Industrial Relations Commission of New South Wales CITATION: Swaran Lata Kumar and Macquarie Partnership Lawyers [2005] NSWIRComm 202 APPLICANT: Swaran Lata Kumar PARTIES: RESPONDENT: Macquarie Partnership Lawyers FILE NUMBER(S): 5909 of 2004 and 1144 of 2005 CORAM: Sams DP Application for relief from victimisation - out of time application - small law firm - payment of wages on time - complaint made to Department of Industrial Relations - change of hours - failure to co-operate - business needs of employer - poor work performance - medical condition - engagement of solicitors - contact with relatives - disagreement with other employees - warnings of poor work performance - meetings and follow up letters - failure to improve performance - conduct and attitude of applicant - conflict of evidence - Jones and Dunkel inferences - applicant dismissed - concurrent proceedings - procedural unfairness - costs - principles considered. CATCHWORDS: Held, application accepted out of time - sufficient reason established - applicant's evidence preferred - deliberate and disgraceful campaign to force applicant's resignation - hours of work changed without proper notice - improper contact with relatives - wages not paid on time - inappropriate comments in letter to applicant - attempt to force resignation and withdraw proceedings - humiliation, hurt and distress - employer's improper conduct - medical condition understandable - further attempt to change hours an interferance in Commission's processes - no warnings given of pending dismissal - dismissal ultimate act of victimisation - contravention of the Act - failure to satisfy the rebuttable presumption - orders made - applicant's dismissal harsh, unreasonable and unjust substantively and procedurally - dismissal had no basis in fact - no proper basis for dismissal - orders made - costs reserved. Industrial Relations Act 1996 LEGISLATION CITED: Workplace Relations Act 1996 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong Council (2000) 101 IR 143 Bankstown City Council v Paris (1999) 93 IR 209 Briginshaw v Briginshaw (1938) 60 CLR 336 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Byrne & Anor v Australian Airlines Limited (1995) 185 CLR 410 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 D and R Commercial Pty Ltd v Flood (2002) 113 IR 344 Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364 Donovan and Another v Kensington Pharmacy and Newsagency [2004] NSWIRComm 385 Franklins Limited v Webb (1996) 72 IR 257 Galvin v Renito Pty Ltd [1999] FCA 1005 Greater Dandenong Council v Australian Municipal, Administrative, Clerical and Services Union 111 IR 121 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 CASES CITED: Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139 Jones v Dunkel (1959) 101 CLR 298 Laz v Downer Group Ltd [2000] FCA 1390 Leeds and Northrup Pty Ltd v Hull (1992) 46 IR 11 Macleay Valley Health Service v Jeffree (1994) 58 IR 187 Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Nowra Bomaderry Leagues Club Ltd v Federated Liquor and Allied Employees' Union of Australia, New South Wales Branch (1986) 15 IR 463 Outboard World v Muir (1993) 51 IR 167 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers' Union (NSW) v Gartrell White No 3 (1990) 35 IR 70 Penwill v National Jet Systems Pty Limited [2002] FCA 5 Treadwell v Acco Australia Pty Ltd [1997] FCA 1440 Western Suburbs District Ambulance Committee v Tipping [1957] AR 273 Williams and Pigment Dispersions Pty Ltd [2004] NSWIRComm 268 Wilson v Department of Education and Training [2000] NSWIRComm 20 HEARING DATES: 02/03/2005; 03/07/2005; 03/08/2005; 03/11/2005; 04/04/2005; 04/06/2005; 04/27/2005 DATE OF JUDGMENT: 07/14/2005 APPLICANT: Mr M Easton of counsel SOLICITORS Quinns Solicitors LEGAL REPRESENTATIVES: RESPONDENT: Mr M Moir of counsel SOLICITORS Macquarie Partnership JUDGMENT: - 93 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 14 July 2005 Matter No IRC04/5909 Swaran Lata Kumar and Macquarie Partnership Application for relief from victimisation pursuant to s213 of the Industrial Relations Act 1996 Matter No IRC05/1144 Swaran Lata Kumar and Macquarie Partnership Application for relief re unfair dismissal pursuant to s84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 202 1 On 5 October 2004 Swaran Lata Kumar ('the applicant') sought various orders for relief under the victimisation provisions of the Industrial Relations Act 1996 ('the Act'). The orders were sought against the applicant's then employer, Macquarie Partnership ('the respondent'), a firm of solicitors located at Parramatta. The particulars of the relief sought were outlined in the applicant's application as follows: Pursuant to s213 of the Act: 1. The respondent is to cease victimising the applicant. 2. The respondent is to allow the applicant to return to the hours and times of employment applicable before 7 September 2004; 3. The respondent is to unconditionally withdraw its letter to the applicant dated and delivered on 10 September 2004; 4. The respondent is not to take any further action upon its letter to the applicant dated and delivered on 10th September 2004; 5. The respondent is to pay to the applicant the whole of the amount of remuneration or other financial benefits lost as a result of the victimisation; 6. The respondent is to pay to the applicant six (6) months pay as compensation; 7. The respondent is to pay the applicant's costs of and incidental to this application on an indemnity basis; 2 The application was listed for conciliation on 29 October 2004 with Mr M Easton of counsel appearing for the applicant and Mr M Moir of counsel appearing for the respondent. Following preliminary submissions in which Mr Easton detailed further examples of alleged victimisation of the applicant, the Commission chaired private conferences with the parties. These conferences did not resolve the matter and the claim was listed for arbitration. Directions were issued for the filing of evidence. 3 The applicant was dismissed by the respondent on Friday 4 March 2005, one working day before the commencement of her evidence in the Commission in her alleged victimisation proceedings. An unfair dismissal application, pursuant to Pt 6 ch 2 of the Act, was lodged on Monday 7 March and conveniently listed on the day the proceedings resumed. 4 On that occasion, the Commission made further unsuccessful attempts to conciliate a settlement of both matters. I then made a finding of unsuccessful conciliation pursuant to s87 of the Act and issued further directions for evidence to be filed in respect to the unfair dismissal application (IRC05/1144). Both matters were listed to be heard on the days previously set for hearing. The evidence in both matters was taken separately and will be referred to in this decision in that way. EVIDENCE IN THE VICTIMISATION PROCEEDINGS Applicant's evidence 5 The applicant is 31 years of age, married with one dependent daughter. She commenced employment on a part-time basis as a legal secretary with the respondent in July 1998 and commenced full-time work in February 1999. In September 2000 the applicant commenced 12 months maternity leave but was asked to return on a part-time basis in February 2001. Her work became full-time again in April 2001. 6 The applicant's daughter became very ill in June 2001 and the applicant took four weeks' leave without pay to care for her. In May 2004 the applicant suffered a miscarriage and had two weeks' annual leave. All of this leave had been approved by a partner in the firm, Mr Jamnadas. 7 The applicant said she usually arrived for work between 8.30 and 8.40am. The applicant's hours of work were 9.00am to 5.00pm with an hour for lunch. However, she and another staff member, Mrs Rhuta Gole, actually took half an hour for lunch to make up 38 hours a week. The applicant claimed the respondent kept no record of her hours of work. 8 The applicant was paid by cheque fortnightly on Thursday or Friday mornings. She deposed that from the beginning of 2004, she did not receive her pay cheques on a number of occasions until late on Friday. This had proved to be very inconvenient as she could not bank the cheque until the following Monday. She had politely reminded the partners about late payment of wages, but to no avail. 9 Finally in frustration, the applicant wrote a letter to the respondent on 31 August 2004 in the following terms: Dear Sirs Re: Unpaid wages for the period 16/08/04 to 27/08/04 I regrettably note that you have once again failed to give me my fortnightly wages cheque on the scheduled day without any explanation. Despite the fact, that I had reminded you on many occasions previously that my wages cheque should be paid to me on Thursdays or at least by lunch on Friday (fortnightly), you have again failed to take same into consideration. As advised earlier, I have mortgage to pay, family to feed, and my own social life to enjoy, and you have repeatedly left me in a position where I have to tell my family that my wages haven't been paid. I have referred this matter to the Department of Industrial Relations and have been advised to write to you reminding and requesting same. I have been further advised that there is a 'Time Waiting' pay, wherein you have to pay time and a half or double time pay for any wages not paid on the scheduled day. Failure to pay time waiting may result in fines payable to the Department of Industrial Relations by the employer. I sincerely hope the matter would be given urgent attention and resolved in a timely manner. Yours sincerely Swaran Kumar 10 On 7 September 2004 the applicant received a memo from the respondent which proposed a change in her hours of work commencing from 6 September. The change extended her hours to 5.45pm. The applicant had heard of this change in a phone call from Mrs Gole on 3 September. The applicant claimed there had been no discussion with her about the change of her hours. As the change affected her childcare arrangements, she approached another partner, Mr Nand to ask him to swap shifts with Mrs Gole. Mr Nand replied that Mr Jamnadas did not want her to work for him and that she must accept the new hours. That day she discussed the matter with her husband. She felt she had no choice but to accept the hours or be dismissed. She commenced working the new hours the following week (13 September). 11 The applicant said that on 9 September she had spoken to her mother-in-law who told her that Mr Jamnadas had phoned. He had informed her in-laws that she was not performing well at work. Mr Jamnadas had asked them if there was a problem. Her mother-in-law had said that they didn't want to interfere. The applicant was very upset that Mr Jamnadas had not told her he would be calling her in-laws and she felt distressed and humiliated at what he had said to them. Prior to this time, none of the partners had ever spoken to her about being unhappy with her work performance. 12 The next day (10 September), the applicant received a letter signed by Mr Nand in the following terms: Dear Swaran Re: Your Employment We refer to your employment with this office and raise our concerns, some of which are: 1) you are to have been working 38 hours per week since the beginning of this year and it has come to our attention that this was not the case. We rely on our employees to be honest in observing the hours to be worked. It is obvious that you have been overpaid in the past as you have not worked the required hours. 2) we have also observed that you have been using the firm's resources for personal use such as, telephone, typing of documents and use of internet. This is not encouraged and should be limited to use on urgency basis. 3) this is a small firm and we are conscientious of the relationship with each member of firm. We have observed that your attitude has not been congenial with the required atmosphere and environment of the firm. For instance on 7 September 2004 when Mr Narsey asked you to attend at OSR you questioned Mr Narsey why he was sending you. Although Mr Narsey explained to you that Rhuta was not well, why should Mr Narsey have to explain to you to carry out a task which is normal for this practice. You have previously argued with other partners and Kokila Jamnadas when asked to carry out delegated tasks. 4) the partners of this firm have been very tolerant over the years including Mr Jamnadas allowing you to take time off work for personal reasons even though that has caused disruptions within the firm. Whilst you had marriage problems on more than one occasion, Mr Jamnadas had allowed to take time off to look for accommodation, purchase a car, etc. On many occasions your performance has been affected due to your personal problems, including domestic violence against you by your husband. We believe that this firm has been a good employer and instead of being appreciative you seem to create a different impression. Whilst we note that you have sought to exercise your rights under the employment laws, this firm as your employer is also protected by equal rights under the employment laws and we shall not hesitate in exercising those rights. 13 The applicant was very disturbed by this letter and upset that matters about her personal life had been raised by her employer. In a reply affidavit, the applicant reiterated that, prior to this letter, no one from the firm had ever communicated with her, in any form, about being unhappy with her work performance. 14 On Monday 13 September, the applicant was again paid late. One hour's pay had been deducted because she hadn't worked half an hour on the previous Wednesday and had started work at 8.30am on Thursday. The applicant rejected these deductions and Mr Nand promised to correct her pay. However, he never did. 15 It was around this time that the applicant realised she needed to seek legal advice. She engaged Quinn's Solicitors on 17 September 2004. Her solicitor wrote to the respondent on 19 September and complained about the change of hours, the 10 September letter from Mr Nand and the phone call to her in-laws. The letter invited the respondent to: ... reconsider its position in this matter and immediately: return our client to her previous hours and times of employment; unconditionally withdraw your letter of 10 September 2004: and desist from making any further contact with our client's husband or parents-in-law. In the event that your firm does not meet the above requests, or engages in any further victimisation, we may make application under s213 of the Industrial Relations Act 1996 or s298T of the Workplace Relations Act 1996 without further notice to you. 16 On 20 September, Mr Nand asked the applicant to clean his room and wipe his table and computer. She had never been asked to do this before. On 23 September, the applicant claimed she was hurt and upset when she was ignored by the partners when they left the office for lunch. 17 The applicant instructed her solicitors to commence victimisation proceedings on 1 October and her filed application was faxed to the respondent the same day. 18 The applicant was required to attend a meeting with Mr Nand and the third partner, Mr Narsey on 15 October. Mr Nand said that as she was obviously unhappy at work, she could resign and receive five weeks wages and any leave entitlements. The alternative was that she may be terminated without any entitlements. The applicant did not wish to resign - she simply wanted her old hours of work back. Mr Narsey had insisted that "we want you to resign". Mr Nand had not suggested she discuss the matter with her solicitor. 19 Three days later on 18 October, the applicant was approached by Mr Jamnadas about an outstanding bill for the firm's conveyancing on her family's house purchase in 2003. Mr Jamnadas said her invoice was overdue and he wanted to know what was happening with it. Mr Jamnadas was rapping his knuckles sharply on the invoice and demanded an answer straightaway. He told her "you are shameless people". The applicant deposed that prior to this time, the invoice had never been given to her. It was her understanding that the firm did not charge its employees for personal conveyancing work. At no stage had the invoice been put on the respondent's debtors list and until this day she had never been asked to pay it. 20 The applicant had been very upset by Mr Jamnadas' tone and his demand for immediate payment. She had started to cry. She then called her husband and told him what had happened. Her husband then phoned Mr Jamnadas. When Mr Jamnadas emerged from his office, he was red in the face and started shouting at her. He said: I don't want to talk to your husband ever again! He has no manners! Bloody shameless! Make this clear to him - I don't ever want to talk to him! 21 After this incident, the applicant had felt embarrassed and humiliated and approached Mr Nand to go home. She then went to her doctor, Dr Rachid Homsi. He declared her unfit for work for a week. When she phoned Mr Jamnadas the next day to tell him she was sick, he accused her of being a "shameless woman". He told her that this (illness) was all planned. He said that it was unacceptable. 22 On 20 October the applicant received a letter from Mr Nand which complained about her "very poor work performance". He accused her of "feigning headaches". She was very distressed by this letter. The applicant's solicitors responded to the letter and cited such conduct as further victimisation and advised that no further action should be taken while the matter was before the Commission. Mr Jamnadas responded on 25 October. 23 The applicant was informed on 26 October, through her solicitor, to attend a doctor's appointment on 28 October. She declined to do so. However, on 26 October she visited her own doctor and was declared unfit for work from 26 to 29 October due to anxiety. On 27 October, the respondent sought a further medical report from the applicant's doctor. This request was refused by the applicant's solicitor. After inquiries were made to a Dr Khandar it was learnt that no appointment had actually been made by the respondent for the applicant. 24 In oral evidence, the applicant agreed that this wasn't the first occasion the respondent had requested she attend a medical examination. Mr Jamnadas had asked her to do so in July 2003. 25 On 27 October the respondent asked that the applicant attend Dr Khandar's appointment. It was said that the applicant's solicitor was not acting in her best interests. On 28 October, the applicant did attend an appointment with Dr Khandar. After finding her blood pressure was high, Dr Khandar told her: You will feel better if you don't keep things to your heart. You have to forget everything and go to work with new life. Go and talk to them, treat them like your father or elder brothers. Say sorry and they will forgive you. Pay the money you owe and then go back to work. I will ring them now and give them the report verbally. 26 The applicant said that on 30 October her own doctor, Dr Homsi, informed her that the respondent had questioned his judgement. Dr Homsi suggested a second opinion and advised her to see a Dr Emmanuel. When she did so, Dr Emmanuel gave her a medical certificate declaring her unfit for work from 30 October to 5 November. When provided with this medical certificate, the respondent restored the applicant's hours of work and suggested her continued absence from work was causing the firm "significant disruption". This response caused her further upset. The applicant remained unfit for work from 8 to 12 November and returned to work on 15 November. 27 When the applicant returned to work, she found Mrs Gole sitting at her desk. She was told the reason for the move was because the respondent's barrister was communicating to his client through the e-mail about matters pertaining to the applicant's legal proceedings. It was therefore inappropriate for her to be sitting at this desk. 28 On the same day, the applicant and Mrs Gole were required to attend a meeting with Mr Jamnadas and Mr Nand. The applicant was put on light duties. However, at no time had she ever performed any light duties. That same day, when the applicant returned from lunch she found the office locks had been changed and she was not to be given the new keys. This caused her considerable inconvenience as she had to rely on other staff being in the office if she left at lunchtime or used the bathroom. 29 On 22 November there was a further meeting between the applicant, Mr Jamnadas and Mr Nand concerning a number of allegations made against her by Mrs Gole. This meeting and the following letter were regarded by the respondent as a formal warning to the applicant: You have unnecessarily picked quarrels with Rhuta since last Monday. For example, Mr Narsey had left mail for posting. You picked that up and instructed Rhuta to go and ask Mr Narsey what the mail was about. You have called Rhuta "filthy" for not keeping the sink clean. Following investigation, I note that the sink was clean and that there was no need for your baseless comments. You have quarrelled with Rhuta in relation to the printer. For example, you picked up printouts from the printer, and if they did not belong to you, you put them on Rhuta's desk instead of giving it to whoever it belongs to. In addition, when you have sent facsimiles, you have not retrieved them after they have been transmitted. Rhuta is then left to stamp and file it. Whilst you were entering the timesheets there was a temporary lock in your computer. Instead of undoing the lock and getting back to what you were doing, you picked up the timesheets and threw them on Rhuta's desk and instructed Rhuta to enter the timesheets. When Kokila asked you to unlock your computer and get back to work, you answered her back and said Rhuta can enter the timesheets. You are not washing the dishes and taking out the garbage, in fact you have not done it even once from Monday 15 November 2004 to Monday 22 November 2004. 30 The applicant deposed that as a result of what had happened to her at work in the months prior to her dismissal, she had suffered from high blood pressure, frequent headaches, anxiety, depression, eating and sleeping disorders and difficulty in concentrating. As a consequence, she had been seeing a counsellor from Mount Druitt Community Health. 31 As mentioned earlier, the applicant was dismissed on 4 March 2005. I shall return to the circumstances surrounding her dismissal shortly. In cross examination: 32 The applicant deposed that she had not discussed her husband's evidence with him since he had given his evidence on 3 February. 33 The applicant was asked why, if she was unfit for work on 29 October 2004, she had attended a conciliation conference in the Commission on that day. She explained that attending for work was different to attending the Commission as she had felt humiliated at work. She denied that she simply didn't want to attend work. She had been unwell. 34 The applicant was asked about her employment history with the respondent. She had appreciated being offered part time work when she returned from maternity leave in 2001. She agreed that Mr Jamnadas had not told her that her employment would be terminated if she didn't take up full time work. He told her he had someone who would be willing to take up full time employment if she didn't. 35 The applicant agreed she had been granted leave on a number of occasions due to personal and family circumstances. She was grateful for this leave. She denied however, that she had been granted leave to find alternative accommodation and to have time to purchase a car and household items when she had briefly separated from her husband. She had already moved into new accommodation when she was granted one day off. 36 The applicant denied telling Mr Jamnadas in 2001 that her husband had hit her. This had never happened. She had not cried in front of Mr Jamnadas. She claimed the only time she could remember crying in the office was on 18 October 2004 (see paras 19 and 20). 37 As to her hours of work, the applicant's evidence was that she worked from 9.00am to 5.00pm with half-hour for lunch, from the beginning of 2004 to September. The applicant agreed she would leave the office at 4.45pm to take mail to the post office and the DX. This took about five to seven minutes and she arrived at the train station around 5.05 pm. The applicant insisted she had not taken an hour for lunch and had not worked 35 hours a week. She rejected any suggestion that she had been overpaid because of working less than 38 hours a week. The applicant said that Mr Narsey had originally offered her the option of a half-hour lunch or working a half-hour longer. However, when she returned from sick leave in November 2004 she was told to take lunch between 1.30 and 2.00pm. 38 The applicant was asked about her workload when Mr Nand joined the firm in December 2002 and brought the GIO as a client to the firm. As a result of the increased workload, she asked for, and was refused a pay rise in July 2003. However, the applicant agreed that Mr Jamnadas had agreed to her request for additional support staff. When shown her notes of this meeting, the applicant said that Mr Jamnadas had initially said "no" to bringing in additional staff, but had later agreed to do so. At this meeting the applicant had also complained about Mr Nand's bad language. Mr Jamnadas had told her to just accept it. This response had upset her. The applicant said she was unwell after this meeting and had taken two days off. She denied taking the time off because she was unhappy with Mr Jamnadas' response to her requests. 39 The applicant denied looking for another job during this time. Rather, she had asked Mr Nand and Mr Narsey to act as her referees because she always kept her resumé updated. She denied telling the partners that she was looking for another job. 40 In oral evidence, the applicant reiterated her affidavit evidence that, at no time prior to 10 September 2004, was she questioned about her work performance or attitude to work. She said the discussion with Mr Jamnadas in July 2003 was about additional support staff - not her performance. She agreed Mr Jamnadas had spoken to her about an argument with his wife. But she said this was about vacuuming the office outside of work hours. This was not part of her duties. She had not been counselled by Mr Jamnadas about this matter. 41 The applicant agreed that when the respondent lost the GIO as a client, there was a need for the firm to shift to individual clients. This necessitated a change in office hours to 8.30am to 5.30pm in September 2004. The applicant confirmed she had received the memo announcing the change, effective 6 September, on 7 September. However, the new hours actually commenced a week later. She strenuously denied attending a meeting with Mr Nand, Mr Jamnadas and Mrs Gole to discuss the changes on 19 August. There had been no discussion at all prior to the change in hours. On the day the applicant received the memo, she raised her childcare concerns with Mr Nand. She had offered alternatives to Mr Nand on several occasions, but none were acceptable. 42 The applicant was asked about her discussion with her in-laws concerning Mr Jamnadas' phone call on 9 September. Her mother-in-law had answered the phone and retold her what Mr Jamnadas had said to her and her father-in-law. 43 As to the late payment of wages, the applicant said that this had occurred at least once a month. She had to remind the partners before pay day to have her pay cheque prepared. On three occasions her cheque wasn't actually paid on a Friday. The applicant was also paid annual leave loading and had her sick leave adjusted when she brought these matters to the respondent's attention. 44 In respect to the issue of the unpaid conveyancing account, the applicant reaffirmed that she had never been presented with the invoice. However, she had seen the invoice on the computer system in late 2003. She had never received the invoice at her home address and said Mr Jamnadas had never raised the matter before he did so on 18 October. The applicant confirmed she had been involved with her own file at the time and had paid certain disbursements directly. She was aware that other disbursements were required to be paid. At the time of the conveyancing there was only one meeting with Mr Narsey (who was handling her file). This was when she and her husband were required to sign the necessary documents. 45 In reference to the 18 October meeting with Mr Jamnadas, the applicant denied that Mr Jamnadas told her that she had been reminded about the invoice before. Mr Jamnadas had said that the bill had been outstanding for some time. Mr Jamnadas instructed her to phone her husband straightaway and sort out the bill. When her husband phoned back, he asked to be put through to Mr Jamnadas. She said Mr Jamnadas was very angry and told her not to put calls through from her husband. 46 As to the meeting with Mr Nand on 15 October 2004, the applicant insisted that she had been asked to resign. Mr Nand had not said anything about her going to her solicitor. The applicant further insisted that she had never been asked to clean Mr Nand's office table. She agreed she did not complain about this to Mr Nand. She had been required to clean the cups and vacuum the office. As to being snubbed when the partners went to lunch, the applicant agreed she had not sought to raise her concerns with the partners. The applicant denied the allegations made by Mr Nand about her work performance. The applicant further denied that she had ever undertaken light duties. 47 As to being denied keys to the office when the locks were changed, the applicant deposed that she hadn't even been told the locks had changed. She had always had the door keys. Now she had to knock on the door to gain entry. However, she agreed that on Monday to Thursday the doors were already open when she arrived for work. She accepted that she had not raised her concerns about this issue with the partners at the time. 48 The applicant agreed that she left work early on 26 November 2004. She denied she did so in order to meet her solicitor to sign her affidavit for these proceedings. She did not inform the partners that she intended doing so. She further agreed she had not sought leave to attend the Commission proceedings on 3 February 2005. 49 Mr Janardhan Prasad is the applicant's father-in-law. He gave evidence through a court-appointed interpreter in the Hindi language. 50 Mr Prasad deposed that the respondent firm had carriage of an unsuccessful victim's compensation claim he made in 2003. He had known Mr Jamnadas for about six or seven years. Mr Prasad believed his victim's compensation claim had been completed a year ago. Therefore, he was very surprised and puzzled when he received a phone call from Mr Jamnadas on 9 September 2004. Mr Jamnadas had rarely phoned him when his matter was proceeding to update progress of his claim. 51 In the phone call Mr Jamnadas first said he was sorry that his claim had been unsuccessful. Mr Jamnadas had then inquired about the applicant and said "by the way, what is the problem with Swaran? She is not performing well at work. How does she cope at home? Who look (sic) after her baby?" Mr Prasad had replied that his son's family did not live with him. He didn't know about their personal life and doesn't ask them about their work. Mr Jamnadas had said "okay then" and the conversation ended. 52 In cross examination, Mr Prasad explained that when he prepared his statement, a lawyer had asked questions and his son translated for him. The contents of his statement were explained to him before he signed it. His son had checked the contents and told him the contents were acceptable. 53 Mr Prasad was questioned further about the 9 September phone conversation he had with Mr Jamnadas. Mr Prasad agreed that when his victim's compensation claim was progressing, Mr Jamnadas had phoned him and sent him letters. In the conversation, Mr Prasad agreed that Mr Jamnadas had said "I haven't talked to you since I sent a letter advising your claim was unsuccessful". Mr Jamnadas had said he was sorry, but had not explained why the claim had been unsuccessful. 54 Mr Prasad denied asking Mr Jamnadas how his daughter-in-law was going at work. He had not told Mr Jamnadas he had heard about problems she was having at work. Mr Prasad deposed that he said nothing to Mr Jamnadas about his daughter-in-law. Rather, it was Mr Jamnadas who had inquired of him. Mr Prasad had said "leave me out of it". 55 Mr Prasad further deposed that he never asked his daughter-in-law about her work and she never told him anything about her work. 56 Mr Abhinesh Kumar is the applicant's husband. Mr Kumar said conveyancing on the family home at Whalan was completed around August 2003. He deposed that the first time he received a phone call from Mr Jamnadas regarding payment for the conveyancing account was in early September 2004. Mr Kumar had asked for the invoice. Mr Jamnadas agreed to send it to him. Mr Kumar said Mr Jamnadas called him again a couple of weeks later. Mr Kumar wanted to talk to his wife about it, as he had not seen an invoice. 57 On 18 October 2004, Mr Kumar received a call from his wife while he was at work. She sounded like she was crying. She told him that Mr Jamnadas had been demanding money for the house purchase and had been banging on the table and humiliating her in front of other staff. Mr Kumar told her to put Mr Jamnadas through to him. Mr Kumar identified who he was and asked Mr Jamnadas if he had banged on the desk demanding money from his wife. Mr Jamnadas replied "who are you to interrogate me?" Mr Kumar said he was not interrogating him. Mr Jamnadas became angry and said "I don't have to talk to you. I never banged on the desk. You are shameless people and I don't want you to call here. I don't need to talk to you." Mr Kumar then asked Mr Jamnadas to stop harassing his wife, to which Mr Jamnadas replied that he was the one being harassed. The conversation then ended. 58 In cross examination, Mr Kumar said he was upset when he received his wife's phone call on 18 October. He denied telling Mr Jamnadas "stop harassing my wife or else". He said Mr Jamnadas did not say anything about false accusations. 59 Mr Kumar was asked about his various phone contacts with the respondent's office. He was shown phone records which disclosed calls made from the respondent's office to his mobile on 10 August 2004. Mr Kumar could not recall receiving a phone call from Mr Jamnadas on this date. However, he agreed it was possible he had and the conveyancing issue may have been the reason for the call. Mr Kumar noted this call only lasted six seconds and that Mr Jamnadas may have left a message. Mr Kumar gave the same explanation for a phone call of 13 seconds duration on 14 July, another of 20 seconds on 20 July and others on 30 July and 2 August. 60 Mr Kumar had no recollection of talking to Mr Narsey, the partner who was looking after the purchase of his house. Mr Kumar believed that as his wife worked for the respondent, the firm would not charge for the work. He had not sought confirmation of this from the respondent and had not spoken to his wife about the matter. He believed that if anything needed to be discussed, his wife was at work to talk to. Mr Kumar believed that the firm would also cover the various disbursements that were required to be paid. However, Mr Kumar would pay the account if he was presented with an invoice. He claimed he had not seen a letter and invoice from the firm dated 21 August 2003, which had been sent to his residential address. He claimed he might not have noticed it at the time. Respondent's evidence 61 Mr Chandra Jamnadas is a senior partner of the respondent. Mr Narsey and Mr Nand are the other partners. Mr Jamnadas referred to the circumstances of the applicant's commencement of employment and her placement on a full time basis in February 1999 and her subsequent return to work from maternity leave in September 2000. 62 Mr Jamnadas deposed that the applicant took time off work on various occasions. While he tried to accommodate her personal circumstances, he said these absences caused considerable inconvenience to the practice. Mr Jamnadas added that the applicant would not always have had approval for such leave. 63 Mr Jamnadas agreed the applicant's workload increased significantly in December 2002 when Mr Nand joined the practice. He noticed the working relationship with the applicant started to deteriorate around this time. In July 2003 he met with the applicant to discuss her workload and her complaint that Mr Nand was swearing in the office. The applicant had also asked for a pay rise. While this was refused, Mr Jamnadas had agreed to increase the secretarial support staff. In response to the complaint about Mr Nand, Mr Jamnadas said that when he told the applicant to accept the normal pressures of a legal practice, she stormed out of the office and did not come to work for the next two days. 64 Mr Jamnadas deposed that the applicant rarely arrived for work before 8.50am. Around August 2004, it came to his attention that the applicant was not working the required number of hours. He believed that the applicant was working no more than 35 hours a week, while being paid for 38 hours. He noticed the applicant would leave work at 4.45pm and have an hour for lunch. Her excuse for leaving at 4.45pm was to deliver the mail to the post office and the DX - a detour of about five minutes to the railway station. 65 It was Mr Jamnadas' evidence that a meeting was held on the 19 August 2004 between himself, Mr Nand, Mrs Gole and the applicant. It was explained that the firm had lost the GIO's business and would need to gain more individual client work. This would require an extension to the firm's business hours - from 8.30am to 5.30pm. No issues were raised by Mrs Gole or the applicant about the proposed change in hours. A memo confirming the change of hours was sent on 3 September. The applicant's hours were to be 9.00am to 5.45pm and were introduced a week later on 13 September. 66 Mr Jamnadas claimed the applicant raised no difficulties with her childcare arrangements and it wasn't until her solicitor's letter of 19 September that the respondent was made aware of her difficulties. 67 It was Mr Jamnadas' evidence that the applicant had never reminded the partners about the late payment of her wages. It had been the practice to pay her on Fridays. He believed there had been only three occasions when this had not occurred. 68 Mr Jamnadas' version of his phone conversation with the applicant's in-laws on 9 September was as follows: In relation to paragraph 21, I recall telephoning the home of the applicant's parents-in-law on approximately 9 September 2004. The mother-in-law answered the telephone and I had a conversation to following effect: CJ: How are you? Mother-in-law: I am well, how have you been keeping? CJ: Well, thank you. Can I talk to Uncle? (As the applicant's father-in-law is an elderly person, it is customary in our culture to refer to the older person as an "uncle") The applicant's father-in-law came on the telephone and I had a conversation to the following effect: CJ: I have not talked to you since I sent you the letter from the Victims Compensation Tribunal advising that your application for victims compensation was declined. I am sorry that your application was not successful. Father-in-law: Well, what can I do. CJ: As the prosecution case against the person who is alleged to have assaulted you, was not successful, and in fact the prosecution themselves said to the Court that they were not satisfied with the evidence, we could not do much more. Father-in-law: How is Swaran. Is she working alright now. CJ: I can't say much. You know how it is. Father-in-law: I have heard you are having problems with her. I am sorry but I can't get involved in their problems. 69 Mr Jamnadas had spoken to the applicant on a number of occasions about her attitude and performance at work. He believed she was unhappy working for the firm. He also believed that she was looking for alternative employment during 2004. 70 Mr Jamnadas deposed that the firm was always very sympathetic and understanding of the applicant's personal and family problems, including her miscarriage and problems in her marriage. On many occasions, the applicant would come into the office crying and, on one occasion, she had told him her husband had hit her. The firm had allowed her to take time off to look for a new home, to purchase a motor vehicle and household items when she had separated from her husband. 71 Mr Jamnadas denied ignoring the applicant when the partners had gone out for lunch on 15 November. He simply approached Mrs Gole, who was wearing headphones, and assumed the applicant had heard that the partners were leaving the office for lunch. 72 Mr Jamnadas' version of the conversation with the applicant on 18th October concerning the conveyancing debt was: CJ: Swaran, this conveyancing account has been outstanding for a long time, we have reminded you about it before, when can I expect payment? Swaran: I have to talk to my husband. CJ: You tell me that you have to talk to your husband, but when I spoke to your husband, he says to talk to you. Swaran: I will talk to him tonight. CJ: Look I would like to sort this out now as it has been outstanding for a long time. As you know part of the account relates to disbursements, that is, monies we have paid from our office on your behalf. I don't mind if you call him now so we can sort this out. Swaran: Do you want to talk to my husband. CJ: No I don't wish to talk to him, it's up to you whether you need to talk to him. 73 Mr Jamnadas insisted that at no time did he rap his knuckles on the invoice, shout or raise his voice. He acted in a professional and businesslike manner. The applicant was not crying. It was untrue for the applicant to claim she had not received the invoice. It had been sent to the applicant's address on or about 21 August 2003, because she had been on leave at the time. It was not the firm's policy to pay for the conveyancing bills of its employees. In fact, he had reminded the applicant and her husband many times about the non-payment of the invoice. Mr Jamnadas referred to at least three phone conversations with the applicant's husband in August 2004. 74 When the applicant phoned the next day after this meeting and said she had been given the rest of the week off by her doctor, Mr Jamnadas believed she was feigning headaches and stress. The applicant had been consulted about the firm's requirement for her to seek another medical appointment. Mr Jamnadas had arranged for her to attend a Dr Khandar, but her solicitor had raised difficulties with her doing so. After this, the respondent had requested a medical report from the applicant's doctor, but she had refused to give the necessary authority. In cross-examination 75 Mr Jamnadas noted that most of the decisions made by the partners of the firm were informal and not recorded. All of the letters sent to the applicant, whether signed by him or Mr Nand, were approved by the three partners. There had been no dissent from any of them. He also added that all letters received by the firm from the applicant's solicitors, were shown to all three partners. 76 Mr Jamnadas believed the applicant's complaint letter of 31 August 2004 was misleading and unfair. It was not true that her wages had been paid late on many occasions. He said that her wages had been late on only three occasions. However, he accepted the applicant had an arrangement with Mr Narsey to remind him to pay the wages. Mr Jamnadas agreed it would be wrong for an employee to have to keep reminding the employer to pay wages on time. He conceded the applicant had a valid concern. After receiving her complaint, Mr Jamnadas had checked with Mr Narsey. He was annoyed when the very next pay was also late. Mr Jamnadas acknowledged that he had not directly discussed the complaint with the applicant. 77 Mr Jamnadas put that the firm stopped paying the applicant on Thursdays because she would often take a sick day on Fridays. However, when shown the respondent's time and wages records, there was no sick leave recorded on any Friday between 9 January and 18 June 2004. Mr Jamnadas added that one of the other reasons for the failure to pay her on a Friday was that his wife (as the accountant) had stopped working on Fridays. 78 Mr Jamnadas believed the 31 August letter created the impression that the respondent was a bad employer. This wasn't true. He believed the applicant was not appreciative for the flexibility shown by the employer when she had been experiencing difficult personal circumstances. 79 As to the alleged meeting to discuss hours on 19 August 2004, it was Mr Jamnadas' evidence that the applicant was not told specifically what the change to her hours would be. However, the applicant would have well understood that she would be required to work later. 80 Mr Jamnadas acknowledged that the applicant had an arrangement with Mr Narsey to work from 9.00am to 5.00pm with half an hour for lunch. Even so, she would have still been required to work additional time to make up 38 hours. Mr Jamnadas disputed the applicant's claim that it would take at least 10 minutes to detour to the DX and arrive at the train station. He believed the detour would only take five minutes. The applicant should have left the office at 5.00pm. This extra five minutes until 5.05pm a day would make up the half an hour to 38 hours a week. 81 Mr Jamnadas agreed the final decision about the change of hours was not made until after the applicant's complaint letter of 31 August. However, he had been overseas at the time and returned in early September. Mr Jamnadas accepted the memo of 3 September had not given the applicant seven days' notice, as required by the Award. This was why the change was deferred to 13 September. 82 Mr Jamnadas had phoned Mr Prasad on 9 September as his victim's compensation file was to be closed around this time. As he hadn't spoken to Mr Prasad for some time, he took the opportunity to ring him and thank him for his instructions. Mr Jamnadas confirmed that office documents revealed that the last activity in the file was on 19 August 2004. This was when a letter was sent to Mr Prasad enclosing a refund cheque of $100. It was a coincidence he had phoned Mr Prasad nine days after receiving the applicant's letter of complaint. It was not his intention to discuss the applicant's employment. 83 Mr Jamnadas was questioned about the letter to the applicant of 10 September regarding her hours of work and, in particular the use of the expression "we rely on our employees to be honest in observing the hours to be worked". Mr Jamnadas said it was dishonest of her not to observe 38 hours a week. He first became aware of this in July 2004. He spoke to the applicant about it on 19 August, but didn't put it in writing until the 10 September letter. 84 Mr Jamnadas conceded that the respondent would never have written to the applicant about the firm's concerns had she not written her complaint letter of 31 August. The usual practice would have been to raise concerns with her informally. However, it now became appropriate to communicate with the applicant in writing. Mr Jamnadas denied threatening the applicant by referring to the employer's rights. It was just a reminder of the two way obligation in the employment relationship. Mr Jamnadas explained that he raised the 2001 domestic violence incident to demonstrate how the respondent had been sympathetic to her personal difficulties. He denied this reference was a "threat to play dirty." 85 Mr Jamnadas did not speak to the applicant about this letter and did not reply to the applicant's solicitor's letter of 19 September. Pressure of work prevented him from doing so. Mr Jamnadas agreed he did not speak to the applicant after she had filed her victimisation claim on 1 October 2004. 86 Mr Jamnadas gave evidence of his understanding of what was discussed at the meeting between the applicant and Mr Narsey and Mr Nand on 15 October 2004. The purpose of the meeting was to have a "without prejudice" discussion about her continued employment. It was clear her employment was not working out. The suggestion of resignation was discussed. However, the applicant was advised to discuss the matter with her solicitor before making any decision. Mr Jamnadas conceded that, as a general proposition, it would not be normal practice to convey offers of settlement direct to persons represented by solicitors. However, it was appropriate on this occasion, as the issue involved the firm's own employee. 87 On the next working day, Mr Jamnadas presented the applicant with the outstanding conveyancing invoice. He claimed both events were unrelated. Mr Jamnadas agreed he was annoyed when Mr Kumar's call was put through to him. However, there was no heated discussion. 88 When the applicant then went off sick, Mr Jamnadas had some doubts about her illness. Mr Nand wrote to her about "feigning headaches" as there were concerns with her medical certificate. The firm wanted further medical evidence. Mr Jamnadas eventually accepted that the applicant had been sick. He denied paying "lip service" to concerns about her speedy recovery and return to work. 89 Mr Jamnadas agreed the applicant always had keys to the office throughout her employment until after she had returned from sick leave. The employer had the right to issue keys to whoever it considered appropriate. The applicant had not been "singled out". He explained that when the locks had worn out, they were changed. It was a coincidence this happened while the applicant was on sick leave. Mrs Gole was given a new key, because she commenced work at 8.30am. The applicant didn't need a key, because there was always someone in the office when she arrived for work or went to lunch. Mr Jamnadas agreed the applicant would have to knock on the door if she went to lunch and returned before the doors were unlocked at 2.00pm. 90 Further, the applicant was moved to another desk because the firm was concerned that confidential communications with its legal counsel about this case might be viewed by the applicant. This would be improper. 91 In re examination, Mr Jamnadas was asked why he hadn't written to the applicant about her attitude and performance before 10 September 2004. In a small office it would have been totally inappropriate to communicate with each other in writing. However, after the applicant's problems working with people in the office, it became necessary to communicate with her in writing. 92 Mr Rahul Nand joined the firm as a partner in December 2002. It was Mr Nand's evidence that he called a brief meeting with Mrs Gole and the applicant on 19 August 2004 to consult with them about changing the firm's opening hours. This was necessary because of the loss of the GIO as a client and the need to extend the firm's hours to cater for more individual clients. The partners had decided to extend the hours from 9.00am to 5.00pm to 8.30am to 5.45pm, with two shifts of 8.30am to 5.15pm and 9.00 to 5.45pm. Mr Nand also expressed concern that the staff were not working the required 38 hours a week. Mr Nand asked both employees if there were any problems. When there was no answer, he said "we will advise you of the new hours shortly." The partners met later and decided Mrs Gole would be allocated the earlier shift, as she had to walk home from work and during winter it would be dark at 5.45pm. The applicant however, walked to the station along busy streets. Mr Nand noted that the applicant did not complain about the new hours until her solicitor's letter of 19 September. 93 Mr Nand claimed that some time prior to 19 August he became aware that the applicant was not happy at work. She had told him that she was looking for other jobs and asked if he would act as her referee. Mr Nand agreed. 94 It was Mr Nand's evidence that he told the applicant several times that her performance was well below standard. He had impressed upon her the need to improve her skills, reduce errors and improve her communication skills with clients and other staff. She had a very poor attitude and could not cope with constructive criticism. She would quarrel with him and answer him back. Mr Nand was aware the applicant had complained about him to Mr Jamnadas. 95 As to the meeting with the applicant on 18 October, Mr Nand deposed that he had said to her: We can come to a mutual arrangement whereby we will pay your full entitlement. You can discuss with your solicitor before you respond. He stressed the applicant had not been asked to resign. 96 Mr Nand deposed that on 26 November 2004, the applicant left the office at 1.00pm without informing the partners, or seeking permission to do so. She left a message to say that she was not feeling well. However, as her affidavit was signed on this day, Mr Nand believed she had left the office for the sole purpose of attending upon her solicitors. 97 In oral evidence, Mr Nand deposed that he and Mr Narsey had spoken to the applicant after receiving her complaint on 31 August 2004. He had no explanation as to why this discussion was not mentioned in his affidavit. Mr Nand said the issue of working 38 hours and using the office resources for personal use had been under discussion between the partners since July. The issues were not raised in response to her 31 August complaint letter. He wanted something done and regarded the applicant as dishonest about her hours. However, he agreed no action was taken until the letter of 10 September. Mr Nand conceded that, had it not been for the applicant's letter of 31 August, the respondent would not have written to her on 10 September about her performance. 98 Mr Nand queried the lack of detail in Dr Homsi's medical certificate. He agreed that the firm had not written to Mrs Gole for a similar explanation of her medical certificate. 99 Mr Nand confirmed he was the author of the 10 September letter. The matters contained therein had not been put to the applicant before the letter was sent. He added that the letter would probably not have been written, had it not been for the applicant's complaint letter of 31 August. Rather, the matters would have been raised with her informally. He said the references to domestic violence and flexibility in taking time off were designed to demonstrate that the firm was a good employer. The reference to the employer's rights was not a threat. It was merely a reminder to her. Mr Nand was asked about a letter in October 2004, which included a reference to an incident in July 2003. He agreed he had not raised this issue with her at any time previously. 100 Mr Nand was certain there had been a meeting with the applicant and Mrs Gole on 19 August to discuss the change of office hours. Mr Nand agreed there was no reference in the later memo to any meeting on 19 August. Mr Nand accepted that it wasn't until the applicant received this memo on 7 September, that she knew her hours were to be changed to 9.00am to 5.45pm. 101 As to the meeting with the applicant on 15 October, Mr Nand deposed that the partners had all agreed on an appropriate course of action. It was pointed out that as the applicant was unhappy at work, she could resign and receive her full entitlements. She was told to consider the offer and advise the partners later of her response. Mr Nand said the offer also included the end of the victimisation proceedings. The firm had made no contact with the applicant's solicitors to discuss settling the matter. While this was not the normal practice, it was appropriate in this case because the applicant was a member of staff. 102 Mr Nand denied paying "lip service" about being concerned with the applicant's health. The firm had given her the benefit of the doubt. It was simply trying to understand the extent of her medical condition. FURTHER EVIDENCE ON THE APPLICANT'S DISMISSAL 103 The applicant gave evidence concerning the circumstances leading up to, and including her dismissal, on 4 March 2005. She said she had not engaged in further discussions with the partners after their letter of 22 November, because she did not feel she could approach them after the way she had been treated. 104 On 2 March 2005, Mrs Jamnadas has asked the applicant to make out a receipt for a particular client. The applicant said she was busy and asked if someone else could do it. The applicant agreed she had issued receipts many times before and that such a task would only take two to three minutes. It was normal practice for the person handling the file to issue the receipt. While it was important to issue a receipt promptly, on this occasion, the client had actually left the office. She had not refused to issue the receipt, rather she said she would do it later. 105 Later that day, the applicant handed Mrs Jamnadas $960 as payment of the outstanding conveyancing debt. At 3.00pm Mrs Gole and the applicant were called to a meeting with Mr Jamnadas and Mr Nand. Mr Jamnadas said that the office hours needed to change to 8.00am to 6.00pm. He asked them if they could work longer hours. He had not specifically mentioned 5.30pm. Mrs Gole said that as it would be dark when she had to walk home, she didn't feel safe to work the longer shift. The applicant explained her difficulties with transport, but Mr Jamnadas wasn't interested. She then proposed working back when required or working back alternate weeks with Mrs Gole. Mr Jamnadas wasn't interested in her proposals. There was no argument with Mrs Gole about the issue. 106 The applicant was extensively cross examined on the arrangements she had to meet her husband and collect her daughter after work. She agreed that even if she left the office at 5.30pm, she would still have time to pick up her daughter and meet her husband around 6.20pm. She conceded the firm had legitimate reasons for proposing a change of office hours. 107 When Mrs Gole left the meeting, Mr Jamnadas told the applicant she had an attitude problem and she shouldn't tell Mrs Gole what to do. He said all the staff had problems with her. He told her to improve her attitude. The applicant agreed she began to smile unconsciously and Mr Jamnadas told her to stop. She didn't know why she started smiling and hadn't been aware of it at the time. She conceded it was not a smiling matter. She had not been laughing and she did not say "If you've got a problem with my attitude, what are you going to do about it?" Mr Nand then said "What do you plan to do when you are sacked?" 108 In oral evidence, the applicant agreed that in a small office, like Macquarie Partnership, it was essential that everyone acted professionally towards each other and the working environment should be friendly and cooperative. 109 In further evidence, the applicant denied she had a negative attitude. She had always tried to be cordial and cooperative. She asked Mr Jamnadas what he wanted her to do. Mr Jamnadas raised each of the allegations made by Mrs Gole and she was given an opportunity to respond. She denied having an attitude problem. She did not acknowledge her conduct was inappropriate. She explained to Mr Jamnadas what had happened over the issuing of the receipt. She had felt ambushed by Mr Jamnadas and Mr Nand. She was very upset and called her solicitor after work to explain what had happened. She agreed that she had not asked Mr Jamnadas to adjourn the meeting in order for her solicitor to be present. 110 At 4.30pm on 4 March the applicant was called to the conference room by Mr Jamnadas and handed a three page letter terminating her employment. The letter referred to the meeting held two days earlier and recounted the respondent's views of the two issues discussed - a change of hours and the applicant's attitude. The letter concluded: Upon further review of the situation since Wednesday's meeting, the firm does not consider your responses to the allegations of inappropriate conduct have been satisfactory. In addition, it has become quite clear that you have little or no intention to co-operate with the firm's endeavours to improve its practice (including the current review of office hours) and maintain a professional and friendly work atmosphere. In particular, your most recent conduct involving Rhuta Gole has created further disruption and hostility in the workplace. I note that you were warned about inappropriate conduct towards fellow employees as recently as 22 November 2004 and that this conduct was creating a hostile workplace. You were specifically warned that any further inappropriate conduct may result in termination of your employment. Accordingly, your employment with this firm is terminated as of today's date. The firm will provide you two weeks' pay in lieu of notice and other payments in accordance with your entitlements. 111 The applicant was very surprised she had been terminated on the day before her victimisation proceedings in the Commission, and particularly as Mr Jamnadas had told her to improve her attitude only two days earlier. 112 On 9 March, the applicant registered with an employment agency and began searching for jobs through the newspapers and the Internet. In a further affidavit, the applicant gave details of contacts made with a number of recruitment agencies seeking employment as a legal secretary. She was hopeful of securing a position soon. 113 In replying to Mr Jamnadas' evidence, the applicant said that no issue had ever been raised with her about his concerns with her handling of immigration inquiries. 114 The applicant referred to Mrs Gole's interest in working in physiotherapy. On one occasion, she had told Mrs Gole to take leave to do a physiotherapy exam. She wanted to assist her and told her she could cover the work in her absence. 115 The applicant agreed that the allegations in the warning letter of 22 November had been put to her in a meeting with the partners on the same day. She denied the allegations then and continued to deny them. She regarded the allegations as an insult. The applicant refused to accept that she needed to make changes to her conduct or that her conduct had been improper. She understood the letter was a formal warning and that disciplinary action, including dismissal, might follow. She agreed the letter invited her to discuss matters with the partners. However, she had declined to do so. She believed the onus was on the partners to approach her in respect to her conduct and performance, not the other way round. 116 The applicant had refused the firm's request for her to see a second doctor about her medical condition. As to her alleged typing errors, the applicant claimed they were minor matters; even though she accepted that typing errors may have serious consequences. However, no typing errors had ever been brought to her attention following a complaint. 117 The applicant believed that after she returned to work in November, Mrs Gole's attitude towards her had changed. Mrs Gole had shouted at her and spoke to her in a loud voice. She had raised one example with Mr Narsey. 118 In re examination, the applicant was shown her letter of termination and warning letter of 22 November. She said the reference symbols at the head of the letters indicated that Mrs Gole had typed both letters. Respondent's further evidence 119 Mr Jamnadas deposed that after his meeting with the applicant on 22 November, he noticed a positive change in the applicant's attitude to work and she became friendlier with Mrs Gole. The applicant never came to him or the other partners to discuss the matters in the letter. 120 Mr Jamnadas believed he and the partners had been very tolerant of the applicant's behaviour. However, she was not happy working for the firm. She had even quarrelled with his wife. The firm was a good employer and had offered the applicant various assistance. It was true the partners had concerns over the applicant's alleged sickness. However, she refused to cooperate by providing a second medical opinion. 121 Mr Jamnadas had never heard Mrs Gole shout at the applicant. Because the office is small, he would have heard any shouting. He denied ever influencing Mrs Gole to change her attitude towards the applicant. Moreover, Mrs Gole had come to him crying and complaining about the applicant's conduct on two occasions. Mr Jamnadas had not personally witnessed any occasion when the applicant had acted inappropriately towards Mrs Gole. 122 Mr Jamnadas said that the applicant had created a fuss over the issuing of a receipt; a task which should have taken no more than two minutes. He agreed however, there were circumstances where it was not necessary to issue receipts until a later time. 123 As to the meeting on 2 March, Mr Jamnadas had not proposed a 6.00pm close of the office. He denied the comments he was alleged to have made by the applicant. She did not appear to be upset, but rather was carefree and cavalier and had been laughing during the meeting. Mr Jamnadas said the applicant was perfectly calm when he handed her the termination letter - as if she had expected it. He believed it was the proper course to terminate the applicant's employment. 124 Mr Jamnadas described the firm's financial position as "a crisis". All the partners were facing personal financial difficulties. He tendered the firm's ATO returns and bank statements. In cross examination, Mr Jamnadas agreed he and the partners had an interest in a medical practice business. 125 In cross examination, Mr Jamnadas accepted that some of his evidence had been sourced from Mrs Gole and the other partners. Mr Jamnadas denied discussing Mrs Gole's evidence with her. 126 Mr Jamnadas accepted that he raised the change of hours with the applicant five days before the proceedings in the Commission, knowing that the matter was an issue in the proceedings. He had to run a business and he believed the applicant could have worked the extended hours, if she had wanted to. The 2 March meeting involved both employees as both were affected and he wanted to treat them equally. The meeting was not about a discussion of ideas, as the firm had a definite proposal to put. The applicant's refusal to cooperate was one of the reasons for her dismissal. 127 However, Mr Jamnadas acknowledged the applicant was not warned her answers during the 2 March meeting could result in her termination. She was also not told that her answers concerning Mrs Gole's allegations might result in her dismissal. There was no new event or conduct between this meeting and her dismissal two days later. However, as the applicant would not even acknowledge her mistakes or conduct, there was little hope she would improve. 128 Mr Jamnadas reaffirmed that at the meeting on 2 March, the applicant was not informed her job was at risk or that she could be dismissed if she didn't agree to a change of hours. He explained that he didn't want to put her under that sort of pressure. No further contact was made with her after the meeting until she was dismissed. Mr Jamnadas accepted that towards the end of the meeting the applicant offered to stay back for urgent work, or work alternate weeks. However, this offer only reinforced his view that she could work back without any difficulty. 129 Mr Jamnadas agreed that the applicant's termination letter was typed by Mrs Gole and given to the applicant at 4.30 on Friday afternoon. Mrs Gole had probably also typed the 22 November warning letter. He was asked if he thought this was inappropriate. It had not been his preference for her to do so. However, he said there was no one else available to type the letters. 130 Mr Jamnadas deposed that all of the partners had agreed to terminate the applicant's employment after legal advice had been obtained. The partners had considered the applicant's work history and her responses at the 2 March meeting. He had considered the warning letter of 22 November and the events in 2004. Mr Jamnadas believed that the applicant was uncooperative in respect to changing her hours. Her cavalier attitude during the 2 March meeting was also a factor. He said the way the applicant handled immigration matters was not relevant to the dismissal decision, but it did disclose her general attitude and lack of enthusiasm for her work. 131 It was Mr Nand's further evidence that he had never seen or heard Mrs Gole speak in a loud or abrupt manner. On the other hand, the applicant had argued and quarrelled with every member of staff, including the partners. However, Mr Nand could not recall any specific incident - other than Mrs Gole's two complaints. Mr Nand accepted that Mrs Gole had never sought the applicant's dismissal, nor had she said she couldn't work with her. Mr Nand agreed that Mrs Gole was not warned about losing her temper in the meeting on 2 March. 132 In respect to this meeting, Mr Nand deposed that the applicant did not appear to have been under any pressure. On the contrary, she was laughing, answering back and openly defying Mr Jamnadas' authority. She understood the reasons for the extended hours, but flatly refused to work until 5.30pm. He believed there was no obstacle to her doing so; she was simply unco-operative. He pointed out the seriousness of the matter to her. She had been repeatedly asked to improve her attitude and warned in writing. She simply refused to acknowledge there was a problem. 133 The main reason for the applicant's dismissal was her refusal to acknowledge that she needed to improve, despite being told to do so several times, and as far back as 2003. The final decision to dismiss her had been made by the partners on Friday 4 March. Their view had not been formed before the Wednesday meeting. He said it was pointless to have raised the matters of concern again with her after 2 March, as there was no prospect of improvement. 134 Mrs Rhuta Gole was subpoenaed to give evidence as she was reluctant to do so willingly. Mrs Gole had resigned from the respondent on 14 March 2005 for personal reasons. On 10 March she had attended work, but had gone home sick, after seeking Mr Jamnadas' permission to do so. She had not been well enough to attend the Commission the next day due to an illness which she described as serious. 135 Mrs Gole testified that a meeting was held on 19 August 2004 between herself, the applicant, Mr Nand and Mr Jamnadas. The meeting had been held to discuss a change in office hours. She had remembered the meeting because a memo arrived later on 3 September. At the meeting Mr Nand had explained the need to gain more clients by extending the office hours following the loss of the GIO contract. The times were to be from 8.30am to 5.45pm. Neither she nor the applicant had responded at the time. 136 In cross examination, Mrs Gole conceded that her memory of the 19 August meeting may have been affected by typing the date in the respondent's affidavits. However, she explained that as she had gone on holidays on 20 August and returned on 3 September the meeting must have been before she went on holidays. 137 On Friday 3 September Mrs Gole had phoned the applicant and told her about the change of hours. The applicant appeared surprised and said "oh, I see". The applicant called Mrs Gole on Sunday and told her the hours were not suitable and would she consider swapping the shifts with her. Mrs Gole said she would think about it. 138 On the following Monday or Tuesday the applicant asked Mrs Gole to sign a statement saying she was happy to work late. Mrs Gole refused to sign because she was not happy to do so. The applicant then said she would have to advise her solicitor of the situation. 139 Mrs Gole referred to the meeting on 15 November (the day the applicant returned to work) concerning the reassignment of duties. Soon after this meeting, minor conflicts started with the applicant concerning cleanliness in the office, her bossiness towards her and timesheets. She was upset that the applicant had accused her of not cleaning up. Mrs Gole complained to Mr Jamnadas and had cried in front of him. Mrs Gole said that while Mr Jamnadas did not get back to her, she noticed the applicant was normal again and everything was fine. 140 While accepting she had arguments with the applicant, Mrs Gole denied ever shouting or speaking loudly to her. Rather, the applicant was arrogant and rude to her. She was very disappointed and complained to Mr Jamnadas. She also complained to Mr Narsey about two incidents a few days before the applicant's dismissal concerning the delivery of documents to the Office of State Revenue and the issuing of a receipt. 141 Mrs Gole also gave evidence concerning the meeting on 2 March. Mr Jamnadas said the office needed to be open between 8.30am and 5.30pm. She could not work late because it would be dark when she walked home. The applicant also said she could not work late. They then had an argument and Mr Jamnadas told them to stop arguing. Mrs Gole was then excused from the meeting. 142 Mrs Gole could not recall if she had typed the respondent's affidavits or the warning and dismissal letters. She accepted she may have done so. However, she hadn't read the documents - merely typed them from the dictaphone. She had not discussed her evidence with Mr Nand or Mr Jamnadas. 143 In cross examination, Mrs Gole agreed that when she presented a doctor's certificate in March, she had not been asked by the employer to go to another doctor and was not warned that the certificate was lacking in detail. 144 Mrs Gole confirmed she lost her temper at the 2 March meeting and had not been warned about doing so. She had similarly not been accused of dishonesty when she had been working the same hours as the applicant. This arrangement had been agreed to by Mr Narsey. SUBMISSIONS For the applicant 145 Mr Easton provided a helpful outline of submissions which I reproduce below. He elaborated on this outline in oral submissions. 146 Out of time application 1. The application for relief in Matter IRC 5909/2004 was filed on 5 October 2004. 2. The applicant alleges that the respondent engaged in detrimental conduct from September 2004 onwards (including 3 September, 9 September and 10 September). 3. To the extent that the application filed on 5 October 2004 was out of time under s213(3), the applicant submits that there is a sufficient reason to accept the application out of time. 147 Onus and Legislative Schema 1. The applicant has made two applications for relief in relation to substantially the same events regarding her employment at Macquarie Partnership. There are different onus requirements for each application. 2. In the victimisation proceedings the rebuttable presumption in s210(2) of the Act causes the following: a. The applicant bears the onus to establish the facts upon which the allegations are made; b. The respondent bears the onus to displace the rebuttable presumption arising from the allegations. The respondent must positively satisfy the Commission that the applicant's conduct (in making her complaint) was not a substantial and operative cause of the detrimental action. 3. In the unfair dismissal proceedings, the applicant bears the onus of establishing that the dismissal was unfair. 4. To the extent that the respondent asserts that the applicant's conduct on 2 March 2005 constitutes serious and wilful misconduct, the respondent bears the legal burden of establishing that the applicant conducted herself in the manner alleged to be offensive to the employment relationship. See Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3 (1990) 35 IR 70; Franklins Limited v Webb (1996) 72 IR 257; Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 ; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211. 148 The respondent's corporate mind – adverse inferences and presumptions 1. The respondent is a partnership of three and as a matter of general law the conduct of each partner is binding upon each other partner. If one of the partners acted with an improper purpose then each partner is taken to have so acted with the improper purpose. 2. There is extensive evidence that the third partner, Mr Narsey, actively participated in the respondent's decision making process. 3. There are no satisfactory excusing circumstances proffered by the respondent as to why the third partner, Mr Narsey, did not give evidence in these proceedings. As such it is readily open for the Commission to draw the inference that Mr Narsey's evidence would not have assisted the respondent (see Jones v Dunkel (1959) 101 CLR 298) 4. More so, in the context of victimisation proceedings where the respondent must displace a rebuttable presumption against it, the respondent's failure to call Mr Narsey is fatal. The Commission is bound by High Court authority to presume that Mr Narsey acted for an improper reason (see Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong Council (2000) 101 IR 143 and Greater Dandenong Council v Australian Municipal, Administrative, Clerical and Services Union 111 IR 121. 5. In any event, the evidence of Mr Jamnadas and Mr Nand establish that they acted for improper reasons and as such the partnership is liable to the same extent as each individual partner (see Partnership Act ). 149 Victimisation - Generally 1. the elements of enforcement proceedings under s213 are: a. The respondent was an employer or an industrial organisation; b. the victimised person was an employee or prospective employee; c. the victimised person either: i. was of a status described under s210(1)(a) or (b); or ii. engaged in conduct described in s210(1)(c)-(k); d. because of the victimised person's status or conduct the respondent set about on a course of conduct that caused the person to suffer injury, hardship or loss or the respondent otherwise treated the person harshly, unfairly or to their disadvantage (the "detrimental conduct") (see Davis v Amalgamated Television Services Pty Ltd (1998) 81 IR 364); and e. the detrimental conduct took place in relation to the victimised person's employment. 2. The respondent was an employer and the applicant was an employee of the respondent. 3. The applicant engaged in conduct that Parliament intended to protect under s210(1), viz: a. she advised her employer that she had made a complaint to the "Department of Industrial Relations" in relation to the late payment of her wages and as such claimed a benefit to which she was entitled under the industrial relations legislation or an industrial instrument (as defined by s8) – protected by s210(e); b. she advised the respondent that she had informed a person (being a person at "the Department of Industrial Relations") of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument – protected by s210(f); c. through her solicitors, she advised the respondent that she proposed to participate in proceedings relating to an industrial matter – protected by s210(g); and d. she made an application for relief from victimisation under s213 of the Act, which is of itself conduct in participating in proceedings relating to an industrial matter (protected by s210(g)) and is a claim for a benefit under industrial relations legislation (protected by s210(e)). 4. The respondent set about on a course of detrimental conduct towards the applicant in her employment, ultimately resulting in her termination. 5. The respondent engaged in the detrimental conduct because the applicant engaged in conduct that Parliament intended to protect under s210(1): 6. As such the respondent unlawfully victimised the applicant in her employment. 150 Unfair dismissal generally 1. Generally, and in the present circumstances, a dismissal that is an act of victimisation prohibited by s210(1) is harsh, unjust and unconscionable (see Donovan and Another v Kensington Pharmacy and Newsagency [2004] NSWIRComm 385 ). 2. In any event, the dismissal was harsh, unjust and unconscionable: a. The dismissal was substantively unfair – the basis upon which the applicant was terminated was harsh, flawed and improper. b. The respondent did not afford the applicant procedural fairness: i. prior to, or at the time of the meeting on 2 March 2005, the respondent did not inform the applicant that her responses and conduct at the said meeting could result in her termination; ii. the respondent did not afford the applicant the opportunity of a witness, including her solicitor - whom the respondent knew to be representing and advising the applicant; and iii. the applicant was not given the opportunity to respond to the respondent's reasons for dismissing her. c. The respondent's conduct in dismissing the applicant and in the events of the week immediately prior to Monday 7 March 2005 are arguably contemptuous. As such the dismissal was unconscionable and generally unfair. 151 Remedy 1. Both the victimisation and the unfair dismissal provisions of the Act provide for remedies of reinstatement and compensation (see Donovan v Kensington Pharmacy and Newsagency ). 2. Reinstatement or re-employment are not sought and are not practicable. 3. The applicant seeks compensation. 4. The applicant has not obtained new employment. 5. The applicant has had to endure the respondent's unlawful and disgraceful conduct. No employee should have to endure conduct of this kind. 6. Compensation is appropriate in light of the manner in which the respondent has victimised and terminated the applicant's employment. 7. Costs are available and appropriate. 152 Mr Easton listed the following examples of the respondent's detrimental conduct towards the applicant: - the applicant's hours of work were changed to her detriment and without consultation; - the respondent treated her less favourably in its dealings with her after 31 August 2004; - the respondent was no longer prepared to be "tolerant" of matters in which it was previously tolerant after 31 August 2004; - the respondent made contact with the applicant's parents-in-law to criticise the applicant's conduct at work; - on 10 September 2004 the respondent wrote to the applicant: 1. in circumstances that it would not otherwise have done so but for the letter sent by the applicant on 31 August 2004; 2. in substance, accusing her of maintaining a dishonest practice in relation to her hours of employment, which: i. the respondent would not have otherwise written to her about; and ii. the respondent did not write to Mrs Gole about in circumstances not materially different; iii. making vague, unsubstantiated and improper allegations against the applicant, centrally that her "attitude had not been congenial with the required atmosphere and environment of the firm" and that she gave an "impression" that she did not appreciate that "(the respondent) has been a good employer"; iv. in offensive and unprofessional terms, including a gratuitous reference to domestic violence. v. threatening that "this firm as your employer is also protected by equal rights under the employment laws and we shall not hesitate in exercising those rights". - the respondent wrote to the applicant about minor and petty matters such as the applicant's failure to italicise words in a typing task performed by her, for example the memorandum of 19 October 2004 said to have been written "as a matter of fairness so that (the applicant) may hopefully address the particular concerns raised in relation to her work"; - the respondent formalised its purported complaints with the applicant's conduct by way of letters and memorandums in a manner in which it did not do so previously; - the applicant's very next fortnightly pay after 31 August was late; - the respondent caused the applicant to suffer the indignity of having her co-worker type and be privy to matters between the applicant, her solicitor and the respondent, including warning letters and affidavit material in these proceedings. - On 15 October 2004: i. the applicant was called into a meeting, without warning; ii. the applicant was not offered or afforded representation by her solicitor (whom the respondent knew to be acting on her behalf); iii. the applicant was told that the firm was unhappy with her remaining in employment; iv. the applicant was invited to resign her employment; v. the applicant was "offered" an inducement to resign, being the amount of entitlements that the employer would have to otherwise pay her if it terminated her; and vi. such "offer" was made on the basis that it would conclude the victimisation proceedings already commenced. - On the next working day after the applicant refused to resign the respondent demanded payment for conveyancing services completed one year before for which it did not otherwise require her to pay; - on 22 October 2004 the applicant was called a term which translates in English to "shameless woman"; - the respondent accused (verbally and in writing) the applicant of feigning illness; - the respondent insisted upon the applicant attending a medical examination at a medical centre 40 minutes from her home for ultimately no purpose; - the respondent wrote to the applicant whilst on sick leave indicating "your absence from work causes us significant disruption"; - the respondent issued a written warning (typed by the co-worker whom had complained about her) about matters that would not otherwise have resulted in a written warning, and such warning was then specifically relied upon by the respondent to terminate the applicant; - the applicant was accused of causing a " hostile workplace "; - upon her return from sick leave the applicant was singled out: i. the locks to the respondent's premises were changed and the applicant was not given a key; and ii. the applicant had restricted access to the firm's computer system. - upon receipt of a complaint about the applicant's conduct the respondent again pressed the applicant to change her hours of employment; - five calendar days before she was due to give evidence to this Commission the applicant was called upon to answer "much questioning" in relation to her evidence in these proceedings; - on 2 March 2005 the respondent counselled the applicant unfairly; and - on 4 March 2005, the respondent terminated the applicant unfairly. For the respondent 153 Mr Moir provided a detailed and comprehensive written submission which he supplemented with oral submissions. 1. The respondent's position on each of the allegations is as follows: (a) the applicant's hours of work were changed after direct consultation with the applicant and another employee (Rhuta Gole) on 19 August 2004 (ie, prior to 31 August complaint), in accordance with the employer's Award obligations, and in order to meet operational exigencies; (b) the respondent did not telephone the applicant's parents-in-law to discuss her work performance. Rather, Mr Jamnadas telephoned the applicant's father-in-law because he was closing the file in relation to Mr Prasad's victims' compensation matter. It was normal practice for Mr Jamnadas to contact a client before closing the file; (c) the applicant had been counselled about her work performance and attitude prior to 31 August 2004, although the respondent acknowledges that the prior counselling was relatively informal and not documented; (d) the applicant was not pressured to resign (in the absence of her solicitor); rather she was invited by the respondent to contact her solicitor because the respondent was willing to negotiate a settlement of her claims; (e) the applicant was never abused or referred to as a " shameless woman " (interestingly enough, an allegation not pursued during the cross-examination of the respondent's witnesses); (f) the respondent held reasonable doubts about the applicant's alleged illness due to stress and anxiety in light of the applicant's previous work history, and the lack of any objective information supporting her claim (apart from bare medical certificates). In order to remove those doubts, the respondent made reasonable requests for the applicant to provide further information. The applicant refused to co-operate; (g) the applicant and her husband had been reminded on several occasions prior to 31 August 2004 about non-payment of the outstanding conveyancing account; (h) the office lock was changed in mid-November 2004 simply because it was broken. The applicant did not require a key in order to enter or leave the workplace, especially after her original hours of work had been restored; (i) the change in the applicant's seating arrangements and her access to the computer system was both originally accepted by the applicant and unavoidable in the circumstances confronting the respondent; (j) the applicant's pay was late on only one other occasion after 31 August 2004 due to an administrative oversight, and the applicant was reassured that her complaint was being treated seriously by the respondent; (k) the applicant's employment was terminated due to ongoing inappropriate conduct in the workplace, including continued harassment, rudeness and abuse of a fellow employee, and her demonstrated unwillingness to change her attitude and co-operate with her employer. 2. The respondent also submits that the "trigger" for the applications filed by the applicant – namely, the applicant's letter of complaint dated 31 August 2004 – did not represent a genuine attempt by the applicant to participate in the industrial justice system, thereby warranting the intervention of the Commission. Rather, the complaint was misleading, exaggerated and deliberately provocative. It was clearly designed to "set up" the employer for a complaint of alleged victimisation. 3. Overall, the allegations raised by the applicant underscore the reality that the applicant has become increasingly disaffected with her employment at Macquarie Partnership over recent years. The applicant's disaffection appears to stem from rejection of her requests for a salary increase in mid-2003, and various organisational changes within the respondent's practice which had led to an increase in the applicant's workload. 4. The history of the applicant's employment with the firm shows that the applicant was always treated fairly and compassionately, particularly when personal problems impacted upon her ability to attend work. In addition, the respondent had always responded in a fair and reasonable manner when the applicant had raised matters concerning her employment entitlements in the past (for example, when the applicant queried her entitlements to sick leave and annual leave loading in the second half of 2003). This is a far cry from victimisation. 5. The respondent submits that the evidence simply does not sustain the applicant's claim that she was victimised as a consequence of her complaint about late payment of wages. The multiplicity of employer actions about which the applicant complains were either taken to meet legitimate business interests, or are simply untrue, or grossly exaggerated. 154 Credit of witnesses 1. The multitude of allegations brought by the applicant raise very important issues of credit. Much of the Commission's decision in this case revolves around whether the evidence of the applicant or the respondent is to be preferred. 2. The Commission's task in assessing the credit and credibility of the witnesses is assisted by the objective documentary evidence tendered in the proceedings, and the independent testimony of an ex-employee of the respondent, Mrs Gole. 3. The respondent submits that the applicant and her witnesses were shown to be ready to mislead the Commission on important matters to bolster her case. In addition, there were numerous inconsistencies in the applicant's evidence and the evidence of her witnesses. These matters are explored further below. 4. Naturally, some of the issues of the applicant's credit are more important than others. However, apart from the importance of some of them, the sheer number of inconsistencies leads the Commission to arrive at a position where it is impossible to believe the applicant's evidence over that of the respondent. 5. The respondent also submits that there was a distinct pattern in the evidence of the applicant and her witnesses – namely, to deny all knowledge, especially where there did not appear to be any documents to prove otherwise. However, this led to the discovery of a number of inconsistencies in the applicant's evidentiary case when documentary material was actually produced. 6. The most glaring example of the applicant attempting to mislead the Commission concerned her strenuous and repeated denials that any meeting took place on 19 August 2004 to discuss the proposed change of office hours. Both Mr Jamnadas and Mr Nand gave evidence that a meeting occurred on 19 August in the presence of the applicant and Mrs Gole. This evidence was independently confirmed by the testimony of Mrs Gole. 7. In contrast to the applicant's evidence, the respondent submits that the evidence of Mr Jamnadas and Mr Nand was given in an open and candid manner. 8. Further, the evidence of Mr Jamnadas and Mr Nand was reinforced in many key respects by the testimony of Mrs Gole. Although Mrs Gole was clearly uncomfortable about appearing before the Commission, she gave her evidence in a straightforward, open and honest manner. Indeed, her credibility was never questioned throughout her testimony, including during her cross-examination by the applicant's counsel. 9. The Commission will also note that Mrs Gole never hesitated or back-pedalled in her evidence. She was always forthright. 10. Moreover, Mrs Gole had absolutely no motive to give misleading or exaggerated evidence before the Commission. She is not a party to the proceedings. Further, as mentioned above, she was a reluctant witness – a subpoena had to be issued for her attendance. In addition, she is no longer in any way beholden to the respondent. Mrs Gole ceased to be employed by the respondent on 14 March 2005 when she resigned due to personal reasons (ie, three weeks before she appeared in the Commission on 6 April 2005). 11. Further, despite persistent questioning, Mrs Gole was resolute that she had not discussed her evidence with any person prior to appearing in the witness box. 155 Out of Time 1. The original application filed with the Commission falls outside the 21 day time limit prescribed by s213(3) of the Act. 2. The original application asserts that the applicant was unlawfully victimised by the respondent on the following dates: 7 September 2004; 9 September 2004 and 10 September 2004. 3. The application was lodged with the Commission on 5 October 2004. Accordingly, the application is 7 days outside the mandatory time limit in respect of the first alleged contravention (7 September 2004) and 4 days outside the time limit in respect of the last alleged contravention (10 September 2004). 4. The respondent accepts that the Commission retains a discretion under s213(4) of the Act to extend the 21 day time limit where there is sufficient reason to do so, having regard to the factors identified in the sub-section. The principles regarding the Commission's discretion to waive time limits of this kind are now well-settled: see Donovan and Anor v Kensington Pharmacy and Newsagency . 5. The respondent does not oppose or support any extension of time being granted in this particular case. The respondent simply notes that no explanation appears to have been put forward for the applicant's delay. The applicant engaged her solicitors (Quinns) from 17 September 2004, but apparently failed to lodge her claim until 5 October 2004. 6. Moreover, for the reasons set out below, the applicant has failed to make out a case to the required standard of proof that there was victimisation, and, in any event, the remedies sought by the applicant are unwarranted in the circumstances of the case. 156 Standard of proof 1. The s213 proceedings before the Commission are civil, not criminal or quasi-criminal in nature: Davis v Amalgamated Television Services Pty Limited . Nevertheless, the allegations against the respondent are serious in character because the allegations concern an employee's participation in the system of industrial justice. 2. There are strict requirements for proof in relation to a claim under s213 which is addressed in s210(2). See by way of analogy, Galvin v Renito Pty Ltd [1999] FCA 1005, Treadwell v Acco Australia Pty Ltd [1997] FCA 1440, Penwill v National Jet Systems Pty Limited [2002] FCA 5 and Laz v Downer Group Ltd [2000] FCA 1390. 3. The respondent submits that the standard of proof in any s.213 proceedings is the standard laid down in Briginshaw v Briginshaw (1938) 60 CLR 336. Moreover, the Briginshaw standard should apply in the current proceedings because the applicant has levelled serious allegations of improper conduct against the respondent. 4. The Briginshaw standard has been held to apply with respect to the corresponding provisions dealing with freedom from victimisation under the Federal Workplace Relations Act 1996 ("WR Act") : Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 at [200]-[209] per R D Nicholson J. 5. The seriousness of the allegations against the respondent reinforces the proposition that the Briginshaw standard applies in respect of the s213 and s84 applications. The classic statement of principle in this respect is to be found in the judgment of Dixon J in Briginshaw , a case concerned with a petition for divorce on the ground of adultery: ... reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, " reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences . . . [E]xactness of proof is expected": (1938) 60 CLR 336 at 362-363 per Dixon J 6. Further, as Menzies J pointed out in an oft-quoted passage of Jones v Dunkel (referred to at p 375 of Davis) , where direct proof is not available the circumstances appearing in evidence must be capable of giving rise to a reasonable and definite inference. In other words, "they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture" . 7. Accordingly, the claims made by the applicant require resolution by a " careful weighing of testimony, close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion ": Briginshaw at 354 per Rich J. This is still an application of the civil standard of proof on the balance of probabilities: see Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450 per Mason CJ, Brennan , Deane and Gaudron JJ. 157 Requirements of the statutory provisions 1. The determination of the s213 application before the Commission involves a two-staged exercise: (a) the Commission must make a finding as to the alleged contravention of s210; and (b) if a contravention is established the Commission may, in the exercise of its discretion make an order or orders for relief under one or more of the sub-sections in s213(2). See Donovan and Another and Kensington Pharmacy . 2. The first stage described above requires the following findings of fact to be made by the Commission: (a) whether the applicant undertook or participated in the proscribed activities which are the subject of statutory protection under s210(1); (b) whether the applicant suffered any victimisation (as described in Davis and other relevant authorities); (c) whether the respondent is able to rebut the presumption under s210(2) by demonstrating that any hardship or detriment did not arise from the applicant's involvement in the proscribed activities. 3. The respondent concedes that the applicant claimed a benefit to which she was entitled under an industrial instrument and therefore element (a) above is satisfied. 4. However, the respondent submits that the applicant has failed to establish that the conduct of the employer is capable of amounting to victimisation in respect of each and every allegation raised by the applicant. 5. Moreover, the respondent submits that the evidence establishes that the benefit claimed by the applicant was not the "substantial" and "operative" cause of the employer's alleged actions. 6. The respondent further submits that the remedies sought by the applicant in the s213 application are unwarranted in the exercise of the Commission's discretion. 7. The determination of the s84 application before the Commission also falls into two distinct parts: (a) to determine whether or not, in terms of s84(1), the dismissal was "harsh", "unreasonable" or "unjust": Macleay Valley Health Service v Jeffree (1994) 58 IR 187 at 192; and (b) if so, to determine as a matter of discretion whether the relief sought (in this case, monetary compensation) is the appropriate remedy: Leeds and Northrup Pty Ltd v Hull (1992) 46 IR 11. 8. In considering whether a termination is "harsh", "unreasonable" or "unjust" the Commission is required to consider those matters found in s88 of the Act. These matters are addressed further below. 9. In sum, the respondent submits that the applicant was dismissed for a valid reason having regard to the nature of the respondent's working environment, and that the dismissal did not give rise to any procedural unfairness warranting the intervention of the Commission. 158 Onus of proof and causation 1. The applicant bears the onus of proving that her dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR 273 at 279 per McKeon J and Nowra Bomaderry Leagues Club Ltd v Federated Liquor and Allied Employees' Union of Australia, New South Wales Branch (1986) 15 IR 463 at 464. 2. The respondent concedes that the situation is different with respect to the s213 application. If the applicant proves conduct which may amount to victimisation and alleges that the conduct was carried out for an impermissible reason, then it is for the respondent to prove, on the balance of probabilities, that the impermissible reason was not the substantial and operative cause of the conduct: s210(2). 159 Mr Moir dealt in detail with the facts in this matter and the inferences to be drawn from them. In particular he referred to: - applicant's complaint of 31 August 2004; - change in hours of work; - contact with the applicant's parents-in-law; - letter of 10 September 2004; - request to tidy up Mr Nand's office on 20 September 2004; - partners leaving the office on 23 September 2004; - meeting held with the applicant on 15 October 2004; - requests for the applicant and her husband to meet outstanding conveyancing accounts; - counselling letter dated 19 October 2004; - applicant's absence from work between 19 October and 12 November 2004; - applicant's return to work on 15 November 2004; - office keys; - warning letter dated 22 November 2004; - termination of the applicant's employment. 160 Unfair dismissal 1. In determining whether the dismissal was unfair, the Commission is required to consider those matters found in s88 of the Act. These matters are addressed below. 161 Reason for termination 1. The applicant was provided with reasons for her dismissal. The respondent also refers to the evidence of the applicant and Mr Jamnadas. 2. Those reasons being: (a) inappropriate conduct toward a fellow employee; (b) failure to maintain a professional and friendly work atmosphere; (c) lack of co-operation with the respondent's endeavours to improve its practice, including the respondent's review of office hours. 162 Whether such reasons would justify the applicant's termination 1. The respondent submits that the reasons in the above paragraph, if found to exist by the Commission, would justify the termination of the applicant's employment. In our submission, the failure of a legal secretary to act appropriately toward fellow employees and maintain a professional and amiable work atmosphere go directly to the legal secretary's conduct and attitude, and provide a valid reason for termination. 2. In addition, an employee's failure to co-operate with the employer's reasonable endeavours to implement workplace change constitutes a valid reason for dismissal. 163 Whether the reasons had a basis in fact (a) Inappropriate conduct in the workplace i. The respondent submits that there is ample evidence in the affidavits by Mr Jamnadas and Mr Nand that the applicant engaged in inappropriate behaviour toward another employee. This is consistent with the viva voce evidence of Mrs Gole. ii. The applicant's conduct was not an isolated incident but a history of conduct that displays a disregard, if not contempt for management and authority of the respondent's operations. iii. The applicant's persistent criticism and badgering of Mrs Gole was not conducive to the manner in which the respondent wanted work to be performed and the environment in which it was to be performed. iv. The environment the respondent wanted was explained to the applicant and she had been informed of what was expected of her and the conduct that she should display. (b) Failure to maintain a professional and friendly work atmosphere. i. Again, the respondent submits that there is clear evidence that the conduct of the applicant was disruptive and damaging to the harmonious and effective working environment necessary for the type of firm engaged in by the respondent. ii. The respondent refers to the evidence of Mr Jamnadas, Mr Nand and Mrs Gole. (c) Lack of co-operation with the respondent's endeavours to improve its practice, including the respondent's review of office hours i. The respondent submits that the evidence establishes the applicant was not prepared to co-operate with the firm's reasonable request to extend the office hours. The evidence also establishes that the explanations given by the applicant as to why she could not stay back till 5.30pm were not genuine. The evidence shows that the applicant adopted an inflexible, even obstructionist approach. 164 Opportunity to make out a defence 1. Following the warning letter dated 22 November 2004, the applicant was clearly on notice that any further inappropriate conduct toward colleagues may result in the termination of her employment, as acknowledged by the applicant during cross-examination. 2. Even though the applicant refused to accept (and still refuses to accept) the criticisms of her conduct outlined in the 22 November warning letter, the evidence establishes that the applicant did alter her behaviour for a short period after the warning letter was issued. 3. The evidence establishes that the applicant was given an opportunity to respond to the additional complaints made by Mrs Gole during the first week of March 2005. The applicant was given this opportunity during the meeting on 2 March 2005. 4. The respondent concedes that the applicant was not specifically given any further opportunity to respond to the incident involving Mrs Gole prior to her dismissal. However, in circumstances where the applicant had a history of flatly denying all criticisms and complaints about her, and continues to deny that her conduct was improper, the respondent submits that the applicant was not denied any procedural fairness in the circumstances of this case. 5. As Mr Nand and Mr Jamnadas pointed out under cross-examination there was little point going back to the applicant for any further response given the applicant's consistent denials that there was anything wrong with her behaviour. As Mr Nand put it in his evidence: A. It was pointless. How many times do you have to tell an employee she has to improve? Each time you bring it to her attention it is the first time. There can only be the first time. How many times can it be the first time? There is no prospect of improvement. 165 Previous warnings 1. The respondent submits that the applicant had been given previous warnings about her work conduct and attitude and the need to improve. 2. Further, the applicant had been placed on notice prior to 4 March 2005 that she could be dismissed if her work conduct and attitude did not improve. 166 Summary 1. In sum, the respondent submits that the applicant has failed to make out a case to the required standard of proof that there was victimisation. Even in the event that some victimisation could be established, the evidence is unable to sustain a finding that victimisation was the substantial and operative cause of the respondent's conduct. 2. The respondent submits that the applicant's employment was terminated for valid reasons and she was provided with an opportunity to respond to those reasons. However, she flatly denied all criticisms and complaints and, accordingly, there was no real prospect of improvement in her behaviour. In these circumstances, the Commission should not find that the applicant's dismissal was "harsh, unjust or unreasonable". 167 Remedies 1. The respondent submits that the remedies sought by the applicant under s213 are unwarranted in the exercise of the Commission's discretion. 2. However, in determining any possible remedy under s213 of the Act, the Commission should take into account the following factors: (a) the applicant's economic loss is limited to the period that she was absent from work between 19 October to 12 November 2004 (whereas the s84 application filed by the applicant seeks additional compensation with respect to the alleged unfair termination of the applicant's employment); (b) the applicant chose to remain away from work during this period and was not inhibited by the respondent from returning to work at any time during this period; (c) the applicant contributed to the dispute between the parties by making an exaggerated and provocative complaint about late payment of wages; (d) the extent to which the applicant's various allegations against the respondent are made out on the evidence; (e) the respondent's present financial difficulties (based upon the unchallenged evidence of Mr Jamnadas); 3 Further, if the Commission were to award any monetary compensation in respect of the s84 application, then the following factors should be taken into account: (a) the payments made to the applicant on termination – four weeks' pay in lieu of notice (the letter of termination refers to two weeks); (b) the circumstances of the applicant's dismissal; (c) the limited time available for the applicant to find alternative work since the date of dismissal; (d) the matters referred to in the previous paragraph. 168 Costs 1. The respondent seeks liberty to apply on the question of costs. In reply 169 Mr Easton strongly rejected any assertion that the applicant had "set up" a campaign against the respondent. Rather, if one looks at the respondent's own evidence, its conduct was disgraceful and threatening. 170 Mr Easton submitted that Mr Jamnadas' and Mr Nand's evidence was undermined by their own sources. Moreover, Mrs Gole could not be regarded as an independent witness. 171 Mr Easton again referred to the Jones v Dunkel inference in the respondent failing to call Mr Narsey to give evidence. He added that the same inference could also be applied to the failure to call Mrs Jamnadas. 172 Mr Easton put that the need to urgently change the hours of work for commercial reasons simply does not wash. 173 Mr Easton put that the financial status of the respondent was not a relevant factor to be taken into account by the Commission. In any event, questions arise about the other business interests of the partners. CONSIDERATION AND CONCLUSIONS 174 I propose to determine that these matters under the following headings: - Out of time application - The Act's victimisation provisions and relevant principles - Meaning of harsh, unreasonable and unjust in s84 of the Act - Procedural fairness in unfair dismissal matters - Was the applicant victimised? - Was the applicant's dismissal harsh, unreasonable or unjust? - Procedural unfairness - Relief to be ordered Out of time application 175 An application made under s213 of the Act must be made within 21 days of the alleged contravention of s210; that is within 21 days of the alleged victimisation: See s213(3). 176 The Commission may exercise its discretion to accept an application out of time. That discretion is exercisable in the circumstances described in s213(4), which I quote: (4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought. 177 As I said in Donovan, there are no Full Bench authorities of this Commission which have considered s213(4) of the Act and the Commission's discretion to accept an out of time victimisation application. It will be readily apparent, however, that s213(4) is in almost identical terms (and relevantly so for present purposes), to s85(3) of the Act - the provision dealing with out of time unfair dismissal applications. I note that there is no question that the applicant's unfair dismissal application was filed within time. 178 Bearing in mind the synergy between the unfair dismissal provisions and the victimisation provisions of the Act (to which I later refer), I am of the view that consideration of s213(4) may be had by reference to the authorities on the general powers of courts to accept out of time applications and, more particularly, the powers of this Commission to accept an unfair dismissal application out of time. 179 All Courts have established general principles in respect to time limits. These were usefully described in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, where McHugh J said at p551: The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates"… and at p552: The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost (26). Second, it is oppressive, even "cruel", to a defendant to allow an action to be bought long after the circumstances, which gave rise to it, have passed (27). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (28). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period (29), as the New South Wales Law Reform Commission has pointed out (30)… and at p553 …In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s. 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". (35) But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires the extension. 180 A Full Bench of this Commission said in Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139: 12] Having made that observation, a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Limited v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3) - (4) of the Industrial Relations Act 1991) in this way: Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in s256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1957) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view. 13] Similarly, in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice President in Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady, that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case". 181 Like a late unfair dismissal application, in a late victimisation application, the onus is on the applicant to satisfy the Commission that there is a sufficient reason or reasons for an application to be accepted out of time. As will be seen from my later findings, the respondent engaged in detrimental conduct such as to victimise the applicant from early September 2004 to her dismissal on 4 March 2005. In my opinion, the fact that the complaint concerning a reduction in hours and the 3 September memo fell outside the 21 day time limit imposed by s213(3) the Act is of little consequence. This is because the victimisation was ongoing. Indeed, it continued after the application was filed. This ongoing detrimental conduct would, in my judgement, be a sufficient reason to accept the application out of time. I formally do so. The Act's victimisation provisions and relevant principles 182 In Donovan I also referred to the legislative provisions and authorities of the Commission dealing with victimisation claims made under the Act. Like the circumstances in Donovan, this case involves concurrent proceedings under Pt 6 ch 2 and Pt 1 ch 5 of the Act. With this in view, it is apposite that I refer to the discussion of these matters in Donovan: Ms Donovan's application for relief from alleged victimisation was made under Pt 1 ch 5 of the Act. For the purposes of this decision the relevant sections of the Act are found in ss210 and 213: 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or (b) does not belong to an industrial organisation of employees or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or (c) refuses to engage in industrial action, or (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or (i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or (ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety Act 2002 , or (ib) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator of the Independent Transport Safety and Reliability Regulator or an officer of the Ministry of Transport, or (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000, or (k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995. (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 213 Enforcement (1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. (2) The Commission may, in particular, for that purpose do any one or more of the following: (a) order the reinstatement or re-employment of an employee, (b) order the employer to promote or otherwise advance an employee in his or her employment, (c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone, (d) order the employer to employ a prospective employee, (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, (f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, (g) make consequential orders (including orders concerning continuity of service). (3) An application for an order under this section must be made within 21 days after the contravention concerned. It is plain that the processing of a victimisation application is a two staged exercise. Firstly, the Commission must make a finding as to the alleged contravention of s210 and secondly, if a contravention is established the Commission may, in the exercise of its discretion, make an order or orders for relief under one or more of the subsections in s213(2). Two Full Bench decisions of this Commission have discussed, in some detail, the provisions of ss210 and 213 of the Act and the meaning of the term " victimisation ." In Public Service Association of New South Wales v Teterycz (1998) 82 IR 172 the Full Bench adopted the reasoning in Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364 and said: The Full Bench of the Industrial Relations Commission of New South Wales ( Cahill J., Vice President, Hill, Maidment JJ. and Redman C.) considered these provisions in its decision in Graham Davis v Amalgamated Television Services Pty. Limited (IRC7028 of 1997, 22 June 1998, Unreported). The Full Bench said: "The word "victimise" is not defined in the section nor anywhere else in the Act. This is in contradistinction to the precursor provisions of the 1991 Act. The relevant provisions of the 1991 Act were contained in s 481 which relevantly provided: Victimisation: offence 481(1) An employer, or an organisation, must not victimise a person because: (a) the person does not belong to an organisation of employees; or (b) the person has refused to engage in industrial action; or (c) the person is a member of an organisation of employees or is an officer or delegate of an organisation of employees or is otherwise an elected representative of employees; or (d) the person is a member of a Conciliation Committee; or (e) the person claims a benefit of an award or agreement to which the person is entitled; or (f) the person has informed any person that a breach or a suspected breach of an award or agreement has been committed by the employer; or (g) the person has appeared as a witness or has given evidence in proceedings, relating to an industrial matter; or (h) the person has engaged in, or contemplates engaging in, any public or political activity (not being an activity that interferes with the performance of duties as an employee); or (i) the person, after applying for (and being unreasonably refused) leave without pay for the purpose, is absent from work through being engaged in duties as a member of an organisation of employees in respect of a matter affecting the industry in which the employee is working or in other duties as a member of a Conciliation Committee. (2) An employer victimises a person if the employer: (a) dismisses or threatens to dismiss the person from employment with the employer; or (b) alters or threatens to alter the position of the person in his or her employment with the employer to the person's prejudice; or (c) otherwise injures or threatens to injure the person in his or her employment with the employer; or (d) refuses to employ the person. Victimisation by an organisation (3) An organisation victimises a person if the organisation: (a) advises, encourages or incites an employer to victimise the person; or (b) takes or threatens to take industrial action or any other action against an employer with intent to coerce the employer to victimise the person; or (c) takes or threatens to take action having the effect directly or indirectly of injuring the person in his or her employment. . . . We observe in passing that the ambit of the 1940 Act was narrower than that of the 1991 Act. In our opinion, the failure to define "victimise" or "victimisation" in the 1996 Act does not have the result of narrowing the definition in the 1991 Act. Indeed, the omission probably has the effect of extending the former meaning so as to comprehend any act of victimisation within the meaning of that word as ordinarily understood. The words "victim" and "victimise" are defined in the Shorter Oxford English Dictionary (Vol 2) as: Victim 1. A living creature killed and offered as a sacrifice to some deity or supernatural power. 2. A person who is put to death or subjected to torture by another; one who suffers severely in body or property through cruel or oppressive treatment. b. One who is reduced or destined to suffer under some oppressive or destructive agency. c. One who perishes or suffers in health, etc from some enterprise or pursuit voluntarily undertaken. d. In weaker sense: one who suffers some injury, hardship, or loss, is badly treated or taken advantage of, or the like. Victimise 1. To make a victim of; to cause to suffer discomfort, inconvenience, etc; to cheat, swindle, or defraud. 2. To put to death as, or in the manner of, a sacrificial victim; to slaughter; b. To spoil or destroy (plants) completely. In our opinion, it is consistent with the objectives of the section and the statutory changes in 1996, that the word "victimise" in s 210 should be construed on a basis which corresponds with the meanings of the word "victim" where last appearing in the definition of that word, namely, "one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like". The word "victimise" is defined, inter alia, as "to make a victim of; to cause to suffer discomfort, inconvenience, etc"; and where used in s 210 should therefore be interpreted as "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment". So far as a prospective employee is concerned the word "victimise" must be construed in the context of the word "prospective". In this respect s213(2)(d) comprehends the remedy of an order requiring the employer to employ the "prospective" employee, so that "victimise" must also encompass, at the lowest, a refusal to employ. Furthermore, section 213(2)(e) comprehends the remedy of an order requiring the employer not to carry out a "threat" to victimise an employee and for that to have any application and effect "victimise" must be taken to comprise conduct involving threats to victimise by the employer. However, it is unnecessary in this case to decide the full ambit of the word "victimise"." We would, with respect, adopt that reasoning for present purposes. I would respectfully adopt the reasoning and conclusions of these decisions and would make these additional observations. It seems to me that in a particular set of circumstances, there may be features of an unfair dismissal case which are similar to, and raise similar considerations, to a case prosecuted by an employee under Pt1 ch5 of the Act. For example a dismissal might be found to be unfair based, inter alia , on the victimisation of the employee. Conversely, the ultimate victimisation of an employee might well be said to be his/her dismissal. That there is some overlap between the two statutory provisions is self evident by the reinstatement, reemployment and compensatory remedies available under both sections. As a result of some research, I have found no decisions which deal directly with concurrent proceedings for victimisation and unfair dismissal and how the remedies under both sections might be determined in the event of findings in favour of an applicant. That being said, it would seem beyond doubt that the remedies available under both sections can be pursued concurrently by an applicant against the same respondent. The corresponding provisions in the 1991 Act, (which are not relevantly different to the 1996 Act) were considered by Schmidt J, in Nisbett v Kilfoyle t/as Kilfoyle Earthmoving (1996) 67 IR 214. Her Honour said at p 218: Both sections 246 and 482 of the Act provide for remedies of reinstatement and compensation. That the circumstances of an alleged dismissal may properly give rise to proceedings under either or both section 246 or section 284 of the Act is obvious, (see Entertainment Distributors). It is of course the case that the Act provides both remedies and does not require an individual to make any election between them. Both may be pursued. It follows therefore that Ms Donovan is, not only entitled to bring proceedings under both sections, but is entitled to seek relief under both sections in the same set of circumstances, should she establish a case of victimisation. As I have already observed the act of unfair dismissal might well be said to be the ultimate act of victimisation. I do not see how it could not be so construed. Meaning of harsh, unreasonable and unjust in s84 of the Act 183 As I have often said, each of the words, harsh, unreasonable and unjust, have their own discrete meaning and not all three descriptions of a dismissal are necessary for a finding of unfairness. Put another way, a particular dismissal might be found to be "harsh" but not "unreasonable" or "unjust". This principle arises from the oft-quoted authority in Byrne & Anor v Australian Airlines Limited (1995) 185 CLR 410 where the expression "harsh, unreasonable or unjust" was considered in an Award clause. In their joint judgment McHugh and Gummow JJ said at p72: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 184 The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session ( Perrignon , Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'. It has been said that those words are a 'tautological trinity' ( Davis v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power. In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made. 185 A Full Bench authority reaffirming the distinction between the three words, and requiring the Commission to make a positive and specific finding on a dismissal is to be found in Bankstown City Council v Paris (1999) 93 IR 209: The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made. 186 More recently, the Full Bench in Williams and Pigment Dispersions Pty Ltd [2004] NSWIRComm 268 said at para 19: The phrase "harsh, unreasonable or unjust" is an important key to the jurisdiction and requires some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust; other permutations may apply. In Bankstown City Council v Paris (1999) 100 IR 363 at 371 Wright J President, Peterson J, Bishop C noted at 373: We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made. 187 For reasons I shall shortly express, I am satisfied that the applicant's dismissal on 4 March 2005 comfortably fits within the definition of being harsh, unreasonable and unjust. Procedural fairness in unfair dismissal matters 188 There is abundant authority for the proposition that unfairness may be visited upon a dismissed employee both as to the basis or merits of the dismissal (referred to as substantive unfairness) and the process leading to dismissal (procedural unfairness). Put another way it may be that dismissal was reasonably open to the employer, but the employer went about it in an unfair way by denying the employee due process. 189 For the relevant authorities on procedural fairness I refer again to Byrne & Anor v Australian Airlines at p72: The distinction between procedure and substance is elusive. This is so even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights, and the Statute of Frauds, where it has an entrenched operation (217). In our view, it is unhelpful and contrary to the tenor of the Award to introduce it into cl.11(a). That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable (218). But the question under cl.11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking at the first issue before there is seen to be any need to enter upon the second . Brennan CJ, Dawson and Toohey JJ concluded at p43: Save for the prescription of periods of notice, cl 11 does not require the adoption of any particular procedure for the dismissal of an employee. However, it is clear that the use of an unfair procedure may result in a dismissal being harsh, unjust or unreasonable. For example, the failure to afford an employee the opportunity to explain apparent misconduct where there is an innocent explanation available would result in the dismissal of the employee being in breach of cl 11(a). 190 Two passages from Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 are also often cited. The Full Bench said at p389: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. and later, at page 390: While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust . 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: i) Mrs Gole had worked the same hours as the applicant - yet Mrs Gole was not accused of dishonesty over these hours as the applicant was in the letter of 10th September; ii) Mrs Gole agreed she lost her temper in the meeting of 2 March. However, she was not counselled or warned about it as the applicant was and which was subsequently used as a basis for her dismissal; iii) Mrs Gole produced a medical certificate in March 2005 which disclosed "medical condition" as the reason for her absence. She was not criticised for this or asked to get a second medical opinion, as the applicant was, when her medical certificate was similarly expressed. 220 It follows from the litany of examples I have just identified, that I conclude the respondent contravened Pt 1 ch 5 of the Act, in particular ss210(1)(e)(f) and (g), in that it victimised the applicant from 3 September 2004 to 4 March 2005. Further, the respondent has failed to satisfy the onus of rebuttable presumption required by s210(2) of the Act. 221 As will be seen from the above summary, I have not found it necessary to make a specific finding on each example of victimisation highlighted in Mr Easton's submission (para 152). It is sufficient, I think to note that each example, to a lesser or greater extent, is a subset of an overall pattern of improper and detrimental conduct and behaviour constituting victimisation of the applicant and justifying the discretionary orders I later propose to make. 222 Further, in the light of my substantive findings in this matter, I do not find it necessary to rule on Mr Easton's submission that the failure to call the third partner, Mr Narsey, to give evidence was fatal to the respondent's case under the Jones v Dunkel principle. I would however, observe that it is rather curious, having regard for Mr Narsey's involvement in the decision making process, and Mr Jamnadas' admission that Mr Narsey "was more involved with the staff than I was", that Mr Narsey did not give evidence in the proceedings. Was the applicant's dismissal harsh, unreasonable or unjust? 223 It would seem unarguable that any dismissal of an employee which was found to be the culmination of a pattern of victimisation, would be found to be unfair. This is most certainly the case here. Such a result merely demonstrates the overlapping features of concurrent proceedings brought under s210 and s84 of the Act. 224 It follows from the foregoing consideration, that I have no hesitation in finding that the applicant's dismissal was harsh, unreasonable and unjust within the meaning of Pt 6 ch 2 of the Act and the various authorities earlier referred to. 225 In my opinion, the respondent failed to establish that the reasons for the applicant's dismissal had any basis in fact (s88(b)). Even if the reasons for dismissal had been established, the reasons would not, in my assessment, constitute any proper or sound basis for dismissal. The applicant's dismissal was both substantively and procedurally unfair. I turn now to those procedural matters. Procedural unfairness 226 Mr Easton highlighted a number of procedural issues which give rise to a conclusion that the applicant's dismissal was procedurally unfair. I agree with Mr Easton's assessment and observe as follows: 1) The applicant was not informed of the purpose of the disciplinary meeting on 2 March 2005. 2) The applicant was not offered a witness to be present or to have her solicitor in attendance, notwithstanding the respondent's clear knowledge of her legal representation. 3) The applicant was not informed that the outcome of the meeting on 2 March might result in her termination of employment (s88(c)). 4) The applicant was told her conduct was an issue, but given no opportunity to improve. It is not sufficient to boldly state that the employee was not going to improve because she refused to even acknowledge she had a problem. This excuse only demonstrates the respondent's enthusiasm to get rid of the applicant. 5) The applicant was not told the refusal to change her hours or her conduct in respect to Mrs Gole might result in the termination of her employment. Moreover, the applicant offered two compromises over the hours issue and these were rejected out of hand. Mr Jamnadas regarded this compromise as a basis for his view that if she could do it alternate weeks, then she could do both weeks. This was a convenient, but disingenuous response. 6) Two days later the applicant was dismissed. There was no contact between the respondent and the applicant from 2 March to 4 March to warn her that her employment was in jeopardy. She was given no opportunity to defend her position or her future employment. Relief to be ordered 227 Firstly, I propose to make orders under s213(2)(c) and (g) of the Act after taking into account the financial benefits lost or foregone as a result of the victimisation of the applicant. I assess such loss at 12 weeks wages at $627 per week. 228 Secondly, in respect to her unfair dismissal, I find that reinstatement would be impractical in view of the appalling conduct of the respondent and the complete breakdown in the relationship between her and the partners of the firm. 229 After taking into account the requirements of s89(6), I determine, as a matter of discretion, that an amount of 26 weeks' pay should be paid to the applicant in respect to her unfair dismissal. No account should be taken of two weeks payment in lieu of notice. In so deciding I have had regard for the applicant's age, her length of service, her personal circumstances and her attempts at securing alternative employment. 230 I reject any notion that the relatively short period of time the applicant had been looking for alternative work since her dismissal should be a factor taken into account in reducing the maximum compensation I believe is appropriate in the circumstances of this case. I am mindful of what was said by a Full Bench of the Commission in D and R Commercial Pty Ltd v Flood in regard to the exercise of discretion under s89(5) and (6) of the Act: The power in the Commission to make a money order, subject to the limitation on the quantum of compensation and the matters required to be taken into account by s89(6), is nevertheless within the Commission's discretion. Whilst the Commission is required to take into consideration the matters identified in s89(6), those matters are not necessarily to be reflected in any particular, arithmetic or definitive way in the money order for compensation made. We would thus accept the submissions of the respondent to the extent that it was contended that the way in which, and the extent to which, those matters are in fact taken into account is ultimately a matter of discretion in the circumstances of the instant case. See, for example, the decision of the Full Bench in Sunny Queen Ltd t/a Australian Quality Egg Farms v Reilly [2000] NSWIRCOMM 1128. 231 In accordance with my usual practice, any application for costs must be made within 21 days of today. ORDERS 232 The Commission makes the following orders: 1) Pursuant to s213 of the Industrial Relations Act 1996, the Commission orders that the respondent, Macquarie Partnership, shall pay to the applicant, Swaran Lata Kumar, an amount of 12 weeks' pay at the rate of $627 per week. 2) Pursuant to s89(5) and (6) of the Industrial Relations Act 1996, the Commission orders that the respondent, Macquarie Partnership, shall pay to the applicant, Swaran Lata Kumar, an amount of 26 weeks' pay at the rate of $627 per week. 3) The amounts ordered in (1) and (2) above shall be paid within 28 days of today. 4) Any application for costs must be made by notice of motion within 21 days of today. 5) Save for any costs application, these proceedings are now concluded. P J Sams, AM Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.