Industrial Relations Commission of New South Wales CITATION: Carolyn Julie Smith v Walgett Shire Council [2010] NSWIRComm 1071 APPLICANT Carolyn Julie Smith PARTIES: RESPONDENT Walgett Shire Council FILE NUMBER(S): 411 of 2010 CORAM: Macdonald C CATCHWORDS: Unfair dismissal - Applicant employed as Agency Clerk - Applicant given two written warnings in September and December 2009 - Allegation by fellow employee against Applicant re inappropriate comments - respondent's investigation - Applicant's denial - Applicant dismissed - HEARING - onus on respondent - fellow employee's claim against Applicant not made out - Applicant challenged two written warnings on grounds of lack of procedural and substantive fairness - Commission upheld applicant's claim as to first warning only - HELD: Dismissal unjust - reinstatement and other appropriate orders made. LEGISLATION CITED: Industrial Relations Act 1996 Anti Discrimination Act 1977 Briginshaw v Briginshaw (1938) 60 CLR 336 Jones v Dunkel (1959) 101 CLR 298 CASES CITED: Outboard World Pty Ltd t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 Paul Rapp v Wauchope RSL Club Ltd [1995] NSWIRComm 233 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No. 3) (1990) 35 IR 70 Wang v Crestwell Industries Pty Limited (1997) 73 IR 454 HEARING DATES: 04/11/10; 05/11/10 DATE OF JUDGMENT: 22 December 2010 APPLICANT Mr A Jacka Union Official USU LEGAL REPRESENTATIVES: RESPONDENT Mr N Wilson Solicitor Booth Brown Samuels & Olney DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 22 December, 2010 Matter No IRC 411 of 2010 Carolyn Julie Smith and Walgett Shire Council Application by Carolyn Julie Smith re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2010] NSWIRComm 1071 1 This is an application by Carolyn Julie Smith ("the applicant") for unfair dismissal against Walgett Shire Council ("the respondent"), pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The unfair dismissal application was filed on 27 May, 2010 in the New South Wales Industrial Registry. The Employers Reply was filed on 7 June, 2010. 3 A teleconference Conciliation was held by Bishop C on 18 June, 2010. The matter did not settle and was programmed for a Hearing. 4 The Hearing was held in Dubbo Court House on 4 and 5 November, 2010 before Macdonald C. 5 At the Hearing, the applicant was represented by Mr A Jacka of the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union ("the Union"). Assisting also from the Union was Mr N Martin. 6 Mr Jacka called the following witnesses: Denise Pratt former employee Casandra Malone customer Noel Martin union official Ian Woodcock Mayor of Walgett Shire Council Carolyn Julie Smith applicant Kelly Smith husband of applicant - Councillor of Walgett Shire Council The above named witnesses of Pratt, Malone and Martin were not required for cross-examination. 7 Mr N Wilson, solicitor of Booth, Brown, Samuels & Olney appeared for the respondent. Mr Wilson called the following witnesses: Lianne Tasker Manager, Community Development and Tourism Carole Medcalf Director, Corporate and Community Services Paul Macdonald customer Samanthi Bandula Manager, Human Resources 8 One other witness appeared at the requirement of the Commission - Jennifer Trindall, employee of the respondent and working at the Collarenebri Agency. BACKGROUND 9 The applicant had been an employee of the respondent since 1996 - as a casual and thence permanent employee in 2008. At all times she had been an Agency Clerk. At the time of her dismissal, she was an Agency Clerk of the town of Collarenebri. This role, relevantly, had customer contact as in financial transactions and mail distribution. 10 The incident that was the catalyst for the applicant's dismissal occurred on 25 February, 2010. The applicant (non-Aboriginal origin) was working with a Jenny Trindall (Aboriginal origin). 11 A customer, Veronica Murray (Aboriginal origin) attended the Collarenebri Agency to collect her mail. 12 According to the complaint lodged by Jenny Trindall to her employer, against the applicant, the following scenario took place: "(a) On 25 February, 2010, a customer of aboriginal origin, Ms Veronica Murray, attended the agency to collect her mail. (b) You (the applicant) have brought and pushed towards Ms Murray her mail, saying "There you go ya cunt". (c) This was witnessed by Ms Jenny Trindall, a fellow employee. (d) You then turned to Ms Trindall saying "We are like that. It is a wonder she didn't reply by saying 'get fucked ya big white moona' In the witness box, Ms Trindall gave the correct spelling of "moona" above as "moonay" and that it is Aboriginal for "vagina". (Tr 04/11/10 - p50, line 35 to 49 and p52, line 26 to 47) 13 The foregoing account is set out in the letter of Ray Kent, General manager. It also states that Ms Murray and Ms Trindall have confirmed in writing the matters set out in paragraphs (a) and (b) above. The letter further states that both Murray and Trindall have confirmed the applicant's use of the word "cunt". (Ex 5, Annex H) 14 The applicant denied making the above comments. 15 The applicant was dismissed by letter of 12 May, 2010 from Ray Kent, General Manager. His letter noted that the applicant had denied the incident but in later correspondence, she had amended her position to one of having no recollection of the incident. The General Manager accepted the version of Trindall and Murray. He said that "this incident related to the standard of your conduct as an employee of Council….your conduct was unsatisfactory and again fell short of the standard of conduct and level of responsibility required of an employee in your position". The General Manager also noted two prior warnings (including a final warning) in relation to work performance issues, which were deemed as unsatisfactory. (Ex 5, Annex J) ORAL SUBMISSIONS For the Applicant 16 Mr Jacka put the following in final submissions: (a) The applicant sought reinstatement as her primary remedy. (b) The incident of 25 February, 2010 and the two prior warnings were absent of procedural fairness and the investigation into each incident was substantially flawed. The applicant was entitled to know the identity of her accusers and know the charges: Paul Rapp v Wauchope RSL Club Ltd [1995] NSWIRComm 233 (c) The first warning, dated 17 September, 2009, was issued to the applicant as a final warning. (Ex 5, Annex A) (Following Union representation, this first and final warning became a first warning only). The warning letter of 17 September was issued to the applicant in respect of her dealings with customers and named in particular, a customer Paul Macdonald. These customers had made complaints about the applicant who the Union said had been denied procedural fairness during the respondent's investigation. (d) The second warning was issued on 11 December, 2009 and relies almost entirely upon a complaint by Jodie Simmons, a fellow employee. The Simmons complaint comprises a number of allegations, the majority of which lack clarity and are ambiguous. The applicant responded to these complaints in writing, by seeking clarification. The respondent did not meet with the applicant but instead issued a second and final warning. (e) As to the alleged incident of 25 February, 2010, the evidence of the complainant, Jenny Trindall could not be relied upon. She did not make a formal complaint until some three weeks after the alleged incident - even though she said she was deeply offended. Her recollection as to the alleged incident was unreliable. (f) Ms Murray, the customer and who purportedly confirmed part of the incident, was not called as a witness by the respondent. Therefore the Union could not cross-examine her. An inference was to be drawn against the respondent by failing to call Ms Murray: Jones v Dunkell (1959) 101 CLR 298. (g) This dismissal of the applicant is a summary dismissal and the onus of proof is on the respondent: Wang v Crestwell Industries Pty Limited (1997) 73 IR 454. For the Respondent 17 Mr Wilson put the following in final submissions: (a) The basic foundation of the applicant's unfair dismissal application was bullying and harassment against her, but there was really no evidence for this claim. (b) As to the Paul Macdonald incident, the applicant refused and failed to apologise to him for a number of months, about the language she used and commenting on his personal affairs. (c) Jenny Trindall complained about the applicant's use of "racially discriminatory language". Ms Trindall was not offended by the language used but was highly offended by the language used to refer to the colour of skin. (d) The respondent investigated this incident. The respondent interviewed Veronica Murray who confirmed that a conversation took place. The respondent does not rely upon the veracity of the incident and the truth of what Ms Murray said. (e) The respondent did not take action against the applicant for the use of certain language with Ms Murray. (f) The respondent relies upon the words used by the applicant with Jenny Trindall as the reason for dismissal. Those words effectively constitute racial discriminatory language towards Ms Trindall, an Aboriginal lady. (g) Even though Veronica Murray was not present in the Agency for the conversation uttered by the applicant to Jenny Trindall, it should be accepted on the balance of probabilities that the conversation by the applicant to Trindall did take place, because Murray has confirmed Trindall's claim as to the applicant-Murray conversation. (h) The applicant was aware of the respondent's Code of Conduct (Ex 13, Annex C) and had undergone customer training. (i) Procedural fairness was afforded to the applicant. She was aware of the allegations against her. (j) Although the applicant was paid out notice on dismissal, the respondent considers her conduct warranted summary dismissal. The Jenny Trindall incident in itself, warranted dismissal. (k) Reinstatement was opposed. If the dismissal was found to be unfair then reinstatement to the Collarenebri Agency was opposed because of local circumstances. Applicant in Reply 18 Mr Jacka, on behalf of the applicant in reply put the following: (a) The applicant had been denied procedural fairness in respect of the two warnings issued against her. (b) The applicant denied the Jenny Trindall allegation, (c) The respondent is now saying that the Jenny Trindall incident showed that the primary reason for dismissal was racial discrimination. That reason is not found in the termination letter. Ms Medcalf, Director of Corporate and Community Services, did not give evidence as to what she believed constituted racial discrimination. (d) Given that the respondent says the dismissal is on the ground of serious misconduct warranting summary dismissal, then the respondent has not provided sufficient grounds or evidence to justify the applicant's dismissal: Briginshaw v Briginshaw (1938) 60 CLR 336. FURTHER SUBMISSIONS POST HEARING 19 Arising out of my reflection of the final submissions given in Dubbo Court House, the Commission wrote to the advocates, seeking clarification to a particular issue. My correspondence is dated 24 November, 2010. The particular issue goes to "Racial Discrimination" and begins thus, "During final submissions, Mr Wilson, solicitor for the respondent submitted that the applicant was dismissed on the ground of racial discrimination in respect of an alleged incident at the Collarenebri Agency on 25 February, 2010." 20 My correspondence advised that this ground of dismissal was not readily apparent as the ground for dismissal from a reading of the material for the Hearing. Accordingly, the Commission had turned its attention (subsequent to the Hearing) to this issue and referred to the principles contained in the Anti-Discrimination Act 1977. My correspondence asked of Mr Wilson, solicitor for the respondent, as to how the facts of the case before me, met the elements for racial discrimination as set out at section 7 of the Anti-Discrimination Act 1977. (The Industrial Relations Act 1996 makes it mandatory that the Commission take into account the principles contained in the Anti-Discrimination Act 1977). A copy of this correspondence was provided to the Union. 21 Mr Wilson responded to the foregoing correspondence by letter of 1 December, 2010. Mr Wilson advised inter alia, that the respondent was not relying on a breach of the Anti-Discrimination Act 1977, when using the term, "racial discrimination" in his final submissions. Rather, "Our submissions should have more correctly identified the Applicant's conduct as racism (including the substitution of the relevant permutations of that term where applicable throughout our submissions)." His letter went on to say "that the Applicant would have known her conduct was racist, derogatory and disrespectful towards Aboriginal people…" 22 The union responded to my letter of 24 November, 2010 and Mr Wilson's letter of 1 December, 2010. 23 The union's letter asserted, inter alia, that the respondent had not sufficiently made out a case for termination on the grounds of either racism (as that term is defined in the Oxford Dictionary) or racial discrimination. CONSIDERATION Reason(s) for Dismissal 24 The termination of employment letter of 12 May, 2010 does not make it clear as to whether there is one reason or more for the termination. The letter is signed by the General Manager, Ray Kent. The letter refers to the Murray-Trindall incident and notes only two prior warnings about work performance issues. (Ex 5, Annex J) 25 The case run before the Commission was based on the recent incident and the two prior warnings to support the dismissal. Onus 26 The termination of employment letter advised that the applicant's employment was terminated with immediate effect and payment of five (5) week's pay in lieu of notice. Despite the payment in lieu of notice, the respondent treated the termination as one of summary dismissal. Thus firstly, the letter of termination is headed, "Misconduct and Work Performance". Secondly, the witness statement of Samanthi Bandula (Manager, Human Resources),states that the applicant's "misconduct on 25 February, 2010 was sufficient to warrant summary termination." (Ex 13, para 36) Thirdly, the respondent's solicitor, Mr Wilson, advised in final submissions that the respondent was happy to maintain responsibility for the onus of proof. (Tr 05/11/10 - p66, line 9 to p67, line 1) 27 The Commission's approach to the consideration of this case is based on a summary dismissal. As such the respondent carries the onus to prove that the facts existed to support the respondent's decision to summarily dismiss the applicant: Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 at 83-84. 28 The standard of proof required to prove that those facts existed, is the balance of probabilities. That is, the respondent (in summarily dismissing the applicant) has to prove that those facts existed, on the balance of probabilities. The above standard of proof required by the respondent is the Briginshaw standard of proof: Briginshaw v Briginshaw (1938) 60 CLR 336 at 354-369, per Dixon J. The Murray - Trindall Incident 29 The catalyst for the applicant's summary dismissal arose out of a complaint made by Jenny Trindall, an employee of the respondent. Her complaint was based on an incident that occurred in the Collarenebri Agency on 25 February, 2010. 30 The Commission will set out below the matters pertaining to that complaint. The Commission will refer to the respective position of the parties as to that complaint. The Commission, in particular, will note any references to "racism" or "racial discrimination", given the respondent's oral and written submissions about those terms. 31 The incident has already been referred to in this Decision (see para 12). A censored version of the incident was made by Jenny Trindall in a "Meeting Brief" (her complaint) of 17 March 2010. (Ex 13, Annex K). 32 Her letter of complaint sets out the alleged conversation between the applicant and the Aboriginal customer (Murray) on the one hand; and the alleged conversation between the applicant and the Aboriginal employee (Trindall) on the other hand. Her letter of complaint then says, "This was unprofessional in my opinion, not very good customer service at all". There is no reference to racism or racial discrimination. 33 Six days after the date of this complaint, Ms Samanthi Bandula (Manager Human Resources) met with Ms Trindall as to her complaint. The meeting conversation is reported in Ms Bandula's witness statement. (Ex 13, para 21) No express ground of complaint based on racism is recorded. Instead, it is Ms Bandula who proffers that Ms Bandula "understood Ms Trindall believed and felt that Carol Smith (the applicant) had racially discriminated against Ms Murray and Ms Trindall because they were both Aboriginal." (emphasis added) The meeting conversation as recorded by Ms Bandula is set out below: "On 23 March 2010, I had a meeting with Ms Trindall in relation to her complaint. After I read out aloud Ms Trindall's complaint to her, we had a conversation in words to the following effect: Ms Trindall said: "The comments made by Carol Smith to Veronica Murray and me were totally inappropriate and uncalled for. I'm an Aboriginal woman and those comments made me feel very uncomfortable." By this, I understood Ms Trindall believed and felt that Carol Smith had racially discriminated against Ms Murray and Ms Trindall because they were both Aboriginal. Ms Trindall said: "Carol did customer care training a few weeks back and the training has not been of any use to her, looking at the way she behaved. I don't know the nature of the relationship Carol has with the Aboriginal community in Colly, but those sorts of things should not be said in a Council environment by a Council employee." I said: "Okay, we'll look into it further. What if Carol Denies making the statement?" Ms Trindall said: "I will definitely stand by what I've said because she did say it." " 34 The applicant was formally advised of the complaint by letter dated 29 March 2010 and signed by Ms Carole Medcalf, Direct Corporate and Community Services. (Ex 13, Annex M) Relevantly, the letter advises: "The staff member concerned has reported that she felt very uncomfortable and wanted to bring it to the attention of management as such behaviour was very unprofessional. As you are aware, you have been counselled and issued with previous warnings for breaching the code of conduct. In this instance again, having completed training in customer service during February 2010, you are alleged to have repeated your unacceptable behaviour in the work environment." The Commission notes that this formal advice made no reference to racism or racial discrimination. 35 The applicant responded by letter of 1 April 2010 and denied the use of "inappropriate language to (a) customer". (Ex 13, Annex N) 36 Ms Bandula and a Barry Murray (an officer also with the respondent) met on 9 April, 2010 with Ms Veronica Murray who confirmed she was a customer at the Collarenebri Agency on 25 February, 2010. She reported that the applicant had given her mail and the applicant had added, "Here you go ya cunt. But she did say it in a joking way." (Ex 13, para 29) 37 Subsequent to a dispute notification being lodged by the Union on behalf of the applicant, the respondent followed up on its investigation into Ms Trindall's complaint. A letter dated 30 April, 2010 was sent to the applicant by Ray Kent, General Manager. (Ex 13, Annex P) 38 The letter sets out Ms Trindall's complaint, broken up into four paragraphs: "(a) On 25 February, 2010, a customer of aboriginal origin, Ms Veronica Murray, attended the agency to collect her mail. (b) You (the applicant) have brought and pushed towards Ms Murray her mail, saying "There you go ya cunt". (c) This was witnessed by Ms Jenny Trindall, a fellow employee. (d) You then turned to Ms Trindall saying "We are like that. It is a wonder she didn't reply by saying 'get fucked ya big white moona' 39 The letter states that Ms Trindall took offence to the above conversation but the Commission notes does not set out the ground(s) for this offence. Specifically, no allegation of racism/racial discrimination is made by the General Manager against the applicant in order for her to make out a defence based on that specific allegation. 40 The letter notes the applicant has denied the allegations raised in the complaint. However, the letter advises that Veronica Murray and Jenny Trindall have confirmed the matters referred to in paragraphs (a) and (b) above and in particular have confirmed the use of the word, "cunt". Ms Trindall has also confirmed in writing, the matters referred to in paragraphs (c) and (d) above. 41 The letter, more particularly and relevantly, the General Manager then asks seven (7) questions of the applicant for response to the matters contained in paragraphs (a) to (d) above. The relevance in identifying the author of the letter goes to the dismissal letter and the particular wording of two of the seven questions. Thus, two of the questions ask of the applicant, "If so, what is your recollection of the conversation?" The applicant responded, "…I have no recollection…" The dismissal letter makes an adverse comment based on the applicant's response. The letter states, "I note that you have previously denied the incident occurred…. You have now amended your position and informed me that you have no recollection of the incident". (Ex 5, Annex J) The Commission finds that it is not correct to say that the applicant has amended her position based only on her response given by letter dated 7 May, 2010. (Ex 13, Annex Q). The words used in her response ("I have no recollection") is merely a mirroring of the key word "recollection" ("what is your recollection") posed in the General Manager's questions to the applicant. 42 Ms Carole Medcalf, Director Corporate and Community Services recommended to the General Manager, Ray Kent, that the applicant's services be terminated. She deposed that the General Manager agreed with her assessment and determination of the matter. Ms Medcalf was satisfied that Jenny Trindall had taken offence to the comments made by the applicant and had found the comments to be racially discriminatory and insulting. Ms Medcalf was satisfied the comments were fundamentally in serious breach of the respondent's Code of Conduct. (Ex 11, paras 50 and 51) 43 Ms Medcalf also deposed (Ex 11, para 54) that: " Racial discrimination by any Council officer, especially a frontline customer service officer, is completely unacceptable in the workplace or community generally. In my view, such conduct would breach Council's Code of Conduct and the anti-discrimination legislation and would justify summary dismissal." (emphasis added) 44 The General Manager, Mr Ray Kent, issued a letter on 12 May, 2010 dismissing the applicant's services. This letter does not state that the reason for dismissal is because of the applicant's alleged racist/racial discriminatory remark against Ms Jenny Trindall - but yet that was the reason for the dismissal as advanced in the hearing before myself. It was not put to the applicant before her dismissal (in the General Manager's letter of 30 April, 2010) that she had engaged in racism against Ms Trindall. In not being put to her, she was denied the opportunity to make out a defence against that allegation - whatever that defence might have been. Summary 45 The foregoing material pertaining to Ms Trindall's complaint, shows that Ms Trindall had not expressly described her complaint as being based on racism or racial discrimination. Indeed, there was no reference to "racism" but only "racial discrimination" and then not by Ms Trindall, who never particularised what word(s) she found to be inappropriate and in what way that was so. The persons using that term were officers of the respondent. 46 Ms Medcalf went further and said that in her view the conduct of the applicant would breach the anti-discrimination legislation. Conclusion: Murray-Trindall Incident 47 The Commission wrote to Mr Wilson who represented the respondent, on this issue of racial discrimination given that he had made submissions that the applicant was dismissed on the ground of racial discrimination. My correspondence asked of Mr Wilson as to how the facts of the case before me met the elements of racial discrimination as set out in section 7 of the Anti-Discrimination Act 1977, given that the Industrial Relations Act 1996 makes it mandatory that the Commission take into account the principles contained in the Anti-Discrimination Act 1977. Mr Wilson's written response was that the respondent did not rely upon a breach of section 7 of the Anti-Discrimination Act 1977 as the legal ground for dismissal. He advised that the applicant's conduct should be more correctly identified as "racism". Thus, he said that the applicant's "language drew a distinction between black and white skin, the latter being a characteristic that appertains, or is generally imputed, to Aboriginal persons." (Correspondence of 1 December, 2010) Mr Wilson drew the Commission's attention to a number of matters pertaining to the case and then submitted that the applicant was very familiar with the respondent's Code of Conduct and the general societal principles concerning racism anywhere. Thus, he submitted, the applicant would have known that her conduct was racist, derogatory and disrespectful towards Aboriginal people. 48 The Commission was not provided with case law by Mr Wilson to support the racism reason for dismissal by the respondent. That is, there was no case law to show that the alleged language of the applicant, constituted racist, derogatory and disrespectful language towards Ms Trindall, let alone at large the Aboriginal people. 49 Absent of case law from the respondent to support the dismissal on the ground of racism, the Commission turned its attention to the language alleged to have been said by the applicant and which was said by the respondent to be racist. 50 The alleged conversation has been reproduced elsewhere in this Decision and is divided into four paragraphs: (a) to (d) inclusive. Paragraphs (a) and (b) go to the alleged conversation between the Aboriginal customer (Veronica Murray) and the applicant. Ms Trindall was not part of this alleged conversation but an observer. Paragraph (c) and (d) concern the alleged interaction between the applicant and Jenny Trindall. 51 Ms Trindall never specified which word(s) she found offensive in this alleged conversation. It has to be inferred that she takes offence to the words, "white moona(y)", meaning white vagina, where "moonay" is the Aboriginal word for "vagina". 52 The Commission has difficulty in comprehending what is racist about this term (white moona(y)) given the circumstances of the alleged conversation. It is clearly the case that the applicant has not directed any racist, disrespectful or derogatory remark against Ms Trindall, according to Ms Trindall's version of the alleged conversation. 53 Ms Trindall's version records the applicant stating how Ms Veronica Murray might speak to the applicant: "It is a wonder she (Murray) didn't reply (to the applicant) by saying 'get fucked ya big white moona(y).'" Thus, the alleged offensive words, "white moona(y)" are being uttered by an Aboriginal person (Murray) to a non-Aboriginal person (the applicant). It is not the applicant who says that she, the applicant, uses the term "moonay". Accordingly, Ms Trindall's version boils down to an Aboriginal person (Murray) as the person who might use the Aboriginal term (moonay) and to which an Aboriginal person (Trindall) takes offence. Given that analysis of the alleged conversation, where is the racism by the applicant? 54 If the alleged conversation did take place, the Commission wonders why Ms Trindall filed a complaint, rather than speak to the applicant there and then. She could have responded along the line that maybe that is the way Ms Murray and the applicant speak to each other but please do not speak that way in front of her. 55 Apart from the express claim of racism (which was not made by Ms Trindall until she took to the witness stand), the respondent also raised the issue that the applicant's alleged "comments were fundamentally in serious breach of Council's Code of Conduct". (Ex 11, para 50 - Carole Medcalf) The memorandum of Ms Medcalf to the applicant, 26 March, 2010, cited breaches of 6.1 and 6.5 of the Code of Conduct. (Ex 5, Annex G) Clause 6.1 goes to "General Conduct" and has seven paragraphs of unacceptable conduct. The Commission was not advised as to which paragraph(s) were said to have been breached by the applicant. Clause 6.5 is one of two paragraphs under the heading of "Fairness and equity". 56 Mr Wilson, in final submissions, advised that the applicant had not been dismissed on the alleged statement by her to Veronica Murray ("There you go ya cunt"). The Commission questioned this submission (in disbelief) but Mr Wilson retorted that the respondent could only act upon the complaint lodged by Ms Trindall. (Tr 05/11/10 - p59, line 23 to p62, line 50) 57 That advice by Mr Wilson means that the alleged breach of the Code of Conduct is restricted to the alleged statement of the applicant to Ms Trindall ("We are like that. It is a wonder she didn't reply by saying - "get fucked ya big white moona'") Given the Commission's finding that racism has not been established by the respondent's case, then the basis for the dismissal and the alleged breach of the Code of Conduct has no merit. If the alleged statement ("We are like that. It is a wonder she didn't reply by saying - "get fucked …") was to be considered in isolation of the racism claim, then the alleged statement (that is, the "get fucked" comment) does not in of itself warrant dismissal. That is so, as the applicant was reporting in a matter of fact way as to how Ms Murray might talk to her. Further, the respondent cannot take this alleged comment ("get fucked") and combine it with the alleged comment ("ya cunt") and say that the applicant engages in offensive language given that the respondent has said it cannot act upon the "ya cunt" alleged statement as Ms Trindall did not make a complaint about it. 58 In consideration of this catalyst reason for dismissal, the Commission finds that the respondent has not shown how the applicant engaged in racism. More pointedly, the Commission fails to comprehend how the alleged statement of the applicant to Ms Trindall constitutes racism. 59 The alleged statement by the applicant to Ms Trindall, accordingly, can not be said to be a breach of the Code of Conduct given that the applicant made no racist remark against Ms Trindall. Absent of racism, the alleged statement of itself does not warrant a ground for dismissal. 60 Finally, the Commission makes one other observation. In doing so, the Commission will assume that the conversation, as alleged by Ms Trindall, took place. Given that assumption, then the applicant's denial of the conversation would be false. That false denial would have some understanding given the circumstances facing the applicant. She had been in the employ of the respondent since 1996. Then in 2009 (thirteen years later), she was given two written warnings in the space of three months. She knew (and possibly other persons - customers and staff) that one more complaint could mean dismissal. When the Trindall complaint was brought to her attention she must have thought that her employment world had imploded. And she already knew that the first warning was given despite her protests (quite correctly) that her accusers were all anonymous. Supporting Grounds for Dismissal 61 The respondent's letter of dismissal cites the Murray - Trindall incident as the cause for dismissal. The General Manager notes two prior warnings about the applicant's work performance, but does not say that these two prior warnings are relied upon for the dismissal. (Ex 5, Annex J) In proceedings before myself, the two prior warnings were relied upon to support the dismissal. First Warning 62 The applicant's first warning was issued as a first and final warning by letter dated 17 September, 2009. Following Union representation, it was re-classified as a first warning by letter dated 10 December, 2009. 63 The starting point for consideration of the applicant's claim that this first warning was procedurally and substantively flawed, is by analysis of the content of the first warning letter of 17 September, 2009 but which was given to the applicant on 23 September, 2009. (Ex 5, Annex A) 64 The first warning letter was authored by Lianne Tasker, Manager Community Services and Tourism. 65 The letter opens with the Paul Macdonald - applicant incident, for which the applicant apologised. 66 The letter then refers to a staff meeting of 30 April, attended by Lianne Tasker, during which meeting she raised feedback on a Customer Survey of the performance expectations of the Collarenebri Agency. 67 In respect of the applicant, Ms Tasker said there was a "statistically very significant level of adverse comment, about the role you (the applicant) played at the Agency". 68 Since that April time, Ms Tasker said (as of August, 2009), that the applicant's performance levels had been raised by town residents - they were highly critical. Ms Tasker said that that situation had been compounded by telephone and personal approaches to herself by community members and the applicant's supervisor. 69 The letter then says that some "complainants have expressed personal fear of the repercussions that would result, should their identity be disclosed to you (the applicant)" 70 Ms Tasker then sets out eight (8) dot points of complaints against the applicant. 71 Before continuing on with the content of the letter, the Commission points out that these eight dot points are just that: mere assertions. That is, no evidence is provided in the letter to support these mere assertions. The need for evidence is abundantly clear given that Ms Tasker describes these complaints as being "serious misconduct". 72 Having listed these dot points, Ms Tasker states, "It is clear from the source and magnitude of these comments that you (the applicant) have not complied with the requirements set out in April. You have breached Council's Code of Conduct and not performed appropriately. This can only be considered as being serious misconduct". 73 As to the foregoing paragraph/quote, the Commission observes that a "magnitude of these comments" is but a mere assertion and does not constitute evidence. There was a time in history when a magnitude of people said the world was flat - that is, a magnitude of comments does not make for valid comments. 74 Having analysed the letter and noted the absence of evidence, the Commission will now turn to what evidence fell during the Hearing to support the giving of a first warning. Given that Ms Tasker has stated that the applicant's performance at the Collarenebri Agency constituted "serious misconduct", then there needs to be an appropriate level of evidence to support the assertions contained in her letter. Apart from the matters contained in the letter, there were two complaints raised at the 23 September, 2009 meeting held by Ms Tasker concerning the applicant's customer service dealings with Allira McGregor and Roger Adams. These two complaints are the only complaints against the applicant where people have put their name to the complaint. 75 The Commission will now consider in detail, matters raised in the first warning letter, given the applicant's claim that this first warning was procedurally and substantively flawed. 76 The opening part of the first warning letter is the Paul Macdonald - applicant incident that occurred in February, 2009. Mr Macdonald made a complaint about a banking transaction. The applicant was asked to apologise and according to the respondent's case only did so, belatedly, and after repeated requests from the respondent to do so. 77 The applicant's case was that she had apologised to Paul Macdonald and further requests by the respondent (including a lawful direction to do so), were therefore redundant. Despite this, the applicant, on her case, apologised to Mr Macdonald for the banking transaction and not belatedly but upfront. 78 The weight of the evidence is against the applicant on this matter as to her claim that she apologised up front to Mr Macdonald and not belatedly. 79 Because the applicant apologised, the Commission is not clear as to why this issue constitutes one of the matters for a warning given that, as well, the warning was issued several months after the apology. 80 The letter sets out eight (8) dot points of anonymous complaints. These are single sentence assertions only. No evidence is provided in the letter to support any of the assertions. 81 The first dot point reads: "Privacy abused, letters tampered with". In order for this assertion to constitute "serious misconduct", then the applicant has engaged in something serious on more than one occasion as to letters handled by her in her job. Ms Tasker did not explain the meaning of "tampered". For this matter to be "serious misconduct", one assumes that "tampered" means 'opened and read the contents'. If that was so, then no evidence was set out in the first warning letter to that effect. 82 The witness statement of Ms Tasker has a file note attached for a staff and individual meeting of 30 April, 2009 held by Ts Tasker. (Ex 10, Annex A). The second file note for the same meeting of 30 April refers to "mail tampering allegations" and the applicant. The file note then reads, "..Carol (the applicant) advised that some mail arrives at the Agency damaged. Discussion around procedures for damaged mail took place (eg: using Australian Post sticky tape for repairs and logging the article as damaged). Carol advised that she follows these procedures usually". 83 The foregoing file note concerns damaged mail being repaired by the applicant in response to mail tampering allegations. The file note records nothing more than that. Her explanation was not challenged by Ms Tasker who is the person who gave a warning letter based on this issue (one of several anonymous complaints). 84 Ms Tasker's witness statement refers to complaints from anonymous customers about the applicant's customer service and these complaints number five. One of these complaints reads, "Tampering with mail". That complaint and the other four contained in her statement are mere assertions (without evidence). (Ex 10, para 27) 85 However, the next paragraph in Ms Tasker's witness statement refers to a meeting on 19 August, 2009 between herself and Ms Chown, the Collarenebri Agency supervisor. That paragraph makes no specific reference to mail tampering but does record Ms Tasker as raising with Ms Chown a matter that might be referring to mail tampering. Thus she asserts that a customer (anonymous) "believes that Carol (the applicant) has made comments about the customer that could have been made as a result of assessing private information. This involved commenting on the source of mail with words to the effect 'they are good solicitors, my son uses them for workers compensation too'" (Ex 10, para 28) 86 The witness statement of Ms Tasker does not record that she raised this anonymous allegation (as said above) with the applicant at the meeting of 23 September, 2009 and for which this mail tampering allegation formed a reason for the first warning, based on serious misconduct. 87 If the above anonymous complaint (as recorded above) was not put to the applicant but then a finding made as it was by Ms Tasker that it constituted mail tampering/privacy invasion, then that would constitute a denial of natural justice. (There was no evidence that Ms Tasker kept minutes of the first warning meeting and disseminated the same to the applicant for feedback if the applicant thought the minutes were not a true and accurate record). Even if the anonymous complaint (as recorded above) was put to the applicant, how is it proof of mail tampering? Where is the evidence from Ms Tasker (who says it was mail tampering and warranted a serious misconduct warning) that the applicant did engage in mail tampering? 88 The applicant relevantly said of this first warning meeting that she was provided a list of written complaints, all anonymous, and this complaint merely read "mail open". (Ex 5, para 22(g)) 89 The Commission does not understand how a finding of serious misconduct, going to mail tampering, can be found by Ms Tasker based on the material provided during the Hearing. 90 The overall problem the Commission has with these assertions (nine dot points) is that they are based on anonymous accusations. Ms Tasker says that she has spoken to these accusers and has "believed them". (Tr 04/11/10 - p73) Be that as it may, the applicant is entitled to know who has made these accusations in order to prepare a proper defence, given that Ms Tasker decided to act upon these anonymous accusers - to the detriment of the applicant. Even more so, the applicant should have been provided with the names of her accusers, given that the first warning letter casts the applicant in a negative light as follows, "In some cases the complaints have expressed personal fear of the repercussions that would result, should their identity be disclosed to you (the applicant)". (Ex 5, Annex A) 91 Further, as to an overall problem, the Commission has already observed about this warning letter, that a "magnitude of comments" does not of itself make for valid complaints. 92 Ms Tasker did, however, put two complaints to the applicant where the names of the accusers were given - Allira McGregor and Roger Adams. (Ex 10, para 31) On a reading of Ms Tasker's witness statement, it appears that these two persons have identified themselves as the accusers but see commentary below in this Decision on this point. These complaints were put to the applicant on 23 September, 2009. 93 As to the McGregor complaint, it was asserted that the applicant had said, "You're not supposed to be in here because you are contagious". (Ex 10, para 31) 94 The applicant's reply witness statement says that Ms Tasker had put the above to her but cast it as a "derogatory" statement by the applicant to McGregor. The applicant denied making a derogatory statement. She did not deny that she had had a "chat" with McGregor and said "…not still contagious are you?" (Ex 6, para 12) More importantly, the applicant's reply statement then states as to the alleged complaint by McGregor, that Ms McGregor came into the Collarenebri Agency on 10 December, 2009 and told the applicant that she (McGregor) had not made a complaint to Council, but "…some staff member reported you, not me. If I was you I would be watching your back". The applicant's reply statement then records the applicant deposing, "As she (McGregor) said this, she nodded her head towards Ms Chown". There was no evidence brought by the respondent to respond to this filed statement/defence of the applicant. That evidence ideally would have been in the person of Ms McGregor. 95 The other named complainant is Roger Adams. Ms Tasker's witness statement records her as saying to the applicant, "…(the applicant was) commenting on the amount of money in a particular customer's account, Roger Adams. The applicant is reported to have responded, something like, "…don't spend it all at once". (Ex 10, para 31) 96 The applicant's reply witness statement does not respond to this matter. 97 During re-examination of Ms Tasker, the latter advised that it was not Mr Adams who made the complaint, "it was somebody who overheard the conversation". (Tr 04/11/10 - p86, line 21 to 39) Given this last minute elaboration in the witness box by Ms Tasker that Mr Adams had not made a complaint, then the complaint is anonymous. 98 In summary of this first warning letter, the Commission is of the view that the respondent has not presented the evidence at the Hearing to substantiate the reason(s) for issuing this warning letter given the respondent's claim of "serious misconduct" against the applicant. Second Warning 99 The second warning given to the applicant arose out of a complaint made by a fellow employee, Ms Jody Simmonds, on or about 8 November, 2009. The complaint was investigated under the supervision of Ms Carole Medcalf, Director Corporate and Community Services. In that regard, the investigation was carried out by Ms Tasker and Ms Samanthi Bandula (Human Resources Manager). 100 The applicant deposed that the first she knew of the complaint was when she read (on 23 November, 2009) a print out of an email addressed to her. The applicant said she had not opened the email or printed it out. She believed her supervisor, Ms Chown, had done so. (Ex 5, para 26) 101 The applicant received a telephone call from Ms Tasker on 24 November to advise of the complaint and the need for a meeting. The meeting (Tasker - Bandula - the applicant) took place on 25 November. 102 The applicant responded in writing on 1 December, 2009, denying the complaint of Ms Simmonds. (Ex 5, Annex D) 103 The applicant and her Union delegate (Andrew Bostock) met with Ms Medcalf and Mr Barry Frew, in relation to the Simmond's complaint. 104 On 11 December, 2009, Ms Medcalf issued the second and final written warning. (Ex. 5, Annex F) 105 The second and final written warning identifies two complaints only: no. 2 and no. 4.2 amongst the list of Simmond's complaints. The letter of Ms Medcalf goes on to say that "it is clear that a number of the allegations are substantiated". The list of complaints by Ms Simmonds tallied fourteen (14). (Ex 13, Annex H) In the witness box, Ms Medcalf confirmed that she only relied upon the two complaints identified in her second and final written warning - that is, no. 2 and no. 4.2. 106 The no. 2 complaint is that the applicant has made rude noises in the past two weeks when customers have walked into the Post Office. 107 In respect to the "customers", only one customer is identified - Laura Simpson. But instead of a rude noise, the Simmond's complaint is that the applicant made a "rude comment". The content of the "rude comment" is not stated by Simmonds. 108 The applicant had responded in writing to the list of fourteen complaints. As to this complaint, she denied making rude noises. She then refers to Laura Simpson's letter which is attached to the applicant's response letter. She says the Laura Simpson letter is about the Simmond's allegation but it is not attached to the applicant's filed witness statement. Accordingly, that Laura Simpson document is not able to be considered by the Commission. 109 The second complaint was no. 4.2 which involves the applicant allegedly saying to Simmonds (her supervisor), "you (Simmonds) can serve Dot (a customer) you need the practice". (Ex 13, Annex H) 110 The applicant's response of 1 December, 2009 refers to attached documents, none of which are attached to her witness statement. Accordingly, the Commission is not able to consider this matter further. 111 In summary of the available material as to this second and final written warning, the Commission is not in a position to ascertain the applicant's claim that she was denied procedural and/or substantive fairness. CONCLUSION 112 The Commission has before it, an unfair dismissal application by Mrs Carolyn Smith. She claims that she was unfairly dismissed by the respondent arising out of the Murray - Trindall - applicant incident. She also claims that she was denied procedural and substantive fairness in respect of the two written warnings issued to her in September and December, 2009. 113 The respondent accepted it carried the onus to prove that the facts existed to support the applicant's dismissal. 114 The Commission first considered the evidence pertaining to the Murray - Trindall - applicant incident. In final submissions, the respondent ran the case that the applicant's dismissal was based on the ground of racism - even though that term does not appear in the dismissal letter. 115 The respondent's case was based on Ms Trindall's complaint about an alleged statement made by the applicant to Ms Trindall following an alleged conversation between Ms Murray and the applicant. The Commission noted that Ms Trindall's first use of a claim that the applicant had made a racial remark, was when she gave evidence in the witness box. 116 The Commission found that the respondent had not established that the applicant had made a racist comment to Ms Trindall, assuming that the conversation, as alleged by Ms Trindall, took place. More than that finding, the Commission analysed the alleged racist comment and found that the applicant was only reporting how Ms Murray might speak to the applicant. Therefore any racist remark that might be used by Ms Murray (an Aboriginal woman) is a racist remark to which Ms Trindall took offence. 117 Given the Commission's analysis of the evidence pertaining to this issue, the Commission finds that the catalyst for the applicant's dismissal (the alleged racism) was not only not made out but there was no racist remark by the applicant, even if the conversation alleged by Ms Trindall took place. 118 The respondent relied upon the two prior September and December, 2009 written warnings, to support the applicant's dismissal. The applicant's case was that these two written warnings were procedurally and substantively unfair. 119 As to the first warning, the Commission analysed in detail the contents of the first written warning and made a number of comments against the contents. In particular, the Commission highlighted the mere assertions (no evidence in support) and the anonymous complainants. Despite that the Commission considered what evidence was put during the Hearing about these mere assertions and judged that evidence against the claim in the written warning letter that the applicant had engaged in "serious misconduct" in respect of those assertions. The evidence was found wanting, to say the least. 120 The Commission considered two complaints, in respect of the issuing of the first warning letter meeting, at which two named complainants were put forward (McGregor and Adams). The applicant challenged the McGregor complaint in her filed witness statement in reply, but the respondent did not bring forward Ms McGregor as a witness to counter the applicant's challenge. The Adams' complaint turned out to be a complaint, not made by Adams (as appeared to be previously stated by the respondent), but anonymously made. 121 The overall view the Commission has of the respondent's case to justify the giving of the first written warning, is that there was no justification for doing so. As such, the applicant's claim that the circumstances surrounding the giving of a first written warning to her, was procedurally and substantively unfair is well founded. 122 As to the second warning, the applicant has not produced evidence to allow the Commission to consider her claim that this second written warning was procedurally and substantively flawed. 123 Given all of the above findings, and having considered all of the evidence, the Commission concludes that the dismissal of the Applicant was unfair. Specifically, the Commission finds that the dismissal of the Applicant was harsh: Outboard World Trade Pty Ltd t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 of 183. 124 The dismissal was harsh because the catalyst reason for the applicant's dismissal was that she had made a racist remark against Ms Trindall, but the Commission has found she did not do so. The dismissal was also harsh, because the alleged racist remark, as being the reason for dismissal, was not put to the applicant for comment/defence. This was a denial of natural justice. 125 The applicant's primary remedy is reinstatement to her former position. The respondent is opposed to reinstatement to her former position at Collarenebri. 126 Ms Tasker's witness statement addresses this issue of opposition to reinstatement. She deposes that the remaining staff members at the (Collarenebri) Agency would no longer be able to work with the applicant. Further, she has received a number of internal complaints from the staff concerning their inability to work with the applicant and their lack of trust or respect for the applicant. (Ex 10, para 36) 127 The above criticism of the applicant is, once again, anonymous, and can not be given any weight. 128 One of these staff (Jenny Trindall) who worked with the applicant, gave evidence in the proceedings - at the request of the Commission as she was not being called by the respondent. Not one question was put to Ms Trindall, the applicant's accuser, as to whether she would have difficulty in working with the applicant if the Commission was to order the applicant's reinstatement. The Commission also notes that Ms Trindall gave evidence that she works at the Collarenebri Agency up to three or four times a month. (Tr 04/11/10 p 49, line 42 to 47) 129 Having considered all of the evidence, the Commission will issue an order for reinstatement, without loss of continuity of employment, pursuant to sections 89(1) and (4) respectively of the Act. 130 The Commission will also issue an order that the applicant be paid for the earnings she would have received between the date of dismissal and this order - but for that dismissal. That order is made pursuant to s89(3) of the Act. O R D E R S The Commission hereby makes the following Orders: (a) The applicant (Carolyn Julie Smith) is to be reinstated by the respondent (Walgett Shire Council) into her former position (Agency Clerk at the Collarenebri Agency). (b) The employment of the applicant is to be taken not to have been broken by her dismissal. (c) The applicant is to be paid for lost remuneration, calculated at $860.74 gross per week, for the period of time from the expiry of the period of time representing notice of termination period to the date of reinstatement: s89(3) of the Act. (d) The orders of the Commission shall take effect within twenty-eight days from the date of this Decision. A Macdonald 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.