In this case I am satisfied that each of the applicants has suffered hurt and embarassment to herself, and in some cases, to family members, and has had difficulty finding continuing employment in her chosen field because of the nature of the charges against her. Ms Lata, who has been employed since February 2006, was unemployed from November 2005 until then.
147 Further, Ms Howell cited Wilcox J in Gooley v Westpac Banking Corporation 59 IR 262 as follows:
No employer is required to carry indefinitely an employee who lacks capacity for the job. But it is another matter to dismiss that employee summarily for "serious misconduct". Such a dismissal is likely to be traumatic and damaging to the employee. It brands the employee as someone who has committed an act of gross disloyalty, if not dishonesty. It is not an appropriate way of disposing of an employee who has acted conscientiously and honestly, though with poor judgment.
The question that arises from this is whether the applicants were guilty of serious misconduct. Their denials of any misconduct removed the option for the respondent of considering they acted honestly, but with poor judgment.
148 In Standley v Electronics Boutique Australia Pty Ltd, IRC 4516 of 1998, 18 March 1999, Sams DP considered the serious implications for an employee where allegations of misconduct are made. His Honour said at 14:
It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee. It can not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee's future employment prospects.
A finding by this Commission that a summary dismissal was justified, is a most serious matter which may unhappily burden and grievously harm an employee for years into the future.
149 The Full Bench in Franklins Ltd v Webb also cited with approval the decision of the former Industrial Commission in Court Session in Shop, Distributive & Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 at 2 as follows:
We consider in cases where dishonesty is alleged as the reason for summary dismissal, management should only summarily dismiss if it is fully satisfied after careful investigation that the accusation has been made out. In coming to such a conclusion, a prudent and fair employer will take into account, where relevant, as part of the circumstances of the case, an employee's youth or inexperience, the nature and effect of any interrogation and any admissions or denials made. We consider that this same standard should be applied by industrial tribunals when considering reinstatement.
Some argument took place about the admission of character evidence relating to previous good character. We consider that in this class of case, such evidence should be received as tending to prove that the employee should be believed on her oath and that an inference of dishonesty should less readily be inferred against her. Of course, the weight given to any such evidence may vary widely and its effect is always a matter falling within the discretion of the tribunal.
150 The balance of probabilities test is found in Briginshaw v Briginshaw (1938):
When the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect references".
151 The difficulty encountered in this case is that the proofs are inexact and the testimony is indefinite.
152 The evidence of Ms Walsh was, as Mr Warren conceded, exaggerated as to dates and events. It was, in my view, exaggerated in a wholesale manner. It is immaterial whether or not Ms Walsh was motivated by a desire to obtain morning shifts for herself, as Ms Howell suggested. Whatever her reasons, it remains that the initial information she provided to the respondent should have been tested, but was not. Four matters would have been plainly obvious from an initial investigation:
1. whether or not each of the applicants was at work on the days in question;
2. that the resident was wearing incontinence pads;
3. that the resident was climbing over tables to get at the staff is clearly an exaggeration, as such behaviour would presumably have been reported to the Registered Nurse; and
4. a decision to leave the resident in bed all day was a decision of the Registered Nurse on duty, not of the AIN.
153 The flaws in Ms Walsh's allegations are patently obvious. I will say little more about the allegations made by Ms Walsh because I find that her evidence lacks credibility.
154 Mr Warren made the point that Ms Walsh's allegations were not taken in isolation, but in conjunction with the statements provided by other witnesses. However, the allegations appear to have been taken on face value and to have coloured the respondent's investigation from that point onwards.
155 Ms Harrison, an employee of some seventeen years standing who had worked with Ms Rodriguez, Ms Lata and Ms Rai on a regular basis, had witnessed only one incident, involving Ms Lata. It is surprising that this did not cause the respondent to reconsider the allegations made by Ms Walsh.
156 Ms Hatcher named Ms Lata as participating in misconduct on 26 and 27 September, and later said Ms Lata was not a participant on those days. Ms Harrison detailed certain incidents on 11 October, later that day said it was 19 0ctober, and seven days later remembered that it was not 11 October but may have been in September. Ms Herman named Ms Khan and later withdrew Ms Khan's name. Ms Shearer initially said she saw certain conduct 'many times' but by February only wrote about one time. Ms Black withdrew her allegations completely, because they were not true, she said. This is apart from the number of changes made by Ms Shearer, Ms Black and Ms Uaisele to statements typed for them by the respondent on the same day that they were initially interviewed. All these changes indicate a high degree of uncertainty and unreliability of the initial evidence on which the respondent acted.
157 Ms Rai was on annual leave on 21 and 22 October 2005. At the first interview, Ms Rai was warned that termination of her employment was a possible outcome. She pointed out that she was upset by the allegations and her husband added that it was culturally 'unacceptable and unthinkable' and that their daughter's HSC was being affected by the allegations against her mother.
158 During the interview Mr Squire said "I have statements on this." Yet at the time of the interview the only allegations put to Ms Rai were in regard to 21 and 22 October, dates not mentioned by anyone other than Ms Walsh at this stage. Ms Harrison had not mentioned Ms Rai. Ms Hatcher had referred to events during the week of 26 to 30 September and had not referred to 'sexually suggestive advances' or causing the resident to become aroused and grab staff. The inference in Mr Squire's statement that several people witnessed events on 21 and 22 October could not reasonably be drawn from the statements available to the respondent at the time and is misleading. It confirms the view that the respondent's conduct of the investigation was conducted with a closed mind as to the likely outcome.
159 In the notice directing Ms Rai to attend the second interview, it was stated:
I am advising you that a total of seven (7) witness statements have now been provided alleging that regular, systemic, sexual harassment of [Mr D] takes place in Poate, perpetrated by a group of staff. These alleged incidents relate not only to the dates provided in my letter of 28 October 2005, but on numerous occasions during October 2005 and earlier. The witness statements, in collective, name you as one (1) of the perpetrators of these incidents.
160 I am concerned that it was said that seven witnesses alleged regular and systemic harassment, when as I have said, Ms Harrison did not name Ms Rai, nor did Ms Herman or Ms Uaisele. Ms Shearer said that Ms Rai laughed at others on one occasion only. Ms Black's allegation of inappropriate joking can hardly be labelled 'regular, systemic, sexual harassment'. At the time of the interview, the respondent had four witnesses in all against Ms Rai, only two of which could have been characterised as alleging regular and systemic harassment.
161 I am also concerned that the reference is 'not only' to 21 and 22 October. By not excluding these dates from the accusations against Ms Rai, the respondent appears not to have checked its own records which show that Ms Rai was on leave. In these circumstances the respondent's investigation cannot be described as 'thorough', as required by its own policy. The dates of the allegations were not 'amended', as Mr Warren submitted, but were added to. It would have been appropriate to acknowledge Ms Rai's absence on the days originally cited.
162 Ms Lata denied the allegations against her. The allegations by Ms Hatcher and Ms Black were withdrawn prior to the current proceedings. Ms Herman's allegations refer only to Ms Lata laughing at Ms Sutherton on one occasion. I concur with Ms Howell's submission that matters raised by Ms Lata in her defence could have easily been checked by the respondent, if specific allegations had been put to Ms Lata at the time of the initial interview, or prior to her dismissal. The contradictions in Ms Hatcher's evidence about Ms Lata is also noted.
163 Ms Khan's absence on 22 October, the date initially offered by Ms Walsh, could have been checked by the respondent. The specific allegations were not put to Ms Khan. Yet Ms Raguz put to Ms Khan that she could not 'take the risk with residents that you are an abuser'. Clearly, as Ms Howell submitted, Ms Khan was being asked to prove her innocence.
164 Ms Khan was not named by Ms Harrison, Ms Hatcher, Ms Uaisele or Ms Black. Ms Khan was told of seven witness statements being received, and that the statements 'in collective' named her as a 'perpetrator'. Again, this is a misleading inference and I find that it was unfair to put the facts to Ms Khan in this way. I note that Ms Herman later withdrew Ms Khan's name from her testimony.
165 Ms Rodriguez was not named by Ms Uaisele. Ms Harrison, Ms Herman and Ms Shearer accused her of laughing. Ms Rodriguez gave specific responses to the charges against her at the interview on 1 November and provided a written response with details which should have been checked against the respondent's records. There is no evidence, either in the next letter to her or in the following record of interview, that any of the matters she raised were confirmed or denied. Rather, the particular dates were simply omitted from the letter.
166 Again, as with the other applicants, Ms Rodriguez was told in writing and at the second interview that seven witness statements were received alleging that regular, systemic sexual harassment of Mr D takes place in Poate, and that the witness statements 'in collective' name Ms Rodriguez as one of the 'perpetrators'. Ms Rodriguez was not named by seven witnesses. Nor did all those who named her identify her behaviour as sexual harassment, nor did they all say it was regular and systemic. By taking a collective view of the allegations, the respondent has treated the applicants as a group. As was found in Peter John Paris and Bankstown City Council there is innate unfairness in the applicants having been judged on the basis of evidence against another.
167 Ms Enzenhofer had described Ms Rodriguez as "liked and respected" as recently as July 2005. Another Registered Nurse had written that she was "compassionate". These descriptions are at odds with the allegations, and appear not to have been taken into account by the respondent.