Industrial Relations Commission of New South Wales CITATION: Kaplan v Dept of Health Support Service. [2009] NSWIRComm 1088 APPLICANT PARTIES: Ms Perihan Kaplan RESPONDENT Director General of NSW Health Department, Health Support Services Division, Linen Services Parramatta Branch FILE NUMBER(S): 2333 of 8 CORAM: Ritchie C Claim for unfair dismissal, Applicant terminated for threat made against particular employee linked to previous aggression towards same employee. Respondent found three of five allegations substantiated. Applicant denied the three allegations. Respondent was to issue first and final warning. During a disciplinary meeting applicant allegedly made threat against same employee. Issue raised of whether meeting should have taken place due to delicate health of applicant.. Applicant at the time under medical care for stress, depression. CATCHWORDS: Issues of failure of respondent to follow discipline guidlines . Commission found that both parties wanted meeting to take place. Commission found that due to the health of the applicant meeting should not have occurred. Commission found that applicant not given opportunity to respond to threat prior to termination. Procedural fairness did not occur. Commission found that two of the allegations did take place. Commission found that threat was made by applicant during meeting but believed applicant was not in a fit state at the time . Commission found that termination harsh and found in favour of the applicant ordered reemployment, with backpay and a first and final warning with the applicant not to be reemployed at the same location as to where she was terminated. LEGISLATION CITED: Industrial Relations Act, 1996 HEARING DATES: 14/09/09.15/09/09,30/09/09,01/10/09,23/10/09. DATE OF JUDGMENT: 10 November 2009 Applicant: Mr R Reitano of Counsel Solicitors LEGAL REPRESENTATIVES: Mr M Jaloussis of W G Mc Nally Jones Staff Respondent: Mr M Easton of Counsel DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C. 10 November 2009 Matter No IRC 2333 of 2008 IN THE MATTER OF: Perihan Kaplan and Director General of NSW Health Support Services Division, Linen Services Branch Parramatta. Application by Perihan Kaplan re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2009] NSWIRComm 1088 Background. 1 On 16 December 2008 Ms Perihan Kaplan (the applicant) filed a claim under section 84 of the Industrial Relations Act 1996 (the Act). The applicant had been terminated on 8 December 2008 by the Director General of NSW Health Support Services Division, Linen Services Branch Parramatta (the respondent). 2 A conciliation conference took place on 11 February 2009 and again on 2 March 2009 when Directions were given for the filing and serving of evidentiary material. Those Directions were varied by application as a consequence of applicant being unwell. The original hearing dates set in May were cancelled and reallocated for September. 3 The arbitration of the matter took place on 14,15, 30 September and 1 October 2009 with final submissions being made on 23 October 2009. The Decision was reserved at that time. Applicant's Case. 4 The applicant had commenced at Lidcombe hospital in 1990 and in the intervening years worked in various jobs in the state health system on a part time, casual and full time basis. She had also taken time off without pay for maternity leave. 5 The applicant stated that she had arrived in Australia from Turkey with her husband in 1987 unable to speak English. Her first child was born that same year and a further child in 1993. In 2007 she was appointed to the position of Customer Service Supervisor. It was her responsibility to liaise with customers of the Parramatta Linen Service (PLS). Soon after this appointment the applicant found out that there was going to be a restructure and that her position would be affected. The new structure resulted in her current position be abolished and three new positions called Customer Relations Co-ordinators being established. She applied for one of these positions in June 2008 but was unsuccessful. As a result of not being successful the applicant felt depressed and went to see her GP. She was convinced by Ms Agustin from Human Resources to apply for a still vacant position. She applied for the remaining Customer Relations Co-ordinator position. 6 The two successful applicants for the Customer Relations Co-ordinator positions were announced on 29 September as Ms Kylie Summers and Mr Mark Zabel. This announcement was made whilst the applicant was on annual leave. Also whilst on leave the applicant was advised by Mr Wragg that she would be interviewed for the outstanding vacant position on 9 October. The applicant had previously worked with Ms Summers back at the Lidcombe hospital. The two appointees commenced on 30 September 2008. The applicant attended the interview on that date. One of the interviewee's was Mr Wragg whom from the applicant's point of view seemed to be angry with her. 7 On 10 October 2008 Mr Wragg provided the applicant with a letter which outlined four allegations of misconduct against her. The first allegation was that on 8 October 2008 the applicant was abusive and aggressive towards Kylie Summers accusing her of taking the applicants job. The second was that on 10 October 2008 she made accusations against Christian Komarek accusing him of invading her privacy by telling others that she was going for an interview and that she refused to carry out work related tasks. The third was that on 10 October 2008 that applicant took the car of Paul Deacon without his approval as per instructions outlined on car booking sheets. The fourth was that on 10 October 2008 the applicant when requested to return to the office to discuss the second and third allegations hung up on Mr Wragg. 8 The applicant attended a meeting on 14 October 2008 with Ms Naciye Ibrahim as her support person. The interview was tapped. She said she denied allegations 1-3 and admitted allegation 4 with an explanation. She was advised a transcript of the interview would be available in 3 days. This she did not obtain until 20 November 2008. 9 The applicant stated she never received a copy of any statements made by Ms Summers or Mr Zabel or any written complaints made by Ms Summers or Mr Zabel. 10 At the end of the meeting she asked and was told that she had not been successful in her job application. She was also told by Ms Agustin that from that day she would be a displaced person and was wanted to work at the Parramatta Call Centre. 11 Post the meeting she went to her GP who gave her a medical certificate for two weeks off work. She also applied for workers compensation. 12 Later she received an email from Ms Agustin advising that the Call Centre job was no longer available. 13 The applicant received a clearance from her GP on 31 October 2008 to return to work on 3 November 2008 with the restriction that she worked away from Ms Summers and Mr Zabel. By prior arrangement the applicant had a meeting with Mr Satiya Swarmy and WorkCover Co-ordinators. The applicant had a concern that she would be working in the same building as Ms Summers and Mr Zabel. 14 After this meeting she by arrangement went to visit her friend Ms Ibrahim in Merrylands. 15 On 5 November 2008 during a fire drill at work the applicant stated that Ms Summers approached her and said that she was sorry for what had happened and questioned whether she was a displaced person now. The applicant said that she did not want her sympathy and questioned how Ms Summers had said that she had been aggressive and lodge a complaint about somebody on her first day. The applicant said that Ms Summers said that she didn't complain but was asked and she told them but did not say that the applicant had been aggressive. 16 On the same day when the applicant had returned home the phone rang but stopped before she could answer it. She recalled the number and it went to Ms Summers voicemail. She hung up but then rang back. A conversation then took place with Ms Summers complaining that what the applicant had said was not nice and that she had not lodged a complaint but was asked and was told. The applicant responded that it had been a friendly conversation and questioned how had she been abusive and aggressive ? The applicant then questioned what kind of person was Ms Summers, that she had children, and as she was a mother and that if she acts like this how would her children going to act. Ms Summers was then to have said that she was not to speak to the applicant. The applicant responded that it was she who rang her. The applicant said that she lost her temper and started yelling at Ms Summer saying that she had destroyed her career. 17 The applicant then sent a text message to Mr Swamy about the call requesting him to instruct Ms Summers not to call her at home. Mr Swamy responded that she should go to the Police if she feared for her safety and to lodge a formal complaint against Ms Summers the following day. 18 The following day Mr Swamy took a statement from the applicant concerning the phone call. Later that day Mr Swamy said to the applicant that a serious allegation had been made against her and that she had to come to a disciplinary meeting on 7 November 2008. He also provided a letter setting out the allegations against her. The allegations covered an incident that occurred between the applicant and Ms Summers on 3 November 2008 when Ms Summers was driving home and a phone call between the applicant and Ms Summers on 5 November 2008. The applicant stated that she was very upset and that she left work and went to see her GP who advised her not to go to the disciplinary meeting the following day. Mr Swarmy said that she should not attend the meeting if she was unwell. She went back to her GP who said to go and see the Police. She said that she went to the Police who gave her advice and she then decided to go to the meeting. She went back to her GP who provided her with a certificate clearing her to attend a conflict resolution meeting. 19 At the meeting on 7 November 2008 the applicant strongly denied both allegations. She was promised a copy of the notes of the meeting in three days. She received by email a copy of the notes which in her view a great deal was missing, she made corrections and sent it back to Ms Salmon. 20 The applicant then contacted Mr Adam Hall her union organiser and outlined the allegations made against her. She said that Mr Hall then through email liaised with both the applicant and Ms Salmon. 21 On about 24 November 2008 the applicant was advised that her claim for workers compensation had been rejected. 22 On or about 26 November 2008 the applicant was served with an application for an Apprehended Violence Order taken out against her by Ms Summers. 23 On 27 November 2008 the applicant received an email from Ms Agustin that a meeting was to be held on 1 December to discuss the outcome of the allegations made against her and also to discuss with her matters in relation to her displacement. 24 As the applicant did not feel well enough to attend this meeting she rang Mr Hall and emailed him to the effect that she felt too unwell to attend the meeting. She sought advise from Mr Hall as to whether she should take a lawyer as she did not trust management anymore, the tape had disappeared, the transcript was completely different which she did not sign and asked whether it possible to change the date of the meeting ? Mr Hall responded as to whether she wanted to pay a lawyer or wanted him to attend. The applicant responded that she was still not well and was scared she would have a breakdown. 25 On 28 November 2008 the applicant emailed Mr Swarmy to say that she could not see her doctor that day as he was away but that she would see him on Monday morning and bring the doctor's certificate with her on Monday to the meeting. 26 The applicant received a medical certificate on 1 December 2008 from her GP Dr Francis Leung stating that she was unfit to work from 1/12/08 to 8/12/08 diagnosis: anxiety, depression, panic attacks. 27 On 1 December 2008 at the meeting were the applicant, Mr Hall, Ms Salmon, Mr Swarmy and Ms Agustin. Ms Salmon stated that three of the allegations had been substantiated and two had not. The applicant felt that she had been set up. She felt she could not breathe and felt very distressed shaking and crying. Ms Salmon then moved onto the redundancy saying that they would pay her $60,000 and she would give her a good reference. The applicant stated that she didn't want the money and that her values were more important to her and that if Ms Summers is lying she should be punished. She did not want a reputation that she was sacked for being an aggressive woman. There was no written complaint from Ms Summers, no statements and the tapes destroyed. She asked if she could take the redundancy and asked in writing to have these issues reinvestigated. Ms Salmon stated that if she takes the redundancy then she can not have the disciplinary reviewed. The applicant stated that because of the AVO against her she would not be able to go to any hospital with any of her family, her reputation was smashed and that she would rather die than have this embarrassment. The applicant then on leaving the meeting said: "Okay, I will go to the Court tomorrow and accept the AVO and then I will start to fight you. I don't believe you all put your jobs on the line to protect Kylie. I will go the Court tomorrow and I will prove my innocence. I didn't do anything wrong. If Kylie is lying, she'll be dead." 28 The following day the applicant on the advice of her solicitor consented to the AVO with no admissions. She said she was not well and couldn't afford to defend the proceedings. 29 On 8 December 2008 the applicant received a letter from the respondent terminating her services. 30 The applicant stated that she has not worked since her dismissal. She stated that she has applied unsuccessfully for many jobs and has done charity work. 31 In cross examination the applicant admitted that she was frustrated that she did not get an interview for the position of Customer Relations Co-ordinator, she believed that the procedure was not followed and that first priority had not been given to her, but was not upset once she found out she would get an interview for the third position. This interview took place on 9 October 2008. She said that she was advised on 14 October 2008 that she had been unsuccessful in that application. In her view that position had been promised to her. She agreed that in a conversation with Ms Agustin she described the person who was offered the third position as an outsider as he came from outside New South Wales. Later on 17 November 2008 the applicant emailed Ms Salmon complaining about the way her application and her displacement had been handled and that she felt humiliated by senior management forcing her to leave the place. It was her view on 18 November that no one could do the job better than her. 32 She did not understand why Ms Summers had made a complaint against her on 8 October 2008 and was frustrated by it, as whilst they had met previously when working for the Health Department that had been years before. She confirmed that she and her support person Ms Ibrahim had attended a meeting on 14 October 2008 with Mr Wragg and Ms Augustin to discuss the complaint made by Ms Summers. At that meeting she gave her side of what occurred that day. Later on 20 November 2008 she received a copy of the transcript which she did not believe was accurate. 33 It was her view that Ms Summers should be terminated because she had made false allegations against her. Both Ms Summers and Mr Zabel should be terminated or paid out so she could return to work. 34 The applicant confirmed that she attended an afternoon meeting at work on 3 November 2008 to discuss a return to work programme with respect to a claim for workers compensation. During the meeting the applicant asked Mr Swami to look after her as she did not want Ms Summers or Mr Zabel making any false allegations against her. Post the meeting the applicant said that she went to visit Ms Ibrahim at her home. Prior to her termination she was not shown any CCTV of the car park only photos at the 1 December 2008 meeting as to what did or did not occur in the car park. 35 In cross-examination she was shown the CCTV of the car park that was taken on 3 November. She identified Ms Summers and Mr Zabel in the car park and her car. The CCTV showed her car pulling to one side at 15.36:35 and remaining stationary and then moving off at 15.37:19. Ms Summers car slowly leaves the car park at 15.37:5. She stated that she had pulled over to the side of the car park to use her mobile phone. The applicant stated that it was just a co incidence and that she did not see Ms Summers. She denied that she followed Ms Summers in her car and denied that she verbally abused her further down the road. She stated that she left the car park and turned right into O'Connell St and proceeded to her friend's house for a visit. 36 On the afternoon of 5 November the applicant admitted phoning Ms Summers mobile number twice but denied the accusation of what Ms Summers had alleged that she said to her. 37 Prior to going to the meeting on 1 December the applicant went to her GP who gave her a certificate for two weeks but she did not tell him that she was going that day to a meeting with management. In going to the meeting on 1 December the applicant did not consider herself well and the GP's certificate had her not fit for work. She was aware prior to the meeting, that she would be given a warning with respect to some of the allegations being proven but would not be terminated. She would be given a redundancy about $60,000 and a good report. Notwithstanding her condition the applicant wanted to got to the meeting because she wanted to get the redundancy. It was her understanding that the two allegations that had been substantiated was the hanging up on John Wragg whilst on the phone and the raising of her voice when speaking to Ms Summers on the phone on 5 November 2008. 38 The applicant denied that during the meeting on 1 December 2008 she stated that she had seven brothers and her husband had seven brothers and that she will show Kylie what aggression is and that she will go to court tomorrow and when she comes out she'll be dead. She did state that she was very upset during the meeting as she did not accept what was being put to her or that she was guilty of the other allegations that the respondent had laid against her. She believed she was being victimised. 39 She stated that she had started taking the prescribed drug Effexor in August 2008 as a consequence of a car accident that left her with panic attacks, depression and crying. She had been taking this drug up until December 2008. 40 Ms Naciye Ibrahim filed a statement and gave evidence. She stated that she has worked for the Health Support Services for the past 21 years and currently holds the position of Mending and Manufacturing Supervisor for Parramatta Linen Services. She stated that she accompanied the applicant as a support person to an interview on 14 October 2008 and later went through the transcript of the interview to ensure its accuracy. She did not believe the transcript was accurate. 41 She stated that she arranged to meet with the applicant on 3 November 2008 after the applicant had been to a meeting with Mr Swarmy at work. When the applicant did not arrive at the gatehouse at the appointed time she waited and then sent a SMS to the applicant stating she would see her at Ms Ibrahim's home. She said that she received a phone call from the applicant at around 3.40 to 3.45pm. She remembers the time because she looked at her watch. Ms Ibrahim was shopping at the time and when she arrived home, the applicant was waiting for her. 42 In cross- examination Ms Ibrahim stated that she had known the applicant for the last two years. The applicant had spoken to her about the allegations that had been levelled at her. She confirmed that the applicant did want to speak to Ms Summers because the applicant did not believe that she had spoken aggressively to her. The applicant had told Ms Ibrahim that she had been told not to speak to Ms Summers, which she was not happy with. Ms Ibrahim stated the applicant had told her on 6 November 2008 about the previous day's phone call with Ms Summers but had not spoken of any conversation with Ms Summers during a fire drill. She said that the applicant wanted to speak with Ms Summers directly and that is why she called. She was asked the following question: Q. And is it fair to say that she speaks her mind ? A. Yes. Sometimes too much. 43 She confirmed that she spoke with the applicant when she arrived at her house on the afternoon of 3 November and she seemed normal, not upset or angry. 44 Ms Dolun Teoman is a professional interpreter specialising in Turkish to English. She completed a statement and was subject to cross-examination. Ms Teoman stated that a Turkish speaker with a restricted command of English will sound abrupt and inappropriate. A Turkish speaker may state "You're dead" or "you'll be dead" could mean "you'll be in trouble; you'll be punished; you'll be at a disadvantage; I'll be very upset with you." Similarly the phrase " I'll kill you if you do/don't do X" a Turkish speaker does not necessarily mean s/he will kill the person. Ms Teoman accepted that in the above examples there was no uniqueness between the Turkish and English. Ms Teoman was quoted the phrase : " It's okay. I know where you live and I know you've got kids and I know what school they go to." She was asked the question : Q. Is there anything about the fact that she has Turkish as a first language that should make the listener or the Commissioner, more relevantly, think differently about that phrase than if it comes from a person with English as their first language ? A. No. No. She also was shown the quote (Ex 5 para.48) " I was not aggressive to Kylie. I have seven brothers. My husband has seven brothers and many cousins. I show Kylie what aggression is. I'll go to court tomorrow and when she comes out she'll be dead." She responded that she would translate it literally meaning that she would show up dead. 45 Mr John Dornan filed a statement. He stated that he is a registered Pharmacist and had been in practice since 1964. He stated that he has dispensed Effexor XR to patients through prescription and is familiar with the drug. He stated that the effects of this drug would be monitored by the patients GP for any side effects. It is proscribed for certain specific disorders, is quite a used prescription item and under medical supervision is not a dangerous drug. Annexure A to the statement noted important safety information on the drug. It states that "Patients should also be watched for becoming agitated, irritable, hostile, aggressive, impulsive, or restless." Respondent's Case. 46 Ms Kylie Summers filed an affidavit and was subject to cross- examination. She stated that she first met the applicant in 1989 when she was a Trainee Catering Officer at Lidcombe hospital. They worked together for approximately 3 ½ years. The last time there was contact with the applicant was when Ms Summers was on an interview Panel for a position that the applicant had applied for. 47 Ms Summers applied for and was successful in obtaining a position as a Customer Relationship Coordinator. She commenced this position on 29 September 2008. 48 On 8 October 2008 she with Mr Mark Zabel met the applicant when walking through the laundry meeting staff. They had a talk, with the applicant asking a number of questions about Ms Summers knowledge of her new job. In her view the questioning by the applicant made her feel uncomfortable and whilst the applicant did not raise her voice, her questioning was belittling and aggressive. Near the end of the conversation the applicant said to Ms Summers: " You took my job." Ms Summers replied that she did not know that the applicant had applied for the job. The applicant then asked what geographical area did both Ms Summers and Mr Zabel get and was told. They then left the area and reported the conversation to Mr John Wragg. She was told by Mr Wragg that she should write it down to make a record of it which she did that night and gave it to either Mr Wragg or to Mr Swamy. 49 On 22 October 2008 she gave a statement to an investigator about the incident. Whilst at work she avoided the applicant as she felt uncomfortable around her. 50 On 3 November 2008 at around 3.30pm after work she left the car park of the respondent. She noticed a black four wheel drive follow her out of the driveway. She turned left into Board Street and then left into Church Street. At a set of traffic lights she heard some yelling and saw that it was the applicant that had stopped along side her in a black four wheel drive. Ms Summers said that she had the car window down as the day was hot. 51 Ms Summers said that the applicant yelled at her: " Why did you complain about me ? Why are you doing this ? Pull up so we can talk about it." Ms Summers said she felt scared and said "No" and wound the windows up. The applicant raced in front of her and stopped at a red light. When the lights changed she drove off. The applicant then changed lanes so that her car was in front of Ms Summers and stopped at the next set of lights. The applicant's car then sped off. Ms Summers then said that she was so shaken that she did not wish to drive so she pulled into a Mobil Service Station. Ms Summers said that she rang Mr Wragg and told him what had occurred and he advised her to contact the Police and to put what had happened into an email and send it to him. She said that she then rang 000 and asked for Parramatta Police Station phone number. She then went to the Police Station and reported what had happened (Event number E35167015). She then went onto TAFE as she had an exam and things to hand in but was too upset and the TAFE teacher sent her home. The next day she sent an email to Mr Wragg stating what had occurred. She stated that she has since noted that she gave a wrong street name in the email stating Windsor Rd when it was still Church St. Mr Wragg said that he would investigate it. 52 Ms Summers stated that on 5 November 2008 she did not have a conversation with the applicant during a fire drill. She had no recollection of ever participating in a fire drill at the Parramatta premises. That afternoon Ms Summers said she was at TAFE watching the 4.30pm news when her phone went. It was the applicant asking why she was doing this to her. Ms Summers replied that she did not wish to talk to her. Ms Summers then ended the call. She said that she was upset so she rang Mr Wragg and reported the call. He told her to put it in writing. As soon as she had finished that call her phone rang again and it was the applicant who said: "It's okay –I know where you live and I know your car and I know you've got kids and I know what school they go to." Ms Summers said she did not say anything but ended the call. She then rang Mr Wragg again and told him what had happened. He advised her to come back and she met with Mr Wragg and Mr Swamy until her husband and father-in-law came and picked her up at approximately 6.30pm. Whilst at the office she rang the Police and a Constable Dzendolet advised her to go to Parramatta Court and take an AVO out against the applicant. The next day she wrote an email to Mr Wragg. 53 On 6 November Ms Summers stated that she contacted Parramatta Court to take out an AVO against the applicant. She was advised that she had to make an appointment with a Chamber Magistrate and did so for 11 November 2009. 54 On 7 November Ms Summers met with Ms Agustin and Ms Salmon and told them what happened with respect to the phone call on 5 November with the applicant. She also gave her mobile phone over to them to check the call history. She denied that she had deleted any missed calls as it was a new phone and she was not big on technology. 55 On 11 November 2008 she attended Parramatta Court and an officer there typed up a statement for the application for the AVO. Later she was advised that the application would be heard on 2 December. 56 On 1 December 2008 Ms Summers stated that she received a phone call from Ms Salmon as she was going home. Ms Salmon requested Ms Summers to meet her at Parramatta Police station. At the station she with Ms Salmon advised the Police of the threat made against Ms Summers by the applicant. Ms Salmon offered to place security personnel at Ms Summers home and office but the offer was declined. 57 On 2 December 2008 Ms Summers attended Parramatta Court where an uncontested Final AVO was made by the Court. 58 It was Ms Summers' submission that she could not work with the applicant again. Her concern is that she has no trust in the applicant and fears that the applicant may hurt her family and therefore if necessary she would resign. 59 In cross examination Ms Summers accepted that words expressed in her affidavit such as "intimidation", "bombarded" and "belittling" were not used in her statement to the respondent dated 22 October 2008 concerning the 8 October 2009 incident between her and the applicant. She did state that the applicant accused her of taking the applicant's job and that she felt upset and was a bit put off. She denied exaggeration in her affidavit. As a consequence of what Ms Summers said occurred after 8 October she viewed the applicant's intentions differently. She said that she sought to avoid the applicant and did not have contact with the applicant between 8 October and 3 November. 60 Ms Summers said that when she got in her car in the car park on 3 November she wound her window down because the car was hot. Ms Summers mobile phone records for 3 November (post the alleged confrontation with the applicant on the road) showed calls to Mr Zaba (at 15.47:57) and then Mr Wragg( 15.50:11). It was Ms Summers view that she may have called Mr Zaba to obtain Mr Wragg's number as she had a new phone and did not have his number. Subsequent calls were made and received from Mr Zaba and Mr Wragg. She denied the suggestion that calls were made so that stories were the same. Whilst her affidavit stated that she immediately rang the Police, phone records showed that such a call to Ashfield Police was at 16.35:46. Ms Summers in completing her affidavit did not realise there was a time gap. Ms Summers stated that she drove away from the Mobil station because it was busy and parked in a shopping centre. She said that she may have also gone to the toilet. Ms Summers was adamant that it was the applicant who was driving the car that day and who yelled at her. Both cars were stationery at the time because there was a red light. She said she became frightened and wound her window up. She confirmed the next day that she sent an email to Mr Wragg about the incident. She did not sign a statement, as she did with the 8 October incident, and was not required to provide any more information. Ms Summers denied ever phoning the applicant but agreed that she had access to the applicant's phone number as it, including Ms Summers and other staff were on a board at work. 61 When reporting the 8 October incident to Mr Wragg, Ms Summers said that it was the first time she had ever reported any person to management during her employment with the respondent. 62 Ms Noelene Salmon stated that she is the Human Resources/ Employee Relations State Manager for Health Support Services. She was appointed to this positioning August 2008. She said that during August and November 2008 Ms Agustin kept her informed of the progress of matters arising with the applicant. 63 On 7 November 2009 Ms Salmon participated in a meeting with the applicant. Prior to the meeting Ms Salmon being aware that the applicant was subject to medical restrictions and therefore made sure that the applicant could attend such a meeting. She saw a medical certificate stating that the "patient felt better after speaking to police, settled enough for conflict resolution meeting at work; rest from work for one week." Ms Salmon says that she showed the applicant a copy of allegations in emails sent to Mr Wragg from Ms Summers covering incidents on 3 and 5 November 2008. The applicant and her support person Mr Small were left in the room to read the emails. She says she also gave her a copy of the Code of Conduct and a copy of the NSW Health Zero Tolerance to Bullying Policy. At that meeting the applicant denied following Ms Summers in her car and yelling at her. She said the Ms Summers was lying. With respect to the phone calls on 5 November the applicant stated that Ms Summers called her at home. The applicant said that she did yell at her and then she was cut off. The applicant said that she dialled 10* and again spoke to Ms Summers. After the phone call the applicant sent a text message to Mr Swarmy complaining of Ms Summers phoning her. During the meeting Ms Salmon said that the applicant continued to get more upset and accused Ms Summers of stealing her job. She had tears in her eyes and appeared very aggressive and distressed and was asked whether she wanted time to compose herself but this she declined. The applicant stated that Ms Summers should go and she wanted voluntary redundancy. A copy of Ms Salmon's notes of the meeting were later sent to the applicant. 64 On the same day Ms Salmon spoke to Ms Summers about the 3 and 5 November incidents. Ms Summers outlined that on 3 November on her way out of the car park a big black four-wheel drive came up very quickly and beeped its horn. She did not know who it was in the car. She continued to drive and at a red light, the applicant in her car pulled up along side of her and yelled at her. She wound her window up. She was shaky and in a panic. She said that she was frightened that the applicant would get out of her car and come up to her. She then pulled into a petrol station and rang Mr Wragg who told her to ring the Police. Ms Summers then recounted what occurred with the phone calls on 5 November stating that she received a phone call whilst at TAFE around 4.35pm. She did not know the number. It was the applicant asking her why she was doing this to her. Ms Summers said to the applicant that did not wish to speak to her and hung up. Ms Summers then rang Mr Wragg and reported the phone call. Ms Summers then said she received a second call from the applicant who said " I know where you live, I know you've got kids, and I know where they go to school." She said she hung up and reported it to the Police. Ms Summers handed in her phone. Later Ms Salmon was told that no phone numbers could be got from the phone itself. On the same day Ms Salmon interviewed Mr Zabel who stated that he had walked Ms Summers to her car in the car-park on 3 November. He saw a black four wheel drive follow Ms Summers out of the car park but he did not identify the driver. 65 On 10 November 2008 Ms Salmon received an email from Ms Agustin, which stated that the applicant had expressed an interest in voluntary redundancy. Ms Salmon then spoke with other managerial persons and received approval that voluntary redundancy could be offered to the applicant. 66 She also obtained a copy of CCTV security footage of the day of the alleged car incident. 67 On 12 November 2008 Ms Salmon stated that she received a phone call from the applicant stating that she was going back to the Gatehouse building with the Police and make Ms Summers admit she was lying and that she took her job. Ms Salmon responded that the applicant was under lawful instruction not to go to the Gatehouse and not to contact Ms Summers. Ms Salmon then sent an email to the applicant with a copy of the notes from the meeting of 7 November and the 12 November phone call. Ms Salmon did not receive a response to that email prior to her termination. 68 On 17 November the applicant sought from Ms Salmon a formal review of her unsuccessful recruitment for the position of Customer Relationship Coordinator. She stated that she commenced to review the documents and it appeared that the process was fair and the appointments appropriate. On the same day she received an email from Mr Hall from the Health Services Union. She responded the following day. The email from Mr Hall asked questions and or made comments about the allegations, procedural fairness aspect and the willingness of the applicant to accept voluntary redundancy. 69 On 24 November 2008 Ms Salmon stated that she completed a brief –Disciplinary Proceedings-Perihan Kaplan and circulated it. The report recommended that the applicant be disciplined and given a first and final warning that such behaviour was unacceptable and should it occur again she would face termination of employment. The report outlined five allegations: · Aggressive behaviour towards Kylie Summers and accusing her of taking her job. · Making false accusations against Christian Komarek, Operations Manager Parramatta Linen Service, accusing him of invading Ms Kaplan's privacy and making threats about writing complaints about it; · Not following instructions by taking Paul Deacon's car (NSW Linen Manager) without approval. · On 3rd November 2008 Ms Kaplan followed Ms Summers out of the work car park and stopped her in the road and verbally abused her regarding Ms Summer's being appointed to a position for which Ms Kaplan was unsuccessful and taking her job. · On 5th November Ms Kaplan telephoned Ms Summers on her mobile telephone and was aggressive and abused her regarding Ms Summer's being appointed to a position for which Ms Kaplan was unsuccessful and taking her job. In conclusion the first, fourth and fifth allegations were found to be substantiated. 70 On 27 November 2008 the applicant was invited to attend a meeting on 1 December to discuss the outcome of the investigations and matters related to your displacement. Prior to the meeting Ms Salmon received a call from the applicant concerning the purpose of the meeting. She was told that three of the five allegations had been substantiated and that she would receive a final warning. The applicant was told she could give reasons why their conclusions about the disciplinary procedure should not go ahead. She also advised the applicant that she had approval to offer her a voluntary redundancy of the value of about $60,000. 71 On 1 December 2008 Ms Salmon attended a meeting with the applicant, Mr Hall, Mr Swamy and Ms Agustin. The applicant was advised that three of the allegations had been substantiated. She was also provided copies of stills taken from the CCTV of the car park. The applicant stated that she did not even see Ms Summers and that she had pulled over to use her mobile phone. The applicant was asked was there any reason why she should not get a warning ? The applicant stated that she did not do anything wrong and that Ms Summers was lying and management was setting her up. She stated that it was because she was not blond like Ms Summers. Ms Summers had stolen her job and she was being blamed for her lying. A break was called in the meeting for the applicant to calm down. The meeting then continued and she was told she would get a first and final warning. The applicant then asked what her options were and was told that she could make sure she was well and come back and work in the Service Centre or accept voluntary redundancy. The applicant then became very angry and stood up and said: " I was not aggressive to Kylie. I have seven brothers. My husband has seven brothers and many cousins. I show Kylie what aggression is. I'll go to court tomorrow and when she comes out she'll be dead." The applicant then went to leave the room. Ms Salmon then said to her that she had made a serious threat against Kylie, that it is unacceptable behaviour you will face discipline and your contract may be terminated and the offer of voluntary redundancy was formally withdrawn. The applicant advised Ms Salmon that she could keep her $60,000. Ms Salmon said that persons in the room were in shock and that Mr Hall said that the union would no longer represent her. 72 Ms Salmon said that she then contacted Parramatta Police station to report the threats. She was told that the person threatened would have to be present when a report is made. Ms Salmon then contacted Ms Summers and arranged to meet at the police station. A report was made and it was lodged as E68564002. 73 The next day Ms Salmon received a call from a Mr Dwawar who said he represented the applicant. He said that the meeting was illegal, the applicant was fragile and she should have had a medical certificate and we will be taken to court. Ms Salmon stated that the applicant had not been terminated and that they had a medical certificate. She explained about the allegations and the findings and the death threat. He said that if you offered a voluntary redundancy he would advise her to take it. 74 Ms Salmon said she then reviewed the applicant's file and identified a letter of discipline from a former employer for similar aggressive behaviour. She compiled a Briefing for the Chief Executive- Termination of Perihan Kaplan dated 3 December 2008. The applicant was terminated on 8 December 2008. 75 Ms Salmon said that the organisation would not be prepared to reinstate or reemploy the applicant as her behaviour had been totally unacceptable and she was a threat to the safety of Ms Summers. 76 In cross-examination Ms Salmon agreed that the following of the steps laid down in the Disciplinary Policy and Procedures were mandatory. Ms Salmon stated Ms Agustin had been in charge of the first set of investigations and that when she took over in November 2008 she was looking at the outcomes not the process. She stated that she was unaware of the allegation involving Mr Wragg. She accepted that it was important to the disciplinary process that there exist the complaint be in writing or a transcript or statement of an interview produced. There was no written statement from Mr Zaba with respect to the October investigation. She also accepted that the applicant had complained of not receiving an accurate transcript of the 14 October meeting and that she had to wait a considerable time for it to be sent to her. Ms Salmon stated that whilst no written statements existed from the October 2008 allegations, the respondent used emails as statements with respect to the November incidents. With respect to the interviews that took place on 7 November 2008 Ms Salmon accepted from the policy that only two persons from management be involved. On that day herself, Mr Swarmy and Ms Agustin were present but it was her view that Ms Agustin was there only to take notes. Ms Salmon did not have the interview taped because the applicant was upset and distressed and she did not wish to add to her stress. At the time of the interview Ms Salmon was aware that the medical certificate of the applicant stated that she was fit to attend a conflict resolution meeting only. Notes of that meeting were sent to both the applicant and Ms Summers. It was Ms Salmon's view that the handling of the five allegations altogether was not inconsistent with the policy that each allegation must be treated on its individual merits and the form of action to be decided on a case by case basis. Ms Salmon stated that she had come to her conclusion on the allegations based on the interviews and the CCTV footage. Ms Salmon did not accept that inconsistencies between what Ms Summers had stated in her emails and what she said in the interview meant that she might not be telling the truth, beeping horn and the car window being wound down. In her view inconsistencies would suggest that Ms Summers was very distressed and maybe remembering confusedly. Ms Salmon said that it was their intention to give her a copy of the prints from the CCTV but did not have time prior to the 1 December 2009 meeting. This meant that the applicant did not have an opportunity to respond to the CCTV photos post the meeting because the findings had been made. Ms Salmon accepted that the requirement to provide to the applicant in accordance with the guidelines all the statements and evidence prior to any findings to be made did not occur. She also accepted that the guidelines were not followed with respect to the alleged death threat made by the applicant to Ms Summers. In her view it was grounds for instant dismissal. With respect to the issue raised by the applicant concerning her written complaint that she believed that she was being victimised by management Ms Salmon did not believe the applicant had singled out her and therefore she continued with the investigation. 77 With respect to the interview that took place on 1 December 2008 it was Ms Salmon evidence that she had spoken with the applicant on the Friday before the meeting to enquire about whether the applicant was well enough to attend and it was the applicant's desire to have the meeting and have the thing finished and wanted to talk about voluntary redundancy. She confirmed that the applicant asked during the meeting what her options were and confirmed what she expressed in her affidavit with respect to the threat made against Ms Summers. In response to a question from the Commission Ms Salmon stated that the applicant was terminated as a consequence of the threat made against Ms Summers in the context of the ongoing bullying, harassment and aggression against his person. It was part of an entire picture. The reason the applicant was not given the opportunity to explain herself with respect to the alleged threat stated on 1 December was because it was in context of a growing number of allegations of threats. She also stated that if the applicant had been given the opportunity to provide evidence to explain her behaviour on 1 December she couldn't say what she would have done as a consequence. She also stated that the applicant had received a warning in 2004/5 from Fairfield Hospital. 78 Mr Adam Hall gave evidence that he is employed by the Health Services Union as an Organiser. He stated that he sent an email to Ms Salmon on 17 November 2008 outlining his concerns with respect to the allegations against the applicant, his concern with respect to procedural fairness, the desire of the applicant to return to meaningful work at the PLS and if that was not available her willingness to accept voluntary redundancy. He stated that when Ms Salmon responded he then sent it to the applicant for her views. Prior to the meeting on 1 December 2008 he stated that he sent and received a number of emails to the applicant. The applicant had stated that she feared that she would have a breakdown. She also stated that she had spoken with Ms Salmon and that she was to be found guilty of 2 of the 3 allegations and that a voluntary redundancy would be formalised at the meeting. Mr Hall stated that at the 1 December 2008 meeting it was stated that the applicant had been found guilty to some of the allegations with a recommendation for a first and final warning. Evidence with respect to photos were provided. He advised his member not to respond as it was the first time they had seen such evidence. The offer of a voluntary redundancy had been approved as no jobs at PLS were available or at Parramatta Service Centre as Administration. He said that the applicant was not willing to accept the voluntary redundancy at the moment, as she was concerned that findings would impact upon her getting another job. It was agreed that Ms Agustin would give the applicant a copy of the allegations of the first complaint. Ms Salmon would write to the applicant and give her a copy of the findings and invite her to respond plus a response to the recruitment review. The applicant was to consider the voluntary redundancy offer and respond by 12 December 2008. After this had been discussed and agreed the applicant stated the following: " If Kylie wants to see aggressive then I will go to PLS and show her aggressive. I have seven brothers and my husband has x amount of brothers so don't be surprised to find Kylie show up dead somewhere." He took this statement to be threat by the applicant against Ms Summer's life. Later that day Mr Hall sent an email to his supervisor with a copy to other union senior officers updating them on what had occurred at the meeting. He said that he contacted his member about ten minutes after the meeting broke up by mobile phone, and told her that she was now going to be sacked as a consequence of what she had said. On 5 December Mr Hall received an email from the applicant apologising about the other day stating she could not tolerate their dishonesty and unfairness and she had lost it. She said that she had told him before that she was not well enough to go under that much pressure. She confirmed that she had not listened to him and that she was impatient but could not wait another six months. She still sought his help. In a reply email Mr Hall, with the prior approval of his supervisor, said that he could no longer assist her as she had threatened to kill Ms Summers, she did not listen to him and continued to talk over him. 79 In cross-examination Mr Hall stated that he first came into contact with the applicant in November 2008. He stated that whilst he was aware the applicant was not working due to a workers compensation claim he was not aware of the injury or illness and had not seen any medical certificates. He said that he had organised to meet the applicant prior to the 1 December meeting and to therefore have the opportunity to judge whether the applicant wasn't up to it. If she wasn't he believed he had the opportunity to cancel the meeting. It was his view that the applicant was in a position to attend the meeting and progress the issues. During the meeting he said that he tried to stop the meeting on two or three occasions but the applicant was not listening to him, as she was very upset, crying and raising her voice. He believed at one point he told the applicant to shut up. 80 He sought to stop the meeting because he had concerns with procedural fairness issues. Complaints had to be in writing and be specific in detail, what was said who said it and when. The employee should receive a copy of the report and the material that's relied on and have the opportunity to respond to it prior to any punitive action being taken. The response then goes to the decision maker as well. He confirmed that a person can not be made redundant against their will. 81 Mr Hall rejected the words alleged to have been used by the applicant during the 1 December 2008 interview concerning the threat against Ms Summers. He said at the end of the meeting he tried to calm things down and get the meeting back on track as from his point of view he was trying to get a redundancy for the applicant as per instruction. It was his view that the introduction of new evidence during the meeting didn't allow the allegations to be finalised. The issues of process were trying to be rectified by the plan that was formulated during the meeting. 82 In responding to question from the Commission Mr Hall stated that what was said by the applicant was such a serious comment made against another person and it was not something that he was used to hearing. He had never heard this before and it came as a surprise and a shock. 83 Ms Marilou Agustin stated that she is the Human Resources Manager of Health Support Services. She said that on 18 July 2008 she received a phone call from the applicant complaining that she did not get an interview for the position of Customer Relationship Coordinator at Parramatta Linen Service. She said that she would review the recruitment folder. On 21 July she had a meeting with the applicant to further discuss her concerns. Ms Agustin explained the process and explained to the applicant that her application was inadequate. The applicant became upset and stated that she had been doing the job for more than twelve months, she knew the job and the clients and could not accept that someone was going to do her job. Ms Agustin offered to help her with her application which was initially refused but later accepted however by that time Ms Agustin was part of the employment panel for the third position so she could not assist. The applicant did receive an interview for the third position. She also sought Ms Agustin's help with other positions that were advertised. 84 Allegations raised by the applicant concerning Mr Wragg attitude during the interview for the Customer Support Services were not accepted by Ms Agustin who believed that Mr Wragg had acted in a professional manner. 85 On 10 October 2008 Ms Agustin was asked by Mr Wragg to assist in investigating three complaints against the applicant. One was aggressive behaviour towards a colleague, another making false allegations against the Operations Manager of PLS and the other was taking the car of the NSW Linen Manager without approval. A letter dated 10 October 2008 was sent to the applicant outlining the allegations including another allegation that that she had hung up on Mr Wragg. 86 On 14 October 2008 a discipline fact finding meeting was held with the applicant accompanied by Ms Ibrahim and Ms Agustin and Mr Wragg. At that meeting she denied being aggressive towards Ms Summer or accusing of taking the job from her. With respect to the issue of making false accusations against Mr Komarek and taking the car of Mr Deacon she said that she had apologised to both men. During the meeting the tape recorder stopped and the rest of the interview was taken in note form, which she would get a copy of. At the end of the meeting on request of the applicant Ms Agustin advised the applicant that she had been unsuccessful in her application for the Customer Relationship Coordinator. She was also advised that her present position did not exist in the new structure and therefore she was now a displaced person. She was also advised that a temporary role at the Parramatta Service Centre was looking positive but unfortunately the next day that had to be withdrawn. 87 Over the next few weeks Ms Agustin received a number of phone calls from the applicant upset over Ms Summers and Mr Zabel noting in one that they had a previous relationship. Ms Agustin replied that it was irrelevant and she did not want to know. In another phone call the applicant stated that she had done the job for two and one half years and now outside people were doing it. 88 Also around this time Ms Agustin contacted the applicant to advise there had been a delay in the transcript for the 14 October meeting and she would endeavour to get it completed as soon as possible. 89 Around 31 October 2008 the applicant again rang Ms Agustin stating she was very upset about what was happening to her and her job. She said that she should not be the one not having a job, that Ms Summers was lying and should be terminated. She was advised that this could not be done and that there was a process to go through. The applicant responded that management should pay both Ms Summers and Mr Zabel out. If not then move them to another location so she could come back. 90 On 3 November Ms Agustin sent an email to Mr Swamy and Ms Simpson detailing the conversation with the applicant. 91 On 4 November Ms Agustin received an email from Mr Swamy in relation to an incident that occurred on 3 November. 92 On 7 November Ms Agustin attended meetings with the applicant, Ms Summers and Mr Zabel concerning allegations against the applicant from Ms Summers and vice versa. After the meetings Ms Salmon distributed draft minutes of the meetings to the people in attendance. Ms Agustin reviewed the minutes and considered that they were consistent with her recollections of the meetings. 93 On 1 December Ms Agustin stated that she attended a meeting with the applicant, Mr Hall, Ms Salmon and Mr Swamy. At the meeting the applicant was advised of the outcome of the investigations and the decision in issuing a first and final warning. She was also advised about the availability of voluntary redundancy. The applicant became quite upset and said: " I have seven brothers and my husband has seven brothers and many cousins and after the court I will show Kylie what aggression is and she will be dead." It was Ms Agustin's memory that Ms Salmon said to the applicant : "You just made a serious threat to Ms Summers' life." The meeting finished at that point and the applicant left. Ms Salmon wrote down what the applicant had just said and asked the three people in the room if what she had written was what the applicant had said. Everyone agreed. 94 It was Ms Agustin's view that the applicant could not be reinstated because the applicant did not accept that her position no longer existed and she refused to accept any other position plus the serious threat to another employee. 95 In cross-examination Ms Agustin confirmed that Mr Wragg should not have been involved in the 10 October 2008 interview of the applicant because of the four allegations he had been involved in one of them. She said that she did not go and speak to a John or a Mr John Golden, re the issue between the applicant and Ms Summers, because the applicant was uncertain as to whether he was present or not. It was also her view that the applicant was insistent that she return and work only at PLS and that management should pay out Ms Summers and Mr Zabel. 96 Mr Satyanarayan Swamy stated that he holds the position of Manager Cluster Operations Central based at Parramatta. He said that the applicant was transferred to under his responsibility on 3 November 2008 as a displaced employee and had a current work cover certificate with selected restrictions. On that same day he stated that he received an email from Ms Agustin advising that the applicant wanted two employees terminated and refusing to work at PLS. During the return to work meeting he gave an assurance to the applicant that the other two employees would not be working close to her. At the end of the meeting the applicant left in an emotional state. Later that afternoon he received a call from Mr Wragg stating he had received a phone call from Ms Summers to advise that she had been followed in the car by the applicant and had been abused. Ms Summers had reported this to the Police. The next day he received an email from Ms Summers outlining what had occurred the previous day. 97 On 5 November 2008 Ms Swarmy said that he received a text message from the applicant stating that Ms Summers had called her and upset her and wished him to tell Ms Summers not to call her on her private number. On the same day at approximately 5.00pm Ms Summers came to his office with Mr Wragg. Ms Summers stated that the applicant had called Ms Summers that afternoon and had threatened her family. Mr Swarmy advised that he had received a call from the applicant stating that Ms Summers had called her. Ms Summers denied making a call to the applicant. On 6 November 2008, Mr Swarmy received a copy of a medical certificate dated 6 November 2008 from the applicant, stating that the applicant was unfit to attend work for two weeks. Prior to an investigation meeting on 7 November 2008, Mr Swarmy received a second medical certificate stating that the applicant was unfit to work from 7/11/08 to 14/11/08. The Management plan stated: "patient felt better after speaking to police, settled enough for conflict resolution meeting at work; rest from work for one week." 98 At the meeting on 7 November 2008 the applicant was offered a position at the Service Centre which she declined and stated that if Ms Summers was not removed from her position she wanted to be paid out voluntary redundancy. After the meeting he was given a copy of the draft notes of the meeting from Ms Salmon which he confirmed as consistent with his recollections. On the same day he also met with Ms Summers and Mr Zabel and later confirmed draft notes of those meetings being accurate. 99 On or around 24 November 2008 Mr Swarmy received an Executive Summary Report of the Disciplinary Proceedings against the applicant. I supported the recommendations. A meeting with the applicant was arranged for 1 December 2008. 100 Mr Swarmy attended the meeting with Mr Hall, Ms Salmon, Ms Agustin and the applicant. The applicant was advised that she would receive a final warning and any repeat would give management no alternative but to terminate her services. A couple of options were given to the applicant once she was well enough to return to work. She could go to the Service Centre at Parramatta or take a voluntary redundancy. He said the applicant became very angry and said something to the effect of: " I have seven brothers. My husband has seven brothers and many cousins. I will show Kylie what aggression is. I will go to court tomorrow and she will be dead." He said that Ms Salmon said to the applicant that you cannot make death threats to fellow employees, this can result into termination and I want you to consider what we have been discussing. The applicant responding that she did not care about your job or money and she will show Kylie what aggression is and then left the room. Ms Salmon had written down what the applicant had said and read it out to the people in the room. Mr Swarmy said that he did not see reinstatement as practicable as she failed to acknowledge that her previous position no longer exists and did not accept the outcome of her application for the restructured position. 101 In cross-examination Mr Swarmy stated that Ms Salmon asked the questions at the meeting on 7 November 2008. He denied that he had prejudged the applicant prior to the meeting on 7 November. The applicant always maintained that she did not do what she was alleged to have done with respect to the incidents on 3 and 5 November. Mr Swarmy did not understand that when the applicant sent an email complaining about victimisation by management that it meant himself or other managers but what had occurred at the meeting on 7 November. 102 Mr John Wragg stated that he has been employed by the Dept. of Health Linen Services since 1999 and has been the applicant's supervisor for the last two years. He stated that during the process of filling vacancies for the newly created position of Customer Relationship Coordinator he encouraged the applicant to apply but did not give the applicant any assurances as the recruitment was a competitive process. 103 On 8 October 2008 he stated that he received a verbal complaint from Ms Summers. Ms Summers said that the applicant had accused her of taking the applicant's role and that she should not have it. She was quite aggressive. He also spoke with Mr Zabel who said that the applicant questioned Ms Summers on her ability to do the job and made Ms Summers feel that she wasn't up to do the job. Mr Wragg denied that he was angry with the applicant during her interview for the Customer Relationship Coordinator held on 9 October. 104 On 10 October 2008 Mr Wragg received allegations from Mr Komarek and Mr Deacon against the applicant. On the same day a disciplinary letter outlining four allegations against the applicant was provided to her including the allegation of the Applicant hanging up on Mr Wragg and the allegation raised by Ms Summers. 105 The disciplinary interview was held on 14 October 2008 with the applicant, Ms Ibrahim, Mr Wragg and Ms Agustin. At the end of this meeting the applicant insisted that she be told the outcome of her application. She was advised by Ms Agustin that she had been unsuccessful and that she will be receiving a displacement letter. 106 On 3 November 2008 Mr Wragg stated that he received a phone call from Ms Summers stating that there had been another incident with the applicant. She sounded very upset. I requested Ms Summers to document the incident in a report. He then informed Mr Swarmy of the phone call. The next day he received an email from Ms Summers describing what she said occurred. 107 On 5 November 2008 Mr Wragg received another phone call from Ms Summers saying that the applicant had just phoned her twice. On the first occasion as soon as she realised who was on the phone she hung up. On the second occasion the applicant allegedly said in a highly threatening manner that she would go after her kids and family. Mr Wragg advised Ms Summers to contact the Police. 108 On 6 November 2008 Ms Summers sent Mr Wragg an email outlining what she alleged occurred the previous day. 109 Mr Wragg advised in cross-examination that he had not previously been involved in a formal disciplinary procedure. He stated that neither Ms Summers or Mr Zabel provided a written account as to what allegedly occurred on 8 October. All he had was his notes from him speaking with the two employees that were used when he held the disciplinary meeting on 14 October 2008. With respect to the four allegations he confirmed that two of the allegations were settled by the applicant apologising to the two men, and the one of the applicant allegedly hanging up on Mr Wragg was not pursued. That left only the allegation raised by Ms Summers. Post 14 October Mr Wragg did not carry out any further investigations and came to no conclusion as to what occurred on 8 October 2008 between the applicant and Ms Summers and Mr Zaba, nor did he speak to any other potential witnesses to this incident. Considerations and Decision. 110 The applicant was notified by written correspondence dated 5 December 2008 signed by Mr John Roach, Chief Executive of the Health Support Service of her termination that took effect from 8 December 2008. In brief the correspondence outlined that three of the five allegations of aggressive behaviour by her against Ms Kylie Summers had been substantiated. A report recommended that the applicant be disciplined with a warning and any further incident would mean that her contract be terminated. Subsequent events overtook the sending out to the applicant a copy of the report and an opportunity to respond. The correspondence also reported on the Recruitment Review and the offer of voluntary redundancy as a displaced person. The correspondence reported on the specific and violent threat made during the 1 December 2008 meeting directed at Ms Summers and the subsequent withdrawal of the voluntary redundancy offer. It also raised a previous formal warning dated 25 February 2004. The Outcome was expressed in the following fashion: 1. The first discipline of a warning that further similar behaviour would warrant termination is endorsed. 2. The second act of aggression warrants termination linked to the first discipline, however the threat of death to another employee is an extremely serious matter and when this is linked to other aggression to that employee and a history of similar behaviour warrants summary dismissal. 111 The above as expressed was the basis on which the applicant was terminated. It is therefore my view in considering whether the termination of the applicant was harsh, unreasonable and or unjust to consider, whether the basis for the termination was sound. 112 The first discipline of a warning was based on the three allegations being substantiated by the respondent. 113 The first allegation was that which occurred on 8 October between the applicant, Ms Summers and Zaba. In reviewing the evidence with respect to this matter it would seem that it was not the raising of her voice by the applicant but the questioning by the applicant as to Ms Summers competency to do the job that Ms Summers objected to. I note the evidence of Ms Teoman when she stated that a Turkish speaker with a restricted command of English, will sound abrupt and inappropriate and also the evidence of Ms Ibrahim who acknowledged that the applicant sometimes too much speaks her mind. The alleged comment made by the applicant to Ms Summers to the effect that "she took her job" would not have sat well with a new incoming person. Whilst the applicant may not have wished to project herself during this conversation in an off putting manner which resulted in Ms Summers being upset, the result on this occasion was that Ms Summers with Mr Zabel reported the matter to Mr Wragg. Notably it was the first time in her employment with the respondent that Ms Summers had reported a fellow employee. At this point the respondent failed to adhere to the "Framework For Managing The Disciplinary Process In NSW Health" in that neither Ms Summers or Mr Zabel were required to complete a statement detailing what was alleged by whom, how it was said and where it was said. Having not generated such documents which would have then be provided to the applicant so as she was aware at first instant as to what was being alleged, was unfair on the applicant. The subsequent interview of the applicant with respect to this allegation was based on brief notes that Mr Wragg had jotted down as a consequence of speaking to Ms Summers and Mr Zabel. It was also inappropriate for Mr Wragg to be involved in the interview of the applicant when he himself had raised an allegation that she had hung up on him during a phone conversation. Mr Wragg should not have had anything to do with the applicant with respect to the 8 October investigation. It was raised by the applicant that another employee by the name of John may have overheard the conversation yet no attempt was made by the respondent to investigate this aspect. The non-appearance by Mr Zaba in these proceedings, an obvious witness to the 8 October exchange, is somewhat perplexing. I do not accept Mr Easton's submission that his evidence would not have added anything more. On the contrary his evidence of what he saw and heard on that day would have been beneficial to the Commission. Whilst I note that this incident by itself would not have resulted in a termination of the applicant I do not believe I can make a positive finding that the applicant sought to be intentionally aggressive towards Ms Summers. 114 The allegation of what occurred on 3 November 2008 is in my view a more serious matter. In simple terms Ms Summers stated that on that day the applicant in her car, followed Ms Summers in her car out, of the car park and further on down another road the applicant yelled out to Ms Summers: " Why did you complain about me? Why are you doing this ? Pull up so we can talk about it." A series of car manoeuvres then took place with the applicant driving in front of Ms Summers and then stoping at the next set of lights. The applicant flatly denies this exchange took place. She states that she left a meeting at work, coincidently at the same time as the applicant, left the car park and turned right and proceeded to her friend's house as arranged. Factually what is known is only that the applicant followed Ms Summers out of the car park. The applicant had just left a meeting at the work site in an emotional state where she had sought assurances from Mr Swarmy that Ms Summers and Mr Zabel would not falsely accuse her. She had on or around 31 October 2008 in a telephone discussion with Ms Agustin sought for Ms Summers to be terminated and for her and Mr Zabel to be paid out or to move them to another location. She had communicated to Ms Ibrahim that she did wish to speak to Ms Summers. From Ms Summers point of view she had not spoken to the applicant since 8 October 2008. She gave evidence that post the alleged road incident she phoned a number of people including Mr Zabel, she believes to obtain Mr Wragg's phone number, then Mr Wragg to report the incident and then finally the Police when she then proceeded to a Police station to report the incident. Mr Reitano for the applicant stated that Ms Summers may have made a mistake in identification. For a mistake in identity to occur a dark coloured four wheel drive vehicle pulled up along side of Ms Summers with the female occupant of the car yelling to Ms Summers: "Why did you complain about me? Why are you doing this? Pull up so we can have a talk about it?" If it wasn't the applicant then it was an unknown female driver that Ms Summers had complained about to someone and the driver wished to speak to her about the issue. If the incident did not occur at all but was made up, Ms Summers then involved Mr Wragg and the NSW Police in the incident. What was Ms Summers motive for doing such a thing? She had not spoken to the applicant since 8 October and by her own evidence had sought to avoid her. What did she have to gain by making up such an incident? In reviewing the evidence I could not find any advantage or gain that Ms Summers would derive from fabricating such an incident. Ms Summers was quite clear in her evidence that she recognised the applicant as the driver. She stated that she reacted badly to this incident was shaken and scared and had to pull off the road into a service station. Ms Summer's mobile phone records show that there was a gap in time between her contacting Mr Zabel and Mr Wragg and the NSW Police which was contrary to her affidavit in which she said that she immediately rang the NSW Police after the incident. I believe it is understandable that where Ms Summers is shaken and scared that she had forgotten that she had made phone calls to other persons and drove away from the Mobile Service station to a small shopping centre prior to calling the Police. In summary with respect to this incident I prefer the evidence of Ms Summers and I find that the incident did take place on 3 November 2008 between the applicant and Ms Summers. 115 The next issue to consider is the phone calls that occurred between the applicant and Ms Summers on 5 November 2008. Phone records of Ms Summers showed that on 5 November the applicant rang Ms Summers on two separate occasions. The applicant rang Ms Summers at 16.31:13 which went for a duration of 17 seconds. The records then show that Ms Summers rang Mr Wragg at 16.31:57 for a duration of 76 seconds. The applicant then rang Ms Summers again at 16.34:18 for a duration of 23 seconds. Ms Summers then rang back Mr Wragg at 16.34:59 for a duration of 67 seconds. Ms Summers then rang Parramatta Police at 16.36:55 for a duration of 313 seconds. Mr Wragg then rang back at 16.42:24 for a period of 54 seconds. The applicant stated that she received a call about 4.00pm on 5 November but it stopped before she could answer it. She believed it could have been her daughter so she pressed *10# and it gave a number which she then rang. One would imagine that the applicant would know her daughter's phone number. She stated that it went straight to Ms Summer's voicemail so she hung up. She then rang the number again and a conversation ensured. She did state that she did loose her temper and yelled during the conversation but denied stating that she knew where Ms Summers lived, knew her car and that she had kids and what school they went to. Ms Summers stated that she was at TAFE watching the 4.30pm news on TV when she received a phone call from the applicant and told the applicant she did not wish to speak to her and ended the call. She then rang Mr Wragg and advised him of the call and was told to put it in writing. Straight after that call she received another call from the applicant who said : "It's OK-I know where you live and I know your car and I know you've got kids and I know what school they go to." Ms Summers then said that she ended the call. Ms Summers was very distressed by the call and rang back Mr Wragg and told him what had occurred. Mr Wragg advised her to come back to the office and she met with him and Mr Swarmy. The phone records show that the applicant made two calls to Ms Summers. This is contrary to the evidence of the applicant who stated that the first call went to voice mail. At this point she stated that she never spoke with Ms Summers, and she never left a message. The phone records of Ms Summers is in accord with the time line as expressed in her affidavit and the number of calls made by the applicant to her. It is also in accordance with the evidence of Mr Wragg with respect to receiving a phone call from Ms Summers who he says was in a distressed state. In summary it is my finding that I prefer the evidence of Ms Summers with respect to this issue. It is my view that the applicant during this period was in an agitated state, brought on in my view by Ms Summers reporting their 8 October meeting, and the subsequent action that occurred. In my view the applicant did indeed loose her temper and in doing so made the comments to Ms Summers about her car, where she lived and what school her children attended. Such comments are clearly inappropriate and unacceptable. I accept the submission of Mr Easton that a subsequent text message by the applicant to Mr Swarmy complaining about the actions of Ms Summers indicated a presence of mind and that what she had just done may land her in more trouble, and so she told a new story that she was being set up. I do not know what benefit Ms Summers would derive if that was true. 116 The meeting that took place on 1 December 2008 was attended by the applicant, her union representative Mr Hall, Ms Salmon, Mr Swarmy and Ms Agustin. Much was expressed during the hearing as to the rights and wrongs of this meeting actually going ahead and taking place. It is my conclusion that both parties had a desire for the meeting to go ahead. The applicant wanted the issues that she had been living with for several weeks to be finished with and the opportunity to consider a voluntary redundancy. The respondent by having the meeting would conclude the disciplinary process in an abridged fashion and then offer the applicant voluntary redundancy. In days leading up to the meeting taking place the applicant had sought assurances from both Mr Hall and Ms Salmon as to what would be discussed and her concern about her ability to handle such a meeting. The applicant on the morning of the meeting went to her GP but made no mention of the forthcoming meeting. In my view this was done intentionally so as she could attend the meeting. On the day of the meeting the applicant met with Mr Hall. It was Mr Hall's view that this would give him the opportunity to appraise the applicant's demeanour and if necessary halt the meeting. In his view he determined that the meeting should go ahead as he believed he had the capability to control his member. Whilst Ms Salmon had outlined to the applicant over the phone as to what was to take place including the outcome of the allegations, and the approval received to be able to offer voluntary redundancy she did not detail to the applicant exactly which of the allegations that had been substantiated. The applicant therefore went into the meeting without that knowledge. As a consequence the applicant was not prepared for the findings that was expressed to her. She had in her mind one thing but was told another. This lack of knowledge on behalf of the applicant contributed to the meeting's failure. Also the applicant was shown CCTV photos of the car-park taken on 3 November 2008. Introducing such evidence at such a stage I believe was contrary to the disciplinary guidelines and was rightly challenged by Mr Hall. Such an action by the respondent again did not help the process. Notwithstanding the best intentions of representatives of both parties to try and adhere to what was on the agenda that day, it is clear that the applicant was not in a fit state to participate in a normal business like manner. I am satisfied that the applicant due to her fragile state lost control of herself and I find that she uttered the words as expressed by all the other witnesses in the room who gave evidence in this hearing. What she said shocked the people in the room resulting in Ms Summers being warned of the threat, reporting the incident to the Police and the Union no longer acting for her. The respondent then proceeded to withdraw the option of voluntary redundancy and the internal process of terminating an employee commenced. I believe that at that point after the meeting a general time out should have taken place. During the meeting the failure to follow the disciplinary procedures by the respondent had been raised and there had been put in place a process of providing the applicant with a copy of the written finding and other material and a time for the applicant to consider same and respond. This plus the opportunity for the applicant to respond to her outburst at the 1 December meeting should have taken place. I note that the email sent by the applicant to Mr Hall on 5 December starts with the sentence " Sorry about the other day" and includes "I lost it". Such a review of whatever the applicant came back with should then have been handled by a person who had not been previously involved with the applicant in the disciplinary process. 117 In summary it is my finding that the incident on 3 November 2008 between the applicant and Ms Summer as described by Ms Summers did take place. It is also my finding that the telephone conversations as outlined by Ms Summers did take place on 5 November 2008. For those two incidents I believe it is appropriate for the applicant to receive a first and final warning. 118 Whilst I have made a positive finding that the applicant did threaten Ms Summers during the meeting I do not believe the applicant was in a mentally fit state to handle such a meeting and therefore had a diminished responsibility for what she expressed during such a meeting. The medical certificate issued on the morning of the meeting had the diagnosis as: "anxiety, depression, panic attacks." The applicant at the time of that meeting was facing a number of issues and was not I believe capable of rational behaviour and thought to the extent required. In my view mitigating circumstances did exist in this instant. The failure of the respondent to allow the applicant the opportunity to explain herself post the 1 December 2008 meeting was a clear failure of procedural fairness. 119 In summary it is my finding that the termination of the applicant was harsh as it was disproportionate to the gravity of the misconduct taking into consideration the mental health of the applicant. 120 The applicant seeks reinstatement or reemployment as a displaced person with no requirement that she be located at PLS. Her claim also seeks back pay for the period that she was terminated plus continuity. Mr Reitano for the applicant recognised that the hearing had been delayed by application of the applicant as a consequence of ill health and that would have to be dealt with in respect to back pay. Also medical evidence would have to be provided by the applicant during the period since termination in consideration of the back pay quantum, and if there was any workers compensation involved plus a medical clearance to return to work. 121 The respondent did not believe reinstatement was practical as a consequence of what the applicant actually did that would sever any possible future employment relationship and a number of witnesses stated that they would not wish to work with the applicant. 122 It is my view that the respondent is a large organisation with a number of outlets that the applicant could be considered for as a displaced person in accordance with the Managing Displaced Staff of the NSW Health Service Policy. Such consideration should take into account that the applicant has little or no contact with Ms Summers. 123 The applicant had a long history of employment with the respondent. Other than a warning in February 2004 the applicant prior to October 2008 had a blemish free work history. The failure of her applications for the Customer Relationship Co-ordinator positions was in my view not accepted by the applicant with good grace and a catalyst for what next occurred. This was a failure on the part of the applicant to recognise that there are very few certainties in the promotion process. 124 I therefore make the following Orders: ORDER 1. In accordance with section 89(2) of the Act, I Order the Director General of NSW Health Department Health Services Division Linen Services Parramatta Branch to reemploy Ms Perihan Kaplan as a displaced person within 21 days of the date of this Decision. Ms Kaplan is required to provide a medical certificate clearing her to return to work. 2. In accordance with section 89(3) of the Act, I direct the parties to confer and quantify the back pay taking into consideration the delay in the hearing of this case and any other relevant matters including if appropriate what is expressed in point 119 of this Decision. Such payment must be made to the applicant within 21 days of this Decision. I give leave to have this matter relisted at short notice if agreement is not reached. 3. In accordance with section 89(4) of the Act, I Order that the period of employment of the applicant with the respondent is taken not to have been broken by the dismissal. 4. I Order that Ms Kaplan be given a first and final warning with respect to the incidents of 3 and 5 November 2008. D. RITCHIE COMMISSIONER 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.