Ramadas v Industrial Relations Secretary [2019] NSWIRComm 1075 | Case summary

Industrial Relations Commission (NSW)|2019-07-04

Solicitors: Mr M Burns, McNally Jones Staff Lawyers (Appellant) Mr A Roberts, Crown Solicitor's Office (Respondent) File Number(s): 2019/00030160

DECISION

The appellant, Renu Ramadas, was employed the by the respondent, the Industrial Relations Secretary (Legal Aid Commission of NSW), for a period of 22 years prior to the termination of her employment on 8 January 2019. Prior to her dismissal, she was employed in the role of Grants Officer, Clerk Grade 3-4.
By letter dated 18 December 2018, Brendan Thomas, Chief Executive Officer of the Legal Aid NSW, advised the appellant of findings of misconduct which had been made against her and the determination which had been made by him pursuant subsection 69(4)(b) of the Government Sector Employment Act 2013 ("the GSE Act") to: Terminate the employment of the employee (after giving the employee the opportunity to resign)
The appellant did not avail herself of the opportunity to resign and, as a consequence, by letter dated 8 January 2019, Mr Thomas advised the appellant of his decision to terminate her employment with immediate effect. It is from that decision that the appellant brings this public sector disciplinary appeal pursuant to the provisions of Part 7 of Chapter 2 of the Industrial Relations Act 1996 ("the Act").
The appellant seeks reinstatement to her former role or re-employment in an alternative role with continuity of employment and compensation for lost earnings.

The disciplinary process

By letter dated 10 August 2018, Mr Thomas advised the appellant that he had received information indicating that she may have engaged in workplace misconduct in the form of a failure to comply with reasonable and lawful directions and by lodging a vexatious complaint.
Mr Thomas referred to a written "Formal direction and warning" issued to the appellant on 29 May 2018 by Jocelyn Flanagan, Director Grants. This "first and final warning" followed the repeated failure by the appellant to attend scheduled meetings with her managers, including her Team Leader, Kylie Johnson. Ms Flanagan's letter also included a reminder to the appellant to be mindful of her workplace behaviour and her obligations under the Code of Conduct to act with professionalism, to build relationships based on mutual respect and to invite teamwork and collaboration. The appellant was also reminded of the obligation to comply with any reasonable direction given to her.
Mr Thomas advised the appellant that he had decided to deal with the misconduct allegations in accordance with the GSE Act and the Government Sector Employment Rules 2014 ("the Rules").
The misconduct allegations against the appellant were: Allegation 1 It is alleged that you, in your capacity as an employee of Legal Aid NSW, did fail to comply with lawful and reasonable directions issued to you. Specifically, you failed to comply with an email from Kylie Johnson, Team Leader, of 26 July 2018 that listed the following rules for staff to attend the Criminal Law Conference: * Staff may attend 1-2 days of the 3 day conference * Completion of a sign-up sheet to ensure that there was sufficient staff coverage of phones and there be no more than four Grants officers present per session of the conference. Your non-compliance with these directions is demonstrated by your alleged attendance at the conference for the full three days and by not completing the sign-up sheet. Further, when it appeared that you had not complied with the request to complete the sign-on sheet, Ms Johnson approached you at the Criminal Law Conference on 2 August 2018 and directed that you were to return to the office. You did not comply with this request. The alleged behaviour amounts to an allegation of misconduct as it is inconsistent with mandatory standards of conduct required of you by the Legal Aid NSW Code of Conduct, including your obligation to demonstrate and uphold the following principles: * act professionally with honesty, consistency and impartiality * build relationships built on mutual respect * communicate intentions clearly and invite teamwork and collaboration. The alleged behaviour is also inconsistent with clause 7.14 of the Legal Aid NSW Code of Conduct which states: all employees must comply with any lawful and reasonable direction given by a Legal Aid NSW employee who has the authority to give the direction. Allegation 2 It is alleged that you, in your capacity as an employee of Legal Aid NSW, did on 12 June 2018 lodge a vexatious complaint regarding the behaviour of other Legal Aid NSW employees. It is alleged that your complaint was instituted without sufficient grounds, was not made in good faith, intended to cause trouble for others and to offset scrutiny of your own workplace conduct and performance. The alleged behaviour amounts to an allegation of misconduct as it is inconsistent with mandatory standards of conduct required of you by the Legal Aid NSW Code of Conduct, including your obligation to demonstrate and uphold the following principles: * act professionally with honesty, consistency and impartiality * build relationships built on mutual respect
Mr Thomas advised the appellant that the services of an external independent investigator, David Madden of Dbm Independent Consultants, had been engaged to examine the allegations and provide a detailed investigation report.
The appellant was advised that she would be provided with an opportunity to participate in an interview with the investigator and/or provide a written submission to respond to the allegations. She was advised that Daryn Nickols, Senior Consultant, Workplace Standards, People and Organisational Development, would coordinate the process.
By separate letter also dated 10 August 2018, Mr Thomas advised the appellant that he had decided to suspend her from duty (with pay) with immediate effect.
The complaints by the appellant against other members of the staff, which formed the basis of Allegation 2, were set out in correspondence from the appellant which was received by Mr Nickols on 12 June 2018 and in a record of conversation between the appellant and Mr Nickols which occurred on 25 June 2018. Those two documents are set out in full below: Dear Sir This letter is to inform you about my problem in Grants. My main problem is the Operations Manager (Scott Kirkwood). The previous operations manager had formed and left behind her own group of bullies (Scott, Sean, Kylie and Charles) who supported her and used to act on her instructions. When Scott being appointed as Operations Manager, I overheard a grants officer telling him that Tracey has asked him to keep up the tradition and Scott said that he would keep up the tradition. No matter whichever team I get moved to, as long as Scott is the Operations Manager, they all will act on his instructions and will be able to bother me. During lunch time Scott used to come to his old room that is facing my seat (even though his room now is near Director's room) and change his clothes (when he goes for basketball). When he is going to change, he stands near the window and stares at me in a weird way. After that he will come to the middle of the door and stare at me again for a long time. I would ignore him and keep on doing my work but I would feel very uncomfortable. He will also come to this room many times during the day to stand near the window in darkness and stare at me. I always tried to avoid him and I complained about this to a few people. Since I complained about him he started giving instructions to Kylie to bully me. Scott encourages Charles Lovell to stalk me. In the morning when I come in Charles waits for me near the lifts and try to enter into the lift with me or wait near the office door and jump towards me when I try to open the door. Also when I go for morning tea time he follows me and passes strange comments. He will keep a note on what time I usually leave for the day and then wait for me near the lift or near the door to jump in front of me and harass me. Sometimes when l leave in the evening I have seen Scott running to Charles to force him to leave at the same time and follow me then I will see Charles following me through the park. He makes dirty comments loudly which is encouraged by Scott. Scott also joins with him and makes inappropriate comments (I am unable to put those comments in writing). I will wear my ear phones so that I do not have to listen to it which is why Scott was trying to make a rule that no one can wear earphones. Charles walks past my desk frequently, looks at my body in a odd way and makes unusual expressions. So nowadays when I see him walking past my desk I have to sit in the opposite direction. Other times he stands in front of my desk and just stares at me for 15 to 20 minutes or so which is really uncomfortable and not appropriate in the workplace and I have noticed that he is only doing this to me. Charles takes long breaks (more than 2 hrs sometimes) whatever time he feels like and comes back heavily intoxicated and I can smell the alcohol when he walks past my desk. Sean Quigley will also walk past my desk at times and give a threatening type of look at me. Together they all engage in loud dirty talk and gossip which makes it difficult to work peacefully. I believe Charles had the keys for my drawer which he grabbed from operations support and used to put some stuff in my drawer and makes my washed cups dirty (I think he does that when I am not there) and because of this I am now using my own bag with a key. Charles, Kylie and Sean together used to allocate to me double the workload what they used to give to other people. However, I still used to complete the workload within the timeframe without causing any problem and actually topped the stats list which got recognised by the management at the time. I believe that my computer is being hacked by Scott who has connections in IT. I get weird emails from unknown sources inviting me to illegal websites which I reported to the Services Desk. Also when I am typing on my computer words get automatically deleted for which I have no control over. Recently on two occasions he deleted my AAR request and AAR returns from solicitors. He has asked a grants officer to send me an email saying I have given a grant by error. I knew that I had given AAR request but when I checked it with the solicitor we couldn't find it. I sent an email to the grants officer addressing the issue. Later Scott retrieved it. On another occasion he deleted my AAR requests from file history and I believe only Scott would be able to do it. I sent an email to service desk addressing the issue. Since Scott is doing this, I believe he might even be cheating and changing the stats list when it comes to mine to change my high performance. They give me a piece of paper which shows much lesser than what I have done. If he can delete the AAR requests he would do anything to affect my work. He is desperate to find fault with my work because then only he can put me under performance issues which so far he has not been successful. Scott hires people who are his favourites and are inefficient in order to make his bully gang powerful. He doesn't have any management skills and he promotes bullies to higher positions. He allows Charles and Denis to take smoke breaks unlimited amount of times per day but if I take 15 to 20 minutes morning tea break I get questioned. Scott has brought back the rule that team leaders do not have to be on the phones. He has asked the solicitors to direct me to him if l go to them with any enquiry. Scott is also encouraging Kylie to use one on one meetings to bully me. Before and after one on one meetings with me, Kylie spends 1 hr with Scott behind closed doors having a secret discussion. Obviously he is giving her instructions as to what to say or do during the meeting which puts me in a very vulnerable position. Scott approves leave for Courtney Appleton on every Monday as flexi and for Kylie every Friday so that if I happen to ask for leave on either on these days it would be declined. Kylie brought Tracey's name in the one on one meeting and when I asked her why you are bringing Tracey's name because she has gone now, she screamed and shouted "Tracie has not gone. Tracey will come back and finish you". Kylies shouting was overheard by two family law solicitors. Kylie asks me unethical things that I need to socialise with everyone by talking about my personal life. When I told her that I would rather talk about work related matters, she was unhappy and said that you don't know what Scott and I are going to do to you and storms out of the meeting room. I found it very unprofessional and threatening. Also during the second meeting she behaved like a mad woman, shouting and screaming and dropping files and complaining that she has anxiety disorder. She storms out of the room shouting which was witnessed by the support person who was with me. This behaviour is being encouraged by Scott. Any issues between Kylie and I was already resolved when Leanne was there where I believe Kylie was asked to take a management skills course. Scott is repeating what previous management was doing and that was favouritism. He is a very biased person who gives benefits to people based on friendship, not based on merit. He has been influencing all the past directors and he is continuing to do so which enables him to control the entire grants division. Every week he will ask directors to send me meeting requests. He desperately wants to move me to family or else get rid of me. He is using these meeting to impose his rules and bully me. It has now reached the point where he has asked the director to send me a warning letter about terminating my employment regarding code of conduct. He lied to the director that in my meeting with the Leanne and my support person I proposed to go to family. One of the grants Officer (Margaret Smee) whose performance is poor has not even once been called for a meeting about her performance. Another grant Officer Lina Tang who took few months sick leave has not been called for a meeting or not even once got questioned regarding her sick leave. It appears Kylie might not approve any of my leave in the future as a result of this warning email regarding my employment. So these meeting requests are a clear case of bullying towards me which makes my work life difficult as I have to focus on these issues and I am unable to work peacefully in these circumstances. Thanking you …………………………….. FILE NOTE: Record of conversation with Renu Ramadas CREATED BY: Daryn Nickols DATE: 25 June 2018 10:30 I commenced the conversation by advising Renu that the CEO had referred her complaint to me to undertake as assessment of the matter. I explained the purpose of the assessment process and the potential outcomes: no action, remedial measures or formal misconduct investigation. I explained that the assessment process will be interested in knowing whether there are potential witnesses and/or other potentially corroborative sources of evidence and information. I noted for example that Renu had suggested that she had told others, "some solicitors" about her experiences and it would be relevant to know who they are. Renu stated that one was the PSA representative, Anastasia Polites and another solicitor. Renu suggested this other solicitor, while they know about these matters does not wish to be involved and Renu felt she would require her consent before telling me who that person is. I advised Renu I would leave that request to her. I asked Renu what she would like to see happen to resolve her concerns. She said that she had been bullied and isolated in the workplace. She mentioned that she had recently been issued with a warning letter on the back of information provided by those named in her complaint (Scott Kirkwood and Kylie Johnson) and felt this reflected further bullying. Renu also mentioned that she would like to be able to just do her job. I then worked through some of the key points of Renu's complaint with her. In relation to Scott Kirkwood changing his clothes in his office and staring at Renu, Renu stated that he would do so twice a week. That this occurred over 18 months and ceased 2 months ago. Renu was unable to nominate any potential witnesses to this behaviour stating that the staff would support Scott over her. She stated that she had reported this matter to the above unnamed solicitor. In relation to Charles Lovell ambushing and stalking her Renu stated that this involved Charles blocking her exit from the lifts and following her when she is outside the office. Renu said that the 'ambushing' would this occurs "most days" but never in front of anyone else. Renu added that other staff do not think Charles is mentally well. I asked Renu to specify the ''inappropriate comments" she refers to in her complaint. Renu stated that on one occasion Charles said to her that Scott had created some kind of peep hole in the toilets so that "he can see you naked". Asked when Charles made this statement, Renu stated that it occurred last week. Renu stated that on another occasion Charles had said to her words to the effect: "Scott is really horny when he sees you". Renu added that Scott heard this comment and laughed and smirked. Renu did not have any further specific examples, saying that she had commenced listening to music on her headphones to avoid hearing these comments and that she had not spoken to Charles in 2 years. She said that on another occasion "some women" said to her that Scott has a "crush" on her and added that on one occasion Scott invited her to lunch. Renu said that Kylie Johnson had requested her attendance at team drinks and that Kylie had said to her, "Scott wants you to come to the drinks". Asked if these comments were made in the open part of the office Renu said they were. Asked about potential witnesses Renu said that no one would support her. In relation to the allegation that Charles would 'stalk' her through the park on Scott's instruction, Renu stated that it had happened on 3 or 4 occasions since November 2017 and occurred at the end of the day when she is heading to the train station. Renu stated there were no witnesses to this conduct but that she had reported her observations to the unnamed solicitor. Asked about potential witnesses to her allegation that Charles would stand in front of her desk for 15-20 minutes, Renu stated that other members of staff will support Charles and Scott. On this and other issues generally (e.g. observing Charles to be "heavily intoxicated") Renu did not nominate any direct witnesses, stating that other will not support her. The only potential witness is the unnamed solicitor to whom she has reported various events - e.g. the alleged interference with her office draws and coffee cup. With regard to Sean Quigley, Renu stated that he had walked past her and raised his middle finger (no witnesses). I asked Renu if she could provide any information in support of her complaint that she used to get allocated double the work-load, but she stated that she is unable to demonstrate this alleged overloading. In relation to alleged hacking of her computer by Scott Kirkwood, Renu stated that she would receive unsolicited emails from external websites and text would disappear from Word and ATLAS as she typed it. She also stated that her task list in ATLAS would be altered and that AAR requests and AAR returns would be deleted. Asked why she though Scott would do these things she said it's because Scott is interested what she is doing. Renu said these things "were happening a lot" and that she had reported the email issue to the service desk. In relation to alleged favourable rostering and flex approval by Scott Kirkwood, I advised Renu that I had looked at the past 6 months-worth of flex sheets for those named in her complaint and there was no apparent pattern of them having "every'' Monday or Friday off. Renu suggested the Grants team outlook calendar gave a different picture and she undertook to provide me with a copy. In relation to Renu's complaints about her Team leader, Kylie Johnson, she stated that examples of Kylie yelling had been witnessed/heard by Anastasia Polites and the unnamed solicitor. Renu described Ms Johnson's behaviour where she allegedly disclosed a diagnosis of anxiety and ran out of the room, as extremely disrespectful. The conversation concluded with Renu undertaking to provide me with some further specific information - email she had sent to the service desk, drinks invite and calendar entries. Daryn Nickols
In an email sent to Mr Thomas on 16 August 2018, the appellant "rejected and denied" Allegations 1 and 2 and noted that "both allegations do not amount to serious misconduct".
In respect of Allegation 1, the appellant claimed that, as previously agreed with her Team Leader, Ms Johnson, the appellant left a note on her desk to notify which sessions of the Criminal Law Conference she was planning to attend. She claimed that she had every intention of signing the conference registration document on the notice board in order to notify her attendance. She claimed that, unfortunately, she was unwell and not at work on the day before the conference and was, therefore, unable to put her name on the notice board. On 2 August 2018, the appellant was in attendance at the second day of the conference when she was approached by Ms Johnson. She claimed that Ms Johnson asked her why she didn't put her name down on the sign-up sheet. The appellant claimed that this confused her because Ms Johnson was notified of the appellant's attendance by email from the registration authority and that she, the appellant, had left a note on her desk indicating that she would be in attendance for the three days of the conference. The appellant denied that she was directed to return to the office or to not attend the conference.
In response to Allegation 2, the appellant claimed that the complaints she had made on 12 and 25 June 2018 were "in relation to the conduct of some colleagues that were making me feel uncomfortable and unsafe. I made these complaints in good faith and to the best of my recollection and knowledge and with the view of making their behaviour towards me stop". The appellant denied that her complaint was vexatious, made in bad faith or intended to cause trouble. She asserted that it was her "workplace right to make a complaint or request action be taken to ensure my workplace safety". The appellant acknowledged that the colleagues about whom she had complained had denied the alleged conduct, but stated that the "complaint I made does not amount to misconduct just because colleagues I complained about have denied my allegations. Making a complaint to protect myself is not misconduct".
On 16 August 2018, Mr Nickols sent an email to the appellant in response to her email of the same date to Mr Thomas. Mr Nickols' email was sent to ensure that the appellant understood the process and that she had an opportunity to provide an informed response to the allegations of misconduct against her.
On 20 August 2018, Mr Nickols forwarded his email of 16 August to the appellant's union representative, Susan Emery of the Public Service Association, to further ensure that the appellant understood her opportunities to respond to the allegations against her.
As part of his investigation, Mr Madden conducted interviews with and/or received documented material from the following employees of the respondent:

Kylie Johnson, Team Leader, Grants
Ann Miller, Legal Officer Grade 5
Mervyn Hoskins, Team Leader, Grants
Scott Kirkwood, Acting Operations Manager, Grants Division
Charles Lovell, Team Leader, Grants
Mychael Stuart, former Grants Officer
The appellant
Maree McDonald, Legal Aid employee

Mr Madden was provided with a written response from the appellant to the misconduct allegations. This was followed up with a series of written questions to the appellant which she answered in writing.
On 25 September 2018, Mr Madden provided the respondent with a 126 page investigation report together with 315 pages of appendices. Mr Madden found that Allegations 1 and 2 against the appellant were "sustained" and recommended that his findings be dealt with in accordance with the GSE Act.
By letter dated 7 November 2018, Mr Thomas advised the appellant that he had determined, consistent with the findings of Mr Madden that the appellant had engaged in misconduct in respect of Allegations 1 and 2. The appellant was provided with a copy of the investigation report.
The appellant was advised that Mr Thomas was "inclined to propose termination of your employment". She was invited to provide a written submission in response to the proposed sanction within 14 days.
On 22 November 2018, the appellant provided Mr Thomas with a written submission. She maintained her denial in relation to Allegation 1. With respect to Allegation 2, the appellant claimed that she had been subjected to bullying in the workplace and that the purpose of her complaint which formed the basis of this allegation was to resolve the issues in her workplace and it was not her intention to "cause trouble to anyone". The appellant advised Mr Thomas of her dire domestic and financial situation and pleaded that her employment not be terminated.
After consideration of the appellant's written submission, Mr Thomas issued her with the letter of 18 December 2018 referred to at [2] above followed by the letter of termination of 8 January 2019 referred to at [3] above.

Case for the respondent

The respondent called a number of witnesses in the proceedings who gave evidence in relation to the various matters relied upon by it to support the decision to terminate the employment of the appellant. Their evidence is dealt with below.

Failure to attend meetings

As Manager, Workplace Standards, it was Mr Nickols' responsibility to assess and respond to allegations of misconduct at Legal Aid NSW. Mr Nickols gave the following evidence by way of affidavit concerning the appellant: Failure to attend meetings 5. Prior to her termination on 8 January 2019, Renu Ramadas was employed by Legal Aid as a Grants Officer classified as a Clerk Grade 3-4 in the Grants Division of Legal Aid… 6. From around November 2017, Ms Ramadas began to refuse to attend meetings with the management of the Legal Aid Grants Division. This occurred on at least 10 occasions. 7. On 16 April 2018, Dora Dimas, the Acting Director of the Grants Division, sent Ms Ramadas an email requesting a meeting… Ms Ramadas declined to attend that meeting. 8. On 20 April 2018, Ms Dimas sent Ms Ramadas a further email requesting a meeting… Ms Ramadas declined to attend that meeting. 9. On 1 May 2018, Ms Dimas sent Ms Ramadas a further email requesting a meeting… Ms Ramadas declined to attend that meeting. 10. On 4 May 2018, Ms Dimas sent Helen Kojevnikova, a Senior Business Partner in the People & Organisational Development team of Legal Aid an email about Ms Ramadas declining to attend a meeting on 3 May 2018… 11. Also on 4 May 2018, Ms Dimas sent Ms Kojevnikova a chronology of her requests for a meeting with Ms Ramadas… 12. On 28 May 2018, Ms Jocelyn Flanagan, the Director of the Grants Division of Legal Aid sent Mr Kirkwood and Ms Johnson an email about Ms Ramadas failing to attend a meeting with her… 13. On 29 May 2018, Ms Jocelyn Flanagan, the Director of the Grants Division of Legal Aid, sent Ms Ramadas a formal direction and a "first and final warning" about her failure to attend meetings with the management of the Grants Division… 14. In her letter of 29 May 2018 Ms Flanagan directed Ms Ramadas to attend a meeting with her on 4 June 2018 and sent her a meeting request. Ms Ramadas declined the meeting request and requested that the meeting be delayed until 13 June 2018 so that she might organise a support person. Ms Flanagan set a revised meeting date of 7 June 2018… 15. On 7 June 2018, Ms Ramadas called in sick so did not attend the meeting. The meeting was rescheduled to 13 June 2018. On 13 June 2018, Ms Ramadas again called in sick and so did not attend the meeting… 16. On 15 June 2018, Ms Ramadas sent an email to Mr Brendan Thomas, the Chief Executive Officer of Legal Aid, and requested a meeting with him. On 18 June 2018, Mr Thomas replied to Ms Ramadas stating that he understood Ms Flanagan had been attempting to book a meeting with her and requesting that Ms Ramadas discuss her concerns with Ms Flanagan in the first instance… 17. On 18 June 2018, Ms Ramadas attended a meeting with Ms Flanagan. At the meeting, Ms Flanagan reiterated that Ms Ramadas was still subject to the warning advice issued in Ms Flanagan's letter of 29 May 2018. After the meeting, Ms Flanagan sent Ms Ramadas an email outlining the course of action agreed at the meeting…
Mr Kirkwood is employed as the acting Grade 6 Senior Criminal Law Solicitor in the Grants Division of the respondent. Between 6 November 2017 and 12 October 2018, he was employed as the Acting Operations Manager of the Grants Division. The appellant had not been in Mr Kirkwood's reporting chain.
Mr Kirkwood gave evidence of the unsuccessful attempts he had made through Kylie Johnson, the appellant's supervisor, and Helen Kojevnikova, Human Resources Business Partner, to have the appellant attend meetings with Ms Johnson. His affidavit contained the following: 10. On 16 February 2018, Ms Johnson sent me a copy of an email she sent to Ms Kojevnikova about Ms Ramadas declining to attend her regularly scheduled fortnightly one-on-one meeting with Ms Johnson… 11. On 16 February 2018, I sent three separate meeting requests to Ms Ramadas and Ms Johnson to arrange a substitute one-on-one meeting. All three meeting requests were declined by Ms Ramadas. Ms Ramadas did not provide any explanation about why she could not attend any of these meetings… 12. On 16 February 2018 at 2.44pm, I sent Ms Ramadas an email requesting reasons why she could not attend the substitute one on one meeting with me. I never received a response to this request… 13. After Ms Ramadas failed to attend the meetings I had tried to organise with her, I consulted with Ms Kojevnicova and the then acting Director Grants, Leanne Robinson, about the next steps. I understand that Ms Robinson then met with Ms Ramadas, but I had no further involvement with this issue.
Ms Johnson gave the following evidence: Failure to attend meetings 7. Ms Ramadas came to my team from Charles Lovell's team in or about November 2016. 8. On 7 November 2017, I sent Mr Kirkwood an email about Ms Ramdas declining to attend a meeting with me… 9. On 1 February 2018, I had a one-on-one meeting with Ms Ramadas to set expectations for the coming year. After the meeting, I prepared a file note… On 8 February 2018, I sent Ms Ramadas an email summarising what had occurred at that meeting… 10. After that meeting, Ms Ramadas began to refuse to attend one-on-one meetings with me. 11. I sent a meeting invitation to Ms Ramadas on 14 February 2018 for our fortnightly one-on one meeting on 16 February 2018… 12. Ms Ramadas did not accept the meeting invitation but it was not declined either. Just before the time the meeting was scheduled, I noticed Ms Ramadas leave her desk. She had still not returned at the meeting time and did not return for approximately 15 minutes. When she returned, I walked over to her desk and we had a conversation in the following terms: I said: "Renu, we had a one-on-one meeting scheduled this morning at l0am." Ms Ramadas said: "I am not coming." I said: "Why? This is a regular one-on-one meeting and you have to come." Ms Ramadas said: "No, you were mean to me at the last meeting." I said: "I don't understand, how was I mean?" Ms Ramadas said: "You are not allowed to talk about work in the one-onone, it is supposed to be about my wellbeing. The Union will contact you." I said: "Ok, then I can reschedule the meeting to not be a one on-one and we can discuss the email I sent to you about the last meeting." Ms Ramadas said: "No I am not meeting with you. Do whatever you want." I then walked away and sent an email to Ms Kojevnikova advising her of Ms Ramadas' refusal to meet with me… 13. I refute the allegation that I was mean to Ms Ramadas in the meeting on 1 February 2018. I just explained to her what I, as a supervisor, expected of her as a staff member. 14. On 24 May 2018, I sent Mr Kirkwood an email about Ms Ramadas declining to attend a team meeting… 15. Also on 24 May 2018, I sent Ms Kojevnikova an email about Ms Ramadas failing to attend a team meeting… 16. On or about 29 May 2018, Ms Ramadas received a written "first and final warning" about her refusal to attend scheduled meetings.

Allegation 1 - Criminal Law Conference

Mr Nickols gave the following evidence: Attendance at the Legal Aid Conference 22. On 1, 2 and 3 August 2018, Legal Aid hosted a Criminal Law Conference (the "Conference"). 23. On 1 August 2018, being the first day of the Conference, I received a telephone call from Ms Johnson at approximately 11:15am. 24. Ms Johnson said that Ms Ramadas was in attendance at the Conference, Ms Ramadas had not attended the office at all that morning and Ms Ramadas had not put her name on a roster developed to organise and manage staff attendance at the conference. Ms Johnson explained that the requirement to complete the roster had been explained to staff, including Ms Ramadas, in an email on 26 July 2018. 25. Ms Johnson explained that certain rules had been established for staff to attend the conference, for example they could attend 1-2 sessions over the 3 days of the conference. 26. I said that Ms Johnson should have someone in attendance at the conference convey a message to Ms Ramadas that Ms Johnson would like her to make contact. I also said that Ms Johnson should re-send her email of 26 July 2018 insisting that Ms Ramadas complete the necessary requirements for attendance at the conference. My verbal advice was detailed in a subsequent email I sent to Ms Johnson on 1 August 2018… Ms Johnson said she would follow my advice. 27. On 2 August 2018, being the second day of the Conference, I received a telephone call from Ms Johnson at approximately 10:00 am. 28. Ms Johnson said that Ms Ramadas had not attended the office that morning and that she thought that Ms Ramadas was in attendance at the conference. Ms Johnson said that she would be attending the conference herself that day. 29. I said to Ms Johnson that she should approach Ms Ramadas at the conference and instruct her to return to the office. 30. Ms Johnson said she would instruct Ms Ramadas to return to the office.
Ms Johnson's affidavit contained the following: Criminal Law Conference 17. On 1, 2 and 3 August 2018, Legal Aid hosted a Criminal Law Conference (the "Conference"). The Conference is a continuing legal education event organised by the Legal Aid in-house Crime Division. In-house staff and visiting lecturers present material of interest in the area of criminal law to in-house and non-Legal Aid staff… Direction about attending the Conference 18. On 6 July 2018, I received an email from Mr Kirkwood with the subject "Conference registration". I understood this email as outlining the rules for staff in my team attending the Conference… 19. Based on the email from Mr Kirkwood, the requirements were that each member of the Grants team would only be permitted to attend one to a maximum of two sessions over the three days of the Conference and that I would need to ensure that there were sufficient staff from my team in the office to answer the phones and maintain normal operations during the Conference. I understood that I would need to create a list of which staff members were attending which session of the Conference so that I could provide this to Mr Kirkwood. Accordingly, on 26 July 2018 I sent an email to the members of my team, including Ms Ramadas, explaining the rules for attending the Conference… 20. I created a sign-up sheet for the members of my team to sign up to different sessions of the Conference. I put the sign-up sheet up on the glass wall of Steven Doumit's office on Thursday 26 July 2018. I put the sign-up sheet there because it is easy to access and everyone walks past it at some stage each day… 21. Ms Ramadas attended work on Thursday 26 July 2018, Friday 27 July 2018 and Monday 30 July 2018. The sign-up sheet remained on the glass wall throughout this time. Other employees signed the sheet. On 31 July 2018, Ms Ramadas called in sick and did not attend work. 22. At no time did Ms Ramadas put her name on the sign-up sheet to indicate that she would be attending any session of the Conference. Conference - Day 1 23. On 1 August 2018, being the first day of the Conference, Ms Ramadas had not come into the office by 10.00am. I was aware that one of my team members, Courtney Appleton, was going from the office to the Conference that morning. Before she left, I had a discussion with Ms Appleton in the following terms: I said: "If you see Renu down there, can you let me know." Ms Appleton said: "OK." 24. At 10.49am, Ms Appleton sent me a text message which said "Renus here"… 25. At 10.56am, I sent an email to Daryn Nickols advising him that Ms Ramadas had not attended the office but was at the Conference… 26. I then had a telephone conversation with Mr Nickols and he sent an email to confirm my next steps... 27. At 12.32pm on 1 August 2018, I sent Ms Ramadas an email about Ms Ramadas' attendance at the Conference and reiterated the rules for attending the Conference. This email also forwarded my email of 26 July 2018 (as Mr Nickols has suggested to me)… I also asked Ms Appleton to approach Ms Ramadas to convey a message to Ms Ramdas that I would like her to make contact with me. However, Ms Appleton went home sick that day. 28. At around 1:15pm that afternoon, I attended the Conference and saw Ms Ramadas was there. She was with Ann Miller having lunch. At the end of the lunch break she went into a session along with Ms Miller. 29. I remained at the Conference until 4.30pm in the same session as Ms Ramadas and saw her leave at approximately 4.00pm. Ms Ramadas did not return to the office that afternoon. Conference - Day 2 30. On 2 August 2018, being the second day of the Conference, Ms Ramadas had not come into the office by 9.30am. 31. I suspected that Ms Ramdas was at the conference. At around 10.00am I spoke to Mr Nickols and updated him. He told me to instruct Ms Ramadas to return to the office. 32. At around 10.30am, I had a conversation with Jocelyn Flanagan, who is the Director of Grants. I said words to Ms Flanagan to the effect of: "I am heading down to the Conference now, if I see Renu down there I will tell her she needs to return to the office." Ms Flanagan replied "OK". 33. At around 10.45am, I attended the Conference. I was accompanied by Mervyn Hoskins. When I arrived at the Conference, I was standing outside where a morning tea table was set up. Ms Ramadas came out of the building where the Conference was held. She was accompanied by Ann Miller. I said to Mr Hoskins "Okay, I think I will talk to Renu. Can you just come with me to make sure everything is okay?" Mr Hoskins replied "Yes". 34, Mr Hoskins and I approached Ms Ramadas and Ms Miller. Ms Ramadas and I had a conversation in the following terms: I said: "Good morning Renu." Ms Ramadas said: "Good morning." I said: "I'm surprised to see you here." Ms Ramadas said: "No no, not here." 35. Ms Ramadas then put her hand up and then started walking away from me. I said "Renu, hang on, I need to speak with you". Ms Remadas continued to walk faster away from me. I followed her out of the area where the Conference was being held. 36. I said to Ms Ramadas: "Renu, can you please stop. I need to speak to you for a moment. I'll just say one thing and then I'll walk away." Ms Ramadas then stopped and turned around. 37. The conversation then continued as follows: I said: "Look Renu, you need to go back to the office. You can't be here". 38. Once I stopped speaking, Ms Ramadas turned around and waved her hand in the air and walked away. She did not say anything in response to me. 39. Mr Hoskins stood not far from where I was talking to Ms Ramadas and Ms Miller had followed near him. Ms Ramadas turned around and came back toward Ms Miller but she backed away and Ms Ramadas turned around and walked back toward the Casino. I thought she was going back to the office. 40. I was aware that Alison Mackenzie, a member of my team, had remained at the office that day. At 10.59am on 2 August 2018, I sent a text message to Ms Mackenzie, which said "I have told her to return to the office can you let me know if she shows up". At approximately 12pm, Ms Mackenzie replied with a text message that said "Okay can officially say she didn't come - it's been 1 hr."… 41. During the lunchbreak that day at around 1.15pm, I saw Ms Ramadas was still at the Conference. She was with Ms Miller standing in the line for the lunch buffet. Once she had a plate of food she went to the Disability Network table to eat. 42. At around 2pm, I again spoke with Ms Flanagan at the Conference. We had a conversation to the following effect: Ms Flanagan said: "How did it go?" I said: "Well she's still here. I told her she needs to go back to the office but she's still here." Ms Flanagan said: "Where is she?" I said: "She's at the disability network table outside. I've done what I can do, I'm not going to cause a scene." Ms Flanagan said: "Okay, that's fair enough." 43. At 3.30pm I attended the Private Practitioner Forum and I saw that Ms Ramadas was also in attendance with Ms Miller. She remained at the forum until approximately 4pm and then left. I understand that she did not return to the office that afternoon. 44. On 3 August 2018 at 8.10am, I sent an email to Daryn Nickols describing what had occurred at the conference the day before… Conference - Day 3 45. On 3 August 2018, being the third day of the Conference, Ms Ramadas had not come into the office by 10.00am. I was not aware of anyone at the Conference at that time who I could contact to confirm whether Ms Ramadas was at the Conference or not. 46. At 10.10am, I sent an email to Daryn Nickols advising him that Ms Ramadas had not attended the office that morning and that I suspected that she was at the Conference… 47. At around 11.00am, I attended the Conference. I again saw Ms Ramadas at the Conference, accompanied by Ms Miller, I saw her at the morning tea and lunch breaks. I did not approach Ms Ramadas at the Conference that day… 48. The formal part of the Conference finished at around 1:00pm. In the afternoon, there was a "talent quest". Anyone who went to the talent quest was required to take half a day of leave. Ms Ramadas had not applied in advance for leave to attend the talent quest. 49. I saw Ms Ramadas at the talent quest. She departed at approximately 4.00pm. 50. On 7 August 2018, I sent an email to my team about applying for half a day of leave if they attended the talent quest... Following that email, Ms Ramadas later applied for leave for the half a day of the talent quest. 51. As the roster for attendance by Grants Officers at the Conference was limited to up to two sessions each there were staff members who were not able to attend the Conference because of the conduct of Ms Ramadas. One particular Grants Officer, Maria Carter, had asked me if she could attend a morning session on the second day, to which I had to say no because although Ms Ramadas had not put her name on the roster to attend the Conference I was not certain after the first day that she would attend the office and therefore I had to ask Ms Carter to stay behind to answer the telephones.
Mr Hoskins gave evidence confirming that he was present on the second day of the Criminal Law Conference and observed Ms Johnson approach the appellant to have a conversation. He observed that the appellant ignored Ms Johnson and continued talking to a colleague, Ms Miller. Mr Hoskins saw the appellant start to walk away from Ms Johnson who then caught up to her and said, "Renu, you need to go back to the office". Mr Hoskins later observed the appellant to be still at the conference at the disability stand.
The respondent regards the conduct of the appellant before and during the Criminal Law Conference as a deliberate failure on her part to comply with lawful and reasonable directions issued to her and, as such, constitutes misconduct by her.

Allegation 2 - the appellant's complaints

Mr Nickols had the initial responsibility for assessing the appellant's complaints against other employees of the respondent. His affidavit contained the following: Ms Ramadas' Complaint 18. On 12 June 2018, I received a written complaint from Ms Ramadas… 19. In the process of conducting an initial assessment of Ms Ramadas' complaint, I had a conversation with Ms Ramadas on 25 June 2018. During that conversation, Ms Ramadas provided further particulars in support of her complaint: that Mr Lovell would ambush her "most days"; that a week prior to 25 June 2018 Mr Lovell had told her that Mr Kirkwood had created a peep hole in the toilets so that "he can see you naked"; and that on another occasion Mr Lovell had said to her words to the effect of "Scott [Kirkwood] is really horny when he sees you"… 20. Given the seriousness of Ms Ramadas' allegations I commenced a process of preliminary enquiry. That process and its results were detailed in an Assessment Outcome Report on Complaint of Misconduct dated 27 July 2018… 21. On 31 July 2018, I sent an email to Ms Ramadas to advise her of the outcome of the assessment of her workplace complaint…
Mr Nickols' assessment of the appellant's complaints was that "there was insufficient evidence to warrant further examination of the issues by a formal misconduct process".
The majority of the appellant's allegations (37) were against Mr Kirkwood. He responded to them as follows: Ms Ramadas' Allegations 14. I understand that Ms Ramadas has made allegations against me and other staff members in the Grants Division of Legal Aid. I have recently been supplied a copy of and reviewed the written complain made by Ms Ramadas… (the "Complaint"). Allegation 1 15. In the Complaint, Ms Ramadas says: "The previous operations manager had formed and left behind her own group of bullies (Scott [Kirkwood], Sean [Quigley], Kylie [Johnson] and Charles [Lovell]) who supported her and used to act on her instructions. When Scott being appointed as Operations Manager, I overheard a grants officer telling him that Tracey has asked him to keep up the tradition and Scott said that he would keep up the tradition". 16. I refute this allegation. The previous Operations Manager was Tracey Bosnich. I have never been in the same reporting chain as Ms Bosnich, she has never reported to me and I have never reported to her. In early 2017 I had acted in Ms Bosnich's job for approximately 3 weeks. I never received a formal or informal handover from Ms Bosnich. Ms Bosnich and I were work colleagues and had attended the same Grants Christmas and other work parties. I did not otherwise socialise with her, I never had her mobile or home phone number nor did I know her address. I was never a part of a group formed by Ms Bosnich for bullying or otherwise and I never acted on her instructions to bully anyone. I am unaware if Ms Bosnich bullied anyone but I did not receive any instructions from Ms Bosnich directly or indirectly to bully anyone. Allegation 2 17. In the Complaint, Ms Ramadas says: "During lunch time Scott [Kirkwood] used to come to his old room that is facing my seat (even though his room now is near Director's room) and change his clothes (when he goes for basketball). When he is going to change, he stands near the window and stares at me in a weird way. After that he will come to the middle of the door and stare at me again for a long time. I would ignore him and keep on doing my work but I would feel very uncomfortable. He will also come to this room many times during the day to stand near the window in darkness and stare at me. I always tried to avoid him and I complained about this to a few people. Since I complained about him he started giving instructions to Kylie to bully me." 18. I refute this allegation. Due to the fact I was unsure how long I would be acting as Operations Manager I maintained all my work and non-work items in my old office for a period of about 6 weeks whilst acting as Operations Manager. This included my Basketball and Soccer gear. For that approximately 6 week period I would return to my old office to get changed for lunchtime sport. As the glass in that office is frosted I would get changed behind the door to ensure no one was able to see me. I never stood in the window or doorway staring or looking at anyone including Ms Ramadas whether when changing or otherwise. Allegation 3 19. In the Complaint, Ms Ramadas says that "Scott [Kirkwood] encourages Charles Lovell to stalk me". 20. I refute this allegation. I have never encouraged Charles Lovell to stalk anyone including Ms Ramadas. Allegation 4 21. In the Complaint, Ms Ramadas says "Sometimes when I leave in the evening I have seen Scott [Kirkwood] running to Charles [Lovell] to force him to leave at the same time and follow me then I will see Charles [Lovell] following me through the park". 22. I refute this allegation. I have never directed Mr Lovell to leave work at the same time as Ms Ramadas and follow her when she leaves. Allegation 5 23. In the Complaint, Ms Ramadas says that "[Charles Lovell] makes dirty comments loudly which is encouraged by Scott [Kirkwood]". 24. I refute this allegation. It is not true and it never happened. I have never encouraged Mr Lovell to make dirty comments. If I had heard him making such comments I would have told him to stop. I cannot recall ever hearing him make such comments. Allegation 6 25. In the Complaint, Ms Ramadas says that "Scott [Kirkwood] also joins with [Charles Lovell] and makes inappropriate comments". 26. I refute this allegation. It is not true and it never happened. I deny ever joining in with Mr Lovell making inappropriate comments (which I am unaware of him making). Allegation 7 27. In the Complaint, Ms Ramadas says that "I will wear my ear phones so that I do not have to listen to [their inappropriate comments] which is why Scott [Kirkwood] was trying to make a rule that no one can wear earphones." 28. The no headphone rule had been in place prior to my acting as Operations Manager. I reinstituted the rule because a number of staff were not answering their phones, particularly Robbie Grlj. I deny this rule was instituted or ever applied to force Ms Ramadas to listen to inappropriate comments. Allegation 8 29. In the Complaint, Ms Ramadas says that "Together they all engage in loud dirty talk and gossip which makes it difficult to work peacefully". 30. I deny engaging in loud dirty talk or loud gossip in the vicinity of Ms Ramadas or otherwise. Allegation 9 31. In the Complaint, Ms Ramadas says that: "I believe that my computer is being hacked by Scott [Kirkwood] who has connections in IT. I get weird emails from unknown sources inviting me to illegal websites which I reported to the Services Desk. Also when I am typing on my computer words get automatically deleted for which I have no control over." 32. I refute this allegation. I do not have the IT skills to do what Ms Ramadas alleges. I am unable to "hack" anybody and have never done so. I can proffer no opinion on why or if Renu was receiving "spam" messages but I deny any involvement in sending or arranging to be sent such messages. I do not know if anyone in the IT Department of Legal Aid has the capability to do what is alleged but I deny ever asking anyone to do so. I do not believe it is possible for "words to get automatically deleted when Renu is typing" but if that is somehow possible I deny every doing so or ever asking anyone to do so. Allegation 10 33. In the Complaint, Ms Ramadas says that "Recently on two occasions [Scott Kirkwood] deleted my AAR request and AAR returns from solicitors. He has asked a grants officer to send me an email saying I have given a grant by error. I knew that I had given MR request but when I checked it with the solicitor we couldn't find it. I sent an email to the grants officer addressing the issue. Later Scott [Kirkwood] retrieved it. On another occasion he deleted my AAR requests from file history and I believe only Scott [Kirkwood] would be able to do it. I sent an email to service desk addressing the issue." 34. "AAR" stands for "authorisation approval request". I say that this allegation is untrue and never happened. I have never deleted one nor asked anyone else to delete one. I do not recall ever asking a Grants Officer to email Ms Ramadas with relation to a grant that was given in error though I cannot be sure over the 10 years the current computer system has been in place that no such conversation occurred. Standard procedure would be for me to raise such an issue with the staff member's Team Leader. I am unable to delete an AAR from file history, I do not believe it is technically possible to do so, if it is I do not know how nor do I have the access to the system to do it. Allegation 11 35. In the Complaint, Ms Ramadas goes on to say that "Since Scott [Kirkwood] is doing this, I believe he might even be cheating and changing the stats list when it comes to mine to change my high performance". 36. I refute this allegation. I believe the "stats list" which is being referred to is an automated report run by Legal Aid's IT Department. To the best of my knowledge, it is not possible to change the stats list. If it is possible I do not know how to do it, or have the system access necessary to do it and I have never changed the stats list nor asked anyone else to change that list. I deny any action was taken by me or at my request to change what Ms Ramadas' describes as her "high performance". Allegation 12 37. In the Complaint, Ms Ramadas says that "They give me a piece of paper which shows much lesser than what I have done". 38. I understand this allegation to be that information was given to Ms Ramadas which showed that she had done less work than what she had really done. I understand that this allegation may be intended to refer to Ms Johnson. I am aware Ms Johnson regularly supplied members of her team a paper print out of the work that team member had done. I believe she got this information from the IT report at [36] above. I am not aware of Ms Johnson ever reducing the work shown on that paperwork and I never directed her to do so. Allegation 13 39. In the Complaint, Ms Ramadas says that "If he can delete the AAR request he would do anything to affect my work". 40. I understand this allegation to be intended to refer to me. I refute this allegation. I do not have the capability to do this and have never done it. To the best of my knowledge it is not possible to do what is being suggested. Allegation 14 41. In the Complaint, Ms Ramadas says that "He is desperate to find fault with my work because then only he can put me under performance issues which so far he has not been successful". 42. I understand this allegation to be intended to refer to me. I believe this is referring to a performance management plan. I refute this allegation. I deny being desperate to find fault in the work of Ms Ramadas and was not monitoring her work any closer than any other staff member. Allegation 15 43. In the Complaint, Ms Ramadas says that "Scott [Kirkwood] hires people who are his favourites and are inefficient in order to make his bully gang powerful". 44. I totally deny this allegation. There is no "bully gang". To the best of my recollection in my time in the Grants Division the only positions I have been involved in recruiting were two Administration Officers, a Permanent Team Leader from a pool of existing grants staff and a Grade 6 Grants Family Lawyer. The persons successful in those recruitments were Michael McKenzie, Alia Viswalingam, Tegan Chandler and Lisa Dawson. I had never met Ms Viswalingam or Ms Dawson prior to recruiting them and I deny they are inefficient or that I hired them to make my "bully gang powerful". I was not involved in the recruitment of Mr Lovell, Mr Quigley, Ms Johnson or Mr Hoskins. Allegation 16 45. In the Complaint, Ms Ramadas says that "[Scott Kirkwood] doesn't have any management skills and he promotes bullies to higher positions". 46. I deny that I have every promoted "bullies" to higher positions. In my time as Operations Manager the only person I promoted was Ms Chandler. I deny she is a bully. Whilst it may be said as a matter of opinion that I do not have good management skills as Ms Ramadas asserts in her Complaint, I do not however believe that is true. Allegation 17 47. In the Complaint, Ms Ramadas says that "[Scott Kirkwood] allows Charles [Lovell] and Denis [Doyle] to take smoke breaks unlimited amount of times per day but if I take 15 to 20 minutes morning tea break I get questioned". 48. There were a number of staff who were smokers whilst I was Operations Manager. They include Rolf Bok, Sheila Miller, Charles Lovell, Denis Doyle and Conor Taylor. I did not monitor how often any of those staff took smoke breaks and do not believe Mr Lovell or Mr Doyle took any more breaks than other smokers and no staff ever complained to me they were. I am unsure if Legal Aid has a policy on smoke breaks. I do not recall ever directing anyone to question Ms Ramadas with relation to her morning tea breaks but I was aware there were issues with the length of time Ms Ramadas would take. Allegation 18 49. In the Complaint, Ms Ramadas says that "Scott [Kirkwood] has brought back the rule that team leaders do not have to be on the phones". 50. I deny this allegation. To the best of my knowledge that rule was already in place at the time I took over as Operations Manager. Legal Aid had directed through the Director of Grants at the time Leanne Robinson that Team Leaders were to spend more time on management activities and less time processing work and answering phones. Allegation 19 51. In the Complaint, Ms Ramadas says that "[Scott Kirkwood] has asked the solicitors to direct me to him if I go to them with any enquiry". 52. I deny this allegation. I never asked anyone to refer Ms Ramadas' enquiries to me. Whilst I was Operations Manager and whilst a solicitor in Grants Crime I did not have any solicitors reporting to me that I could have asked to have Ms Ramadas' queries referred to me. Allegation 20 53. In the Complaint, Ms Ramadas says that "Scott [Kirkwood] is also encouraging Kylie [Johnson] to use one on one meetings to bully me". 54. I deny encouraging Ms Johnson to bully Ms Ramadas. I further deny encouraging Ms Johnson to bully Ms Ramadas in one on one meetings. I witnessed no bullying by Ms Johnson. Allegation 21 55. In the Complaint, Ms Ramadas says that "Before and after one on one meetings with me, Kylie [Johnson] spends 1 hr with Scott [Kirkwood] behind closed doors having a secret discussion. Obviously he is giving her instructions as to what to say or do during the meeting which puts me in a very vulnerable position". 56. I deny this allegation. I never gave Ms Johnson instructions on what to say in her one on one meetings with Ms Ramadas. I did have discussions with Ms Johnson about what to do after some of her one on one meetings with Ms Ramadas as she sought advice from me about Ms Ramadas' actions in those meetings. Otherwise I had many work related meetings with Ms Johnson totally unrelated to Ms Ramadas. Allegation 22 57. In the Complaint, Ms Ramadas says that "Scott [Kirkwood] approves leave for Courtney Appleton on every Monday as flexi and for Kylie [Johnson] every Friday so that if I happen to ask for leave on either on these days it would be declined". 58. I deny any leave approved for other staff by me or at my direction was to limit Ms Ramadas' ability to apply for leave. Due to the number of staff, one Team Leader or one Grants Officer being on leave would not impact on the ability of a Grants Officer to take leave. I did not approve leave for Ms Johnson on every Friday. As her manager, I would have approved that leave if she had it. I do recall Ms Appleton taking about 4 consecutive Mondays off as she had University work to do. Ms Johnson would have approved that leave as Ms Appleton's manager. Allegation 23 59. In the Complaint, Ms Ramadas says: "Also during the second meeting [Kylie Johnson] behaved like a mad woman, shouting and screaming and dropping files and complaining that she has anxiety disorder. She storms out of the room shouting what was witnessed by the support person who was with me. This behaviour is being encouraged by Scott [Kirkwood]". 60. I was not present at this meeting so cannot say what occurred. I never encouraged Ms Johnson to behave like a "mad woman" to scream or shout at Ms Ramadas or to act otherwise than in a professional manner in a one on one meeting or otherwise. Allegation 24 61. In the Complaint, Ms Ramadas says "Scott [Kirkwood] is repeating what previous management was doing and that was favouritism. He is a very biased person who gives benefits to people based on friendship, not based on merit". 62. I deny I am biased or show favouritism. I further deny I gave benefits to anyone not based on merit. I cannot comment on what "previous management" did. Allegation 25 63. In the Complaint, Ms Ramadas says "[Scott Kirkwood] has been influencing all the past directors and he is continuing to do so which enables him to control the entire grants division." 64. I understand "the past directors" to refer to Leanne Robinson, Dora Dimas and Jocelyn Flanagan. I deny that I control the Grants Division. I further deny I have been influencing all the past Directors. Allegation 26 65. In the Complaint, Ms Ramadas says "Every week [Scott Kirkwood} will ask directors to send me meeting requests." 66. I say that this allegation is not true. I am aware Ms Robinson, Ms Dimas and Ms Flanagan sent meeting requests to Ms Ramadas relating to her refusal to participate in one on one meetings. I do not know the number or frequency of these requests but I deny I asked any of them to send them. Allegation 27 67. In the Complaint, Ms Ramadas says "[Scott Kirkwood] desperately wants to move me to family or else get rid of me". 68. I deny I wanted to move Ms Ramadas to the Family Law section. I further deny that I wanted to get rid of Ms Ramadas. Whilst acting as Operations Manager, I managed both the Family Law and Criminal sections in the Grants Division. This gave me the ability to move staff between areas when required. If I had wanted to move Ms Ramadas to the Family Law section, I would have done so. Allegation 28 69. In the Complaint, Ms Ramadas says "[Scott Kirkwood] is using these meeting to impose his rules and bully me". 70. I believe this refers to the meeting requests from the Grants Directors. I deny I was involved in arranging those meetings. Those meetings were arranged by the Directors without any request from me. I do not know what happened in those meetings as I was not present and was not told of their contents afterwards. To the best of my knowledge any rules imposed on Ms Ramadas by the Grants Directors were the same rules as applied to all Grants Team staff. I did not ask the Directors to impose any rules or bully Ms Ramadas. Allegation 29 71. In the Complaint, Ms Ramadas says "It has now reached the point where [Scott Kirkwood] has asked the director to send me a warning letter about terminating my employment regarding code of conduct". 72. I did not ask any of the Grants Directors to send a warning letter to Ms Ramadas and do not believe if I had asked they would have issued one. I have never seen any warning letter issued to Ms Ramadas and if one was issued I was not involved in that process. Allegation 30 73. In the Complaint, Ms Ramadas says "[Scott Kirkwood] lied to the director that in my meeting with the Leanne and my support person I proposed to go to family". 74. I assume the director referred to is Ms Flanagan. I deny ever telling Ms Flanagan anything about Ms Ramadas' meeting with Ms Robinson. I further deny ever telling Ms Flanagan that Ms Ramadas wanted to go to family. Allegation 31 75. In the Complaint, Ms Ramadas says "One of the grants Officer (Margaret Smee) whose performance is poor has not even once been called for a meeting about her performance". 76. I refute this allegation. I understand that prior to my time as Operations Manager a process was undertaken with Ms Smee concerning her performance. Whilst I was Operations Manager, workplace adjustments were in place for Ms Smee as a result of her medical condition/s which involved Mr Lovell, her Team Leader, regularly talking to her about her performance. Allegation 32 77. In the Complaint, Ms Ramadas says "Another grant Officer Lina Tang who took few months sick leave has not been called for a meeting or not even once got questioned regarding her sick leave". 78. Ms Tang was seriously ill and produced medical certificates to support that. I do not recall what her illness was. I cannot say what discussions her Team Leader Mr Hoskins and/or the Grants Director had with Ms Tang relating to that illness. Allegation 33 79. In the Complaint, Ms Ramadas says "So these meeting requests are a clear case of bullying towards me which makes my work life difficult as I have to focus on these issues and I am unable to work peacefully in these circumstances". 80. I deny I was using these meetings to bully Ms Ramadas. I assume the meetings referred to are with the Directors of Grants. I had no influence over the nature and frequency of these meetings. Allegation 34 81. I have also reviewed the record of conversation with Renu Ramadas created by Daryn Nickols and dated 25 June 2018 (the "Record of Conversation")… 82. In the Record of Conversation, it says "Renu [Ramadas] stated that on one occasion Charles [Lovell] said to her that Scott [Kirkwood] had created some kind of peep hole in the toilets so that 'he can see you naked"'. 83. I completely deny this allegation. I never created a peep hole, nor did I ever tell Mr Lovell that I created a peep hole. I know of no peep hole. I never saw into the bathrooms. Allegation 35 84. In the Record of Conversation, it says that "Renu stated that on another occasion Charles [Lovell] has said to her words to the effect: 'Scott [Kirkwood] is really horny when he sees you'. Renu [Ramdas] added that Scott [Kirkwood] heard this comment and laughed and smirked". 85. I deny this allegation. I never heard Mr Lovell make any comment of this nature. Nor did I ever make a comment of this nature to Mr Lovell. It is not true. Allegation 36 86. In the Record of Conversation, it says that "[Ms Ramadas] said that on another occasion 'some women' said to her that Scott [Kirkwood] has a 'crush' on her and added that on one occasion Scott [Kirkwood] invited her to lunch". 87. I deny that I have a "crush" on Ms Ramadas, or ever have. I have never said anything like that to anybody. I never invited Ms Ramadas to lunch. Allegation 37 88. In the Record of Conversation, it says that "Renu [Ramadas] said that Kylie Johnson had requested her attendance at team drinks and that Kylie [Johnson] had said to her, 'Scott [Kirkwood] wants you to come to the drinks"'. 89. I deny this allegation. I never told Ms Johnson that I wanted Ms Ramadas to come to any team drinks or other function. Conclusion 90. The allegations made by Ms Ramadas both in the Complaint and the further allegations in the Record of Conversation were quite serious. I was initially concerned that this could seriously impact on my job. I am aware of the view of some people that "where there is smoke there is fire" and I was initially very concerned that the allegations would be believed without people actually investigating them. 91. I am also aware how seriously the public service takes allegations like these and was worried that I would be railroaded for things I had not done. 92. I also questioned why I was being targeted simply because I had agreed to help Leanne Robinson out by acting as the Operations Manager. 93. I knew I had done nothing wrong and saw this as a way for Ms Ramadas to try to divert attention away from herself. I was highly offended. I felt like I had been fair and reasonable in relation to Ms Ramadas and I felt betrayed that she would make such repugnant allegations against me and other staff. I was also very concerned that Ms Ramadas may have told other staff members about these allegations and that if they did not know me very well they would believe them. 94. I was also very concerned how I would be able to work with someone who obviously hated me so much and cared so little about what would happen to me that they would make such outlandish unbelievable allegations about me. I worried then that even when the allegations were proved to be false I would still be forced out of my role because the organisation would not be willing to risk the "victim" being seen to suffer. It made it very difficult to work during the period of the investigation as Ms Ramadas was still there and I had to see her and constantly worry that anything I did or said she would somehow twist and try to use against me. I was very relieved when she was put on leave. 95. In my view, it would be unworkable for Ms Ramadas to return to the team. If she were to return to the Grants Team, I think it would be impossible for me or other members of the team to manage Ms Ramadas. I would find it personally very difficult to work with her, particularly because there would be significant amounts of interaction between someone in my substantive position of Senior Solicitor Criminal Law and Ms Ramadas as a Grants Officer. I think that either I would have to be moved to a different team or I would have to consider whether it would be viable to remain working in the Grants Team. However, I also think that it would be difficult for Ms Ramadas to be moved to a different team and that it would create ongoing problems. It would create a toxic environment if she were to return as the danger of further untrue allegations would always be a realistic concern. I am also concerned that, if she were to come back, some people would interpret that as meaning that there is truth or at least some basis to the serious allegations she has made against me and my colleagues.
Ms Johnson responded to the appellant's 18 allegations against her in the following terms: Ms Ramadas' Complaints 52. I understand that Ms Ramadas has made allegations against me and other staff members in the Grants Division of Legal Aid. I have reviewed the written complain made by Ms Ramadas (the "Complaint'')… Allegation 1 53. In the Complaint, Ms Ramadas says that "The previous operations manager had formed and le behind her own group of bullies (Scott [Kirkwood], Sean [Quigley], Kylie [Johnson] and Charles [Lovell]) who supported her and used to act on her instructions". 54. This allegation is untrue. There was no such group and no bullying. Allegation 2 55. In the Complaint, Ms Ramadas says that "Together they all engage in loud dirty talk and gossip which makes it difficult to work peacefully". 56. This allegation is untrue. Allegation 3 57. In the Complaint, Ms Ramadas says that "Charles [Lovell], Kylie [Johnson] and Sean [Quigley] together used to allocate to me double the workload what they used to give to other people". 58. When I was Ms Ramadas' Team Leader, I did not allocate her more work that I allocated to other Grants Officers. I do not know of Charles Lovell or Sean Quigley allocating Ms Ramadas more work than they allocated to other Grants Officers. Allegation 4 59. In the Complaint, Ms Ramadas says "However, I still used to complete the workload within the timeframe without causing any problem and actually topped the stats list which got recognised by the management at the time". 60. This is untrue. The information Ms Ramadas was provided with I obtained from a system generated report that records the number of tasks acquitted by an individual. The weekly report used by team leaders and senior management is not used to measure performance. If it was used to measure performance, Ms Ramadas would not have ''topped" the report. Allegation 5 61. In the Complaint, Ms Ramadas says "They give me a piece of paper which shows much lesser than what I have done". 62. I understand this allegation to be that information was given to Ms Ramadas which showed that she had done less work than what she had really done. I understand that this allegation may be intended to refer to me. If so, the information she was provided would be that referred to in [60]. I do not have control over the information provided by that report. Allegation 6 63. In the Complaint, Ms Ramadas says that "Scott [Kirkwood] is also encouraging Kylie [Johnson] to use one on one meetings to bully me". 64. This allegation is untrue. Allegation 7 65. In the Complaint, Ms Ramadas says that "Before and after one on one meetings with me, Kylie [Johnson] spends 1 hr with Scott [Kirkwood] behind closed doors having a secret discussion. Obviously he is giving her instructions as to what to say or do during the meeting which puts me in a very vulnerable position." 66. This allegation is untrue. Allegation 8 67. In the Complaint, Ms Ramadas says that "Scott [Kirkwood] approves leave for Courtney Appleton on every Monday as flexi and for Kylie [Johnson] every Friday so that if I happen to ask for leave on either on these days it would be declined". 68. At no stage has Scott Kirkwood approved for me to take leave on repeated, consecutive Fridays. Allegation 9 69. In the Complaint, Ms Ramadas says that "Kylie [Johnson] brought Tracey's name in the one on one meeting and when I asked her why you are bringing Tracey's name because she has gone now, she screamed and shouted Tracie has not gone. Tracey will come back and finish you'. Kylies shouting was overheard by two family law solicitors". 70. I understand Ms Ramadas to be referring to Tracey Bosnich, who was the Operations Manager in the Grants Division. This allegation is untrue. Allegation 10 71. In the Complaint, Ms Ramadas says that "Kylie [Johnson] asks me unethical things that I need to socialise with everyone by talking about my personal life. When I told her that I would rather talk about work related matters, she was unhappy and said that you don't know what Scott [Kirkwood] and I are going to do to you and storms out of the meeting room, I found it very unprofessional and threatening". 72. This allegation is untrue. I on two occasions asked Ms Ramadas to show respect to her fellow team members by answering them if they asked her a question. I said that I did not expect her to make friends with them or answer any personal questions but if they asked her what time she was planning to take lunch she should respond. Allegation 11 73. In the Complaint, Ms Ramadas says "Also during the second meeting [Kylie Johnson] behaved like a mad woman, shouting and screaming and dropping files and complaining that she has anxiety disorder. She storms out of the room shouting which was witnessed by the support person who was with me." 74. In that meeting I explained to Ms Ramadas that her conduct was having an impact on me, that the issues we were having were causing me anxiety and that I found it very stressful dealing with her. I was trying to humanise the impact of her actions. I did not raise my voice, scream or shout. The Union Delegate Anastasia Polites in that meeting overstepped her boundaries and combined with Ms Ramadas' yelling at me I became visibly upset and left the meeting. Allegation 12 75. In the Complaint, Ms Ramadas goes on to say that "This behaviour is being encouraged by Scott [Kirkwood]". 76. This allegation is untrue. Allegation 13 77. In the Complaint, Ms Ramadas says "Any issues between Kylie [Johnson] and I was already resolved when Leanne [Robinson] was there where I believe Kylie [Johnson] was asked to take a management skills course." 78. This allegation is untrue. The issues had not been resolved and I understand that Ms Ramadas refused to meet with the then Acting Director of Grants at the time, Leanne Robinson, despite repeated requests. All of the Team Leaders were required to take a management skills course as part of our continued learning. Allegation 14 79. In the Complaint, Ms Ramadas says "One of the grants Officer (Margaret Smee) whose performance is poor has not even once been called for a meeting about her performance". 80. This allegation is untrue. Ms Smee has been the subject of performance review in the past. Allegation 15 81. In the Complaint, Ms Ramadas says "Another grant Officer Lina Tang who took few months sick leave has not been called for a meeting or not even once got questioned regarding her sick leave". 82. Ms Tang had an injury to her hand that required surgery and she was unfit for work during that time which was covered by medical certificates. Allegation 16 83. In the Complaint, Ms Ramadas says "It appears Kylie [Johnson] might not approve any of my leave in the future as a result of this warning email regarding my employment". 84. This allegation is untrue. I approved leave for Ms Ramadas after her complaint was made. Allegation 17 85. In the Complaint, Ms Ramadas says "So these meeting requests are a clear case of bullying towards me which makes my work life difficult as I have to focus on these issues and I am unable to work peacefully in these circumstances". 86. This allegation is untrue. Allegation 18 87. I have also reviewed the Record of Conversation with Renu Ramadas dated 25 June 2018 (the "Record of Conversation")… 88. In the record of conversation, it says that "Renu said that Kylie Johnson had requested her attendance at team drinks and that Kylie said to her, 'Scott wants you to come to the drinks"'. 89. This allegation is untrue. Conclusion 90. As a result of the allegations against me I felt embarrassed and felt that my reputation at Legal Aid had been tarnished. Knowing that the new Director had read the Complaint and might form her opinion of my work ethic and behaviour based on Ms Ramadas' allegations was extremely distressing. I was concerned that I might be suspended, that this complaint would be on my HR file forever and available for other people to see. I was also concerned that it would affect any career progression I might consider, especially in the Grants Division. 91. It was difficult to continue supervising Ms Ramadas because I felt intimidated and that every email or conversation I had with Ms Ramadas would be referred to the Union and made the subject of an untrue complaint. In the meeting with Ms Ramadas and the Union, the Delegate Anastasia Polites said to me "I have read the emails and heard the statements you have made" and I felt that this comment was made to further intimidate me, as at that stage, I did not know the content of the complaint against me. My ability to do my job without feeling stress and constantly worrying about being accused of further terrible things was difficult. I felt like I was constantly walking on eggshells so as to avoid any confrontations. I also felt terrible that Mr Kirkwood had been dragged into the dispute just because he was asked to act in the vacant Operations Manager position. I felt that it was my fault that his reputation was also being affected by the Complaint. I also found Ms Ramadas' conduct very isolating because, as a result of her Complaint also targeted Mr Kirkwood, who was my direct supervisor, I had to deal directly with senior management which made dealing with the issues more difficult. 92. If Ms Ramadas was to return to the Grants Division, I would have to seek to transfer out of the Division and give up the job that I love. I could not work with her again as a result of the complaints she has made, all of which are without foundation. I would find it impossible to supervise her or work in the same area as her.
Mr Lovell gave the following evidence: Ms Ramadas' allegations 6. I understand that Ms Ramadas has made allegations against me and other staff members in the Grants Division of Legal Aid. I have reviewed the written complaint made by Ms Ramadas (the "Complaint'')… Allegation 1 7. In the Complaint, Ms Ramadas says that "[t]he previous operations manager had formed and left behind her own group of bullies (Scott [Kirkwood], Sean [Quigley], Kylie [Johnson] and Charles [Lovell]) who supported her and used to act on her instructions." 8. The previous Operations Manager was Tracy Bosnich. This allegation is not true. The previous Operations Manager left no instructions regarding Ms Ramadas. If she had asked me to bully, or act in any similar way, towards anyone, I would have declined in strong terms. Allegation 2 9. In the Complaint, Ms Ramadas says that "Scott [Kirkwood] encourages Charles Lovell to stalk me". 10. I completely deny this allegation. Mr Kirkwood has never encouraged me to stalk anyone, and I never have. Allegation 3 11. In the Complaint, Ms Ramadas says that "In the morning when I come in Charles [Lovell] waits for me near the lifts and try to enter into the lift with me or wait near the office door and jump towards me when I try to open the door". 12. This did not happen. I do not have time to loiter near lifts or doorways. I would occasionally arrive at a lift or doorway at the same time as Ms Ramadas by coincidence, in the same way I occasionally arrive at these places at the same time as most of the other 50 plus staff on the floor. Allegation 4 13. In the Complaint, Ms Ramadas says that "Also when I go for morning tea time [Charles Lovell] follows me and passes strange comments". 14. I deny this allegation. I did not follow Ms Ramadas when she went for morning tea and, to my disappointment, I have not said any more than a "good morning" to her for the last 2 years. I do not know what is meant by "strange comments" but I deny saying anything untoward. Allegation 5 15. In the Complaint, Ms Ramadas says that "[Charles Lovell] will keep a note on what time I usually leave for the day and then wait for me near the lift or near the door to jump in front of me and harass me". 16. It is my job as a Team Leader to randomly note when my staff arrive and leave so I can sign off on these times on their four weekly flex sheets. I never waited for Ms Ramadas and jumped in front of her. It is possible that I would sometimes walk near or adjacent to her in the lift corridor as she waited for the lift to go home but this occurred with most other employee on the floor as well. Allegation 6 17. In the Complaint, Ms Ramadas says that "Sometimes when I leave in the evening I have seen Scott [Kirkwood] running to Charles [Lovell] to force him to leave at the same time and follow me then I will see Charles [Lovell] following me through the park". 18. I deny this allegation. It never occurred. If I have ever left work at the same time and walked across the park at the same time as Ms Ramadas, it would be a coincidence. Allegation 7 19. In the Complaint, Ms Ramadas says that "[Charles Lovell] makes dirty comments loudly which is encouraged by Scott [Kirkwood]". 20. I do not make any dirty comments, loudly or otherwise. Allegation 8 21. In the Complaint, Ms Ramadas says that "Charles [Lovell] walks past my desk frequently, looks at my body in an odd way and makes unusual expressions". 22. As we sit two metres from each other and I am constantly requested to look at work on Grants Officers' computers, walk to ask Legal Officers questions and leave my desk for other reasons, I did frequently walk past Ms Ramadas' desk, however, I did not look at her body at all. Allegation 9 23. In the Complaint, Ms Ramadas says that "[o]ther times [Charles Lovell] stands in front of my desk and just stares at me for 15 to 20 minutes or so which is really uncomfortable and not appropriate in the workplace and I have noticed that he is only doing this to me". 24. I did not do this. The whole Grants Division Crime area sits in close quarters. Allegation 10 25. In the Complaint, Ms Ramadas says that "Charles [Lovell] takes long breaks (more than 2 hrs sometimes) whatever time he feels like and comes back heavily intoxicated and I can smell the alcohol when he walks past my desk". 26. I deny that I have come to work intoxicated. Very infrequently there may have been an occasion such as a social gathering where an alcoholic beverage is consumed amongst those present, but I deny being intoxicated. I occasionally take long lunch breaks to avoid working excessive hours. This is always permitted by my working conditions. I sometimes work more hours than I am required to, so occasionally taking a longer lunch break is a way for me to make sure I do not exceed my allotted hours by too much. Allegation 11 27. In the Complaint, Ms Ramadas says that "[t]ogether they all engage in loud dirty talk and gossip which makes it difficult to work peacefully". 28. I understand that this allegation may be intended to refer to me. I do not think that any talk that I engage in in the office is "dirty". I do not put up with and would shut down any "gossip" concerning anyone working at Legal Aid. Allegation 12 29. In the Complaint, Ms Ramadas says that "I believe Charles [Lovell] had the keys for my drawer which he grabbed from operations support and used to put some stuff in my drawer and makes my washed cups dirty (I think he does that when I am not there) and because of this I am now using my own bag with a key." 30. I have never had a key to Ms Ramadas' drawer and would not know how to obtain one. I have never touched Ms Ramadas' personal belongings nor have I ever had any interest in doing so. Allegation 13 31. In the Complaint, Ms Ramadas says that "Charles [Lovell], Kylie [Johnson] and Sean [Quigley] together used to allocate to me double the workload what they used to give to other people". 32. I deny this allegation. I allocate work according to how much work that person already has in their workpool and according to the difficulty and complexity of the tasks being allocated. I have always had one or two of my five or six Grants Officers engaged almost full time doing projects that precluded them from being given many workpool tasks. Another of the Grants Officers who I supervise has a disability and her workplace adjustment requires me to give her fewer tasks than other Grants Officers. As my other Grants Officers other than Ms Ramadas were required to do District Court work, which is more time consuming than Local Court summary work, it may be that I sometimes allocated Ms Ramadas a slightly higher number of tasks than those other Grants Officers. However, it was always a fair and equitable distribution of tasks. Allegation 14 33. In the Complaint, Ms Ramadas says that "One of the grants Officer (Margaret Smee) whose performance is poor has not even once been called for a meeting about her performance. 34. This claim is not correct. Ms Smee has had a number of meetings about her performance and after one such meeting we came to the understand that Ms Smee has a disability and her expected workload was lessened as a reasonable adjustment for that disability. Allegation 16 35. I have reviewed the record of conversation with Renu Ramadas created by Daryn Nickols and dated 25 June 2018 (the "Record of Conversation'')… 36. In that Record of Conversation, it says "Renu [Ramadas] stated that on one occasion Charles [Lovell] said to her that Scott [Kirkwood] had created some kind of peep hole in the toilets so that 'he can see you naked'". 37. This claim is completely false. Allegation 17 38. In the Record of Conversation, it says that "Renu [Ramadas] stated that on another occasion Charles [Lovell] has said to her words to the effect: 'Scott [Kirkwood] is really horny when he sees you'. Renu [Ramadas] added that Scott [Kirkwood] heard this comment and laughed and smirked". 39. This claim is completely false. Conclusion 40. I was devastated when I became aware of Ms Ramadas' allegations and could not work at all the next day. She had accused me of horrible things, some of which were criminal in nature and my work suffered for a week afterwards as thoughts of the allegations interrupted my usual thinking. After this time, I made a conscious decision not to let the allegations disturb me and my work too much and this assisted in lessening their impact upon my wellbeing and my work. 41. However, Ms Ramadas' behaviour towards me has made my working life far less pleasant. I do not think it would be feasible for Mr Ramadas to come back to my team. It would be impossible for me to supervise her or to work with her. It would be unpleasant and difficult for me if she returned to the Grants Division at all.
Sean Quigley, Project Officer, Grants Division of the respondent, gave the following evidence: Ms Ramadas' Complaint 5. I understand that Ms Ramadas has made allegations against me and other staff members in the Grants Division of Legal Aid. I have reviewed the written complain made by Ms Ramadas (the "Complaint'')... Allegation 1 6. In the Complaint, Ms Ramadas says that ''The previous operations manager had formed and left behind her own group of bullies (Scott [Kirkwood], Sean [Quigley], Kylie [Johnson] and Charles [Lovell]) who supported her and used to act on her instructions". 7. I understand that the previous Operation Manager referred to is Tracy Bosnich who I reported to when I was a Team Leader. During that time I never received any direction to bully Ms Ramadas. I never acted on any instructions from Ms Bosnich to bully Ms Ramadas. I have never bullied Ms Ramadas nor did I ever witness any other staff member bully Ms Ramadas. Allegation 2 8. In the Complaint, Ms Ramadas says that "Sean Quigley will also walk past my desk at times and give a threatening type of look at me". 9. I deny the allegation. I say that the allegation is a complete fabrication. Allegation 3 10. In the Complaint, Ms Ramadas says that "Together they all engage in loud dirty talk and gossip which makes it difficult to work peacefully". 11. I understand that this allegation may be intended to refer to me, I deny this allegation. Allegation 4 12. In the Complaint, Ms Ramadas says that "Charles [Lovell], Kylie [Johnson] and Sean [Quigley] together used to allocate to me double the workload what they used to give to other people". 13. Although I was never Ms Ramadas' direct supervisor, I did allocate work to her as I did for any other staff member in the section. I did not allocate her more work than I allocated to other staff. I do not know of Charles Lovell or Kylie Johnson allocating Ms Ramadas more work than they allocated to other staff in their teams. Allegation 5 14. I have also reviewed the record of conversation with Renu Ramadas dated 25 June 2018 (the "Record of Conversation'')… 15. In the Record of Conversation, it says "[w]ith regard to Sean Quigley, Renu stated that he had walked past her and raised his middle finger (no witnesses)". 16. I deny this allegation. 17. To the contrary, on 31 May 2018, I walked past the desk of Ms Ramadas and on three separate occasions Ms Ramadas raised her middle finger towards me. On that day, I sent an email to Helen Kojevnikova, a Human Resources Business Partner, to report this behaviour… Conclusion 18. I am concerned that these allegations may have a negative impact on my reputation. In my view, it would be extremely difficult for the culture of the Grants Team if Ms Ramadas was to return to the Team and if Ms Ramadas came back to the same team as me I believe I would apply for a transfer (against my wishes).
The respondent, in its written closing submissions, canvassed the evidence which it had placed before the Commission with respect to the appellant's failure to attend scheduled meetings with her supervisors, her attendance at the Criminal Law Conference in August 2018 and her complaint against her work colleagues including multiple allegations of bullying, overt staring, sexualised comments, stalking and the hacking of her computer.
The respondent's written submissions concluded as follows (footnotes and references omitted): Disposition 44. The task of the Commission in this matter is to conduct a "fresh hearing" meaning that it "stands in the shoes of' the original decision-maker. Where there is, as here, a specific charge or complaint before the employer which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed. 45. This is not a case like Paulson v Industrial Relations Secretary (Department of Justice) [2017] NSWIRComm 1037 (7 July 2017) where the punishment did not fit the crime. That type of case is not suggested on the Appellant's submissions. The complaint made is that the decisions made in respect of the Allegations were "incorrect and unfair"… 46. The Respondent's case is that Ms Ramadas' conduct in relation to the Allegations amounted to serious breaches of the standards of behaviour she was obliged to adhere to as an employee Legal Aid: (i) Allegation 1: The refusal to comply with the directions concerning attendance at the Conference should be assessed against a background where Ms Ramadas was on her final warning for refusal to comply with lawful and reasonable directions from management. The conduct in this case was wilful and goes to the root of the employment contract. (ii) Allegation 2: The making of harmful, false allegations against work colleagues to suit an ulterior purpose is fundamental misconduct. The matters raised in the Complaint were not put in any substantive way to the respondent's witnesses, and had no evidentiary foundation in Ms Ramadas' case: Jones v Dunkell [1959] HCA 8; (1959) 101 CLR298. 47. No complaint is raised on the Appellant's case as to procedural fairness. The matters that were required to be complied with were all carried out. Ms Ramadas had ample opportunity to, and did, make submissions throughout the process: GSE Act at s.69; GSE Rules at Rules 39 (inquiries) and 40 (findings; notification; opportunity to respond; take response into account). 48. The decision to terminate Ms Ramadas' employment was necessary and appropriate, and reinstatement would be inutile and inappropriate in circumstances where: (i) Ms Ramadas' refusal to follow lawful and reasonable directions (including in respect of the final warning) remained an issue that was never resolved; (ii) The staff members that were the subject of the grave and unfounded allegations will find it impossible to work with Ms Ramadas again; and (iii) The employer has an interest in protecting its staff from conduct of this kind. 49. For all of the above reasons, the Appeal should be dismissed.
The respondent's written submissions were supplemented by oral submissions by Mr Dixon, counsel for the respondent, at the conclusion of the respondent's evidentiary case.

Case for the appellant

A written outline of submissions was filed on behalf of the appellant prior to the hearing of the appeal. It contained the following (footnotes omitted): Allegation 1 - failure to comply with lawful and reasonable directions 15. Allegation 1 concerns a direction alleged to have been given in an email from Kylie Johnson, Team Leader - Crime Team 1 dated 26 July 2018 titled "Criminal Law Conference 2018 1 August - 3 August" (26 July Email). 16. Mr Thomas provided the following "Summary of findings" in relation to Allegation 1 in the Breach Letter: Allegation 1 It is apparent that clear rules were issued to you in relation to staff attendance at the Criminal Law Conference presented in an email from Kylie Johnson, Team Leader dated 26 July 2018. Specifically, staff were authorised to attend "1-2 sessions during the 3 days". However, staff were further required to complete a sign-up sheet to coordinate attendance so that operational requirements could continue to be met; "we still have sufficient staff available to answer telephones etc, it will be business as usual". Ms Johnson's email invited you to contact her in the event you had any questions regarding these instructions. Subsequently, you attended the three full days of the conference in direct contravention of the instruction issued to you and did so without a reasonable excuse, with no legitimate professional purpose for attending the entire three day conference. I am satisfied that you had ample opportunity to complete and participate in the sign-on roster that had been arranged to manage attendance at the conference. That you apparently left a note on your desk was not a satisfactory means of communicating your intentions and was entirely inconsistent with the instructions issued to you. Further, it provides no explanation or justification for your attendance at all 3 days of the conference. I am also satisfied that Ms Johnson approached you on day 2 of the conference (at the conference) and directed you to return to the workplace. Ms Johnson's approach was made to you as it was apparent that, by attending the conference as you did, you were not complying with Ms Johnson's earlier instructions. Ms Johnson's direction was a further opportunity for you to comply with the instructions concerning attendance at the conference, however you rejected Mr Johnson's advice. I find Allegation 1 substantiated. 17. The actual Conference email from Kylie Johnson dated 26 July 2018 states: Hi Everyone The Criminal Law Conference begins next Wednesday and you are all invited to attend. To allow everyone to attend the rules are as follows: - You can attend 1-2 sessions during the 3 days - The sessions are broken down to Morning, Middle and Afternoon for our purpose so choose the one that interests you the most. You will need o register via LMS for the whole day that your session is on. The registration is not set up for individual sessions. - A sign-up sheet is stuck to Steven's window and a copy of the conference schedule is also available - The Director has advised that staff are not required to attend the Private Practitioner Forum this year so if you attend the afternoon session on the Thursday you can leave at the conclusion of afternoon tea or return to the office. - Please remember that we still need to have sufficient staff available to answer phones etc, ii will be business as usual. - There should be no more than 4 Grants Officer per session as the time taken to travel to and from the conference will increase the number of people out of the office at the same time. - If you have any questions please speak to your Team Leader. 18. In her Initial Response to Allegation 1 on 16 August 2018 the Appellant stated: As directed by Kylie Johnson, I registered for 3 days to attend the Criminal Law Conference 2018 which was confirmed to her by email. A copy of this email confirming my registration was sent to Ms Johnson. As previously agreed with Ms Johnson, I left a note on my desk to notify which sessions I was planning to attend. I had every intention of signing the conference registration document on the notice board in order to notify my attendance. Unfortunately, I was unwell and not at work on the day before the conference and was therefore unable to put my name on the notice board (medical certificate already provided). On 2 August 2018, I was in attendance at the second day of the Conference where I was approached by Ms Johnson. Ms Johnson asked me why I didn't put my name down on the signup sheet. This confused me because she was notified of my attendance by email from the registration authority and I also left a note on my desk that I would be in attendance for the 3 days of the conference. I clearly explained this to Ms Johnson at the time and then returned to the conference session. At no time was I directed to return to the office or not to attend the conference. I did not wilfully fail to comply with a direction. I simply did not put my name on the notice board for reasons explained above. Ms Johnson was fully aware that I would be in attendance at the conference for the 3 days. For the last 6 or 7 years I have attended all 3 days of the conference as it was an important development opportunity for me. It is important to note that Ms Johnson, Charles Lovell and Rolf Bok also attended 3 days of the conference. This allegation does not amount to a failure to comply to a lawful direction and does not amount to misconduct. 19. According to the Appellant in her Initial Response, Kylie Johnson, Charles Lovell and Rolf Bok attended 3 days of the Conference. Merv Hoskins also attended the Conference. However the names of Ms Johnson, Mr Lovell and Mr Hoskins do not appear in the roster at all and Mr Bok's name only appears marked as attending one session on the first day and one session on the second day of the Conference. 20. On 29 August 2018 the Investigator, David Madden, wrote to the Appellant (29 August Letter). In his 29 August Letter Mr Madden describes Allegation 1 in the following way: The first allegation is associated with an alleged direction or failure to comply on your part with a lawful and reasonable direction issued by Kylie Johnson. As you would be aware, an email had been distributed to all staff within the Grants area on the 26 July 2018 and you were included in the distribution group. That email indicated that staff could attend 1 to 2 sessions during the three days. A signup sheet had been stuck to a window to allow staff to record those sessions they wished to attend and the Director had indicated that sufficient staff were needed to manage the operations during the period of the conference. There was also a requirement that no more than four Grants officers could attend one session. 21. In his 29 August Letter Mr Madden asked the Appellant a series of questions regarding her attendance at the Conference. Those questions and the Appellant's answers are set out at pages 25-28 of the Investigators Report and are consistent with her Initial Response. 22. It is apparent from her Initial Response and from her answers to Mr Madden's questions that the Appellant did not understand that she was not permitted to attend the all 3 days of the Conference. Ms Johnson's 26 July Email did not explain how or why the attendance at the Conference was to be different from previous years. The first point of the 26 July Email, being "You can attend 1-2 sessions during the 3 days", could be interpreted as permitting attendance on all 3 days. In the Appellant's circumstances the 26 July Email did not constitute a reasonable direction and the Appellant's attendance at the Conference on 3 days did not constitute a failure to comply with a reasonable direction. 23. In her Initial Response the Appellant indicates that she was confused by what Ms Johnson said to her when Ms Johnson approached her at the Conference. The Appellant also states: "At no time was I directed to return to the office or not to attend the conference." The Appellant did not understand she was not permitted to attend all 3 days of the Conference which in previous years she had attended. It is clear that she believed that having registered for all 3 days of the Conference she was able attend on all 3 days. In those circumstances, even if Ms Johnson did ask the Appellant to return to the office (which the Appellant denies), such a request would not have been a reasonable one for the Appellant and her continued appearance at the Conference could not be said amount to a refusal to comply with a reasonable direction. 24. Mr Madden's finding that Allegation 1 was sustained was incorrect and unfair. Consequently, the Decision Maker's acceptance of Mr Madden's finding to also decide that Allegation 1 was sustained was incorrect and unfair. 25. The Commission should consider the Appellant's understanding of the circumstances of her attendance at the Conference determine that Allegation 1 should have been dismissed. Allegation 2 - vexatious complaint 26. Allegation 2 concerns a complaint sent by the Appellant to Mr Thomas on 4 June 2018 regarding bullying behaviour she had been subjected to in her workplace (Complaint). 27. Mr Thomas provided the following "Summary of findings" in relation to Allegation 2 in the Breach Letter: Allegation 2 As you are aware an initial assessment of your complaint conducted by People and Organisational Development (POD) determined that there was little to no basis to your complaint. This assessment process identified a concern that your complaint was vexatious. The external independent investigation report confirms POD's assessment decision that there is no basis to your complaint and concluded that your complaint was vexatious. I am satisfied that your complaint lacks basis and certain aspects of it are implausible and include deliberate falsehoods. I am also satisfied that the circumstances and timing of your complaint support that you were motivated by the mistaken belief that your employment was to be terminated and you manufactured your complaint in an attempt to offset scrutiny of your own behaviour. Your claim that Scott Kirkwood would stare at you from a darkened office at your location in an open plan office, two or three times a week, for periods of 10-15 minutes is entirely without corroboration. Similarly, your claims Charles Lovell would look at your body in an "odd way" and stand and stare at you for 15 to 20 minutes in an open plan office lack corroboration. In both instances it's more than reasonable to expect that there would at least be some corroborative evidence. There is no evidence to support the serious allegations you have made of stalking, sexual harassment, threats and manipulation of workplace data and computer systems. I find it noteworthy that despite you regularly confiding in Ann Miller, Ms Miller received no contemporaneous report from you about any of these serious and remarkable claims. These factors lead me to believe that your complaint was not made in good faith and is vexatious. I find Allegation 2 substantiated. 28. In her Initial Response to Allegation 2 on 16 August 2018 the Appellant stated: The complaint I made on 12 June 2018 (sic) was in relation to the conduct of some colleagues that were making me feel uncomfortable and unsafe. I made these complaints in good faith to 'the best of my recollection and knowledge and with the view of making their behaviour towards me stop. My complaint was not vexatious, made in bad faith or intended to cause trouble. It is my workplace right to make a compliant or request action be taken to ensure my workplace safety. The Colleagues I complained about have clearly denied the conduct which I have complained about. The complaint I made does not amount to misconduct just because colleagues I complained about have denied my allegations. Making a complaint to protect myself does not amount to misconduct. The complaint I sent has been about the ongoing bullying against me by a group of people. The People Matters Survey and Polaris Report highlighted the unhealthy work environment in Grants. I had faith that Legal Aid would be committed to trying to understand and resolve the ongoing work health and safety issues that I have been experiencing and raised in my complaint. In light of my responses and my treatment from my colleagues I feel that it would be prudent for me to be transferred to another division within legal aid I request in order to continued working for legal aid to the high standards expected of me. 29. In her response dated 22 November 2018 to Mr Thomas's Breach Letter dated 7 November 2018 the Appellant pleaded in relation to Allegation 2: I am a long term employee with Legal Aid and have been subjected to bullying in the workplace. If you recall, I sent a registered letter to you on 3 April 2018 seeking a one-on-one meeting with you to discuss work related issues. As I was unable to resolve the workplace issues informally I sent a complaint on 4 June 2018 under the Legal Aid Complaints Handling Guidelines. The purpose of my complaint was to resolve the issues in my workplace and it was not my intention to cause trouble to anyone. I love my job and have a lot of experience al Legal Aid. I would like to keep working there. I have been working at Legal Aid for 22 years and was merit selected to the role of Grants officer during the restructure and centralisation about 17 years ago. I am very good at my job and have been praised for my phone skills in dealing with clients and solicitors. I have never had any performance issues raised against me. I have been a victim of domestic violence and my work colleagues and management were fully aware of my situation. This situation has made me want to focus on my work to ensure that the work is done properly. Even when I have been going through a traumatic experience due to domestic violence I have always made sure my work was not affected an that it was done professionally. My husband and I have separate finances and I am not getting support from him. I don't have extended family or relatives in Australia to offer me help or support. I am in a very vulnerable situation. I have personal loans and a mortgage. If I lose my job I will be placed in serious financial hardship and will not be able to meet my commitments including accommodation. I am happy to work in another team in the Grants Division or another role anywhere in the Legal Aid. I am happy to have a meeting or attend mediation or anything that you decide is appropriate to resolve any workplace issues. Sir, please do not terminate my employment as I will be in a very bad situation. 30. Mr Madden states in his Investigation Report in relation to Allegation 2: The timing between the complaint being submitted, along with Renu Ramadas' fear that her employment would be terminated, and the lack of information provided to support the various allegations has led the investigator, using the balance of probabilities as the threshold, to believe that the allegation is sustained. 31. The path which so led to Mr Madden's belief ignored the Appellant's earlier request to Mr Thomas on 3 April 2018 for a one on one meeting to discuss workplace issues and ignored that she had been subjected to bullying in the workplace. The Appellant's Complaint was also sent to Mr Thomas on 4 June 2018, not 12 June 2018. 32. The inability of the Appellant to provide corroborating evidence to support particular allegations that she made against some of her co-workers is not evidence of itself that those allegations were false. 33. For some allegations there is evidence which shows that the circumstances of particular allegations may have occurred, although the person against whom the allegations have been made have denied the specifics of the allegations. For example, Scott Kirkwood admits in his evidence that he did use his old office to get changed for lunchtime sport. Although Kylie Johnson denies raising her voice or losing her temper in meetings with Renu, she does admit that "I just couldn't keep my shit together'' in a meeting with the Appellant in early March 2018. 34. Some allegations relating to incidences where there were no witnesses such "Charles walks past my desk frequently, looks at my body in an odd way and makes unusual expressions" and "Sean Quigley will also walk past my desk at times and give me a threatening type of look at me" are obviously deniable but could very easily have occurred. 35. Mr Madden's finding that Allegation 2 was sustained was incorrect and unfair. Consequently, the Decision Maker's acceptance of Mr Madden's finding to also decide that Allegation 2 was sustained was incorrect and unfair. 36. Whereas a reasonable employer should have seen the Appellant's Complaint as a cry for help, the Respondent used the Complaint as the final reason it needed to dismiss her. 37. The Appellant is a victim of bullying in her workplace and she has been dismissed for reasons which include a decision that her bullying complaint was vexatious. That decision cannot stand. 38. The Commission should consider the Appellant's circumstances in her workplace and determine that Allegation 2 should have been dismissed. Conclusion 39. The Commission should find that there was insufficient basis for the respondent to determine that each of the Allegations were sustained and that the Decision to terminate the Appellant's employment was unfair in the circumstances. 40. The Commission must grant the appeal against the Decision to terminate the Appellant's employment on 8 January 2018. 41. Further submissions will be made regarding the evidence before the Commission once the Respondent's evidence has been tested and after the Commission has had the opportunity to see the Respondent's witnesses give evidence. Remedy 42. The Appellant should be reinstated forthwith to her position as a Grants Officer with Legal Aid NSW, or reemployed in an alternative position, with continuity and compensation for lost earnings for the period she has been off work from 8 January 2019 to date, subject to the deduction of any earnings since that date. 43. In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 the Full Court of the Industrial Relations Court of Australia stated: "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 fairmindedness, 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." 44. The Appellant wishes to return to her job. The Respondent should not be permitted to rely on its unfair treatment of the Appellant to stand in the way of her return to work.
The appellant did not give evidence in her own case and called no witnesses. At the conclusion of the respondent's oral submissions, Mr Burns, the appellant's solicitor, also put oral submissions in supplementation of the appellant's written submissions.

Determination

This public sector disciplinary appeal by the appellant is disallowed. My reasons for disallowing the appeal are set out below. In outlining those reasons I propose to deal with the following matters in chronological order:

Failure to attend meetings
Allegation 2 - the appellant's complaints
Allegation 1 - Criminal Law Conference

Failure to attend meetings

The evidence before the Commission discloses that, from around November 2017, the appellant failed and/or refused to attend meetings with a number of her managers and supervisors, most notably, her Team Leader, Ms Johnson ([26]-[29] above).
From the evidence, it appears that, on some occasions, the appellant proffered a variety of excuses for her refusal to meet with Ms Johnson, such as "No, you were mean to me at the last meeting" and "You are not allowed to talk about work in the one-on-one, it is supposed to be about my wellbeing".
Whilst the appellant's conduct in this regard was not relied upon by the respondent as a reason for the termination of her employment, it did lead to her being issued with a "Formal direction and warning" on 29 May 2018 from the Director Grants, Ms Flanagan, which contained the following: This year to date, you have declined ten meeting invitations scheduled by your Team Leader, the Operations Manager, Acting Director Grants and the Director Grants. Further, you have failed to provide any reasonable explanations for not attending these meetings. I have attached a chronology of these events for your information. Yesterday you declined a proposed meeting with myself and did not make subsequent arrangements to meet me, despite my request that you do so. ……………………………… You should be aware that the Legal Aid NSW Code Conduct requires that all staff act with professionalism, take responsibility for situations, build relationships based on mutual respect and invite teamwork and collaboration. The Code of Conduct also states that all employees must comply with any reasonable direction given to them. I am concerned that your conduct to date is inconsistent with these aspects of the Legal Aid NSW Code of Conduct. This letter serves as my advice and guidance to you, and a reminder of your obligations to act in accordance with the Code of Conduct at all times. It also represents my first and final warning to you that should you continue to fail to comply with reasonable requests or fail to demonstrate behaviours that are consistent with the Legal Aid NSW Code of Conduct, I will refer the matter to the CEO to commence a formal misconduct investigation which may result in disciplinary action, including the termination of your employment.
At this point in time, the appellant was on clear notice that any further breach by her of the provisions of the respondent's Code of Conduct could result in the termination of her employment. However, approximately two weeks after receiving the letter from Ms Flanagan, the appellant made a written complaint against a number of her colleagues which was received by Mr Nickols on 12 June 2018 (at [12] above).

Allegation 2 - the appellant's complaints

Following the appellant's written complaint, she was interviewed by Mr Nickols on 25 June 2018. During that interview, a record of which also appears at [12] above, the appellant elaborated upon the allegations contained in her written complaint and made a number of further allegations against her colleagues.
In his affidavit in these proceedings, Mr Kirkwood identified and responded to 37 allegations against him (at [36] above). Ms Johnson identified and responded to 18 allegations against her (at [37] above). Mr Lovell dealt with 17 allegations against him (at [38] above) and Mr Quigley dealt with 5 allegations against him (at [39] above).
I do not propose to deal with each and every allegation made by the appellant against her colleagues but will examine some of the evidence as it relates to a number of them.
The first allegation made by the appellant against her colleagues was expressed as follows: The previous operations manager had formed and left behind her own group of bullies (Scott [Kirkwood], Sean [Quigley], Kylie [Johnson] and Charles [Lovell]) who supported her and used to act on her instructions. When Scott being appointed as Operations Manager, I overheard a grants officer telling him that Tracey has asked him to keep up the tradition and Scott said that he would keep up the tradition.
Mr Kirkwood refuted the allegation at paragraph 16 of his affidavit (at [36] above); as did Ms Johnson at paragraph 54 of her affidavit (at [37] above); as did Mr Lovell at paragraph 8 of his affidavit (at [38] above); and as did Mr Quigley at paragraph 7 of his affidavit (at [39] above).
As part of his investigation, Mr Madden put the following question in writing to the appellant: 17. In your complaint you indicated that when Scott Kirkwood was appointed as the Operations Manager, you overheard a Grants Officer telling him that Tracey Bosnich had asked him to keep up the tradition and Scott Kirkwood had said that he would keep up the tradition. When did this conversation occur, who was the Grants Officer involved and what did you understand 'tradition' to mean?
The appellant's written response was as follows: Grievance Prior to answering the grievance questions, I would like to state by way of background - The Grants Division has had a very unhealthy work environment for many years with bullying behaviour by Senior Managers and other staff. The NSW Government annual People Matters Survey indicates the unhealthy work environment. In 2017 and 2018 the Grants Division received the lowest score across Legal Aid for the performance and behaviour of Senior Managers. The Grants Division Senior Managers score is also well below the average for the Justice Sector and the Public Service. After the People Matters Survey in 2017 2 longstanding Senior Managers left the Grants Division and have now been replaced. One of these managers is Tracey Bosnich. Legal Aid also engaged a consultant firm Polaris to speak to staff and do a report on the workplace Culture. The Polaris Report identifies a toxic workplace culture in Grants with bullying, harassment and victimisation. I attach copies of the 2017 and 2018 People Matter Survey and the Polaris Report for your information. 17. The day after Tracey Bosnich left the Grants Division I heard Eng Estinislau make this comment to Scott Kirkwood. I understood the "tradition' to mean the tradition of bullying established by Tracey Bosnich.
A number of observations need to be made about the appellant's response to Mr Madden.
In the 2017 NSW Public Sector Employee Survey, "People Matter 2017", Agency Report, Legal Aid Commission of NSW, the Grants Division of the respondent rated relatively poorly in comparison with other Business Units with respect to the categories of "Employee Engagement" and the sub-categories of "Engagement with Work", "Senior Managers", "Communication", "High Performance", "Public Sector Values" and "Diversity & Inclusion".
As a consequence of these poor ratings, the respondent engaged Polaris Coaching to conduct a series of workshops in November 2017 and to prepare a report which was entitled "Legal Aid, Grants Division Report, Workshop Results - November 2017", but was referred to in the proceedings as the "Polaris Report". That report contained the following: 1. Introduction This report is based on data collected from a series of workshops and some private communications. The workshops took place in November 2017. The workshops and report were prompted by the low results of a People Matter Survey conducted earlier in the year. The survey showed an overall engagement score of 57% for the Grants Division based on 44 out of 77 people completing the survey. …………………………….. 3. Results - Data Overview 1. Behaviour and Culture This came across as a big problem area for the division though from what the odd individual said, it seemed that some may not have been directly affected by it but could see the impact it had elsewhere and on the division as a whole. This could indicate that the poor behaviour was in pockets of the division rather than expressed everywhere in the division. For example, civil was hardly mentioned compared to family or crime.
Later in the report a "Data Table" identified as matters to be eliminated "Bullying", "Bullying by management, section and Legal Aid within", "Bullying and clique culture", "Bullying, Intimidation, sexual harassment, aggression, age discrimination", "Bullying/Intimidation", "Cliques/factions", "Covert bullying". Matters identified to be avoided included "Bullying - covert and direct" and "Bullying/targeting of staff".
The Polaris Report then went on to identify a number of factors contributing to the poor culture within the Grants Division and made a number of recommendations designed to address those factors which focused on leadership issues.
The Grants Division again rated relatively poorly in the "People Matter 2018" survey.
Ms Johnson was cross-examined about the Polaris Report as follows: Q. Okay. Now at around this time [November 2017], okay, a thing called the Polaris report came out? A. Yep. Q. Okay. Now do you have a copy of the Polaris report with you? A. Yep. …………………………… Q. In relation to the Polaris report as far as Renu, I'm not really interested in whether it's true or not, what it says is true, okay. But it was published. You got a copy, everyone-- A. Everybody got a copy. Q. --got a copy. Was that emailed to everyone by management? A. Yes. Q. And there was also the People Matters report that it refers to? A. Yes. Q. But they're publicly available on the internet for everyone to see? A. That was emailed to everybody as well. Q. Yes. And when it came to this Polaris report, did you - were you involved in the interviews and the workshops yourself? A. Everybody was, yes. Q. Everybody was. What happened in those? A. Basically the convenor put up a bunch of butcher's paper on the walls, with headings under different things, and you had to go and write your thoughts or comments under those headings, about what you thought about the current culture in the grants division. Q. Yes? A. Which had been replicated in the report. Q. How long did that process go on for? A. It was a few weeks, 'cause there's a lot of people and a lot of workshops. ……………………………… Q. And this was just for grants. Do you know if anyone else in Legal Aid got the attention of it? A. No. No. Q. And were you explained why it was just grants? A. Yes. Q. Why? Why? A. It came as a result of the People Matter survey and the poor showing that grants had and it was thought that by running those workshops, we'd be able to identify what the cultural issues, workplace issues were and then we could have, I guess, a plan for a remedy. ………………………………. Q. So then I go on and take you to the Polaris report itself and did Renu ever discuss this report with you? A. No. Q. This is generally seen by all staff? A. It was emailed to everybody. Q. And so there's comments throughout it and just as a visual, if I can take you to page 7 of the report, just as a snapshot, you see there in the last - the table, behaviour and culture, eliminate - there's the word "bullying" appears in there, at many columns in the second column, the last three rows, bullying. And then over the page, in the second column, each column refers to either bullying, bullying and intimidation, cliques and factions, cliques and factions, covert bullying, bullying, bullying ..(not transcribable).. exclusory behaviour? A. Mm-hmm. Q. Now, I'm not wanting to get into the truth or not, about whether or not whoever wrote it, whatever the results were, but that's a picture that someone has sent around about grants, which, as far as you're aware, most people would have seen? A. Certainly everybody in grants saw it but I don't know outside of the division. Q. So you think Renu would have seen it? A. I am sure she did. Q. And again I'm not saying that it's the truth, okay? So I'm not going about what's in the box, just talking about the fact of it. It came out at the time there was a report that referred to, that made reference, there was a report that was specifically related to and specifically only related to grants and there were references in there to bullying? A. Okay. Q. Now, at that time, and that was published in November 2017? A. Mm-hmm. Q. But as far as you're aware, you don't know whether that had any bearing or not on Renu and her allegations that she was being bullied? A. No, she never raised it with me, we never discussed it.
Ms Johnson was then taken to part of the transcript of her interview with Mr Madden held on 20 August 2018 where she referred to a discussion she had with the appellant on 5 February 2018 in the following terms: KJ: …. It kind of went downhill from that point. We talked about the previous Operations Manager and her. DM: Who was? KJ: Tracey Bosnich. So Renu and her and I had discussions the previous year about leave and all those sorts of things. So it just kind of went pear-shaped and in the end I just said to her "Look, I don't think we're getting anywhere with this" and at that stage she said to me "Oh you're bullying me". I said to her "Well if that's how you feel, then I'll have to report that to the Operations Manager, to Scott, and let him know that that's how you feel so that's there, but I don't think we can continue with this meeting any further" and I left.
The cross-examination of Ms Johnson then continued: Q. And when you say, "In the end, I just said to her, 'Look, I don't think we're getting anywhere with this' and at that stage she said 'No' to me, 'Oh, you're bullying me'." Where that "and" is, "in the end, I just said to her", that's in 5 February? A. That's right, so that was, yes, when she raised the first thing about me bullying her. Q. You didn't put two and two together, the Polaris report, bullying, there's that issue? A. Um-- Q. You didn't make any reference to that? A. No because I didn't think I was bullying anybody. Q. No one? A. No but I mean she was saying that it was me, the Polaris report was a culture of bullying. Didn't say that I was bullying her or bullying anybody else. Q. Do you know anyone in grants that's had any disciplinary issues in relation to bullying since the Polaris report was published? A. I'm not privy to. Q. Not as your work, so nothing was done about it? A. In terms of the Polaris report? Q. Yeah? A. I don't know what management - there were different changes to management as a result of a lot of things. Q. Changes of management as a result of the Polaris report? A. There was a change in director, as a result of the PM, yes. The Polaris report, there was a change. As a result of the Polaris report, there was a change in family law, where most of the bullying was occurring and most of the cliques were occurring. As they're grade 6 family law solicitor was not extended when her temporary contract came up, so they preferred to leave the position vacant rather than have her continue. Q. So there's been a few managerial changes but, really, not, as far as you've seen in your-- A. Certainly the culture in family changed as a result of removing the SIC, but in crime there was no allegations of bullying that I was aware of.
The suggestion seems to be that Ms Johnson, having been aware of the references to bullying in the Polaris Report and then having been accused by the appellant of bullying her, should have "put two and two together" and somehow come to an understanding that there was some legitimacy in the appellant's bullying accusation against her. If this is the proposition that is being put on behalf of the appellant then I reject it. An accusation of bullying against an individual supervisor, which is denied, does not gain strength because a consultant has identified in a report a problem of bullying generally within the organisation.
It appears from her response to Mr Madden's questions (at [55]-[56]), that the appellant seeks to rely on the two "People Matter" surveys and the Polaris Report to support her claim that, on the day after Ms Bosnich left the division, the appellant overheard Mr Estinislau "telling him [Scott Kirkwood] that Tracey has asked him to keep up the tradition and Scott said that he would keep up the tradition", and that meant the "tradition of bullying established by Tracey Bosnich".
Apparently, on the basis of her assumption that "tradition" meant "tradition of bullying", the appellant felt that it was appropriate to make a formal allegation that Ms Bosnich had formed and left behind "her own group of bullies", being Mr Kirkwood, Mr Quigley, Ms Johnson and Mr Lovell, to keep up the "tradition" of bullying the appellant. Unfortunately for the appellant, there is not one shred of evidence to support this allegation by her.
In her letter of complaint of 12 June 2018, the appellant, in reference to Mr Lovell, stated "He makes dirty comments loudly which is encouraged by Scott. Scott also joins with him and makes inappropriate comments (I am unable to put those comments in writing)". During the conversation between the appellant and Mr Nickols on 25 June 2018, he asked her to specify these "inappropriate comments". The appellant responded by stating "that on one occasion Charles said to her that Scott had created some kind of peep hole in the toilets so that 'he can see you naked'… Renu stated that on another occasion Charles had said to her words to the effect: 'Scott is really horny when he sees you'. Renu added that Scott heard this comment and laughed and smirked. Renu did not have any further specific examples" (at [12]).
During his investigation, Mr Madden put a number of questions in writing to the appellant, including the following: 39. You indicate that Charles Lovell would make dirty comments and was encouraged by Scott Kirkwood. Could you please provide examples of these dirty comments? Could you please indicate how you knew that Scott Kirkwood would encourage him to make such dirty comments?
The appellant responded in writing as follows: 39. Some of the comments made by Charles are as follows - Example 1 - On one occasion I was sitting at my desk. Charles approached me at my desk and said - "Scott gets really horny when he sees you." On that occasion Scott was also standing behind him smiling. Example 2 - On a later occasion Charles came to my desk and said - "Scott has installed a camera in the toilets so he can see you naked." On that occasion Scott was also standing behind him smiling.
It appears that, by some method which was never explained, the "peep hole" that the appellant had told Mr Nickols about had, by the time she came to respond to Mr Madden's questions, become a "camera".
Both Mr Kirkwood and Mr Lovell emphatically denied this allegation. Again, there is not one shred of evidence to support the appellant's allegation.
I had the benefit of observing Mr Kirkwood, Ms Johnson, Mr Lovell and Mr Quigley being cross-examined in the witness box. I formed the opinion that each of them was an honest and credible witness.
I did not have the benefit of observing the appellant give evidence. Her allegations against her colleagues (at [12]) remain untested whereas the refutation of those allegations by her colleagues was by way of sworn testimony which was subject to and withstood cross-examination.
I accept the evidence from Mr Kirkwood refuting each of the appellant's 37 allegations him; from Ms Johnson refuting each of the 18 allegations against her; from Mr Lovell refuting each of the 17 allegations against him; and from Mr Quigley refuting each of the 5 allegations against him.
I find that, in making these baseless and, in some cases, scandalous allegations against her colleagues, coming so soon after the she had received a formal "first and final warning", the appellant has committed misconduct such as to warrant the termination of her employment without more.

Allegation 1 - Criminal Law Conference

Allegation 1, as provided to the appellant by letter dated 10 August 2018 from Mr Thomas, stated that the email from Ms Johnson to staff, which set out the "rules for staff to attend the Criminal Law Conference", included that staff "may attend 1-2 days of the 3 day conference" (emphasis added). In fact, the email from Ms Johnson to staff of 26 July 2018 stated "You can attend 1 - 2 sessions during the three days" (emphasis added).
In her written response to Mr Madden, the appellant seized upon this discrepancy and stated: Allegation one by Legal Aid contained in the letter dated 10 August 2018 is incorrect. There is a clear inconsistency between the actual email and the allegation. Therefore, the allegation made by Legal Aid cannot be sustained as the direction was never given to me as alleged.
I reject this proposition. It is true that the letter of 10 August 2018 referred to "1 - 2 days" rather than "1 - 2 sessions" as was stated in Ms Johnson's email to staff of 26 July 2018. Nevertheless, the relevant document is Ms Johnson's email because it promulgated the "rules" for staff to attend the conference, and these rules were brought to the attention of staff, including the appellant, a week before the conference commenced. These were the "rules" that the appellant breached. Her culpability cannot be expunged simply because a subsequent letter of allegation misstated one of the "rules". In any event, the appellant attended all three days of the conference which would have still put her in breach even if the formulation of the "rule" in the letter of allegation was correct. To accept the appellant's response to Mr Madden in this regard would amount to the elevation of form over substance in a manner that this Commission could not entertain.
The appellant has claimed that she left a note on her desk indicating that she intended to attend for the three days of the conference and that the reason she failed to write this on the sign-up sheet was that she was off work sick on the day before the first day of the conference. I have serious doubts about the veracity of these claims but, even if I were to accept them as true, it is my determination that the appellant is still guilty of misconduct with respect to this allegation.
Ms Johnson gave evidence, which I accept, that she approached the appellant at the conference during the second day and said "Look Renu, you need to go back to the office. You can't be here". The appellant walked away from Ms Johnson but did not return to the office. This was witnessed by Mr Hoskins. Not only did the appellant remain at the conference on that day in defiance of a clear instruction from her Team Leader, she attended the conference again on the third and last day.
In her email to Mr Thomas of 16 August 2018, the appellant claimed that, at no stage, was she directed to return to the office or not attend the conference. I reject this claim and accept the evidence of Ms Johnson and Mr Hoskins that the appellant was clearly directed to leave the conference and return to the office.
The appellant's blatant refusal to comply with this lawful and reasonable direction from her Team Leader struck at the very heart of the employment relationship and disclosed and intention on her part to not be bound by the usual obligation on an employee to comply with such a direction.
In this regard, the appellant misconducted herself so as to warrant, without more, the termination of her employment.

Conclusion

Allegations 1 and 2 against the appellant are sustained. Following on from her "first and final warning" in May 2018, the appellant's misconduct, which formed the basis of these two allegations, was such as to warrant the termination of her employment.
I have taken into account the significant adverse consequences, financial, professional and emotional, that the loss of her 22 year career will have on the appellant. However, these considerations do not outweigh the seriousness of her misconduct and the absence of any unfairness attaching to the termination of her employment.

Order

I order that the public sector disciplinary appeal by Renu Ramadas against the decision to terminate her employment be disallowed. John Murphy Commissioner

Amendments 25 May 2020 - removed system errors 26 May 2020 - coversheet - restored dates 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. Decision last updated: 26 May 2020

Ramadas v Industrial Relations Secretary

At a glance

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Decision date

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Judgment (15 paragraphs)

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Cases Cited (3)

Cited By (1)