The relevant evidence in the proceedings below and the unchallenged findings made by the primary judge
22 On 11 March 2017, Ms Annovazzi submitted an online application for the position of trainee train driver with Sydney Trains. Among other things, the Application Form required to her to answer the following questions:
Do you have a diagnosed condition for which you require reasonable adjustment throughout the selection process? The selection process may include paper-based or online tests, behavioural assessments and or interviews.
Do you have any impairment or condition which would affect your ability to perform the job for which you have applied?
23 Ms Annovazzi answered "No" to both questions. Ms Annovazzi's evidence, which the primary judge accepted, and which is not challenged on appeal, was that:
(a) on or about 15 February 2015, Ms Annovazzi first consulted Dr Frukacz in relation to difficulties she experienced at university and her suspicion that she had Autism Spectrum Disorder, previously known as Asperger's Syndrome. In documents that Dr Frukacz completed for Ms Annovazzi's university, he used the words Asperger's Syndrome to describe her condition;
(b) Ms Annovazzi acknowledged that she had been diagnosed with ADHD because Dr Frukacz prescribed medication to treat that condition;
(c) each of the above matters had occurred before Ms Annovazzi applied to become a trainee train driver with Sydney Trains;
(d) after she submitted the Application Form for the position of trainee train driver, to reassure herself, she took the opportunity to ask Dr Frukacz his professional opinion about the responses she had given, and he agreed with her assessment and the answers she had submitted.
24 On 22 May 2017, as part of the recruitment process, Ms Annovazzi attended a pre-employment health assessment with Sonic Health. That assessment involved completing a "Transport Agency Pre-Employment Health Questionnaire" (referred to interchangeably as the Medical Questionnaire or Pre-Employment Questionnaire) and a clinical examination by a Dr Kumar, who was with Ms Annovazzi at the time she completed the Medical Questionnaire. The Medical Questionnaire contained the following relevant questions:
1 Are you currently being treated by a doctor for any illness or injury?
2. Are you receiving any medical treatment or taking any medication (prescribed or otherwise)?
…
7.20. Have you ever had, or been told by a doctor that you had, any of the following:
…
A psychiatric illness or nervous disorder
25 The Medical Questionnaire also included a "Critical Incident Exposure Questionnaire" which included the following question:
Have you previously been treated or believe that that you would have benefited from treatment for a psychological issue? (e.g. stress related disorder, depression, anxiety)
26 Ms Annovazzi ticked the "No" box in respect of each of these questions.
27 It was also Ms Annovazzi's evidence, which the primary judge accepted, that:
During the last portion of the appointment, I was sitting in a room at the back of the location behind and to the right of the health professional, whom I have since learned is named Doctor Pravind Kumar, while he was sitting at a desk, filling out paperwork.
I verbally disclosed my diagnoses of Asperger's Syndrome and Attention Deficit Hyperactive Disorder to the doctor, and previous prescribed use of dexamphetamine for the latter, including that I had stopped using it months prior. After I stopped talking Dr Kumar made a dismissive gesture with his right hand (a downward flapping motion) while saying "oh, that doesn't matter" in response to my disclosure. He did not turn around to face me while doing so.
I then offered the doctor my specialist's (Dr Andrew Frukacz) business card, which I had removed from my bag prior to speaking and held in my hand. Dr Kumar made a different dismissive gesture with his right hand (shaking it left to right with his palm facing me) and did not respond beyond that. He had not waited until I stopped talking before he responded.
Approximately two minutes after my disclosure, Dr Kumar appeared to finish his paperwork, gave a short explanation regarding the declaration required on both the Pre-Employment Health Assessment Questionnaire and the Critical Incident Exposure Questionnaire, witnessed my signature on both, signed both questionnaires himself and ended the appointment.
28 Dr Kumar's clinical notes from the examination stated, among other things, "No psychological sequelae for Cat 1". Dr Kumar was not called to give evidence before the primary judge.
29 On 30 August 2017, Sydney Trains formally offered to employ Ms Annovazzi as a Trainee Train Driver commencing 13 October 2017. Clause 12 of the contract of employment noted that Ms Annovazzi would be employed on a probationary period for the first six months of her employment, and that period could be extended at the discretion of Sydney Trains. Clause 14 also provided:
14 Training
As part of your position, you will be required to complete the Passenger Train Driver Program. As part of this training, you will be required to obtain competencies by completing a number of assessments. It is an inherent requirement of your role as Trainee Train Driver that you pass these assessments and obtain these competencies.
Sydney Trains requires that you successfully pass each assessment on your first attempt of the assessment. You may not be provided with a second opportunity to complete the assessments.
Should you fail to successfully pass any assessment on the first attempt, your employment with Sydney Trains will be terminated on notice unless you can establish that there are exceptional circumstances as to why you failed the assessment(s).
30 On 10 October 2017, Dr Frukacz issued Ms Annovazzi with a medical prescription prescribing two daily 5mg tablets of dexamphetamine. The primary judge stated that an inference available from a photo of a bottle of dexamphetamine tablets that Ms Annovazzi later sent Mr Bellia (referred to in [35] below), which included the numbers "05/17" on its label, was that Ms Annovazzi had presented a prescription of that medication to a chemist in May 2017: PJ [18]. Ms Annovazzi denied that she was taking this medication at the time she completed the Medical Questionnaire.
31 On 13 October 2017, Ms Annovazzi commenced employment with Sydney Trains.
32 In late October 2017, Mr Bellia received emails from three employees raising complaints about Ms Annovazzi: PJ [29]. Mr Bellia gave evidence that when he raised these complaints with Ms Annovazzi, she told him that her behaviour was because she had ADHD and Asperger's Syndrome, and that she had disclosed these matters during her recruitment: PJ [33]-[35].
33 On 2 November 2017, Ms Annovazzi initiated a text message exchange with Mr Bellia in relation to the fact that she took medication from time to time and wished to report it in case it was detected in workplace drug testing conducted by Sydney Trains: PJ [36]-[37]. The text messages exchanged between Ms Annovazzi and Mr Bellia were as follows:
Ms Annovazzi: is it you that we send medication stuff to?
Mr Bellia: Medication stuff?
Ms Annovazzi: what we've got so if we get drug tested and it shows up we don't get in trouble
Mr Bellia: Yeah mate that's fine send it through
34 Mr Bellia gave evidence that, after this text exchange, he called Ms Annovazzi and asked whether she had disclosed her prescription at her pre-employment medical assessment, and she said no. That evidence was not accepted by the primary judge due to its inconsistency with the balance of that exchange, described below.
35 Ms Annovazzi then sent to Mr Bellia by text a photo of a bottle to which there was attached a label with words that included "Dexamphetamine Tablets". In a text message to Mr Bellia, Ms Annovazzi stated "label is a bit faded cause its an old bottle but ill [sic] have a new one tomorrow". The text message exchanges continued as follows (errors in original):
Mr Bellia: What do you take that for mate?
Ms Annovazzi: adhd. but i only ever use it when studying for uni. havent had any in months. doc gave it to me to use on an as needed basis.
Mr Bellia: Ah ok .
…
Ms Annovazzi: am i ok to take the dex?
Mr Bellia: I'm finding out for you
Did you tell recruitment you had adhd
Ms Annovazzi: no
Mr Bellia: Ok
Ms Annovazzi: i told the doc in the medical
Mr Bellia: Ah ok
36 On the same day that this text conversation took place, Mr Bellia informed Ms Vlahos that Ms Annovazzi had told him she took dexamphetamine for ADHD. He provided the text message exchange to Ms Vlahos, who passed on a portion of the exchange to Dr Casolin: PJ [43]. At 3.18 pm on the same day, Ms Vlahos sent an email to Dr Casolin informing him of the same, and asking whether Ms Annovazzi could remain in her Category 1 Rail Safety Worker status.
37 At 3.25 pm on the same day, Dr Casolin made enquiries with Dr Jones at Sonic Health as to whether Ms Annovazzi's ADHD had been declared and assessed. Dr Jones responded on the same day stating there was no mention on Sonic Health's file as to the relevant history or medication.
38 On the same day, at 4.57 pm, Dr Casolin sent an email to Ms Vlahos stating that ADHD was a problem for a train driver and that Ms Annovazzi was:
… temporarily unfit and should be referred back to Sonic for a FFD with a psychiatrist.
39 At 5.02 pm, Dr Casolin sent a further email to Ms Vlahos in which he asked her to ask Ms Annovazzi when the ADHD was diagnosed and the dexamphetamine prescribed.
40 As a result of the foregoing, Ms Vlahos requested that Mr Bellia prepare a Briefing Note.
41 It was not in dispute that, on 6 November 2017, Ms Annovazzi was taken out of the driver training course and placed on light duties in Sydney Trains' Burwood office: PJ [48].
42 Mr Bellia's Briefing Note was dated 9 November 2017. It was addressed to "Health Solutions" and copied to Dr Casolin. It stated:
Trainee Driver … advised and declared to Myself (Daniel Bellia) Train Crew Capability Coordinator, that she wanted to identify to Sydney Trains that she was taking Dexamphetamine to cover herself in the event of being drug tested. Renee also stated she had recently been prescribed a new script for 5mg Aspen Dexamphetamine - to be taken as required.
…
Trainee Driver Annovazzi stated that she did not declare either condition ADHD or Aspergers Syndrome to Sonic health so these conditions were not taken into account whilst Trainee Annovazzi's suitability to undertake Category 1 work as a Train Driver was being assessed.
We are requesting for Health Solutions to refer Trainee Driver Annovazzi for a Psychiatric and if required a neuropsychological assessment to determine if she is suitable for Category 1 work, and also the impact that not being able to take dexamphetamine could have on her attentiveness.
43 The primary judge did not accept that the Briefing Note accurately recorded information Ms Annovazzi provided to Mr Bellia, specifically, to the extent that is stated that Ms Annovazzi had not declared either her ADHD or Asperger's Syndrome to Sonic Health: PJ [54]. That is because the primary judge found that the contents of the Briefing Note were inconsistent with text messages which Ms Annovazzi had exchanged with Mr Bellia in which she had effectively told him that she had disclosed her ADHD to the doctor in her medical assessment as part of her recruitment: PJ [53]-[54]. Due to the same inconsistency, his Honour also did not accept Mr Bellia's evidence that he had had a telephone conversation with Ms Annovazzi in which she said that she had not disclosed her dexamphetamine prescription at the medical assessment: PJ [40]. These findings are not challenged.
44 The primary judge also found that he was not prepared to find that "persons involved in deciding that Ms Annovazzi be dismissed from her employment were unaware of the text messages Ms Annovazzi had sent to Mr Bellia on 2 November 2017": PJ [54]. This finding is not challenged.
45 It was apparent from the Briefing Note that Mr Bellia was requesting an FFD Assessment. As noted above, Dr Casolin had also given evidence that he had informed Ms Vlahos that Ms Annovazzi should be referred to Sonic Health for an FFD Assessment.
46 Pausing here, the evidence before the primary judge was that both Mr Bellia (the person with oversight of trainee drivers) and Dr Casolin (the Chief Health Officer for Sydney Trains) had requested and considered it appropriate that Ms Annovazzi be referred for an FFD Assessment.
47 On 30 November 2017, Ms Zidan, Sydney Trains' Train Crew Training Coordinator, sent an email to recipients identified as Stephanie Majstorovic, Michelle Whitton and "TSS Health Solutions", which simply forwarded certain documents including the Briefing Note. The other two documents apparently attached to the email included a "Health Solutions Referral Checklist" and a "PD": PJ [56]. There was no evidence as to the contents of these two documents.
48 There was no evidence before the Court as to the role or functions of Stephanie Majstorovic and Michelle Whitton. There was also little direct evidence as to the identity, role and function of "TSS Health Solutions" or "Transport Shared Services". The primary judge found that Ms Samassa had given the following explanation of Transport Shared Services (TSS) (quoted at PJ [58]):
…they managed - basically the Sonic and that whole relationship around medical - the medical assessments is Transport Shared Services. So Sydney Trains would be a part of Transport. So Transport - so the - our worker's compensation, for instance, is under that shared services. A lot of our functions with them - Sydney Trains - come under Transport Shared Services.
49 The primary judge relied upon this evidence to find at PJ [59] that TSS was a "group of persons who provided services to Sydney Trains and possibly to other New South Wales agencies that provided transport services, including services relating to medical assessments of employees or potential employees". There is no challenge to this finding.
50 On 1 December 2017, Mr Lesser who, as noted above, apparently held the position of Senior Health Solutions Coordinator Injury & Claims Management at TSS, sent an email to Ms Zidan. A portion of the email stated:
I am coordinating this referral.
I left a message on your mobile earlier as I would like to discuss a couple of issues with this case before we can determine course of action with regards to FFD request.
51 Neither Mr Lesser nor Ms Zidan were called to give evidence. There was no evidence as to what the issues alluded to in Mr Lesser's email were or what was involved so as to enable Mr Lesser to "determine [the] course of action with regards to [the] FFD request".
52 On 20 December 2017, a person named Bill Chami with an email address containing "@transport.nsw.gov.au" sent an email to Ms Annovazzi that stated:
As discussed, could you please provide a medical note/briefing from your treating physician regarding the use of Dexamphetamine and the conditions of ADHD and also Asperger Syndrome.
This info can be addressed to Dr Casolin should you wish to keep the content in confidence.
53 The email then set out the email addresses of Dr Casolin and Ms Vlahos.
54 Curiously, Mr Chami provided no position description in his email signature and it is not clear whether he was employed by Sydney Trains or TSS.
55 On 8 January 2018, Ms Zidan sent an email to Mr Lesser seeking an update.
56 On 9 January 2018, a series of events occurred:
(a) at 8.56 am, Mr Lesser responded to Ms Zidan, stating:
This is currently sitting with Janene Browning and Dr Casolin at Sydney Trains.
We are awaiting further direction from Janene once Ms Annovazzi's original health assessment has been reviewed by Dr Casolin.
It should be noted at this juncture that, although Dr Casolin gave evidence before the primary judge, he did not suggest or indicate in his evidence that anything was "sitting with" him in relation to Ms Annovazzi's FFD Assessment or that, at the time this email was sent, he was reviewing her "original health assessment".
(b) at 2.24, pm Ms Zidan sent an email to Dr Casolin (copying Ms Browning, Ms Vlahos and Mr Lesser) stating in part:
Hi Janene / Dr Casolin - Can you please provide an update.
(c) Dr Casolin responded at 3.19 pm, stating:
I believe that this case is awaiting an FFD and I was under the impression that the business had sent the referral to TSS.
(d) Ms Browning then responded at 3.36 pm by email sent to Dr Casolin and Ms Zidan, and copied to Mr Lesser, Ms Vlahos, and Ms Elizabeth Ball (the latter person used an "@transport.nsw.gov.au" address but it is otherwise unclear who she is). The email stated:
I have spoken with TSS about the FFD request, and agree with their view that this should be treated as a failure to declare on behalf of the employee during the recruitment process, rather than a requirement for a new FFD while the employee is still in the probation period. We have been provided with conflicting information from the employee regarding this matter.
A request was send [sic] to Sonic to ask the provider is [sic] declarations were made by Ms Annovazzi during the medical.
Sonic have identified that you have a complete copy of the initial medical assessment. Can you please confirm the following:
• Did she indicate ADHD
• Did she indicate Asperger Syndrome
• Did she indicate the use of Dexamphetamine
Soula Vlahos has also asked for Ms Annovazzi to provide a medical note from her treating physician regarding her use of Dexamphetamine and the conditions of ADHD and Asperger Syndrome. She was advised this information could be addressed to yourself.
This information will assist us in making the relevant determination in relation to the full disclosure at medical as well as the appropriate management of the employee.
57 As we have noted, Ms Browning was not called to give evidence. Nor was Ms Vlahos.
58 It is important to note that in her email, Ms Browning states that "[w]e have been provided with conflicting information from the employee regarding this matter". None of the evidence adduced by Sydney Trains explained this statement. Ms Annovazzi had given evidence, which was accepted, that she had disclosed her conditions and that she had been prescribed dexamphetamine to Dr Kumar at her medical assessment during the recruitment process (as referred to at [24] to [27] above). The text message exchange quoted at [35] shows that she told Mr Bellia that she had informed Dr Kumar that she had ADHD in the medical assessment. This evidence was accepted and Mr Bellia's evidence that she said otherwise was rejected. It was also not in dispute that no one else asked Ms Annovazzi about these matters, including what she had disclosed, to whom, and when.
59 Ms Samassa deposed in her Affidavit that:
11. Shortly after I commenced employment, Janene Browning, Lead Business Partner, Human Resources spoke to me about a Trainee Train Driver who was still within probation, and it had been discovered that she had been dishonest in her pre-employment medical information disclosure.
12. Ms Browning informed me that when the issue was discovered, and she was sent for a fit for duty (FFD) assessment, Transport Shared Services stated that the matter should be dealt with as failure to declare during probation. Ms Browning agreed.
13. Ms Browning sought my approval for termination. The reason that my approval was sought was because I had the appropriate delegation to make that decision. In making my decision, I relied upon the information that was provided to me by Ms Browning. I recall that Ms Browning provided me with the Application, Pre-Employment Health Assessment and a Briefing Note prepared by Daniel Bellia dated 9 November 2017. A copy of that Briefing Note is exhibited at "TS-4".
60 Ms Samassa further deposed that:
17. In the Termination Letter, I stated "you failed to disclose this information prior to being employed and provided incorrect information on both your employment application form and during your medical assessments". I made this statement relying on the information provided by Ms Browning.
61 Ms Samassa further deposed in her Affidavit that:
18. I did not make the termination decision lightly. The reason I did not recommend that the Applicant be sent off of [sic] a FFD was because honesty is so important for all roles, but particularly in safety critical roles…
62 Although this last part of Ms Samassa's evidence suggested that it was open to her to decide whether Ms Annovazzi could be sent for an FFD Assessment, in her evidence before the primary judge, she accepted that this determination had already been made and she did not turn her mind to that question at all. Her evidence in this regard was as follows:
Well, in the case of the applicant, you didn't consider, did you, whether the applicant should be assessed again, did you?---No.
You didn't make - who made that decision?---So the - by the time the decision came to me, it was - it was decided that it was a - it was a conduct issue. And the decision with me was whether the conduct issue of not disclosing correct information on the forms was something that we would terminate someone for.
Yes. I'm just asking, in your affidavit - - -?---Yes.
- - - you say that Transport Shared Services stated the matter should be dealt with as a failure to declare during probation?---Yes. That's correct.
So they made that decision; is that right? Not you?---They made the decision. Correct.
And who's Transport Shared Services?---That would be - they - they managed - basically, the Sonic and that whole relationship around medical - the medical assessments is Transport Shared Services. So Sydney Trains would be a part of Transport. So Transport - so the - our worker's compensation, for instance, is under that shared services. A lot of our functions with them - Sydney Trains - come under Transport Shared Services.
All right. So I just want to be clear, the decision that this applicant, Ms Annovazzi, would not be assessed for fitness, that was done by them, not by you, or did you have to - what you were asked to approve is ..... what you say in your affidavit was with a non-disclosure was dishonest or not. Is that your role?---Yes. Correct. Was the non-disclosure - so when it came to me, they had said it was a conduct issue because she hadn't disclosed it on the medical form and they were the ones - Transport Shared Services are the ones who deal with Sonic.
Yes?---And, so, they're, kind of, the overarching - the - you could say. And then the decision was this applicant - or now employee - had not been honest on the medical form.
All right. And had they not decided to refer it to you, is it your understanding - and, of course, then I can object to it - - -?---Yes.
- - - but she could have just been referred to for assessment, for example?---Yes.
Yes. But that wasn't done in this particular case because somebody made a decision that that ought not to be done?---Correct.
And do you know who made that decision?---No.
Thank you?---But I - I mean, I could have made the - I could have - yes. No.
63 Ms Samassa was also challenged by Ms Annovazzi in cross-examination as to whether, in fact, a determination had already been made by Sydney Trains that Ms Annovazzi had been dishonest or provided incorrect information before Ms Samassa came to make any final decision as to termination. The relevant exchange was as follows:
Would you mind reading out paragraph 11, please?--- Shortly after I commenced employment, Jan[e]ne Browning, the business partner in human resources spoke to me about a trainee train driver who was still within probation and it had been discovered that she had been dishonest in a pre-employment medical information disclosure.
And the phrasing of that paragraph indicates that the allegations of dishonesty were being treated as objective fact; correct?---I don't - - -
Or at least, that's how you understood it?---Do you want to rephrase the question for me? That there was no subjective interpretation required.
MR SECK: I object .....
MS ANNOVAZZI: Sorry, I will rephrase.
The phrasing of this paragraph indicates that a determination had already been made as to whether or not dishonesty had happened; do you agree?---Yes.
So a determination had been made?---That - that you hadn't answered the information correctly? Yes?---Yes.
So a determination had been made by Jan[e]ne Browning that that was the state of affairs?---With the information she had, yes
64 Ms Samassa also gave evidence, in response to questions asked by the primary judge, that even in the case of employees engaged during a probationary period, an investigation would be conducted and there would be a discussion with the relevant employee. She gave the following evidence:
So what are the procedures? What were the procedures, to your knowledge, at that time, that one would follow when dealing with this sort of problem with an employee who is on probation?---Well, firstly, we would investigate, obviously, what had happened.
Right?---And investigate - we wouldn't just make a decision. We would investigate the evidence and then make a decision and have a discussion with the employee around the reasons why we were terminating the employment.
65 Ms Samassa gave evidence that in cases involving dishonesty including where the employee was on probation, Sydney Trains would talk to the relevant employee but she accepted that this did not occur in Ms Annovazzi's case. This evidence was as follows:
Well, you discussed it after the decision - is your process that you discuss it before a decision is made or after a decision is made?---Well - well, once the decision is made.
And what is it - so, in this case, there's an allegation of dishonesty - - -?---Yes.
- - - and your procedures, you say, do not involve, at least, making an inquiry of the person who's ..... of being dishonest. Is that the procedure at State Rail - at Sydney Rail, is it? Sydney Trains?---Sydney Trains. Well, if someone is under probation and we have evidence then we would make a decision based on that evidence.
Without talking to the person who's said to have been dishonest. Is that the procedure? I just want to know - - -?---Yes.
- - - if that's your standard procedure?---Well, no, we would talk to the person. So my understanding - - -
All right. All right. So an allegation is of dishonesty and I'm just simply asking- - -?---Yes.
- - - before you made the decision to terminate on the grounds of dishonesty, did you have any discussion with - - -?---No, I did - - -
- - - Ms Annovazzi?--- - - - not. No.
66 Ms Samassa's evidence in this regard was unclear but she appeared to accept that in cases of alleged dishonesty it made no difference whether the employee was on probation or not, and that Sydney Trains would first conduct an investigation and also make enquiries with or speak to the relevant employee before proceeding to terminate that person's employment. Ms Samassa was not re-examined on this or any other topic.
67 In further evidence given by Ms Samassa in relation to the same topic, she said:
Okay. So what is the process if a person is not on probation?---Well, if a person is not on probation, you would follow the process of - the same process. In this case, we would capture it, refer it to - I've forgotten what they're called. The investigative unit who would investigate it. So I couldn't investigate it.
So a person not on probation warrants greater scrutiny of their case?---Sorry, I'm not sure what you're asking.
Well, there's a unit that would investigate it if a person - - -?---Not on probation.
And that person would, therefore, receive greater scrutiny on their case?---Yes.
68 And, later:
So you agree that either a probationary or non-probationary employee was to be afforded due process?---I agree that we had to follow the - whatever our processes are, whatever that might be. Yes.
But the principles of due process or natural justice?---Yes.
For both probationary and non-probationary employees?---Yes.
69 Ms Samassa also gave evidence as to aspects of the functions and roles of TSS, as follows:
What is Transport Shared Services?---They're services that work across all of transport.
Doing what?---Worker's compensation, pay, various other services.
So certain universal functions required by different agencies within the transport cluster have these functions dealt with by a third party?---Not a third party.
Not a third - a specific group rather than duplicating - - -?---Correct.
- - - throughout each service?---Yes.
And Transport Shared Services provides these functions for Sydney Trains?---Yes.
70 Ms Samassa gave evidence that, although Ms Annovazzi had been referred to TSS for an FFD assessment, there was a "change of course" and that this was brought about by a decision made by TSS. Her evidence in this regard was as follows:
MS ANNOVAZZI: Ms Samassa, you said you believed the decision to change course was made when I was sent. By that you're referring to the briefing note with a request for an FFD dated 9 November 2017?---Sorry, is that a - sorry, what was the question?
Confirming when you believe the change of course from an FFD became an integrity - failure to disclose matter?---My understanding was I don't know the date, but, yes, when you were sent - when you were sent for an FFD.
So that would be relevant to Thursday, 9 November 2017, the briefing note?---No, it can - this is government. It can take a long time for something to happen.
How long?---It could - they could have come back, I don't know, December/January, they could have come back and said - I - I don't know.
So we don't know when this decision was made?---No.
We don't know who made it or why?---No. I do know who made it. Transport Shared Services made it. I know why they made it because of the non-disclosure of being on certain drugs and I know it was made following the being sent for a FFD. That's what I know.
71 Ms Samassa also accepted in cross-examination that she did not speak to or verify any information with Ms Annovazzi prior to issuing the Termination Letter and relied upon the investigation conducted by Ms Browning. Her evidence in this regard was as follows:
And you did not verify any of this information with me prior to making the decision?---No.
And you didn't verify any of this information with Mr Bellia before you made the decision?---No, that - I told you that wasn't - that was Jan[e]ne Browning had done the - just investigation.
…
MS ANNOVAZZI: Why did you rely on Jan[e]ne's investigation rather than conducting your own?---Because I was responsible for about 2800 employees, and what we have is we have HR managers who sit underneath us who are responsible for the different directorates. I cannot investigate every situation we have. That's what their role is. My role is to take the evidence that have been put before me, the investigation that Jan[e]ne did, and then make a decision in consultation with Jan[e]ne the questions that you answered "no" to.
…
So the reason you didn't verify this information yourself was because your role did not leave you sufficient time for a proper investigation?---No, that's not correct. That - the reason I didn't investigate it myself is because that was Jan[e]ne's role to investigate it. She was responsible for providing the information to me, and then it was my responsibility to, in consultation with her - to make the decision.
…
Okay. So accepting that conducting the investigation was Ms Brown[ing]'s job, why didn't you verify - why didn't you put these allegations to me prior to making the decision and give me a chance to respond to them?---Can you just repeat the question?
Whose job was it to give me a chance to respond to these allegations before the decision was made: you or Jan[e]ne?---Jan[e]ne.
Did you verify she had done this?---I don't recall.
72 As we have noted above, Ms Samassa was not re-examined.