See also D & R Commercial Pty Ltd v Flood [2002] NSWIRComm 88 and Wilson v Department of Education and Training [2000] NSWIRComm 20.
191 As mentioned in the above passage, the Commission's statutory basis for considering procedural issues in an unfair dismissal case is found in s88 of the Act:
88 In determining the applicant's claim, the Commission may, if appropriate take into account:
a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and
b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and
c) whether a warning of unsatisfactory performance was given before the dismissal, and
d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and
e) whether or not the applicant requested reinstatement or re-employment with the employer, and
f) such other matters as the Commission considers relevant.
192 One can readily see that s88(f) does not limit the Commission to the matters referred to in the preceding subsections. The Commission is able to take into account such other matters which it considers relevant in determining a particular case.
193 A recent Full Bench decision of this Commission stressed the importance of ensuring that an employee is afforded procedural fairness in the process leading up to a decision to dismiss an employee following allegations of serious misconduct. In Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 the Full Bench said at para 118:
This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious.
Was the applicant victimised?
194 In my opinion, the respondent embarked on a deliberate, disgraceful and relentless campaign to force the applicant's resignation after she had written to the respondent on 31 August 2004 advising that she had contacted the Department of Industrial Relations to complain about late payment of wages. Her resignation was also sought as a means of seeking the discontinuance of her victimisation claim against the respondent.
195 At this juncture I should say that I reject Mr Moir's submission that the 31 August letter was deliberately misleading and exaggerated with the intention of provoking the partners and was the beginning of a "campaign" against the respondent. On any fair reading of the letter, it was nothing of the sort. It was no more than a legitimate plea to be paid on time in accordance with her legal rights. Moreover, to suggest that a female legal secretary of 31 years of age was seeking to 'set up' three experienced male partners of a law firm is patently ludicrous and absurd.
196 The employer acknowledged that her pay cheque was late on at least three occasions in 2004. Her uncontested evidence was that on many occasions she had reminded the employer to have her pay made up. Two things need to be said about this. The applicant had cause for legitimate complaint when her pay was not paid on time. Secondly, it was not up to the applicant to remind the respondent to pay her at the appropriate time. Amazingly, after the written complaint, the very next pay was again late. It was obvious to me that Mr Jamnadas took no steps to understand the difficulties caused by the late payment of her wages.
197 Mr Jamnadas gave evidence that the applicant was paid on a Thursday because she would often take a sick day on Fridays. This evidence was false as the time and wages records revealed no Friday sick leave absence between January and June 2004. Such evidence was little more than a crude and unsubstantiated attempt to discredit the applicant.
198 It seems from the 31 August letter, the employment relationship so soured that the respondent was intent on forcing her out of employment. The various examples of this detrimental conduct may be shortly expressed as follows.
199 The applicant's hours of work were changed in early September 2004. There was direct conflict of evidence as to whether there was a meeting on 19 August to discuss the change of hours. The applicant insisted there was no meeting at all on 19 August. Mr Jamnadas and Mr Narsey and Mrs Gole all said there was - although it was conceded by them that no specifics as to who would work what hours was determined. I note and accept that Mrs Gole said that the recollection of whether there was a meeting or not, may have been affected or influenced by typing the affidavits of the respondent which said there had been. I would observe that it is curious that no written record or notes of such a meeting was tendered in the evidence.
200 Moreover, even on the respondent's own evidence the memo changing the hours was issued on 3 September before commencement on 6 September (one working day's notice). This was in breach of the Award requirement of seven days' notice. I note further that the applicant did not receive the memo until 7 September. Notwithstanding the argument as to whether there was a meeting on 19 August - about which I am unclear - Mr Jamnadas accepted that the final decision about who would work the later hours (namely the applicant) was subsequent to her letter of complaint. Mr Jamnadas also confirmed that the reasons why the applicant was chosen to work the later shift were not explained to her.
201 Mr Jamnadas contacted the applicant's parents-in-law on 9 September 2004 and discussed with her father-in-law his victim's compensation case. However, this occurred many months after Mr Prasad's case had been concluded. The phone call was nine days after the applicant's letter of complaint. I do not accept that this was a mere coincidence, nor do I accept Mr Jamnadas' version of the conversation. I prefer to accept Mr Prasad's evidence that it was Mr Jamnadas who initiated discussion about the applicant's performance at work. I believe that Mr Jamnadas' real purpose for the phone call was to inquire of the applicant's in-laws about her performance at work. This was highly improper and constituted another aspect of the victimisation of the applicant.
202 The very next day, the applicant received a letter raising concerns about her performance relating to her honesty in observing her hours of work, using the firm's resources for personal use and not accepting instructions. I do not accept that any of these allegations were valid, let alone worthy of a written warning (although it was not couched in such terms). The letter did not invite any comment on these matters from the applicant, nor was any meeting arranged to discuss the issues. I note that both Mr Jamnadas and Mr Nand agreed that this letter would not have been written, had it not been for the applicant's letter of complaint of 31 August 2004.
203 I regard the reference to domestic violence in 2001 as grossly improper and an attempt to further humiliate, victimise and cause hurt to the applicant. It was utterly unnecessary, as was the "gentle reminder" that the employer would exercise its rights in the employment relationship.
204 On 15 October, the partners of the firm decided to make a settlement offer to the applicant which included her resignation, the payment of outstanding entitlements and withdrawal of the victimisation claim. On one view of it, the offer was no offer at all. It was designed to get the respondent "off the hook" for no cost. The applicant was approached directly about this offer and without warning. She was not invited to have a witness present. This offer was made despite the respondent having correspondence from the applicant's solicitors, Quinn's Solicitors. In my opinion, this approach was little more than a crude attempt to force the applicant's hand and represents a further example of victimisation. It is extraordinary that three partners in the law firm, with the knowledge that the applicant was represented by solicitors, should directly approach her to settle the matter. I accept the applicant felt "ambushed" at this meeting.
205 Two days later, Mr Jamnadas had a meeting with the applicant about her family's outstanding conveyancing account. I am satisfied Mr Jamnadas was intimidatory and was intending to use this issue as a lever in the respondent's attempts to force the applicant's resignation. There was then a heated discussion with Mr Kumar on the telephone. I accept Mr Jamnadas was angry with the call and referred to them as "shameless people". The applicant was roundly criticised by Mr Jamnadas for this phone call. To suggest that this meeting, and the meeting the previous working day about resignation, were unrelated, is both offensive and implausible. It was all part of the ongoing pressure being applied to the applicant.
206 When the applicant went off work sick with stress and anxiety, Mr Jamnadas did not believe she was sick and that she was feigning headaches. It was decided to send the applicant for an independent medical assessment. There was every reason to believe the applicant was extremely distressed and anxious after what she had experienced. Mr Jamnadas' accusations only exacerbated her condition and constituted further victimisation.
207 After returning from sick leave, the applicant found the office locks had been changed. The applicant was not told, nor given any new keys. It was said that the lock was broken and, although she previously had keys, she didn't need the keys in any event because of her hours of work. The applicant had to suffer the indignity of knocking on the door to simply enter the workplace as the only person without a key. Even if the lock had broken (which I doubt), not telling her or providing her with new keys was a convenient way of further humiliating the applicant and isolating her in the office.
208 On 19 October 2004 the applicant received a letter headed "very poor work performance". It then listed three examples of mistakes with files, which included her not italicising two words in a letter. On any view of it, the clerical mistakes referred to were so inconsequential as to be almost laughable. She was accused of feigning headaches after having been disciplined the day before and arguing with her supervisors. The letter referred to an incident over twelve months earlier when the applicant called Mr Nand to ask about file. I ask rhetorically why would Mr Nand have referred to a minor matter which occurred months before?
209 Mr Nand's evidence on this matter was evasive and self-serving. He claimed the matters would have been raised with the applicant verbally had it not been for the applicant's 31 August complaint letter. However, he had not done so for 15 months. This letter was designed for no other reason than to further force the applicant's resignation.
210 At a number of points in Mr Jamnadas' evidence, he said that the applicant had every right to make a complaint in order for the respondent to address it. This evidence was completely disingenuous. Not only did the respondent not address her complaint, or respond to her solicitor's letter of 10 September, but the very next week after her 31 August complaint, her pay was late again.
211 I think it must be said that the applicant's complaint was not only genuine, but was really a matter that the respondent could have easily and quickly attended to, without much aggravation for anyone. Unfortunately, this innocent letter prompted an almost unbelievable avalanche of conduct which was a gross overreaction by the respondent.
212 After returning from sick leave in November, the applicant was moved and had restricted access to the computer system. It was said that this was because sensitive privileged material concerning this litigation was conveyed or stored in the computer. In my view, it would have been relatively easy for alternative communications between the respondent and its legal representatives to have been arranged. This action was designed to further embarrass, humiliate and cause hurt to the applicant.
213 The applicant was asked again to extend her hours of work on 2 March 2005. Strangely, this meeting was called ostensibly after Mrs Gole had complained to Mr Jamnadas about the receipt issue. Why, I ask, would the respondent choose at this time to renegotiate the hours issue, knowing full well that the very basis of the victimisation claim in the Commission was about the change of hours?
214 I accept the applicant's evidence that Mr Jamnadas had initially proposed hours from 8.00am to 6.00pm. The applicant offered two options - to stay back when required or work alternate weeks with Mrs Gole. Accepting that the reasons for the change of hours were legitimate, it is plain from Mr Jamnadas' evidence that he was not prepared to accept any compromise. It seems to me that having already known the applicant's difficulties with changing her hours, Mr Jamnadas knew perfectly well what the applicant's response would be. He probably hoped that her response would be the same, so as to form another basis for forcing the applicant's resignation or being grounds for her dismissal.
215 This meeting was five days before the applicant was to give evidence in the Commission in her victimisation case. She was later dismissed, in part for her refusal to cooperate to work the hours proposed by the respondent. In these circumstances, it might well be said that the respondent's actions constituted an interference in the due processes of the Commission. It is a matter I regard with considerable concern.
216 Not happy with the applicant's responses or forcing her resignation, the respondent in my view, then sought to justify forcing the applicant's hand to justify her dismissal. The respondent constructed an alleged breakdown in the relationship between the applicant and Mrs Gole. It is plain that there was tension in the office - most notably between the applicant and management, which no doubt would have affected Mrs Gole as well. In light of the evidence of Mrs Gole and the applicant, I do not accept that the souring of their relationship was of such a degree and intensity as to justify the applicant's dismissal.
217 Moreover, Mr Jamnadas said he relied exclusively on what Mrs Gole had told him about the applicant's behaviour towards her. Mr Jamnadas said he would have heard if Mrs Gole had raised her voice or yelled at the applicant, because of the office size or from other persons in the office. Ironically, he gave no evidence, nor does it appear credible that the applicant was yelling or raising her voice in the office. In my opinion, these exchanges did not happen or, if they did, they were not of any great significance. It could not possibly be characterised, (as Mr Jamnadas did), as being rudeness, harassment or abuse.
218 Two days later a carefully crafted three-page letter of termination was handed to the applicant. In my view, the reasons for the applicant's dismissal were neither justified, nor reasonable. They have no basis in fact and her resultant dismissal was the ultimate victimisation of the applicant.
219 To further demonstrate the victimisation of the applicant, one can refer to the respondent's different treatment of Mrs Gole when compared to the applicant. For example: