Sharmain Naicker and NSW Health Service - Government of New South Wales for South Eastern Sydney Illawarra Area Health Service [2008] NSWIRComm 1104

LEGISLATION CITED: Industrial Relations Act 1996, s84

HEARING DATES: 11/09/08, 12/09/08, 19/09/08

APPLICANT Ms K Nomchong of counsel Karp O'Neill, Solicitors and Barristers LEGAL REPRESENTATIVES: RESPONDENT Mr J Mattson, solicitor Bartier Perry, Solicitors

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

SHARMAIN NAICKER AND NSW HEALTH SERVICE - GOVERNMENT OF NEW SOUTH WALES FOR SOUTH EASTERN SYDNEY ILLAWARRA AREA HEALTH SERVICE Application by Sharmain Naicker re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 On 31 March 2008, the New South Wales Nurses' Association ("the Association") filed this application pursuant to s84 of the Industrial Relations Act 1996 ("the Act") alleging its member, Sharmain Naicker ("the applicant"), had been harshly, unreasonably or unjustly dismissed. Prior to the conciliation of the application, the Association ceased its representation of the applicant. I mention this only so as to note the file name was amended reflect the fact the application was, thereafter, advanced by the applicant individually. As conciliation before my colleague Murphy C was unsuccessful, the matter was reallocated to me for arbitration. On the hearing of the matter, Ms K Nomchong of counsel represented the applicant. Mr J Mattson, solicitor, represented the NSW Health Service - Government of New South Wales for the South Eastern Sydney Illawarra Area Health Service ("the respondent"). 2 The applicant migrated to Australia in 2003, having previously studied and worked as a nurse in South Africa. The applicant was employed as a permanent, full-time peri-operative nurse at Prince of Wales Hospital, Randwick ("the hospital") from 7 April 2003 until her dismissal on 13 March 2008. 3 The respondent's decision to dismiss the applicant stemmed from a series of events that began with a dispute with other staff on 31 August 2007 in which the applicant was alleged to have misconducted herself, including allegations that the applicant shouted at staff and grabbed a nurse. It is important to note, however, that the events on 31 August 2007, themselves, were not the reason for the dismissal. Rather, the dismissal was, instead, based on events subsequent to the alleged altercation in which the applicant was, as noted in the letter of termination dated 13 March 2008, "considered [to have] wilfully and fraudulently falsified and submitted a witness statement, which is considered to be a breach of the Code of Conduct". 4 The principal evidence concerning the witness statements was given by the applicant and another employee named Jimmy Rikaloski. I outline, by way of preliminary comment, some observations about the principal witnesses - given the focus in the proceedings on matters relevant to the level of communication or understanding between them in the events that unfolded concerning the witness statements, and to the possible effects of the dynamics of personality involved. For instance, as Ms Nomchong submitted, Mr Rikaloski has a difficulty with the English language and, added to that, the applicant, as evidenced in her responses in the witness box, may not always appreciate or understand what is being said to her or asked of her. 5 Mr Rikaloski has worked at the hospital for twelve years as a porter. Mr Rikaloski considers his spoken English skills to be good and was of the view he has "no problems in the workplace with anyone understanding him". That being said, Mr Rikaloski spoke with accented English as he alternated between Macedonian and English when giving evidence with the assistance of an interpreter. Although Mr Rikaloski considers his spoken English to be good, he nonetheless considers his English reading skills "are not the best". Mr Rikaloski said although he does not have enough English to write or translate anything, he has enough English to do his job. Mr Rikaloski presented as a quietly-spoken and taciturn witness. For her part, the applicant speaks fluent English, albeit in an unusually-stylised way that is reflected in some parts of the documents she drafted on her own behalf and in her oral evidence in the proceedings. The applicant speaks quickly and loudly - the loudness possibly being the product of her slight hearing problem. The applicant presented as an assertive and forthright witness. 6 I should also say, as a preliminary matter, that large tracts of the evidence of the applicant and Mr Rikaloski were entirely incompatible as to the events surrounding the witness statements. The versions are irreconcilable in such respects. Moreover, the evidence of each of the two principal witnesses was, at times and to varying degrees, characterised, in my view, by implausibility and internal inconsistency; or otherwise was at odds with, or was quite irreconcilable with, or embellished upon, responses they earlier had given to officers of the respondent who had been charged with the responsibility for investigating issues; and that their actions could not necessarily be viewed as having good logic to them. All that being noted, the applicant's demeanour was characterised by a sense of self-conviction that her version of events was correct, just as Mr Rikaloski's demeanour equally was characterised by a quietly assured sense that the version of events he recounted was correct. 7 I turn now to the witness statements themselves. It is common ground the applicant relevantly typed three statements about the events on 31 August 2007. Each of the documents is cast as if it were a witness statement by Mr Rikaloski in which he shortly recounted his observations. The wording and presentation of the three documents differ, but there is a relevantly basic common theme - namely, that the applicant did not touch the other nurse during the altercation or otherwise misconduct herself. The evidence suggested that:

. the first statement was typed by the applicant shortly after the alleged altercation and was then signed by Mr Rikaloski. It was also signed by the applicant against a notation which reads: "Written on behalf of J.R.";

. the second statement was typed by the applicant on 5 September 2007. It was not signed by Mr Rikaloski, but bears the applicant's own signature and words which appear to read either: "Written on behalf s/JR" or "Written on behalf ofJR";

. the third statement was typed by the applicant on 20 September 2007. It is unsigned and does not have any notations. 8 According to Mr Rikaloski, the applicant prepared the first statement without any input from him and then pressured him to sign it. Mr Rikaloski said he signed the first statement without reading it, principally because he was tired and did not want an argument with the applicant. Mr Rikaloski subsequently showed the first statement to his son to read and also discussed the matter with his supervisor.

9 What occurred next, as with so many aspects of this case, were matters of sharp dispute on the evidence. According to Mr Rikaloski, the following unfolded. He approached the applicant and said words to the following effect: "This letter is no good for me. Don't give it to anyone." He then tore his copy of the first statement in the applicant's presence and put it in a bin. According to Mr Rikaloski, the applicant agreed not the give the first statement to anyone, but also indicated she would prepare another statement. Mr Rikaloski replied he did not want another statement and he would not sign anything. Some days later, the applicant approached him again about signing the second statement. According to Mr Rikaloski, he queried why his name was on the second statement; he declined to sign the document. He added the applicant should arrange and sign her own statement.

10 When Mr Rikaloski attended an interview on 3 October 2007 investigating the events on 31 August 2007, he stated to the interviewer he had not seen the applicant touch the other nurse. Mr Rikaloski was re-interviewed on 26 October 2007, and shown documentation relied on by the applicant, which purported to be from him. Mr Rikaloski said he was, by that stage, upset; he felt the applicant was using him. The effect of his advice at the interview was that the documentation had not been prepared by him and the applicant did not otherwise have his authorisation to submit any documents in his name. 11 On the other hand, the applicant's evidence was to the effect that Mr Rikaloski was personally supportive of her in relation to the events on 31 August 2007 and had asked her to prepare the first statement. According to the applicant, Mr Rikaloski personally, and without any form of pressure, dictated the first statement in his own words and affixed his signature after reading the document. The applicant then swiftly submitted the first statement to management. The applicant denied Mr Rikaloski subsequently approached her about not using the first statement and denied also he had torn the first statement in her presence. 12 As to the second statement, the applicant said it was Mr Rikaloski who had subsequently approached her requesting that she prepare another document, as a sort of an aide memoire for him, and she typed it under his direction. According to the applicant, Mr Rikaloski declined to sign the second statement, albeit she had typed it at his request, stating, in part: "You sign it, you typed it". The applicant said she then signed the second statement on Mr Rikaloski's behalf and gave him the original signed document, while retaining an unsigned copy for herself. 13 As to the third statement, the applicant said she had inadvertently left her papers for an impending interview at home. As such, she asked Mr Rikaloski if he had a copy of his first statement she could take to the interview. According to the applicant, Mr Rikaloski said he did not have a copy with him and suggested she should, instead, print another copy from a computer and take it to the interview. The applicant said she opened the second statement (i.e. the aide memoire) on a computer and made a number of changes, including words suggested by Mr Rikaloski indicating he was "happy to speak to someone about this". 14 Given there was such a disparity between the evidence of the applicant and Mr Rikaloski on various conversations they had about the witness statements and other matters, I propose to restrict my findings to matters I consider to be apposite to the determination of the central issue. In that regard, I consider the evidence of Mr Rikaloski is to be preferred on the central issue relating to authorisation, or lack thereto, concerning the witness statements. I do not accept the proposition Mr Rikaloski stood by the applicant dictating the content of the first statement in his own words. While Mr Rikaloski may have poor English reading skills, it seems reasonable to suppose that if he had been involved in the preparation of the first statement in the manner described in the applicant's evidence he may at least have corrected the spelling of his name from "Jimmi" to the correct spelling of "Jimmy". Moreover, I accept the respondent's submission that the tenor of certain wording in the first statement is stylistically reminiscent of phraseology used by the applicant in her oral evidence and documents she personally wrote, rather than that of Mr Rikaloski. 15 It may be accepted, I think, that Mr Rikaloski belatedly had misgivings about having signed the first statement because its contents did not accord with his recollection of events or because he did not want to be involved, or both; and his son or supervisor, or both, had counselled him against involvement in the matter. I accept Mr Rikaloski communicated his wishes to the applicant that she should not use the first statement. Specifically, I accept that Mr Rikaloski advised the applicant that the first statement was "no good" and he indicated he was not prepared to sign any further statements. The possibility for an English language-based miscommunication, or some other form of misinterpretation, between the applicant and Mr Rikaloski is to be discounted, given my acceptance of Mr Rikaloski's evidence that he tore the first statement in the applicant's presence and threw it in the bin, coupled with the fact that, despite the applicant's request, Mr Rikaloski would not personally sign the second statement (and nor is the third statement signed). 16 The applicant's evidence in relation to the issue of whether Mr Rikaloski had stated to her that the first statement was "no good" was quite inconsistent. There was no reference to a conversation involving any such words in the applicant's own, detailed principal statement of evidence filed in these proceeding. In cross-examination by Mr Mattson about inconsistencies between her principal statement and her statement of evidence-in-reply filed in proceedings, the applicant alternated between saying she recalled the comment; then saying she did not recall it; then saying Mr Rikaloski never used the words; and then suggesting there had been a miscommunication. Given my acceptance of the evidence that the phrase was used in the sense described by Mr Rikaloski, I also preferred Mr Rikaloski's evidence that the balance of the contested conversation and actions occurred in the manner described by him. 17 As to the second statement, I considered as implausible the applicant's evidence that Mr Rikaloski approached her with a request she draft an aide memoire for his personal use. Mr Rikaloski's written Engish skills are such that he had to show documents to his son and supervisor for translation, so it seems unlikely he would have asked for any document of this nature - more especially if, as the applicant contended, she merely typed what he had, from his own memory as it were, directed her to type. Moreover, there seems, in this respect, to be no reason why any issue would have arisen about signing a document which, as the applicant contended, had the sole purpose of being a summary document requested by Mr Rikaloski for his own personal use (as opposed, for example, to involving the applicant attempting to persuade Mr Rikaloski to sign a revised witness statement the applicant could submit after he had disavowed the first statement).

18 An examination of the evidence does not lead me to a conclusion that the applicant asked Mr Rikaloski for his copy of the first statement to use at her interview on the basis she had left her own copy at home or any other basis, and nor do I accept the proposition it was Mr Rikaloski who had suggested to the applicant that she should down-load a copy of a witness statement to take to the interview.

19 It may be noted the applicant's own evidence was that she had not saved the first statement - so the proposition inherent in her evidence that Mr Rikaloski had asked her down-load the first statement which he had signed so as to take that statement to the interview unsigned cannot be sustained. 20 Moreover, while the applicant's own evidence was that she in fact downloaded the second statement at Mr Rikaloski's suggestion and made various changes to it for presentation at the interview, the applicant's evidence otherwise was to the effect that the second statement was exclusively intended as summary document to assist Mr Rikaloski personally with his recollection. Even on the applicant's own evidence, the second statement was not, at any time, intended as a further witness statement. That is, lying at the core of the applicant's evidence was the proposition that Mr Rikaloski had never informed her not to use the first statement. Thus, any suggestion Mr Rikaloski had asked the applicant to down-load the second statement on the basis it was, for instance, a further witness statement that he had collaborated in drafting and was then signed on his behalf by the applicant at his request cannot be sustained either, accepting even the applicant's own evidence at its highest in this respect. Additionally, if Mr Rikaloski had participated in the preparation of the third statement in the manner described in the applicant's evidence (and had not otherwise earlier informed the applicant he was unwilling to sign anything else for her), there seems to be no good reason why the applicant would not have asked Mr Rikaloski to sign the third statement and obtained that signature on the document if he had, as the applicant contended, assisted in its wording and given authority for her to use it at the interview. In so concluding, I have considered the fact the third statement contains words similar to those used by Mr Rikaloski during an interview about his preparedness to discuss the matter - which might otherwise suggest his involvement in the drafting of the third statement. In reaching my conclusions concerning the third statement, I have also considered Mr Nomchong's submission that if there is anything manifestly illogical in the scenarios in the parties' respective cases, it would be the proposition that the applicant would put forward a statement by Mr Rikaloski if she had, in fact, been told by him that he did not want her to use it in circumstances where she knew he was to be interviewed. However, there are irreconcilably illogical aspects to many parts of the evidence in this case.

21 As Mr Mattson's submissions noted, the applicant's evidence contended that she acted as all times with "unequivocal and clear permission" from Mr Rikaloski. However, I concur with the respondent's conclusion the applicant acted against Mr Rikaloski's wishes and otherwise without his authority concerning witness statements from the time he had withdrawn his approval to use the first statement. As such, I accept it was reasonably open to the respondent to take some form of disciplinary action against the applicant concerning the statement-related matters. The question then arises whether the ensuing disciplinary action, or the manner in which it was effected, rendered the dismissal harsh, unreasonable or unjust. In my view, Ms Nomchong presented a case which persuasively indicated the process leading to the decision to dismiss the applicant was deficient and, in fact, visited procedural unfairness on the applicant. The applicant's principal concern was she may be the subject of disciplinary action concerning her alleged misconduct in relation to events on 31 August 2007. It was during the course of the investigative process concerning those events that, almost in an incidental way, the issues emerged concerning Mr Rikaloski and the witness statements attributed to him. That subsequent issue gained a sort of momentum of which the applicant was not fully aware and in which proper process was not followed by the respondent. While there were various procedural deficiencies, the following examples alone serve to highlight some of the various difficulties alluded to by Ms Nomchong in this respect. The applicant was informed at a first disciplinary meeting on 26 October 2007 the new issues concerning Mr Rikaloski would be discussed at a separate meeting; however, matters moved instead to a second disciplinary meeting on 8 November 2007, during which the allegations concerning Mr Rikaloski were put to the applicant. Despite the applicant's denials and request for the documentation forming the basis of the conclusion she had fabricated Mr Rikaloski's statements, no materials were provided for her to review and respond to around that time. Instead, the applicant was advised her employment was, that very day, to be suspended and that the recommendation was being made for her dismissal. The applicant, should, in fairness, have been afforded better process with respect to the allegations concerning Mr Rikaloski in these and other respects.

22 In circumstances where I have accepted the applicant acted in the way contended in the respondent's case, but in circumstances where I accept also the procedural process leading to the dismissal was deficient, it is a difficult discretionary decision as to what relief, if any, should be granted to the applicant. That is, even if a better procedural process had been adopted by the respondent, it would not be unreasonable to conclude the respondent may, at the conclusion of such a process, have determined, in any event, to effect a dismissal. However, that is not a foregone conclusion, particularly given Ms Nomchong's submission that "alarm bells" should have been ringing given some of the inconsistencies in the accounts given by Mr Rikaloski; or it may have been that some disciplinary outcome short of dismissal may have resulted. 23 Apart from the procedural deficiencies, I have also taken account of the fact the applicant was summarily dismissed and of the serious nature of the allegations forming the basis for the dismissal - and of the usual evidentiary considerations that must accompany such matters. All things considered, I have not, however, been satisfied this is a case which warrants the Commission's discretionary intervention in the decision of the respondent to dismiss the applicant, even taking into account the procedural deficiencies, the summary dismissal and the seriousness of the allegations. 24 In short, I accept the applicant prepared a statement which asserted, among other matters, that she did not have any physical contact with another nurse during an altercation and prevailed upon Mr Rikaloski to sign it. Despite my acceptance of Mr Rikaloski's evidence that he subsequently informed the applicant, by words and actions, that the first statement was "no good", that she was not to give it to anyone and that he was not prepared to sign anything else, I have concluded that the applicant, for her own reasons, and with the type of self-purpose that was evident in her demeanour during evidence, determined to press ahead, regardless, in relation to a statement purportedly on behalf of Mr Rikaloski. 25 I note that Mr Rikaloski, when interviewed, said he had not seen the applicant touch the other nurse. In his evidence in these proceedings, which on this point he was not cross-examined, Mr Rikaloski testified that he, in fact, heard the applicant "yelling and arguing with the nurses" and saw the applicant "grab the nurse" in a "claw"-like fashion. While it is difficult to understand why Mr Rikaloski provided misleading information during the investigative process (for he had nothing personally to gain from so doing), it seems likely that he did so as a result of considerable personal pressure from the applicant to provide him with "a good report" given her understandable concerns about the disciplinary action that may flow from findings that were adverse to her in relation to the events of 31 August 2007. In accepting Mr Rikaloski's evidence in these proceedings, I have considered the fact that his evidence differs from the version he presented when interviewed (and note that any action the respondent may wish to take in relation to Mr Rikaloski is not under consideration in these proceedings). I consider Mr Rikaloski's evidence in the proceedings concerning his observations of the shouting and grabbing on the night of 31 August 2007 should be accepted in preference to the applicant's evidence to the contrary. One corollary to my finding in this respect is that the suspicions within the respondent's managerial ranks that the applicant's actions were designed as a "cover-up" of what occurred that night seem to me now to carry greater weight, given Mr Rikaloski's belated admissions in the proceedings about what he actually observed.

26 In one of the unfortunate paradoxes of unintended consequences that so often characterises cases of this type that come before the Commission, the applicant was dismissed for her conduct in relation to the witness statements prepared in the wake of the events on 31 August 2007, whereas she received only a reprimand concerning the altercation itself. Had it not been for the damage visited on the employment relationship arising from the events that came to light during the investigative process about the statements, the applicant's employment may have continued indefinitely with nothing more than a reprimand. However, I accept the applicant's actions in relation to the witness statements could reasonably, as the respondent's evidence and submissions indicated, be regarded as inimical to necessary trust and confidence within the employment relationship involving the professional occupation of a nurse, and could also have been contrary to the expectations underpinning the Code of Conduct.

27 It is a familiar proposition that the Commission is concerned with the concept of a "fair go all round" in determining whether a dismissal was harsh, unreasonable or unjust; and when considering the orders that may be made. Despite my acceptance of the submissions by Ms Nomchong concerning procedural unfairness, the applicant has not, in my view, established, in an overall sense, a case that the dismissal was harsh, unreasonable or unjust such as would warrant discretionary intervention in the respondent's decision to terminate the employment relationship. Even if I had found that an order in the applicant's favour should be made on this discrete issue concerning procedure, the evidence in both parties' cases leads me to the conclusion that reinstatement and re-employment would be impracticable given the respective descriptions of the difficulties with the employment relationship. I have not otherwise been satisfied this is a matter which should attract an order for compensation, given that the gravamen of the respondent's case in support of the decision to dismiss was made out. 28 As such, I order that the application is dismissed. ________________

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