WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES KRISHNA THAVARASAN

APPELLANT

-v-

The Water Corporation

RESPONDENT

CORAM PUBLIC SERVICE APPEAL BOARD

 Commissioner S J Kenner - CHAIRMAN

 MS VINKA ZUPANOVICH- BOARD MEMBER

 MS JO DORAHY - BOARD MEMBER

HEARD Tuesday, 22 November 2005, Monday, 19 December 2005, Tuesday, 20 December 2005

DELIVERED FRIDAY, 31 MARCH 2006

FILE NO. PSAB 11 OF 2005

CITATION NO. 2006 WAIRC 04089

Catchwords Industrial law - Termination of employment - Appeal against decision of respondent to terminate appellant's employment - Acceptance of notice of appeal out of time - Whether sufficient evidence before the Appeal Board to establish the misconduct complained of - Principles applied - Appeal Board not satisfied that on balance appellant engaged in all misconduct alleged - Evidence largely of hearsay nature - Appellants conduct not made out to warrant dismissal on evidence -Appeal Board satisfied that appeal made out by appellant - Industrial Relations Act 1979 (WA) s 23A; s 26(1); s 29(1)(b)(i); s 80I(1)(b); s 80L; Industrial Relations Commission Regulations 2005 (WA) reg 107(2)

Result Order issued

Representation 

Appellant Mr G Stubbs of counsel

Respondent Mr S Rooke

Reasons for Decision

1 THE CHAIRMAN: These are the joint reasons of myself and Ms Zupanovich. The appellant appeals against the decision of the respondent to terminate her employment which was effective 30 June 2005 pursuant to s 80I(1) of the Industrial Relations At 1979 (“the Act”). The notice of appeal challenges the respondent's decision to dismiss the appellant on a number of grounds as particularised.

2  The notice of appeal filed on 31 August 2005 was filed outside of the 21 day time limit prescribed by reg 107 (2) of the Industrial Relations Commission Regulations 2005.  At the outset of the hearing of the appeal before the Public Service Appeal Board (“the Appeal Board”) the respondent opposed the appeal being out of time.  After having heard submissions from counsel for the appellant Mr Stubbs and Mr Rooke on behalf of the respondent, the Appeal Board decided to extend the time for the filing of the appeal, having been satisfied that the reasons advanced by the appellant justified the lateness in filing.

3 The appeal was heard over three days in late November and December 2005. The parties’ closing submissions were submitted in writing with the appellant’s submissions in reply being filed on 17 January 2006.

Background

4 The appellant had been employed by the respondent from 15 January 2000.  During the course of her employment, the appellant undertook a number of positions with the respondent. Materially however, for present purposes, the appellant was appointed as an acting Management Accountant at the respondent's Engineering and Construction Branch, located at both Hamilton Hill and Shenton Park, in the Perth metropolitan area, between February and the end of June 2005.  The appellant is a qualified accountant.  Up until about February 2005, the appellant was based at the respondent's corporate real estate branch.  In her acting management position, the appellant was responsible for about seven subordinate employees who reported to her at Hamilton Hill, and about four subordinate employees at Shenton Park.  The appellant had no prior managerial experience, having been responsible for only one other employee in her former position.  The appellant reported to the Manager of the Engineering and Construction Branch, Mr Becu.  Whilst Mr Becu was based at the Shenton Park location, the appellant spent most of her working time at the Hamilton Hill office.

5 It was common ground that prior to taking up the acting management appointment, the appellant had a good employment record with the respondent and there were no complaints or concerns in relation to the appellant's work performance.  Additionally it seems, at least up until about early June 2005, the respondent appeared to consider the appellant as performing well in the acting management position.

6 Events leading to the present proceedings started with a meeting that took place according to the appellant, on a Friday afternoon, which she thought was 2 June 2005. The appellant testified that she was having a discussion with one of the respondent's engineers and Mr Becu approached her and requested her attendance at a meeting at head office.  The appellant asked Mr Becu what the meeting was about and she was told “her work”.  The appellant was also told a Ms Scott, a human resources officer would also be present.  At about 3.30pm the appellant attended the meeting at head office.  She testified it was a small meeting room on the third floor of the respondent's head office building in Leederville.

7 The appellant said she entered the meeting room and Mr Becu and Ms Scott were present.  She testified that as soon as she saw Mr Becu he started shouting at her that she was a liar and he was banging his fist on the table.  This occurred before she even sat down.  The appellant asked what the matter was about and Mr Becu told her that “she had lied to him about the appointment of a fixed term contract employee”.  The employee concerned, Hiran, had been appointed as a result of an internal need and the appellant said she suggested him as she had met him at university and considered he would be suitable for a clerical position.  There seemed to be an issue raised by Mr Becu that the appellant had allegedly misled him about Hiran's possession of “SAP” computer system experience.  The appellant testified she followed the respondent's employment protocols to engage Hiran on a one year fixed term contract, and sought assistance from the Human Resources Branch as a part of this process.  Additionally, the appointment of Hiran was authorised by Mr Becu.

8 Also at the meeting, the appellant said Mr Becu accused her of not keeping appropriate log book entries for the respondent’s motor vehicle which she used to travel to and from home.  The appellant also referred on some occasions, to dropping her niece to and from school on the way to work.  She had told another manager of this who said it was alright to do so.

9 According to the appellant, Mr Becu said that these allegations were serious and her employment was at risk.  The appellant requested the allegations to be put in writing and Mr Becu said a further meeting would take place at head office the following Tuesday morning.

10 The appellant testified that she was very upset as a result of this meeting.  After it ended, she went into the head office car park.  She testified that she rang another employee, Dilu, who also reported to her, and who lived at a house owned by her sister, to not bring a laptop computer home as previously arranged as she was not in any state to work over the weekend.

11 The following Tuesday morning a further meeting took place in the same room at the head office, as arranged.  Mr Becu told the appellant that there were further allegations against her.  She requested that they be put in writing.  According to the appellant, at this meeting Mr Becu put two options to her.  The first option was for her to go to the respondent's head office to perform the construction branch work.  The second option was for her to return to her substantive position as an accountant at Hamilton Hill.  The appellant requested some time off to consider her position.  She testified that she then went home.  The respondent granted the appellant some time off in response to this request.

12 On or about 13 June 2005 the appellant received a letter from the respondent setting out some 13 allegations against her, including many of which were discussed at the first and second meetings with Mr Becu.  This letter was exhibit A1.  Many of these allegations involved Hiran and another employee in the appellant’s work group, Dilu.  Additionally, allegation 13 in the letter contained reference to an assertion that the appellant had informed another employee of the respondent, a Mr Roebuck that Mr Becu had been stealing from the respondent.

13 After receiving the letter of 13 June, the appellant obtained legal advice.  A letter of response to the allegations prepared by Dwyer Durack was dated 21 June 2005 and was sent to Mr Becu.  A copy of this letter was exhibit A2.  This letter rejected the allegations made by the respondent against the appellant and foreshadowed that if the respondent acted as it said, by terminating the appellant's employment, then proceedings would be commenced to challenge that decision.  Not insignificantly also, the penultimate paragraph of the letter of 21 June 2005 from Dwyer Durack, refers to the stress and anxiety caused by the recent events, and the appellant's view that it would be difficult for her to return to the Construction Branch.  The letter on behalf of the appellant indicated her acceptance of the earlier offer, for the appellant to return to her substantive position.

14 The appellant then proceeded on a period of sick leave.  She had no contact from Mr Becu.  The next she heard was a letter from the respondent dated 30 June 2005.  This letter referred to her responses to the allegations contained in Dwyer Durack's letter of 21 June and went on to provide:

“The Corporation has determined that you have been unable to satisfy us that either these allegations are not true or that there are mitigating circumstances that warrant consideration, and your services with the Water Corporation will be terminated effective from 1 July 2005, with 3 weeks pay in lieu of notice.”

15 Prior to receiving this letter, the appellant testified that she had both Hiran and Dilu at her home and they read the letter containing the allegations against her from the respondent.  According to the appellant, both Hiran and Dilu said that the allegations which were allegedly made by them against the appellant were “rubbish”.  However, neither Hiran nor Dilu were called to give evidence by the appellant or the respondent and this evidence, as was much that followed, was hearsay.  We will comment on this further below.

16 Following her dismissal, the appellant sought and obtained a contract position with a mining company which was, as at the time of the hearing, due to run to the end of November 2005.

17 An issue between the parties arising on the submissions was the nature of an appeal to the Appeal Board.  We turn to that matter now.

Nature of Appeal

18 On behalf of the respondent Mr Rooke, in his written submissions, said that the relevant test to apply is the same as that applicable to an unfair dismissal claim before the Commission pursuant to s 29(1)(b)(i) Act and he referred to Miles v Federated Miscellaneous Workers Union of Australia, Industrial Union of Workers, Western Australian Branch (1995) 65 WAIG 385 in that regard.  The respondent also referred to the authorities in relation to acts of misconduct and the evidentiary onus being satisfied if the employer conducted a proper investigation and had an honest belief, based upon reasonable grounds, that the misconduct occurred: Bi-Lo Pty Ltd v Hooper (1992) 52 IR 224; Shire of Esperance v Mouritz; Patrick Joseph Whelan v City of Joondalup (2004) 84 WAIG 2975.

19 On the other hand, the appellant submitted that the nature of an appeal pursuant to s 80I(1) of the Act is different in nature to a claim of unfair dismissal made pursuant to s 29(1)(b)(i) and the powers available on an appeal of this kind, are also different to those available to the Commission in an unfair dismissal claim.  Mr Stubbs referred to a decision of the Appeal Board in Raxworthy v Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266 to the effect that an Appeal Board is able to substitute its view for that of the employer and consider on the evidence, whether the conduct complained of actually occurred, so as to ground the employer's decision to dismiss the employee.

20 In our view, with due respect, we consider the approach in Raxworthy to be the correct approach in relation to an appeal to the Appeal Board.  That is, as distinct from an unfair dismissal claim before the Commission, the nature of an appeal to the Appeal Board is an appeal, in the nature of a hearing de novo, based upon the evidence before it.  The Appeal Board has far greater scope to substitute its view for that of the employer, in light of the evidence adduced in the proceedings.  What this means in the context of the present case, concerning allegations of misconduct, is that the misconduct allegations must be established as a matter of fact, as the basis for the employer's decision to dismiss.  It is not sufficient in our view, for the Appeal Board to only be satisfied that the employer had an honest and genuine belief, based upon reasonable grounds that the misconduct occurred. More than a sense of unease by the employer is required.  Whilst this does not alter the overall onus on an appellant to persuade the Appeal Board that it should interfere with and “adjust” the employer's decision in a particular case, there must be sufficient evidence before the Appeal Board to establish the misconduct complained of.

21 We also observe that by s 80L of the Act, s 26(1) as it applies to the exercise of jurisdiction by the Commission, also applies to the exercise of jurisdiction by the Appeal Board.  Whilst s 26(1)(b) provides that the Commission shall not be bound by the rules of evidence, it has never been the case that the relevant principles of the rules of evidence are to be completely disregarded and the Commission proceed to deal with a matter in the absence of any cogent evidence.  There is a difference between applying the rules of evidence, generally, to ensure parties receive a fair hearing, and being bound by the strictures of such rules.  This is particularly so in arbitration proceedings, for example where the Commission is dealing with a claim for the making of a new award or a variation to an award, where the Commission may be informed in a variety of ways, not strictly in accordance with the rules of evidence.  This enables the Commission to deal with matters flexibly, whilst at the same time not abrogating from the basic principle that parties are entitled to be heard fully and to be afforded natural justice. However, in cases in which misconduct is alleged, the requirement for cogent evidence is heightened: Baron v George Western Foods Ltd (1984) 64 WAIG 590 per Fielding C at 590.

22 In the present proceedings before the Appeal Board, many of the central allegations by the respondent against the appellant involved the leading of hearsay evidence.  In particular, were the allegations alleged to have involved Hiran and Dilu.  Many of those allegations were central to the case against the appellant.  We have not heard from Hiran and Dilu, and the evidence about their involvement in matters alleged against the appellant, which are strenuously denied by the appellant in her testimony, was second hand.  Whilst we acknowledge the submissions of Mr Rooke as to the reluctance of either Hiran or Dilu to give evidence, hearsay evidence in these circumstances should be treated with the utmost caution: Baron.  This poses difficulties for the respondent in that the Appeal Board must make findings of fact in relation to the allegations of misconduct, based upon the evidence before it.

23 In light of those observations, we now turn to the specific allegations against the appellant.

24 Whilst there were a number of allegations made against the appellant as set out in the correspondence, it is necessary for the Appeal Board to deal with each of them as taken individually or collectively, as it is those specific allegations against the appellant which led to her dismissal.

Allegation One

25 By this allegation, the respondent complained that the appellant had abused her supervisory position by instructing staff to undertake personal errands during working time.  A number of examples were set out in exhibit A1, including instructing Dilu to pick up the appellant's family from the airport; instructing Dilu to collect relatives from school; and on at least one occasion, requiring another employee to accompany the appellant to pick up and drop off the appellant’s sister at university.

 26   As to the latter allegation, Ms Anderson is employed by the respondent in the administration area.  She gave evidence that she was interviewed by Mr Becu and Ms Scott on or about 8 June 2005 and they asked her some questions about the work environment.  She referred to an occasion where the appellant informed her that she had to get a medical book to her sister in Applecross and that she and the appellant left early to travel from Hamilton Hill to Shenton Park for an audit meeting, in order to do this on the way.  Ms Anderson was sure that the book which they collected on the way, she thought from a medical building of sorts, was a medical book and not an audit book.  Once having done this, she then drove with the appellant to Applecross to the appellant's home, where the appellant's sister then travelled with them and was dropped off at the University of Western Australia on the way to the meeting at Shenton Park.  Both the appellant and Ms Anderson were to attend this meeting.  When shown an audit book of the appellant's, Ms Anderson said this was not the book that was collected on that day and she had not seen that particular book prior.  Ms Anderson did not think to report this matter to Mr Becu prior to her being interviewed in relation to various allegations against the appellant.

27 Both the appellant and her sister gave evidence about this allegation.  The appellant confirmed the content of exhibit A2, the reply from Dwyer Durack.  She testified that on the day in question she was required to attend Shenton Park to provide an opinion on an audit being undertaken.  She confirmed that on the way to Shenton Park, without major deviation of their route, she needed to pick up a particular audit book from home which she did.  When she arrived at home her sister was going to UWA and requested a lift, which was on the way.  The appellant said there was no prior knowledge of this and she simply dropped her sister off at university on the way to Shenton Park which did not involve any deviation from their normal route.  When it was put to her in cross-examination, the appellant could not recollect collecting any medical book from a medical building as referred to by Ms Anderson. 

28 The appellant's sister, Krishna Ramani, who also knows Dilu and Hiran as family friends, and who was also Dilu's landlord, referred to this event.  She testified that she could recall one occasion where the appellant dropped her off at university on her way to a meeting.  She recalled that Ms Anderson was with the appellant at the time.  She said this was not prearranged and that the appellant did not have a medical book for her as far as she could recollect. 

29 In relation to the airport issue, the appellant denied any such instruction was given.  It seemed on the evidence that Dilu was intending to go to the airport to pick up her landlord, who is the appellant’s sister.  However, from other evidence before the Appeal Board, it would appear that Dilu did not in fact go to the airport as alleged, as other events overtook the situation. The appellant said that in hindsight she probably should have prevented any such intention from having been effected, but also said it was not uncommon that from time to time, employees of the respondent did undertake some personal business during work time.

30 Both Ms Rossi and Ms Stuart, who gave evidence for the respondent, referred to conversations they in turn had had with Dilu where it was allegedly said that she had been requested to go to the airport but ultimately she did not.  As Dilu was not called, this evidence is of questionable weight.  We also note that in Mr Becu's evidence, he testified that both Ms Rossi and Ms Stuart had referred to unfair treatment of Hiran and Dilu by the appellant and both told him that Dilu actually went to the airport with the appellant to collect relatives.  This was not consistent with either Ms Rossi's or Ms Stuart's testimony and appears to be incorrect.

31 As to the allegation that the appellant instructed Dilu to collect relatives from school on occasions, this was denied by the appellant.  She said that she does not have children but her sister does.  On occasions her sister may have asked Dilu to pick up children from school on her way home after work.  The appellant said this also had occurred prior to her employment by the respondent and therefore had nothing to do with her employment.  The appellant also said she had never seen either Ms Stuart's or Ms Anderson's statements, where it was alleged that such a direction had been given by her.  The appellant's sister testified that she has one daughter at school and on occasions Dilu has picked her up from school.  The content of this allegation was not put to the appellant and the rule in Brown v Dunn (1863) 6R 67 has application.  Dilu was not called in relation to this issue and there was no other direct evidence about the matter.

32 As to the allegation involving Ms Anderson, it is important to note that the allegation was that Ms Anderson was required to accompany the appellant to collect and drop off her sister at university.  No reference was made to the fact that Ms Anderson was attending the meeting with the appellant as part of her work duties.  The evidence conflicts on this issue. We do not overlook the possibility of collusion between the appellant and her sister as to the events on this day, given that the appellant’s sister is not an independent witness. Ms Anderson seemed quite firm that the book in question was not an audit book as said by the appellant.

33 However, as noted above, the allegation was not in relation to picking up a book but to taking Ms Anderson away from the office for the purpose it seems, of taking the appellant’s sister to university.  This cannot be sustained as Ms Anderson was required to attend the meeting with the appellant.  There also seems little to be gained from taking Ms Anderson as alleged, if the purpose of the appellant was to take her sister to university.  Whilst we have some reservations about the appellant’s evidence on this issue, the evidence is inconclusive and we cannot be satisfied on balance that the allegation is made out.  Even if as alleged by the respondent the conduct occurred, then at its highest the appellant was guilty of engaging in some personal business en route to work commitments that did not involve a substantial departure in terms of time and resources from her duties.

34 As to the allegation in relation to picking up children from school, in the absence of Dilu’s testimony, and in view of the appellant’s and her sister’s evidence, this allegation cannot be sustained.  We also note the uncontroverted evidence that Dilu is said to have collected Krishna Ramani’s child from school on occasions well prior to the appellant’s employment with the respondent.  The connection with the appellant is therefore tenuous at best.

35 Finally, as to the airport issue, at its highest it contains an allegation that the appellant made a request to Dilu to travel to the airport.  The evidence was that she did in fact not do so.  Dilu was not called so this allegation could not be tested directly.  The appellant said she should have in hindsight said to Dilu she should not go to the airport as was suggested.  There was also the evidence from both the appellant and Ms Scott that from time to time, employees can conduct some reasonable degree of personal business during work time.

Allegation Two

36 By this allegation it is alleged that the appellant created an intimidating working environment causing distress and embarrassment to other employees.  A number of examples are cited in exhibit A1.  Notably, all of those examples except one involve allegations concerning either Dilu or Hiran or both of them, who were not called to testify.  The evidence lead in support of these allegations was hearsay in large part.

37 The appellant denied the allegations made by the respondent and affirmed in evidence, the content of exhibit A2, her response to them.  The appellant testified that the first she heard of such allegations was at the meeting with Mr Becu in early June 2005.  This is despite being in the acting manager position from February of that year.  She said that Mr Becu had never raised any such matters with her before.  The first complaint was that the appellant asked Ms Stuart for feedback on Hiran's performance which led to the appellant becoming aggressive and accusing Ms Stuart of calling the appellant a liar.  This was denied by the appellant in her evidence in chief.  The appellant was not cross-examined on this issue and hence was denied the opportunity to comment on it.  Whilst it was not entirely clear, it seems that this was the issue about which Ms Stuart gave evidence when she said that she and the appellant engaged in a “shouting match” with each other.  According to Ms Stuart, it concerned Hiran's performance and whether he had the necessary experience and background.  This exchange led to Ms Stuart contacting Mr Becu.  Other employees were present according to Ms Stuart when this incident occurred.  We are inclined to accept that there was some form of verbal altercation between the appellant and Ms Stuart.  This is consistent with Mr Becu's testimony, that Ms Stuart contacted him about the exchange between her and the appellant and that “both had a screaming match”.  This seemed however to involve both of them and was not a one way incident. 

38 The next complaint under this allegation is that straight after the meeting on 3 June, the appellant telephoned Dilu to instruct her to leave the office so she could not speak with Mr Becu.  It was further alleged that the appellant instructed Dilu to lie about her reasons for leaving the office early. 

39 The appellant's testimony was that she did speak with Dilu shortly after the meeting on 3 June with Mr Becu, for the purpose of telling her not to take a laptop computer home that evening as she was too upset to work over the weekend.  The appellant denied the allegation that she sought to have Dilu leave the premises.  In the absence of Dilu being called, the only reference to this was in the evidence of Mr Becu who said Dilu informed him during the course of his inquiries, that the appellant rang her and said she should leave the office as the appellant had to tell her what to say to Mr Becu.  There was no other direct evidence as to this matter.  We cannot therefore be satisfied on the evidence as to the substance of this allegation.

40 A further complaint under this general head was that the appellant instructed Dilu to provide Hiran with her personal computer log on details.  It is alleged the appellant then disciplined Dilu in front other staff members for doing this.  The appellant's evidence was that all she did with Dilu in relation to work matters was to instruct Dilu to give Hiran appropriate training.  The appellant became aware that Hiran had been given Dilu's computer log on and she said that Hiran told her that he had lost his own. The appellant said that she informed employees about the importance of computer security and not using others’ computer passwords.  The appellant was not cross-examined on this issue by the respondent.  There was some hearsay reference to it in the evidence from Ms Stuart to the effect that Dilu informed her that Hiran had used her password and that the appellant had overheard this and told them both off.  The only other reference to this matter was again hearsay evidence through Ms Scott where the allegation was alleged to have been made by Dilu.  We also note the inconsistency between the testimony of Ms Stuart and Ms Scott on this issue.  We have no reason to not accept the appellant’s version of events in the absence of any direct evidence to the contrary.  Also, the appellant’s explanation is not inconsistent with the hearsay evidence of Ms Stuart. 

41 There was a generalised allegation that other staff members felt uncomfortable as the appellant had treated Dilu unfairly by, for example, sometimes yelling at her and disciplining her in front of others.  The appellant said she had not treated Dilu in a poor fashion and she was not cross-examined about any such incidents.  In the absence of Dilu being called, there was no direct evidence from the respondent to support these allegations.

42 A further example under this complaint is that the appellant was alleged to have told Dilu that Ms Stuart had informed a meeting of engineers that they were behind in their work schedule because of Dilu.  Ms Stuart denied this ever was said. The appellant said this did not occur.  Again, the appellant was not cross-examined about this matter.  Ms Stuart did not deal with the issue in her evidence.  The appellant said that the only mention she made about this to Dilu was that she was required to get her work done in a timely way in order that Ms Rossi could do so also.  The appellant denied that this was a criticism of Dilu in terms of any delays to that point in time.

43 The final allegation under this head was that both Dilu and Hiran had been instructed to attend the appellant's home on or about 7 June 2005.  The appellant is alleged to have told them that they had to lie to support statements made by the appellant to Mr Becu in relation to a number of matters.  The appellant testified that both Dilu and Hiran were at her home and saw and read the letter containing the respondent allegations.  The appellant's sister was also present at the time.  The appellant's evidence was that both Dilu and Hiran described the allegations as “rubbish”.  This position was maintained when it was put to her in cross-examination.  The appellant strongly denied that she asked either Hiran or Dilu to tell lies on her behalf.  The appellant said when Hiran and Dilu came to her home, they spoke in Singhalese which they sometimes did.  The appellant's sister also testified on this matter and said much the same thing.  It was the appellant's sister who gave both Dilu and Hiran the letter to read.  The appellant's sister has not spoken to either of them since this time.  There was no other direct evidence led in relation to this allegation and as neither Dilu nor Hiran were called, this serious allegation could not be properly tested on the evidence.

Allegation Three

44 This allegation was a general claim that the appellant engaged in unprofessional behaviour.  Three examples were cited in exhibit A1.  The first was that the appellant spoke in Sri Lankan in the workplace, even though both Dilu and Hiran allegedly said they felt uncomfortable.  The second was that Ms Stuart had said that the appellant brought an eight year old child into work for three to four days which was disruptive.  Finally, it was alleged that when Dilu raised the manner of communication with the appellant, the appellant was alleged to have said that she was required to yell because “we don’t have very educated people around here”.

45 As to the allegation that the appellant occasionally spoke in Sri Lankan in the workplace, this was not denied by the appellant but she said that at no time did anyone say they felt uncomfortable.  In cross-examination she said that neither Hiran nor Dilu indicated that they preferred her to speak in English when speaking with them.  Mr Finch testified that at Hamilton Hill, employees have a variety of cultural backgrounds and sometimes a variety of languages are spoken.  Ms Stuart testified that on occasions she heard the appellant and Dilu and Hiran speak Sri Lankan at work.  The only other reference to this matter was in the testimony of Ms Scott who again, being hearsay, referred to a discussion with Dilu in which it was alleged to have been said that she felt uncomfortable being spoken to in Sri Lankan.  This allegation in any event falls far short of any form of misconduct, even if established. It would be a matter properly the subject of some performance management by the respondent. 

46 As to bringing children into work, the appellant admitted that on one occasion she brought her niece into the office for a couple of days but did not consider this unprofessional as others also did so, in particular during school holidays.  The only other direct evidence about this matter came from Mr Finch who said he recalled a couple of occasions when the appellant had young children in the office he thought sometime in about May 2005.  He also said he had seen others in the respondent's offices do the same.  He did not raise the matter with either the appellant or Mr Becu at the time.  It appeared that he only mentioned this matter when he was interviewed in June 2005 by Mr Becu. This issue again is one of appropriate behaviour, particularly from an acting manager. The bringing of children into the workplace, without appropriate insurance and security arrangements is not conduct to be condoned.  It may also be disruptive to others.  It falls short, however, of an act of misconduct. This is so in light of the uncontradicted evidence that other employees did the same thing from time to time. 

47 Finally as to the allegation in relation to communication style, the appellant said she had no difficulty in her communications with Dilu.  This was both her evidence in chief and cross-examination.  In the absence of Dilu having testified, this matter cannot be directly tested.

Allegation Four

48 This allegation was to the effect that the appellant told Ms Barrie, the respondent's Human Resources Manager, that prior to engaging Hiran she had contacted recruitment agencies and there were no available candidates.  It was further alleged that at the meeting on 7 June 2005 with Mr Becu, the appellant contradicted herself by telling Mr Becu that she had not contacted any recruitment agencies.

49 As to this issue, the appellant testified that she sought advice from Ms Barrie and followed what she understood to be the respondent's recruitment protocol available on the respondent’s intranet.  This involved firstly looking internally and then considering any external networks, before considering the use of a recruitment firm, which would incur a cost.  The appellant said she did make inquiries within her network and considered that Hiran would be a suitable candidate for the finance and administration officer position.  This meant she did not need to use an outside agency and incur the costs of so doing. 

50 Ms Barrie's testimony was that the appellant did contact her about a vacancy in her department.  She said that the appellant informed her that she had someone in mind and Ms Barrie gave her approval to approach this particular person.  Ms Barrie also outlined the formal requirements for recruitment which involved the completion of relevant forms and approvals from senior management, in this case Mr Becu and a Ms Murphy.  The approvals for the appointment of Hiran were properly obtained.  Additionally, Ms Barrie accepted that the appellant provided to her a detailed email in relation to the recruitment of Hiran.  Furthermore, Ms Barrie initially testified that the respondent's recruitment policy at the time, that being about April or May 2005, did not contain reference to sourcing candidates from external networks.  When a copy of the recruitment policy was tendered in evidence as exhibit A4, Ms Barrie conceded that this was not correct and at the material time, the recruitment policy did contain reference to external networks.

51 In view of the appellant’s direct evidence, the evidence overall is inconclusive of, this matter and we are not persuaded that the allegation is made out.

Allegation Five

52 This complaint alleged that the appellant informed both Mr Becu and her work team that Hiran had sufficient experience with a software programme, SAP, for the position of finance and administration officer. It was alleged that this was knowingly untrue.

53 It was the appellant’s case that at no time did she advise anyone, in particular Mr Becu, that Hiran had had SAP experience.  Her testimony was she informed Mr Becu, who authorised the appointment, that Hiran had the necessary background and qualifications for the position.  Mr Becu gave evidence that he was required to approve Hiran's appointment.  Certain forms were required to be completed which he, as the responsible manager, was to sign.  He testified that he spoke to the appellant about approving Hiran's appointment.  There seemed to be some sensitivity about these kinds of appointments in the appellant's work group, by reason of inappropriately qualified people having been employed previously.  Mr Becu said he relied upon the appellant to tell him about Hiran's suitability.  Mr Becu testified that he did not specifically ask about Hiran's qualifications and it emerged in cross-examination, that he was unsure of whether or not the appellant in fact said that Hiran had SAP experience and indeed she may not have said this.  He did say however that the appellant told him that “he had experience and would be of benefit to the team”. This evidence was generally consistent with that given by the appellant.

54 We pause to note that this issue seemed to assume some significance in the termination of the appellant’s employment.

55 Other employees gave some evidence about this matter.  Ms Rossi said that the appellant informed her that Hiran was a friend who had previously worked at an accounting firm and had some SAP experience.  There was concern in the work area about employees with a lack of experience because they were under pressure at the time and did not have time or resources to train people.  Ms Stuart also said that on occasion she and the appellant discussed the appointment of an additional person. She was led to believe that Hiran had some SAP experience and had spent some time at the respondent's corporate real estate section.

56 It would appear to be common ground that Hiran did not initially perform as well as expected and did not have sufficient training in SAP.  It is to be noted however, that other witnesses called by the respondent also testified that when they joined the respondent it took them considerable time to become versed in the respondent's SAP system.  It was the discussion about Hiran's performance between the appellant and Ms Stuart that led to the “shouting match” between them.

57 To establish that the appellant had knowingly misled the respondent, in particular Mr Becu, who approved Hiran's appointment, there would need to be clear evidence before us that on balance, could lead us to the conclusion that the appellant was deliberately untruthful in this regard.  We cannot be satisfied as to this.  In particular and importantly, Mr Becu himself could not say in his evidence that the appellant did represent Hiran as having the necessary SAP experience.  Rather it was more likely that she did not say this to him on his own evidence.

Allegation Six

58 This allegation asserted that the appellant engaged Hiran knowing he was insufficiently equipped to perform the position, and without following the respondent's recruitment and selection policy.  Based on the evidence outlined above, we are not satisfied that this allegation is made out at all.  It is inconsistent with Mr Becu's evidence and indeed the evidence of Ms Barry.

Allegation Seven

59 This allegation is to the effect that the appellant informed Mr Becu that both Hiran and Dilu had requested to work weekends at their instigation.  It was alleged that this was not true and neither had sought to work weekends.  This was not the appellant’s testimony.  She said that Hiran did not work weekends and the reason that Dilu did, was in response to her request as she had other employment in the evenings during the week and was unavailable to work overtime during those periods.  This was not put to the appellant is cross-examination.  As neither Hiran nor Dilu were called to testify, we cannot determine conclusively the substance of this allegation in the face of the appellant’s direct evidence. 

Allegation Eight

60 The allegation asserts that the appellant failed to keep records of work done by Hiran and Dilu on weekends or pay them for such work.  As noted above, the appellant testified that Hiran did not work on the weekend.  She said Dilu only worked about four hours overtime and took time in lieu for this.  In the absence of evidence from Hiran or Dilu or other evidence we cannot sustain the allegation on the evidence.

Allegation Nine

61 The appellant is said to have requested that Hiran fabricate entries into the appellant’s vehicle log book.  This allegation was denied by the appellant.  Her evidence was that she generally used her diary to record travel and would on a later date transfer that information to the vehicle log book.  In the absence of direct testimony from Hiran, we are simply unable to find this allegation made out on balance.

62 Additionally, this issue was not put to the appellant in cross-examination for her to respond to it.  Given that falsification of business records is a serious allegation, in the absence of any direct evidence as to this matter, including for example the log books in question, the Appeal Board cannot make any findings of fact against the appellant.

Allegations 10, 11 & 12

63 As outlined in the appellant’s submissions, allegations 10, 11 and 12 can be conveniently dealt with together.  In essence, these allegations refer to various acts of deceitful conduct said to have been engaged in by the appellant.  Firstly, it was alleged that the appellant said at a team meeting that she had a friend who she wished to give some work experience to.  It was further alleged that when the appellant then approached Mr Becu she informed him that the person she had in mind was a friend of Dilu's and not hers.  This was denied by the appellant and her evidence was that there were two separate people considered.  The appellant knew a person named Nirosha who she proposed for work experience.  Another person name Misha, a friend of Dilu's, was put forward by Dilu for consideration.  The appellant said she does not know Misha well but however, the persons concerned are different.  It was further alleged that after speaking to Mr Becu, the appellant attempted to coerce both Dilu and Hiran to tell lies about these matters.  This was also strongly denied by the appellant in her evidence.  No evidence from Dilu and Hiran is before us and the only other evidence is some hearsay testimony about what Dilu is reported to have told Ms Scott.  Allegations as to misleading and deceptive conduct by the appellant are serious allegations.  In the absence of direct evidence adduced by the respondent, we are not in a position to make findings of fact that such allegations have been established on balance.

Allegation 13

64 Finally, it was alleged by the respondent that following the investigation, allegations were made by the appellant to a Mr Roebuck, another manager, that Mr Becu had been involved in misappropriating the respondent’s property.  It was further alleged that the appellant failed to comply with the respondent's code of conduct in reporting these matters to the General Manager.  The appellant testified that she spoke with Mr Roebuck about this matter and he advised her generally as to how she should deal with her situation after the investigation.  The appellant’s evidence was that it was Mr Roebuck who suggested she get legal advice following receipt of exhibit A1.  According to the appellant although again hearsay, Mr Roebuck denied the allegations made by the respondent under this head.  There was no direct evidence about this matter, save for that of the appellant.  We are not in a position accordingly, to make findings of fact against the appellant in light of the state of the evidence.  Furthermore, this matter was not put to the appellant in cross-examination.

Conclusions

65 From all of the evidence before the Appeal Board, we are not satisfied that it has been established on balance that the appellant engaged in all of the misconduct alleged against her.  The major difficulty that confronts us is in relation to the most serious allegations which involved either or both Hiran and Dilu, is that in the absence of their direct testimony we are left with evidence largely of a hearsay nature in the face of the appellant’s direct testimony.  Whilst we have some reservations about aspects of the appellant’s evidence, to which we have referred above, which has given us a sense of unease in some respects, we simply cannot make the necessary findings of fact against the appellant, as urged by the respondent, in order for the Appeal Board to be satisfied that the facts upon which the respondent relied to dismiss the appellant, have been established.

66 In any event, a number of the allegations against the appellant appear to stem from poor management rather than deliberate misconduct. Examples include the allegations of inappropriate management of staff such as allowing children in the workplace, perhaps entertaining the conduct of personal business beyond the realms of reasonableness, speaking in other than English in the workplace and engaging in a verbal altercation with Ms Stuart.  It must be borne in mind however, that when the respondent appointed the appellant to the acting management position, they were well aware she had no prior experience in managing a larger group of other subordinate employees, and she was not afforded any training opportunities in this regard.  It is also to be observed, that it seems up until about late May or early June 2005, there were no apparent difficulties in the appellant’s work performance or conduct, and indeed, up until about that time, all of the reports about the appellant’s general performance seemed to have been largely positive.  It is therefore somewhat surprising that such a raft of matters came to the surface so quickly after the appellant had been in the acting management position for some months.

67 Whilst at its highest, some of the allegations against the appellant may have warranted performance management and counselling, including perhaps a return of the appellant to her former substantive position, we cannot be satisfied on all of the evidence before the Appeal Board, that the conduct complained of has been made out to warrant the dismissal of the appellant.  We also observe, that prior to exhibit A1 being received by the appellant, setting out all of the allegations in writing, many of the allegations had been put to the appellant orally in meetings between her and Mr Becu and Ms Scott.  Significantly, at the conclusion of the second meeting, when those allegations were in the knowledge of the respondent, the respondent saw fit to give the appellant the options which they did, they being performing her duties at head office or returning to her substantive position.  Dismissal did not seem to be in the respondent’s mind at that point. 

68 For all of the forgoing reasons we are persuaded that the appeal has been made out.

Remedy

69 We turn therefore to consider the question of remedy.  The Appeal Board’s powers in relation to an appeal of the present kind are set out in s 80I(1) of the Act which enables the Appeal Board to “adjust” any decision to dismiss an employee.  Counsel for the appellant correctly submitted that the meaning of “adjust” for the purposes of s 80I(1) from the Act was dealt with by the Industrial Appeal Court in State Government Insurance Commission v Johnson (1997) 77 WAIG 2169.  In that case, Anderson J (Franklyn and Scott JJ agreeing) said at 2170 that:

“the power to “adjust” a decision for determination can only be a power to reform the decision in some way.  In the case of a decision or determination by an employer to dismiss an employee with one month's pay in lieu of notice, the most obvious way to do that would be to reverse it.  Whether there may be other ways of adjusting such a decision is perhaps an open question.  It may be arguable that the power to adjust a decision of dismissal includes a power to adjust the period of notice.  The issue does not arise in this case because no such adjustment was sought by the respondent.  He made no claim to reform the decision in that way, that is by altering the period of notice.”

70 An obvious means of adjusting the respondent's decision in this case, would be to order the re-employment of the appellant with a consequential order that the appellant be paid lost benefits.  On all of the evidence before the Appeal Board, we have some reservations about such an order.  Whilst the specific allegations against the appellant, or at least the most serious allegations, have not been made out before us on the evidence, it was very apparent that the trust and confidence in the relationship between the parties has broken down.  This is, as it is trite to observe, an essential ingredient in the employment relationship between an employer and an employee.  Clearly on the evidence, there was a degree of animosity between the appellant and members of her work team at Hamilton Hill and lesser so at Shenton Park.  Additionally, Mr Becu's evidence was he had lost his confidence in the appellant.  The Appeal Board cannot ignore this state of affairs.

71 It seems to us, that whilst the terms of s 23A of the Act have no application to an appeal before the Appeal Board, considerations of the workability of a re-established employment relationship fall within the broad discretion of the Appeal Board, when it comes to consider any “adjustment” in the case of a decision to dismiss an employee.  Were that not so, in the case of an appeal from a decision to dismiss, in circumstances of a manifest breakdown in relations between the former employer and employee, the Appeal Board would be compelled to restore that relationship if the only option contemplated by Parliament by way of remedy was re-employment.  We do not consider this to be the case.

72 Given the breath of the meaning of “adjust”, we consider that it is open to the Appeal Board to adjust the actual decision in a manner which is consistent with s 26(1)(a) of the Act, requiring the Appeal Board to discharge its jurisdiction and power in accordance with equity, good conscience and the substantial merits of the case.  The Appeal Board is also required to have regard to the interests of the persons immediately concerned, in this case both the appellant and the respondent, by reason of s 26(1)(c) of the Act.

73 Having regard for all of these matters, we do not consider it would be in the interests of either the appellant or the respondent, to restore the employment relationship in the particular circumstances of this case.  We consider that it is open to the Appeal Board to adjust the respondent's decision to dismiss the appellant, by adjusting the period of notice, by way of payment in lieu of notice that she should be afforded to give effect to the decision to dismiss.  We determine that in this case, a period of an additional three months’ salary and benefits in lieu of notice should be paid to the appellant by the respondent.  This payment will be required to be paid within 21 days of the date of the final order.  Given that we do not have evidence of the appellant’s remuneration before us, we direct the parties to confer within 14 days and to prepare a minute of proposed order to give effect to our reasons.  In the event the parties are unable to agree we will re-list the matter on short notice.

74 MS DORAHY: The appellant, I believe, was unfairly dismissed from the respondent.  The appellant appears to have become a victim of circumstance.  The myriad of problems encountered by both the respondent and appellant appeared to have escalated due to the absence of appropriate training and timely feedback.

75 It is my opinion that the appellant was demonstrably qualified at a technical level but out of her depth in supervisory and managerial roles.  She was also supervising staff at two locations some distance apart.  Those staff may have some resentment in relation to an “outsider”, to whom English is a second language, being appointed to supervise them.  Had the appellant been inducted, monitored, and mentored from the commencement of her acting position in accordance with good corporate practice many of the problems could have been averted.

76 According to the respondent’s testimony they have not followed their own policies, procedures, or public sector guidelines in relation to the circumstances of this matter.  It was quite obvious when Mr Stubbs cross-examined two of the respondent’s senior human resources personnel that they were ill prepared and their understanding and application of the (then) current policies at the time critical decision were made, was inadequate.

77 The respondent’s assumption that the situation was becoming dysfunctional was based on hearsay and innuendo.  This made a corrective course of action from the appellant difficult to formulate.  When Mr Becu sought the assistance of senior human resources personnel he was misdirected by the one area that could have remedied the situation had their professionalism and understanding of the corporation’s policies been applied.

78 As a manager Mr Becu’s human resource knowledge as a corporate and state level was shown to be lacking.

79 The appellant was called to a meeting on Friday June 2, 2005.  The appellant testified that during this meeting, held at approx 1530 hrs with Mr Becu and Ms Scott, she found herself subject to Mr Becu shouting at her “Liar!” whilst banging his fist on the table (unsubstantiated).  The only person who could substantiate the appellant’s testimony would be Ms Scott.

80 I am of the opinion that as in the Chairman’s reasons for decision (at para 11), this second meeting held on the following Tuesday was a watershed in relations between the respondent and appellant.  Given the fact that the appellant’s acting position was for a period of 13 weeks, it appears the two options presented to the appellant of either:

1 Performing the construction work at head office; or

2  Returning to her substantive position as an accountant

was, at this point, fair and just.  It would be understandable that the appellant would require time to consider and weigh up her options.

81 Had the respondent accommodated the appellant by placing or returning her to one of the two positions as outlined by Ms Scott on Friday June 3, 2005, (refer to appellant’s statement of facts prepared by Dywer Durack Lawyers page 3.10) then the respondent would have exhibited reasonable fairness and consistency.

82 It could also be viewed that the respondent was deliberate in disturbing the appellant.  The respondent had full knowledge that the appellant was indeed on sick leave.  (See appellant’s statement of facts as prepared by Dwyer Durack Lawyers page 3.14).  The respondent’s very action of sending the appellant a letter listing 13 allegations may be considered a form of harassment particularly in light of the fact that she was unwell and advised the respondent accordingly.

83 Perhaps better management practice would have been to reschedule a meeting when the appellant was fit to return to work.  This would have also given both parties a cooling off period to assess facts pertaining to the validity of all 13 allegations in question.  Rescheduling a meeting with the appellant may have enabled real dialogue, keeping communications transparent and open, thereby assisting parties in taking responsibility in resolving real or perceived conflict.  The respondent has clearly breached procedural fairness by not giving the appellant the opportunity to address all of the respondent’s concerns.

84 The majority of the allegations have not been substantiated or proven by the facts.  The appellant’s solicitors contend that there was no substance to the allegations made against the appellant.  Assuming this is correct then it could appear that there was an attempt by the respondent to misrepresent the truth regarding the appellant.  If this is the case then it would follow that it would be in their interest to attempt to shift “the onus of proof”.

85 It is interesting to note that in Mr Becu’s brief letter of termination to the appellant dated June 30, 2005 he states that “The Corporation has determined that you have been unable to satisfy us that either these allegations are not true…” (Refer to Annexure 2).  This letter fails to outline or explain the procedures the respondent took at this time.

86 Neither Hiran or Dilu appeared to testify.  Considering both parties before the Appeal Board had legal representatives it may be concluded that they would have proven to be unconvincing in supporting evidence for either party.  It was apparent on one occasion (when Mr Becu recalled questioning Hiran) that Hiran changed his account of the facts twice.  (Refer to Transcript of Proceedings dated December 20, 2005 page 263).

87 Since many of the allegations are centred on both Hiran and Dilu, without their testimony the Appeal Board observes that much of the information presented is hearsay.  In the absence of any sound evidence I believe the respondent was unable to convince the Appeal Board that they had good reasons to dismiss the appellant.

88 It appears that sometime in late May or early June 2005 there has been a breakdown of trust and communication between the appellant and subordinate staff, prior to this timeframe there had been no adverse reports. (Refer to the Chairman’s reasons for decision Allegation 2, para 37).

89 It may be of some interest to note that Dilu was based at Hamilton Hill well before the appellant was appointed to the Acting Manager’s position.  (Refer to Transcript of Proceedings dated November 22, 2005 page 25).  Human resources and senior management need to be cognisant of the multitude of factors that may have contributed to the several personality clashes experienced by the appellant and her subordinate staff.

90 The very fact that the appellant was given the opportunity to act in the manager’s position over other existing experienced employees that had been there for years prior could have contributed to the build-up of resentment and her non-acceptance by the staff.

91 Alongside culture and personality clashes, the potential of professional jealousy between Dilu and the appellant resulted in a hostile working environment.  This could have impacted adversely upon the appellant’s success in the Acting Position and professional development.

92 Mr Stubbs when cross examining Mr Becu highlighted the fact that Mr Becu was unaware of “…the cultural issues that might create problems in terms of supervision between Dilu and Krishna”.  Mr Becu made no attempt to inquire into this situation and confirmed that he saw no reason to do so.  (Refer to Transcript of Proceedings dated December 20, 2005 page 233).

93 Dilu’s domestic problems which were brought to work could have also attributed to the unfair victimization of appellant due to the fact colleagues took it upon themselves to become involved rather than solicit professional intervention particularly in the case of someone alleging suicidal tendencies.  (Refer to Transcript of proceedings December 20, 2005 page 231).  In Mr Becu’s testimony it appears that he has placed a certain bias on influences outside the workplace which could be argued was not relevant to the appellant’s performance issues and therefore should not have been cited as a contributing factor in the respondent’s decision to go further than originally intended, with the end result, termination.

94 I consider that Mr Becu did not demonstrate professional objectivity when arriving at his decision to terminate the appellant.  In Mr Becu’s own admission he was influenced by Dilu’s unrelated domestic affairs.

95 I am of the belief that this particular factor requires particular attention.

96 Considering the appellant had the difficult task of taking over the management of an area that was approximately three months without a manager, meant that the appellant had to cope without a professional handover.  The question also needs to be asked why did management not fill the manager’s position at Hamilton Hill for three months? In order to keep up with the workload the appellant stated “Yes, I took work all the time home.  Bob Becu knew that.” (Refer to Transcript of Proceedings dated November 22, 2005 page 23).

97 The appellant whilst adjusting to her new role also undertook the unenviable task of filling staff shortages expediently to cope with the section’s backlog of work.  It was shown that the appellant followed the respondent’s guidelines in filling those positions, as set out on the respondent’s own website.

98 It should be acknowledged that the appellant put in long hours including taking work home in order to achieve the respondent’s expected outcomes, as revealed in the appellant’s testimony.  Such behaviour shows a desire to succeed in this trying situation.  (Refer transcript of proceedings dated November 22, 2005 page 22).

99 In conclusion I believe to allow the appellant to be terminated with unfounded allegations would be entirely inappropriate.  I believe the respondent has an excellent opportunity to right this wrong and restore relations with the appellant by giving her the opportunity to return to her substantive position (without the loss of pay, seniority or conditions which was one of the original options offered to her by the respondent) and an outcome the appellant has made clear to both her (then) employer and her legal representative she wishes to pursue.

100 This incident may be seen as a reminder to managers and human resources personnel generally that when deciding to terminate an employee the employer has the responsibility to prove the allegations are based on sound evidence and not just hearsay and innuendo.