(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."