Industrial Relations Commission of New South Wales CITATION: Anna Nikolis and South Eastern Sydney & Illawarra Area Health Service, a Division of NSW Health Service [2009] NSWIRComm 1091 APPLICANT PARTIES: Anna Nikolis RESPONDENT South Eastern Sydney and Illawarra Area Health Service FILE NUMBER(S): IRC 2385 of 2008 CORAM: Bishop C CATCHWORDS: Unfair dismissal - allegations of secondary employment without approval - breach of code of conduct - evasion and untruthfulness alleged - applicant lodged grievance with employer alleging bullying and harassment - claimed secondary employment known and approved by manager - claimed allegation raised in response to grievance - meetings held - letters sent to gain information - two separate periods of absence impacted on processes followed - information from secondary employer and responses from applicant relied on in decision to terminate - applicant not seeking reinstatement due to medical condition - in receipt of workers compensation payments - sought re-employment or monetary compensation. HELD - on balance of probabilities misconduct took place - applicant evasive and not responsive to specific allegations - some issues re procedure - overall not procedurally unfair - termination not harsh, unjust or unreasonable - application dismissed. LEGISLATION CITED: Industrial Relations Act 1996 Workplace Injury Management and Workers Compensation Act 1998 Bankstown City Council v Paris (1999) 93 IR 209 Biviano & others and Sydney South West Area Health Service [2006] NSWIRComm 1176 Briginshaw v Briginshaw (1938) 60 CLR 336 Budlong v NCR Australia Limited [2003] NSWIRComm 288 Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410 Carlton and United beverages Limited and Philip Brunt [ 2006] NSWIRComm 98 Ferns and Department of Corrective Services [2005] NSWIRComm 9 New South Wales Fire Brigade Employees (on behalf of Natoli) v New South Wales Fire Brigades [2005] NSWIRComm 1170 New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Azzopardi) and Sutherland Shire Council [2008] NSWIRComm 1080 CASES CITED: New South Wales Nurses' Association (on behalf of Colin Prior) v South Eastern Sydney & Illawarra Area Health Service [ 2002] NSWIRComm 35 North v Television Corporation Ltd (1976) 11 ALR 599 NUW (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 Outboard World Pty Ltd v Muir (1993) 51 IR 167 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White No. 3 (1990) 35 IR 70 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108 Robert Lawrence and Attorney General's Department [2004] NSWIRComm 59 Sams v Contact Point International Pty Ltd [ 2001] NSWIRComm 18 Sharma and Sydney South West Area Health Service [ 2006] NSWIRComm 1157 Simmons and Rockdale City Council [ 2006] NSWIRComm 1010 Transport Workers' Union of New South Wales (on behalf of Paul Robert Jasper) and Sutherland Shire Council [ 2004] NSWIRComm 26 Western Suburbs District Ambulance v Tipping (1957) AR 273 HEARING DATES: 16, 17 July and 4 August 2009 DATE OF JUDGMENT: 27 November 2009 APPLICANT Ms S Ryan Solicitor Turner Freeman Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M Sullivan Solicitor Lander & Rogers Lawyers DECISION: - 85 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BISHOP C 27 November 2009 Matter No IRC 2385 of 2008 Anna Nikolis and South Eastern Sydney and Illawarra Area Health Service, a Division of NSW Health Service Application by Anna Nikolis re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2009] NSWIRComm1091 1 This is an application by Anna Nikolis against South Eastern Sydney and Illawarra Area Health Service, a Division of NSW Health Service (SESIAHS) for a remedy pursuant to s.84 of the Industrial Relations Act,1996. On the 15 December 2008, SESIAHS dismissed Ms Nikolis from her position of Laboratory Technician at St George Hospital. She sought reinstatement or alternatively monetary compensation in lieu thereof. 2 The matter was listed for conciliation and directions before Commissioner McKenna on the 12 January 2009, at which time conciliation took place. A number of subsequent dates were vacated pending Workers Compensation proceedings. A further conference took place on the 27 March 2009. The matter was then set down for mention on the 20 April 2009. As no settlement could be reached, directions as to the filing and exchange of witness statements were issued pursuant to Practice Direction 17. The file was returned to the Registry pending allocation of a hearing date. 3 The matter was subsequently listed for hearing before the Commission as currently constituted on the 16 and 17 July as well as the 4 August 2009 for submissions. 4 Ms Ryan, Solicitor, appeared on behalf of Ms Nikolis and called the following witnesses: Anna Nikolis - applicant (Exhibits 2 and 5) Bernard Wendelin - Medical Scientist (Exhibit 8) A witness statement was also tendered on behalf of David Holden (Exhibit 7), who was not required to give evidence. 5 Mr Sullivan, Solicitor, appeared on behalf of SESIAHS and called the following witnesses: Susan Smith - Senior Medical Scientist, St George Hospital, (Exhibit 9), Peter Loizou - Laboratory Manager, St George Hospital, (Exhibit 10), Sudha Pillai - Laboratory Manager, St George Hospital, (Exhibit 11), Maria Buric - Senior Human Resources Consultant, St George Hospital, (Exhibit 16). 6 It should also be noted that a s.90 Undertaking was filed on 15 July 2009 and subsequently signed by the applicant, 7 Background and Chronology - based on the evidence filed and the transcript of proceedings and is, of necessity, set out in some particularity and detail (especially in relation to relevant documention) for subsequent reference. 8 Ms Nikolis' previous work history over a 16 year period had involved employment at three different hospitals within NSW Health as a Technical Officer. Her most recent employment had been on a full time basis for some 14 years at Bankstown Hospital. She has extensive experience in Laboratory and Blood Bank work and holds relevant Diploma qualifications. 9 During various periods of this earlier employment she also was on-call performing interpreting work on a part-time basis for the Sydney South West Area Health Service. 10 She also commenced employment with Diagnostic Services Australia (DSA), a private pathology laboratory located at Bankstown, in June 2005 whilst she was on unpaid maternity leave following the birth of her third child. As at the date of her application for the position at St George Hospital she was working part-time at DSA. 11 In May 2006 she applied for a full time position of Technical Officer at St George Hospital indicating in her written application that as she had recently re-located to Monterey, near Kogarah, she wished to transfer to a Hospital closer to her home. She also attached a relevant and extensive CV (Exhibit 11-B). 12 Her CV disclosed that her employment at both Bankstown Hospital and DSA was "current". She also listed as one of her referees Mr Bernie Wendelin who was the Laboratory Manager at DSA. 13 She was interviewed for the position, which was located in the Blood Bank at St George Hospital, on the 26 May 2006. The Interview Panel consisted of Mr Pillai, Mr Loizou, Ms Smith and a Ms Toula Malanous. Ms Nikolis was the only applicant interviewed for the position. 14 Ms Nikolis maintained that during the interview she was asked by Mr Pillai if she intended to keep her job at DSA, and on advising that she did, and querying if this was a problem, was told by him that it wasn't, as long as it was outside normal hours. 15 Mr Pillai denied that any such conversation about keeping the job at DSA took place and there was no recollection of such conversation by either Mr Loizou (who was out of the room for a short period) or Ms Smith. This will be further dealt with in evidence below. 16 On 30 May 2006, Mr Pillai conducted a reference check on Ms Nikolis and had an approximately 10 minute phone conversation with Mr Wendelin and completed an Area Health Service "Reference Check Form" (Exhibit 11 - D) . 17 Ms Nikolis was successful in obtaining the position which was confirmed in a standard 2 page Letter of Offer (with various attachments detailed including an acceptance form) dated 31 May 2006 from Mr Majewski, Senior Human Resources Consultant SEALS (Exhibit 11- E). The letter indicated inter alia, as follows: "In accepting this offer, you agreed to abide by the Policies, By-Laws and Rules of South Eastern Sydney and Illawarra Area Health Service Division, as amended from time to time. It is a requirement of the Code of Conduct for employees who wish to engage in paid employment and/or other business activities outside their official duties with South Eastern Sydney and Illawarra Area Health Service Division, seek the approval of the Chief Executive, via the Executive Director/Director of the facility the employee is based at......." 18 Ms Nikolis subsequently accepted the offer of employment. The acceptance form is signed by her and dated 5 June 2006 (Exhibit 11 - E) and includes the following under the heading PLEASE SIGN AND RETURN THIS COPY: "I accept this offer of employment, and agree to abide by the Policies, By-Laws, Rules and the Code of Conduct of South Eastern Sydney and Illawarra Area Health Service Division, NSW Health Service. 19 Ms Nikolis concluded her employment at Bankstown Hospital on 16 June 2006 and commenced in the Technical Officer position at St George Hospital on 19 June 2006, on a three month probationary basis. Her period of service in NSW Health was regarded as continuous and her entitlements were transferred. 20 Ms Nikolis's terms and conditions of employment were covered by the Health Employees Conditions of Employment (State) Award. 21 During her employment at St George Hospital Ms Nikolis kept an Collins A4 Page-a-Day diary at work. She would write in it at lunchtime and if something happened, add to it after work (Diary 2006 - Exhibit 3 and Diary 2007 - Exhibit 4). The first diary entry for 2006 is on Monday 19 June when she commenced, with the last entry for 2006 made on Friday 15 December. The first entry for 2007 (apart from a continuous set of notes about individual staff members and other issues running from the pages of the 1st to the 7th January) is on Tuesday 19 June, on her return to work. The last entry for 2007 is on Monday 24 September. 22 Ms Nikolis maintained that on 19 June 2006, during the induction process, she had a conversation with Mr Pillai about her employment at DSA during which she again queried whether it was a problem and was told it wasn't and to say hello to them (Bernie and Dr Jana). However Mr Pillai denied that this particular exchange took place. This will be dealt with further below. 23 Ms Nikolis made a diary entry on 19 June 2006 concerning this conversation with Mr Pillai (Exhibit 2 and Exhibit 3). 24 On the 6 September 2006, shortly before the probationary period was due to end, Mr Pillai and Mr Loizou, together with an independent observer, met with Ms Nikolis to discuss concerns Mr Pillai had as to her punctuality and attendance. A formal record of interview was kept and signed off by all present including Ms Nikolis (Exhibit 11 - F). The meeting was a fact finding meeting only and there was no suggestion that it would have had any disciplinary outcome. 25 Mr Pillai had also attempted to have the probationary period extended due to his concerns as to needing more time to assess Ms Nikolis' suitability for the position but was advised that this was not possible. 26 A Performance Management Probationary Period Form was completed at the conclusion of the probationary period (Exhibit 11 - G). Comments as to her performance were made by Mr Loizou, with Ms Nikolis stating under the heading, "Reviewee", the following: "love working here, learned & improved skills, great department, great Boss. Grateful for everything." Ms Nikolis indicated that her reference to "great Boss" was in relation to Mr Loizou her direct supervisor. 27 By letter dated 20 September 2006, from Kelly Crawford, Human Resources Officer SEALS (based at Randwick), Ms Nikolis was advised that she had successfully completed her probationary employment and her permanent full time status was confirmed (Exhibit 11 - H) 28 On 8 December 2006, Ms Nikolis maintained that she lodged a "Formal Complaint/Grievance" being a 10 page complaint containing allegations of bullying and harassment against her by Mr Pillai (unsigned),(Exhibit 1 - AN11) and sent it by Express Post to Ms Buric. Her diary entry for Friday 8 December 2006 noted as follows: "SENT THE GRIVIENCE/COMPLAINT (sic) TO Roger Wilson and HR" 29 Due to concerns about her attendance record since the counselling meeting in September, on 11 December 2006, Mr Pillai provided a letter to Ms Nikolis (Exhibit 2 - AN13) advising her of the requirement to attend a formal meeting to discuss "excessive sick leave/carer's leave" which was to take place on the 14 December 2006. The letter also advised that Mr Pillai had asked Maria Buric, Senior Human Resources Consultant to attend the meeting. Ms Nikolis was advised to have an independent support person accompany her. She subsequently advised that Mr Tom Dolan from the Health Services Union (HSU) was to be present as her support person. 30 On the 12 December 2006, Ms Nikolis obtained a medical certificate from her treating GP Dr Marinkovich (Exhibit 16 - D) which indicated that he had been treating her for 2 months for "tension headaches, reactive anxiety and depression" with all medical investigations proving negative. He went on to say: She has said that she is under stress at work caused by bullying and harassment by some members of the management. I believe her condition will not improve very much unless the alleged conditions at work improve. ............................................. 31 Ms Nikolis also made a diary entry for the 12 December 2006 (Exhibit 3) as follows: Called DR MARINKOVIC (sic) to provide me with certificate for meeting 14/12 that I have been anxiety/depressed for PAST 2 months. Numerous investigation have been done all negative Doctor puts it all down to stress at work and bullying by Boss. I have to agree that his (sic) right. DR MARINKOVIC (sic) suggest I seek further treatment from professional counseller (sic) as my condition not improving. He writes he believes condition due to stress at work (Bullying) and will not improve in health unless conditions at work improved. 32 Ms Buric and Mr Pillai indicated in evidence that the meeting of 14 December was for counselling purposes rather than for disciplinary reasons. Ms Buric kept notes of the meeting which were later typed up as a formal record of the meeting (Exhibit 16 - B). The formal record of interview annexed to Ms Buric's witness statement was unsigned by Ms Nikolis and there was no signed copy in evidence. Ms Nikolis maintained she did not sign the minutes because she did not agree with them but maintained she would have made corrections. She could not say why she did not have a copy of the minutes. 33 During the meeting, Ms Nikolis was offered the opportunity of working part time, on a temporary basis, to assist with her current family commitments. Ms Nikolis declined this offer as she needed to work full time for financial reasons. 34 There were no issues raised either during this meeting or during her employment generally, or indeed, at any time during proceedings, that the sick leave/carers' leave used by Ms Nikolis during 2006 was not genuine or was not accompanied by appropriate medical certificates. 35 Towards the end of the meeting Ms Buric raised with Ms Nikolis that they had been told that she was working in a second job, out of hours, (this was based on information Mr Pillai had received). Ms Buric maintained that Ms Nikolis denied that she was working a second job and there was an issue as to the availability of weekend overtime work that was then discussed. Ms Buric said she referred to the Code of Conduct Policy and a requirement to complete a form. 36 Ms Nikolis maintained that when this issue was raised in the meeting, she acknowledged that she had a second job and was planning to leave it if she got overtime. This will be dealt with further in evidence below. 37 Ms Buric maintained that after the meeting she went to her office, obtained a copy of the form, and personally took it and handed it to Ms Nikolis in the Blood Bank Laboratory. Ms Nikolis denied that she was given any such form at that time. The minutes taken by Ms Buric relevantly noted: Ms Buric advised that it has recently been brought to the Area's attention that she is currently employed in a secondary job. Ms Nikolis advised that she is currently not employed elsewhere. However, at interview Ms Nikolis was told that she would be rostered to work on Saturdays. It was acknowledged that the roster was made up till December 2006 and that in 2007 she will be rostered on. In the event that she was rostered on regularly she may consider working elsewhere casually on the weekends. The notes then go on to deal with the issue of the Code of Conduct policy and its requirements and that she would be given a form. 38 Ms Nikolis made a diary entry about what was said during the meeting (Exhibit 2 - AN14) (to be dealt with below). 39 Ms Nikolis maintained that before this meeting began, and in the presence of Mr Dolan, she queried with Ms Buric whether her complaint against Mr Pillai would also be discussed and was told that that would be dealt with separately. Ms Buric denied that this conversation took place and indicated in her evidence that the complaint was not received in her Department (Human Resources, Central Network) until 21 December 2006. She maintained however, that she did have a conversation with Mr Dolan after the meeting but away from Ms Nikolis, in which he advised that she was lodging a 12 page complaint of bullying and harassment against Mr Pillai. Ms Buric advised Mr Pillai that Ms Nikolis intended to make a complaint and he was aware that a complaint was subsequently lodged but maintained he did not see the complaint until he saw Ms Nikolis' witness statement. 40 The copy of the signed "Formal Complaint" that Ms Buric said she did receive, which was also dated 8 December 2006, was of 12 pages in length and also attached a letter from Dr Marinkovich (Ms Nikolis' General Practitioner) dated 12 December 2006 (Exhibit 16 - D). The last page noted that the complaint was copied to Mr Roger Wilson, the Chief Executive Officer of SEALS. An "Illawarra Area Health Service" stamp was on the top right-hand side of the front page and contained file numbers and the date of 19 December 2006. Ms Buric received the complaint as a scanned copy in an email to her from Mr Martin Majewski who was located at Randwick in the SESIAHS Human Resources Department. 41 Ms Nikolis said she sent both versions of the complaint (the 10 and the 12 page) to Ms Buric by Express Post and kept the yellow receipt from the envelopes for both postings. These receipts were not in evidence and their existence only came to light during cross examination of Ms Nikolis. 42 On 21 December 2006, Ms Buric telephoned Ms Nikolis acknowledging receipt of her complaint and advising her that she was going on annual leave the next day and returning on 8 January 2007. Receipt of the complaint was also confirmed in a formal letter to Ms Nikolis dated 21 December 2006 (Exhibit 16 - E). 43 Ms Buric deposed that the conduct of an initial interview with a complainant was in accordance with the Area's Policy Directive "Grievance Resolution in the Workplace" which stipulated that when a grievance was received, the first step was to undertake an initial assessment and that for this purpose it was expected that an initial informal interview was to be held with a complainant. (Exhibit 16 - F). 44 Ms Buric maintained that when she returned to work on the 8 January 2007, she reviewed Ms Nikolis' complaint and subsequently discussed with her, by telephone, on two occasions (9 and 11 January), the scheduling of a meeting to discuss the complaint. Ms Nikolis advised her that she wanted Mr Dolan present and that he was away on leave. Confirmation of those telephone calls was made by Ms Buric in a letter to Ms Nikolis dated 11 January 2007 (Exhibit 16 - G) which also noted that Ms Nikolis requested that the investigation be put on hold until early February to enable her to have consultation with Mr Dolan. 45 Ms Nikolis denied that either of those telephone conversations took place and said she did not receive and could not remember any such letter. 46 On 16 January 2007, Ms Nikolis was injured in a car accident on the way to work which necessitated admission and treatment in St George Hospital for some 4 days. She was subsequently unfit for work and went off on workers compensation. 47 Ms Buric telephoned Ms Nikolis on 8 March 2007 to discuss her complaint and the need to arrange an interview. Ms Buric maintained that Ms Nikolis said she didn't want to do anything about it until she returned to work and could talk to her Union. Ms Buric advised that she would put the complaint on hold until she heard from Ms Nikolis. Confirmation of this telephone call was made in a letter to Ms Nikolis dated 8 March 2007 (Exhibit 16 - H). Ms Nikolis agreed that this phone call took place. 48 Whilst provisional liability was accepted, Ms Nikolis' workers' compensation claim was subsequently declined by the insurer. She accessed accrued leave entitlements until her return to work on 16 June 2007, which was undertaken on a graduated return to work plan of initially two days, and later, three and a half days per week. This plan was managed by Ms Buric as were the requests for leave. 49 Following her return to work, various meetings concerning that return took place between Ms Buric and Ms Nikolis. 50 On or about 20 August 2007, Ms Buric telephoned Ms Nikolis to advise her of a fact finding meeting to be held with her to discuss her secondary employment. This was confirmed by letter of 23 August 2007 from Mr Pillai (Exhibit 16 - I). 51 The issue of Ms Nikolis's secondary employment had been raised with Ms Buric by Mr Pillai. Mr Pillai had been advised of this by Mr Loizou who, in turn, had been advised of this by another SEALS employee who also worked at DSA. 52 The meeting was held on 28 August 2007 and was conducted by Mr Pillai. Ms Buric was in attendance, as was Ms Nikolis' HSU representative, Ms Sewell. An extensive record of the meeting was kept by Ms Buric (Exhibit 16 - J). 53 Mr Pillai had prepared written headings for 3 questions to be put to Ms Nikolis (Exhibit 12) as follows: Meeting with Anna regarding outside employment 28.8.07 Purpose of this meeting is in relation to the letter I forwarded to you, that is to clarify outside employment. We have reason to believe that you have secondary employment at DSA. Is this correct? Are you telling me that you are not employed anywhere else under your current name or any other name? Then you have no objective (sic) clarifying this with DSA. 54 Ms Nikolis also made a diary entry concerning the meeting (Exhibit 2 - AN20). 55 During the meeting Ms Nikolis maintained that she was only "on the books" of DSA and not working there. At one stage she indicated that she needed to verify dates, but when reminded about what she had said at the December meeting, she said that if she said at the last meeting that she wasn't working elsewhere then that was the truth. She gave consent to Ms Buric to contact DSA to verify this information. 56 Ms Nikolis maintained that during the meeting she became stressed at the way it was being conducted by Mr Pillai. She was subsequently unable to finish work that day and went to see her Doctor. 57 After the meeting there was also some discussion between Ms Buric and Ms Nikolis about the status of her complaint against Mr Pillai. Ms Nikolis maintains that she was told by Ms Buric that her complaint had been "de-activated" and that she needed to "re-activate" it. This terminology is disputed by Ms Buric. Ms Nikolis wrote a letter to Ms Buric dated 29 August 2007 summarising her grievance (Exhibit 2 - AN21). Ms Buric denied that she had ever requested that Ms Nikolis "summarise" her complaint. This letter was subsequently hand delivered by Ms Nikolis together with a letter dated 17 September raising issues about the process followed but seeking to "reactivate" her grievance. The letters have a handwritten notation on them as to their hand delivery, with an Area Health Service date stamp of 19 September (Exhibits 16 - L & M). 58 During the meeting Ms Nikolis had also raised the issue of other employees working for DSA and no action being taken against them. Knowledge of this was denied by Mr Pillai. Ms Nikolis provided details and subsequently Ms McDougall, the Operations Manager, made enquiries into this allegation and forwarded details of what information she had obtained about that employment by email of 31 August, to Mr Majewski, the Senior Human Resources Consultant for SEALS, who in turn emailed a copy to Ms Buric (Exhibit 18). 59 In relaying that information Ms McDougall included information that had been provided concerning Ms Nikolis' employment as follows: ".... the person then informed me that Anna Nikolis did work there also and that Anna was not rostered to work set days but was employed to perform their chlamydia testing. The person asked to be kept out of this but was willing to supply any information. I informed you of this immediately. The person had finished their shift so I will need to speak to them as to how long they have been employed at DSA and how long they had seen Anna working there". 60 Ms McDougall also indicated that she had been at DSA in November 2005 as part of a NATA assessor team and had seen Ms Nikolis' name on their staff list as a Technical Officer however her name had not been on the staff list on an earlier visit made in February 2005. 61 In forwarding the email on to Ms Buric, Mr Majewski sent as follows: This is for your information. I have asked Anne-Marie not to disclose this information to Sudha and to keep the matter confidential. We may want to consider taking statements from witnesses to Anna's employment. 62 On 3 September 2007, Ms Buric contacted DSA by telephone, and was advised by a DSA employee that Ms Nikolis' last shift had been worked on 31 October 2006. File notes were made by Ms Buric of the two conversations she had with that person (Exhibit 16 - K & L). 63 On 4 September 2007, Ms Buric sent Ms Nikolis a letter (Exhibit 16 - K) attaching the minutes of the fact finding meeting, seeking confirmation of those minutes and requesting a formal response in writing to the following questions: 1. When was your last rostered shift at Diagnostic Services Australia? 2. Since we last met with you on 14 December 2006, have you physically worked anywhere outside of the Area Health Service in any capacity (eg employee, contractor) under your current name or any other name? 64 Ms Nikolis did not respond to either the request for verification of the minutes of the meeting or to the two questions. 65 Subsequent to the meeting Ms Nikolis consulted a Psychiatrist on 14 September and obtained a Workcover Certificate as to her unfitness for work. She ceased work at St George Hospital as from the 14 September 2007 on his recommendation, and commenced treatment. She did not return to work thereafter and remained off work up to her termination. She continued to receive psychiatric treatment and was on medication. 66 She maintained that her condition was due to the bullying and harassment of her by Mr Pillai. 67 Subsequent to the fact finding meeting in August 2007, Ms Buric was advised by Ms McDougall that she was aware that Ms Nikolis had worked at DSA on 14 September 2007. As a result of this information Ms Buric telephoned the owner of DSA, Dr Jana, on 24 September, in the presence of Mr Pillai and on a conference line. Dr Jana indicated that Ms Nikolis was currently working at DSA and undertook to make enquiries. He rang back and advised that she was working for DSA 2 evenings per week and would follow up as to why that information was withheld in the previous phone contact with DSA made by Ms Buric. File notes of those two conversations were made by Mr Pillai (Exhibit 16 - N). 68 Ms Nikolis maintained that on the 14 September, on her way to her appointment with her Psychiatrist, she stopped at DSA to tell them that she needed to be taken off the books. 69 On the 17 September 2007, Ms Nikolis telephoned Ms Buric and told her that she had seen a psychiatrist and was being treated for depression and anxiety, as she had a temporary adjustment disorder. She also had a workers' compensation medical certificate up to 14 October 2007. 70 On 5 October 2007, Ms Nikolis was interviewed by Ms Debra Wise in connection with her workers' compensation claim and a detailed and extensive 40 page statement was taken (Exhibit 2 - AN1). 71 Whilst the majority of the statement is concerned with incidents/issues directly relating to Ms Nikolis' allegations about Mr Pillai's bullying and harassment and its effect on her, there were some paragraphs which dealt with the issue of her secondary employment with DSA as follows: ........... 59. From approximately August 2005 until October 2006, I worked part-time with Diagnostic Services Australia. From February 2006 to October 2006, I worked casually one or two weekend days or week nights that was generally a Friday night. Occasionally I would work a week night other than Friday. These shifts were 3 to 4 hours. When I worked at night, I generally started at 6:00 to 6:30 pm and departed between 9:30 pm to 10:30 pm. ....... 61. My position at Diagnostic Service (sic) was only a temporary job for me while I was on maternity leave and I resigned in October 2006 as I also wanted to spend more time with my family. .......... 65. When I applied at South Eastern Laboratory Services, as one of my references, I listed Bernie Wendelin, manager, at Diagnostic Services Australia. Bernie advised me that Sudha Pillai [my manager] had contacted him for a reference. I also listed Diagnostic Services Australia as my place of part-time employment at the time I was applying for a position with South Eastern Laboratory Services. Sudha would later on accus (sic) me of not declaring the secondary employment, but I believed I did so. 66. During my first day at South Eastern Laboratory Services, Sudha asked me if I were still keeping the job at Diagnostic Services Australia. 67. I answered that I was still working a couple of nights and asked if that was a problem. Sudha said, "No, I don't care what you do in your own time." ..................... 209. At last I lodged a formal complaint dated 8 December 2006. .................... 211. I express posted this complaint to Maria Buric, Senior Human Resources Consultant, Professor Roger Wilson, Director of South Eastern Laboratory Services and Matthew Daly, Clinical Operations Director. Attached to this grievance was a supporting letter from Dr Marinkovich that I was stressed due to management and he doesn't see my condition improving unless these issues are addressed. 212. On 11 December 2006, Sudha handed me an envelope with a letter in it. He didn't say anything to me. That is how isolated I had become. 213. I then opened the letter requesting I attend a meeting on 14 December 2006 and also stated that Maris Buric would be in attendance. The letter also advised that I may bring a support person. I then contacted the (sic) Tom Dolan from the union. 214. Prior to the beginning of the meeting and in the presence of Tom Dolan I asked Maria Buric, "What about my formal complaint against Sudha". She said, "We aren't here to discuss that today. It will be addressed at a later date." ................ 220. During this meeting, Maria Buric said that it was brought to her attention recently that I had a second job. She also stated that the Area's code of conduct policy requires a form to be filled in if you want to engage in secondary employment to ensure there isn't any conflict of interest or that it wasn't impacting on my work. I advised her that I had other employment previously mainly on Friday nights and Saturdays; however, I was not aware of the form I needed to fill in because nobody told me. I also said that I wasn't continuing to work there so I didn't need to complete a form. ................... 236. On 28 August 2007 I attended another meeting with Sudha, Maria Buric and Kim Sewell from the union. My support person Tom Dolan was still on leave. 237. Sudha asked me if I was engaged in secondary employment. I asked him to clarify if that meant that I was still on the books or physically working because I was probably still on the books with the Interpreter Services and Diagnostic Services Australia. He said that if I were only on the books that I would still have to declare so. I said that I wasn't physically working anywhere now. 238. In a harsh tone he stated in my letter of employment that there is a section that deals with approval for outside employment. I said that in my letter of employment, there wasn't any such reference. Maria then said that the letter of employment makes a reference to the code of conduct which would have outlined the relevant section. I didn't know the code of conduct referred to secondary employment. .......................... 72 On the 9 October 2007, Mr Pillai was also interviewed by Ms Wise in relation to Ms Nikolis' claim and a statement taken (Exhibit 13). The issue of any secondary employment of Ms Nikolis was not referred to in any way in his statement. 73 On 18 October 2007, Ms Wise forwarded to Ms Buric a copy of an email exchange with Dr Janarthanan (Dr Jana) concerning Ms Nikolis' employment at DSA (Exhibit 16 - O) as follows: · Ms Wise's initial email to Dr Jana on 12 October: Dear Dr Jana, as per our discussion today, my name is Debra Wise with MJM Investigation and I act on behalf of Employers Mutual Ltd. Could you please supply records reflecting Anna Nikolis' employment, particularly the date she has worked since June 2006. Hopefully this will include the hours she worked but if not maybe I could just obtain verbally what her shifts consisted. She advised that she worked three to four hours per shift. Could you also advise of the status of the current employment? I would be interested if Anna has advised Accounting not to disclose her employment, but only if you feel comfortable in this regard · Dr Jana replied 17 October: Dear Debra, Anna has been working as a sub contractor since August 2006 till 7/10/07 Anna appears to have worked 4 hours per shift twice weekly. Anna has not worked since October 2007, the employment is suspended. I am not aware of any instruction from Anna to accounting section. · Ms Wise subsequently sought clarification, also on 17 October: Dear Dr Jana Just to clarify there not been (sic) any interruptions in her employment from August 2006 to 7 October 2007; in other words, did she continuously work 2 shifts per week throughout this period of time? Are you sure she didn't commence employment in August 2005 as she didn't commence with the current employer until June 2006 and listed you as a reference? Can you state whether the shifts generally occurred on the same days/nights of the week and which days/nights might these have generally been? Also can you state whether she worked on 14 September 2007? · Dr Jana responded the same day: Dear debra, I have given you all information that i could get hold of looking at whatever material I could lay my hands on. Neither my staff or I have very little time any more to dwell on this issue. 74 On 13 November 2007, Ms Buric wrote to Ms Nikolis about her complaint, referring to the previous contacts she had made with her, (letters of January and March), conversation at work, the discussion with her and Ms Sewell following the 28 August meeting and subsequent unsuccessful attempts to contact her by mobile, home telephone and email. The letter also advised that Ms Buric sought a meeting with Ms Nikolis and that contact should be made within 5 days if Ms Nikolis wished the matter to be progressed, otherwise it would be considered closed (Exhibit 16 - P). 75 Ms Nikolis denied that any such mobile, home telephone or email contact by Ms Buric occurred. She subsequently sent an email to Ms Buric on 3 December indicating that her psychiatrist advised having an agenda made available and an advocate (Exhibit 16 - Q). 76 Ms Buric maintained that she subsequently telephoned Ms Nikolis to explain that the meeting was to clarify details of the complaint and no advocate was necessary. The meeting did not in any event take place. 77 Ms Nikolis' workers' compensation claim was subsequently denied by the Insurer and she remained off work on leave without pay. 78 On 29 November 2007, Ms Bronwyn Culbert, Acting Manager Human Resources SEALS, wrote to Ms Nikolis concerning the meetings held to obtain clarification as to her secondary employment (14/12/2006 and 28/08/2007) and her denials of such employment and her lack of response to Ms Buric's letter of 4 September. The letter went on to say: At this meeting you also gave consent to the Senior HR Consultant contact Diagnostic Services Australia (DSA) to verify your employment. The Area Health Service has since obtained information from DSA confirming your employment with them from August 2006 until October 2007. It is also noted that this period of employment with DSA has coincided with your period of unfitness for duty with South Eastern Sydney and Illawarra Area Health Service. The Area Health Service considers this behaviour to be a serious breach of the Area Policy, specifically the SESIAHS Code of Conduct. 79 She was asked to respond in writing, within 7 days, with reasons why she did not disclose information regarding her secondary employment. She was also advised "... At that time the Area Health Service will review this matter including your response should you chose to make one...." (Exhibit 16 - R). 80 Ms Nikolis replied to Ms Culbert in correspondence dated 14 December 2007 (Exhibit 16 - S). Her response was of some 30 points and relevantly indicated (for the period up to the 14 December 2006 meeting) as follows: 1. I commenced working with DSA lab on 15 July 2005 while on maternity leave at Bankstown Hospital. I was night-time supervisor working between 18 and 32 hour per week. 2. As my 12 months maternity leave had finished, in February 2006 I returned to Bankstown Hospital working three days per week for a further 12 months. 3. I continued to work part-time for DSA. 4. Since I commenced working in 1990 and during my employment with Bankstown Hospital 1992 -- 2006, I always had a second part-time job. 5. In June 2006 while working at both Bankstown Hospital and DSA, I applied for position at St George Hospital as that workplace was closer to my home[ I have three young children]. 6. The people on the panel at my interview[ including Sudha Pillai] were aware that I had two [ Bankstown hospital and DSA part-time] jobs. 7. At no time during the interview was I advised that, if I did get the position I was applying for, I needed the hospital's written permission to continue with my part-time arrangement at DSA. 8. So -- while still on the DSA staff establishment, I commenced employment at St George on 19 June 2006. 9. In July 2006 my husband was offered some part-time work with DSA. My husband and I formed a partnership ABN under which we both operated and DSA paid us jointly into the same account. 10. I reduced my hours to three or four on one or two nights per week my shifts were usually Friday night 6 p.m. to 10 p.m. and Saturdays. 11. On my very first day at St George, I tried to clarify this secondary employment with Mr Pillai. 12. There was no mention about written permission or a code of conduct. 81 In relation to the meeting of 14 December 2006, Ms Nikolis wrote as follows: 17. Ms Buric said: "It was just recently brought to her attention that I have outside employment". This was unfair as: 17.1 No item not on an agenda should be dropped on an employee who was already in an anxious state regarding the reason for calling the meeting in the first place. 17.2 Mr Pillai had known since my first day at St George [19/6/2006] that I was still on the establishment of DSA - and now it was 14/12/06. 18. I informed Maria, that at my interview in June 2006 I was promised weekend work and overtime, yet the roster was made up until June 2007 and I still wasn't rostered on any weekend work, which left me without any opportunity for overtime. 19. Mr Pillai accepted this to be true. Maria then responded that if I'm not rostered in 2007 for overtime work, I may consider seeking outside employment over the weekends. 20. At this meeting, I was not given any Code of Conduct document. Shortly after the meeting Maria told me to look on the intranet for a form requesting approval to engage in outside employment should I consider taking up secondary employment. I searched the intranet, however the computer said that I could not get access to them so I requested a form from Maria which she gave to me. At that time I was not aware that it was mandatory form 21. After the meeting, I gave verbal notice to DSA to discontinue employment. Subsequently, they made me an offer to stay on as a lab consultant and occasionally look at some QC results[ done by junior staff] for their upcoming NATA review. As a consultant: 21.1 I had no written contract 21.2 I had no set or minimum hours or set days, nor was I required to fill in a time sheet 21.3 In return, an agreed set figure would be deposited into my account. 82 In relation to the meeting of 28 August 2007, Ms Nikolis wrote as follows: 25. Another meeting was scheduled on 28 August 2007. At this meeting I informed Ms Buric of the following: 25.1 I had previously informed Mr Pillai of my continued employment with DSA when I commenced at St George Hospital. At that time he advised he did not care what I did. Mr Pillai again denied this. 25.2 When asked about the Code of Conduct, I advised that I had not received the Code of Conduct. Mr Pillai again denied this. 25.3 I advised that I was aware of other employees who had second jobs and did not believe they ever sought written approval. Again Mr Pillai denied this .......... 27. I asked Mrs Buric to contact DSA directly. After the meeting, Mr Pillai handed me a copy of " Statement to Commitment" document, which had a short summary that referred to the code of conduct. I was to read that statement and return it signed. This was the first time I was shown a copy of this document - and that was 14 months after my starting date. 28. On 14 September 2007 [my day off] I went to DSA to tell them to remove my name off their books. I continued on to see a psychiatrist [ Dr Selwyn Smith] who certified me unfit for work. 29. I have been off work since 14 September 2007 - nor have I been working anywhere else. 83 Ms Nikolis concluded the letter by stating that she was never provided with a copy of the Code of Conduct advising of a procedure regarding secondary employment. She noted that she found it increasingly difficult to discuss any matters with management given Mr Pillai's harassment of her, which continued, despite management being made aware of the situation. 84 On 6 February 2008, Mr Pillai sent an email to Ms Buric (Exhibit 14) advising that Ms Nikolis had applied for 3 months' long service leave on half pay and querying what the situation was and what course of action was being taken, as they needed to fill her position permanently. He indicated that the position was currently advertised as a temporary position for 6 months but to get quality staff a permanent position had to be advertised. 85 On 17 June 2008, Ms Buric forwarded a confidential email to Ms Sassu the Human Resources Manager, Central Network, concerning Ms Nikolis and seeking advice as to appropriate action (Exhibit 19) and attaching various documentation ( including the letters of Ms Colbert and Ms Nikolis referred to above). The email read as follows: Thanks for having a look at this response. I have responded to the points which Anna has raised. Anna raised 30 points of which some were not relevant to her employment with us, others she has repeated on more than one occasion. I have also included the Lab Manager's response to some of the points. I'm not sure how to tie all this up into a paragraph or two and what we are saying to her now - is it serious and wilful misconduct of the code of conduct? On the basis that she continued to lie at about her secondary employment. Or can we terminate her on the basis of defrauding the system - while she was on WC (which was declined later) she was continuing to work at her other job at DSA. (No one at the time was able to give me an answer - from Feliks to Peggy Oppel). The lab manager was only doing his job when he met with her to determine what was going on (she had a considerable amt of sick leave) and she took this as bullying and harassment, she lodged a stress claim in September 2007 (psychological injury based on her maanger (sic) bullying and harassing her) this claim was declined in November 2007. She has exhausted all her sick leave, has a limited amount of annual and lsl left. Currently she is on leave without pay, as she has not contacted anybody in SEALS to advise. SEALS Mgmt (Trevor Cobain) want her terminated. Who will this letter need to come from? I'm not in tomorrow (Wednesday), in case you want to have a look at other documentation, there is a file on my desk. ....................................... 86 Ms Buric also prepared a 2½ page "Internal Briefing - Self Initiated Briefing" document dated 21 August 2008 (Exhibit 17), which was forwarded to Ms Sassu the HR Manager, the Area Director Pathology SEALS (who are both noted as having signed it on 22 August 2008) and the Manager Workforce Services. 87 The document indicated that its purpose was: "To provide background information to the Manager Workforce Services concerning matters relating to Ms Anna Nikolis, Technical Officer, SEALS Kogarah Campus. Furthermore to gain approval to terminate Ms Nikolis' employment on the basis of a serious breach of the conditions of employment". 88 In addition to background information and history as to Ms Nikolis employment, her grievance and workers' compensation claims, the document went on to say: "On two occasions (14 December 2006 and 28 August 2007), Ms Nikolis has been questioned about secondary employment, and on both occasions has denied working outside of SEALS in any capacity. Investigations have shown that Ms Nikolis was in fact working at DSA whilst unfit for work with SESIAHS. Ms Nikolis acknowledged being employed with DSA prior to commencing with SEALS in June 2006 and being employed as a subcontractor since August 2006. Ms Nikolis's period of employment with DSA coincided with her period of unfitness for duty with the South Eastern Sydney and Illawarra Area Health Service. Recommendation: 1. Documentation has been provided which supports the view that Ms Nikolis has not been honest and has misled the Area Health Service in matters concerning her secondary employment, and thus has breached the conditions of employment and the SESIAHS Code of Conduct. 2. That the attached letter be signed." 89 On 15 September 2008, Mr Terry Clout, Chief Executive SESIAHS, wrote to Ms Nikolis (Exhibit 16 - T) referring to her letter of 14 December 2007, indicating that her response had been reviewed and advising inter alia the following: .......................................................................... Outside Employment · When asked specifically on two (2) occasions (14 December 2006 and 26 August 2007), you denied that you had been undertaking secondary employment. · It has been substantiated that you continued to work as a sub-contractor for Diagnostic Services Australia (DSA) for the period of August 2006 to October 2007, two evenings per week. Your letter dated 14 December 2007 indicated that you had been employed by DSA since July 2005. · Despite being advised on numerous occasions that you required approval to undertake secondary employment in accordance with the provisions of the Code of Conduct, investigations showed that you have not sought approval for your secondary employment with DSA. · The Code of Conduct was provided and explain to you at the time of your offer of employment, during orientation and at a meeting of 14 December 2006, where you were accompanied by your HSU organiser, Mr Tom Dolan." Grievance · Human Resources staff have attempted to progress this matter with you on numerous occasions. However, the matter has not been progressed due your continued absence from the workplace since September 2007 and your failure to meet with H R staff to discuss the matter. Your failure to inform the Area Health Service of your secondary employment is a serious breach of the South Eastern Sydney Illawarra Health (SESIH) Code of Conduct. The Code of Conduct stipulates that all employees will undertake their duties in good faith and in the spirit of honesty with correct purpose and with the best motives. It is the Area Health Service's view that you have been dishonest with management relating to this matter resulting in a breakdown in your employment relationship with SESIH. As such, it has been recommended that your employment be terminated. I am inclined to accept this recommendation. ............................................................................ 90 The letter went on to advise Ms Nikolis that she was being given the opportunity to provide in writing reasons why her employment should not be terminated, with the response to be provided to the Manager Workforce Services within seven days, at which time the Area Health Service would "review this matter including your response should you choose to make one". 91 Ms Nikolis made a supplementary statement in relation to her workers' compensation claim on 17 September 2008 (Exhibit 2 - AN2). The only reference to the issue of secondary employment is as follows: 6. As to the allegations about my secondary employment, I did not ever receive a response to my correspondence that was lodged in December 2007. 92 On 24 September 2008, Turner Freeman Lawyers, acting for Ms Nikolis, wrote to the Chief Executive, South Eastern Sydney Illawarra NSW Health (Exhibit 16 - U). The letter did not refer in any way to the 15 September letter from Mr Clout. It was an extensive and detailed six-page letter alleging that Ms Nikolis was subjected to "harassment, discrimination and victimisation in the course of her employment", that the allegations were serious and had led to her developing a "serious psychiatric injury". The firm was instructed to provide particulars of the allegations and of the contemplated Court proceedings to the Area Health Service. It was also alleged that she had been "threatened, harassed and victimised". Relevant events and issues were set out in detail. The only reference to secondary employment was in the context of that being raised as an issue in the two meetings held (14/12/06 and 28/08/07). 93 A further, separate letter, of 24 September 2008, from Turner Freeman, on behalf of Ms Nikolis, did respond to the 15 September letter from Mr Clout Exhibit 16 - W). The letter referred in detail to Ms Nikolis' assertion that she had disclosed her secondary employment on commencement and had not been required to fill in a form by Mr Pillai. The letter went on to say: 6. On the basis of that information, as well as the assurance given to her during her job interview, Ms Nikolis did not do anything further in relation to the secondary employment. 7. Ms Nikolis not hear any further about the matter until she lodged a grievance in relation to the behaviour of her supervisor, Mr Pillai. It appears that these allegations about secondary employment have been raised as a direct response to our client's complaint. We have written to you separately making serious allegations about the conduct of Mr Pillai, including allegations of discrimination and victimisation. 8. Ms Nikolis was not provided with a copy of the Code of Conduct at the commencement of her employment. She is not aware of a copy of the document being accessible in the laboratory. She understands that the Code of Conduct was brought directly to the attention of SEALS employees during her period of absence following a Motor Vehicle Accident in 2007. 94 The letter then went on to deal further with the grievance and the assertion that Human Resources had attempted to progress the matter, with Ms Nikolis refuting such assertion. Her continued absence and medical condition was acknowledged, but it was indicated that, ...." this should not have any effect on the Health Service's ability to conduct an independent investigation into the serious allegations that have been raised by our client." The letter then went on to conclude: We trust this correspondence provides an adequate response to the various matters raised in your letter of 15 September 2008. We do not agree with the recommendation for termination of our client's employment. In our view, termination in these circumstances would be unfair and possibly unlawful. We will resist any attempts to terminate our client's employment and will initiate court proceedings if you do proceed to terminate. Should you require any further particulars in relation to our client's current status or a further response to the allegations raised then we invite you to contact the writer. 95 Mr Clout responded to these two letters by correspondence to Turner Freeman dated 15 December 2008 (Exhibit 16 - W), in which it was refuted that the issues of outside employment were raised as a response to the grievance lodged, with detail being provided as to relevant dates, the steps taken and the procedure followed in support of that position. The letter went on to say: I have considered the information provided relating to Ms Nikolis's failure to inform the Area Health Service of the secondary employment, which is a serious breach of the Code of Conduct policy. I am satisfied that all reasonable attempts have been made by the Area Health Service to raise Ms Nikolis's awareness of her employment obligations relating to this matter. I have taken the view that despite education and counselling, she has been less than open and frank in disclosing the outside employment and has declined to follow the correct procedure to obtain approval. 96 Advice was then given that Ms Nikolis' employment contract was to be terminated, effective immediately, with a copy of the termination letter being sent to Ms Nikolis attached. 97 The letter of termination sent to Ms Nikolis from Mr Clout of the same date (Exhibit 16 - X) referred to the 24 September letter of response from Turner Freeman and indicated as follows: The response has been reviewed and I reconfirm that you were questioned by management on two occasions regarding outside employment, namely in December 2006 and August 2007. It has been confirmed that on both occasions, in the presence of your industrial representatives, you denied working outside South Eastern Sydney and Illawarra Area Health Service (SESIAHS). Despite your denial it has been substantiated that you engaged in outside employment with Diagnostic Services Australia (DSA) for the period August 2006 to August 2007 since commencing full-time employment with (SESIAHS) in 2006. It appears from the responses provided on your behalf, that there has been a shift in your position relating to this matter, from denial to an allegation that your outside employment was undertaken with consent by your manager. On the basis of all information provided to me, I am satisfied that all reasonable attempts have been made by the Area Health Service (which includes your manager) to raise the awareness of your employment obligations regarding outside employment and to convey to you the appropriate procedure for obtaining approval. Obligations as an employee were outlined in your contract of employment in which you returned a signed acceptance prior to commencement; at hospital orientation where it has been confirmed you attended; and at the meetings held in relation to this matter. I am also aware that a copy of the SESIAHS Code of Conduct policy and Outside Employment form was provided to following the meeting held in December 2006. I have taken the view that despite education and counselling, you have been less than open and frank in disclosing your outside employment and did not follow the correct procedure to obtain approval. Your failure to inform Area Health Service of your secondary employment is a serious breach of the SESIAHS Code of Conduct. As a result, I have decided to terminate your services, effective immediately. In accordance with clause 20 of the Health Employees Conditions of Employment (State) Award, you will be paid one week's salary in lieu of notice. ........................................................ 98 The Code of Conduct referred to in these proceedings was issued by South Eastern Sydney Illawarra Area Health Service in May 2006 (Exhibit 15) and indicated that it replaced the former Codes of Conduct in operation prior to the amalgamation of the two former Area Health Services that now comprise the SESIAHS. 99 On 17 March 2009, an Arbitrator of the Workers Compensation Commission found in favour of Ms Nikolis' claim that she had sustained a psychological injury in the course of her employment with the Health Service as a result of being harassed and bullied by her manager between 19 June 2006 and September 2007 concluding (at para.s 44 and 45) as follows: 44. It is evident that the Applicant perceived that she was being harassed by Sudha. She complained about this to Maria Buric when she filed a formal complaint. 45. It is not necessary for me to decide whether Suhda was, in fact, engaging in harassment of the applicant. It is clear, and I accept, that the applicant perceived she was being harassed and that this was a perception based on actual events. In those circumstances it is immaterial whether she misconceived those events (see Transit Authority v Chemler [2007] NSW CO249) 100 That decision was appealed by the Health Service, and by decision of Deputy President Roche on 3 July 2009, the determination of the Arbitrator was confirmed (Exhibit 5 - AN2-A). 101 As noted in the Appeal decision, (para. 4), as a result of the Orders made by the Arbitrator, Ms Nikolis was to receive the following payments: 1. Respondent to pay $654.00 per week from 14 September 2007 to 16 March 2008, $624.40 per week from 17 March 2008 to 31 March 2008, $636.60 per week from 1 April 2008 to 30 September 2008 and $647.60 per week from 1 October 2008 to date and continuing as adjusted. 102 At the commencement of proceedings Mr Sullivan submitted that as a consequence of the above Orders, the maximum compensation that could be ordered by the Commission pursuant to s.89(5) was $14,400. 103 On 21 August 2008, Dr Selwyn Smith, Ms Nikolis' treating Psychiatrist wrote to Turner Freeman in reply to their request for a psychiatric report on Ms Nikolis (Exhibit 2 - AN3). The report noted as follows: IN RESPONSE TO THE SPECIFIC QUESTIONS RAISED IN YOUR LETTER OF 19 AUGUST I WOULD STATE AS FOLLOWS: 1 The dates Ms Nikolis has been examined in my Burwood rooms include the following: (16 specific dates were then listed between 14.09.07 and 20.08.08) 2 As stated Ms Nikolis continues to reveal clinical features to that which I outlined in my report of 27 November 2007. There has however been a deterioration in regard to her mood and an exacerbation of her anxiety. 3 Ms Nikolis continues to demonstrate a Chronic Adjustment Disorder with Depressed and Anxious Mood. As stated I had previously diagnosed Ms Nikolis with a Chronic Adjustment Disorder with Depressed and Anxious Mood. I confirm that diagnosis. 4 The condition has not improved and has in many ways deteriorated since the time of my last report. 5 Currently it is my opinion that Ms Nikolis's condition has deteriorated to the extent that she is unable to engage at her pre-accident employment with Southeast Area Laboratories Service. I was hopeful that she would be able to explore work with an alternate employer. Ms Nikolis however has developed marked fears of engaging as a medical technical officer and has expressed fears that further adverse events will occur if she undertakes similar work in an alternative setting. She has therefore been directing her attention to being retrained in an alternative profession. Exactly what that profession is, remains unknown at the present time. 6 I am concerned about Ms Nikolis's prognosis given the length of time that has elapsed since the injury has occurred and the fact that she has not significantly improved. I trust this provides you with sufficient information in regard to the issues you have raised. Please contact me if you require any further information or assistance. 104 This report, and the decisions referred to above in the Workers Compensation Commission, were the only material in evidence before the Commission as to Ms Nikolis' state of health as at the date of the hearing of this matter. 105 The specific issues contained in the grievance lodged by Ms Nikolis were not traversed in any way during the hearing, merely the facts associated with the lodging of the grievance and its subsequent procedural treatment insofar as it had been the allegation of the applicant that the issue of her secondary employment was raised as response to the grievance. The parties agreed that it was not necessary for the Commission to reach a conclusion about the allegations contained in the grievance. 106 Ms Nikolis' Australian Tax Returns for the financial years' ending 2006, 2007 and 2008 were also tendered in evidence (Exhibit 6). The Evidence 107 The evidence below will only concern events/facts and issues considered relevant to a consideration of whether or not the termination of Ms Nikolis was harsh and/or unjust and/or unreasonable, and sufficiently so, such as to warrant the intervention of the Commission. However all evidence from the parties has been carefully considered. It should also be noted that a substantial part of the cross examination of Ms Nikolis proceeded from a basis of the points detailed in the second letter from Turner Freeman to Mr Clout, however I consider it more convenient to deal with the relevant evidence in dispute between the parties under the following headings: The Interview, The Induction Process 14 December 2006 meeting The Grievance 28 August 2007 meeting SESIAHS investigation of secondary employment and procedural issues. 108 The Interview Ms Nikolis deposed that during the interview she was asked if she had any questions in relation to her potential employment with the Area Health Service and the following conversation occurred: Me: Bernie said to say hello, he said you are very knowledgeable in your field of haematology. Mr Pillai: Thank you. Do still intend to keep that DSA job? Ms Nikolis: Yes, is that going to be a problem? I actually really need that extra overtime. It will not interfere with this job. Mr Pillai: No, that's not going to be a problem, we don't have overtime here. Just some half day, four hour shifts on as occasional Saturday. Mr Loizou: The rosters are made up six months in advance, it can't be changed. First you need to be trained and as the roster is already made up, there will be no Saturday's until the next roster in December Ms Nikolis: So if I get this job then I can still keep my second job? Mr Pillai: Yes, that's not a problem as long as it's out of your normal hours. 109 Mr Pillai denied that such conversation took place and denied any discussion about Ms Nikolis keeping her job at DSA. He deposed that he referred to the hours of work, and that once trained she would be required to be on a roster for a 4 hour overtime shift on Saturday mornings and on a roster for public holidays. 110 He deposed that towards the end of the interview he asked for permission to contact the nominated referees, and then the following exchange (or words to the effect of) took place: Me: I see you have worked with Bernie. I have also worked with him. Anna Nikolis: Yes, Bernie said that he knows you and you are a good Haematologist. 111 Mr Pillai said that if she had asked him about retaining a second job, he would have told her that she was required to fill in a form seeking consent from the Chief Executive or his delegate. Mr Pillai said he did not ask if she was going to give up the DSA job or continue working for DSA, it did not occur to him to do so. He understood that the reference to "current" was that at the date of the interview she was working at DSA. 112 He acknowledged that "in retrospect" it would have been logical to ask if she intended to continue with her employment. He also did not bring to her attention the requirement to comply with certain procedures, as he did not know she was going to continue with her employment at DSA. He did not become aware that she was employed at DSA until some time later when she was on workers' compensation. 113 Ms Nikolis also maintained that Mr Loizou was present when this conversation took place. However both Mr Loizou and Ms Smith denied that the conversation as deposed by Ms Nikolis took place. Mr Loizou deposed that there wasn't any conversation or discussion about ongoing work for DSA. The only mention of DSA was in the context of her past experience and as information as part of her job application only. He could not recall any mention of Bernie Wendelin. He left the room towards the end of the interview for 4 to 5 minutes to photocopy some of Ms Nikolis' documents. He was not aware of what might have been said in his absence. 114 Mr Loizou maintained that, notwithstanding that this interview took place three years before and that he was going from his memory, that his evidence was accurate. If someone had turned around and said they wanted to continue working with their other employer he'd remember that, saying ..."that's a very unusual question". 115 Ms Smith also deposed that the only discussion about DSA was in relation to prior work experience. She could not recall anything being said about "Bernie", other than that he was a referee. 116 Mr Loizou also acknowledged that he didn't ask Ms Nikolis if she was going to continue working at DSA or bring to her notice the requirement to fill out a form. He assumed that the employment with that other employer would cease once you got a new employer, notwithstanding that it was a part time job. He agreed that in retrospect it would have been logical to ask if she intended to continue her employment with DSA . 117 Mr Loizou also could not recall any discussion about Ms Nikolis not being able to access overtime because the weekend rosters were already made up. Mr Loizou could not recall telling Ms Nikolis that he couldn't change the roster. He did acknowledge that the rosters were already made up until December 2006. He maintained that although he made the rosters up a year in advance it was impossible not to have to change the roster if someone couldn't do a shift or was sick or on annual leave. He put Ms Nikolis on the roster as from January 2007. 118 Mr Pillai, as well as Mr Loizou and Ms Smith, had participated in such interviews in the past. They followed a standard format. Handwritten notes were taken by each interviewer, that were then forwarded to HR. They had not accessed those notes before giving their evidence. Those notes were not in evidence and it was indicated by Mr Sullivan during submissions that those documents had not been retained by SESIAHS. 119 When Mr Pillai contacted Mr Wendelin at DSA for a referree's check on the 30 May, he took handwritten notes of what Mr Wendelin told him. He agreed that Mr Wendelin said she was "working" there, but denied that that meant Mr Wendelin had made it abundantly clear she was continuing to work there. It was when he was talking to Mr Wendelin that she was working, she hadn't got the position at St George yet. It was just a referee's check. He maintained that Mr Wendolin never at any stage said she was going to continue working there. All that was said was that she was working there at that particular time. 120 Mr Wendelin had worked at DSA from the beginning of 2005 until late October/November 2007. He wasn't sure of exact dates. He deposed, in relation to the phone call, that in giving support for Ms Nikolis' work performance and confirming her current work arrangements, he could not recall "giving any other impression to Sudha Pillai than that she was a current employee of DSA." 121 Mr Wendelin said that he wasn't sure what Mr Pillai was aware of, and couldn't answer as to what conclusions Mr Pillai had drawn, but there was no reason for him not to understand that she was still attached to DSA. Mr Wendelin said she was working there on a regular basis .... "part-time, casual evenings and weekends." 122 He also deposed that Ms Nikolis " commenced in about June 2005 and has not worked since August 2007, at which time her contribution to the roster was nil but she was still "on the books". The employment was basically on a part-time and then casual basis after hours or on weekends and there were periods when she was unable to work because of family and sickness. 123 When asked whether the effect of his statement was that he was working at DSA during the period Ms Nikolis was working at DSA from June 2005 to August 2007, he responded "Yes, that's correct" but subsequently clarified that response in the following exchange: A: She commenced in June 2005 on a part-time basis and she had a car accident - I'm not to sure of that particular date, but when I was asked to give a statement to indicate the completion of her employment, the most definite date that I could give was August 2007, but prior to that she had not been continuously or working day to day or on a regular basis in the laboratory." Q: But she was working from time to time, is that your evidence? A: I didn't see much of her after the car accident. Now, I cannot remember the date that the car accident she had took place, the timing is something I can't tell you and I didn't see much of her after that. August 2007 is a date that I came up with when I was asked to recollect her employment record and I couldn't remember her working past that date, but prior to that, I knew that she had not been present in the laboratory on a regular basis. The Induction Process 124 Ms Nikolis deposed that when she commenced at St George on 19 June 2006, during her first two days Mr Pillai gave her a personal tour of the site and helped with orientation type activities. On the first day he went with her to the HR building to get her security badge and Hospital ID, however the building was closed and they went back either later that day or the next day, she wasn't sure which. During one of those two occasions they discussed her employment with DSA. Mr Pillai told her he also knew Dr Jana as they had all previously worked at Sutherland Hospital. He enquired after them and told her about the nature of Dr Jana's laboratory operations. She then asked him: "Is it a problem for me to continue working there? Do I need to fill in a form or something?" and he responded "no. Say hello to them for me" 125 Ms Nikolis said that it was on the basis of that information, as well as the assurance given to her during her job interview that she did not do anything further in relation to the issue of secondary employment. 126 Ms Nikolis also made a diary entry on 19 June 2006 (the second entry listed on that page) concerning this conversation as follows: When I returned from tea went with Sudha to James Law House to ID BADGE, ACCESS SUDHA ASKED ME: Are you still keeping the job at DSA. How is Bernie and Dr Jana? I: "do you know Dr Jana as well" Sudha: "Yeh, I know him from Sutherland..." "He's always been involved in setting up some small labs, then reselling and other scheams (sic)" (rolling his eyes, implying illegal doings) I: " I don't know about any of that, I know this Lab is doing really well and increasing" Sudha: "Say hello to Bernie and Jana when you see them." 127 In cross examination the exchange concerning this conversation was as follows: Q: But if you thought that you had consent at the interview to continue to work at DSA, why at that time would you have asked if you needed to fill out a form or something? A: Just to make sure that I have covered everything I need to. Q: Could it be because you knew that the letter of offer to which we just referred, required that consent to be given? A: Absolutely not. 128 In response to questions about Mr Pillai's witness statement and his denial that the conversation took place she responded - "Well, he's lying". 129 Mr Pillai deposed that on her first day he took her to the Blood Bank laboratory and introduced her to the staff members present and either he or Mr Loizou introduced her to other members of staff of the Haematology Department. After those introductions he took her to the Network Manager's office to obtain the security card and she returned to the Blood Bank area. He then made arrangements concerning other employment issues (giving of OH&S safety checklist, arranging for identification photograph). He maintained their contact was limited to a timeframe of about one hour and denied that any discussions as alleged by Ms Nikolis occurred within that time or at any other time. 130 In cross examination Mr Pillai gave further detail as to the obtaining of the security ID. The identity card was obtained from the Network Manager's office on the third floor of their building. The photographic ID had to be obtained in the HR building, on another part of the campus about five minutes away. He also went there with Ms Nikolis. He could not recall if the building was closed when they got there and they had to go back later either that day or the next day. 131 He could not recall having a conversation with Ms Nikolis either on the way there or on the way back, but acknowledged he "possibly" would have made "some chit chat". 132 He acknowledged he knew Dr Jana and that it was "possible" that he mentioned Bernie but he couldn't remember. He most definitely remembered that they didn't have a conversation about whether she needed to fill in a form. He also said it wasn't true that he responded ..."no, say hi to them for me". It wasn't possible that he would have said that. 133 He further maintained that it was not possible that such conversation took place. However he did acknowledge that it was possible that some chit-chat took place and that it might have involved their "mutual friend Mr Wendelin" but said that he was a quiet person and didn't chit-chat a lot. He went on to respond: A: Well, I just mentioned that before, it's possible I said, how's Bernie going, how's Bernie, because I know Bernie." 134 However he denied that that indicated he knew she was working at DSA at that time going on to respond: A: No I didn't know she was working there. I just said, how is Bernie going. That means she knew Bernie at that time of the interview. I knew she worked at DSA at the time of the interview." 135 Mr Pillai maintained that asking "how is Bernie" did not infer anything to him, and most definitely did not mean he understood that there was an ongoing relationship between Ms Nikolis and Mr Wendelin. She would know how he was going because she worked there two weeks prior to that. He did not know she was still working at DSA. 136 Mr Pillai was also taken to the diary entry made for that day by Ms Nikolis. He did not agree with that account of the conversation and categorically denied that. He did not keep records of the conversation and did not agree that he could have been mistaken in his recollection. If he had said something like that he would have recollected it. 14 December 2006 Meeting 137 Ms Buric deposed that prior to the 14 December meeting she had first heard of Ms Nikolis when she was contacted by Mr Pillai in relation to the possibility of extending her probation. She had advised him that this was not possible, suggested he meet with her to discuss his concerns, and subsequently received a copy of the minutes of the 6 September meeting. She was then contacted by Mr Pillai in early December about problems with her attendance at work and she suggested a further meeting with Ms Nikolis and she prepared a form letter for Mr Pillai to give to her. Ms Buric then reviewed Ms Nikolis' attendance record and thought of suggesting that Mr Pillai offer her the option of part time work if she was experiencing difficulties in balancing work and family commitments. 138 The issue of her secondary employment was raised with Ms Buric by Mr Pillai during this subsequent discussion but she did not consider it significant for the purposes of the proposed meeting, only insofar as it might be impacting on her attendance. She was to be asked about it, with the intention of ensuring she complied with policy if she were to continue. It was not a disciplinary matter at that stage. 139 Mr Pillai deposed as to his renewed concerns in early December 2006 about Ms Nikolis' attendance and taking those concerns to Ms Buric. He also indicated that it had been "mentioned" to him, but he couldn't recall by whom, possibly Mr Loizou, that she was working at DSA. 140 Mr Pillai said in evidence that he did not already know that Ms Nikolis was working at DSA. He had only got that information just before the meeting and he asked Maria Buric if it could be brought up, and she said yes. He agreed that he didn't go directly to Ms Nikolis and ask her if this was the case but took it straight to HR. 141 Ms Nikolis deposed that after her induction in June, she had not heard any further about the issue of secondary employment until after she had lodged her grievance in relation to the behaviour of Mr Pillai. She deposed that she lodged it on the 8 December 2006, by which time she had sought medical assistance from her GP. On the following Monday, 11 December 2006, Mr Pillai handed her a letter requesting her attendance at a meeting on Thursday, 14 December. He did not say anything to her whilst doing this. (Although her diary entry for that day records him as saying "This is a letter for another formal meeting on 14/12/07" (sic)). 142 Mr Pillai deposed that he did speak to her when he handed her the letter telling her words to the same effect as indicated in Ms Nikolis' diary entry above. 143 Ms Nikolis understood that the meeting was to discuss her excessive use of sick/carer's leave. She had asked for, and arranged to have Mr Tom Dolan from the HSU present. 144 Ms Nikolis deposed that before the meeting started she asked Maria Buric if they would also be discussing her complaint. She also thought it was unusual that Mr Pillai was to be present in the meeting. She deposed that Ms Buric said - "No, we will deal with that separately." 145 Ms Buric denied that this conversation took place and said Mr Dolan approached her at the end of the meeting confirming what she had deposed. He took her aside and told her that ..."this may actually be a complicated one", and went on to tell her that Ms Nikolis had told him she would be lodging a grievance against Sudha and had prepared a document apparently 12 pages long. Ms Buric's response was to indicate that nothing had been said to her or anyone else, as far as she knew, and they hadn't received anything at HR. She was definitely not aware that a grievance had been lodged by Ms Nikolis. 146 Mr Pillai deposed that following the meeting he saw Ms Nikolis take Mr Dolan aside to talk to him, then Mr Dolan approached Ms Buric and had a conversation with her. Ms Buric subsequently told him that Ms Nikolis had expressed an intention to lodge a complaint about him bullying and harassing her. He did subsequently learn of such a complaint being lodged but did not see the complaint document until he read it attached to Ms Nikolis' witness statement. 147 Ms Nikolis deposed as to her diary entry for that day, written at lunchtime, and concerning the meeting which went on to say: ................................................................................. Before meeting finished, "BOMBSHELL" DROPPED BY Maria Buric." that it has been recently brought to her attention about outside employment and code of conduct regarding approval required". She didnt want to comment on my grivience (sic), and said to Tom: "That will be addressed separately" I AM SHOCKED AT WHAT I AM HEARING, it can only have come to her from Sudha, a week after I put in grivience (sic). I am SHeLL-SHOCKeD AT HIS DIRTY TACTICS to make me look bad as he has known about the 2nd job prior to employing me as I used the boss Bernie Wendelien (sic) as refference (sic) for this job, SUDHA NEVER SAID TO ME: I NEED TO SEEK WRITTEN Approval, INSTEAD VERBALLY gave me his approval by saying at the beginning "that its none of his bussines (sic) what I do in my spare time ' even made small talk about "how is Bernie, or Dr Jana" (ON THE FIRST DAY I STARTED WORKING 19/6/06) THIS IS JUST A REVENGE FROM HIS SIDE. ITS WORKING I AM NUMB, AND DEVASTATED BY his behaviour 148 Ms Nikolis did not depose further as to the detail of this exchange during the meeting. 149 Ms Nikolis deposed that the entry in her diary reflected what was said during the meeting. She further deposed that during the meeting she said she would stop the work for DSA if she was getting overtime for SEALS. 150 She deposed that at the time of the meeting, the roster for the next six months was available and she wasn't getting any overtime for that period and that she showed the roster to Ms Buric. Ms Buric said that it was okay to work elsewhere if she was not getting overtime and that she would send her a form about her job with DSA. She did not receive a form at the meeting and her email records show that Ms Buric sent her a copy of the form the following August (2007). 151 Ms Buric deposed that the notes she kept were consistent her recollection of the meeting and she recalled the conversation as follows: Me: " The Area has been told that you are working in a second job out of hours. Is that right?" Anna Nikolis: "No, I am not. But at my interview, I was told that there would be weekend overtime work. That hasn't happened. If I'm not getting regular overtime, can I work casually on the weekends?" Sudha Pillai: "The roster, including the weekend work, is set to the end of December each year. Now you are trained, you will be included in next year's roster for weekend overtime." Me: "You will receive overtime that way. In answer to your question, it is possible for you to take other casual work if the overtime is not regular. But please remember that our Code of Conduct policy with regard to outside employment has an approval process. You will need to complete a form for approval by Roger Wilson and the Chief Executive. I will give a copy of the form to you. " Tom Dolan: "That's right, Anna. There is an Area policy about secondary employment, so please make sure you follow that." 152 Mr Pillai, whilst essentially in agreement with Ms Buric as to the issues that were canvassed during this conversation, deposed that it unfolded as follows: Maria Buric: "It has recently been brought to the Area's attention that you are currently employed in a secondary job. Is this correct?" Anna Nikolis: "No. I am not currently employed elsewhere. But can I work elsewhere outside of hours?" Maria Buric: "In this role, you can be rostered to work overtime Saturdays, which was explained to you in your interview Anna Nikolis: "I haven't been given overtime though, and the roster is already set until the end of the year." Maria Buric: "Yes, the roster is set until December 2006. In 2007, in 2007 you will be rostered on. If you are not rostered on regularly you can consider taking casual work on weekends. If you want to work elsewhere though, please remember what is required by the Code of Conduct Policy and the approval process that is required. You must complete an approval to engage in outside employment form and have it signed off by Roger Wilson to ensure there is no conflict of interest. I will provide you with a copy of the form." 153 The last paragraph of the record of interview as noted by Ms Buric, is outlined in the background and Chronology above. 154 Ms Nikolis indicated she "definitely" disagreed with the witness statements of both Ms Buric and Mr Pillai as to what she said in the meeting. She did not sign the minutes because she did not agree with that. The minutes were wrong. She also maintained that she corrected everything she thought was would be incorrect but couldn't say now why she didn't have it in front of her, but she would have corrected it. 155 Ms Nikolis also maintained that at this meeting she said that Mr Pillai had known about her working at DSA from the start. Mr Loizou knew, everyone at the Lab knew, and she wasn't the only one with a second job. She acknowledged that that did not appear in her witness statement but said it did appear in her diary notes. 156 She never said that she was not employed elsewhere. It was a known fact that she was working at DSA. Mr Pillai had told Ms Buric that she was working at DSA. She always confirmed that she was working at DSA but she intended to leave it provided they gave her overtime. 157 Ms Nikolis was also taken to the statement she made to Ms Debra Wise in October 2007, wherein she indicated that she had worked part-time at DSA from June 2005 to October 2006, and resigned in October 2006. She indicated that that use of "resigned" should have been corrected as she was ..."never, like, formally employed", she just intended to resign. 158 Ms Nikolis confirmed in cross examination that she was working at DSA at that time and that she said during the meeting that she was working at DSA and would stop once she had the overtime. 159 However in relation to whether she was still working at DSA at the time of the meeting she went on to say: A: I can clarify that, I can clarify that because now I understand what you're asking me. The thing is, when I was on the 14th - my last shift at DSA was in October 2006, but I was still on their books, like, was still officially employed and I did say at that meeting that I intended to leave that work, but I officially worked my last shift in October. So like, between October and December, I didn't work any shifts, but I was still employed. 160 Ms Nikolis agreed, in response to a question from the Commission, that she was still listed as an employee on their books. 161 She went on to say that she intended to leave the job if she got overtime but the roster was made up for the next 6 months in 2007, and she wasn't on it and she was fully trained, that was why she brought up at the meeting that she was intending to leave the job but they hadn't given her anything and she needed the money. Maria had asked why she was not on the roster and Sudha said he would address it with Peter Loizou and if she wasn't put back on the roster than she could continue and then she would need this written approval to seek employment elsewhere. However they never got to that stage because she had a car accident and never went back to work. 162 It was Mr Loizou's oral evidence that he had made up the overtime roster in January 2007 and Ms Nikolis was on it. 163 Ms Buric deposed that following the meeting she returned to her office and obtained a copy of the form and personally took it to the Blood Bank laboratory and gave it to Ms Nikolis. She also confirmed in evidence that she physically handed the form to Ms Nikolis. It was the first time she had actually "ventured" to the Blood Bank and she was .."just surprised".., it was her first impression of what a blood bank looked liked. It was the first time she'd been into a laboratory. 164 Ms Nikolis denied that she was given the form responding: A: I absolutely deny and I will tell you why, because Ms Buric was supposed to follow up why I am not on the roster for the next six months, so there was no reason for her to come that day and get me that form. If I was not changed, like, on the roster as she said and for the next six months with no overtime, I was free to seek or continue this employment and then I would need that form. So she was going to e-mail it to me if I needed it for the future, but she never e-mailed it to me. 165 It was pointed out to her that she had subsequently said in her letter of the 14 December 2007 (to Ms Culbert) that at that time she had requested a form from Maria "which she gave to me". 166 She explained that at that time she believed that she had it in the email, she never checked when she said that, so she thought Ms Buric had e-mailed to her as they agreed, but Ms Buric subsequently gave it to her in August 2007. 167 She continued to maintain that she was not given a form in December 2006 because she had no reason to get that form on the 14 December because they were going to give her overtime, so she had no reason to have the form. She never saw the form, because she had no reason to because of the accident. 168 She deposed that she gave verbal notice to DSA in December 2006 to discontinue her employment but they subsequently made her an offer to stay on as a Lab Consultant and occasionally look at some QC results for their upcoming NATA review. She indicated that that would have been prior to the car accident, somewhere in the Christmas period, in early January. However she also indicated that whilst she was considering that offer, she never did that. 169 However she subsequently said in evidence that she didn't know if her name was still on the books until the August (2007) meeting. She had agreed to be on the books because Dr Jana asked her, but they never had a conversation since January, so she just stayed on the books. 170 Mr Pillai could not recall the exact question Ms Nikolis was asked in the meeting, that is, whether she was working at DSA or whether she was working elsewhere. He recalled that she said she wasn't, and he was certain about that because it was recorded in the minutes. Mr Pillai denied that Ms Nikolis said she was planning to leave the job if she got overtime, that was "absolutely incorrect". 171 He had deposed that Ms Nikolis denied that she was working at DSA, therefore she could not have offered to stop working there in return for getting overtime at SEALS. 172 There was an extensive exchange with Mr Pillai about the issue of the overtime roster. Essentially he agreed that there was some discussion in the meeting about overtime. The roster was made up until the end of 2006 and Ms Nikolis was not on it, and this had been explained to her in the interview in June. He had not seen the roster for 2007. Mr Loizou would make up that roster at the beginning of the year in January and put all staff who were trained on it, including Ms Nikolis. He agreed that Ms Buric told her that if she wasn't on the roster she could have a casual job, but she had to fill out the form. The Grievance 173 In addition to what is set out in the chronology and background above, further relevant detail in relation to the grievance was given in oral evidence. 174 Ms Nikolis said in evidence that she had prepared the grievance document before the 8 December. She had emailed it to Tom Dolan to get his instructions if it was good enough. He said it was good, so she printed it off. She had mailed three copies by Express Post and kept the little yellow stickers. The first one she mailed to Maria Buric on 8 December and she subsequently sent another two copies to "Area" as well, because somebody advised her that you had to send it "high up" to get a result. 175 When she walked into the meeting on the 14 December she believed with her whole heart that Ms Buric had the document. She reiterated that she brought it up with Ms Buric before the meeting. Mr Dolan knew she had lodged the form and they both brought it up and asked if they were going to address that and she said no, they weren't here to address that. 176 She also considered, that as Mr Pillai knew all along, right from the beginning that she worked at DSA and could have raised it at any time and on 6 September, why wait 6 months to bring it up. It was clear that he brought it up after she made her complaint. What else could she think. 177 Ms Nikolis agreed that Ms Buric did stay back with Mr Dolan and talk to him. She couldn't say what they talked about. 178 Whilst she could agree that Mr Pillai may not have even been aware of the grievance when he organised the meeting on the 11 December, she didn't accept that he wasn't aware of it on the 14 December as it was express posted and the policy said the person who has a grievance has to be notified immediately. However she went on to say that if she express posted it and next day delivery, that meant they got it by the 9th and by the 11th she expected he knew. 179 When taken to the grievance document as attached to her witness statement (with the attached 12 December letter from Dr Marinkovic) as well as to her workers' compensation statement to Debra Wise, she indicated that the second document she lodged was an amended one. The first one she sent to Maria Buric and the second one, with a different number of pages, she sent to the others. She also indicated that the one she sent to Ms Buric was sent to St George Hospital. 180 Whilst she agreed that Ms Buric contacted her on the 21 December by telephone and subsequently by letter about receiving the grievance, Ms Nikolis maintained that that was a copy of the second document she sent to Central Network and that Ms Buric only acknowledged that and not the first one. 181 Ms Buric said that she only worked part-time, Monday, Tuesday and Thursday. She had received the grievance document sometime during the morning of Thursday, 21 December, and contacted Ms Nikolis to advise that she had received it and would contact her when she returned from leave on Monday, 8 January 2007. 182 Ms Buric had deposed that she knew nothing about the matters being alleged by Ms Nikolis beyond what was contained in the complaint document. Where a complaint was made about another member of staff it was her normal practice to meet with the complainant to ensure that she fully understood the matter that is being complained about and, where necessary, that the allegations could be put in a precise way to the person being complained about. She also liked to understand if the complainant had any outcome in mind that he/she wished to achieve. As Ms Nikolis had referred to a number of alleged incidents in her complaint extending back to August 2006, she considered it essential that it was clear in her mind what specific actions of Mr Pillai were the subject of the complaint. She would never have simply handed the complaint document to Mr Pillai for his response. After meeting with Ms Nikolis and having clarified all aspects of the complaint, she would have prepared a document articulating the conduct complained about (assuming the issues were such as to warrant investigation) and obtained Ms Nikolis' agreement to that document being provided to Mr Pillai for response. 183 Ms Buric agreed that the grievance raised serious issues and also raised some health issues concerning Ms Nikolis. She took it seriously, which was why she tried to contact Ms Nikolis on the 9 and again the 11 January to state that she really needed to meet with her clarify and discuss everything she had put in the grievance. She was more than willing to meet with Ms Nikolis. It was a serious allegation and she felt the need, in accordance with their policy, to meet with the person first, or actually go through the grievance, clarify in her own mind in relation to what she had put down, and to speak to her about what her expected outcomes were as well. 184 Ms Buric indicated that she did not initially specifically go and pull out a policy document on bullying and harassment at the time of Ms Nikolis' complaint. She did not talk to any of the people that Ms Nikolis had named as potential witnesses because she was anticipating speaking to Ms Nikolis first, prior to conducting any type of investigation. She also did not speak to Ms Nikolis' treating medical practitioner nor to Mr Pillai. She advised Mr Pillai sometime in January that a grievance had come in, by which stage Ms Nikolis had had her car accident. 185 Ms Buric had deposed that during the first phone call to Ms Nikolis on 9 January she had told her that she wanted to have Tom Dolan present and would call him to organise availability. Ms Buric learned soon after that Mr Dolan was on leave and that Ms Kerrie Seymour from the HSU was performing his role. She then rang Ms Nikolis on 11 January to advise her of that and Ms Nikolis said that Tom Dolan was aware of her situation and she preferred to wait until he returned. 186 Ms Nikolis denied that she received either of those telephone calls. She said she could not have received a call on the 8 January because she is "Orthodox" and the 7, 8 and 9 is the Orthodox Christmas and the 9th is a Saints day and they celebrate that and she never works that day. She also had not seen the letter Ms Buric had sent (dated 11 January) and could not remember this letter. 187 In relation to the 8 March telephone call between Ms Buric and Ms Nikolis, Ms Buric denied that during this conversation she had used the word "summarise" or said the complaint was "too long" and "can't be presented to her superiors" as alleged by Ms Nikolis. She maintained that Ms Nikolis told her she was on workers' compensation and didn't want to do anything about her grievance until she returned to work. Ms Buric told her she would place her grievance "on hold" until she heard back from Ms Nikolis. Ms Buric also told her that Tom Dolan was on sick leave and there was another HSU representative (Tim Thorburn). 188 Ms Buric also deposed that the letter sent confirming the 8 March telephone call did not ask Ms Nikolis to summarise her complaint. The letter said in part: ...."As per your advice, I am confirming that you do not wish to proceed with the investigation into your grievance until you return to work and have had the opportunity to discuss the contents of your grievance letter with the union. Therefore, this matter will be placed on hold until such time you contact me."..... 189 Whilst Ms Nikolis agreed that the telephone call with Ms Buric on the 8 March did take place, and that she did receive the subsequent letter confirming the call, she did not agree that she had asked to have her grievance put "on hold". She agreed that she didn't write any reply to Ms Buric, saying that she thought it was documented in her diary that they spoke and what was said. She couldn't recall off the top of her head. There was no diary entry for this date however. 190 Ms Nikolis maintained she never said she didn't want Ms Buric not to proceed with her complaint. She was off work and she didn't know what Ms Buric was doing, but she expected her to do something, not wait for her to summarise it or make it shorter. She was not aware of any attempts by Ms Buric to schedule a meeting with her nor aware of her doing anything. 191 Whilst she did acknowledge that the letter from Ms Buric didn't say anything about her needing to summarise her complaint, Ms Nikolis maintained there were other instances where Ms Buric had asked her to summarise it, which she did and why would she summarise it if she didn't ask her to do it. 192 Ms Nikolis was taken to paragraph 4 of the 24 September, Turner Freeman letter, that dealt with her needing to escalate the matter by forwarding it to Mr Wilson (amongst other people) and asked why, by that date she had already decided that no action was to be taken and Mr Wilson copied. She responded as follows: A: Well, it implies that when I spoke to her, that she said she's not going to deal with it, so I did see that I needed to escalate to the next level if she's not going to deal with it, because it was very pressing to me to deal with. And that's why I did send it a couple of days later, backing it up with a medical certificate, because obviously she didn't take it seriously, she's not going to deal with it. She said she's not going to deal with it. 193 Ms Nikolis continued to maintain that Ms Buric, from the time she first saw the complaint and at whichever date she first saw it, said it was too long and that she had to summarise it. Ms Nikolis went on to indicate that she could not summarise her feelings, she actually expanded it another two pages and sent it to her superiors herself. 194 Ms Buric had deposed as to further conversations she subsequently had with Ms Nikolis after the 8 March, concerning her return to work and utilising of available leave entitlements. During one such conversation, in approximately May, Ms Buric deposed that she again raised the need to meet with her about the complaint, but Ms Nikolis told her she was appealing the rejection of her workers' compensation claim and was too busy doing that to be able to talk about her complaint. 195 Ms Nikolis denied any such conversation taking place as "being ridiculous" because she had her own Solicitor presenting and doing that work for her and she didn't have anything to do with the appeal. She was available the whole time and expecting some result and ..."she just kept dancing around and summarising and all the other issues." 196 Mr Pillai acknowledged that he was aware of the complaint but was not interviewed by anybody during that period. He made inquiries about what was happening about the complaint and was told it was on hold until Ms Nikolis got back because apparently HR had sent her a few letters to see whether she wanted to go ahead with it and presumably it was on hold. 197 Ms Buric deposed that after Ms Nikolis returned to work in June 2007, she was submitting regular medical certificates and Ms Buric would meet with her to discuss each certificate and work issues arising therefrom (hours, other restrictions) and in some of those meetings Ms Nikolis made comments about the manner in which Mr Pillai was dealing with her. On each such occasion Ms Buric reminded Ms Nikolis that they needed to meet in order to progress her complaint but did not tell her that she was waiting for a "summary" of the complaint as Ms Nikolis had alleged. Ms Nikolis responded that she wanted to settle back into work and learn her new role before meeting and also commented that she was busy attending physiotherapy and doctors' appointments on her days off. 198 Ms Nikolis did not agree that any such conversations took place during those meetings or that she responded as deposed by Ms Buric. She maintained that she was the one who kept raising those questions and Ms Buric kept saying she wanted a summary. 199 Ms Buric deposed that she also told her around this time, in response to comments from her about Mr Pillai holding the complaint against her, that although he was aware of her complaint being made, he did not know the content of the complaint. 200 Ms Nikolis's response to this was: "She even went insisting that Mr Pillai still didn't know anything about my complaint, it was all in my head, which is completely unbelievable, because the policy says that if you put a complaint against somebody, you have to tell them and now a year later she's telling me it's all in my head, I am just making this all up, he doesn't know anything about it." 201 Ms Buric also deposed that she recalled that some time after Ms Nikolis returned to work in June, and in response to a comment by her about feeling upset about the relationship with Mr Pillai, saying to her .."if you want, we can look at transferring you to another department if that will help you." Ms Nikolis was adamant in her response that she did not wish to be transferred. Ms Buric deposed that the offer was not made with a view to avoiding the complaint or a problem, but as a genuine attempt to make Ms Nikolis more comfortable at work. 202 Ms Buric denied ever telling her she needed to "re-activate" her grievance. 203 Immediately after the meeting of 28 August, Ms Buric deposed that she had a discussion with Ms Nikolis and Ms Sewell, her HSU representative, about the complaint as follows: Me: "The complaint remains on hold at the moment because we need to meet to discuss and clarify its contents." Ms Sewell: "Anna, can I suggest that you provide the complaint to me and I will work through it with you and then we can pass it acted on to Maria." Me: "The process would then involve getting a response from Sudha. If there is a formal investigation, there will be an external investigator appointed." 204 Ms Nikolis agreed that such a conversation took place but did not entirely agree with Ms Buric's account. She maintained the word "summarise" was used, although she said she supposed "clarify the contents means, the summary." However she also said she told her that giving a copy of the complaint to Ms Sewell was not going to make any difference because she wasn't going to change anything, there was no reason to. She would provide Ms Sewell with a copy just for her to inform herself, but it was not dependent on her doing anything, she was not going to change her statement. 205 Ms Buric deposed that the letter dated 29 August 2007 (Exhibit 2 - AN21), that she subsequently received from Ms Nikolis, was not received by her until it was hand delivered on 19 September, and in any event the letter was of no assistance in advancing the process in relation to her complaint. However Ms Nikolis said that she "re-livered: the letter because Ms Buric didn't have it. 206 Ms Buric was taken to the Prevention and (MFI 1) Management of Bullying Policy and both the flow chart it contained and the relevant provisions which referred to an initial assessment being made. Having now seen the Policy she did not consider that she would have dealt with the grievance any differently. 207 Ms Nikolis maintained that she was available to meet with Ms Buric any time she wanted. All she wanted was for her to summarise her feelings from a 12 page to a 1 or 2 page and she didn't know how to do that. She thought was very clear what her problem was in 12 pages and it was up to her to summarise that, she didn't know what she was supposed to do. 208 Ms Nikolis said that she was at work all the time and available to meet and queried why they didn't just write her a letter and say come to a meeting, we have to address this. Were they trying to suggest that this was the only issue she refused to go and meet on? 209 Ms Nikolis acknowledged that she received Ms Buric's letter of 13 November (see background and chronology above). She said she found the letter "very odd" because her mobile has a message bank, her home phone number has a message bank and any email, when you send it, it has a record and she had none of them. So for somebody who was trying to contact her on three possible ways, not being able to reach her was really puzzling to her. 210 She also agreed that Ms Buric did subsequently telephone her after receiving her e-mail of 3 December and she agreed that she was told there was no need for an agenda other than discussing the details of the grievance and it would not be a forum for an advocate to represent her. She didn't want to go to the meeting when she was under psychiatric treatment, it was very stressful. She didn't believe she could go by herself and deal with another "bombshell". So she just wanted to know what she was going to come and talk about. 211 Ms Nikolis also acknowledged that Ms Buric was always supportive of her having somebody with her such as a Union representative. 28 August 2007 Meeting 212 Mr Loizou acknowledged that he was the one who told Mr Pillai that he believed that Ms Nikolis was working somewhere else. He had been told this by an out of hours employee under his supervision (Nadia Wheatley) She told him that she had seen Anna working at DSA. They were on the same shift. He did not know whether Nadia Wheatley had approval to work in secondary employment and made no inquiries whether she had such approval. He was not aware of any investigation into Nadia Wheatley. 213 At the time he did not pass on the information as to her name as she said she wanted to have her name kept out of it, but it got to the stage that she went to the Operations Manager and said that she was the one who had seen Anna working at DSA and the reason why was because she was working there as well. 214 Ms Wheatley was a part-time, out of hours, staff member and they were directly responsible to the Operations Manager. Mr Pillai did have supervision over them but they were directly governed by the Operations Manager, Ms McDougall. 215 Mr Loizou referred the information about Ms Nikolis to Mr Pillai when he didn't do so in relation to Ms Wheatley, as the difference was that she was on workers compensation and could not work a day shift with them but she was working at DSA. How could she be working at DSA when she was on workers compensation. 216 He made no attempt to independently verified the information that had been given to him, as he didn't feel that it was his position to do so, he needed to pass it on to his manager who would then take the appropriate steps to pass it on to higher management. He said he passed information on when he found out about it and that would probably have been after January 2007. 217 He was aware that by then a grievance had been lodged but didn't remember the date it had been lodged and was aware that the substance of the grievance was about the alleged conduct of Mr Pillai. 218 He agreed that Ms Nikolis believed that she was being mistreated by Mr Pillai. He did not think it was inappropriate to ask a manager to investigate a possible breach of discipline in circumstances where the manager was the subject of a grievance by the employee. He found that working a second job was on workers compensation was inappropriate. He knew generally that there was a bullying policy, but didn't know the content explicitly. 219 Mr Pillai confirmed that the information came from Mr Loizou and that he brought it to HR's attention. He was also told the same thing by Ms McDougall the Network Manager who didn't want to divulge information about who had told her. Because he didn't want to get involved by ringing up and finding out, he just passed on to HR to investigate. He didn't want to get involved because he had been told to "take a step back". 220 It was HR who suggested the meeting and told him to ask the questions, he assumed that was because he was the Lab Manager. He did not think it was inappropriate at all that he conducted the meeting. He did what Human Resources told him. He also didn't take any steps prior to the meeting to independently verify the information. He was told he wasn't allowed to. 221 Ms Buric deposed that it was in or around May that Mr Pillai contacted her and said he had more information about Ms Nikolis working at DSA and wanted this raised with her when she returned to work. Mr Pillai raised it again after she returned to work and Ms Buric said she suggested they meet with her once she had returned and settled back into the workplace. 222 Ms Buric also indicated that she had received advice earlier in the year from Martin Majewski, the Senior HR Consultant, that he had been advised that she worked at DSA and he had attempted contact to clarify her employment there at the time. 223 Ms Buric acknowledged that she did not enquire as to the source of Mr Pillai's information, investigate the allegations prior to the meeting, or make any independent verification prior to the meeting. 224 Ms Buric also did not consider that it was inappropriate that Mr Pillai conducted the meeting, given the nature of the questions being asked. They directly related to secondary employment. At no stage did Ms Nikolis contact her to say she was not comfortable attending. The HSU representative did not say to her at any time that there was a grievance and you can't go ahead with this. 225 Ms Buric did not agree that as a qualified HR person she should have been aware that the situation had the potential to injure Ms Nikolis' health. 226 Ms Buric acknowledged that Ms Nikolis became upset at the meeting, particularly towards the end and said that she felt intimidated. She thought the concern emanated from the questions being asked rather than the way they were asked. 227 Mr Pillai had prepared headings on a piece of paper from which he asked questions and whilst the meeting was conducted in a formal way, he denied that the process was intended to, or did harass Ms Nikolis. He also denied the analysis contained in Ms Nikolis' diary entry and that his attitude towards her was antagonistic and hostile and that he was arguing with her. 228 Mr Pillai deposed that the record of interview was an accurate record of what transpired at the meeting. In response to his question as to whether she was employed by DSA, Ms Nikolis said no. When he asked if she was employed anywhere else under her current name or any other name, she said no, she was not working elsewhere. A discussion then occurred about whether employment meant active work or being "on the books". His questions related to whether Ms Nikolis was physically working, rather than being employed in some notional way. He wasn't interested in whether she was just on the books, as the tip he had got was that she was actually working there. Ms Nikolis said she had no objections if they contacted DSA to verify this information. 229 During the meeting the minutes also noted that Ms Nikolis was reminded about the section in her letter of offer relating to outside employment, with Ms Nikolis saying she didn't recall this. Ms Buric said she had a copy of her letter of offer and there was such a section and confirmed all SESIAHS letters of offer make specific reference to the Code of Conduct. An employee needed to seek approval from the Chief Executive and via their immediate manager and the Executive Director of SEALS, Professor Wilson. 230 The minutes then note that Mr Pillai referred to the 14 December meeting, where the issue was raised and discussed in relation to the forms and the approval process necessary. Ms Nikolis confirmed that after the December 2006 meeting, she received a copy of the form from Ms Buric. 231 The minutes then note: Ms Nikolis said that Mr Pillai had given verbal approval at the time of her interview. Mr Pillai said that he would never have given verbal approval as he was aware of the Code of Conduct Policy and the requirements for outside employment. Ms Nikolis raised Mr Pillai's affiliation with "Bernie" - Ms Nikolis' referee. Mr Pillai acknowledged he contacted Bernie as a referee which Ms Nikolis had provided. Ms Nikolis referred to Mr Pillai's acquaintance with Bernie and referred to funeral held recently where both he and Bernie attended and Bernie enquired about her. Mr Pillai confirmed that he did attend the funeral. Ms Sewell interjected and advised that even if there was verbal approval, it is hearsay and it is not in writing. 232 The minutes then go on to deal with the issue of other employees in Haematology working outside of the Area Health Service. 233 Mr Pillai recalled Ms Nikolis saying that other people worked in second jobs and hadn't filled out any forms, and she gave information about the times they worked and their rostering arrangements. He indicated that he didn't have any knowledge of anyone working a second job without necessary approval. He was aware of an out-of-hours staff member working in TAFE, but the responsibility for out-of-hours staff lay with the Network Manager, Ms McDougall. 234 He deposed that Ms Buric said she would follow that issue up separately. He was aware that this was done and resulted in a person concerned submitting the required form for approval by management 235 He subsequently arranged for all staff in the Haematology Department to sign the Code of Conduct to ensure that it was reiterated to all staff that secondary employment required consent from management at SEALS. To his knowledge all staff signed a copy of the Code of Conduct, returned it to him and he sent them to HR. He had no further involvement with the issue. 236 Ms Nikolis deposed that at this meeting Mr Pillai's attitude towards her was antagonistic and hostile and she immediately became defensive. They were arguing about whether she had requested his permission to do her second job and whether she was simply on the books for DSA or regularly working. 237 The only conversations she had deposed to related to other people working in second jobs and not filling out forms. 238 Ms Nikolis's diary entry for 28 August, concerning the meeting, only noted in relation to secondary employment as follows: .................................... He engages me in a verbal duel. I am appalled by his lying about knowing and giving his consent verbally when I started, about him making issue of it only after I formally complained against him........... 239 Ms Nikolis did not agree that this meeting was the first time she had said that she had Mr Pillai's approval from the beginning to work at DSA. She had said that at the December meeting. The minutes were wrong. 240 Ms Buric acknowledged that the only reason she had to refute Ms Nikolis saying she was only on the books was the information provided to her by Mr Pillai. 241 However Ms Buric also gave evidence that after the meeting had concluded, and following the brief meeting she had with Ms Nikolis and Ms Sewell about the grievance, she returned to her office and walked back up to Haematology with the appropriate form because Ms Nikolis had asked for another form. She saw her outside in the corridor and she admitted to her that she did have ongoing employment at DSA at the time. She was concerned because she had physically worked at DSA during her employment with SESIAHS. Ms Buric couldn't recall the exact terminology she used in speaking to Ms Nikolis but she remembered saying "was it from our last meeting of 14 December 2006 and she just said it was somewhere around there." SESIAHS investigation of secondary employment and procedural issues. 242 Following the 28 August meeting, Ms Buric contacted DSA on about the 3 September and spoke to a person called Kristian, who she understood was an accountant and maintained the records. She deposed as to the following conversation: Me: "I have been told by Anna Nikolis that she was employed by DSA and had worked there in December 2006. Is that right? Kristian: " No, she has not worked at DSA." Me: "Are you sure? How about under her maiden name? Or as a contractor or in some other capacity?" Kristian: "No, no matches" Me: "But how is it she said she worked there in December but you have no record?" Kristian: "I'll check with my manager Peter" He then left and returned to say: Kristian: "Yes, turns out she was employed here, but her last shift was in September or October 2006." Me: "Could you please verify and call me back with the precise date." 243 Kristian called her back later and said that her last shift was on the 31 October 2006. 244 Ms Buric then sent the 4 September letter to Ms Nikolis attaching the minutes and asking her the two specific questions about her employment at DSA (see background and chronology above) She never received a reply to those questions from Ms Nikolis. 245 It was Ms Nikolis' evidence that she did not reply to Ms Buric's letter because of her mental state. She said she was "beyond herself", could scarcely eat, could not sleep and could not function. She wasn't even able to take care of her children and had shifted them to her mother. She had separated from her husband, lost her job and no-one was doing anything about that and she felt on her own and suicidal. She was seeking treatment at the time. 246 Ms Buric gave a copy of the file note she made of the conversation she had with Kristain to Mr Pillai and discussed the conversation with him. 247 Ms Buric subsequently also had a conversation on 18 September with Ms McDougall, the Operations Manager, in which she told her that she was aware that Ms Nikolis had worked at DSA on Friday 14 September 2007. She then discussed that information with Mr Pillai who suggested to Ms Buric that she call Dr Jana. 248 Mr Pillai also deposed that the information from DSA did not accord with what Mr Loizou had told him and he could recall Ms McDougall also telling him Ms Nikolis had worked at DSA, but could not recall when this was. 249 Mr Pillai was present during the phone call to Dr Jana (on a conference line) and he made the notes of the conversation. He said his notes were an accurate record of the conversation. 250 Ms Buric deposed that following introductions the following conversation took place: Me: "Do you know if Anna Nikolis is working with DSA?" Dr Jana: "Yes, she is." Me: "Can you recall when she last worked there and was she there on Friday, 14 September 2007?" Dr Jana: "I am a pathologist and I have an accountant who pays the wages." Me : "I have spoken with Kristian and he told me that she was last employed on 31 October 2006." Dr Jana: "why would he say such a thing? She is still employed. Why do you need to know this information?" Me: "We have information that Ms Nikolis has been working there whilst claiming to be on workers compensation." Dr Jana: "I will make enquiries and call you back." Dr Jana called her back around five minutes later and said: "Anna is working for DSA for two evenings each week. I am going to follow up with Kristian to find out why he withheld information and who told him to do so." 251 Ms Buric also confirmed that she subsequently received some email communication that Debra Wise, the workers' compensation investigator, had had with Dr Jana. Whilst he was asked to supply records about Ms Nikolis's employment he had only supplied a response. 252 Ms Buric was taken to that email exchange and she agreed that Dr Jana was wrong in the dates and that a fairly cursory glance of his response would tend to suggest this. 253 She agreed the dates were wrong saying ..."but the systems had changed apparently with DSA, the two systems had changed and in my documentation which I've submitted, Ms Nikolis in her résumé, as well as everywhere else, has been putting down that she's been working at DSA since 2005 and she is put that in her records to us, but the confirmation from them is that she started there from 2006, I think August 2005." They were trying to justify and get in their mind a clear understanding of when she started. 254 Ms Buric agreed that the résumé said August 2005. That wasn't the issue. Their question was whether she was working during her employment with St George, not before. 255 She acknowledged that at the August meeting Ms Nikolis sought to distinguish whether they meant on the books or actually working there and she said she wasn't physically working there. 256 Ms Buris maintained that that was two different things. There was no determination made then that she was lying, that was why they had asked her in the meeting if they could contact DSA to verify that information. She made no assumption at that time and it wasn't until after the meeting that she caught her in the corridor and she actually admitted to her that she worked at DSA. 257 Ms Buric did acknowledge that Ms Nikolis was dismissed because she was dishonest when she was questioned in August 2007. She lied to them on two occasions. The main evidence was Ms Nikolis letting her know she was working and she also acknowledged in one of her letters that she was working at DSA and put the period of time and gave in her termination or resignation to DSA in September 2007. 258 Also Ms Nikolis did not respond to the two specific questions asked of her in the letter of 4 September 2007. She ..."tied it all up into a document on 14 December but she was still not responsive to the two questions". 259 Ms Buric initially refuted the suggestion that they were relying on Dr Jana's records in saying that Ms Nikolis was lying, however she subsequently agreed that she was relying on the information from Dr Jana. He was the General Manager, a Director and she would have thought his word would have been valid. He was able to determine that she continued to work 4 hours per shift, twice a week. She agreed that she didn't ever test his assertion. 260 Ms Buric agreed that in her internal briefing document recommending termination (Exhibit 17) that the reference to "documentation has been provided which supports the view that Ms Nikolis has been dishonest and has mislead the Area Health Service in matters concerning her secondary employment," meant Dr Jana's information. That was the only documentation upon which she was relying. 261 Ms Buric maintained that whilst the dates may be inaccurate they were still valid for the time she worked with them, they coincided. 262 Ms Buric confirmed that she followed up on the information that Ms Nikolis had provided at the meeting about other employees working at DSA, and she made inquiries as to whether those employees had submitted requests for secondary employment, by contacting the Operations Manager to ask about the staff. A memo was also sent out to all SESIAHS staff, particularly in haematology, in relation to the Code of Conduct, and with the form for outside employment, to let staff be aware that they were all acquired under the policy, if they had secondary employment, to fill in this form. 263 She agreed that other staff had in fact had second jobs without filling in the form but did not conduct investigations into the conduct of those other staff because they filled in the paperwork after it was brought to their attention. She also agreed that the mere fact that someone had secondary employment and hadn't filled out the form was not grounds for termination because a lot of times people weren't aware that they were required to fill in the form, particularly staff who had been at there for a long time and may not be aware of the policies. It was the manager's responsibility to let them know and sometimes people took up second jobs not knowing that was what they had to do. Ms Buric also agreed that in the case of one of the staff members in question, they thought they only had to fill out the form if there was a conflict of interest, and she let them know that it wasn't what they thought but the policy, and this was what was required to be done. They were not disciplined over this. 264 Ms Buric acknowledged that when she sought approval to terminate she was effectively seeking to terminate for misconduct and that an investigation of misconduct should follow the disciplinary process of the Health Service. 265 She said they met with Ms Nikolis on two occasions and both times she denied having secondary employment. Whilst neither meeting was a disciplinary matter, both times they let her know that this was Area Health Service's Policy and actually provided her with the appropriate forms to fill in and she did not fill in those forms. She had also acknowledged in one of her documents that she was handed the form by Ms Buric in December 2006. 266 Ms Buric was challenged on whether she thought it was reasonable to have conducted a thorough investigation into the allegations when terminating employment on the grounds of misconduct. She responded that they contacted Ms Nikolis, they wrote to her and asked her to show cause why they shouldn't terminate her on the grounds of misconduct, so they spoke to her at that time. Ms Buric acknowledged that she responded to that. 267 Ms Buric agreed that in the August 2007 meeting Ms Nikolis made some assertions that she had disclosed this to Mr Pillai back at the interview. Whilst Ms Buric agreed that she was obliged to check out all the information she did not interview anyone who sat on the interview panel. 268 Ms Buric maintained that her story changed saying ...."initially the story was that I'm not working anywhere else and at both meetings, although she said at the August meeting that she was on the books, which I don't except as - on the books could mean anything, you know, physically she said she wasn't working there, to later on when she let us know it was, I am now working there and I have been working since this time. So she took a different stance from not working to working". 269 Ms Buric denied that she was under pressure from management to terminate her employment. She had actually spoken to her superiors in relation to which direction they were a required to take and sought direction. 270 Mr Pillai said that because the Blood Bank was a very critical department and they were short staffed, he kept ringing HR to see what it was they could do about it. They were taking part timers to fill in positions here and there. He spoke to both Ms Buric and Mr Majewski and also had correspondence with Trevor Cobain. He said Ms Buric might have mentioned that she didn't want to come back to haematology. 271 He acknowledged that in his 6 February 2008 email to Mr Majewski and Mr Cobain raising his concern about the ongoing situation, he also said .... "Maria had previously said that no matter what, Anna will not be back in Haematology at Kogarah...." She had said something like that because it was untenable, she had a complaint against him so she can't work with him in Haematology but she didn't mean Haematology at the main lab. Whether she would be working in any other place in the organisation was a different story. 272 Ms Buric agreed that Mr Pillai was contacting her and had staffing issues and she told him he could appoint someone on a temporary basis. She could not recall saying to Mr Pillai ...." Ms Nikolis will never be going back to haematology....", or words to that effect. She couldn't recall that conversation but she may have said that. It was also on the basis of her discussion with Ms Nikolis when she asked if she would consider transferring to another location. Ms Buric also indicated that ..."well with their relationship, you wouldn't expect that them two would be able to - that was my assumption." 273 Mr Pillai also indicated that he was not interviewed by HR about the issue of Ms Nikolis' secondary employment during this period. 274 Ms Buric was also taken to the email she sent to Ms Sassu on the 17 June 2008 (Exhibit 19). She clarified that Trevor Cobain was the Operations Manager at SESIAHS. She also agreed that the email reflected her views about the matter at that particular time. She also understood that Mr Cobain wanted Ms Nikolis to be terminated because she was dishonest to the Area Health Service about her secondary employment. 275 Ms Buric also indicated that the basis of the allegation contained in the "show cause letter" of 15 September 2008 was her denials of working at DSA in the two meetings (14 December and 28 August), her conversation with Ms Buric in the corridor after the 28 August meeting where she disclosed she had continued to work at DSA, Dr Jana's information, and what she said in her 14 December 2007 letter. There was a shift of position from not working at DSA to now working there. 276 Ms Buric also agreed that nowhere in the letter from Turner Freeman on behalf of Ms Nikolis responding to the "show cause" letter were the specific allegations dealt with. 277 Ms Nikolis said that after she sent her letter of 14 December 2007 to Ms Colbert, she was not interviewed or contacted in any by anyone from SESIAHS until she received her termination letter from Mr Clout. It was as if she never existed. Submissions for the Applicant 278 Ms Ryan submitted that the authorities have established that the onus is on the employer to prove that misconduct took place (see Simmons and Rockdale City Council [2006] NSWIRComm 1010 and New South Wales Fire Brigade Employees' Union (on behalf of Natoli) v New South Wales Fire Brigades [2005] NSWIRComm 440). Where misconduct cannot be established then prima facie the dismissal was unfair, however the onus then swings back to the applicant to show that the dismissal was harsh, unjust and unreasonable. 279 It was the applicant's primary submission that the alleged misconduct did not occur. If the Commission was against the applicant on that submission then it was argued that the dismissal was harsh, unjust and unreasonable. 280 In considering the issue of misconduct, reliance was place on the four questions posed by Sams D P in Natoli at p.218. 281 Firstly, did the misconduct occur, with the starting point being the reason for dismissal. This was set out in the letter of 15 December 2008 which indicated that: "You have been less than open and frank in disclosing your outside employment and did not follow the correct procedure to obtain approval. Your failure to inform the Area Health Service of your secondary employment is a serious breach of the SESIAHS Code of Conduct. As a result, I have decided to terminate your service effected immediately." 282 The allegation leading to dismissal was of a failure to disclose. The relevant evidence of the applicant in relation to the specific points in time was summarised as follows; · She disclosed the position with DSA in her job application, at the interview for the position, and during her period of orientation after being given the position; · In the meeting of December 2006, she neither lied about it nor failed to disclose it; · In the meeting of August 2007, she neither lied about it nor failed to disclose it; · In the interview of October 2007 by the workers compensation investigator, she neither lied about it nor failed to disclose it; · In correspondence to the Area Health Service on 14 December 2007, she neither lied about it nor failed to disclose it, and · Twelve months later in 2008, through Turner Freeman Lawyers, she neither lied about it nor failed to disclose it. 283 It was not possible for the applicant to be more frank and open than by stating in her application that she had a second job at DSA and also giving as a referee Mr Bernie Wendelin her supervisor at DSA. Mr Pillai knew Mr Wendelin and it was common ground between the applicant and Mr Pillai that they had a conversation about Mr Wendelin during the interview. The evidence of Ms Smith and Mr Loizou was not only slightly inconsistent with the applicant, but also with Mr Pillai. No records were kept of the interview and the applicant was very certain about the conversation and that she had raised her ongoing employment squarely with Mr Pillai. She was also firm in cross examination on this point. During her 16 years employment in various health services it was her evidence that she had always had more than one job, she had a family to support. It was logical for it to be something she would ventilate when considering taking a new position. 284 Further the evidence of both Mr Pillai and Mr Wendelin as to the subsequent phone contact established that the context was that the applicant was actively at the laboratory and working. 285 During her orientation a conversation took place between Mr Pillai and the applicant during a walk to the HR building (a 5 minute trip each way), the evidence of Mr Pillai speaks for itself where he agreed he may have said - "How's Bernie going?" This was consistent with the applicant's recollection as set out in her diary note. In raising the issue again the applicant was certainly of the view she was being frank and had done anything she was required to do in relation to the disclosure of secondary employment. 286 It was important to note that neither during the interview, immediately afterwards, nor in the first few months of her employment, was the applicant given any kind of instruction or form about disclosing secondary employment by Mr Pillai. 287 By the December 2006 meeting, six months into her employment, the relationship between the applicant and Mr Pillai had seriously deteriorated. They came into conflict essentially during the probationary period over issues around punctuality and attendance. This caused friction and the applicant felt unfairly targeted. By the time of the meeting in December 2006 things that become so bad the applicant had been treated for a couple of months by her GP and there is a medical report in evidence. She then caused a grievance to be sent to her employer on 8 December. 288 It was accepted that there were some discrepancies on the evidence as to when the grievance was received and processed and Ms Ryan acknowledged that it couldn't be explained why a grievance apparently sent by express post on 8 December was not received until 10 days later. However the applicant believed when she walked into the meeting of the 14 December that the respondent was on notice of it and that was important as to her state of mind from this point on, because she felt, not unreasonably, that the meetings were a direct response to her complaint about Mr Pillai. 289 The applicant's diary entry was a contemporaneous account and documented her state of mind at the time. It was evidence of her recollection of the meeting. It was common to the three participants in the meeting that there was a discussion of the overtime roster and that if she was not on the overtime roster then she could work elsewhere, having sought approval. 290 The applicant unequivocally said in cross examination that she never denied working for DSA. She said her last shift was in October 2006 but she was still on the books, but officially worked her last shift in October. So between October and December she didn't work any shifts but she was still employed. She intended to leave the job if she got overtime. She was not on the overtime roster for the 2007 which was why she had brought it up and it was to be looked into. If she was put back on the roster then she could continue and then she would need the written approval to seek employment elsewhere but they never got to that stage because she had the car accident and never went back to that work. 291 It submitted that the evidence of the applicant was given in a forthright manner and was logical and credible. She was quite clear about how she answered the question and she had no reason to deny her employment with DSA at that point in time because as far as she was concerned Mr Pillai knew about it. 292 If there was any inconsistency in the evidence of the parties who were present at the meeting, it was best explained by looking at what happened at the 28 August meeting and it could be seen by that stage that the parties explored the issue further and they realised that they may been talking about two different things. 293 In terms of the information on which the respondent was apparently relying in its December 2006 meeting, the evidence was that Ms Buric said it came from Mr Pilla, he said it came from Mr Loizou, who said in turn that it came from an employee working the same double shifts as the applicant. It was never properly explained by the respondent where the information came from and there was no evidence of any independent inquiry or examination. They were satisfied with the applicant's answers at that time. They didn't have any credible evidence to prove that she was lying. 294 The evidence was that she stopped working for DSA in October 2006. That was consistent with the information given to Ms Buric by Kristian, the Accountant and record keeper at DSA, who said her last shift was 31 October 2006. It was also consistent with the applicant's tax records which were summonsed and tendered in evidence. 295 There was no credible evidence adduced to show that misconduct occurred at this meeting. The only material on which the respondent was relying was the material from Dr Jana. 296 In relation to the discussion at the December meeting about the approval process, it must be kept in mind that in early January the applicant was involved in a car accident which kept her away from work completely for about six months and those discussions possibly were not in the forefront of her mind when she was at home recuperating. 297 By the time of the August 2007 meeting, there was no doubt that Ms Buric was aware of the content of the applicant's grievance and it was submitted that it raised serious allegations against Mr Pillai. Whilst he hadn't seen the content of the grievance he was aware of its existence and its general nature and said that Ms Buric had, by this stage, told him to take a step back in his dealings with the applicant. Despite this, he was allowed to question the applicant during the meeting. Ms Buric made no enquiry as to the source of his information nor its reliability before she allowed this "inquisition" to occur. 298 The parties were in substantial agreement about what was said in the meeting, that is, that the applicant was asked if she was employed by DSA and she said, no. The Union representative sought clarification as to whether that meant physically working or on the books and Mr Pillai said physically working. The applicant acknowledged she was on the books as an interpreter (but hadn't been called up in a couple of years) and DSA and then agreed they could contact DSA to verify this. She also said during this meeting "I told Sudha about this when I was interviewed for the position and he approved it". The applicant raised the issue of other employees also working second jobs, which was flatly denied by Mr Pillai, with subsequent enquiries in fact bearing that out to be the case. 299 The evidence concerning the inquiries of Dr Jana was based on the telephone conversation and the email exchange with him. This was critical information. It was obvious that the information Doctor Jana gave the respondent was quite clearly and obviously wrong. For example, he said that the applicant started with him in August 2006. That was clearly wrong because DSA were nominated as referee in her job application in May 2006, with the reference check disclosing that she had been there 12 months at that time. The investigator realised that this was wrong and almost immediately shot back reasonable inquiries (any interruptions, correct start date, regular shifts). His reply was unhelpful and he didn't participate further in proceedings and was not called give evidence. 300 Nine months later, in June 2008, Ms Buric sought to terminate her employment stating in her memorandum that she was in possession of documentation showing the applicant had been dishonest and had misled the Health Service. When pressed, she admitted that the documentation that was being relied on was the email from Dr Jana. 301 However at the time of the August 2007 meeting the applicant was saying that she was not working there, she hadn't worked there, but she might still be on the books. There was evidence from Mr Wendolin that his recollection was that she wasn't there after the car accident and the car accident occurred six months prior to the August meeting. Yet the respondent insisted that she was lying at this point, on the basis of the documentation which was from Dr Jana, and which was wrong. 302 Soon after the August meeting the applicant stopped working and there was medical evidence verifying that she had a psychiatric disorder at that time with proceedings in another jurisdiction concerning that. There were 17 months between the meeting in August 2007 and her dismissal in December 2008 and during that time the applicant was suffering quite a serious disorder. There was detailed evidence given in the Workers' Compensation proceedings concerning her very serious symptoms. It was submitted that she was very unwell in that period. 303 There was one letter of inquiry within that period that she didn't respond to, that was admitted. But it was submitted that this was highly unusual for the applicant and out of character and possibly attributable to the symptoms she was suffering at the time. 304 The letter from Ms Colbert in November 2007 indicated that in both meetings she had denied being engaged in any form of employment outside the Area Health Service. That was simply wrong. The minutes of the this meeting established that assertion as factually incorrect because of distinction drawn and not only did she talk about DSA, she talked about the interpreting service position. That letter put forward the period of employment as one being supplied by Dr Jana. The applicant gave a very detailed and lengthy response in December 2007 giving a very clear and detailed account of her employment with the Health Service and DSA. That account was entirely consistent with what has been put in evidence in these proceedings and consistent with the various statements she has given during the entire course of this inquiry. 305 They did not take that information back to Dr Jana nor did they interview anyone present during the interview process, nor did they interview Mr Pillai. It is not known what they did with the information, but inexplicably nine months later, they issueed a show cause letter to the applicant simply reiterating matters, it was submitted, that she had answered quite squarely in her letter of 14 December 2007. 306 The show cause letter was responded to by Turner Freeman Lawyers which again said that in the applicant' view she had made full disclosure of her employment and had not therefore engaged in misconduct. In spite of this there was a letter of dismissal of 15 December 2008, some 12 months after the applicant's detailed explanation of 14 December 2007. There was no evidence from Mr Clout, the decision maker, and we could not speculate about the conclusions he had drawn in reaching the decision to terminate. The request to terminate from Ms Buric was based on the documentation, being the email from Dr Jana, which was wrong. The applicant was honest, she did not mislead and she had not engaged in any serious or wilful misconduct. 307 In relation to the Code of Conduct, and the evidence that the applicant's conduct constituted a breach of that Code, there was nothing in the Code that specifically required written approval. It was submitted that the real focus of the Code of Conduct was in avoiding conflicts of interest. There was no suggestion that the applicant's second job presented a conflict of interest or that it interfered in any way with her work for the Health Service. 308 It was further submitted that it was not an offence per se to have a second job. It came out in the evidence arising, from the August 2007 meeting, that other employees had second jobs. Not only that, but they had second jobs without having put in their form. It came out through Ms Buric's evidence that they only thought they had to fill in a form if there was a conflict of interest. Those employees were not investigated, as far as it was known nor were they subjected to any disciplinary processes. It was the evidence of Mr Loizou that other St George employees held positions at DSA. He was told this by one particular employee but he did nothing about that other than to pass the information on, noting she wanted to be kept out of it. It was submitted that of course she would want to be kept out of it if she had some kind of perception that she was doing wrong, she was not subjected to any scrutiny at all from Mr Loizou. The respondent sought to draw distinction between her as a part-time employee, but as Ms Ryan read the Code of Conduct, a part-time employees still had to make a disclosure, although there was no formal requirement about filling in the form. So it was not known if that was a distinction that applied to full-time or part-time employees. 309 It was submitted that another unusual point of Mr Loizou's evidence was that he sought to justify the fact that he singled out the applicant because she was on workers compensation at the time, but these matters were first raised with her at a meeting in December, well before the car accident so she couldn't have been on workers compensation at that time. That excuse from him what was either a significant error on his part or a nonsense. 310 It was also submitted that when this information about the applicant was brought to Mr Loizou's and Mr Pillai's attention, no one checked whether she had ever been given the necessary forms, yet part of their roles was to supervise her, in both a technical and an administrative sense. It would have been logical for both, or either of them, to simply have spoken to the applicant about that. There was no benefit of the doubt given whatsoever, it was escalated to HR and raised formally in a meeting. This was inconsistent treatment and unfair. 311 It was submitted that the applicant's relationship with her superiors was affected by this stage, and this contributed, in part, to the decision of both Mr Loizou and Mr Pillai to raise the allegation formally in a meeting rather than simply asking her the question. 312 The mere fact of having a second job was not grounds for dismissal and certainly wasn't when other employees were concerned. The real issue appeared to be the apparent failure to obtain the approval of the executive or the delegate and the applicant honestly believed that she had the approval arising from her application and the interview and induction process. 313 The applicant said she wasn't aware of any additional requirement about a form until the December meeting and her evidence was that soon after that she was completely distracted because of the car accident and was off work the six months. She was working not at DSA, or indeed St George, in that period, and there was no evidence to suggest otherwise. It simply became a non-issue to her from that point onwards. 314 It was the applicant's primary submission that the respondent could not discharge its onus and prove that she had engaged in misconduct. It could not prove that she had lied or failed to disclose her second job. At worst it was submitted that the applicant failed to fill in the form when she said she didn't know about the requirement to fill in the form until December, when she wasn't working anyway. She thought she'd be giving up the job in order to take up overtime and then she had the car accident. She was asked again in August 2007, when she admitted she was still on the books but not working, and there was no evidence from any person to prove otherwise. There were others who failed to fill in a form and were not sacked, tending to suggest that the act of not filling in the form does not by itself constitute misconduct. 315 Returning to questions posed in Natoli, it was submitted that the seriousness of the conduct did not justify summary dismissal and it did not constitute a fundamental and wilful repudiation of the contract of employment. 316 There was no evidence from the decision maker, and no formal investigation. Despite the applicant raising in August and December 2007 that she disclosed the DSA job at interview, no one from the interview panel was ever asked about that. The source of information about DSA was never scrutinised or put squarely to the applicant. Other employees apparently still working at DSA were not treated in the same manner as the applicant. The only documentation relied on by the respondent was the email from Dr Jana which was wrong. When the respondent said the applicant lied, they were comparing what she told them in an interview, to untested source material from unnamed employees and an email from Dr Jana that is wrong and unhelpful. 317 The investigation was flawed and unfair. By August 2007 the respondent was well aware of the seriousness of the grievance lodged by the applicant about Mr Pillai and were aware of medical certification that this was affecting her health, yet let him lead the investigation. It was submitted that this was highly inappropriate and destroyed any sense of impartiality in this investigation. 318 There was also the period of 17 months between the August meeting and dismissal. A period during which Mr Pillai was very anxious about replacing the applicant, agitating about having a vacancy to fill and reporting a conversation with Ms Buric to the effect of - "no matter what, Anna will not be back in haematology at Kogarah". By June 2007, management communicated to Ms Buric that they wanted her terminated. It was submitted that the significance of this is that they indicate a high level of motivation to terminate the applicant's employment for whatever reason. This was premised on her absence from the workplace and it was submitted that the respondent was motivated to terminate her employment because of difficulties her prolonged absence was causing. 319 It was submitted, applying the fourth question in Natoli, that the following mitigating factors should be taken into account in considering whether the respondent had discharged its onus and in considering the question of unfairness. 320 The grievance lodged by the applicant was significant because she was legitimately aggrieved by the conduct of her supervisor and perceived, due to timing, that these allegations were raised in direct retaliation. Whilst it was not an unreasonable assumption to be made at the time, it transpired that that apparently wasn't the case. It was unfair for the subject of the grievance to be interviewing the applicant in August 2007. That tainted the investigation. 321 There was evidence about the misunderstanding between the applicant and Ms Buric about progressing the grievance. Whilst the policy in a very technical sense, allowed Ms Buric to take the course she did, it was submitted that with the benefit of hindsight, it turned out to be the wrong approach and other steps should have been taken in order to protect the applicant and prevent further damage or injury in the course of her employment. One of those steps would have been to disallow Mr Pillai to participate in the disciplinary process ultimately leading to her dismissal. 322 The applicant's psychiatric injury was also a relevant mitigating factor to be taken into account. It was reported by the end of 2006 and escalated during 2007 to the point that she was off work by September of 2007. It had been determined in the Workers' Compensation jurisdiction that the injury was caused by the applicant's perception of harassment in the workplace, a relevant test adopted by the Workers Compensation Commission. 323 It was submitted that the following procedural deficiencies should also be taken into account when considering the unfairness of the process: · There was no prior warning that the content of the December 2006 meeting would include questioning, without notice, about secondary employment. There was no formal investigation. · There were no factual accounts or sources put to the applicant. What was put to the applicant in correspondence was often inaccurate. · There was inconsistent treatment with other employees about how information was relied upon. Information was relied upon without being scrutinised or tested in any way with assumptions made that the applicant was lying in spite of glaring inaccuracies in relation to the information relied on by the respondent. 324 Ms Ryan referred to, and relied upon, the three-pronged test found in Byrne v Frew and submitted that of the matters so outlined were applicable in this case. 325 On the evidence, the dismissal was unjust, because the applicant was not guilty of the misconduct upon which the employer acted. It was unreasonable, because was decided upon inferences which could not be reasonably drawn from the material before the employer. It was harsh in its consequences for the personal and economic situation of the employee or because was disproportionate to the gravity of the misconduct. It was further submitted that the Commission could find that either this termination was all the above, or any one of the above, to find that it was unfair. 326 In relation to remedy, it was submitted that there was a long line of authorities establishing that reinstatement was the primary remedy. The second remedy is re-employment and only the third is compensation. Only if reinstatement and re-employment were impracticable would compensation be considered. 327 In terms of reinstatement, after considering the authorities and the evidence, particularly the applicant's second statement, it was conceded by Ms Ryan that the applicant was not seeking reinstatement, because she didn't think she could work with Mr Pillai until these matters were resolved. She was seeking a return to the Health Service. In this regard reliance was placed on the decision of the Full Bench in Carlton and United Beverages Limited and Philip Brunt [2006] NSWIRComm 98. 328 If the Commission were to find for the applicant, to avoid a re-employment order the respondent would have to show that re-employment was impractical, not inconvenient or undesirable but impracticable. There had been no evidence adduced to that effect in these proceedings. 329 Further, it was submitted merely because the applicant was in receipt of workers' compensation benefits in relation to a legitimate workers' compensation injury as determined by presidential member of the Workers Compensation Commission, that was not an impediment to a return to work. 330 If the dismissal of the applicant was found to be unfair for any of the reasons outlined, she ought not to be disadvantaged because merely at the time of dismissal she was suffering from an injury. If the unfair dismissal was taken out of the situation she would have had the rights and obligations arising from the Workers Compensation and Workplace Injury Management Act 1998. The respondent would be required to provide a return to work plan and suitable employment. The applicant ought not to be disadvantaged. Reliance was placed in this regard on Brunt and also Riley v WorkCover Authority (NSW) [2006] NSWIRComm 108. The mere fact that she was injured at the time she was dismissed on other grounds ought not preclude her return to work. 331 Such a return to work could be effected immediately or within 28 days, subject to a return to work plan. 332 It was also submitted, that in terms of compensation, this should be made either, in addition to re-employment, or as an alternative. The dismissal was carried out more than six months ago and the applicant had been out of work since that time. Although she had order for the provision of workers' compensation benefits, as at the date of the hearing she had not received that. The order was significantly less than her lost earnings would have been. Ms Ryan referred to the calculations done by Mr Sullivan and the figure of $14,400 being the difference between her ordinary earnings and the workers' compensation benefits she will receive. Submissions for the Respondent 333 Mr Sullivan tendered written submissions (Exhibit 20), together with a summary comprising seventeen (17) specific "Contradictions of the Applicant's Evidence" (Exhibit 21). Both documents contained references to relevant sections of transcript. 334 It was submitted that this was a case that largely turned on who was to be believed. The applicant had brought the case based on a number of propositions, some of which could only be determined by deciding who was to be believed as between the applicant and the respondent's witnesses. However, other propositions could be determined by examining the totality of the evidence. It was contended that this was the key to the matter. There was so many assertions of the applicant that were contradicted on the evidence, that where there was a conflict between what was said by the applicant and what was said on behalf of the respondent, the applicant was not to be believed. The applicant's propositions were outlined as follows: a) She told Mr Pillai and Mr Loizou in her interview (26 May 2006) that she intended to continue working part-time at DSA; b) Mr Pillai indicated his consent at that time for her to do so; c) On the first day of employment (19 June 2006) she repeated this expression of intent; d) Mr Pillai again gave his consent; e) Mr Pillai knew that he had given his consent, but nevertheless pursued this issue of unapproved secondary employment; f) Mr Pillai did so because she had lodged a formal complaint of workplace bullying and discrimination against him; g) Ms Buric took no steps to investigate a formal complaint, but instead aided Mr Pillai in his victimisation offer, ultimately leading to her dismissal. The applicant alleged in paragraph 3 of the attachment to her Application that "the real reason motivating her dismissal is that she has made serious allegations of victimisation and discrimination about the conduct of her manager, Mr Pillai. The allegations are particularised in the attached correspondence from Turner Freeman." (The 24 September 2008 letter - Exhibit 16 - U). Entry into employment 335 The conflicting evidence as between the applicant and the respondent concerning the interview were referred to and summarised. 336 It was submitted that the independent accounts of the interview given by Mr Pillai, Mr Loizou and Ms Smith were persuasive in contradicting the applicant's assertion that she not only disclosed her intention to continue to work at DSA but that was consented to by Mr Pillai. 337 Mr Pillai did not deny that he was aware that the applicant had been working as a casual employee at DSA, it was mentioned in her résumé, but he had no reason to believe, and did not turn his mind to the possibility, that the applicant would be continuing in that role. The applicant conceded in cross examination that the résumé did no more than state that she was working. 338 Apart from the respondent's evidence about what was said during the interview, there were two reasons why this evidence was to be preferred over that of the applicant. Firstly, Mr Pillai conducted a reference check with Bernie Wendelin at DSA and nowhere in his evidence did he suggest that he told Mr Pillai that he understood the applicant would be continuing in employment with DSA. Secondly, and most critically, the applicant's Letter of Offer (31 May 2006) made it clear that the respondent's Code of Conduct requires an employee who wishes to engage in paid employment and/or other business activities outside their official duties with SESIAHS to seek approval of the Chief Executive, via the Executive Director/Director of the facility where the employee is based. 339 It was submitted that in the light of this requirement, it was perfectly reasonable for Mr Pillai to assume, in the absence of approval being sought, that the applicant would not be continuing part-time employment with DSA. The onus was on the applicant to take steps to obtain consent, rather than for Mr Pillai to make assumptions about the intention of the applicant. 340 The applicant's response was that she could not recall receiving the letter of offer, however as she signed it on the 5 June 2006, this contention was not sustainable. This response was a consistent theme to the applicant's evidence - she asserted that either a document was not received by her, or was sent by her although not received by the respondent, if it would assist her case. 341 In relation to questions asked of Mr Pillai and Mr Loizou as to their failure to raise the issue of secondary employment with DSA at the interview, the question to ask was - "why would they?" This was an interview with a candidate for a position. If successful she was to receive a letter of offer which stipulated an obligation to disclose and to obtain consent. The suggestion seemed to be that because they should have raised the issue, they must have done so. That argument could not be accepted. Alternatively, it was intended to imply criticism of Mr Pillai and Mr Loizou, and there was simply no reason for any such criticism to be raised. Orientation and probationary period 342 The conflicting evidence between the applicant and Mr Pillai concerning the conversation during the first two days of her employment was referred to and summarised as was relevant evidence concerning the probationary period. 343 It was submitted that the applicant's account of the discussion was not to be believed. Having regard to the respondent's policy in connection with outside employment it was firstly, inconceivable that Mr Pillai would have accepted that the applicant need not fill out the form and, secondly, the applicant gave no believable account for why she should ask these particular questions, given her allegation that the consent was given for her to continue working at DSA during the interview. At the least the applicant's account about her question about needing to fill in the form, is suggestive of her knowledge that this was a requirement. 344 During Mr Pillai's cross-examination about the conversation he denied saying - "say hi to Bernie" - and could not recall if he asked "how's Bernie going". The latter remark, if made, did not imply knowledge on his part that the applicant was still working at DSA. She had been interviewed only a couple of weeks earlier and one might expect him to ask about an old acquaintance. In any case the applicant did not give evidence that Mr Pillai said any such thing and there was no evidence before the Commission that he did, he did no more than not dismiss the possibility. 345 The applicant's reliance on the diary entry for the 19 June 2006 was "extraordinarily self-serving" and just too convenient. This evidence was that on the first day of employment she recorded, in direct speech, a conversation that went to the major issue in these proceedings. If it were to be accepted that she did so contemporaneously, it could only be because she was concerned to produce a record that Mr Pillai knew of her continued employment at DSA. In that scenario she must have known that non-disclosure was an issue to be concerned about, which cast enormous doubt over the correctness of the notation. 346 In relation to the meeting of the 6 September 2006, reference was made to the offer suggested by Ms Buric, and accepted by Mr Pillai, for the applicant to vary her hours of work which was not accepted by the applicant. The offer was made because it was thought family responsibilities may have been making it difficult for the applicant to attend work on time. The applicant initially denied that this occurred, but was then forced to concede it was because of the signed record of the meeting. 347 It was also observed, in relation to the substance of the allegations made by the applicant, that she signed the "Performance Management Probationary Period Form" on 15 September 2006, in which she stated: "Love working here, learned and improved skills, Great Department, Great was. Grateful for everything" That comment was made after many of the events alleged in the applicant's complaint were said to have occurred. She attempted in her evidence to characterise these comments as relating to Mr Loizou and the Blood Bank Department. That distinction was not credible as Mr Pillai was party to the probationary review and has been characterised in her allegations as the ultimate manager. 348 The evidence also indicated that prior to the 14 December meeting 2006, Ms Buric considered whether an offer of part-time work for a period might assist the applicant in balancing work and family commitments. These were an attempts by the respondent to understand what the problem was in terms of the applicant attending for work punctually and without excessive sick leave. The record of meeting confirms that the applicant was not interested in accepting that proposal for financial reasons. 349 It was submitted that if, as suggested, Mr Pillai was "out to get" the applicant, the easiest thing for him to do would have been to conclude her employment at the end of the probationary period. Rather than do that, what in fact happened was that offers of flexibility in employment were made, and whatever might have been perceived by the applicant about the conduct of Mr Pillai, simply was not the case. The Complaint against Mr Pillai 350 The applicant's case that the meeting held on 14 December 2006 occurred in retribution for her having made a written complaint about Mr Pillai was alleged in her Application, her evidence to this Commission and the Workers Compensation Commission and in the two letters from Turner Freeman to Mr Clout. This presentation of the facts could not be sustained. 351 The differences between the applicant's grievance document (AN - 11) and that lodged with the respondent were highlighted, with the true sequence of events contained in Ms Buric's evidence. Accordingly the complaint could not have been lodged on 8 December 2006 as alleged by the applicant. Further there was the evidence of Ms Buric as to Mr Dolan telling her the grievance "would" be lodged. Mr Dolan was not called to give evidence, entitling the Commission to conclude that his evidence would not have assisted the applicant's case. The allegation made by the applicant that she asked Ms Buric about the grievance in the meeting could not be correct. 352 In addition, despite the critical nature of this issue and the fact that so serious an allegation was made against Mr Pillai the applicant did not deal with this issue in her statement in reply (10 July 2009). Instead during evidence she presented a version of events that would have the Commission conclude that three different complaints were lodged, the first being sent by express post to Ms Buric. She alluded to postal evidence that she kept yet despite having the opportunity to file evidence in reply those records were not produced. It was, of necessity, maintained by the applicant that Ms Buric must have received the document by the 14 December meeting and by implication was giving false in evidence to the Commission. The proposition was merely self-serving and the case of the applicant refusing to concede a point which damaged her case. Non - disclosure of work at DSA 353 The applicant's motivation for alleging that her complaint was made prior to the meeting on 14 December 2006, was that this was when the issue of the working at DSA was first raised. 354 The various statements/positions put by the applicant in relation to working at DSA were referred to: · during the meeting she said she would "stop the work for DSA" - applicant's witness statement; · It appeared she was at least working up until the time of this meeting as .. "after the meeting, I gave verbal notice to DSA to discontinue employment".. - 14 December 2007 letter (para 21); · It appeared she accepted, but denied in cross-examination, that work continued to be performed by her - "subsequently they made me an offer to stay on as lab consultant and occasionally look at some QC results etc,. As a consultant she had no written contract, set or minimum hours or set days or was required to fill in a time sheet and in return an agreed sum would be deposited into her account - 14 December 2007 letter (para 21.) 355 It was pointed out that in relation to the QC work referred to above, there was nothing in the applicant's 14 December letter to say she did not accept the offer, it was asked about in the show cause letter but not responded to, and the first time the respondent heard about it was when the applicant said she didn't in cross-examination. 356 From the evidence of Ms Buric and Mr Pillai, it was clear that the applicant denied working elsewhere at that time and that was reflected in the minutes of the meeting. 357 It was not the intention of the respondent to do anymore about her employment at DSA at that time other than to have her complete a form seeking consent. Ms Buric told her, in response to her question, that she could work casually on the weekends but would need to complete a form for approval by Roger Wilson and the Chief Executive. 358 It was submitted that if Mr Pillai was "out to get her", then the conduct of the meeting hardly reflected that. 359 Submissions in relation to the outside employment form can be summarised as follows: · The applicant was given the opportunity to complete a form, · Ms Buric's evidence was that she took the form to the applicant after the meeting, · The applicant absolutely denied being given the form. The credibility of the applicant is "strained" by this denial which contrasts with what she said in her 14 December 2007 letter about being referred by Ms Buric to the Intranet, not being able to access it and then asking her for a form "which she gave me", but was not aware at the time that it was a mandatory form, · The standard form is consistent with the note contained in the letter of offer to the applicant and also consistent with the terms of the Code of Conduct, · The applicant denied at various times in her evidence and in the Turner Freeman letter that she was provided with the Code of Conduct, · It was not material whether she received the Code of Conduct as the relevant obligation of disclosure was set out in the letter of offer which faithfully recounts the requirements of the Code of Conduct. 360 It was submitted that the Commission could therefore conclude that, as at the 14th of December 2006, the applicant must be taken to have known that she was required to seek formal consent to work and an outside employment and was provided with the necessary form to obtain that consent. The Commission was also entitled to conclude that she misled the respondent when she stated that the meeting that he was not work in the DSA. 361 It was also pointed out that at the time of the 14 December meeting the applicant made no mention of having informed Mr Pillai about working at DSA and obtaining his consent on two earlier occasions. This was not mentioned until the meeting of 28 August 2007. This was denied in cross- examination by the applicant but there was no evidence to the contrary. Handling of grievance 362 The applicant complained about the handling of the grievance in the Turner Freeman letter which asserted that she was not aware of any attempt by HR staff to progress her grievance. As well as the supposed delay between the 8 and the 21 December in acknowledging the grievance, it was alleged that Ms Buric's failure to take any action required the grievance to be forwarded to senior management, including Roger Wilson, but it should be noted that the actual complaint received on 19 December 2006 was copied to Mr Roger Wilson. The applicant also alleged in her statement given in workers' compensation proceedings that she was not contacted about her grievance until sometime after the 16 January 2007 motor vehicle accident. 363 The evidence that was given by Ms Buric about her handling of the grievance, the various steps she took, her discussion with Ms Sewell and the specific policy requirements, was dealt with in some detail including the requirement of the first step to be taken being an initial assessment of the grievance. 364 It was submitted that it was made plain in the policy directive that the manager should conduct an initial informal interview with the complainant to discuss the complaint and the desired outcome, which was the approach adopted by Ms Buric. Attempts in cross examination to suggest Ms Buric was obliged to progress the complaint under procedures relating to the management of workplace bullying were not established as being the case, from re-examination of Ms Buric and a true reading of the policy documents. 365 Similarly the evidence of the applicant in denying various aspects of Ms Buric's evidence (phone calls and letter in January 2007, conversations etc.,) was also traversed and drawn to the attention of the Commission. 366 Ms Buric denied having asked the applicant to "summarise" her complaint or saying that the complaint was "deactivated". It was clear that she made concerted efforts to meet with the applicant about her complaint. What was required from the applicant was her co-operation in its progression by meeting with Ms Buric. However that was never done nor was the approach discussed with Ms Sewell of the HSU ever adopted. 367 It was submitted that the applicant's non-cooperation was perhaps best explained by answers given in re-examination (relevant reference provided) where, on being asked about her understanding of what was going to happen after lodgement of that grievance, she replied: "my understanding was that - as direct on that policy, is that like, when you put a complaint, that is immediately, like, addressed with this person and they interview them first and then they come back and interview me, because this is what I am alleging that this person deed and never knew about activating, the activating or hold, but I expected that she was going to address it with Sudha first and then me" The applicant had a view about how the investigation should have proceeded and then simply refused to consider that it may have needed to proceed differently. 368 The evidence concerning the further information about the applicant working at DSA, which came to light in or around May 2007 was referred to and the subsequent meeting of 28 August 2007. 369 The minutes of the meeting were provided to the applicant and they disclosed that she confirmed that after the 14 December 2006 meeting she received a copy of the Code of Conduct policy and the relevant form from Ms Buric. She stated she was not actively employed by DSA and confirmed that if she said at the last meeting in December that she was not working at DSA, then that was the truth. 370 Notwithstanding those denials, the applicant stated that Mr Pillai had given verbal approval at the time of her interview for her to work at DSA. Mr Pillai denied that that was the case. It was submitted that that denial ought to be accepted on the balance of the evidence. 371 Reference was made to the evidence of Ms Buric as to being approached by the applicant immediately after the meeting who said she was working for DSA in December, with Ms Buric telling her to just fill in a form now. It was pointed out that this conversation was not denied in the applicant's statement in reply nor elsewhere in her evidence and she did not fill out the consent form she was given at that time. 372 The submissions then dealt with attempts made to discredit Ms Buric in cross-examination about involving Mr Pillai in the meeting and in the enquiries made about secondary employment. It was submitted that Ms Buric's evidence dealt extensively with her attempts to meet with the applicant about her grievance and she was entitled to question how seriously the applicant was treating her own grievance. The applicant also had the benefit of representation by the HSU. 373 In relation to the enquiries about secondary employment, the true chronology was apparent from the evidence and it was incorrect to assert that action taken after 28 August 2007 was based on information solely provided by Mr Pillai. 374 That chronology was then detailed (and referenced) and traversed the various emails, letters and responses of the applicant and is in line with the background and chronology set out above. 375 It was indicated that after the contact with Kristian at DSA the initial conclusion drawn was that there was no further action to be taken. 376 In relation to the 4 September 2008 letter of clarification that Ms Buric sent to the applicant asking her two questions, the Area Health Service had never received a specific response from the applicant to those questions. 377 In relation to reliance on information supplied by Dr Jana and the cross- examination of Ms Buric about the accuracy of the starting date provided by him. It was submitted that the proposition put in cross-examination was not accurate. The conversation which Ms Buric recorded in her evidence, confirmed by the file note, did not refer to a start date, it asked him to focus on the dates since June 2006 and that was what he did. Why would the respondent have any interest in what she was doing prior to June 2006? Dr Jana's email of 17 October was responsive to Debra Wise's email of 12 October in which it was asked: "Can you please supply records reflecting Anna Nikoli' employment particularly since she has worked since June 2006." 378 It was submitted that the suggestion that the respondent should have ignored Dr Jana's information was without merit. 379 Further, the inquiry quite properly did not end there. 380 The respondent's letter to the applicant on 29 November 2007 referred to confirmation of the applicant's employment with DSA from August 2006 until October 2007, being the information provided by Dr Jana. That employment was during the period which coincided with the applicant's unfitness for work with the respondent. The applicant was asked to provide in writing reasons why she did not disclose information regarding the secondary employment. 381 The applicant's response of 14 December 2007 was to say the least confusing. She referred to various forms of engagement and periods of engagement with DSA without making it clear when precisely she was working at DSA. (This was expanded upon in some detail in submissions). The most that could really be gleaned was a reference (point 28) to telling DSA on 14 September 2007 to remove her name from their books. 382 There was also reference in the letter to her husband being offered part-time work with DSA and forming a partnership "under which we both operated and DSA paid us jointly into the same account". The tax return for 2007 showed some $6000 in earnings but there was no direct evidence of when the husband worked there and the accuracy of the document could only be speculated about. The accountant at DSA had initially said she didn't work there at all. The respondent had tried to subpoena records from this Company and had solicitors at their registered office at which the Notice to Produce was served, but sorry, we don't have any documents. It could only be wondered at what was going on at DSA. 383 The applicant also said she reduced her hours to three or four on one or two nights per week, usually Fridays and Saturdays. The question that could be raised was did it have any affect on her employment at the respondent and could it affect why she was late for work if she was working night shift at DSA. Was there any possible conflict there? Of course there was. 384 It was also pointed out that whilst the applicant said "Mr Pillai had known since my first day at St George that I was still on the books at DSA and now it was 14 December 2006", she didn't make that comment at the meeting and not until 28 August. 385 It was further pointed out that in her statement the applicant absolutely denied receiving a copy of the form from Ms Buric on the 14 December. It was clear from this letter that she did receive it. She went on to say in para. 22 that she "forgot about the form" and was "also not aware it was a compulsory to complete the form". Mr Sullivan submitted that he thought her evidence was that she didn't need to fill out the form. If she wasn't going to work there from December 2006 then she wouldn't have needed the form so why say she forgot about it. 386 Mr Sullivan indicated that the respondent conceded that the delay in taking further action was unacceptable and it should have acted sooner. The response given by Ms Buric in cross-examination as to administrative issues in the Human Resources Department was referred to. 387 The delay was a factor the Commission could take into account when considering the statutory test for unfair dismissal, but of itself the delay would not be decisive in finding that the dismissal was unfair because nothing effectively changed from the applicant's response to the November 2007 letter of Ms Colbert through to the show cause letter sent in September 2008. 388 The respondent's "show cause" letter to the applicant of 15 September 2008 was then referred to in some detail, as was the response from Turner Freemen of the 24 September 2008. 389 It was submitted that an attempt was made to link the making of the allegations against the applicant to her having lodged a complaint about Mr Pillai, with that conclusion simply not being available. Further the letter did not provide information about the dates when the applicant was working with DSA, instead it asserted that disclosure had been made by the applicant during the interview and orientation. The letter did not provide the respondent with any factual material contradicting its understanding of events as set out in its 15th September letter to the applicant. There was no denial at all of her employment at DSA. 390 It was submitted that it was clearly open to the respondent to conclude that the applicant had not been open and frank in disclosing her outside employment and in not following the correct procedure to obtain approval. 391 The evidence of Mr Wendelin was also referred to where he stated that the applicant commenced employment at DSA in June 2005 and had not worked since August 2007. In cross examination he said she did not work past August 2007 and he did not see much of her after the car accident. It was submitted that it was inconceivable on this evidence that she did not physically work after October 2006. On the evidence of the applicant's own witness it appeared that she was employed at DSA until at least August 2007. 392 In relation to the employment of Nadia Wheatley at DSA with the implication being that the applicant was treated differently, Ms Wheatley was a part-time employee and part-time employees were clearly in a different category under the Code of Conduct. Ms Buric gave evidence about the steps taken to ensure employees sought consent for secondary employment. In any event it was pointed out that the applicant had been given ample opportunity to seek that consent but she did not see fit to do so. Effects of Workers Compensation proceedings 393 Reference was made to the fact that the applicant had annexed to her statements the two decisions of the Workers Compensation Commission, however the allegations made in the court of those proceedings were not connected with the decision to dismiss the applicant from employment. The attempts by the applicant and her solicitors to do so were unfounded and contrary to the plain chronology of events. In this regard the applicant had gone so far as to annex to her statement a different document than that lodged with the respondent by way of grievance against Mr Pillai. The making of that grievance prior to the 14 December meeting was then used as the principal factual consideration asserted in correspondence from Turner Freeman in answer to the respondent's show cause letter. 394 It was pointed out that the Workers Compensation Commission needed only to make a finding about the applicant's perception of the treatment (relevant reference provided). 395 It was submitted that what could be taken into account by the Commission in this matter was that the medical evidence in the Workers Compensation proceedings was that the applicant could not return to her pre-injury employment. The Arbitrator's comments in that regard are set out in the decision. The applicant's current medical condition is unclear as there had been no recent medical certificates submitted, despite them being called for as a result of the response given by the applicant in evidence. 396 It was submitted that this issue was relevant to any determination which may be made by the Commission about reinstatement or re-employment. 397 On of issue of the re-employment of a person who became unfit to perform their original employment reliance, was placed on the principles traversed in Riley v WorkCover Authority. In such cases the Commission had the benefit of evidence about an employee's medical condition. In this matter there was a complete lack of such evidence beyond the abovementioned references in the decision of the Workers Compensation Commission. It was submitted that the Commission would not order reinstatement or re-employment without there being some form of evidence about the applicant's capacity to work. 398 Mr Sullivan also indicated that reference was made in submissions for the applicant to the implication that the respondent dismissed the applicant from employment because of her absence, and because of her injury. If that jurisdiction were available, (and it was not invoked) if an employee has not submitted medical evidence of a fitness to return to work, the Commission then has the power to require an independent body to conduct its own inquiry into medical state of the applicant. Then the Commission, having regard to the evidence relating to the applicant's fitness for work, could place that person in employment based on the most suitable available position. In this matter however there was nothing. The Commission was being the urged to order that the employer, simply because it was large, restore an employment relationship with an employment contract of no terms. Was she to be re-employed on the pre-injury wage? What would the employer's obligation be tomorrow? Where would she work? There was nothing. 399 It was also submitted that proceedings and the Workers Compensation Commission were relevant to the applicant's economic loss. The Commission was reminded about the specific compensation awarded, which was continuing. The payment of workers compensation benefits was relevant in determining the applicant's economic loss and in turn the maximum compensation available to the applicant, which, it was submitted, was $14,400.00 (see New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Azzopardi) and Sutherland Shire Council [2008] NSWIRComm 1080) 400 Mr Sullivan also relied on Robert Lawrence and Attorney General's Department [2004] NSWIRComm 59, a case concerning an allegation an employee worked in secondary employment whilst in receipt of workers' compensation benefits where the Commission found there was a paucity of evidence supporting the respondent's case (no evidence from persons in the interview, corroborative evidence that he intended to work, evidence management had subsequently known for some years of that employment etc.,). The factual findings were entirely different to the findings open to the Commission in this matter. 401 It was submitted that the following factual findings could be made by the Commission: a) contrary to the applicant's evidence, the applicant did not indicate at her interview any intention to continue to work part-time at DSA; b) contrary to the applicant's evidence, the applicant did not ask Mr Pillai during orientation whether she needed to complete a form to undertake outside employment; c) contrary to her evidence, the applicant received a letter of offer which specified the need, consistent with the respondent's Code of Conduct, to obtain consent to undertake secondary employment; d) the applicant expressed great satisfaction with her job in a probationary review undertaken; e) the respondent appropriately attempted to address attendance and punctuality issues relating to the applicant at meetings on 6 September and 14 December 2006, with offers of different hours of work and part-time work being made; f) the applicant submitted a formal complaint about Mr Pillai which was received by the respondent on 19 December 2006, not prior to a meeting held on 14 December 2006 as claimed by the applicant throughout this matter; g) Ms Buric attempted to progress the complaint made by the applicant in accordance with the respondent's grievance handling policy and made numerous attempts to meet with the applicant, without success, to discuss the details of her complaint and the outcome she was seeking; h) the applicant denied that she was then working for DSA in a meeting with the respondent on 14 December 2006, which denial was incorrect; i) the applicant was not forthright in providing the respondent with details about her employment with DSA between August 2006 and October 2007. j) The respondent acted upon information provided by the owner of DSA that the applicant had been working, either as an employee, or as a contractor, between August 2006 and October 2007; k) the respondent sought a response from the applicant dealing with the precise circumstances of her engagement with DSA, without success; l) the respondent asked the applicant to show cause why her employment should not be terminated in relation to her failure to be truthful with the respondent about the circumstances of the secondary employment; m) the responses received by the respondent from Turner Freeman on behalf of the applicant failed to address those substantive issues and instead alleged, without foundation, that allegations were being made by the respondent because of the grievance which the applicant had initiated against Mr Pillai. 402 It was submitted that once those factual findings were drawn, it was open to, and, should be concluded by the Commission, that the applicant had acted in breach of her duty of fidelity and good faith. She failed to respond truthfully questions about employment at DSA in meetings on 14 December 2006 and 28 August 2007. She continued to work at DSA in 2007 despite her denials, at least based on Mr Wendelin's evidence, and what the employer has been told by Dr Jana. The applicant was given a consent form by Ms Buric on 14 December 2006, although this was categorically denied by the applicant in her evidence, and she failed to complete and submit that form. 403 On the issue of summary dismissal and the onus being on the employer to establish that misconduct had occurred and that dismissal was justified because the employee had effectively repudiated the contract of employment, reliance was placed on the principles expounded in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No.3 (1990) 35 IR 70 and Shop Distributive & Allied Employees' Association v Jewel Food Stores (1987) 22 IR 1. Those principles were confirmed in Franklins Limited v Webb (1996) 72 IR 257, Transport Workers' Union of New South Wales (on behalf of Paul Robert Jasper) and Sutherland Shire Council [2004] NSWIRComm 26, Ferns and Department of Corrective Services [2005] NSWIRComm 440, and also Simmons and Rockdale City Council. 404 It was submitted that the factual findings available to the Commission, as set out above, supported the conclusions drawn by the Area Health Service in the letter of termination that the applicant had breached her duty of fidelity and good faith by failing to respond truthfully to questions about her employment at DSA in two specific meetings and continued, despite denials, to work at DSA in 2007, based on the evidence. The applicant was clearly given a consent form by Ms Buric on 14 December 2006 which she failed to complete and submit. 405 The onus shifted back to the applicant to establish the dismissal was harsh unjust or unreasonable see Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273. 406 It was submitted that the dismissal had a basis in fact, for the reasons outlined. The applicant was provided with an opportunity to address the factual conclusions relied upon by the respondent and the proposal that her employment be terminated. The case propounded by the applicant, that the inquiry into her employment activities was a response to the grievance brought by her, had no possible foundation. 407 In conclusion it was submitted that the applicant by her conduct not only in responding to questions put by the employer, but by the evidence she had given in these proceedings, was barred from having an employment relationship restored. It was submitted that she had not been frank, she had not been honest with the employer and she had been in phase it in the evidence she had given to this commission and it was impracticable to restore that relationship. 408 The Commission was also referred to the many contradictions in the applicant's evidence as summarised in Exhibit 21. Submissions in Reply on behalf of the Applicant 409 Ms Ryan challenged why, in considering the information coming from DSA, the respondent preferred what Dr Jana said over Kristian, the Accountant, whose information was consistent with the applicant's evidence. There was nothing to refute what Kristian had said. Yet for the first time today it had been raised that DSA must be a business of some kind of disrepute. The respondent had based its case on information provided by DSA and it was submitted that that case had now been exposed. If there was any doubt to be cast over the information, it should be cast on that of Dr Jana and not Kristian. 410 Either of those persons could have been called by the respondent to give evidence in the proceedings and then be scrutinised. There might then be submissions that could be made about the integrity or otherwise of the information provided by those witnesses. 411 The respondent's submission that Dr Jana's email is merely responding to the inquiry put does not adequately explain the discrepancy in the information provided. He still talked about commencement in August 2006 when it was known to everyone that the applicant commenced earlier. The other possible discrepancy in the information provided, which was never explored and ought to be explored after the December correspondence from the applicant, referred to the finishing date. He talked about looking at records, it could be presumed of sub-contracting details, it was known in December that the husband was working as a sub-contractor of DSA as well but that was not an inquiry that was ever pursued by the respondent. They simply assumed that Kristian was lying, the applicant was lying and Dr Jana must be telling the truth. It was submitted that that was not an assumption or conclusion that was available to the respondent on the evidence 412 It was submitted that some other matters the respondent had put were simply not borne out on the evidence and must be ignored. Examples were the submissions about the applicant's diary records being self serving documents. No questions were asked of the applicant by the respondent in relation to her diary records, she was not cross-examined about them and the submission that those are somehow less than accurate records or less than contemporaneous records was not a submission that the respondent was entitled to make. 413 Other submissions not available to the respondent on the evidence were that the applicant lodged her grievance after the December 2006 meeting and was motivated to do so by the meeting. Similarly that the second job was making the applicant late for work and therefore the respondent had legitimately held concerns about a conflict of interest. 414 It was submitted that the respondent drew unfair inferences in relation to the applicant answering questions. It was submitted that the applicant was not evasive at all in her evidence. It was observed that she struggled to follow the document trail. The applicant was frank and forthright. If she could recall something she said so and on more than one occasion said well if that's what it says I have no reason to refute that. She was not unnecessarily argumentative. 415 It was submitted that it was not at all unusual for applicant in a case such as this to be confused on some of the details given the breadth of the evidence and the period of time over which these meetings etc occurred. 416 Overall it was submitted that the applicant came over as a witness of good credit who gave forthright and not at all evasive evidence. 417 Submissions made by the respondent that the applicant was evasive about her work at DSA were simply not true and ignored the distinction made very clear by the time of the August meeting, between being on the books and physically working there. It was also not true, as asserted by the respondent throughout, that the applicant denied her employment with DSA. 418 Ms Ryan also refuted the submissions of the respondent portraying the applicant as someone who had avoided this line of questioning. The period from January to June 2007, the applicant was off work following a car accident and it was disingenuous to betray her as someone who was actively avoiding the issue and these inquiries when they were not being made at the time. The inquiry was raised with her in August and she answered that honestly and when the distinction was drawn about being on the books and physically working there, she was honest about it and said she might still be on the books but not working there. 419 The suggestion that the applicant's letter of the 14th of December was somehow evasive or less than truthful was preposterous. It was an honest account put by the applicant at that particular time in response to the inquiries made of her and was consistent with the information given by Kristian, the DSA Accountant. The respondent had not adduced any credible evidence to prove otherwise. 420 The reliance now placed by the respondent on the evidence of Mr Wendelin wasn't available at the time they dismissed the applicant and too much had been made of what Mr Wendelin said. 421 Ms McDougall had made a report about the 14 September 2007 but was not called to give evidence in these proceedings and the Commission had not been given the benefit of hearing her full disclosure of evidence about what she may or may not have seen. It was simply not the case that the information leading to the August meeting came purely from Ms McDougall. The Commission was reminded of the evidence given by both Ms Buric and Mr Pillai about his information. 422 It was also refuted that the applicant had knowledge of the Code of Conduct because she made reference to it in her grievance. She was looking up matters in relation to the grievance policy and that didn't prove that she had the Code of Conduct one way or another. 423 It was conceded that the letter of appointment couldn't be explained. The applicant said she didn't recall getting it and there was certainly evidence of her signing the acceptance part. Was the applicant lying about everything because she couldn't recall getting a letter of appointment? It was submitted that that would be an unreasonable finding and in any event what reason would she have to lie about it. She would have no reason to lie because if the letter was looked at there was no requirement in it (or the Code of Conduct) to fill in the form and get written approval for secondary employment. 424 The applicant's evidence throughout these proceedings and throughout all the correspondence was she thought she had done this by disclosing this in her CV, in the interview and in conversations with Mr Pillai. It might well be that there was a misunderstanding between the parties about that, but the significance was that the applicant thought she had done what she had to do. She had made a disclosure and she proceeded in the honest belief that she thought she had done all she needed to do. 425 The submissions put by the respondent were simply not credible in the sense that the Commission was being asked to find that the applicant was motivated to lie about this from the outset. There was no logical reason for her to do so. This was a woman whose evidence was she had always had more than one job and that had never been a problem and she had never been anything but upfront and forthright about that and that was disclosed in the documents referred to. It just wasn't believable that she would lie about it or have any motivation to lie about it and that was borne out on the evidence. 426 The Commission was asked to draw an inference about the fact that Mr Dolan from HSU didn't give evidence. The applicant's statement in reply said she made enquiries of Mr Dolan but understood he was retired and was unable to get in contact with him. It was submitted that there was no inference that could be drawn in those circumstances. 427 In relation to the grievance, it was submitted that the applicant, rightly or wrongly, had a legitimate expectation that the grievance would be acted upon. Even if she was mistaken, and even if, on a very technical analysis of the policy, Ms Buric was correct in how she proceeded, the applicant had a legitimate expectation that something would be done. Rightly or wrongly it was a legitimately held belief from the applicant. It might be a mistaken belief but it was a legitimate belief and should not be held against her. It did not show that she would then avoid answering questions or be evasive about the other matters. 428 It was submitted that the distinction between being on the books and physically working was a legitimate one, particularly in the circumstances where there was a significant period of about six months of no work at all and those matters were simply not at the forefront of the applicant's mind. There was no denial of employment with DSA. It was a frank and not evasive disclosure. It was disingenuous to continue the argument that the applicant was evasive and wasn't forthright in her dealings with the respondent. 429 It was submitted that the respondent did nothing about the information provided in the 14 December letter. They made no inquiries of relevant persons and were simply content to say that because the correspondence didn't exactly respond to the absolute minutiae of detail in answer to their inquiries, that the applicant was being evasive. That was not a correct approach. Whilst a delay in responding could be explained by the excuse that the Human Resource Department was understaffed, it didn't explain a failure to investigate matters which were ultimately used against the applicant in terminating her employment. 430 The Turner Freeman response to the show cause letter said quite squarely that she wasn't dishonest and that she had told the respondent about this from the very beginning of her dealings with them and on that basis the allegations of dishonesty were not made out. 431 On the issue of re-employment, the question was not whether or not there was a vacant position or whether or not there was an available and suitable position. It was submitted that the respondent, being the nature of the employer that it was, had that kind of position available. The correct approach would be a re-employment order and at that point the obligations under the legislation in the Workers Compensation jurisdiction would kick in, such as a return to work plan. It was acknowledged that the Arbitrator indicated that it might be unskilled work but he also talked about having computer skills and other transferable skills. There had not been any contrary evidence from the respondent and it had been on notice throughout the proceedings that that was what the applicant was seeking. Consideration 432 I have very carefully considered the relevant evidence and submissions of the parties in this matter. 433 There is no doubt that this has been a very difficult and at times quite confusing and frustrating matter. I have commented in past decisions that an unfair dismissal application is very much like a jigsaw puzzle. The pieces of the puzzle are provided by an applicant and respondent (not always in equal proportions) through the initiating documentation, the evidence and the submissions. Putting together those pieces to form an overall and clear picture that enables a decision to be made and an outcome determined, is the challenge. In this matter putting the pieces together at times has been almost impossible as some pieces just do not fit. 434 It has taken some time and effort to make sense of the evidence concerning the events/facts/issues that transpired in relation to Ms Nikolis' employment and termination. That process has not been assisted at all by some of the apparent inconsistencies, contradictions and shifting positions quite clearly present in the totality of Ms Nikolis' evidence. There are also frustrating and obvious gaps in the respondent's evidence and some procedural issues that have presented difficulties. 435 The contradictions in Ms Nikolis' evidence are set out in the respondent's document summarising those contradictions (Exhibit 21). I have to say that I concur with the material contained therein. The issue is whether those contradictions go to the credibility of Ms Nikolis' and on balance they clearly do. Many of those contradictions are commented on below. 436 The parties have rightly identified the requisite principles that establish which side bears the onus in unfair dismissal applications where the dismissal has been effected as a result of misconduct alleged by an employer. 437 Similarly the relevant principles as set out in Tipping have been cited as to the onus shifting back to an applicant, even where misconduct is found, to establish that the dismissal was harsh and/or unjust and/or unreasonable, and sufficiently so as to warrant the intervention of the Commission. 438 However the parties did not address the crucial issue that must be dealt with in such cases, being the standard of proof to be applied, as has been established in Briginshaw v Briginshaw (1938) 60 CLR 336 and consistently applied in unfair dismissal cases before this Commission. That being the civil standard of the balance of probabilities. 439 The Full Bench in New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 considered the intertwined issues of both who bears the evidentiary onus and the standard to be applied to that onus. 440 In Prior, after upholding the "well established principle" that the evidentiary burden in a case of serious misconduct shifted to the respondent employer as set out in the line of authorities that commence with Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 through an unbroken line of authorities, (including those cited by the parties), to Budlong v NCR Australia [2006] NSWIRComm 288, the Full Bench went on to state: 13 Although it must be accepted that the respondent carries the onus to be discharged according to the ordinary civil onus, on the balance of probabilities, the very nature of the issues involved and the consequences of a decision to summarily dismiss an employee, required the respondent to make out its case in a convincing way. It has long been established that the dicta laid out in the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336, should apply. It is timely in such circumstances, in our view, to once again set out the observations of Dixon J (as he then was) in Briginshaw at 361 - 363: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be decided by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. ............... This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime had been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues....But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (emphasis added). 14 In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR at 449 - 450, Mason CJ, Brennan, Deane and Gaudron JJ explained the above passage from Briginshaw this way: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (emphasis added). 441 Ms Ryan, in considering the issues arising from the dismissal for misconduct relied on the four questions posited by Sams DP in Natoli at p.218 as follows: 1 Was the conduct alleged against the dismissed employee proven? 2 If the misconduct was proven, did the seriousness of the misconduct justify summary dismissal? 3 Did the conduct constitute a fundamental and wilful repudiation of the contract of employment? 4 Were mitigating factors taken into account? 442 Considering the answers to those questions is also a convenient way forward in my consideration of this matter. Although it is also necessary that such consideration must traverse issues of procedural fairness. 443 The specific reason given for the termination of Ms Nikolis as set out in the letter of termination from Mr Clout (15 December 2008), the Chief Executive of SESIAHS, was .. "Your failure to inform the Area Health Service of your secondary employment is a serious breach of the SESIAHS Code of Conduct." 444 The two meetings in December 2006 and August 2007 were given as the occasions when Ms Nikolis had denied working outside SESIAHS which was said to be contrary to the fact that it had ....."been substantiated that you engaged in outside employment with Diagnostic Services Australia (DSA) for the period 2006 to August 2007 since commencing full-time employment with SESIAHS in June 2006" . 445 Ms Ryan on behalf of Ms Nikolis has refuted this allegation of misconduct and submitted that there were six specific occasions when Ms Nikolis "neither lied nor failed to disclose" her secondary employment with DSA: · The May 2006 interview and 19/20 June 2006 induction process, · The 14 December 2006 meeting, · The 28 August 2007 meeting, · The 12 October 2006 interview with Ms Debra Wise, the workers' compensation investigator, · Ms Nikolis' 14 December 2007 letter to Ms Colbert of the SESIAHS, · The 24 September 2008 Turner Freeman letter to Mr Clout. 446 I have to say that after careful consideration of the evidence I just cannot accept that that conclusion can be drawn or that it accurately reflects the position of Ms Nikolis, particularly with respect to a number of those specific instances. It conveniently skirts around the real issue and the specific information that was being sought from Ms Nikolis particularly after the 28 August meeting where, because of contrary information conveyed to SESIAHS, it was seeking to clarify the position of her secondary employment. SESIAHS were giving Ms Nikolis the opportunity to clear up any misunderstanding that may have arisen or correcting any wrong information. 447 Ms Ryan has had to concede that there is no explanation for Ms Nikolis failing to respond to the two specific questions put to her by Ms Buric in her letter of 4 September 2007, other than the possibility of Ms Nikolis' state of health at the time, particularly in the light of her subsequent cessation of work on 14 September and the reasons given for such cessation. Whilst it is quite evident from her diary entries from around that time that she was feeling very stressed and emotional and having difficulty coping at home, her state of health did not prevent or hinder her from writing to Ms Buric on the 29 August and the 17 September 2007, and then hand delivering on the 19 September 2007, two very cogent and coherent letters concerning her grievance against Mr Pillai. 448 I consider therefore that she deliberately evaded responding to those to specific questions. The only conclusion that can be drawn as to the reason for this evasion is that she was just not prepared to answer because she had been working at DSA since December 2006 in some capacity and indeed was actually working at DSA at the time of the December 2006 meeting. 449 There has never been any issue raised, nor is it in question, that Ms Nikolis did disclose her secondary employment with DSA on both her résumé and during the 26 May interview (but not in the terms as maintained by Ms Nikolis). That was, however, secondary employment at that point in time, nothing more. Similarly there is no issue that during Mr Pillai's reference check with Mr Wendelin at DSA on 30 May 2006, it was acknowledged that Ms Nikolis was working at DSA again, at that point in time. 450 However on neither occasion was there any indication given by either Ms Nikolis or Mr Wendelin that this was to be ongoing employment. 451 In spite of what is said in the Turner Freeman letter of 24 September 2008 to Mr Clout, it is quite clear on Mr Wendelin's evidence (which confirms Mr Pillai's evidence and the notes made by him in the reference check), that he did not in fact give any indication that Ms Nikolis' employment with DSA was "ongoing". As Mr Sullivan rightly points out this was the applicant's own witness. 452 I do not accept the evidence of Ms Nikolis that she specifically raised the issue of such ongoing employment with Mr Pillai and was given verbal consent for it during the interview. Nor could it be said that there was some form of tacit approval. I accept the evidence of three of the participants in the interview, Mr Pillai, Mr Loizou and Ms Smith. I am quite sure if such a significant matter was raised by her that, in the light of the policy of the SESIAHS, it would have been clearly remembered. If it had happened as suggested by Ms Nikolis, I am also quite sure that it would have resulted in a more formal discussion of this issue. I hold this view notwithstanding Mr Loizou's possible absence from the room which I note (agreeing with Mr Sullivan's submission) is contrary to Ms Nikolis' evidence in saying that he was present during this alleged conversation. 453 Indeed the first time she has ever raised the issue of having being given approval during a specific conversation with Mr Pillai during the interview was in the Turner Freeman letter of 24 September 2008. It was not raised in either of the two meetings, the interview with Debra Wise or the letter to Ms Colbert. I would have thought that if there had been such a conversation then it would have been raised by her on at least one of those occasions. 454 I also note that in Ms Nikolis' letter of 10 May 2006, applying for the vacant Technical Officer position, she indicated, in relation to the full-time position at Bankstown Hospital ..."I have worked there since 1992 but as I recently moved to Monterey near Kogarah, I wish to transfer to a hospital closer to home (St George)". Mr Wendelin from DSA was given as one of her references with his location given as "Bankstown". The other 5 references listed are also given what is clearly a work location (i.e Bankstown, Liverpool or Fairfield Hospitals). While it is acknowledged that no specific questions were directed at any of those three participants in the interview about this information in the letter, it would be logical (and not unreasonable) to assume that if someone was seeking a full-time position closer to home because they had moved house, it would be a similar situation in relation to a part-time position that was also occupied at the former location. The evidence was that DSA was only some 500 metres away from Bankstown Hospital (This would have been some distance and time to travel to from Monterey/ St George after working a full time shift that did not finish until 5 to continue to maintain a part-time position). 455 I also accept that while the onus was not on the respondent to ask "what are you doing about your second job," particularly in the circumstances of the application letter, in hindsight, it may have been a sensible thing to do. Nor was the obligation on Mr Pillai to outline the requirements necessary to obtain approval or to ensure a form was completed in the absence of any knowledge or understanding by him that such work was going to continue. 456 I also note that the evidence was that all of the panel members who gave evidence were experienced in such interviews, which followed a standard format. It is also apparent from Mr Pillai's "Interview Schedule" of the questions to be asked (Exhibit 11 - C) that two of the questions were: 7. Are you aware in would interfere with the ability to fulfil the duties of this position, as it requires flexible work hours? 8. As part of your employment you may be required to work at other SEALS site. Would this be a problem? 457 There was no evidence however as to whether these actual questions were asked in those terms and what response was given. They may have provided a forum for Ms Nikolis to raise her secondary employment at that time and her intention to continue that employment. 458 Whilst notes of the interview were kept and forwarded to HR they are not required by the Health Service to be kept for the length of time that would have made them either available to the panel members to re-consider what occurred or as evidence in these proceedings. 459 One item of information that may have been of some assistance to this whole case and which was unfortunately never raised with Ms Nikolis by either of the advocates (nor the Commission) was, had she obtained the requisite consent from the Sydney Southwest Area Health Service for her secondary employment with DSA whilst working at Bankstown Hospital? 460 Based on Ms Nikolis' evidence she had commenced with DSA in either June 2005, whilst on twelve months unpaid maternity leave. She returned to her position at Bankstown Hospital in February 2006, initially on a part time basis, but subsequently (just when is not clear) on a full-time basis. At the time of her interview in May 2006 she was certainly working full-time at Bankstown as per her application for the position at St George. 461 I am aware from the evidence before me (which included the Code of Conduct) in Biviano & others and Sydney South West Area Health Service [2006] NSWIRComm 1176, that in 2005 and 2006 (the period of time concerned in the events in the matters the subject of the decision) that there was a requirement to obtain written approval for secondary employment from appropriate management and that included part-time employees. 462 If Ms Nikolis had obtained such approval it would certainly indicate her knowledge of such a requirement in another Area Health Service and a reasonable expectation that a similar provision would exist at SESIAHS. If she did not obtain approval, was she working secondary employment without the knowledge and approval of her then employer? 463 It also was unfortunate that this possible line of enquiry never occurred to Ms Buric as one that might be relevant to pursue. 464 I also note the following extract from the record of the fact finding meeting of 28 August 2007: Mr Pillai advised Ms Nikolis that he had reason to believe that she was engaged in secondary employment. Mr Pillai asked Ms Nikolis whether she was employed by Diagnostic Services Australia (DSA). Ms Nikolis responded no. Mr Pillai asked Ms Nikolis whether she was employed anywhere else under her current name or any other name. Ms Nikolis was responded no, she is not working elsewhere. Ms Sewell asked Mr Pillai to clarify whether he meant on the books or physically working. Mr Pillai confirmed that he meant physically working elsewhere. Ms Nikolis advised she was on the books for South Western Sydney Area Health Service (Sydney South West) for interpreting services, however she hasn't been called up in the last two years. Ms Nikolis acknowledged that she needs to contact Sydney South West and clarify as to whether she is still registered and if so she would fill in the paperwork (Approval to Engage in outside Employment documentation). She also confirmed that she was on the books with DSA, however has not worked there lately. (emphasis added). 465 It may well have been a natural line of enquiry either on this occasion, or by Ms Buric subsequently (although possibly not considered relevant), as to whether at that time she had approval for her secondary employment with DSA given the issue of her failure to fill in the appropriate form and seek such approval from SESIAHS. 466 Clearly I cannot speculate on this issue or take it further. 467 Returning to the period of time of the interview and the induction period. There is also the very relevant matter of the quite specific wording in the Letter of Offer to Ms Nikolis from Mr Majewski on 31 May 2006 advising her of the requirement to seek approval from the Chief Executive via the Executive Director/Director of the facility for any outside employment/business activities undertaken. 468 Ms Nikolis claims to have never seen this. I do not accept that contention. Clearly she either just did not pay it any attention or was aware of it, and thus there is the possibility that she was not prepared to seek such approval in case it was withheld or that may established a basis for prompting a discussion of that employment with Mr Pillai on her first day as she maintains took place. some. This will be commented on further below. 469 I am unable to accept Ms Nikolis' evidence that she had further confirmation of this alleged informal approval from Mr Pillai during the induction process. Frankly I think it is fanciful to suggest that such a specific conversation could have taken place. Mr Sullivan is quite correct that if there was something said by Mr Pillai along the lines of "how's Bernie going" that would be reasonably logical given that she had seen him as recently as two weeks ago and had worked with him for a period of time whereas it had been over 10 years or so that Mr Pillai had worked with him at Sutherland Hospital. It would be a perfectly natural and normal enquiry to make. But this was not the evidence of Ms Nikolis as to the nature of conversation. 470 Although Mr Pillai conceded that there may have been some "chit chat", he also said he was not the sort of person who indulged in "chit chat". Having observed him in the witness box I can well believe that, unlike Mr Loizou who did strike me as a more easy going and affable person. 471 I also have difficulty in accepting that Ms Nikolis' diary entry for the 19 June concerning this supposed conversation with Mr Pillai was written contemporaneously. I do not know when it was written, but I agree with Mr Sullivan it is "too convenient" and "self serving" and frankly the notion that she would make such a note on her first day at work just plain absurd. 472 I readily acknowledge that there was no cross-examination of Ms Nikolis on this entry. Nevertheless the entire diary was admitted in evidence. I have had the opportunity of very carefully and in some detail perusing the various entries made during both 2006 and 2007. (Where an entry was considered relevant to the issues under consideration it has been reproduced in the Background and Chronology above). 473 It is reasonably clear to me, and I suggest it would be reasonably clear to anyone looking at the diary, on even a casual basis, that the writing of the second entry particularly (although I also have a query about the first entry and its credibility as a contemporaneous note), concerning the alleged conversation is in larger and more untidy printing with a mix of words in capital letters and lower case. It contrasts greatly with subsequent entries which are written in smaller and neater printing and more narrative style, but it is very similar to any entry that is subsequently written, particularly from August onwards, concerning some issue or complaint to do with Mr Pillai, the subject matter of which indicates some agitation or emotion in both the language and writing style. That raises the issue for me of just when this entry was made. 474 It seems to me to be more likely than not, and on the balance of probabilities, that this entry was made subsequently (at some unknown time) to establish and form the basis of some sort of proof as to this alleged conversation and the notion that Mr Pillai had approved her secondary employment at DSA at this time. 475 While it is true, and I acknowledge that Ms Nikolis has consistently maintained throughout her employment (at least from 28 August 2007) and in her evidence, that she had a conversation with Mr Pillai of her first day at St George during which he gave her verbal approval to continue working at DSA and therefore had knowledge of that secondary employment, she has given varying versions of just what was said in that conversation. As well, she has varied in her evidence between this issue being initiated in the conversation by Mr Pillai or being initiated by her. This is evident in the following (as set out relevantly in the background and chronology and the evidence above):- · the 19 June 2006 diary note, · the 28 August 2007 meeting, · the October 2007 interview with Debra Wise, · the 14 December 2007 letter to Ms Colbert, · the 24 September 2008 Turner Freeman letter to Mr Clout, · the witness statement, · cross-examination. 476 An example of the varying accounts of the conversation is that it is only in the interview with Ms Wise in October and the Turner Freeman letter does she actually state that Mr Pillai said "I don't care what you do in your spare time." There was no mention of this in the diary account. 477 Again I find it just unbelievable that a manager of Mr Pillai's experience and seniority would make such a comment in relation to outside employment that was clearly only possible if formal approval for such was sought and gained as per the Code of Conduct. It is the sort of comment that might be expected to be made if the conversation had concerned her employment at a Sunday School second language and religion teaching (Serbian) on Sunday mornings as listed in her résumé with her other part time /on call work (such as the interpreting work). 478 However this was not her evidence and in any event Mr Pillai denied any such conversation taking place. 479 This does go to the credibility of Ms Nikolis and raises the possibility that what in fact happened was that there may only have been some sort of conversation that could only be termed "chit chat" where Ms Nikolis has misunderstood or misinterpreted some passing remark by Mr Pillai. 480 If there had in fact been no mention in any conversation during the interview about whether it was a problem for her to continue working there (at DSA) and she subsequently read in the Letter of Offer from Mr Majewski the reference from the Code of Conduct about the necessity for approval to work such employment, then in the absence of any previous such knowledge (for example it never came up at Bankstown because the Area Health Service either didn't know about the second job or if it was known the need for approval was never raised), it would have been logical (as I indicated above) for that to have prompted Ms Nikolis to make some enquiry of Mr Pillai during the induction process. However Ms Nikolis denies ever receiving that section of the Letter of Offer (not merely not recalling it) so in that circumstance it would not be logical for her raise this as a query if she believed it was already understood that she had secondary employment as a result of the interview and her résumé. 481 The reason that I am firmly of the view that the issue of her intention to continue working with DSA and having some sort of approval from Mr Pillai could not have been raised, apart from what I have said above, arises as a consequence of the subsequent events concerning the 6 September meeting between Mr Pillai and Mr Loizou and Ms Nikolis. 482 Whilst it was not considered necessary to refer in detail to the evidence concerning this meeting and Ms Nikolis' probationary period, it has nevertheless been carefully considered. The timeline of events is referred to in the Background and Chronology above. 483 The evidence shows that during Ms Nikolis' probationary period Mr Pillai became increasingly concerned about the punctuality and attendance of Ms Nikolis, so much so that he contacted Ms Buric to inquire whether he could extend her probationary period. Ms Buric advised him he could not and suggested holding a meeting with her to raise his concerns and suggested he raise with her changing her start and finish times to accommodate any problem. He acted on this advice and raised these issues with Ms Nikolis, in conjunction with Mr Loizou on 6 September 2006. He also provided a copy of the minutes of this meeting to Ms Buric. 484 I would have thought that if Mr Pillai had been the least bit aware of the possibility of Ms Nikolis continuing to work part-time at DSA, given his concerns about her punctuality, he would have raised that at the meeting and queried whether this was the cause of the problem. This is reinforced by the nature of the complaints Ms Nikolis made in her grievance about Mr Pillai bullying and harassing her and her developing belief that he was out to get her. I am quite sure that if he was aware of her ongoing employment with DSA he would have, at the very least raised it with Ms Buric, and then would have been swift to have the issue taken up with Ms Nikolis. Similarly, as he discussed his concerns with Mr Loizou, and if Mr Loizou had been at all aware of such ongoing employment, I am sure that he too would have also have raised that with Mr Pillai as a possible issue of relevance to the perceived punctuality problem. This would have also been particularly relevant in the light of Mr Pillai wanting to extend Ms Nikolis probationary period and have further time to consider her suitability for permanent employment. 485 Even if it could be argued on behalf of Ms Nikolis that well, Mr Pillai had given informal approval to such ongoing employment and didn't want to be found out about that, he was also fully aware of just what formal approval process was required. If he was out to get her this would have been an idealan opportunity for Mr Pillai to raise the issue of the DSA position, repudiate the notion of any informal approval given and raise it as a possible issue to consider in determining whether or not her probationary period had been successfully completed, with a either a potentially negative outcome resulting. 486 If the secondary employment had come to Mr Pillai's attention during this probationary period, even if she had been given a form and directed to complete it another outcome, in the light of his concerns about her punctuality, might have been to oppose approval being given for such secondary employment being given. 487 This is of course speculation on my part but I do consider the probationary period with all that it entailed to be of some significance. 488 That view is reinforced by the fact that, in relation to the 14 December meeting (which was to be held arising from concerns about Ms Nikolis' attendance) when Ms Buric was informed by Mr Pillai that he had information about her having secondary employment, Ms Buric only thought the issue of secondary employment was of significance as it may have impacted on her attendance. Again if Mr Pillai had been aware of that information during the probationary period then I am sure it would have been raised with Ms Buric and then Ms Nikolis. 489 I am satisfied that the information concerning Ms Nikolis' working at DSA did not come to Mr Pillai's attention until just before the 14 December meeting, as was the evidence of both he and Ms Buric. I also indicate that it cannot be concluded that the information came from Mr Loizou Mr Pillai only "thought" it might have come from him. Mr Loizou was not asked about this. His evidence was that the information that came to him from Nadia Wheatley occurred after January 2007. This will be commented on further. 490 As to the issue of when the complaint was lodged and Ms Nikolis' belief that the meetings of December 2006 and indeed August 2007, as well as her dismissal, were taken as action against her for lodging her complaint about Mr Pillai, it is indeed most unfortunate that Ms Nikolis held that conviction. It coloured and indeed tainted her whole view of any actions taken by anyone to do with the SESIAHS, (with her incorrect version of events put forward as fact to the Workers Compensation Commission) and it also compounded the problems that arose in relation to trying to establish just what the situation was concerning her secondary employment. It is obvious that she has come to believe wholeheartedly certain facts regardless of whether or not they can possibly be true. 491 Ms Nikolis claimed to have posted the 10 page grievance specifically to Ms Buric at St George Hospital, by express post (next day delivery) on 8 December 2006 and that the 14 December meeting was therefore called in direct response to that grievance. On careful examination that could not possibly be correct, quite apart from the denials of such by Mr Pillai and Ms Buric. 492 The 8 December 2006 was a Friday. Next day express post delivery is next business day (letters come to, and are occasionally sent, in urgent situations by the Commission) and in any event, it is common knowledge that there are no postal deliveries on a Saturday. The earliest it could have been delivered was Monday 11 December when Ms Nikolis was given the letter by Mr Pillai (a letter drafted initially by Ms Buric for him) advising of the 14 December meeting. It would have been the first occasion in the overall time span of Ms Nikolis' employment that such super swift action was taken if what Ms Nikolis alleged was true. I just don't believe this occurred. 493 The letter from Mr Pillai advising of the meeting indicated that "Maria Buric of HR" would be present. Prior to that date Ms Buric said that her only previous knowledge of Ms Nikolis was when Mr Pillai spoke to her about his concerns and extending the probationary period. The minutes of the meeting of 6 September refer to the possibility of the "HR Manager" being involved if any future meeting was necessary, but no mention was made of Ms Buric by name. I think it highly unlikely that Ms Nikolis would have sent the grievance personally addressed to Ms Buric as she has maintained. Previous letters to her from HR had come from persons other than Ms Buric (see Background and Chronology above). It is far more likely that it would have just been sent to the "HR Manager", in which case it may well have just been forwarded on to the main SESIAHS HR office at Randwick. Although I note in this regard that only the subsequent 12 page grievance with the medical Certificate of Dr Marinkovich of 12 December (making 13 pages in all) appears to have been received by SESIAHS at Randwick and then forwarded on to Ms Buric. 494 Indeed one wonders whether that first grievance was sent at that time or whether the additional 2 pages (which just seem to add or refine detail and make some stylistic changes) arose after she had discussed the grievance with Mr Dolan. She indicated she had emailed it to him and he had said it was fine. 495 I also note that in the first 10 page version of the grievance she refers to not being able to sit down in a meeting with "Sudha" due to feeling intimidated and stressed out by him but being prepared to meet with "HR" whereas in the second 12 page version this reference to being prepared to meet is now with "YOU" rather than just "HR". It would be logical that that would refer to Ms Buric once she is known to Ms Nikolis as a result of the meeting. 496 Apart from that rather significant change in language there is certainly no other reference in the grievance to the 14 December meeting in any way. If that change had not been made then one might have been able to conclude that it was possible that she forwarded it to SESIAHS before the meeting (but after obtaining the medical certificate on the 12th). 497 However her decision to forward a copy to Professor Roger Wilson, the Chief Executive (as noted as being by "cc" at the bottom of the 12th page) she said was as a result of Ms Buric telling her the complaint wasn't going to be dealt with at the meeting. 498 I do not accept Ms Nikolis' version of events in relation to this conversation. I accept Ms Buric's evidence that the issue of Ms Nikolis intending to make a complaint was raised with her by Mr Dolan after the meeting. He may well have then told Ms Nikolis that he had been told it would be dealt with separately, hence her decision to send it "higher up" as she maintained she did. Whilst she indicated in evidence that she saw Mr Dolan speaking to Ms Buric after the meeting (as did Mr Pillai) she did not hear what they said and she just did not say whether she had any further conversation with Mr Dolan but I would suggest it would be normal practice for any union officer who had assisted or been the support person for a member to speak with them after such a meeting and discuss its outcome, give further advice etc. 499 I have also considered the diary entry made by Ms Nikolis concerning the 14 December meeting. That entry does not assist in any way in clarifying just what Ms Nikolis told Mr Pillai and Ms Buric about her employment at DSA. She maintains it indicates that she raised the issue of the grievance with Ms Buric before the meeting. However what is written - "She didn't want to comment on my grivience (sic) and said to tom: "That will be addressed separately" - certainly does not make it clear that this is a conversation that took place before the meeting, indeed it appears after the entry about the "Bombshell" being dropped (the secondary employment). It would in fact seem to confirm Ms Buric's evidence as to when and how the subject was raised. 500 It also seems to me that the entry itself is squashed in somewhat between the other writing, especially taking into account the setting out and spacing that previously appears, casting doubt on whether it was written contemporaneously or at some subsequent time. In any event it just does not support her evidence that she raised the issue of dealing with the grievance prior to the meeting commencing. 501 I will indicate at this point that many of the subsequent issues and the dispute now between the parties as to what did happen in relation to the progressing of the complaint could have been avoided by a very simple measure on the part of Ms Buric and SESIAHS. 502 Ms Nikolis formed her own view about how the matter would be progressed based on her reading of the SESIAHS policy documents she accessed. That view was clearly incorrect. 503 This could have been avoided. In a number of matters that have come to before me over the years either as s.84 applications or s.130 dispute notifications, there have been matters where one of the issues (or indeed the only issue) has been an allegation of bullying and/or harassment made by one or more employees against another. I have observed in some of those matters that the initial and immediate response of the employer has been to forward a standard (and generally pro-forma) letter to the complainant (with a similar letter advising of the complaint to the person complained about) acknowledging receipt of the complaint, but then outlining what process will be followed in dealing with the complaint. Such letters usually indicate an initial meeting with the complainant, contain exhortations about confidentiality, possible counselling/disciplinary actions that may arise following any investigation etc., and usually something along the lines of what might occur if such a complaint is made on a quite unfounded basis or in some frivolous or vexatious way. I consider that this is an appropriate and practical way of responding to such an allegation. 504 Hindsight is a wonderful thing. Perhaps if Ms Buric had sent such a standard letter on 21 December indicating from the start how she proposed dealing with the complaint some of the problems that subsequently developed may not have arisen nor indeed Ms Nikolis' belief that nothing was being done which also appears to have possibly contributed to her psychological condition. 505 This is not meant as any trenchant criticism of Ms Buric. While the grievance raised possibly serious allegations and it was in the interests of both Ms Nikois and Mr Pillai that the matter be dealt with expeditiously and thoroughly, Ms Buric was not to know that Ms Nikolis was to have a car accident on 16 January and subsequently be off work for some considerable period of time thus preventing the complaint being progressed. 506 However I also acknowledge and accept Ms Buric's evidence that she did send a letter to Ms Nikolis on 11 January 2007, confirming the two phone calls she had had with her on 9 and 11 January and indicating that she was: "....wanting to schedule a meeting with you to clarify and obtain additional information in relation to your grievance." (emphasis added). 507 I do not accept Ms Nikolis' evidence that she neither received those phone calls or the letter. Her claim in evidence that she couldn't have received the first call because she would have been off work because of Orthodox Christmas and a Saint's day is contrary to what she told Ms Wise in October 2007 that she "expected Maria to contact me on 8 January or maybe the next day". The simple explanation is that Ms Nikolis' recollection is faulty quite probably due to her accident on 16 January 2007 and subsequent hospitalisation and health problems. 508 Given the length and detail of the complaint it was essential, in my view, even if that had not been the policy (which I accept it was) to have an initial interview with Ms Nikolis, in order to clarify (as Ms Buric sought to do) certain aspects of the complaint, seek additional information and impotantly, establish just what Ms Nikolis sought as an outcome, if her complaint was substantiated either in whole or in part. Generally should such a complaint be substantiated then a range of options would have been open to SESIAHS, ranging from counselling and/or further training to a range of disciplinary measures. 509 I have to say that entirely too much time was devoted in this matter to issues of what steps were or were not taken in relation to the complaint. In my view the relevance of the complaint is how it influenced Ms Nikolis' views and actions. 510 The main concern I have, which is not able to be answered, is whether or not the existence of the complaint and Ms Nikolis' view about action being taken against her as a result of its lodgement, was an inhibiting factor in any way in the responses she gave to the questions asked of her in the two meetings of 14 December 2006 and 28 August 2007 because of Mr Pillai's presence and participation in those meetings (and indeed the nature of his participation in the latter one). 511 I do consider that it was inappropriate for Mr Pillai to participate in any way at all in the 28 August meeting. This is notwithstanding that Ms Nikolis had her HSU representative with her and objections to his participation could have been raised. It just should not have occurred. In my view it is totally inappropriate for a person complained about, with either the matter unresolved or indeed if only recently resolved, to participate in such a meeting. Another appropriate senior person should have participated instead or at the very least the meeting should have been conducted by Ms Buric. I have expressed similar views in another matter (see Sharma and Sydney South West Area Health Service [2006] NSWIRComm 1157). 512 However having said that, the issue for determination is whether that participation materially affected the outcome and whether or not dismissal would have still resulted. I do not consider that it impacted in that way given the subsequent enquiries made, the information received and the opportunities provided to Ms Nikolis to respond to specific allegations raised against her. 513 That participation by Mr Pillai may have, and indeed appears to have, had consequences for Ms Nikolis' psychological condition. However that condition was not the reason for her dismissal. 514 This leads me back to the issue of just what Ms Nikolis did say in relation to her secondary employment at the relevant times and whether she denied or was evasive about that employment. In addition there is the issue of the basis for SESIAHS coming to the conclusion that she had engaged in secondary employment without the necessary approval and at a time when she was absent from work on workers compensation. 515 I accept the evidence of the SESIAHS that in the meeting of 14 December 2006, Ms Nikolis was simply told it had been brought to the Area's attention that she was currently working elsewhere. She said she was not. There was no issue raised of her "being on the books" and I do not believe that this was necessarily a misunderstanding on her part of what was being put to her. She denied that she was employed elsewhere. She was not asked whether she had worked elsewhere in the past, did not volunteer that she had worked in the past (contrary to what she subsequently told Ms Wise she said in the meeting), nor more significantly, did she raise any issue about any approval for such work having been sought from, and given by Mr Pillai, at the interview and induction. 516 Yet she did raise an issue arising from what was said in the interview, that being the overtime roster. She raised her concerns about not being on the overtime roster and it was in that context that she was told she could work casually if she was not in the roster in 2007, but would need a form. It seems strange that she could raise one aspect of what arose in the interview but not what she has most crucially come to rely on, namely the knowledge and verbal approval of her secondary employment by Mr Pillai. 517 Ms Nikolis' evidence is also contradictory. She has indicated that she did not deny working there but said she intended to leave if she got overtime. I don't accept that evidence as I am sure that would have immediately resulted in Ms Buric advising that she still needed approval for such work and insisting on the form being completed. It would also surely have prompted Ms Nikolis to raise that she thought she had already been given approval by Mr Pillai back in May/June. 518 That didn't happen and I accept the evidence of Ms Buric and Mr Pillai and the record of the meeting as set out in Ms Buric's minutes. 519 It would also fly in the face of one of her subsequent contentions and her evidence in cross examination that she last worked for DSA in October 2006. Although even this evidence has been contradicted by Ms Nikolis as can be seen below. 520 She told Ms Wise that she resigned from DSA (which she said was only a temporary job) in October 2006 so she could spend more time with her family. However I'm not sure that that fits in with her evidence which indicated her concerns about the overtime issue and that she needed the overtime from the roster because she needed the money (with a young family) and had always had a second job. 521 However in relation to this alleged resignation in October she later said in cross examination that she should have corrected that statement as she only "intended" to resign. 522 She also said in her statement to Ms Wise that she had said in this meeting that she had "previously" worked at DSA "mainly on Friday nights and Saturdays". Again, if she had said this in the meeting, then I have no doubt that the issue of approval for such work would have been squarely raised by Ms Buric. I also have no doubt that Ms Buric would then either have absolutely required the form to be completed and returned to her to cover that work, or something more definite would have been said to her (and noted in the minutes) about this contravening the Code of Conduct. Again, in those circumstances it would also have been expected that Ms Nikolis would have raised the approval she thought she had from Mr Pillai from the beginning. This was not raised however until the August meeting. 523 I accept the evidence of the respondent. I accept Mr Loizou's evidence that he made up the rosters in January each year and that when he made up the roster for 2007 Ms Nikolis was on it. However that roster was rendered irrelevant by the car accident in January and Ms Nikolis' subsequent lengthy absence from work and return to work on reduced hours. 524 I also accept that she was given the relevant form after the meeting. Understandably due to her subsequent accident she just may not recollect that occurring and in any event when she went off work it was not a matter that was followed up in any way, which is quite reasonable in the circumstances. Indeed she told Ms Wise in October 2007 that she was given a form by Ms Buric (although there is the additional issue of Ms Nikolis saying she initially tried unsuccessfully to get it off the Intranet which does not necessarily contradict Ms Buric's evidence about personally handing her the form - both could have occurred, it's a question of timing). However I do not accept that she could possibly have considered that it was not a mandatory form as she also told Ms Wise, given what was said to her in the December meeting, on the evidence, about the necessity to complete the form. 525 Ms Ryan has submitted that the Code of Conduct does not specify that approval for secondary employment must be in writing. That is a specious argument. In any event, it was made clear in the December meeting that such secondary employment needed approval, that there was a form and Ms Nikolis was then actually provided with a copy. Ms Buric made it clear in her evidence that at that stage the matter was not going any further. That it did so is only due to subsequent events, events taking place against a background of Ms Nikolis now being fully aware (even if she could argue that she was not in the past) of the necessity for approval of any secondary employment at DSA and the requisite form to be used to obtain such approval. 526 Her denial of secondary employment at this time and the veracity of that denial (quite apart from any subsequent denials) became an issue because of subsequent information from a number of sources, including significantly, Ms Nikolis' own response of 14 December 2007 to the crucial 29 November letter from Ms Colbert, as well as the response on her behalf by Turner Freeman on the 24 September 2008 to the show cause letter from Mr Clout. 527 Following the 16 January 2007 car accident, Ms Nikolis was off work and on workers compensation, with provisional liability being accepted. The claim was subsequently denied by the Insurer on 23 April 2007, and that declination taken to the Workers Compensation Commission. From then on Ms Nikolis accessed leave entitlements until her return to work on 16 June 2007. 528 Based on Mr Loizou's evidence, it was during this period that he was told by another employee (Nadia Wheatley) that she had worked on the same shift as Ms Nikolis. He then conveyed that to Mr Pillai (but it is not clear just when) who, it appears on the evidence, raised this information with Ms Buric around May 2007 and again after she returned to work in June. When he wanted the issue raised with Ms Nikolis, Ms Buric suggested waiting until Ms Nikolis had settled back at work . 529 Here is the one of the frustrating gaps in the investigative process of SESIAHS. There is no evidence on way or another that there was any follow up (which there clearly should have been) of Ms Wheatley for confirmation or further more specific detail about this information. Indeed it is not clear whether Mr Loizou actually told anyone the name of this source of information (the person having asked to have her name kept out of it). This person should have been interviewed at some stage. Although he did say she also spoke to Ms McDougall at some stage. 530 In the meeting of 28 August Ms Nikolis denied working elsewhere and the issue of being on the books was discussed, with Ms Nikolis indicating that she might still be on the books at DSA. No further information was volunteered about why she might have been still on the books (for example the issue of Dr Jana asking her to stay on to do the Q & A testing after she said she went and resigned in December, information provided in her 14 December letter to Ms Colbert). 531 The minutes also show that when asked about when she last worked for DSA she said she didn't want to answer that but when pressed as to why not, said she would have to "verify her records". This may tend to suggest that she certainly hadn't worked there in the very immediate past but likewise no clear indication is given of any particular point in time as being the end or cessation of that employment. I would have thought it a simple matter of saying it was in October 2006 (if what she told Ms Wise was correct) but that she needed to check the actual date. However she did give consent to Ms Buric contacting DSA. 532 This certainly raises the issue for me as to whether she was being evasive in her responses in this meeting. 533 It was Ms Buric's evidence that following this meeting she had a conversation with Ms Nikolis in the corridor in which Ms Nikolis is alleged to have said something about having been working at DSA on 14 December and Mr Pillai not knowing of this. I do not give that evidence any weight as it was never referred to in subsequent documentation to SESIAHS management (Exhibits 17 and 19) and I would also have thought that such a conversation would have warranted a file note by Ms Buric as occurred in relation to her subsequent phone calls to DSA. No such file note was in evidence. 534 During that meeting Ms Nikolis had also raised that other employees had outside employment and queried that they did not have approval for such. Mr Pillai denied knowing of such employees with Ms Nikolis evidently providing names and details of rosters etc. This would seem to suggest that knowledge from a first hand basis and that is during the relevant point in time that concerned the SESIAHS. It is clear that arising from this information Mr Pillai circulated the advise about the Code of Conduct's requirements, had forms signed and returned to HR. The distinction that can be drawn, (as Mr Sullivan rightly points out) with what Ms Nikolis did, or rather didn't do, is that forms were signed and returned and the process followed. 535 As a result of this information provided by Ms Nikolis enquiries were made (two part time employees were concerned) by Ms McDougall, the Operations Manager, who emailed Mr Majewski on 31 August as to the results of her enquiries. That email was forwarded on to Ms Buric. It included information obtained from one employee about Ms Nikolis working at DSA, but not rostered to work set days, and employed to do their Chlamydia testing. Ms McDougall undertook to make further enquiries as to how long that person had been working there and how long they had seen Ms Nikolis working there. 536 Here is another frustrating gap in the SESIAHS investigative process. The person who spoke to Ms McDougall was not the same person who spoke to Mr Loizou. Here were two possible separate sources of information and possible verification of Ms Nikolis working at DSA and just when that might have occurred. Unfortunately there is no evidence of any such follow-up by Ms McDougall taking place and whether or not it elicited any concrete information. There is also no reference to that information in the documentation subsequently prepared by Ms Buric for management (Exhibits 17 and 19). Ms McDougall was not called to give evidence 537 However Ms Buric obviously had this information when on the 3 September 2007 she contacted Kristian at DSA to verify Ms Nikolis' employment situation. He initially denied that she worked there at all, but when pressed he indicated that he would check with his Manager and then he came back and said that she was employed there, but her last shift was the 31 October 2006. 538 I note in passing that the 31 October 2006 was a Tuesday and in Ms Nikolis' diary this is one of the three days she was off on carer's leave because of the illness of her young children, it would seem unlikely that this was a day when she worked a shift at DSA. 539 In any event this information did not accord with what Mr Pillai had been told (or indeed I might observe what Ms McDougall had relayed) and as a result Ms Buric sought to clarify the situation by sending the 4 September letter to Ms Nikolis concerning not only the minutes of the 28 August meeting but also asking the two specific questions about her employment at DSA. Questions that were inexplicably not responded to by Ms Nikolis. 540 Ms Nikolis subsequently went to see a psychiatrist Dr Smith (located at Burwood) on the 14 September (a Friday) and said that on her way there (her diary notes a 2 p.m. appointment) she called in to DSA to have them take her off the books. Following this she ceased work and went off on workers compensation (with a WorkCover Certificate) on the advice of Dr Smith and advised Ms Buric of this on 17 September. Dr Smith's report confirms this date (Exhibit 2 - AN3). 541 However on the 18 September Ms Buric was directly contacted by Ms McDougall who told her that she was aware that Ms Nikolis had worked at DSA on Friday 14 September. How she became aware of this information, whether she herself saw Ms Nikolis or some other employee (for example either of the two previously mentioned employees) saw her, has never been made clear. 542 Again, frustratingly, no further detail was forthcoming about this information in either Ms Buric's subsequent documentation or in evidence. 543 In the absence of any evidence to the contrary it would seem to me that, at least as far as the 14 September 2007 is concerned, this was just an unfortunate coincidence that occurred when Ms Nikolis is seen by someone from St George at the DSA premises for her stated purpose of being taken off the books. 544 What can be queried is why she needed to be taken off the books if as she said she had resigned in December 2006 after the meeting. There was the offer of the QC testing work from Dr Jana which Ms Nikolis said in evidence (for the first time) that she did not take up. However she also said in cross examination that she remained on the books because Dr Jana asked her to. 545 It is most unfortunate (and indeed quite negligent from an investigative point of view) that these two items of information (three, if one adds in Nadia Wheatley's information) were not pursued and clarified as to whether they might have provided what could have been very clear and unequivocal corroboration as to any employment Ms Nikolis might have had in the relevant period. Any such information could then have been raised with ms Nikolis. 546 This information from Ms McDougall did however prompt Ms Buric, in the presence of Mr Pillai, to ring DSA and talk to Dr Jana, the owner, to obtain further information, which they did on the 24 September 2007. He also had to be pressed to provide information, disputed what Kristian had said and further queried why he would say that, said Ms Nikolis continued to work there and was working there two evenings per week. He did not say what nights per week she worked. Whilst he was asked specifically if she worked there on 14 September, he said he didn't know exact dates. He also did not give any indication as to a time frame for that work or how long it had been occurring. 547 On 5 October 2007, Debra Wise the workers compensation investigator interviewed Ms Nikolis with an extensive statement taken. That statement was annexed to Ms Nikolis' witness statement. Understandably it was principally concerned with events/issues pertinent to Ms Nikolis' claim of psychological injury arising from alleged bullying and harassment of her by Mr Pillai. 548 There is no reference to this statement in Ms Buric's documentation and it does not appear that Ms Buric would have relied on any information it contained in her subsequent documentation. However Ms Buric did subsequently receive from Ms Wise the email information that Ms Wise was sent by Dr Jana in response to her specific enquiries about Ms Nikolis' employment history at DSA. 549 Part of the relevant information provided to Ms Wise by Ms Nikolis was that she "listed" DSA as "her place of part-time employment at the time" (emphasis added), she was applying for the St George position and said "Sudha would later accus (sic) me of not declaring this part time employment but I believed I did so". 550 This contradicts her evidence elsewhere that she did more than just "list" the DSA position but also specifically discussed it with Mr Pillai in the interview in the presence of the panel. 551 This would seem to me to indicate that all along she thought that merely listing DSA as part time employment at that time was sufficient notification of her intention to continue that work. 552 However she does also go on to indicate in the statement as to the detail of the conversation she said Mr Pillai had with her on her first day, with him asking her if she intended to keep the job and her telling him she was still working a couple of nights and was that a problem, to which he responded that he didn't care what she did in her own time. This in some respects reflects the notation in her diary (at least as to the question asked) but gives specific detail as to the response not previously given anywhere else. 553 I referred above to the information she said she gave to Ms Buric in December meeting, she also said she wasn't aware of the form, but didn't need it as she wasn't continuing to work there. 554 I have also already referred to the contradictory evidence concerning her statement to Ms Wise about resigning in October. 555 On the 17 October Ms Wise sent her email enquiry to Dr Jana. It specifically requested detail of Ms Nikolis' employment since June 2006. The information that he provided in his two emails in reply, substantially corresponds with the information he gave to Ms Buric in the 17 September telephone call. Again he had to be pressed for clarification and detail, which was unfortunately not as specific as requested. 556 It would also appear from that email exchange that Ms Wise may have had some doubt about the previous information coming from Kristian at DSA as she also indicated ".. I would be interested if Anna had advised Accounting not to disclose her employment, but only if you feel comfortable in this regard." There was no response to this by Dr Jana. 557 Ms Ryan sought to cast doubt on the accuracy of Dr Jana's information and has submitted that the explanation is that he got his years mixed up and that what he really intended to convey was that she had last worked in October 2006 (and commenced in August 2005). 558 I have difficulty accepting that scenario, not only given the specific nature of the enquiry made, but more significantly given what he had previously told Ms Buric. The information he provided to Ms Wise would seem to me to confirm the information he had given, just 23 days before to Ms Buric. The only contradiction in his information is a reference to "August" (2006) when by all accounts Ms Nikolis was also working for DSA in June and July 2006. Ms Ryan's submission would also fly in the face of Ms Nikolis' résumé which indicated that she commenced in June 2005, not August. 559 I agree that a possible explanation for reference to "August" is the part-time work commenced by her husband in July 2006 and the subsequent payment into their newly established joint ABN account (see 14 December letter to Ms Colbert). However this does not mean that it precludes the possibility (or indeed the probability) that Ms Nikolis was working for DSA from that time on but was paid into that joint account rather than into her own ABN account (she said she had had a separate ABN). 560 I acknowledge that no enquiry was subsequently made of any possible work by the husband of Ms Nikolis and when this might have occurred. However at that stage that information about the husband's work had not been conveyed to either Ms Buric or Ms Wise. 561 I can see no reason, as suggested by Ms Ryan, for SESIAHS to doubt the veracity of the information obtained from Dr Jana, on two separate occasions and to prefer instead Kristian's information. Dr Jana was the General Manager and a Director no less. He had also cast more than just doubt on the previous information supplied to Ms Buric by Kristian. Ms Buric noted in her record of this phone conversation (heard by Mr Pillai and confirmed in his evidence) that he said to her "why would Kristian say a thing like that when Anna continues working at DSA". On that basis Kristian's information was clearly now discredited. 562 Taxation returns of Ms Nikolis were tendered in evidence but they do not name DSA as a source of income and the information contained is not helpful in trying to establish just what and when her employment/contacting at DSA had been at the relevant time. 563 On the 29 November 2007 Ms Colbert sent a very detailed letter to Ms Nikolis and also attached a copy of the earlier 4 September letter from Ms Buric (and noted specifically that there had been no response to that letter). Ms Colbert's letter then squarely raised the issues of concern to the Area Health Service in relation to her secondary employment and specifically indicated in relation to the 28 August meeting:- At this meeting you also gave consent to the Senior HR Consultant to contact Diagnostic Services Australia (DSA) to verify employment. The Area Health Service has since obtained information from DSA confirming your employment with them from August 2006 until October 2007. ( emphasis added) . It is also noted that this period of employment with DSA has coincided with your period of unfitness for duty with South Eastern Sydney and Illawarra Area Health Service. The Area Health Service considers this behaviour to be a serious breach of Area policy , specifically the SESIAHS Code of Conduct. (emphasis added). 564 Ms Nikolis responded to this letter on 14 December 2007 (see Background and Chronology above): § She reiterated that the people at the interview were aware she had two jobs and that at no time during the interview was she advised she needed the Hospital's written permission to continue with her part-time arrangement at DSA. § She attempted to clarify her secondary employment with Mr Pillai on the first day with no mention made of written permission or the code of conduct. § There was reference to her husband's part-time work with DSA from July 2006 and that they both "operated" under a joint ABN payment arrangement. § She then reduced her hours to 3 or 4, on 1 or 2 nights per week (usually Fridays and Saturdays). § The 14 December meeting was unfair because the issue wasn't on the agenda and because Mr Pillai had known since the first day that she was still on the establishment of DSA. § The issue of being promised weekend work, but not being on the roster, was referred to, with Maria telling her she could consider seeking outside employment if she wasn't on the roster for overtime in 2007. She also indicated what she said happened in relation to obtaining the form, but said she did request and was given a form by Maria, but was not aware that it was a mandatory form. § After the meeting she gave verbal notice to DSA to discontinue employment. § They subsequently made an offer to stay on as a lab consultant and occasionally look at some QC results, there was no written contract, no set or minimum hours or days, no time sheet, with an agreed set figure deposited in her account. § In the 28 August meeting she indicated she informed Ms Buric about previously informing Mr Pillai of her "continued employment with DSA" and he advised "he did not care what I did". Mr Pillai "again" denied this. She also hadn't received the code of conduct and Mr Pillai denied this. § She advised she was aware of other employees who had second jobs, Mr Pillai denied this. § She "asked" Ms Buric to contact DSA directly. § On the 14th September she went to DSA to tell them to remove her name off their books and continued on to see a psychiatrist who certified her unfit for work. § She had been off work since 14 September 2007 - nor had she been working anywhere else. 565 Based on this letter and indeed what she has said in her evidence she continued working at DSA until December 2006. There was no mention of any resignation from DSA taking place in October 2006, as she told Ms Wise but as she now says in her evidence she should have corrected. Did she give misleading information to Ms Wise? 566 Unfortunately there was also no indication given in any way in this letter as to whether the offer of contract work at DSA after December 2006 was rejected or was taken up and she actually carried out such work. Although in her oral evidence she did say that she did not get back to Dr Jana and then had the car accident but also said he asked her to stay on the books. 567 Similarly the only reference to not working elsewhere was made in a way that links it merely to the period after 14 September 2007. 568 It is unclear to me whether she intended this reference to mean she had not been working anywhere else since some earlier point in time, such as December 2006. However she did not, in specific terms, answer the question posed to her by Ms Colbert and directly respond to the information that they said had been received specifically from DSA. 569 I reject entirely Ms Ryan's submission that this was just a failure to respond to "minutiae". It was much, much more than "minutiae". it was the very heart and substance of the allegation being put to Ms Nikolis based on specific information given to SESIAHS. 570 I can well understand that following receipt of this letter SESIAHS were of the view that she had been engaged in work for DSA in 2006 (and when she denied such at the December meeting) as well as after December 2006 (at the least the consultancy work) and only since 14 September 2007 had she not worked elsewhere. 571 Again I consider that Ms Nikolis has evaded the issue of responding to a specific allegation and providing clear and unequivocal information as to her secondary employment with DSA. 572 I acknowledge that Ms Nikolis never received a response to this letter. She was also never subsequently interviewed in relation to the allegations raised against her. 573 True it is that she was off work, but she was not on workers compensation during the period following her letter of 14 December 2007 and up until her termination, liability having been denied by the Insurer (which resulted in the subsequent Workers' Compensation proceedings). She could have been requested to attend either a further fact finding meeting or indeed a formal disciplinary interview (with support person) to enquire into the allegation and her responses (or lack of specific response). Although I also acknowledge that this may have been considered inappropriate due to her stated medical condition (psychological injury) as well as the fact that she had raised issues about attending the meeting Ms Buric had attempted to arrange in early December 2007 to discuss her grievance (based on the advice of her Psychiatrist as to certain conditions to be met for such a meeting - an agenda and an advocate rather than just a support person). That meeting did not go ahead. 574 The evidence about how the matter proceeded as it did after December 2007 is certainly somewhat unsatisfactory. 575 At the least her letter should have been acknowledged. If the answers were considered unclear or unsatisfactory then Ms Nikolis should have been advised of such and either given further opportunity of making a response or told what was likely to take place as a consequence. 576 Ms Colbert was not called to give evidence about what views she might have formed but the letter was obviously referred on to Ms Buric. 577 It seems clear from the evidence of Ms Buric that no formal disciplinary process as such was initiated. Indeed it appears that there was considerable dithering around as to what could or should be done as is evidenced by Ms Buric's email to Ms Sassu in June 2008. Pressure was coming from both Mr Pillai and Mr Cobain about the situation (inability to fill the position permanently) and Ms Nikolis was now seeking long service leave on half pay with no indication of any likely return to work forthcoming. 578 There is no evidence that there was any investigation of, or further enquiries made about, the original sources of the information concerning Ms Nikolis being seen working at DSA by two (and possibly three) other St George employees. 579 Ms Buric's Internal Briefing document (Exhibit) refers to "investigations have shown that Ms Nikolis was in fact working at DSA whilst unfit for work with SESIAHS". What other enquiries or investigation might have been made is unclear. 580 Ms Buric's evidence was that reliance was placed on the documentation provided by Dr Jana (his emails) to support the view that she had worked at DSA from August 2006 to October 2007. 581 It is also clear from Ms Buric's internal briefing document that she had formed the view, in relation to the 14 December letter, that ... "in this response Ms Nikolis advised that she had been employed by DSA since 2005." There is no reference to the resignation she said she gave in December 2006. 582 There is also reference to ..."Ms Nikolis acknowledged being employed as a subcontractor since August 2006". This seems to be based on the information from Ms Nikolis about her husband and the joint ABN arrangement after July 2006. 583 The internal briefing document concluded with the Recommendations that documentation had been provided which supported the view that Ms Nikolis had not been honest and mislead the Area Health Service in matters concerning her secondary employment and thus had breached her conditions of employment and the SESIAHS Code of Conduct, with an attached letter to be signed (presumably the "show cause" letter from Mr Clout). 584 There was no contact whatsoever with Ms Nikolis between the letter from Ms Colbert in November 2007 and the "show cause" letter from Mr Clout in September 2008. 585 I am less concerned with the length of time taken to progress this matter than I am with the absence of any formal disciplinary process, or investigation and Ms Nikolis being aware of such taking place. 586 In addition I am concerned at the apparent absence of any follow up of information from other St George employees that might have provided clear confirmation of work at DSA at the relevant time. 587 These concerns will be commented on further below. 588 The length of time taken and the dithering that occurred in 2008 does however show, in my view, that the SESIAHS could hardly be said to be rushing to get rid of Ms Nikolis and were therefore out to get her. 589 Mr Clout's show cause letter of the 15 September 2008 to Ms Nikolis indicated that her response to Ms Colbert of 14 December had been "reviewed". She was then given very specific detail of the allegation concerning her secondary employment (two evenings per week from August 2006 to October 2007) and the two occasions (the two meetings) when she had denied such employment. She was clearly advised that he ..."was inclined to accept" a recommendation that her employment be terminated on the basis of her failure to inform SESIAHS of her secondary employment. She was given an opportunity to provide reasons in writing why she should not be terminated. 590 Turner Freeman, on behalf of Ms Nikolis, had forwarded to Mr Clout a letter of the 24 September dealing extensively with, and detailing allegations of "harassment, discrimination and victimisation in the course of her employment" that had led to the "development of a serious psychiatric injury" as well as allegations of discrimination in the course of her employment on the grounds of her sex, including family responsibilities and her disability. It was advised that a complaint was to be lodged with the Human Rights and Equal Opportunity Commission. 591 Also on the 24 September Turner Freeman responded to the show cause letter and denied that she failed to inform the Area Health Service of her secondary employment but did not answer in any way the very specific allegation raised. 592 The letter merely indicated that she had disclosed her secondary employment on commencement (in her application for the position, during the interview and during the period of orientation). Specific detail was given as to the conversations that allegedly occurred during the interview and the period of orientation (the latter being first time in fact this was raised with SESIAHS). Further, reliance was placed on Mr Wendelin from DSA not only as being a reference but as to being contacted in this respect with the letter indicating "... we are further aware that Mr Wendolin (sic) confirmed that the employment with Diagnostic Services Australia was ongoing. This information can be confirmed by Mr Wendolin (sic) if required". 593 This was just not correct and reliance cannot be placed on Mr Wendelin as providing confirmation of her ongoing employment at DSA. 594 Mr Wendelin's evidence in these proceedings, quite unequivocally supported the evidence of Mr Pillai that in the telephone conversation between the two on the 30 May 2006 he only confirmed that she was a "current employee" at DSA. However this was clearly employment at that time, and he made no mention at all that that employment was of an ongoing nature. 595 Further I have also taken into account that when he was asked in cross-examination whether the effect of his evidence was that she worked until August 2007, he clarified that by saying he didn't see much of her after the car accident and did not see her on a regular basis. While this does not appear to support Dr Jana's evidence and indeed would contradict that information, it does not eliminate the issue of ongoing employment of some nature such as the QC testing (with no set hours etc) or some other contractual work. He certainly did not say that he did not see her at DSA at all after the car accident. 596 Ms Ryan sought to downplay this evidence of Mr Wendelin, notwithstanding the reliance placed on him by Turner Freeman in their letter as noted to above. 597 The Turner Freeman letter went on to say: On the basis of that information, as well as the assurance given to Ms Nikolis during her job interview, she did not do anything further in relation to the secondary employment. 598 Whilst I can accept Ms Ryan's submission that in this letter Ms Nikolis "neither lied nor failed to disclose" her secondary employment with DSA, this was employment in 2006 and at no point in the letter was there any specific response or reference to the allegation raised about Ms Nikolis working for DSA during 2007 whilst she was on workers compensation. The allegation simply went unanswered. 599 In fact, based on this letter, there is no denial at all that Ms Nikolis continued to work for DSA as a subcontractor two evenings per week from August 2006 to October 2007. There is also no acknowledgement that she denied such work on 28 August 2007 or in her letter of 14 December 2007. 600 The only mitigating factor raised was the issue of the grievance being lodged, together with its timing, the process followed and Ms Nikolis not being aware of any attempts to progress that matter. The recommendation for termination was not agreed with, it being stated that ..."termination in these circumstances would be unfair and possibly unlawful". 601 Turner Freeman could of course only give advice, and act, on the basis of the information Ms Nikolis provided. That information was clearly flawed in her understanding of relevant events (the grievance for a start) and just what information was being sought (and was provided by her) on various occasions and indeed her information was incomplete and inaccurate. 602 Not surprisingly Mr Clout's response to the Turner Freeman letter was to proceed to issue a letter of termination to Ms Nikolis on the 15 December 2008. I acknowledge this was five to six weeks after the Turner Freeman letter, but again it could certainly not be said that SESIAHS was rushing headlong to take action to terminate Ms Nikolis and clearly what information was provided in the response was considered as can be seen from Mr Clout's letter. 603 In the letter of termination reference was made to Ms Nikolis' denials of secondary employment in December 2006 and August 2007 but that despite those denials it had been substantiated that she had engaged in outside employment with DSA for the period August 2006 to October 2007. This is clearly a reference to the information provided by Dr Jana but which was never specifically responded to or refuted by Ms Nikolis. 604 The letter then went on to say: It appears from the responses provided on your behalf, that there has been a shift in your position relating to this matter, from denial to an allegation that your outside employment was undertaken with consent by your manager. On the basis of all the information provided to me, I am satisfied that all reasonable attempts have been made by the Area Health Service (which include your manager) to raise the awareness of your employment obligations regarding outside employment and to convey to you the appropriate procedure for obtaining approval. Your obligations as an employee were outlined in your contract of employment in which you returned a signed acceptance prior to your commencement; at hospital orientation where it has been confirmed you attended; and at the meetings held in relation to this matter. I am also aware that a copy of the SESIAHS Code of Conduct policy and Outside Employment form was provided to you following the meeting held in December 2006. I have taken the view that despite education and counselling, you have been less than open and frank in disclosing your outside employment and did not followed the correct procedure to obtain approval. Your failure to inform the Area Health Service of your secondary employment is a serious breach of the SESIAHS Code of Conduct. 605 The decision to terminate her services, effective immediately, was then advised. 606 The issue leading to termination was not the mere fact that she had secondary employment and did not follow procedures to obtain appropriate approval. Ms Ryan is correct that that issue of itself would not warrant dismissal. The issues that resulted in her termination were the denials of such secondary employment when in fact the information available indicated the contrary was the case, her evasiveness and her failure to follow procedures set out in the Code of conduct when they had been drawn to her attention on more than one occasion (particularly from December 2006). 607 As I raised at the outset, the issue for the employer (and indeed the Commission) has never been that Ms Nikolis did not disclose the DSA employment at the time of the interview (by way of her résumé and reference from Mr Wendelin), the issue was that she subsequently denied the continuation of that employment and was evasive and probably untruthful when attempts were made to obtain relevant information from her about that secondary employment. She was also made aware as to her obligations and the process required (the form) to obtain approval for such employment. 608 Having carefully considered the totality of the evidence, and I concur substantially with the submission of Mr Sullivan as to the findings of fact the Commission might make, and but with the inclusion of additional findings of facts which I now formally make: 1 Ms Nikolis declared her secondary employment with DSA as at the time of the interview in May 2006 but did not indicate any intention to continue to work part-time at DSA. 2 Mr Pillai did not give approval for the continuation of such work during the interview. 3 Mr Wendelin only confirmed the employment at DSA was current at the time of the May phone call with Mr Pillai and did not indicate the employment was to continue. 4 Ms Nikolis did not ask Mr Pillai during orientation whether she needed to complete a form to undertake outside employment. 5 Mr Pillai did not give approval for Ms Nikolis to continue with her secondary employment during the induction period. 6 Ms Nikolis did receive a letter of offer which specified the need, consistent with the respondent's Code of Conduct, to obtain consent to undertake secondary employment. 7 SESIAHS appropriately attempted to address attendance and punctuality issues relating to the applicant at meetings on 6 September and 14 December 2006, with offers of different hours of work and part-time work being made. 8 Ms Nikolis submitted a formal complaint about Mr Pillai which was received by SESIAHS on 19 December 2006, not prior to a meeting held on 14 December 2006 as claimed by the applicant throughout this matter; 9 Ms Nikolis did not raise the issue of her grievance with Ms Buric prior to the meeting commencing. 10 Ms Buric subsequently attempted to progress the complaint made by Ms Nikolis in accordance with SESIAHS grievance handling policy and made numerous attempts to meet with Ms Nikolis without success, to discuss the details of her complaint and the outcome she was seeking; 11 Ms Nikolis denied that she was then working for DSA in the meeting of 14 December 2006, which denial was incorrect based on her subsequent letter of December 2007 as well as her evidence. 12 Ms Nikolis was advised by Ms Buric during the meeting as to her ability to work casually after hours if she was not on the 2007 overtime roster, the requirements of the Code of Conduct for approval for such work and provided with a copy of the Approval to Engage in Outside Employment Form after the meeting. 13 Ms Nikolis denied that she was working at DSA in the meeting of 28 August 2007, which denial, on the balance of probabilities, was incorrect. 14 Ms Nikolis intentionally did not respond to specific questions about her secondary employment as contained in Ms Buric's letter of 4 September 2007. 15 SESIAHS acted upon information provided by the owner of DSA that the applicant had been working, either as an employee, or as a contractor, between August 2006 and October 2007. Acting on such information was not unreasonable in the circumstances. 16 SESIAHS specifically put this information, and its source, to Ms Nikolis in the letter of 29 November 2007 and sought her response. 17 Ms Nikolis did not respond directly to this information in her letter of 14 December 2007. 18 Ms Nikolis was not forthright in providing the respondent with details about her employment with DSA between August 2006 and October 2007. 19 Ms Nikolis, on the balance of probabilities, did carry out work for DSA in 2007 and whilst on workers compensation. 20 Based on the information provided to SESIAHS together with what information Ms Nikolis did provide in her letter of 14 December 2007, SESIAHS subsequently asked the applicant to show cause why her employment should not be terminated in relation to her failure to be truthful about the circumstances of the secondary employment; 21 The responses received by SESIAHS from Turner Freeman on behalf of Ms Nikolis failed to address the substantive allegations made and instead alleged, without foundation, that allegations were being made by SESIAHS because of the grievance which Ms Nikolis had initiated against Mr Pillai. 609 Having found those facts, in answer to the first question posed in Natoli and applying the test in Briginshaw and Briginshaw, the probability is that Ms Nikolis was working at DSA up to December 2006 despite her denial of such work and she she did in fact carry out work for DSA during 2007 when she was on workers compensation from SESIAHS. The respondent has therefore discharged the onus it bears to establish that misconduct took place. 610 I also consider that it is more than just a probability that she has been evasive in her responses on the various relevant occasions, I consider that she was in fact evasive and not forthright. I just cannot understand why she could not have been more frank and forthcoming when she was given the opportunity (and there was more than one opportunity provided to her) of clarifying the situation concerning her secondary employment with DSA. 611 It has been this evasiveness that has undermined Ms Nikolis' credibility together with the contradictions in her evidence, the shifting positions she has adopted and the readiness with which she provided, what appeared to me to be at times, somewhat glib explanations to explain an earlier contradiction or change in position. At the end of the day I am just not able to believe Ms Nikolis. 612 I acknowledge that there is a possibility that Ms Nikolis has either misunderstood the situation or simply provided insufficient explanation and I do not know to what extent her psychological condition may have impacted on her memory or recollection of events or affected how she responded to the requests made for clarification/specific information about her secondary employment and thus may have created or exacerbated the situation. 613 Given that I have found that on the balance of probabilities that misconduct as alleged did occur, then the answers to the second and third questions in Natoli must be addressed. In a way those two questions are linked. 614 If it can be considered that Ms Nikolis' had acted in breach of her duty of fidelity and good faith and her actions constituted a repudiation of her contract of employment (the third question) then it would be difficult, in my view, not to also come to a conclusion that in those circumstances dismissal was not too harsh a penalty (the second question). 615 The on issue of repudiation of the employment contract Sams DP observed in Natoli at para.225 as follows: The allegations against the applicant were described as misconduct - the additional objectives "wilful" or "serious" were not used. However, in my opinion, where an employee has been dismissed for misconduct, the conduct must be such as to constitute a repudiation of the contract of employment by the employer. There must be disclosed a wilful and deliberate attempt by the employee which strikes at the very heart of the employment relationship. 616 He then went on to cite the relevant authorities such as North v Television Corporation Ltd (1976) 11 ALR 599, Day v Lumley Life Limited (1999) 90 IR 70 etc. I am also familiar with those authorities and they were also considered in Simmons where I found that misconduct was committed (and in fact was serious and wilful) and clearly struck at the heart of Mr Simmon's obligations as an employee and was therefore an "absolute" repudiation of the contract. 617 In relation to Ms Nikolis' misconduct it is difficult, if not impossible, not to come to the view that she was intentionally evasive and not honest about her secondary employment with DSA. That being the case, in my view, her conduct does strike at the heart of her obligation's as an employee and does represent a repudiation of her employment contract. 618 A dismissal can be both substantively and procedurally unfair. The case usually quoted in this regard and that has been applied in numerous decisions of this Commission is Byrne v Frew & Anor v Australian Airlines (1995) 61 IR 32 (at p. 72). 619 I have already found that on the balance of probabilities Ms Nikolis did commit misconduct and that SESIAHS has discharged the onus on it to established such. Therefore applying Byrne & Frew I am unable to find that the termination of Ms Nikolis was harsh, unjust or unreasonable on a substantive basis. 620 In considering whether the termination was procedurally unfair I have expressed concerns as to the process followed by SESIAHS. In particular the failure to follow up inquiries of those other St George employees who provided information about seeing Ms Nikolis working at DSA. This information may have assisted in putting the issue beyond doubt. 621 There is also the apparent absence of a formal disciplinary process being initiated. However it is acknowledged that the absence of Ms Nikolis from the workplace (and the reason for that absence) may have mitigated against this. 622 However I have to say that I agree with the submission of Mr Sullivan that nothing changed in the information Ms Nikolis provided to SESIAHS in December 2007 and what she subsequently provided in December 2008 (indeed there was less information as there was no mention at all about the latter part of 2006 or about 2007). 623 I have already indicated above that I am not concerned with the length of time taken by SESIAHS to finally come to a decision to terminate Ms Nikolis. I consider that in fact it demonstrates that SESIAHS was not moving with any particular undue haste or sense of purpose as part of some other agenda linked to her grievance against Mr Pillai. 624 Notwithstanding the concerns expressed above, I am satisfied that overall the process followed by SESIAHS was fair and that the concerns I have raised are not so serious as to strike down the termination for want of procedural fairness. 625 Clearly SESIAHS acted on the basis of information provided by Dr Jana as a significant principal of DSA. However, it was as a consequence of that information (not any other information that may also have been available), that Ms Nikolis was given three opportunities, in writing, of providing specific information, in response, about her employment with DSA (4 September and 29 November 2007, 15 September 2008). · In the first opportunity provided she did not respond at all to the direct questions asked. · In the second opportunity she was specifically provided with both the source of the information and the actual allegation as to when she had worked at DSA and asked to respond. She was also advised that her conduct was considered a serious breach of the Code of Conduct. She did not respond to the specific allegation raised and the information she did provide could be taken to have substantiated that she did work for DSA at the relevant time as alleged. · In the third opportunity, the show cause letter repeated the allegation and the basis for such and also put her on notice that termination had been recommended and was being considered and she was given the opportunity of again responding to the specific allegation. Her response did not address the specific allegation raised in any way. 626 In those circumstances there was no other option open to SESIAHS but to proceed with the termination. 627 Notwithstanding that I have found, on the balance of probabilities, that the SESIAHS has discharged the onus it bears to establish that misconduct took place, the onus still remains on the applicant to establish whether or not her termination in all the circumstances was harsh, unjust or unreasonable. 628 The expression "harsh, unjust or unreasonable", was also considered in Byrne (also at p.72). The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 at p.182 and in numerous decisions of this Commission. Essentially, those cases hold that is not necessary that a termination be found to be harsh and unjust and unreasonable. It can be one, or any, or all, of those three. 629 The meaning of those individual terms was been considered in detail in Sams v Contact Point International [2001] NSWIRComm 18 and that decision has been applied in numerous other decisions of this Commission. I also adopt those considerations. 630 Bankstown City Council v Paris (1999) 93 IR 209, is authority for the necessity of the Commission making a positive finding as to whether the termination was harsh, or unjust, or unreasonable (or any combination thereof) and the grounds upon which the Commission so finds. 631 This approach was reiterated by the Full Bench in National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at paras [64] and [65]: 64 Finally, we stress the importance of a Member of the Commission at first instance in s 84 proceedings dealing expressly and specifically with the tripartite statutory test. As the Full Bench observed in Outboard Marine Pty Ltd T/As Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the tribunal should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, with the dismissal was or was not harsh, unreasonable or unjust. 65 In the present case, Cambridge C found that the dismissal of the applicant was not harsh, unreasonable or unjust and we consider an examination of the Commissioner's reasons support his conclusion. It would have been preferable, however, if the Commissioner had spelt out in clear terms why, under each limb of the tripartite test, the dismissal was not an "unfair dismissal". Conclusion 632 In this matter, based on the evidence and submissions before me and my consideration of that evidence and those submissions as outlined extensively in detail above, I have found, on the balance of probabilities, that misconduct occurred. This constituted a repudiation of the employment contract. The termination was not procedurally unfair. I therefore find that the termination of Ms Nikolis was not harsh or unjust or unreasonable in the circumstances. 633 Ms Nikolis sought re-employment or monetary compensation in lieu thereof. In view of the findings I have made it is not necessary to further consider the question of appropriate remedy or the authorities that have been cited by the parties. 634 However I note that Ms Nikolis has been awarded weekly compensation payments (of varying amounts) as from the 14 September 2007 and continuing as at the date of the hearing of this matter. The only material before the Commission indicates that she is not medically fit to return to her former duties/work and that may have raised considerations as to what other duties/work might be appropriate or available if a different conclusion had been reached in this matter. 635 The application is therefore dismissed and this matter concluded accordingly. Elizabeth Bishop 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.