their second conversation, Ms Curran deposed that Ms Bender had said words to the effect of: ' Central Office has advised me that you are the person responsible for the good order of the Centre and that casual staff are employed for the duration of the shift. You can choose not to use a casual staff member. That's your right as the Centre Manager .'

Ms Curran had then discussed not giving any more shifts to Ms McKelvie and Ms Bender confirmed that she was under no obligation to do so. Ms Curran said she then advised the Centre's management team - the two Assistant Managers and two Unit Co-ordinators that Ms McKelvie was not to be offered any further shifts. 48 Ms Curran insisted that Ms McKelvie's Union activities and Spokeswoman activities played no part in her decision. Rather she deposed: My decision that Ms McKelvie would not be offered any further shifts was primarily based upon my concern that her continued employment might jeopardise the good order of the Centre but I also took account of the extent to which she had been absent from work during July 2007.

In response, Ms McKelvie said that she was sick from 14 to 21 July and she had notified the Centre of her unavailability. In any event, she said she was not required to produce a doctor's certificate because she was a casual and not eligible for sick leave. 49 Ms McKelvie said that neither of these matters, nor the email of 10 July 2006 were ever raised with her, let alone put to her as reasons for her not being offered any further work. Mr Fogarty deposed that these matters were never raised with him as being reasons why Ms McKelvie was offered no further work. He described Ms McKelvie as a sensible, very conscientious Union delegate and definitely not a 'trouble maker'. 50 In further evidence, Ms Curran denied raising her voice in the conversation with Ms McKelvie and Mr Pay in June 2007. She denied making the statements attributed to her by Ms McKelvie at this meeting and did not believe she would make such statements (see par 10).

51 Ms Curran referred to the conversation with Ms McKelvie on 10 May 2007 about the harassment of Ms 'B' (see par 12). She said that when she returned to the Centre, neither Ms McKelvie nor Ms 'B' raised the allegations with her. Ms Curran said she was aware that allegations of misconduct against Ms 'B' were made on the grounds that she may have submitted false medical certificates. She said that Ms 'B' had eventually resigned. 52 In further examination in chief, Ms Curran deposed that she had retrieved Mr Eggleton's file note about two weeks earlier from a file located somewhere at the Centre. She had noted receiving it on 31 July 2007. Although she could not recall how it came into her possession, she had received earlier verbal advice from Mr Watson about its contents. Ms Curran agreed that Ms McKelvie had not been given an opportunity to respond to Mr Eggleton's file note. However, nothing Ms McKelvie has said since would have caused her to reverse her decision not to offer her any more shifts. 53 Ms Curran was asked why Ms McKelvie was allowed into the Centre on 5 September 2007, if there were concerns about the 'good order' of the Centre. She said that Ms McKelvie was the Union delegate, she had restricted entry and had no keys or radio. 54 In cross-examination, Ms Curran was asked about a 4 April meeting with the Union. She denied making a funny remark about grievance officers and denied smirking. Ms Curran said she had encouraged members to approach their delegates with any concerns, but not with grievances. She elaborated by saying that she had in fact said to approach delegates about any concerns they had at not having grievance officers. However, when pressed, Ms Curran acknowledged this second response was incorrect.

55 Ms Curran deposed that when she made her decision not to offer Ms McKelvie any more shifts, she was unaware of the issue of Ms McKelvie's drivers' licence. When shown the transcript of the proceedings in the Commission on 17 October 2007, which revealed Ms Anderson's instructions were that the licence was the issue, Ms Curran agreed that this was untrue. She said she had no knowledge of how it came about that the Commission was informed of this false reason. 56 Ms Curran was asked about the meeting with Mr Fogarty on 23 August 2007. She conceded she knew that Mr Rousianos had known the real reason and he had given an incorrect response. She accepted that she had failed to correct him. Ms Curran agreed she had allowed Mr Rousianos to mislead Mr Fogarty and that she took no steps to inform Mr Fogarty of the true position. Ms Curran believed that she had no obligation to give him or Ms McKelvie any reasons, as she did not view it as a dismissal. Ms Curran could give no other explanation as to why she did not tell Mr Fogarty or Ms McKelvie the real reason. 57 As to Mr Eggleton's file note, Ms Curran deposed that she could not recall if it was Mr Watson or herself who had asked him for the file note. She said she could not recall if she had a meeting with Mr Eggleton to question him about what he had overheard. Ms Curran did not accept that the context of the conversation may have changed the meaning of the words. She said it was a common rumour that Ms McKelvie and other staff had applied for other positions. She had merely linked the rumour to the words Mr Eggleton had overheard. Ms Curran accepted that she knew Ms McKelvie had applied for positions within the Centre. 58 Ms Curran agreed that she had not known what was meant by 'trouble' and she now conceded that she had leapt to a serious assumption without taking any steps to test it, or find out any other information which might have assisted her in working out what she should do. She conceded that she had not investigated the matter or have anyone else investigate it. Nevertheless, she said she did not believe that she had acted negligently as she had consulted both the Regional Director and Central Office. 59 When she received the file note, Ms Curran said she did not put it on Ms McKelvie's personnel file, but on another HR file held at the Centre. In response to this answer, Mr Hatcher, of Counsel for the Union, submitted that it now appeared that the summons to produce all the employment and personnel files of Ms McKelvie had not been complied with. The Commission then directed that 'any files held by the Centre which directly relate to the employment of Ms McKelvie, be produced in Court by midday today' (13 March 2008). Continuing in cross-examination, Ms Curran deposed that in hindsight, the file note should have been placed on Ms McKelvie's personnel file at Central Office. While she said she had not thought to do so, she strongly denied trying to conceal it. 60 Ms Curran confirmed that she took no steps to talk to Ms McKelvie or Mr Eggleton about the matter. Nevertheless, Ms Curran believed she had followed fair process. Ms Curran agreed that her decision was based on the worst possible assumption of what was meant by the overheard words, without giving Ms McKelvie any opportunity to explain herself. Ms Curran did not agree with the proposition that a fundamental element of a fair process, where a complaint is made against an employee, is for an inquiry to be made of the person subject to the complaint. 61 Ms Curran acknowledged that after receiving Mr Eggleton's file note, and in making her decision not to offer Ms McKelvie any further shifts, she had not made a single record, file note, diary or phone note of anything to do with the process. She had communicated her decision orally to the senior management team. She explained that she had not made any written record of the matter because she had never had that type of experience before. 62 Referring back to the meeting with Mr Fogarty on 23 August 2007, Ms Curran said she had taken no notes of the meeting, as it was not her usual practice. What she said in her affidavit was a product of her recollection of events which had occurred 11 months earlier. Ms Curran also said that she had taken no notes of her phone conversation with Ms McKelvie on 10 May 2007. Nevertheless, she strongly disagreed with Ms McKelvie's version of the conversation.

63 Ms Curran was questioned about her two conversation with Ms Bender. Ms Curran said she had no recollection of Ms Bender mentioning any of the matters listed in Exhibit 1. Ms Bender had told her that she had the option of not offering any shifts to a casual staff member. Ms Curran said she had not raised with Ms Bender anything about defamatory comments concerning Mr Rousianos or protected disclosures. She stated that Mr Rousianos had not complained to her about Ms McKelvie's allegations. In the first conversation, Ms Bender had said she would seek advice from Central Office. It was during the second conversation that Ms Curran decided not to employ Ms McKelvie. Ms Curran agreed that a draft roster had been prepared on 30 July 2007 for the period 6 August - 7 September which disclosed that Ms McKelvie had been allocated shifts. She had never worked these shifts, notwithstanding that her name appeared on the next draft. Ms Curran conceded that while it was not her role to approve the rosters, she had not taken any steps to have Ms McKelvie's name removed from the roster after the direction was given she not be offered any further shifts.

64 Ms Curran claimed that she had not been encouraged by Ms Bender to make her decision; rather, Ms Bender had told her of her rights and responsibilities. While Ms Curran said she also had regard for Ms McKelvie's attendance record in July 2007, she agreed that she had not spoken to her about the reasons for her non attendance, and had made no inquiries as to whether she had a temporary illness. 65 Ms Curran insisted that she had acted fairly towards Ms McKelvie. She had been advised that she need not tell Ms McKelvie of the reasons for her dismissal. Ms Curran now acknowledged that it was unfair not to have told someone of a decision to deprive him / her of future employment. While Ms Curran deposed that she had not instructed her senior management team not to tell Ms McKelvie, she could not think of a reason why Mr Watson and Mr Rousianos would not have done so when asked by Ms McKelvie or Mr Fogarty. Ms Curran could not give any reason why Ms Bender, Mr Rousianos and Mr Watson were not called to give evidence in the proceedings. 66 Ms Curran said that her decision was based on ensuring the good order of the Centre. She had been concerned Ms McKelvie might mislay keys or leave doors open, as other staff had done in the past. However, she now conceded that there was nothing in Ms McKelvie's record which would suggest she would behave in this way. Ms Curran accepted that very shortly before deciding to dismiss her, Ms McKelvie had acted up as Unit Co-ordinator and that this indicated confidence in Ms McKelvie's work.

67 Ms Curran rejected the claim that Ms McKelvie's Union activities were a reason for her decision not to offer her any further shifts. She denied she had been deliberately untruthful in attributing the licence as the reason for Ms McKelvie's loss of employment. Ms Curran agreed that Ms McKelvie had provided a photocopy of her provisional licence to the Department in February 2006, and at all times the respondent was aware she had a provisional licence. She conceded that the issue had never been raised as an impediment to her ongoing employment. 68 In oral evidence, Ms Curran was shown a document dated 29 November 2007, some four months after the dismissal which purportedly denied a pay increment to Ms McKelvie. Mr Rousianos had signed off on the document after it had been routinely sent out from Central Office. His notation on the document read: I have spoken to the Central Manager and I will not support the increment for Youth Officer McKelvie due to unsupported sick leave.

Ms Curran said she could not recall if she had had a discussion with Mr Rousianos about this matter. She agreed Ms McKelvie was not entitled to sick leave, so she was not required to provide medical certification. Ms Curran accepted that this matter had not been raised with Ms McKelvie. Ms Curran could give no reason why there was the appearance of Ms McKelvie still being employed by the respondent. However, she denied it was an attempt to conceal the decision to dismiss her. 69 Ms McKelvie was also receiving emails from the Department as late at December 2007, inquiring about her drivers' licence. Ms Curran said the email was sent to everyone at the Centre and Ms McKelvie had simply remained on this list by mistake. Ms Curran said that there was often errors made in communications sent from the Central Office to the Centres and this would explain communications still being sent to Ms McKelvie in November and December 2007. 70 Ms Curran denied she had given a less than frank or complete account of the circumstances surrounding her decision to end Ms McKelvie's employment. She said she maintained her concerns about the good order of the Centre, in light of Mr Eggleton's file note.

SUBMISSIONS 71 In opening his submissions, Mr Hatcher put that, in this case, the Union sought the same relief in both the unfair dismissal application and the victimisation matter, being the reinstatement of Ms McKelvie to the casual roster at the Centre and compensation for the period from when Ms McKelvie ceased work to the date of reinstatement. He said the appropriate calculation of lost remuneration could be made by the parties and would be less any remuneration earned by Ms McKelvie during the relevant period. 72 Mr Hatcher said that it was regrettable, particularly having regard for the respondent being a Government Department, that he had to make the following submission. The evidence demonstrated that since Ms McKelvie's termination of employment the respondent had engaged in a pattern of misleading activity, designed to both conceal the fact of the termination and the true reasons for the termination. This misleading activity manifested itself towards Ms McKelvie, the Union and, most unfortunately, the Commission itself. 73 Mr Hatcher examined the chronology of events before 5 August 2007. He said that it appeared that Ms Curran had made the decision not to offer Ms McKelvie any more shifts, and, in that decision, she had been encouraged and supported by Ms Bender who, in turn, had consulted the respondent's central Human Resources Department. Ms Curran had accepted that she had not told Ms McKelvie of her decision, nor the reasons for it, and believed she was not obliged to do so. Mr Hatcher said that there was not a single note, file note, memorandum or paper record made of the decision and it was communicated orally to the Centre's senior staff. Mr Eggleton's file note, which had precipitated the dismissal, was not placed on Ms McKelvie's file, but was placed on another internal file which had not been produced under summons. 74 Mr Hatcher said that when Ms McKelvie made inquiries of senior staff, Mr Watson had told her to ring Mr Rousianos. Mr Rousianos did not return her calls. Both of the Unit Co-ordinators had known the factual position. When Ms McKelvie's Union official had asked about the matter, he was lied to by Mr Rousianos. Further, Ms Curran did not correct Mr Rousianos at the meeting, or any time subsequently, and later said that she was under no obligation to do so. Mr Hatcher submitted that a false reason was given to Mr Fogarty, being that of Ms McKelvie not holding a full drivers' licence. Another Union official, Mr Sinclair, provided uncontradicted evidence that he was told by Mr Rousianos that Ms McKelvie was an on call casual who would be called when required. 75 Mr Hatcher then referred to the first listing of the matter before the Commission on 17 October 2007. Ms Curran gave evidence that she had spoken to Mr Houston immediately before the Commission hearing. The respondent had conveyed to the Commission a false reason for the dismissal, that being the drivers' licence. Some three months later a salary increment approval form had been signed off by Mr Rousianos, who knew, full well, that Ms McKelvie was no longer employed. 76 Mr Hatcher submitted that these matters were never explained until six or seven months later when Ms Curran filed her statement in the proceedings and, for the first time, disclosed what she says was the real reason for the dismissal. In effect, the respondent was saying 'we haven't told the truth before, but now we are, so believe us'. Mr Hatcher put that Ms Curran simply could not be believed. She had admitted to Mr Rousianos' dishonesty at the meeting with Mr Fogarty and her own failure to correct him. 77 Mr Hatcher said that the respondent's credibility had been fatally damaged by its conduct of blatant dishonesty and it should not now be believed. What had now been revealed by the evidence was that a discussion between Ms Bender, Mr Houston and Ms Halloran raised a number of issues which were never raised in the proceedings, let alone discussed with Ms McKelvie, and which were relevant to the decision to dismiss her. These included that she was a Union delegate, she was suspected of making protected disclosures and she had made defamatory comments about Mr Rousianos. Mr Hatcher said it was astonishing that Ms Curran could give no reason why Ms Bender had been discussing issues about Mr Rousianos, when she had never raised them. Neither Ms Bender, Ms Halloran nor Mr Houston were called to give an explanation of what was discussed at this meeting. These issues were decisive to the victimisation application where there is a reverse onus of proof. The Department must prove it was not motivated to dismiss Ms McKelvie for the unlawful reasons disclosed in Exhibit I. 78 In dealing with the unfair dismissal application, Mr Hatcher submitted that even on the respondent's own evidence, it cannot succeed in this case. There had been a gross denial of procedural fairness towards Ms McKelvie: See Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385. She was never told of the allegations against her; never even told of the decision to terminate her employment and when she was eventually told, she was lied to. When the respondent had finally said seven months later, what the real reason was, of course, Ms McKelvie could not possibly recall a phone conversation so long after the event. So much time had passed that it was unreasonable to expect her to answer the allegation. 79 Mr Hatcher put that even if the Commission found that Ms McKelvie had said the words attributed to her by Mr Eggleton, Ms Curran's evidence was that she immediately jumped to the worst possible scenario. However, there was nothing in Ms McKelvie's record which would indicate she would have behaved in such a way or cause Ms Curran to think she was not a good employee. On the other issue of sick leave, Mr Hatcher said Ms McKelvie's evidence was not challenged as to her being sick. In any event, she was not entitled to sick leave as a casual employee.

80 Mr Hatcher said the attack on Ms McKelvie's credibility, concerning the minutes of a meeting of 4 April 2007, had 'backfired spectacularly', when Ms Curran was cross-examined about what happened at the meeting. She had said she could not remember what had occurred. In these circumstances, Ms McKelvie's evidence would be preferred by the Commission. While Mr Hatcher conceded that Mr Eggleton attempted to be truthful, on his own admissions, his evidence would not be found to be reliable. 81 In relation to the victimisation application, Mr Hatcher referred to the decision of the Commission in Twentieth Superpace Nominees Pty Ltd (t/as Specialised Container Transport) v Transport Workers' Union (NSW) (2006) 156 IR 323. Ms McKelvie need only prove that there had been detrimental action in her being denied work, and effectively being dismissed. The reason was that she was a representative of employees who had acted on her members' behalf. The respondent must positively satisfy the Commission that the alleged reason was not a substantial and operative cause for the dismissal. 82 Mr Hatcher cited three examples of where the evidence supported Ms McKelvie's claim of victimisation. Ms McKelvie had described an encounter with Ms Curran where she had been criticised, in a loud voice, for raising a matter which Ms Curran did not believe was the Union's business. Further, Ms McKelvie deposed that she had been warned by the Acting Assistant Customer Service Manager, Ms Paula Mitchell, and Unit Manager, Mr Patrick Woods, about her Union involvement possibly impeding her promotion. Mr Hatcher noted that neither Mr Mitchell nor Mr Woods were called to give contrary evidence. Mr Hatcher added that it was quite astonishing the extent to which relevant persons identified in these proceedings, had not been called to give evidence. He said the usual Jones v Dunkel ((1959) 101 CLR 298) inferences could be made. In particular, he referred to Ms Bender who had supported and encouraged Ms Curran and was linked by Exhibit 1 to other allegations made against Ms McKelvie. 83 Finally, Mr Hatcher reserved his client's position as to costs. For the respondent 84 Ms Anderson submitted that there was not one iota of evidence of a 'cover-up' by the respondent and, indeed, to suggest a 'cover-up' was meaningless, because the Department was not the legal entity. However, she acknowledged that Mr Rousianos had made a misleading statement to Mr Fogarty and this was one of the reasons why she had decided not to call him as a witness. Ms Anderson described him as 'unreliable'. 85 As to the evidence of Ms Curran, Ms Anderson said that the Commission would find her to be a witness of utmost credit because she had made admissions that did not necessarily reflect favourably on her, such as not intervening in the meeting with Mr Fogarty to correct Mr Rousianos and not knowing who had asked Mr Eggleton for the file note, or not recalling where she had located it. Ms Anderson added that the acknowledgement, during the proceedings, of the existence of a separate file held at the Centre had come as a complete surprise to the respondent. 86 Ms Anderson maintained that there was not one iota of evidence to support the allegation of victimisation against Ms McKelvie. There could be no suggestion that the respondent had mislead the Commission. The issue of the drivers' licence did arise, but only after Ms Curran's decision not to offer Ms McKelvie any more shifts. It was understandable that there was some confusion between local management and Central Office. When Ms Curran made her decision, she honestly believed that she had no obligation to tell Ms McKelvie or the Union. In this regard, Ms Anderson relied on s 39 of the Public Sector Employment and Management Act which states as follows: The appropriate Department Head may dispense with the services of a casual employee at any time. 87 Nevertheless, Ms Anderson readily conceded that there had been an element of procedural unfairness demonstrated in this case, but she submitted that a finding of procedural unfairness might not necessarily result in reinstatement. She stressed that there was no evidence that Ms Curran or Central Office had mislead the Union. It was simply wrong to suggest that Mr Houston, or anyone else in the Department, would victimise someone because they were a Union official.

88 Ms Anderson referred to the cross-examination of Mr Eggleton and the suggestion that he could have been mistaken as to what he had overheard. Mr Eggleton had a clear belief that Ms McKelvie was intending to cause trouble and he did not want her working on his Unit. It had been common knowledge that Ms McKelvie had been looking for other employment and this evidence was consistent with what Mr Eggleton had overheard. 89 Ms Anderson put that ultimately the Commission would need to be satisfied that what Mr Eggleton overheard had nothing to do with Ms McKelvie's employment. She added that in the dangerous environment of a juvenile justice centre, Ms Curran had been correct in her duty to ensure that safety was not compromised. 90 Ms Anderson rejected the alleged Jones v Dunkel inferences in the respondent's case. She submitted that two important ingredients relevant to a Jones v Dunkel inference did not apply here. Firstly, there was no probative evidence to bring a s 210 application under the Act into operation and, secondly, it was wrong to suggest that certain employees of the respondent were in the 'camp of the respondent'. On the contrary, Ms Anderson submitted that Jones v Dunkel inferences worked the other way, in that there had been disputed conversations between Ms Curran and Ms McKelvie in which Mr Kevin Jones, Chair Person of the PSA Vocational Branch, and Mr Mark Pay, Ms McKelvie's support person, were present, but they were not called to give evidence.

91 As to Mr Rousianos's unreliability, Ms Anderson suggested that a document in December 2007, discussing Ms McKelvie's sick leave record, merely demonstrated that he 'didn't have a clue'. However, she accepted that it was a misleading document. 92 Ms Anderson detailed the cross-examination of Ms McKelvie as to her credibility and described her evidence at times to be 'like a broken record'. Ms McKelvie had been absolutely positive about everything. This suggested that she had either perfect recall or that she was going to answer questions in a particular way, irrespective of the truth. On the other hand, Ms Curran vehemently denied raising concerns about Ms 'B's' health, of smirking during a meeting over words which were not even funny or being opposed to the Department's policy on helmets and gowns. 93 Ms Anderson submitted that given Ms Curran's continuing concerns with Ms McKelvie and the safety of the Centre, reinstatement of Ms McKelvie would be impractical. Further, as to monetary compensation, Ms Anderson put that Ms McKelvie had made no real attempts to mitigate her loss, as she had only applied for positions in her chosen area of employment. In reply 94 Mr Hatcher made the following submissions. Firstly, if Ms McKelvie sounded 'like a broken record' it was because she repeatedly gave the same answers to the same questions asked by Ms Anderson. 95 Secondly, Mr Hatcher denied that he had attacked Mr Houston's credibility. All that was known from the evidence was that Mr Houston attended the Commission on 17 October 2007, where a false reason for the dismissal was given to the Commission. It was obvious that something had gone seriously wrong, and it was up to the respondent to clear up the matter and explain its conduct. 96 Thirdly, Mr Rousianos could not be regarded as the 'fall guy' for what had happened. Unfairness to Ms McKelvie manifested itself along the whole chain of command in the Department and, consequently, it must take ultimate responsibility for what had occurred. 97 Fourthly, the respondent had not understood and had not dealt with the onus it bears in respect to the freedom of association provisions under the Act. 98 Fifthly, there was not the slightest piece of evidence of bitterness or personal hostility between Ms McKelvie and Ms Curran such as to make reinstatement impractical. In any event, if there had been any difficulty, it had related to Ms McKelvie's Union activities. As she had now resigned as a delegate, the problem simply would not arise. Moreover, a casual Youth Officer would not ordinarily have day to day contact with the Centre Manager. 99 Sixthly, as to mitigation of loss, it had been demonstrated that Ms McKelvie had made reasonable attempts at seeking alternative employment.

CONSIDERATION The Applications 100 This decision will determine two applications brought under the Act; one under Pt 6 Ch 2 and the other under Pt 1 Ch 5. For convenience, I shall refer to the applications, respectively, as the unfair dismissal matter and the victimisation matter. While the two applications will require separate and discrete findings by the Commission, they obviously arise from the same set of factual circumstances and, if successful, may result in the same reinstatement and compensation relief being ordered by the Commission. In fact, that was precisely the relief sought by Mr Hatcher on behalf of Ms McKelvie. It followed that neither party demurred in the practical approach of adopting the evidence in one application as the evidence in the other and the hearing proceeded on that basis. 101 At this juncture, two preliminary matters arise for consideration. Firstly, it is to be observed that a separate s 130 dispute notification (IRC07/1853) about the same subject matter has been listed on all occasions that the two substantive applications have been listed. However, Mr Hatcher appropriately submitted that determination of the two substantive applications would effectively subsume any relief sought through the dispute notification, assuming of course, that the Commission found in favour of Ms McKelvie's claims. Accordingly, the dispute proceedings will be formally concluded by the orders I make at the end of this decision. 102 Secondly, during the course of submissions, the Commission raised with Mr Hatcher, in light of the same relief Ms McKelvie sought from both applications, whether a favourable result in one of the applications would necessarily require findings and orders in the other application. He responded that, while it may be unnecessary to go any further than orders in the unfair dismissal matter, the Commission should make specific findings in the victimisation matter for the following reasons:

a) the victimisation matter involved serious allegations against a significant New South Wales Government Department;

b) there were important issues for the Union because the matter involved the treatment of one of its delegates and the ongoing industrial relationship between it and the respondent; and

c) there was a broader public interest in the Commission making findings on the serious evidence which had been disclosed in this case. 103 Mr Hatcher's submission is well made. I would agree that this case involved serious and fundamental issues for the conduct of industrial relations generally and for the relationship between the Union and a major public sector employer in New South Wales. It follows that this case exposed issues which have implications for the wider public interest. The Commission intends to adopt the course pressed by Mr Hatcher. That leads me to now refer to the legislative provisions and principles to apply when considering these two applications. Legislative Provisions and Principles 104 There is no doubt that an employee may bring applications under both the unfair dismissal provisions and the victimisation provisions of the Act arising from the same set of circumstances. Thus, it would seem sensible to have both matters pursued concurrently. In this regard, I refer to what I said in Donovan and Anor v Kensington Pharmacy and Newsagency [2004] NSWIRComm 385 ('Donovan'): '…in a particular set of circumstances, there may be features of an unfair dismissal case which are similar to, and raise similar considerations, to a case prosecuted by an employee under Pt1 ch5 of the Act. For example a dismissal might be found to be unfair based, inter alia , on the victimisation of the employee. Conversely, the ultimate victimisation of an employee might well be said to be his/her dismissal. That there is some overlap between the two statutory provisions is self evident by the reinstatement, reemployment and compensatory remedies available under both sections.' …

'The corresponding provisions in the 1991 Act, (which are not relevantly different to the 1996 Act) were considered by Schmidt J, in Nisbett v Kilfoyle t/as Kilfoyle Earthmoving (1996) 67 IR 214. Her Honour said at p 218: Both sections 246 and 482 of the Act provide for remedies of reinstatement and compensation. That the circumstances of an alleged dismissal may properly give rise to proceedings under either or both section 246 or section 284 of the Act is obvious, (see Entertainment Distributors). It is of course the case that the Act provides both remedies and does not require an individual to make any election between them. Both may be pursued.' The Victimisation Provisions 105 The victimisation provisions are to be found at s 210 to s 214 of the Act and relevantly provide at s 210 as follows: 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person:

(a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or (b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or (c) refuses to engage in industrial action, or (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or (i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or (ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety Act 2002 , or (ib) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator of the Independent Transport Safety and Reliability Regulator or an officer of the Ministry of Transport, or (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000 , or (k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995 . (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 106 Section 213 identifies the relief available to a victimised employee where a contravention of the Part has been established: 213 Enforcement (1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. (2) The Commission may, in particular, for that purpose do any one or more of the following: (a) order the reinstatement or re-employment of an employee, (b) order the employer to promote or otherwise advance an employee in his or her employment, (c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone, (d) order the employer to employ a prospective employee, (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, (f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, (g) make consequential orders (including orders concerning continuity of service).

107 There is no definition of the term 'victimisation' in the Act. However, for present purposes, it may be accepted that the term was effectively construed in Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364 ('Davis'). There, the Full Bench of the Commission said at pages 380 to 381: We observe in passing that the ambit of the 1940 Act was narrower than that of the 1991 Act. In our opinion, the failure to define "victimise" or "victimisation" in the 1996 Act does not have the result of narrowing the definition in the 1991 Act. Indeed, the omission probably has the effect of extending the former meaning so as to comprehend any act of victimisation within the meaning of that word as ordinarily understood. The words "victim" and "victimise" are defined in the Shorter Oxford English Dictionary (Vol 2) as: " Victim 1. A living creature killed and offered as a sacrifice to some deity or supernatural power. 2. A person who is put to death or subjected to torture by another; one who suffers severely in body or property through cruel or oppressive treatment. b. One who is reduced or destined to suffer under some oppressive or destructive agency. c. One who perishes or suffers in health, etc from some enterprise or pursuit voluntarily undertaken. d. In weaker sense: one who suffers some injury, hardship, or loss, is badly treated or taken advantage of, or the like. Victimise 1. To make a victim of; to cause to suffer discomfort, inconvenience, etc; to cheat, swindle, or defraud. 2. To put to death as, or in the manner of, a sacrificial victim; to slaughter; b. To spoil or destroy (plants) completely." In our opinion, it is consistent with the objectives of the section and the statutory changes in 1996, that the word "victimise" in s 210 should be construed on a basis which corresponds with the meanings of the word "victim" where last appearing in the definition of that word, namely, "one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like". The word "victimise" is defined, inter alia, as "to make a victim of; to cause to suffer discomfort, inconvenience, etc"; and where used in s 210 should therefore be interpreted as "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment". So far as a prospective employee is concerned the word "victimise" must be construed in the context of the word "prospective". In this respect s 213(2)(d) comprehends the remedy of an order requiring the employer to employ the "prospective" employee, so that "victimise" must also encompass, at the lowest, a refusal to employ. Furthermore, section 213(2)(e) comprehends the remedy of an order requiring the employer not to carry out a "threat" to victimise an employee and for that to have any application and effect "victimise" must be taken to comprise conduct involving threats to victimise by the employer. However, it is unnecessary in this case to decide the full ambit of the word "victimise". 108 In short, the claim in this case is that Ms McKelvie was victimised or suffered a detriment in terms of s 210(1)(a) of the Act, in that she was not offered any further shifts by Ms Curran after 5 August 2007, because she was 'an elected representative of employees' and had raised matters of concern to her members with management. Ms Curran's decision was effectively a decision to terminate Ms McKelvie's employment for which reinstatement relief is available under s 213 of the Act. 109 As I said in Donovan, it would seem to me an unassailable proposition that one of the most severe or ultimate manifestations of victimisation being a 'hardship or loss or being badly treated' must be the act of unfairly terminating an employee's employment. Moreover, in my view, the conduct of the employer leading to the unfair termination of employment, and/or its conduct subsequently, may be relevant compounding factors in establishing whether an employee has been victimised for the purposes of the Act. 110 The broader public policy intent of the victimisation provisions of the Act were recently considered by the Full Bench of the Commission in Twentieth Superpace Nominees Pty Ltd v Transport Workers' Union. At par 25 the Full Bench adopted the following passage from Davis: The result is that the legislation is now not penal but purely remedial in nature and, in our view, should not be interpreted on a strict or technical basis so as to defeat receipt of the intended benefits; rather, a more purposive and beneficial construction of the legislation should be adopted.

Further at paras [27] and [28] the Full Bench said: 27 Section 210(1) is a protective provision and to adopt an overly technical approach to the meaning of "complaint" as contended by the appellant would, in our view, serve to defeat the intended benefit of the section, that is, to allow people to make complaints about safety without fear of victimisation or retribution. In any event, the approach we take is to adopt a common sense approach to the ordinary meaning of the word.

28 Finally, in interpreting the phrase "makes a complaint" it is necessary to have regard to the purpose of s210 of the Act, which is expressed to be "Freedom from Victimisation". While neither party has referred us to the Second Reading Speech (23 November 1995), it is relevant to have regard to the comments made regarding the introduction of s210 and the amendments to the previous protection against victimisation provisions, which relevantly were:

The criminal flavour of the victimisation provisions contained in the 1991 Act has proved to be unworkable. I am advised there has been no successful prosecution of a claim for victimisation under the present legislation, and applications for remedies have been rare. Accordingly, the new provisions are designed to provide a system of appropriate safeguards, which is intended to be read broadly to give effect to the legislative intention of protection against victimisation, rather than being narrowly construed on the basis of technicalities. The new provisions alter the standard of proof required to establish victimisation to the civil standard and empower the Commission to award a broad range of remedies designed to restore the employee to a position equivalent to that he or she would be in if the victimisation had not occurred.

In the same decision, the Full Bench went on to consider the operation of ss 210(1) and (2) at paras [41] to [43]: 41 These conclusions are sufficient to resolve the appeal. However, given the significance of the matters raised by the appellant which go to the proper interpretation of ss210(1) and (2), we will nonetheless deal with the parties' additional contentions as to the issue of the reversal of the onus and the proper legal test for causation under s210 of the Act.

42 The appellant contended the authorities supported two broad propositions: first, that a person relying on s210 must show that the alleged reason was the cause of the relevant conduct. It was also contended that the presumption in s210(2) operates when there is not sufficient evidence before the Commission which permits the Commission to determine what are the true facts. Secondly, it was contended that a distinction is to be made between the immediate reason for the conduct and proximate reason for that act.

43 Turning to the matter of the onus, we consider that the terms of s210(2) are clear: once an employee or prospective employee has demonstrated detriment as a result of an action by an employer or industrial organisation and the alleged cause of that detriment falls within the classes of victimisation in s210(1), then it is presumed that employee or prospective employee was victimised. The employee will be required to prove the elements of the alleged reason for victimisation being the elements of one or more of the paragraphs in s210(1) (for example, an applicant under s210(1) (j) will need to prove the existence of a complaint about a workplace matter concerning safety for the purposes of that sub-section). In the face of the presumption in s210(2), the onus is then on the employer or industrial organisation to show that the "alleged matter" was not "a substantial and operative cause of the detrimental action".

at par [47]: 47 Further, we consider that North J in AMIEU v Belandra (2003) 126 IR 165 (at 181) correctly stated the purpose of the reverse onus provisions as follows: In advancing the objects of freedom of association, Parliament has taken a view about the proper balance between the parties in relation to the discharge of the obligation of proof. Conduct is treated differently from the reasons for it. A reverse onus on the issue of the reason for conduct makes good sense because the reason for the conduct is a matter peculiarly within the knowledge of the respondent.

and at par [54]: 54 …We consider that North J in AMIEU v Belandra correctly states the position under the victimisation provisions in the WRA and by analogy, s210 of the Act, as being a process of characterisation of the particular facts with the question being whether the conduct was carried out "because" of the specified conduct. After examining the authorities to which we were referred, we would add that we do not consider it necessary or helpful to adopt the distinction made by Finkelstein J for the purposes of analysis in victimisation cases as that test, in our view, is contrary to the requirements of s210(2), as we have earlier discussed. Section 210(2) provides that an employer may rebut the presumption as to the alleged "matter" (the cause) by demonstrating that the substantial and operative cause of the detriment suffered by an employee was not an act of victimisation for the purposes of s210(1).

Unfair Dismissal Provisions and Principles 111 The unfair dismissal provisions of the Act are found at Pt 6 Ch 2 - ss 83 to 90. Section 84(1) is expressed as follows: 1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. 112 The jurisdictional key to any finding by the Commission as to whether a particular dismissal is unfair is whether the dismissal was 'harsh, unreasonable or unjust'. The oft quoted authority as to the meaning of these words can be found in Byrne v Australian Airlines Limited (1995) 185 CLR 410, where the High Court, McHugh and Gummow JJ said at pg 450: It may be that the terminations is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

113 This Commission has adopted the approach that while the term 'unfairness' might be seen as short hand for the expression, 'harsh, unreasonable or unjust', each of the words in the section have their own discrete meaning and the Commission should expressly state the basis upon which it makes a finding under one, two or all of the words in the expression. This approach was reiterated by the Full Bench in National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at paras [64] and [65]: 64 Finally, we stress the importance of a Member of the Commission at first instance in s 84 proceedings dealing expressly and specifically with the tripartite statutory test. As the Full Bench observed in Outboard Marine Pty Ltd T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the tribunal should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, whether the dismissal was or was not harsh, unreasonable or unjust.

65 In the present case, Cambridge C found that the dismissal of the applicant was not harsh, unreasonable or unjust and we consider an examination of the Commissioner's reasons support his conclusion. It would have been preferable, however, if the Commissioner had spelt out in clear terms why, under each limb of the tripartite test, the dismissal was not an "unfair dismissal". Procedural Fairness 114 It is trite to observe that a dismissal may be found to be both substantively and procedurally unfair: See Byrne; Antonakopoulos and Buckman and Another v Burdekin Resources NL (1998) 85 IR 415. In this case, particular emphasis was placed by Ms McKelvie's Counsel on a number of serious and blatant procedural defects in the respondent's handling of her dismissal. The respondent readily conceded that there were procedural issues which it could not defend. While this was unusual, it could hardly have argued otherwise. However, the respondent submitted that any failures by management in this regard were not of such seriousness as to warrant a finding that the dismissal was 'harsh, unreasonable or unjust'. For the reasons I will outline shortly, I strongly disagree. 115 Many decisions of Full Benches of this Commission have stressed the importance of ensuring that an employee is afforded procedural fairness in the process leading up to, and including, the employee's dismissal. As was said by the Full Bench in Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd (2003) 128 IR 37 at par [118]: 118 This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious.

Section 88 of the Act is referred to in the above passage. It's terms are expressed as follows: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. 116 In this case, Ms Anderson relied on s 39 of the Public Sector Employment and Management Act which, as I understand the argument, gave warrant to Ms Curran's approach not to inform Ms McKelvie or her Union that she had been dismissed or provide her or her Union any reasons for her dismissal. I repeat the terms of s 39: 39 Termination of employment The appropriate Department Head may dispense with the services of a casual employee at any time. 117 It seems to me that the reliance on the words used in s 39 of the Public Sector Employment and Management Act gives rise to similar considerations that were discussed by Simpson J in Jarratt v Commissioner of Police for New South Wales and State of New South Wales (2002) 56 NSWLR 72. There, her Honour considered the denial of procedural fairness in the removal of a Deputy Commissioner of the NSW Police Force under s 51 of the Police Act 1990. In that case, Simpson J grappled with the conflict between the notion that servants of the Crown may be dismissed at the will of the Crown: See Kelly v Commissioner of the Department of Corrective Services and Another (2001) 106 IR 181, and the more modern concept that in the absence of a clear contrary legislative intent, there is a common law duty on an employer when making decisions affecting the rights and interests of an employee, to act fairly: See Annetts & Another v McCann & Others (1990) 170 CLR 596. 118 Section 51 of the Police Act deals with the removal of executive officers and provides as follows: 51 Removal of executive officers from office (1) An executive officer may be removed from office at any time for any or no reason and without notice: (a) by the Governor on the recommendation of the Commissioner, in the case of a Deputy Commissioner or Assistant Commissioner, or (b) by the Commissioner, in any other case. (1A) A recommendation referred to in subsection (1) (a) may not be submitted to the Governor except with the approval of the Minister.

119 Her Honour set out the competing positions of the parties as follows: 5 It is the circumstances of the plaintiff's removal from the office of Deputy Commissioner that give rise to the present proceedings. Put shortly, the plaintiff's case is that, in the circumstances, he was entitled, before being removed from his office, to be accorded procedural fairness, that procedural fairness demanded that he be advised that his removal was under consideration, and that he be given an opportunity to be heard on whether he should or should not be removed, and to answer any specific allegations made against him; and that he received no warning that his removal was under consideration and was given no opportunity to be heard on that question; that he was not told of specific allegations nor given an opportunity to respond to any such allegations.

6 The position adopted by the defendants is stark and brutally simple. Conceding that nothing that could be classified as procedural fairness had been afforded to the plaintiff in respect of the process of his removal, the defendants contend that they were under no obligation to afford procedural fairness to him; that, pursuant to the relevant legislation, the plaintiff could be removed from office at any time, without explanation, justification or excuse; that the decision to remove him could be made capriciously, unfairly, whimsically, in bad faith, for good reason or bad or no reason at all; and that such a decision is nevertheless unassailable. Unpalatable though that argument may seem, the defendants were able to support it by reference to a considerable body of respectable authority. The principle on which they rely is that Crown employees hold their offices during and at the pleasure of the Crown and that they may therefore be dismissed at the will - and indeed on the whim - of the Crown. 120 I interpose to observe that one might readily glean a commonality of circumstances applying to the terminations of Mr Jarratt and Ms McKelvie. Although it will also be seen that, at least Mr Jarratt had been told he had been dismissed and the alleged reason for it. Ms McKelvie had neither 'privilege' afforded to her. 121 Returning to the judgment, her Honour held, despite the provisions of s 51, that the plaintiff was entitled to procedural fairness. She said at par [43] and [44]: 43 In my opinion, the recourse had by the defendants to early authority concerning the entitlement of the Crown to act in relation to its employees or appointees in the high-handed manner for which they contend is, in the twenty-first century, and in the light of modern authority, misplaced. The focus in the Act on merit as the basis of appointment, and the requirement of annual performance reviews, support that view. That conclusion is the more acceptable because the basis for the recommendation for the plaintiff's removal was specifically to do with the manner in which he performed his duties. It was not to do with the general structure of the Police Service or policy decisions in relation to that service. The plaintiff was entitled, not only to the benefit of a review of his performance in accordance with s43, but also, when his removal was being contemplated on performance grounds, to be notified of that fact and given an opportunity to respond to the proposal and the criticisms of his performance. Further, he was entitled to be advised of any specific allegations against him, and to the content of any adverse report, and to be given an opportunity to respond to those.

44 He was denied each of those opportunities. The decision of the Commissioner to recommend to the Governor that the plaintiff be removed from his office was legally flawed and is invalid. 122 Her Honour also considered the expression 'at any time' and said: 28 The words "at any time", counsel for the defendants argued, effectively reproduced the notion of employment of Crown employees "at the pleasure of the Crown", with all that that historically entailed, including the right to terminate in denial of natural justice. They accepted that they were casting a heavy burden upon three words which have only a temporal meaning and which, in ordinary language, do not convey any notion such as "without explanation", "without reason (good, bad or indifferent)", "capriciously", or "mala fides". 123 The High Court upheld an appeal from a judgement of the NSW Court of Appeal which had overturned Simpson J's judgment (Jarratt v Commissioner of Police for New South Wales and Another (2005) 224 CLR 44). After identifying the question posed as 'whether the exercise of the power of removal conferred by s 51 of the Act is conditioned upon the observance of the rules of natural justice', Gleeson CJ said: 26. Far from relying on plain words of necessary intendment to exclude the requirements of fairness in the exercise of the power conferred by s 51 of the Act, the respondents are driven to rely on an implication, founded upon the words "may be removed from office at any time", read in the context of the common law principle as to service of the Crown at pleasure. We are not here concerned with the monarch's "prerogative" power to dispense with the services of a subject at pleasure. We are concerned with a statutory scheme for the management of the Police Service and for the employment of its members, likely to have been intended to embody modern conceptions of public accountability. Where Parliament confers a statutory power to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, Parliament is taken to intend that the power be exercised fairly and in accordance with natural justice unless it makes the contrary intention plain. This principle of interpretation is an acknowledgment by the courts of Parliament's assumed respect for justice[23]. … 28. Simpson J was right to conclude that the power conferred by s 51 is conditioned upon observance of the requirements of natural justice and that, since there was no attempt to argue that those requirements were observed in the present case, the applicant's removal from office was invalid. 124 I turn now to my observations and findings on the evidence adduced in this case.

REASONS FOR DECISION 125 Having regard for the evidence in this case - much of it uncontested - and in light of the appropriate concessions made by Ms Anderson, there can be no doubt that the dismissal of Ms McKelvie on or about 5 August 2007, was substantively and procedurally 'harsh, unreasonable and unjust' within the meaning of Pt 6 Ch 2 of the Act. I will now develop my reasons for so concluding. 126 Towards the end of Ms Anderson's submissions, I observed from the Bench that had there been any objective analysis of the evidence, at the time it was filed and served, this matter should never have gone to trial. I suspect Ms Anderson was somewhat taken aback by this observation. Now, upon even closer examination of the facts and circumstances of this case, I do not resile from this comment. It seems to me that, at the very least, an attempt to settle the proceedings should have been self evident after Ms Curran's evidence in the witness box. Further, in an extraordinary admission against interest, Ms Anderson said she had decided not to call Mr Rousianos to give evidence because she believed him to be 'unreliable'. Bearing in mind Mr Rousianos' role in the matter, if that was so, and if such a decision was made well before the proceedings commenced, it is astonishing that the respondent would have pressed ahead knowing the risks it was taking by proceeding to hearing. 127 The role of Mr Rousianos in this sorry saga remains somewhat of a mystery. It may be safely assumed that he was strongly ill disposed towards Ms McKelvie. It would seem unlikely that Mr Rousianos was unaware Ms McKelvie had raised allegations of bullying and harassment against him. That being so, I think it would also make sense that Mr Rousianos would have viewed Ms McKelvie's dismissal with some relief. Nevertheless, why would Mr Rousianos seek to maintain the impression that Ms McKelvie was still on the Centre's books, months after he knew she had been dismissed? Perhaps Mr Rousianos hoped to maintain a semblance of normality in order to avoid any focus on the circumstances of Ms McKelvie's dismissal which might lead, in turn, to a resurfacing of the allegations against him. Whatever be the case, the fact Mr Rousianos was not called to give evidence leaves this, and a number of other relevant questions, unresolved. 128 On the respondent's own case, and as Ms Anderson correctly conceded, there were issues of procedural unfairness surrounding Ms McKelvie's dismissal. On any view, these issues constituted a gross denial of natural justice to Ms McKelvie. For this to have occurred under the watch of a New South Wales Government Department strikes me as completely inexplicable. I was appalled by the evidence which plainly demonstrated that senior officers of the Department, including a Regional Director and a Centre Manager, considered it perfectly reasonable and acceptable not to tell Ms McKelvie and her Union representatives that she had been dismissed, let alone give her the reasons for the dismissal. To argue that they believed there was no obligation to do so, borders on the contemptible. While Ms Anderson valiantly relied on s 39 of the Public Sector Employment and Management Act, I do not believe this section was intended to give an employer an open licence to dismiss casual employees at will, and without reason. I refer to my earlier references to Jarratt v Police Commissioner. It is contrary to all notions of natural justice and, in any event, the course of action it purportedly permits must be viewed in the context of the provisions of the Industrial Relations Act by virtue of s 160 of the Public Sector Employment and Management Act which provides as follows:

(1) This Act does not affect the operation of the following Acts: (a) the Industrial Relations Act 1996

(b) the Superannuation Act 1916 or any other superannuation legislation that applied to employees to whom this Act applies. (2) Subsection (1) does not limit the operation of section 22, 35 or 72. 129 To compound the unacceptable conduct of certain management persons in regard to this matter, when Mr Rousianos was pressed to give a reason for not offering her any further shifts, a false reason was given, which, at best, was an attempt to mislead and, at worst, was a direct lie. That such a false reason was given to Ms McKelvie and her Union Organisers was bad enough, but the same false reason was later conveyed to the Commission, under instructions, in proceedings on 17 October 2007, when Ms Anderson said. ANDERSON: As I understand it she is no longer engaged and, as I understand it, one of the reasons for it at least is that notwithstanding a number of times being told that she needed to obtain a full driver's licence, she has never done so. 130 It is most troubling and regrettable that this trail of disgraceful conduct reached to the Commission itself. I hasten to add that this comment is not intended to be a criticism of Ms Anderson, who, in her usual way conducted herself in a thorough and professional manner. She cannot be held responsible for the instructions she was given. But someone else should be held accountable. As I am unable to determine who gave these instructions to Ms Anderson, I recommend that the Department conduct an internal investigation as to who it was that gave these instructions and whether they were given by a person or persons who knew them to be false. 131 The deleterious impact of Ms McKelvie's dismissal on her personally and on her career hardly needs stating. She was denied an expectation of ongoing employment and income. She was unilaterally removed from employment under a cloud of false suspicions and erroneous conclusions, without ever being told why. Her career in a field which she has strived to better her skills and knowledge was unlawfully interrupted and may well have been permanently damaged. In truth, I can hardly find the words which can describe the brazen injustice inflicted upon Ms McKelvie. The evidence demonstrated a monstrous and breathtaking injustice the likes of which I have never encountered before. 132 The events leading up to, and immediately after Ms Curran's decision not to offer any shifts to Ms McKelvie are, to put it mildly, utterly inexplicable. For senior officers of the Department to operate in such a way beggars belief. I used the work 'coverup' during the proceedings. Ms Anderson submitted that there was not one iota of evidence of a 'coverup'. I respectfully, disagree. The Commission is required to decide these matters on the civil standard of proof, that is on the balance of probabilities: See Four Sons Pty Limited v Sakchai Limsiripothong (2000) 98 IR 1. Here, however, not only was there an abundance of evidence for me to make findings on the balance of probabilities, but on the respondent's own evidence, there was admission of conduct, which, on any analysis, suggests a 'coverup'. For example, when someone in authority knowingly withholds the answer to a very serious question from persons who have an entitlement to the truth and chooses to allow a subordinate to give a false answer, is this not a 'coverup'? I ask two supplementary questions. Why did the file note which precipitated Ms Curran's decision, find its way onto a file held at the Centre and not on her personnel record at Head Office, as was required by Departmental policy? Why was it that this file was not produced under summons and only came to light during Ms Curran's evidence? 133 In my view, it is patently clear that senior Departmental officers, most particularly Ms Curran, embarked on a course of deceit and 'coverup' to hide the fact that Ms McKelvie had been dismissed and to avoid giving the reasons for her dismissal. Curiously, there was not a single written record of the decision made by Ms Curran; not a file note, diary entry, memorandum or letter. Didn't Ms Curran have an obligation to keep proper records of such serious matters? Was this practice in accordance with Departmental policy or acceptable employment practice? It was disingenuous for Ms Curran to say that she did not keep a record because she had not faced this situation before. Nevertheless, she conveyed her decision orally to the senior management team, who were either told, or took it on their own or collective initiative, not to convey the reasons for the decision. This was demonstrated when Ms McKelvie confronted both Mr Watson and Mr Rousianos, who both knew of the decision. Mr Watson 'flicked passed' to Mr Rousianos and Mr Rousianos did not respond to Ms McKelvie's phone calls and email. Could this not be said to be further evidence of a 'coverup'? 134 What followed then was even more disturbing. During a meeting with Mr Rousianos and Ms Curran, the Union official, Mr Fogarty, asked why Ms McKelvie was not being offered any more shifts. Mr Rousianos, knowing full well that he had instructed other staff not to offer Ms McKelvie any shifts, blatantly lied and said it was because she did not have a full drivers' licence. Even if I accept Ms Curran's version of what Mr Rousianos said, that is, that Ms McKelvie was a casual and would be called in when needed, this too was a lie. The decision maker, Ms Curran conceded that she had made no attempt to correct Mr Rousianos and state the true position. For her to act in this way, reflects very poorly on her judgment. 135 The lie was then compounded. Mr Fogarty's evidence was that he was told a false reason for the dismissal, ie Ms McKelvie did not possess a full drivers' licence. I accept Mr Fogarty's evidence. Thus, the deception only compounded the coverup being engaged in. Further, Mr Sinclair's uncontested evidence was that when he inquired of Mr Rousianos, he was also told that Ms McKelvie was an on-call casual and would be called when required. But it gets worse. Some four months later Mr Rousianos signed a document which gave the distinct impression that Ms McKelvie was still on the Department's on-call casual list. I reject the respondent's feeble explanation where it was said that there was a breakdown in communication between the Centre and Head Office. Mr Rousianos knew exactly what had happened. In my opinion, this letter was designed to deceive and perpetuate the falsehood that Ms McKelvie remained on the respondent's books. Forgive me for asking - but what on earth was going on here? I am completely astounded by these events. Regrettably, neither Mr Watson nor Mr Rousianos were called to give an explanation for their conduct . In my view, at the very least, an explanation is required from Mr Rousianos as to his role in this matter. I recommend accordingly. 136 Mr Hatcher submitted that the respondent's credibility in this matter was fatally damaged by its blatant and dishonest conduct. Regrettably, I agree with this submission. Having regard for the lamentable and appalling conduct of certain officers of the Department, I can have no confidence in what is now claimed to be the truth, is in fact, the truth. 137 In my opinion, Exhibit 1 disclosed what in reality was going on in the minds of those involved in giving advice and support to Ms Curran. It was there disclosed that there was discussion between Ms Bender, Mr Houston and Ms Halloran about Ms McKelvie's Union activities, a suspicion that she had made protected disclosures and that she had made derogatory remarks about Mr Rousianos at a public meeting. These matters were never put to Ms McKelvie. That was bad enough. However, these allegations were never investigated and when Exhibit 1 emerged during these proceedings, the matters were found to have little substance. In my view, Ms McKelvie performed her Union role with diligence, enthusiasm and seriousness. She was not a person prone to sensationalism or one to make silly or unsupportable representations to Management. Her evidence was that she did not even know what a protected disclosure was; let alone had made one. Further, Ms McKelvie had cautiously, but appropriately, raised a serious allegation of bullying, not in a public meeting, but in a private Union forum, which was dealing specifically with that topic. She did not volunteer Mr Rousianos' name, but was asked to name him by others. From an examination of the evidence, there would appear to be available, at least an inference, that the allegation against Mr Rousianos, and as demonstrated by his latter behaviour, was one of the underlying reasons for Ms McKelvie's dismissal. I would wish to emphasise that the allegations against Mr Rousianos, were not, and have never been substantiated. Nevertheless, that is not the point. 138 It would seem to me that when Exhibit 1 is viewed in the context of the dishonest conduct of senior officers of the Department and the lies told to the Union, that a firm foundation has been made for a finding that Ms McKelvie was victimised for her Union activities. I am fortified in this finding by the warnings given to her about her Union activities by Ms Mitchell on 22 February 2007, and Mr Woods on 10 May 2007. Ms McKelvie's evidence about these two incidents was not contradicted. What is even more damning is that the complaints referred to in Exhibit 1 were never investigated to establish the truth; Ms McKelvie was never confronted with them as being of matters of concern; and when properly analysed, the complaints were found to be without substance. I note that from Exhibit 1, it would appear that at least Mr Houston believed that if Ms McKelvie was not to be re-engaged, she should at least be told. Of course, she was not. I also accept Ms McKelvie's evidence about the meeting with Ms Curran in June 2007, concerning a detainee's behavioural points. I find that Ms Curran was angry and hostile towards Ms McKelvie for raising a matter which she believed was no business of the Union. 139 I find that Ms McKelvie was victimised in that she was dismissed for raising matters of concern on behalf of her members and that her Union activities were the substantive and operative cause of her dismissal. 140 Having made a finding that Ms McKelvie was victimised, I hasten to add that I do not consider that the respondent's Central Office or the Department as the employing entity, was necessarily aware of, or condoned what had occurred. That the Department of Juvenile Justice and senior personnel of the Human Resources section have had a long and reasonably good working relationship with the Union, is not in doubt. It has certainly been my experience in dealing with the parties at various levels and in a multitude of circumstances. However, Ms Anderson submitted that it was simply wrong to suggest the Department would victimise an employee because of their Union activity. Unfortunately, the Department is the respondent to these proceedings and must take ultimate responsibility for the decision of Ms Curran. That said, it would not be unrealistic to suggest that individual local managers may take a course of action, maybe subtly, unwittingly or inadvertently, which is contrary to Departmental policy. Matters might get out of hand or take on a life of their own and which may ultimately result in decisions being taken at a local level, which on closer scrutiny, reveals conduct which is in breach of the victimisation provisions of the Act. That is what I consider to be the case here. Findings on witness credit 141 The respondent's case primarily focussed on the phone conversation between Ms McKelvie and an unknown person on 28 July 2007, which was overheard by Mr Eggleton. Indeed, it was this conversation which Ms Curran relied on to ground her decision to dismiss her. On this issue, I make the following observations. Even if I accept that Ms McKelvie said the words attributed to her, and that they meant what the respondent contended they meant; namely, that she was intending to leave the Centre and was going to cause as much trouble as possible (before she did), there was nothing in the evidence to support the claim that she intended to leave the Centre. True it was that Ms McKelvie was seeking a permanent position. This was no secret. However, there was no evidence that she had done anything more than apply for certain positions; certainly she had not received any indication of her applications being successful, let alone told when she might be starting a new job. To my mind, however, what is more significant is that there was no evidence that she had subsequently caused any trouble. Moreover, there was nothing in her past performance to suggest that she would engage in such behaviour. On the contrary, Ms McKelvie had even acted up as a Unit Co-ordinator. If trouble was her real intention, Ms McKelvie was not aware that she had been overheard. In other words, she had not been warned off causing any trouble, yet none had occurred. Without even speaking to Mr Eggleton, let alone asking Ms McKelvie for an explanation, without ever conducting any sort of inquiry, Ms Curran jumped to the worst possible conclusion, and treated her own interpretation of what she was told as fact. This response, by the Centre Manager, and seemingly supported by Ms Bender was wrong, unfair and unsupportable. 142 Ms Anderson submitted that Ms Curran should be accepted as a witness of utmost credit because she made concessions and gave evidence which did not reflect favourably on herself. This is a nonsense proposition. Because a witness is required to give truthful evidence on oath, and does so against their own interests, it does not follow that the witness is a credible witness. Other factors must be taken into account. Unfortunately, given the extent to which Ms Curran sought to avoid her responsibilities as a Manager in respect to her dealings with Ms McKelvie and the Union, I am left with little confidence that Ms Curran was a witness of credit. 143 On the other hand, Ms Anderson went to peculiar and unnecessary lengths to attempt to discredit Ms McKelvie as a truthful witness. She closely cross-examined Ms McKelvie on insignificant notes she had made about ordinary conversations and meetings in order to establish one of two scenarios: either that Ms McKelvie had inadvertently recorded inaccuracies or she deliberately did so. Ms Anderson criticised Ms McKelvie by describing her evidence at times as being 'like a broken record'. She criticised Ms McKelvie for being too positive and suggested she either had perfect recall or, more likely, she had answered questions in a particular way, irrespective of the truth. I reject these submissions. These were vain attempts to reach unfavourable conclusions about Ms McKelvie based on flawed and unsupportable assumptions. I prefer a third alternative; that is, what Ms McKelvie recorded in her notes was the truth. There was no doubt that Ms McKelvie is a person who diligently performed her representatives duties. She made detailed notes of relevant meetings and conversations. What possible motivation was there for her to concoct her own notes, particularly when she had no way of knowing they would ever be used in proceedings such as this? Ms Anderson's criticisms of Ms McKelvie in this regard fell flat. Ms Curran kept no notes at all of any relevant conversations and relied on her recollection, months after the events. This was bizarre behaviour for a Manager, let alone a Centre Manager. Ms Curran properly conceded her recollections could have been faulty. Viewed in this light, I see no sound basis for any adverse findings of Ms McKelvie's credit. In short, where her evidence conflicts with Ms Curran's, it is Ms McKelvie's evidence which I prefer. 144 Similarly, I conclude there is no sound or rational basis for rejecting Mr Fogarty's evidence that he left the meeting with Ms Curran and Mr Rousianos on 23 August 2007, with the clear impression that the reason Ms McKelvie was not to be offered any more shifts, was because she did not have a full drivers' licence. Practicality of Reinstatement 145 Having regard to the synergy between the unfair dismissal provisions and the victimisation provisions of the Act, I consider that reinstatement is the primary remedy under s 213(2) of the Act, where an employee has been victimised by dismissal. Reinstatement, of course, is the primary remedy under s 89(1) where a dismissal has been found to be 'harsh, unreasonable or unjust'. It follows that questions of the impracticality of reinstatement (or reemployment) might also arise under both sections. 146 In this regard, I refer to what the Full Bench said in Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 at [105] to [110]: 105 It is trite law that reinstatement is the primary remedy. It is only where it is impracticable to reinstate an applicant that the other remedies available under s 89 of the Act may be applied: see Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [88]; Riley v Workcover Authority [2006] NSWIRComm 108 at [94]. 106 In Plummer v Stannard Bros Launch Service (2005) 145 IR 111 the Full Bench stated the position as (at 115): Reinstatement is the primary remedy under s 89 of the Act: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [34]; Little v Commissioner of Police (No.2) (2002) 112 IR 212 at [88]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37 at [125] . Other remedies may only be ordered if reinstatement is considered to be impracticable. That requires the member of the Commission, in all cases where relief is to be ordered, to give active consideration to the practicability of reinstatement. Indeed, we consider s 89(5) requires a finding that it would be impracticable to reinstate the appellant prior to making an order for compensation and in the process of making that finding to give reasons: Entertainment Distributors Company Pty Limited and Anor v Burnard and Ors (1993) 49 IR 446 at 453. 107 The Full Bench in Little (No 2) considered the test to be applied as to the practicability of reinstatement of re-employment. At paragraph [91] the Full Bench stated: 91 It is in this light that we turn to consider the question of the practicability of reinstatement of re-employment. In this respect, we propose to apply the test in Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186 at 191-192 (which was adopted in Hollingsworth v Commissioner of Police at 341-342). 108 The focus in Perkins was on the issue of whether a loss of trust and confidence was a relevant consideration in determining whether reinstatement was impracticable and it is worth repeating what the Full Bench of the Federal Court had to say: Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Limited (Wilcox CJ, von Doussa and Marshall JJ, 13 December 1996, not yet reported). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushell (1933) 49 CLR 66 at 81-2 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based. At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act. If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable. 109 This approach was also accepted in Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282. 110 As to the approach to be taken in assessing the practicability of reinstatement, the comments of Cahill VP in NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46 at 50 are relevant: 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. My views in this regard accord with those of McClelland J in Hardie Ferodo Pty Ltd v New South Wales Nurses' Association (unreported, 28 Nov 1978), as cited with approval by Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 at 99. In the Hardie Ferodo case McClelland J said this: "This is, of course, a consideration to be taken into account in every reinstatement case but it must be treated with considerable caution. These cases come before the Commission by way of s 25A proceedings and the fact that such a case proceeds to arbitration after conciliation has failed provides in itself obvious evidence that the employer does not want the employee back. If that consideration had been allowed to outweigh all others the Commission would never have reinstated anybody."

See also New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89. 147 Ms Anderson argued the impracticality of reinstatement by citing the evidence of Ms Curran to the effect that she had ongoing concerns with Ms McKelvie and the safety of the Centre. I make four observations about this submission. 148 Firstly, Ms Curran's concerns were presumably based on her own and Mr Eggleton's interpretation of the overheard conversation of 28 July 2007. In oral evidence, Ms Curran readily acknowledged that she had jumped to the worst possible scenario, without ever asking Ms McKelvie for an explanation; without ever conducting any form of investigation and without ever discussing the matter with Mr Eggleton. 149 Secondly, Ms Curran's apparent concerns reflected her experience with other officers who she said had lost keys or left doors unlocked. There was not a skerrick of evidence from Ms McKelvie's record of employment to suggest that she would have engaged in the type of conduct Ms Curran feared. That Ms McKelvie enjoyed the confidence of Centre Management was demonstrated by the fact that she had on occasion acted up as Unit Co-ordinator. In any event, from the evidence disclosed in this case and from my observation of Ms McKelvie in the witness box, I do not consider it likely that she would have engaged in any inappropriate behaviour. 150 Thirdly, to an objective observer, it would makes no sense at all that Ms McKelvie would seek to cause trouble for the Department when she was actively seeking to build her career in the New South Wales Public Sector. 151 Fourthly, Ms McKelvie would have little, if any, day to day contact with Ms Curran, particularly as she is no longer a Union delegate. In addition, I note that Mr Rousianos is no longer employed at the Centre. 152 For these reasons, I reject the submissions as to the impracticality of reinstatement and determine that Ms McKelvie is entitled to the primary relief available under the Act, arising from her unfair dismissal and victimisation by the respondent. Findings

Ms McKelvie was effectively dismissed, without any warning, by the respondent on or about 5 August 2007, when Ms Curran made a decision not to offer her any further shifts at the Centre (see s 88 (c) of the Act).

Ms McKelvie was not told of her dismissal at the time, nor was she given any reason for her dismissal (see s 88(a) of the Act).

When representations were later made by her and her Union as to the reason/s for her not being offered any further shifts, a false reason was given.

The reasons for the dismissal offered by the decision maker, Ms Curran, some six months later, were not the real reasons and, in any event, these purported reasons had no basis in fact (see s 88(b) of the Act).

Ms McKelvie was given no opportunity to make out a defence or give an explanation for her behaviour and only learnt of the alleged basis for her dismissal when Ms Curran filed her statement in these proceedings (see s 88(b) of the Act).

Ms McKelvie's dismissal on or about 5 August 2007, was substantively and procedurally 'harsh, unreasonable and unjust' within the meaning of Pt 6 Ch 2 of the Act.

At the relevant time, Ms McKelvie was an elected representative of employees (see s 210(1)(a) of the Act).

Ms McKelvie was victimised (suffered detriment) in that she was dismissed by the respondent for raising matters on behalf of the employees she represented.

The respondent breached the provisions of Pt 1 Ch 5 of the Act, in particular s 210(1)(a) by dismissing Ms McKelvie.

The respondent was unable to satisfy the Commission of the onus it bears under the rebuttal presumption provision found at s 210(2) of the Act.

Ms McKelvie's Union activities were the substantive and operative cause of her dismissal.

Ms McKelvie is entitled to the primary remedy of reinstatement under s 89(1) and s 213(2)(a) of the Act as there is no reason why the reinstatement of Ms McKelvie would be impractical.

12. Ms McKelvie is entitled to the payment of lost remuneration and continuity of employment for the period since 5 August 2007 to the date of reinstatement, less any remuneration earned during that period. RECOMMENDATION 153 The Commission recommends that:

The respondent conduct an internal investigation into how it was that a false reason for Ms McKelvie's dismissal was conveyed to the Commission on 17 October 2007.

Mr Rousianos should be required to give an explanation for his conduct as disclosed by the evidence in these proceedings.

ORDERS 154 Pursuant to the provisions of s 89(5) and s 213(2) of the Industrial Relations Act 1996, the Commission orders that:

1 (a) The respondent, the Department of Juvenile Justice, shall reinstate Ms Kylie McKelvie, to her former position as a casual Youth Officer at the Orana Juvenile Justice Centre. (b) Reinstatement of Ms McKelvie to the casual roster shall occur in the next roster period or such other mutually agreed time.

2 (a) The respondent, the Department of Juvenile Justice, shall pay to Ms Kylie McKelvie, an amount of remuneration Ms McKelvie would have otherwise received (lost remuneration) from 5 August 2007 to the date of reinstatement. (b) The amount in (a) above shall be determined by agreement between the parties. (c) Any disagreement about the amount of lost remuneration shall be referred to the Commission for determination. (d) The amount determined as lost remuneration shall be less any amount of remuneration earned by Ms Kylie McKelvie in the relevant period.

(e) The amount of lost remuneration shall be paid within 14 days.

Ms Kylie McKelvie, shall be entitled to any continuity of employment she may have accrued as a casual employee from 5 August 2007 to the date of reinstatement.

Dispute proceedings IRC07/1853 are discontinued.

Any application for costs shall be made by notice of motion within 21 days of today.

Save for any application as to costs, these proceedings are concluded.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.