Industrial Relations Commission of New South Wales CITATION: Nayla Azar and Dr Sushila Badami (Badami Family Medical Practice) Pty Ltd [2006] NSWIRComm 1103 APPLICANT Nayla Azar PARTIES: RESPONDENT Dr Sushila Badami FILE NUMBER(S): 4641 of 2005 CORAM: Murphy C Applicant summarily dismissed following interview involving Australian Medical Association (AMA) representative to discuss behavioural issues to do with accessing employer's personal e-mail; misrepresentation of qualifications and capabilities; failure to desist from nursing duties; disrespectful and abusive manner of communicating with employer; refusal to obey lawful directions. CATCHWORDS: Adverse credibility findings against applicant in favour of respondent's evidence establishing matters relied upon for termination. Dismissal neither harsh, unjust or unreasonable. Costs reserved. LEGISLATION CITED: Industrial Relations Act 1996 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Franklins Ltd v Webb (1997) 72 IR 257 at 261 Inspector Vince Castro v Supreme Poultry & Chickens Pty Ltd & Anor {2005} NSWIRComm 386 at {35} Four Sons Pty Limited v Sakchai Limsiripothong {2000} NSWIRComm 38 at {10} Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 North v Television Corportion Ltde (1976) 11 ALR 599 CASES CITED: Concut Pty Ltd v Worrell and Anor (2000) 103 IRC 160 Azar v Ritchie {2005} NSWIRComm 1124 Antonakopoulos v State Bank (1999) 92 IR 385 Humphries and Cootamundra Ex-Services and Citizens Memorial Club Limited {2002} NSWIRComm 225 at {194} Electricity Commission of New South Wales t/as Pacific Power v Nieass and Others (1995) 81 IR 46 Bankstown City Council v Paris (1999) 93 IR 209 (at 212) Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 HEARING DATES: 16/02/06, 17/02/06, 15/05/06, 22/06/06. DATE OF JUDGMENT: 08/22/2006 APPLICANT Nayla Azar represented herself LEGAL REPRESENTATIVES: RESPONDENT Mr T Saunders (Counsel) DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MURPHY C 22 August 2006 Matter No IRC 4641 of 2005 NAYLA AZAR AND DR SUSHILA BADAMI (BADAMI FAMILY MEDICAL PRACTICE) PTY LTD Application by Nayla Azar re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1103 1 The applicant was employed as a Medical Receptionist for a period of twelve months from September, 2004 until her dismissal on the 26th August, 2005, which was followed by this formal written advice of the reasons for termination: "Badami Family Medical Practice 31/08/2005 Dear Ms Nayla, As per our meeting on Friday 26 August 2005, I wish to formally notify you that your employment with Sushila Badami Pty ltd has been summarily dismissed on 26 August 2005 due to your breech of trust by: 1. Accessing my personal email account without my authority and/ or consent; 2. In the light of the findings of a recent decision of the Industrial Relations Commission in regards to employment with Dr James Ritchie, you have misrepresented your skills and physical capabilities that you held and your work experience in previous employment; 3. Your continued insistence upon taking some level of nursing duties despite repeated advice from myself that you are not to do so; 4. The manner in which you have communicated with myself both verbally and in writing which I found to be disrespectful and abusive; 5. Your refusal to obey lawful directions I have issued you with. A cheque for all outstanding annual leave entitlement will be posted to you as soon as it has been calculated. Yours sincerely, Dr Sushila Badami" 2 The matter was the subject of a preliminary ruling by the Commission on the question of a Notice of Motion filed by the applicant and referred to me for determination as to whether or not the respondent's material filed outside of the time directed should be admitted. 3 Those proceedings took place on the 14th February, 2006 and the Commission ruled in favour of the admission of the material and the matter proceeded then on the 16th and 17th February followed by 15th May for hearing of the substantive matter. Final submissions occurred on 22nd June after which the Commission reserved its decision. 4 The applicant had represented herself. 5 The respondent was represented by Mr T Saunders of Counsel. APPLICANT'S CASE OUTLINE 6 Broadly speaking, the applicant's case revolved around an alleged failure by the respondent to properly recognise and reward the contribution made by the applicant to her employer's medical practice and when she raised such issues and made remuneration claims, that led to her termination some months later, and in the process she was also denied procedural fairness. 7 The applicant claimed amongst other things throughout her affidavit, which is marked Exhibit A in these proceedings, that the respondent had effectively classified her as Practice Manager (as opposed to a receptionist) and underpaid her and that she had also been classified as the "Practice Nurse". She further claimed that the respondent had classified her as "Practice IT". This was to support the applicant's pursuit of a salary claim and overtime which she felt was due to her. 8 In support of these claims, attached to her affidavit were various documents capable of some ambiguity as to the title of her position. The applicant seized upon those references in those documents as proof that the respondent had regarded her and required her to work as Practice Manager and generally at a higher level of what she was paid as a receptionist under the Clerical and Administrative Award Grade 4. 9 The applicant claimed that the respondent had not paid her the promised amounts when she was recruited, although the respondent attempted to rectify that along the way. 10 Also attached to her statement at Annexure (f) was a claim for certain overtime allegedly worked by the applicant, which the respondent had refused to pay and salary for in the first week of her employment. Associated with that at Annexure (g) was a claim that the respondent had been required to rectify certain payments previously underpaid. 11 The applicant also attached to Annexure (r) of her statement a reference which she claimed to have been given to her by the respondent "for her dedication to her work" on the 22nd March, 2005. 12 She attached to her statement correspondence from GIO, suggesting that the applicant had been under enormous tension as of the 22nd April, 2005 by the employer "due to her misbehaviour towards the applicant". 13 At Annexure (k) of the applicant's statement, was the first of several letters over subsequent months from the applicant to the employer claiming that she was undergraded and that she should have a raise in her wages over the subsequent months. Her 10th June, 2005 letter referred, amongst other things, to the need to give "the applicant a respect due to the respondent's misbehaviour towards the applicant". Also closely related to that was a letter from the applicant of the 22nd June to the respondent, demanding an underpayment of wages and Annexure (m) was a copy of a wages invoice dated the 5th June, given to Doctor Badami in that connection. 14 The applicant next referred to a decision of Commissioner Patterson given in Matter number IRC 7507 of 2003 where the applicant claimed an unfair dismissal against Doctor Ritchie. That decision of the Commission was dated the 4th August, 2005. The applicant claimed that this decision of the Commission had led to the employer terminating her employment "as a result of the false findings by the decision". 15 Also attached to her statement at Annexure (o) was the (draft) letter given to Dr Badami by the doctors representative, Mr Kinley of the Australian Medical Association dated 23rd August, obtained by the applicant, intended to advise the applicant of a meeting scheduled to discuss some half dozen key issues in dispute. At Annexure (p) was a reply sent by Ms Azar to the draft letter dated the same day to that AMA representative, after the applicant became aware of the AMA draft letter seen to be addressed to her and took it upon herself to reply before it was actually sent. 16 At Annexure (t), the applicant attached the official version of the above letter dated the 25th August from the respondent's AMA representative, to the applicant setting out the matters to be discussed at the proposed meeting then scheduled for the 26th August at 2.30pm at Dr Badami's practice. In reply also to that letter, the applicant also attached, at Annexure (s), a copy of a further letter from the applicant of the same date in response to that final letter received from the respondent's representative advising of the interview on 26th August.. 17 The applicant also attached a copy of a draft deed given to her at the dismissal interview in proposed settlement. 18 As a result of a meeting on 26th August 2005, the applicant was dismissed and attached at Annexure (q) was her termination letter dated the 31st August, 2005. The Applicant's evidence under cross-examination 19 As part of her claim of being mistreated, undervalued, underpaid and underclassified as a mere doctor's receptionist for work she performed, the applicant claimed that during the first three months, which she described as her probation, Dr Badami classified and promoted her as a Practice Manager. Her testimony was "but obviously she classified me her manager. It's me being in charge of all her administration and all her work". She further claimed "yes, she referred me officially being her Practice Manager to every patient who attended the surgery, plus the staff". She claimed that that was backed up in writing by terminology used on official forms she attached to her statement - Annexures (c), (d) and (e) to her affidavit. 20 In that area of the evidence, (i.e. the value she brought to the receptionist job) Ms Azar claimed that the Doctor would cuddle her and tell her in front of patients that she was the Practice Manager and say, "and I thank God twice every day for giving me Nayla". 21 As to her claim of being classified by the Doctor herself as Practice Manager, at Annexure (c) of Exhibit A the applicant claimed there was reference on an Ethos Health form to the applicant being Practice Manager in the Doctor's own writing. That document, whilst prepared for a conference, was in the applicant's view "a formal document she's got to give the Government in relation to a subsidy that is called Ethos Health". She went on to repeat that claim several times when challenged in cross-examination by Mr Saunders as to what the respondent believed the true nature of the document. At Annexure (d), similarly, on another Ethos form headed Practice and Staff Details, the applicant claimed that her employer had referred to her as Practice Nurse. She denied having prepared the document herself and typing in the designations, and pointed out that the document had been signed by Dr Badami in the original copy which was in her possession at home, and when pointed out to her by Mr Saunders that Annexure (d) of her affidavit had not been signed, she again claimed that the documents had been signed. Her further explanation in that area became puzzling and does not bear repetition here due to lack of clarity. 22 At Annexure (e) of Exhibit A, the applicant claimed that Dr Badami had also classified her as "Technical Support, which is IT", again claiming that it had been signed by Dr Badami, and again claiming that the form had been sent to a government department, further claiming that it had been faxed "to certain departments". When challenged that there was no part of the form in Annexure (e), which has a box designated Practice Receptionist, the applicant claimed that Dr Badami "specifically ticked Practice Manager, Technical Support, Nayla Azar". She also claimed that the Doctor could have written Receptionist, but did not and therefore specifically put Practice Manager, Nayla Azar. The applicant denied strongly that Annexure (e) related to a training course that she wished to attend. She believed it was a contract between Dr Badami and someone else, and had nothing to do with her. She claimed to have three such documents, but denied that it was opportunistic of her to have kept a copy of Annexure (e) to try and establish that her position was other than what it was. 23 The applicant was then referred by Mr Saunders to Annexure (h) of the Affidavit of Dr Badami, which was a letter from the applicant to the respondent dated the 10th June, 2005. He quoted her own words from the letter, "I would like to point the fact that the position I am doing and that you SPECIFY IT at all times (receptionist), (it is not)". The use of those words used in that letter by the applicant to the respondent was put to Ms Azar as an apparent contradiction to the claim, dealt with above, that Dr Badami had herself designated her as Practice Manager orally to others and in the forms at Annexures (c), (d), (e) of her affidavit. She denied any contradiction. 24 The applicant was referred to her claim to have been Practice Nurse and in reply stated, "but I did been asked to perform nursing, so obviously she was appointing me as a practice nurse". This occurred after her probationary period she claimed and she was asked to help with nursing by Dr Badami. She "absolutely" ..."took this to mean she was appointed to the position of Nurse Assistant". She further claimed that she only performed nursing duties at the employer's request, in refutation to one of the reasons for her dismissal. 25 The applicant was next taken to Annexure (k) to Dr Badami's affidavit which was a letter dated 8 July from the Australian Medical Association in reply to the applicant's fax letter of 5th July, 2005, which dealt with the applicant's claim to have been a Grade 5 employee under the Clerical and Administrative Employees' (State) Award. She began her responses by claiming that Dr Badami had employed her as a Grade 5 according to the employment contract. 26 When challenged as to the accuracy of that statement, she went on to claim that Dr Badami had classified her as such "orally and I believe could be in writing". This occurred at an earlier interview than when she was employed in September, and claimed to have discussed the award classification at that interview before her employment. "She told me, I'll offer you Grade 5", whilst earlier claiming that that interview was "back in July when I met her, August". 27 When challenged as to the time for that alleged earlier interview, the applicant claimed not have a very good recall for the date, but it was a few weeks before her appointment. She agreed however, that she started work on 16 September, but would not acknowledge that the interview with Dr Badami was 7 September. Her attention was taken to the letter of offer dated 13 September which under the heading of Award, said "Clerical and Administrative Employees' (State) Award Grade 4". She went on however, to repeat her claim that she was actually offered Grade 5 at the interview, and that the offer was for a salary of $36,500. 28 When the applicant was again taken to the fact that the letter of offer of 13 September contained an offer of Grade 4, her response was "it's not relevant anyway", but went on to claim that what was relevant was the amount of salary she was offered. 29 She made the observation in that connection "Sir, I could put in on Grade 5 and receive $20,000, I could put in on Grade 3 and receive $40,000. I don't find that particular point is of any relevance, sir." 30 She went on to repeat that she had been offered Grade 5 at the interview and in answer to the question from Mr Saunders as to whether she was satisfied with being a Grade 4, she gave the response, "it didn't matter to me. It never mattered to me." At that point the applicant's attention was drawn to Annexure (h) of Dr Badami's affidavit, already referred to, which was a letter written by the applicant where she also said, "I KNOW YOU'VE QUALIFIED IT AS RECEPTION, BUT UNFORTUNATELY IT IS NOT A RECEPTION POSITION, BUT A GRADE 5 ADMINISTRATIVE /RECEPTION". She repeated that the grading was not of concern to her and reiterated that the work she was doing was beyond reception duties. 31 Elsewhere in that area of evidence, despite the apparent contradiction to her letter just quoted, she included the following statement. "I have never asked her or I've never told her, you've employed me as a Grade 4 or you did not employ me as Grade 4, I should be employed as Grade 5. But I was trying to confirm with Dr Badami that she has underestimated the position. I have never classified it or never ...". 32 The applicant repeatedly denied wanting to classify her position as Grade 5 rather than Grade 4 because it attracted a higher salary and went on to specifically say, "I wasn't interested in that" and when further challenged by Mr Saunders said, "I did ask Dr Badami to raise my wages in June, back in June" and then belatedly acknowledged that she was interested in a wage increase. 33 She then denied any inconsistency in her evidence that she was not interested in Grade 5 with her acknowledgement that she sought the wage increase. 34 The applicant was next taken to issues related to her resume. First answering "absolutely no, absolutely not" to the question as to whether she had provided any untrue or misleading statement therein. 35 The first issue taken by Mr Saunders in respect to this area of the applicant's evidence was that she had failed to provide any detail between the period of December 2003 when she was dismissed by Dr Ritchie in a previous employment and August 2004, when she applied for the position with the respondent, Dr Badami. At that point she first reaffirmed that everything was included in her resume prior to working for Dr Badami, and when challenged as to the accuracy of that statement, finally retreated to the position that she had done some other casual work, but not permanent. She then insisted that all the work done before Dr Badami was included in her resume, but when taken to the fact that she had worked for Employment Help Services during that period she admitted that she had and that she gave advice to others in respect of unfair dismissal cases. She represented clients at conciliation conferences, although not at final hearing. 36 The question as to whether she had made two other claims for unfair dismissal against other employers other than Dr Ritchie, the applicant refused initially to answer the question on the basis of claiming it was not relevant to this application. When instructed to respond to the question put to her, the applicant resorted to saying "like, I didn't represent people in a hearing at the time". Mr Saunders reminded her that she was unresponsive to the question at that time, and again she was asked as to whether she had made two other claims other than the one previously from Dr Ritchie and quite apart from the one now against Dr Badami, to which she responded: "It's not correct. And it's not relevant." 37 She was again directed to answer the question and again baulked at answering. She finally resorted to saying, "Yes, your Honour. There wasn't actually an unfair dismissal. I was made redundant." The question was again put for the third time to the applicant, "the question is Ms Azar, you thought you were qualified to represent people in their unfair dismissal claims because apart from your unfair dismissal claim against Dr Ritchie, you have made two other unfair dismissal claims against previous employers, haven't you?" Answer, "I never thought I was qualified". The applicant had to be reminded again by the Commission to answer the question put and she reverted again to saying that the business was sold and that it was not any kind of dismissal, saying amongst other things, "I wasn't dismissed for any serious reasons". 38 The applicant finally agreed when pressed that she made two other prior applications for unfair dismissal against employers other than Dr Ritchie and Dr Badami. She then insisted that on both occasions the businesses had been sold. The first of those dismissals took place in 1997 according to the applicant, whereupon she was made redundant. She claimed that the matter did not reach court and the matter had been settled. The first of those matters was against Dr Maxwell Thomas of 36 York Street Sydney and the second against Dr Anthony Proctor, trading as Macquarie Health Corporation, which the applicant claimed was sold to Mayne Health. The second dismissal by Dr Thomas occurred, according to the applicant, in 2002. She claimed that her employment with Dr Thomas commenced in 1995. The fact that there was no reference to work with Dr Thomas in her resume was brought to her attention by Mr Saunders, and to which the applicant first responded, "it is". Her next response to the question from Mr Saunders was as follows: "Q. Where, Ms Azar?" A. It is - because your Honour, if it's not there, it's because I've been in the medical industry for many years, so I had to abbreviate a little bit of my resume. It's not for any other reason. And because also the employer was not available to give reference and the business was closed down, so I had to actually eliminate him from my resume." 39 From this area of the applicant's evidence, it was shown that she had not only excluded the period between her dismissal from Dr Ritchie's practice in December 2003 and her employment with Dr Badami in August 2004, but she also had not included a period when she was employed with Dr Maxwell Thomas between 1995 and 1997. 40 At page 62 of the evidence, the applicant claimed this period was between 1995 and 1997, yet at page 72 of the evidence, denied that she had said that she commenced in 1995 with the words, "No, I never said 1995, I said 1997". 41 Shortly after that in her evidence, she claimed that she could not remember how long she worked for Dr Thomas, as it was a long time ago and contrary to her earlier evidence, of being employed full-time by Dr Thomas, later she gave the answer, "It was on a part-time basis and full-time basis". She reverted to claiming that this questioning as to her resume was irrelevant and claimed that Mr Saunders "was wasting the court's time". 42 Later in her testimony in this area the applicant claimed to have worked three jobs at that time. 43 A further belated reason was offered for not including the "lots" of casual work which she claimed to have worked during these periods was that she had "incurred a civil car accident in 2003". 44 The applicant went on to state that not all of her work experience had to be specified in her resume, and claimed in the next paragraph, "I deserve the right to present whatever I like on my CV". The applicant then, when pressed by Mr Saunders as to why she had not included certain matters in her resume, gave the answer: "A. All the work that I have put in that I have done during many years, is accounted for, your Honour? Q. Accounted for, I think was the word. In your resume? A. In my resume." 45 She then gave the explanation for what was not included in her resume on the basis that prospective employers invariably asked her to summarise her work experience within a two page document. Later she again claimed that "everything in my resume is honest. Absolutely is honest". 46 The applicant was taken back to the issue of the grading of her position under the Clerical and Administrative (State) Award and on this occasion, claimed that the position of Medical Receptionist was not covered by the Clerks Award, although not able to give the Commission the reasoning for her claim, and broadening her claim to say "the medical industry is not covered by the award" and to the question from Mr Saunders: "Q. You've just told the Commission of a matter one moment ago that you accepted that you were covered while you were employed by Dr Badami under the Clerical Employee's Administrative Award, didn't you? A. I did accept it, but it doesn't mean I was covered. 47 She went on to claim that the medical industry is not covered because there is no specific award applying to it, and had never been covered by an award. 48 It appears that this type of evidence was given by Ms Azar to account for the fact that her other evidence was that it did not matter to her what grade she was under that award, and when challenged as to why she insisted that the industry was not covered by the Clerical Administrative Award, her answer was: "it's just a suggestion, your honour." 49 The applicant, none-the-less, continued to insist strongly that the Clerical Administrative Award did not apply to her situation. 50 The applicant challenged Mr Saunders right to ask her questions in that area. She next reverted to claiming that she knew the position was a grade 5 position because of the work involved, although earlier acknowledging that she had never read the award. 51 In the next area of her evidence, the applicant again denied seeking more money from Dr Badami. 52 She went on then to give evidence of her training as a Nurse Assistant and did that training as a Nurse on a part-time basis, due to the fact that she was at the time working seven days a week. 53 She denied putting herself forward as a Registered Nurse. 54 In the next area of her cross-examination, she was taken to a reference supplied to the respondent, Dr Badami, from her previous employer Dr Ritchie, which was curiously prepared and signed on the first day of her working for Dr Ritchie. 55 She brushed aside questions from Mr Saunders as to how Dr Ritchie, on the first day of her engagement, might have known about her experience to the point of giving her a reference. She did so on the basis that its not only a reference, but a confirmation of employment. 56 Whilst dealing with her employment with Dr Ritchie, the applicant denied that she was dismissed by Dr Ritchie using the words, "he didn't dismiss me as a dismissal. I had a car accident, he couldn't afford to have me anymore", and when further tested by Mr Saunders, "I was terminated because I could not cope with my job any longer". 57 Related to that, the applicant insisted in respect of the decision of Commissioner Patterson in her unfair dismissal claim against Dr Ritchie: "It was, I won the appeal on its face before any determination in the matters". "I won the appeal, your Honour, against the Commissioner's decision." 58 The following exchange between the applicant and the respondent's barrister is instructive in this area of the evidence: "Q. So you say you won the appeal, did you? A. Yes. Q. What was the result? A. That he would pay all the legal costs and the matter proceed in the District Court for damages. Q. That he would pay all your legal costs? A. He paid - he was ordered to pay all legal costs. Q. And who represented you during that hearing? A. I did represent myself. Q. So you didn't have any legal costs did you? A. No. Q. So the order for him to pay legal costs was of no benefit? A. I did have legal costs, I did have legal costs. Q. What were those legal costs? A. I was represented by Dooley & Associates initially ...................................................................... Q. So you say that the outcome of the appeal was that Dr Ritchie was ordered to pay your legal costs? A. He was ordered to pay legal costs. Q. Ordered by the Industrial Relations Commission of New South Wales to pay your legal costs? A. Before the Full Bench. He was ordered to pay the legal costs, I can bring the transcript tomorrow." 59 The transcript goes on to question the applicant as to the correspondence sent to the respondent claiming that she had won the case against Dr Ritchie, and that the findings of Commissioner Patterson were false. 60 The following exchange is also instructive, where Mr Saunders quoted to the applicant an extract of her letter to Dr Badami after her dismissal: Q. "I wish that we can settle the matter between us and remain friends as we always were" you go on to say? "This is to further reassure you for the fact that the matter raised in your termination letter was false also, and I do ask you to please seek legal advice in settling the matter genuinely before it reaches the court hearing, otherwise I do know for the fact, if you lose this case, your insurance will not cover you up. This is what is going to happen to Dr Ritchie." A. Yes. 61 The transcript goes on to show and as agreed by the applicant, that what happened before the Full Bench in the decision of Commissioner Patterson dealing with the applicant's dismissal from Dr Ritchie in a previous case before the Commission was that Dr Ritchie agreed not to pursue his costs order against her, Ms Azar, and the following quote appears in transcript: Q. And then his Honour goes on to say, "the basis of the settlement essentially requires the respondent on appeal, that is the employer, to warrant that the applicant, Ms Azar, will not be pursued for costs ordered against her." A. That's right. 62 The applicant went on to claim that this statement issued by his Honour, Deputy President Grayson was subsequently amended on the 18th November by the Full Bench, but did not provide the Commission with such proof of any such alteration. 63 The applicant went on throughout this area of cross-examination to claim, despite that earlier evidence, to say that she had won the case against Commissioner Patterson, but reluctantly did partly concede later that the substance of the decision was simply that Dr Ritchie would not pursue his costs. 64 Despite this partial admission, and being told of the more accurate account of the settlement of her appeal, she continued to use the expression, that she had actually won the appeal. 65 A related area of the cross-examination concerned the reasons given to the applicant for the termination of her employment with Dr Ritchie, and is quoted here in part as an indication of the extent of the applicant's evasiveness under cross-examination: "Q. Do you agree that the reason Dr Ritchie gave you for the termination of your employment was misconduct? A. I object. Commissioner: No you've got to answer it. A. No, your honour. Mr. Saunders . Q. So you say that Dr Ritchie did not rely on any misconduct allegedly by you as a ground for terminating your employment? A. I disagree. Q. Can you please go to page 15 of the decision I've handed you. A. What page do you want? Q. Please, stop, you will see at the top of that page a heading, "Dear Ms Azar", and then there is a title, "termination of your employment at Dr Ritchie's surgery". Q... firstly, do you agree that this was the letter of termination provided to you by or on behalf of Dr Ritchie? A. I disagree. Q. You say this wasn't the letter of termination provided to you? A. No. Q. That's not true is it? A. It is true. Q. This is the letter of termination. A. No, your honour, that wasn't the basis of my termination. I have proof before the Full Bench as well ...................................................................... Q. ...... Is the letter provided to you by or on behalf of Dr Ritchie concerning the termination of your employment with him? A. I've answered you and I said I disagree. Q. I see. The Commissioner's decision was wrong. Can you ................ A. Entirely wrong. Q. Please go over the following page, that is page 18, the third paragraph there says: "your attempt to blackmail Dr Ritchie is extremely serious and on its own gives rise to the right of summary termination. You still not .......... ? A. I object, your honour, I entirely object. I haven't got a lawyer to represent me, this is out of jurisdiction. Commissioner: No, it goes to your credit. I'll allow it. Mr. Saunders . Q. I'll continue. You have still not withdrawn or apologised for your demand for $50,000 from Dr Ritchie. In the circumstances it is clear that your employment at Dr Ritchie's surgery is untenable and your contract has been terminated on the grounds of misconduct." A. I disagree with that. Q. You say that letter was never provided to you? A. I disagree with the contents. Q. Do you say the letter was never provided to you? A. I disagree with the decision. Q. Can you please answer the question. Do you say that this letter which is set up beneath paragraph 83 on the decision I've handed you, was not provided to you? A. No. Q. And you say that you were not dismissed on the grounds of misconduct? A. No. Q. I suggest your lying Ms Azar? A. I oppose your honour and I refuse to be called a liar. In fact, the dismissal between me and Dr Ritchie was, your honour, because I incurred civil car accident, I was unable to come back to work for six months being on a cervical collar. That was part of my termination. Dr Ritchie had to employ someone else and my termination was based on other things, because I refused to .......... (not transcribable) ... in a relationship with the employer at the time. That was my dismissal." 66 In another area of the transcript, the applicant claimed that the letter attached as Annexure (c) to Dr Badami's affidavit Exhibit H "Letter of Appointment" was fraudulent. 67 She denied that on the second day of her employment that she had approached Dr Badami complaining about her salary, but acknowledged that she had spoken to Dr Badami at the interview that her payment, was to be $36,500 per annum as stated in Annexure (a) of her own affidavit. Neither did she have any other conversations about her rate of pay throughout September, 2004. She could not recall having a discussion with Dr Badami on the 17th September, 2004 soon after her engagement about her rate of pay, and could not recall the words in Dr Badami's affidavit, "you're not paying me enough, I can't do all this work for only $602.90 per week". She denied that Dr Badami had said to her that she could only afford to pay her the award rate of pay. She also denied in that same conversation that Dr Badami had offered to increase her rate to $701 gross per week. 68 The applicant went on to deny that she had accepted the offer on the terms of $36,500 per year and the appointment letter which said, "your position is classified as Level 4 under the award, which is $602.90" and went on to say that she had declined that offer, and when challenged as to how that could be given her employment had begun, the applicant insisted, "I decline the offer. I didn't sign the contract". She clarified under testing by Mr Saunders, again claiming she had accepted the contract on that basis, but not the content of the contract, by refusing to sign it. She denied that Dr Badami had subsequently amended her letter of offer in accordance with her employer's version shown at Annexure (c) of Dr Badami's affidavit, which contained handwritten annotations on page 2 of the document. She denied ever receiving the document. She went on to make a variety of claims as to what moneys she received at the commencement of her employment, which do not warrant repetition here. 69 In the process of lengthy cross-examination in this area, the applicant contended that Annexure (g) to her affidavit showed what she was paid by Dr Badami prior to her employer rectifying the wages. She went on to say this occurred, "a few weeks later" but went on in the same paragraph to say, "a few weeks after. It was about - after I spoke to her six weeks or four weeks after my employment and it shows exactly on my - its actually three months after I started working with her and it's showing on Annexure (g) attached to my affidavit, it is a copy of the wages book, Commissioner." After the next question put to the applicant, she contended that she was underpaid for about two months. She went on to testify that her salary had gone up to $1402 gross per fortnight after a few weeks, but repeated later in her evidence that Dr Badami had rectified her wages some six or eight weeks later. 70 During her cross-examination on the 17th February, the applicant appeared to contradict her previous evidence, that the salary paid to her represented a forty hour week of which, two and a half hours was paid overtime. She claimed that her salary was given to her for actually working forty-two and a half hours per week on the basis of a nine to five-thirty time span, although acknowledging that the award required her to have at least a thirty minute meal break. She went on to insist that she was entitled to time and a half overtime for two and a half hours a week. 71 Ms Azar gave evidence that when she wrote to Dr Badami in June, 2005, attaching an invoice for overtime, that this was the beginning of the respondent's campaign to terminate her employment. In support of that claim, the applicant again relied upon a version of a contract headed Letter of Appointment which she attached to her affidavit Annexure (a). In that copy of her letter of employment, there were some significant alterations made in handwriting which the applicant contended was that of Dr Badami. Under the subheading of Hours of Work, where the document showed forty hours a week, some amendment had been made by crossing out the forty hours and in fresh ink were the hours of forty-two point five had been written. 72 That document had to be contrasted to the document tended by the respondent, which was to have been given to the applicant, which showed no such alteration to the hours, but under the subheading of Remuneration, did provide some explanation for the applicant receiving overtime at time and one half beyond the normal hours of the award. 73 In her cross-examination, the applicant insisted that the document Annexure (a) to her statement was the document given to her, and not Annexure (c) of Dr Badami's affidavit Exhibit H. She relied upon that handwriting of forty-two and a half hours a week to prove that she had been underpaid in not receiving the extra two and a half hours a week. She maintained that the salary of $701 per week eventually paid to her was only for the forty hour week and the invoice supplied by her in June covered that additional hours work. 74 The applicant's evidence in this area was somewhat contradictory inasmuch as that at page 18 of the transcript of the 17th February, she maintained that the forty-two and a half hours which she claimed that she actually worked, was on the basis of a 9am to 5.30pm span shown in Annexure (a) to her statement and also in the other copy of the document Annexure (c) to Dr Badami's affidavit Exhibit H. Whilst agreeing with Mr Saunders that she was entitled to a half hour lunch break each day, the following exchange shows the confused nature of her evidence in this area, which should be seen in the light of her previous evidence of being entitled to two and a half hours overtime for working forty two and a half hours per week: "Q. ...and so if you take half an hour out of the hours nine to five-thirty, you end up with forty hours per week? A. That means two and a half hours above the law, and I should be paid overtime for those hours, time and a half. A. Once again you haven't answered the question. My question was, if you worked from nine to five-thirty each day, Monday to Friday, and you take half an hour out for lunch each day, you end up working forty hours per week, don't you? A. Yes. Q. And that was what you understood you had to do when you commenced work for Dr Badami, didn't you? A. Yes ............................................... Q. Again, looking at Annexure (a), if you could, please, there is a heading at the bottom of the page Annexure (a) to your affidavit, headed "Overtime" and you see next to that it says, "At busy times you may work additional hours. In this situation you will be provided with time in lieu for additional hours work. Time in lieu shall be taken at a time which is mutually convenient for both you and the practice." Do you see that? A. Yes, I've seen it and I understand. Q. You agreed to that, didn't you. A. Yes, I do. Q. So, if you worked any hours in addition to the forty hours you were required to work, you understood that you wouldn't be paid for those hours, but you would get time in lieu. That's right, isn't it? A. Yes." 75 The applicant displayed some confusion and offered some contradiction to her earlier evidence when at page 24 of the transcript of the same area of the evidence she claimed among other things, that her invoice mentioned earlier as a claim for overtime was done at the behest of Dr Badami. and where the following exchange took place: "Q. So you were saying you were working forty-two and a half hours a week, were you? A. Yes. Q. What time did you start work each day? A. From eight in the morning to sometimes to six o'clock at night. Q. So you started at eight-thirty did you? A. Yes. Q. Did Dr Badami tell you, you had to start at eight-thirty? A. Yes, she asked me to come at eight-thirty in the morning to help her with all the blood tests and everything... .......................................................................................... Q. So you say you started at eight-thirty in the morning most days of the week? A. Most of the week until six o'clock at night. Q. And six o'clock, was it every night? A. Most of the nights on the busy days. Q. And did you ever take a lunch break? A. No, most of the time I didn't. Q. Most of the time you never took a lunch break? A. No. And I continued answering the phone all during my lunch break. Q. If you were working eight-thirty in the morning until six on average, that's ten and a half hours a day, isn't it? A. Yes. Q. And the ten and a half hours a day times five days a week is fifty-two and a half hours a week, isn't it? A. Yes. Q. Yet you only claimed overtime for two and a half hours a week? A. Correct, it's because I'm entitled to this two and a half hours according to her employment contract. I couldn't claim something I wasn't entitled to, but I had to prove that I was entitled to claim at least two and a half hours according to the excessive hours I was giving Dr Badami. Q. So you were working ten hours just out of the goodness of your heart, were you? A. No, she asked me to stay and according to the paragraph you said that I could be entitled to time off if I exceeded the hours working, according to her employment contract. You've asked me earlier, on certain paragraph, that you'll be entitled of time off, and I show you, "at busy times you may work additional hours. In this situation, you will be provided with time in lieu for additional hours worked. Time in lieu shall be taken at a time which is mutually convenient for both you and the practice", and that's exactly what applied according to the employment contract. 76 The applicant at page 29 of the transcript was taken to the fact that in a letter written to the respondent dated the 29th August and attached to her Form 7A application which was marked Exhibit E in these proceedings, at Annexure A(i) of the application, the applicant referred to her hours as being from 9am to 5.30pm on busy days, until 6.30pm. The fact that she had not made mention of the alleged eight-thirty start was put to the applicant. The applicant dealt with that apparent contradiction on the basis that, "that's exactly what I'm saying, please refer to my employment contract, what the employment contract says". She went on to contend that the situation was explained on the basis that the Doctor asked her to work all sorts of hours. 77 At page 31 of the transcript, the applicant agreed that Dr Badami often suggested that she would come later to start work, such as 9 am start and the applicant volunteered, "and she would tell me to start at ten o'clock as well". She went on to repeat the claim that Dr Badami had asked her to work during her lunch break, and when she was further challenged on that point by Mr Saunders, the following exchange took place: Q. Dr Badami never told you you could not take a lunch break, did she? A. She used to ask me to do the work for my lunch break. Q. I'll ask the question again, as you haven't answered it. Dr Badami never told you you couldn't take a lunch break, did she? A. No. She never offered. Q. Again you haven't answered my question. Can you please listen to it carefully. A. I've just told you no. Q. I'll ask you again. A. I just answered you No. Q. Dr Badami never told you that you could not take a lunch break, did she? A. That you could not take a lunch break? Q. Yes. A. No, she didn't say that. She didn't say either way. 78 In a new area of the applicant's evidence during cross-examination, she was taken by Mr Saunders to Annexure (f) of the affidavit of Dr Badami, Exhibit H, which was headed "Confidentiality Agreement - Employee". She first agreed that she had signed the document, because she agreed to be bound by the statements contained in the document, which was specifically expressed to address the issue of disclosing or using any information from patient's files. She also then agreed with the concept of confidentiality. Acknowledging that if there was a breach, that the respondent could take appropriate disciplinary action, including immediate termination, and she agreed that confidentiality was an important issue for Dr Badami. 79 The applicant was then taken to Annexure (a) of her affidavit, Exhibit A, and her attention drawn to the last entry under the subheading Confidentiality of the Contract, signed by Dr Badami on the 17th September. 80 At that stage the applicant, in answer to the question as to whether she agreed with the clause contained in her contract, answered "no, I didn't. I didn't sign it". When pressed for clarification as to whether she agreed with that term, her answer was, "I didn't agree with any of that contract", and when further pressed by the Commission itself, as to whether she didn't agree with that particular clause, she answered, "I don't agree. I didn't sign it" and further clarified that she said, "I said I disagreed, I didn't say I refused, I said I disagreed" and then finally disagreed with the confidentiality provision. That was even though it was pointed out that it was the same as the confidentiality agreement at Annexure (f) of Exhibit H, signed by her in August, 2004, when she answered, "that's fine". 81 It became necessary to press Ms Azar on this issue with the following exchange taking place on the same page of transcript: Q. I've asked you about five times and I'll ask you again. The confidentiality clause which you see on page 2 of the letter of offer of employment dated the 13th September, 2004, relates to your confidentiality obligations to Dr Badami. Did you agree with that confidentiality clause? A. I didn't. 82 Mr Saunders then took the applicant to an instance involving a patient by the name of Mary Velour, who he suggested to her, came to see Dr Badami on the 3rd November, 2004. The applicant testified she could not recall. Neither could she recall that that instance might have involved x-rays taken for the patient. When it was put to her that she had opened those x-rays, the applicant's response was, "I don't recall that" and repeated that she did not recall and did not remember any such event. After several answers to that effect, it was put to her that: Q. You don't deny the fact that you might have opened.......? A. I do deny, I do deny. Q. You do deny that you opened her x-rays? A. Yes. 83 The applicant had no recollection of Dr Badami approaching her with a warning that she should not open client's letters addressed to her, or to anyone else, and that she was not authorised to do so, and to not repeat such behaviour. 84 In respect of another patient, Rana Baghdadi, the applicant remembered the patient, but could not recall an incident put to her in December, 2004, when the patient handed her script for medicine to the applicant. She denied saying to Ms Baghdadi, that the medication prescribed by Dr Badami was not going to help her, and that she had a particular illness rather than the one nominated by Dr Badami. 85 She denied that Dr Badami had said to her at the time, "I'm the Doctor here, I will decide what I give my patients, I don't want you discussing these matters with clients. What they tell me is confidential". 86 In respect of another patient, she again recalled him as a patient, but not any of his visits. She denied often reading the prescriptions written by Dr Badami for her patients and further denied that she had said to Mr M, in a loud voice, "you've got herpes, you need to take Xovirax" and whilst initially saying that she could not recall, finished her answer, "absolutely not". 87 The applicant was next taken to another issue involving discussions with Johanna Neville who was a witness in these proceedings and who worked for Dr Rapson who shared the premises with Dr Badami, although a different practice. There was also a shared reception desk, although there was a distance between her and Ms Neville. 88 She denied speaking with Ms Neville, at least a couple of times a day as put by Mr Saunders and the following exchange took place: Q. So you say you went entire days working in close proximity to Johanna, but did not speak to her? A. Yes. Q. You concede you spoke to her sometimes? A. Sometimes we used to briefly speak, because we are both extremely busy. Q. You regularly told her that you were a registered nurse, didn't you? A. Incorrect. I deny that. Q. You deny that, do you? A. Yes. Q. You also said to her on at least one occasion, you are a qualified lawyer, didn't you? A. No. Incorrect. I never said that. Q. You told her you were an accountant? A. I deny that. Q. You told her you were a teacher? A. I deny that. Q. You told her you were a therapist? A. I deny that. Q. You also said that you were a hairdresser, didn't you? A. Unbelievable, no, I never said that. 89 The applicant was next taken to an issue where a question was put to her that in January, 2005, Dr Badami had said to her that she was not allowed to perform nursing duties as she was not a Registered Nurse. The applicant denied that that conversation took place and added, "in fact, the question she asked me to help her with nursing". 90 In answer to a question, "you are not a Registered Nurse, are you?", answer, "no, I am a trained nurse". 91 She acknowledged that there was a difference between being a registered nurse and a trained nurse. 92 It was put to her that on at least one of those occasions in July or August, she had rung Dr Badami, but had changed her mind and came into work without letting Dr Badami know of her intention. The applicant could not recall that, but went on to say, "no, that didn't happen". She denied being absent from work on at least one day per week during July and August, and when it was put to her that Jaya Chary had come in as a relief receptionist as a result of her phone call to say that she was sick, the applicant initially could not recall that. 93 The applicant also was asked a series of questions as to what she said to Ms Chary, such as, "do you know that I've been raped?". Her response to that was, "absolutely this has never happened". She could not recall saying to Ms Chary also, "you know Dr Badami is not paying me well, I do all this work and I don't get paid for it". 94 The applicant also denied saying to Ms Chary, "I'm a Registered Nurse, you know". The applicant also denied saying to Ms Chary, "since you know Dr Badami so well, put in a good word for me, get her to increase my salary". 95 The applicant was then taken to another specific incidence involving a patient by the name of Joan Anne Cooper, who she could not recall. She denied taking blood from Ms Cooper, even though told to desist from nursing duties. 96 Cross-examination moved to another issue dealing with the provision or attempted provision of references drafted by the applicant, which she attempted to have Dr Badami sign. The first of which was in February, 2005. 97 The applicant testified that the reason for seeking the reference was so that she could go and look for another job, but Dr Badami at that stage refused to sign the reference. 98 She was then shown a reference dated 20th June, 2005, which she agreed that she had drafted and asked Dr Badami to sign. She agreed that Dr Badami had refused to sign the reference. The reasons for the Doctor not signing the reference was that Dr Badami did not wish her to leave, but denied that this occurred in February, 2005, which was somewhat contradictory to her evidence of line 12 of page 52, where she had said, "I asked Dr Badami to give me a reference to go and look for another job and she refused to sign it" in answer to the question put on that, that the reference had been prepared in February, 2005. At line 46, she agreed that she had provided the reference to Dr Badami for her signature in February, 2005, but at line 8 of page 53, denied that it was February, and when challenged said that she had already given evidence to that effect. 99 On the issue of the applicant's approaches to the respondent for pay increases, the applicant had denied that she had requested a pay rise in February, 2005, but acknowledged that in June, 2005, she did request a pay rise. 100 She could not recall Dr Badami telling her at the time however, that she would be getting a $16 pay rise in July. Neither could she recall handing Dr Badami a letter at that stage saying to Dr Badami, "read this letter". The letter concerned was attached as Annexure (h) to Dr Badami's affidavit, Exhibit H and when that was shown to the applicant, she acknowledged that she did after all provide that letter to Dr Badami, on or about the 10th June, 2005. 101 The applicant claimed that Dr Badami had abused her in front of patients and bought her to tears on many occasions. 102 When pressed as to what those occasions were, she simply repeated that she was embarrassed in front of patients by Dr Badami. She referred to her letter where she claimed that Dr Badami had not shown her respect in front of other staff and patients. She quoted from the letter, "Dr Badami you have to realise, respect me in front of other staff and patients, reflect on your business and you and I should work as a team. It's very important because the other staff can feel the bond between us. Having both of us in different directions causes the staff to celebrate when they know you are treating me like that, they hope that I leave and you will be struggling". When pressed as to what precisely Dr Badami had said to her, the applicant was unable to provide such alleged instances. 103 The applicant in her answers in this area acknowledged that she was regularly told to go home by Dr Badami on the basis that the Doctor could handle the remaining patients herself, but that the manner in which she was spoken to was aggressive. 104 The applicant maintained that Dr Badami had seen up to eighty patients a day, at least in winter time, and disagreed that her employer had only been seeing, on average, fifty to sixty patients per day, which included nursing home patients. She went on to restate her claim that her business had doubled in her time with Dr Badami, with Ms Azar being responsible for increasing the patient numbers. In the course of this part of her evidence, she denied being prone to exaggeration. 105 Where the applicant in one of her answers, answered as follows: "A. Absolutely, yes, and it did double up". That was at line 14 of page 63 of the 17th February transcript, yet when challenged that she was exaggerating increasing the patients, said at line 35: "A. I didn't say double up. I said it did eventually increase". 106 The applicant attempted to explain her use of the term doubling up on the basis that: "A. ....and this really covers that I have increased in fact the number of patients with Dr Badami, I have improved her business financially, and which is together, it did have actually almost double the income of Dr Badami altogether". Q. Do you now can see the use of the phrase "doubled up" in your letter dated 10th June, 2005 is erroneous? A. It is honest. Q. It is honest, it is an error? A. It is an honest. Q. Sorry, can you repeat that? A. It is an honest letter. Q. Is it ...... A. It's a sincere and honest letter". 107 In a new line of questioning, the applicant denied saying to other staff, "Dr Badami is a bitch" and also denied saying, "Dr Badami is incompetent". She denied at this stage becoming resentful towards Dr Badami. 108 The applicant was next taken to an allegation that a female patient by the name of Val Anomitris, who had come into Doctor's surgery on the 27th June, 2005 had been told by the applicant that, "Greek men do not know how to treat women, I hate Greeks". The applicant did not recall that happening. She denied having a talk to Dr Badami about the incident on the 27th June. 109 The applicant also denied having discussions with Dr Badami on the 27th June about the letter she had written to her employer. She also denied claiming a pay rise during that meeting. 110 The applicant was taken to her own correspondence attached to her affidavit, which refers to a meeting she had with Dr Badami on the "31st June" 2005. 111 The applicant was taken to the fact that she had denied having a meeting in June with Dr Badami to discuss her wage. 112 The applicant was challenged by Mr Saunders on her claim that she had not had a meeting during June. Being first shown a letter marked Annexure "l" of Dr Badami's affidavit, dated 12 July, and asked the question: Q. Ms Azar, do you now accept that you did meet with Dr Badami in June, 2005 to discuss your wages? A. End of June, not in June, end of June, the 31st. 113 The proposition was put to the applicant that if she was ready to leave as claimed in her evidence, and looking for another job, why was she writing letters of demand and insisting on meetings instead of just getting on and finding another job? Her response was: "A. Because its my right and I deserve to have my right". 114 She denied that from the 27th June, 2005 she became aggressive towards Dr Badami, saying to Dr Badami in or about July, 2005 in an aggressive voice, "are you going to give me a pay rise?" and neither did she say, "shit, you are such a bitch, you are such a bad employer". 115 The applicant was next taken to the reply attached to Annexure (k) to the affidavit of Dr Badami from the Australian Medical Association dated the 8th July addressed to the applicant. 116 The applicant could not recall Dr Badami saying to her around that time, in response to her letter of demand in respect of wages, "I've checked with the AMA. They've informed me that I don't owe you any money". The applicant could not recall that conversation or replying to the effect, "the AMA doesn't know anything, I have run cases against them and I've won all of them. You should ask me and I will tell you how much you should pay me under the award". 117 In respect of the alleged accessing of Dr Badami's private e-mails, the applicant denied that allegation on the basis that she claimed to have had authority to look after everything in respect of the e-mails, the doctor's correspondence, paperwork etc. and that she had been requested to clean her e-mail box from junk mail. 118 More relevantly to these proceedings, and a reason for the applicant's dismissal, the question was put to her that she had accessed Dr Badami's e-mails to obtain a copy of the letter written to the doctor from the AMA in respect of Ms Azar. The applicant claimed to have found the e-mail on the kitchen bench in a public area and face up with a letter referred to in the e-mail attached to it. She noticed that the letter was "addressed" to herself. (As earlier indicated, this was a draft proposed to be sent to the applicant sent to Dr Badami for approval prior to despatching to Ms Azar calling her to a meeting which eventually took place on 26th August and dealt with elsewhere.) 119 She also denied that the letter was obviously confidential, on the basis that it was on the kitchen bench, where all staff go and eat and have coffees etc. 120 The applicant did admit that she had replied to it by writing to Mr Lincoln Kinley of the AMA and wrote the word "URGENT" at the top of her response. She reluctantly agreed that there was a difference between the letter she eventually received dated the 25th August and the contents of the draft letter dated the 23rd August, Annexure (n) to Dr Badami's affidavit. 121 The applicant was taken to the fact that she replied to Dr Badami's letter of the 25th August with the words, "your harassment of my employment with Dr Badami is becoming annoying. I am rejecting this meeting and refuse to attend". However, the applicant did attend the meeting. She agreed that she decided not to avail herself of the offer to take a support person into the meeting. She qualified that acceptance however, on further questioning, on the basis that she wasn't given enough time, and that neither did she have much time to seek legal advice. She further maintained that she was not happy to go on her own with the words, "no, because I didn't know what was going on". 122 In answer to the follow up question that she had gained expertise in employment law matters, the applicant denied that that was the case, and as to the fact that she had acted as agent to Employment Help Services, her response was, "it was a very small, short time, I didn't gain much experience" and neither did she gain much experience from three prior applications for unfair dismissal, on the basis that they did not go to hearing according to her. 123 The applicant was taken to the meeting of the 26th August 2005, which led to her dismissal, by her first agreeing that the meeting lasted for three hours, but later suggesting that there was only one actual hour of meeting in between Dr Badami attending to patients and she herself also attending also to patients. She disagreed that the meeting started at 1.30pm, stating that it was 2.30pm, then shifting to say three o'clock. 124 In respect of the issue of her alleged accessing of the AMA's, draft letter of the 23rd August on Dr Badami's e-mail, the applicant denied that she had said on the meeting on the 26th August, "I saw it on the screen" and maintained again that it was left on the kitchen bench. 125 The applicant denied that she had every opportunity to put her version of events across to Mr Kinley and Dr Badami at the meeting of the 26th August, repeating that Mr Kinley had told Dr Badami that he could find no reason for her dismissal. She went on later in her evidence to suggest that she had responded to the accusations in her reply of the 23rd August. She went on to repeat that she had not had a chance to get legal advice in the short time between receiving the letter and her dismissal, and repeated that the respondent's solicitor had said to her during the meeting that he found that she had done nothing wrong. When pressed by Mr Saunders that Mr Kinley had said no such thing to her, she said, "he said to me, Nayla, as you can see, I can't go against, because I am representing Dr Badami". It was curious that this comment was after some four pages of transcript between pages 89 and 93 of the transcript of the 17th February dealing with the topic. "He said to me, Nayla, I can't do anything about it, she wants to dismiss you. I said, that's fine and I want my wages". She then suggested that it took a further three hours to try and convince Dr Badami that she would have to pay, pay in lieu of notice. 126 Mr Saunders took the applicant to page 8 of her application where she had said, "I asked him, what is the reason for my termination since I have proved her of false and vexatious allegations". She was then taken to what she claimed was said by Mr Kinley, "because you have accessed Dr Badami's e- mail." The applicant believed that reason was "harsh and hard to believe, since I did not, and further, Dr Badami has always given me authority to access her e-mails". 127 The applicant denied being abusive and aggressive to Dr Badami during the meeting and in fact claimed: "A. No, I was crying. I was very calm and in fact I said to Mr Kinley, let her do whatever she wants to do and I'm not signing the deed, and in fact I was forced to be given the keys of the surgery and I was kicked out of my office, I was refused even to be given my wages. I went for that week, she refused even to give me my wages, I went for that week". 128 When challenged by Mr Saunders as to the contrast in her claims of being calm and crying, she maintained that she was polite, she was not aggressive, but upset at the same time. 129 Contrary to her earlier evidence of the meeting being a disjointed meeting, and lasting one hour in total, given the breaks between, the applicant at page 94 of the transcript, denied that there was a break of at least half an hour before she had another discussion between Mr Kinley and Dr Badami. She went on to deny that there were a number of breaks. She went on to say, "there was not a break. We were continuously talking for three hours. A patient waited for three hours in the surgery". 130 The applicant denied that she had been told the reasons for her dismissal were her accessing of Dr Badami's personal e-mail without authorisation, misrepresenting her skills and qualifications, abusive and disrespectful behaviour towards Dr Badami and refusing to obey lawful and reasonable directions. She denied that she had been told this by Mr Kinley and went on to suggest that Mr Kinley had said, "I can see she's glamorously represented" and also, "I can see she is very well presented" several times repeating that claim. 131 To the question as to whether she had said to Dr Badami, "you wait and see, Dr Badami, I will take you to Industrial Relations, you will regret the day you decided to go against me". Her answer was: "A. I've never incurred such a conversation, and we never had a break and there was never a second meeting. There was only one meeting where I was dismissed summarily". 132 The applicant then maintained that she did not issue that threat to Dr Badami on the basis that the Doctor knew that if she had been dismissed, she would go into the Industrial Relations Commission. Mr Saunders pointed out at that point that in her letter of the 25th August to Dr Badami, she had said, "further action will be undertaken by you, will result in my filing an application through the Registry of the Industrial Relations Commission for Unfair Dismissal". She denied however, that that was a threat. She also repeated that it was Mr Kinley who told Dr Badami, in front of her, that the applicant would lodge with the Industrial Relations Commission. She maintained that the statement of intent to proceed to the Industrial Relations Commission was not entered as a threat to Dr Badami: "A. I did not tell Dr Badami, I stated directly in my letter and this wasn't to Dr Badami, it was to the AMA Commission. It was directly to her lawyer who was represented her, Mr Kinley. Further action will be undertaken by you, that means the solicitor, not Dr Badami. I have never threatened Dr Badami in such a manner". 133 The applicant denied that from the 10th June, 2005 she decided to do less work for Dr Badami, and specifically denied not processing medicare forms or doing very little in the way of paperwork for workers compensation matters, and very little general payment work, including billing and receipts to patients in the last few months of her employment. 134 In a new area, it was put to the applicant that she had not applied for other positions since her dismissal, which she denied on the basis, "I did apply for many jobs". 135 Mr Saunders pointed out that she had failed to produce any evidence in response to a Notice to Produce served on her by the respondent. She denied not producing any documents in response to the Notice. The applicant responded on the basis that she had provided notebooks, bankbook and her workers' compensation certificate, and when drawn to the fact that she had not answered Mr Saunder's question in respect of what jobs she applied for, claimed that she had them in the folder with her. The applicant again alluded to her certificate in respect of workers' compensation and had to be reminded by the Commission that she had changed her testimony, and bought back to her claim that she had documents showing that she had applied for various positions. But she then suggested that she was put on Not Fit for Duty since she left Dr Badami, and went on, "despite the request of being unfit, I tried during this period to make an effort to find work and...." 136 After a short adjournment, it was put to the applicant that there was only five purported applications for employment, which the applicant denied, saying that there were many jobs that she had applied for and went on later in the same line of questioning to suggest she shouldn't even be looking for a job, and should be resting and taking care, given that she was unfit for any duty. When pressed, she suggested that most of her applications were on the internet. She went on to claim again that she had applied for some fifty jobs when she left Dr Badami, despite being unfit for duties. She denied being evasive and was pressed several times from Mr Saunders to show where she had actually made her written application, including the fact that she only produced three handwritten letters, she again claimed that these were not all the applications made by her, and were, "only a little bit of the applications I've made". Mr Saunders pointed out the benefit of the transcript that the letters referred to by the applicant were in fact advertisements for jobs and not letters written by her for any of the positions. THE RESPONDENT EVIDENCE Ms Johanna Neville 137 Ms Neville's statement was marked Exhibit H(a) and in that affidavit she claimed that the applicant had said to her on numerous occasions that she was a qualified lawyer, and on other occasions she said that she was an accountant, a teacher, a therapist and a hairdresser. Ms Neville recalled that in December, 2004 Dr Rapson for whom she had worked in the same premises as Dr Badami, came to her to say that he had done a search and the nurses registration board had never heard of Nayla Azar as a registered nurse. 138 She also testified that she'd never seen the applicant work beyond five-thirty p.m. and that Dr Badami had often allowed the applicant to leave and recalled on several occasions, Dr Badami coming to reception and saying, "Nayla, why don't you go now. I can handle these last few patients by myself". 139 She observed that Dr Badami was always courteous towards the applicant and using a kindly voice. She never witnessed Dr Badami raising her voice or using an aggressive tone. 140 Ms Neville recalled that from July, 2005 she observed the applicant becoming very hostile towards Dr Badami and on numerous occasions had said words to the effect: "Dr Badami is a bitch" "She (Dr Badami) is a bad employer" She (Dr Badami) is not paying me enough". 141 Under cross-examination by the applicant, Ms Neville denied that she was not able to talk with the applicant because of some alleged tension between Dr Badami and Dr Rapson (who shares premises with the respondent). Ms Neville denied noticing that the applicant was not talking. 142 Ms Neville agreed that she had once said to the applicant that she did not want to get involved in matters that the applicant was raising with her by way of complaint. 143 Whilst agreeing that there was one night that she recalled a conversation with the applicant about her staying late, she later denied that she had suggested to the applicant that Dr Badami owed her so much. 144 Ms Neville clarified after further questions in respect of how late she had stayed, that Ms Azar did stay after 5pm some evenings, because she had come in late, but she was never there after six or six-thirty. She denied saying that the Doctor had owed the applicant hours. 145 Ms Neville confirmed that she had heard the applicant say to Dr Badami, "you're a bitch". 146 In answer to the applicant's question as to whether Ms Neville had told an investigator for the GIO, Mrs Karen Kriticos from GIO, that the applicant had been upset by Dr Badami Ms Neville remembered the phone call, claimed not to have known the person was from GIO, remembered the applicant as being quite distressed but was not crying, but did advise the person on the phone that the applicant was upset. 147 Ms Neville did not recall saying that Dr Badami was nasty or "off the air" towards the applicant. She simply remembered "that Nayla was upset". 148 Ms Neville gave evidence of assisting Ms Azar with the preparation of a draft reference which she clarified was drafted by the applicant and corrected by her. She testified: "that is right. I did agree to help you because I thought it was in everybody's best interest if you were successful with another position". 149 The important issue in the evidence of Ms Neville is best summed up by her answer to a question from Mr Saunders was as follows: "A. In terms of Ms Azar, it was obvious that she was unhappy. She had never missed an opportunity to tell us or to tell me that she was unhappy. In terms of Dr Badami, I didn't see anything but the normal behaviour, I never witnessed any curtness or aggression or anything like that towards Ms Azar". 150 Ms Neville also gave evidence that she perceived a change in the relationship between the two from around the June or July 2005 period. Jaya Chary 151 Ms Chary gave evidence that she had often helped Dr Badami before the applicant commenced her employment with Dr Badami. She had only casual engagements with Dr Badami. 152 In her affidavit, Exhibit I, in these proceedings, she gave evidence that in July, 2005 she received a telephone call from Dr Badami to say that the applicant was unable to attend for work, and asked her to fill in for the applicant. There were other occasions throughout July and August that she likewise filled in to attend the practice, approximately once a week in the event that the applicant did not attend. In August, 2005, on one such occasion, she actually met the applicant when she arrived at the practice. She noticed that the applicant had, after all, arrived at work, having earlier rang in sick. 153 Ms Chary gave evidence of a conversation with the applicant on that occasion, where she expressed surprise that the applicant had actually arrived for work, having earlier rung to say that she was sick. In the conversation that followed, the applicant claimed to have been raped. She went on to say that she had been sexually harassed at a workplace and then went on to say that Dr Badami was not paying her very well, and also said to Ms Chary, "I'm a registered nurse you know". She also then asked Ms Chary to put in a good word for her with Dr Badami, to get her an increase in salary. 154 Following the applicant's departure from her employment with Dr Badami, Ms Chary commenced employment and discovered that the applicant had: (i) Failed to carry out certain duties in respect of a large number of medicare forms not being processed; (ii) Not conducted work related to workers' compensation, requiring processing and filing in correct order, which included nearly all the files on workers compensation and finally; (iii) that the applicant had failed to carry out a large amount of general paperwork including sending invoices and receipts to patients. Dr Badami 155 The affidavit of Dr Badami was marked Exhibit H (b). In that affidavit she referred to the actions she took to recruit a medical receptionist including the interview held on the 7th September, 2004 with the applicant, where the applicant claimed to be a qualified nurse and Practice Manager. The respondent told her in response to this, that she was only looking for a medical receptionist as she could not afford anything more than that. 156 The applicant was appointed in terms of her letter of appointment marked Annexure (c) to Dr Badami's affidavit. She was also provided with a job description. 157 On the 17th September, 2004 the applicant approached her employer saying that she was not being paid enough, and whilst her employer advised that she could not afford to pay more, finally agreed to sit down and discuss the matter. As a result there was an agreement to pay the applicant an additional $50 a week. 158 The arrangement was for the applicant to work from 9am to 5.30pm, Monday to Friday. Some days later, on the 21st September, 2004 the applicant was provided with a document titled Confidentiality Agreement which was signed by her on the 29th September, 2004. This was Annexure (f) to Dr Badami's affidavit. 159 The respondent gave evidence that on the 3rd November, 2004 a patient, Ms Velour, advised Dr Badami that her x-rays had been opened by the applicant. The applicant was told by Dr Badami not to do such a thing again. 160 In December, 2004 the respondent discovered that the applicant was not a registered nurse as she had been claiming. 161 In the same month, December, 2004, another patient, Ms Baghdadi, advised Dr Badami that the applicant had told her that the medication prescribed for her was no good. The applicant on that occasion was confronted with the patient's complaint, saying, "Look Nayla, I'm the doctor here. I decide what I will give my patients. I don't want you discussing these matters with clients! What they tell me is confidential". The applicant replied at the time, "Oh, I only do it because they trust me", to which the respondent replied, "if it happens again, I will not be taking it very lightly". 162 Dr Badami also testified that in February, 2005, (a few months after starting in the position) she was confronted by the applicant with a request to sign a reference, and when asked as to why she sought the reference, said, "yes, you don't pay me enough here". Dr Badami refused to sign the reference at the time on the basis that it should be written by Dr Badami, and not on the basis of a draft given by the applicant. 163 Dr Badami did actually provide a reference, which she attached to Annexure (g) of her affidavit and claimed that the draft given to her in February was a different one to the one in the applicant's statement. 164 In respect of another patient complaint on this occasion by code name M, Dr Badami said that Mr M visited the practice on the 28th February, 2005, but curiously did not visit the practice for another six months, despite requiring treatment for his condition. In August, Mr M visited the practice for another consultation and said to Dr Badami, in response to her query as to why he had not visited the practice for so long, that the applicant, Ms Azar, had read his prescription and in a very loud voice, in front of other people, said, "Oh, you've got herpes! You need to take Zovirax". Mr M claimed to have been very embarrassed. Dr Badami said that for a third time therefore, she was required to talk to the applicant about discussing confidential matters with the patients, and in front of other patients and staff. 165 Next Dr Badami testified as to a meeting she held with the applicant on the 10th June, 2005, where the applicant had come into her office wishing to speak to her, saying, "I want a pay rise". Dr Badami claimed to have said to her at the time, "you will be getting a $17 pay rise in July, to which the applicant said, "here, read this letter, then come back to me". That letter was Annexure (h) to Dr Badami's affidavit and earlier dealt with under the summary of the applicant's evidence. 166 Dr. Badami dealt with the applicant's allegations in that letter in paragraph 28 of her affidavit, which mostly dealt with duties claimed by the applicant and several denials as to the allegations contained by the applicant as to her treatment by Dr Badami. 167 In connection with the 10th June, 2005 letter, Dr Badami met with the applicant on the 17th June, 2005 to discuss it. She found the applicant adamant in her demands for a pay rise, despite a general pay rise coming the following month. 168 Subsequently, the applicant became very abusive and aggressive towards Dr Badami, and on a number of occasions she said to patients and other staff, words to the effect: "Dr Badami is a bitch; Dr Badami is incompetent; I have never worked with such a bad Doctor" 169 On the 27th June, 2005, Dr Badami heard the applicant say to a patient of Greek heritage, "you Greeks! Greek men do not know how to treat women. I hate Greeks!". Again, the respondent claimed to have spoken to the applicant, chastising her for speaking to patients in that manner, and saying that she should not do that again. A file note was made at the time by Dr Badami, which she attached to her affidavit, marked Annexure I. The file note reads in part: "Is very upset about Nayla saying that Greek men do not know how to treat women. Let her ventilate". 170 The applicant again wrote to Dr Badami on the 27th June, 2005, which was attached to Dr Badami's affidavit marked Annexure (j). This letter was again largely about a claim for a salary increase. 171 Amongst other things, the Doctor denied the applicant's allegation that she was promised to be paid $20 per hour, and also denied that the applicant was required to work through her lunch break, stating that, "she had never asked the applicant to work during lunch time". 172 Dr Badami met with the applicant immediately after receiving that letter and offered to refer the applicant's complaint to the AMA (Australian Medical Association). 173 The applicant received the general pay increase from July, 2005, but the applicant remained dissatisfied, and continued to ask for a greater increase in pay and in July, 2005, her attitude, according to Dr Badami, became openly hostile, and regularly came into the office complaining about her salary. She would say words in an aggressive manner to the effect: "Are you going to give me a pay rise?" Shit, you are a bitch! You are such a bad employer!" 174 On the 8th July, Dr Badami met with the AMA operative to discuss work place issues facing her as a result of the applicant's behaviour. She was advised by that officer of the AMA, that she had been paying the applicant above the award and that she was not entitled to any further payment under the award. The AMA wrote to the applicant on that day to inform the applicant of the outcome of the meeting, (marked Annexure (k)) to Dr Badami's affidavit. The letter of that date advised the applicant that she was correctly classified as a Grade 4 under the Clerical and Administrative Award. She was also warned in the second last paragraph not to undertake nursing duties in the practice for medical/legal and industrial reasons. In that letter she was also told that she was not required to work through lunch breaks as claimed by her, and also told that there was no claim for a back payment of wages as generally claimed by her. 175 Also in her affidavit, Dr Badami referred to a letter dated the 12th July, received from the applicant (Annexure l) containing claims that she had not received the $17 general award increase, claiming that Dr Badami refused to discuss the salary issue with her and made a claim for unpaid overtime. All of those claims were denied by Dr Badami. 176 On that day, Dr Badami met with the applicant and offered to approach the AMA again. The AMA confirmed that there was no entitlement to overtime as claimed. 177 When Dr Badami informed the applicant of the advice she received from the AMA, the applicant stated: "AMA doesn't know anything. I have run cases against them and I have won all of them. You should ask me and I will tell you how much you should pay me under the award". 178 From that time onwards, Dr Badami claimed that the applicant's behaviour became erratic and began taking more time off work. She developed a practice of ringing at 7am or 7.30am with words to the effect, "I am sick, I won't be coming to work today". Occasionally, after informing her employer that she would not be able to attend work, she did actually attend the practice. 179 Because of the increased unreliability of the applicant, Dr Badami asked a friend, Ms Jaya Chary to come to assist her in administrative duties whenever the applicant was unavailable. 180 The respondent also, at that stage, sought further advice from the AMA as to how to respond to the applicant and on the 18th August, 2005, Ms Fiona Davies of the AMA provided a draft letter to the applicant outlining Dr Badami's concerns about the applicant's performance and conduct, and having made some amendments, the letter was sent back to the AMA, who, on the 23rd August, provided a further draft letter intended for the applicant. That was marked Annexure (m) to Dr Badami's affidavit and was the draft procured by the applicant in controversial circumstances and replied to directly by her to the AMA - dealt with earlier in this decision - Annexure (n) to Dr Badami's statement. 181 Dr Badami claimed that the applicant had accessed her e-mail without authorisation to obtain a copy of that draft letter from Ms Davies, which she then replied to as above. 182 The AMA provided another draft letter to the applicant dated 25th August (Annexure (o), which required her to attend for an interview on the 26th August, 2005. 183 Also attached as Annexure (p) was a further letter written by the applicant to the AMA dated the 25th August. 184 The letter was some three pages in length and contained strong language to the respondent's adviser from the Australian Medical Association, Mr Lincoln Kinley. 185 Amongst other things, Ms Azar made colourful accusations, not all of which I am disposed to repeat here; denied misleading Dr Badami; accused Dr Badami of breaking her contact by harassing her continually; failed to answer the claim for underpayment of wages; claimed to have worked extremely hard and giving details of that performance; defended the use of her "nursing skills" and claimed Dr Badami "should be gratefully privileged for having me in her practice" and finally, the letter threatened further action, "will result in my filing an application through the Registry Industrial Relations Commission for unfair dismissal". 186 Dr Badami in the remainder of the affidavit, dealt with the allegations of non payment of overtime on the basis that she had always paid proper overtime; always treated the applicant with courtesy and professionalism; contrary to her allegations to the AMA she was provided with a group certificate in a timely fashion; denied changing her hours; provided the applicant with time-in-lieu if she was ever asked to work outside her normal contract hours; after being informed by Dr Rapson that the applicant was not a registered nurse - refused the applicant permission to perform nursing duties; and she did so. 187 A further letter was addressed to Mr Kinley of the AMA by the applicant, which is Annexure (r) of Dr Badami's statement. The extract from that letter reads as follows: "This is to inform you that your letter addressed to me and which was prepared on the 23rd August, 2005, and a meeting with myself and Dr Badami was arranged on Tuesday, 23rd August, 2005 the same day. Accordingly, I wish to notify you that this is illegal. I have not received and was not notified beforehand. I wish to also inform that I have learned by my colleague that you have attended the office on Tuesday, 23rd August, 2005 and attended the meeting with Dr Badami behind my back without being notified; I also, I would like to inform you that even though you have arranged again for the second time another meeting with Dr Badami and myself on the 26th August, 2005, and further without notifying me and without being given notice to reply, this is further another breach and it is illegal and against the law. 188 On the 26th August, 2005 Mr Kinley and Dr Badami met with the applicant to discuss the matters raised in the letter to the applicant dated the 25th August, and attached as Annexure (o) to Dr Badami's statement, which set out the list of some nine matters sought to be canvassed. The letter said in part: "due to the serious nature of these allegations, we would ask that you make yourself available for a meeting at 2.30 on Friday, 26th August, 2005 at Dr Badami's practice" She was told that she was welcome to be accompanied by a support person if required. 189 Dr Badami's statement outlined in brief the matters put to the applicant, and particularly the allegation that the applicant had accessed Dr Badami's e-mail, containing the draft letter for Dr Badami's approval prior to despatch to the applicant at the time, resulting in the applicant replying prematurely and on her own volition to Mr Kinley of the AMA. 190 In respect of the performance of nursing duties, the applicant responded at the meeting: "Yes, you have no right to accuse me of misrepresentation or of misleading Dr Badami. She asked me to do these things" The response of Dr Badami during the meeting was: "Nayla, I have not asked you to do any nursing duties. In fact, I specifically asked you not to do them". At that stage the applicant became aggressive and abusive towards Dr Badami and did not provide any further coherent responses to the issues raised in the letter. 191 There was a further meeting on the same day after a break in proceedings, where the applicant was informed that, based on the issues raised in the letter of the 26th August, and her responses, she was to be summarily dismissed. The reasons included: accessing Dr Badami's personal e-mail account without authorisation; misrepresenting skills and qualifications; abusive and disrespectful behaviour towards Dr Badami and refusing to obey lawful and reasonable directions. The letter is transposed at the beginning of this decision. 192 The applicant then became very aggressive and abusive towards Dr Badami and attempted to speak over the top of Mr Kinley and Dr Badami, and at the conclusion of the meeting, said words to the effect, "you wait and see Dr Badami. I will take you to Industrial Relations. You will regret the day you decided to go against me". 193 The applicant left the room. 194 After the applicant's dismissal, Dr Badami testified that she discovered a copious amount of medicare forms had not been processed and no work had been conducted on workers compensation matters as instructed, and she had generally failed to carry out a large amount of general paperwork, including billing and receipts to patients. 195 According to her account of the meetings on the 26th August, she had left Mr Kinley and Ms Azar alone for approximately half an hour to discuss matters, after which Mr Kinley called Dr Badami in, and after which the applicant was informed of her dismissal. 196 Dr Badami also gave evidence that the reply sent on the 23rd August to the draft letter AMA sent to Dr Badami was prepared by the applicant in her work time and sent on Dr Badami's e-mail. He also testified that the applicant had been given a letter drafted on the 26th August at the time of the dismissal. The draft of the 23rd August to which Ms Azar had replied was not the letter finally given to the applicant, and which was purely a draft sent by Mr Kinley. 197 Dr Badami denied saying to the applicant that she had saved her so much money on information technology by doing all the computer work. She did not deny that the applicant had installed software just as the Doctor herself had done it prior to the applicant's arrival and after her departure. She denied that the applicant was fixing her computer every day as claimed. She likewise denied that the applicant fixed her e-mails every day and went on to claim that the applicant should not have had access to her e-mail, and that was the reason for her keeping the server in her room and there was no e-mail at the front desk, although the computer could be used by staff in her room. Her e-mail had her own ID and only Dr Badami could access it. Neither did Dr Badami ask the applicant to access her e-mails in her absence as there was no need for her to do so. 198 Dr Badami explained the fact that the applicant obviously had obtained access to her e-mails despite her having personal ID, on the basis that somehow the applicant had got her password to her e-mail, which the staff is not suppose to have. Dr. Badami also suggested in this area that it had come to her notice that the applicant had accessed her private e-mail about her niece and shown it to other staff and patients. She did not include this in her affidavit as she was unsure of its relevance to the proceedings. 199 As an indication of the applicant carrying out duties not related to her job as receptionist, and instead related to a registered nurse position, the Doctor referred to page 2 of the letter of the 10th June wherein the applicant stated: "On a number of occasions I have tried to help you by caring for you and felt how busy you are. I performed to the best of my ability the blood tests and other tests like pregnancy or .......(not transcribable)... instead of saying thank you, you responded to me, "you don't get paid for it, why are you doing it?" that was another insult. 200 Dr Badami reinforced her evidence as to the applicant's performing nursing duties which she claimed in reply under cross-examination; "how would I know what you would do. But you have performed nursing duties well after I told you not to do so and I've got evidence there....." 201 On the subject of the applicant's classification as medical receptionist, the applicant had relied on her evidence upon a document Annexures (c), (d) and (e) of her affidavit and inclusive of the ETHOS Health Practice Details, which had been filled out by Dr Badami, according to her, which indicated that she had been nominated as Practice Manager. Dr Badami gave evidence that contrary to the applicant's constant assertions that it was a government program called an accreditation program, ETHOS Health was a Western Sydney Division of General Practice, which organised practice procedure manual and a sterilization infection control. Each practice was to put down their particulars, and their emergency phone numbers etc. It had nothing to do with accreditation and in the process also, practitioners were to write down the names of surgery staff and practice staff. It was also related to the training of staff on such things as sterilization procedures. Dr Badami gave evidence that the document procured by the applicant was actually a very private document in the surgery and that she was not happy about Ms Azar's accessing a copy of it to take home. This indicated to her that right from April, 2005, she had been collecting evidence to use in court or whatever she wanted, like in all other cases. Whilst Dr Badami admitted that it was her handwriting, and it had shown the applicant being ticked on the form to ETHOS Health as Practice Manager, she indicated that the letter of appointment did not so describe the applicant, and she explained that her nomination of the applicant on those terms was on the basis that the applicant wanted to go to a particular seminar, so she had put her down as Practice Manager. 202 Likewise, on another document on the letterhead of Healthlink, the applicant was shown as Practice Manager, and was responded to by Dr Badami on the basis that she had not employed her as Practice Manager, and that she had not employed her as a nurse. The Healthlink document, was simply to assist in downloading the pathology results into Dr Badami's computer and was merely to assist Morgan & Partners, her pathology providers to download the results into her computer. She maintained in that case, that Ms Azar had, "very easily filled out this fill in and faxed". The applicant's claim to have also been appointed as practice IT was also refuted by Dr Badami. It was merely that the pathology results were downloaded onto Dr Badami's computer and if there were problems, they could contact Ms Azar. She had only put Ms Azar's name because she was the sole full-time employee. 203 Dr Badami gave evidence that she had never had a Practice Manager as a solo practitioner and she did not need a Practice Manager. She did not need a nurse, or otherwise she would have advertised for a nurse and a Practice Manager. 204 When Ms Azar started working for Dr Badami, according to the respondent, she was very eager to do nursing duties and begged her if she could take blood and assist her in certain operations, because she had done so in the past. Dr Badami had told her that, "you're the only receptionist and I'm the only Doctor". Dr Badami had done those procedures on her own for the past thirty years. The applicant had pleaded with her to at least do the dressings on the basis that she missed her nursing work. She also wanted to take some blood, so Dr Badami had allowed her to take her blood first so that she knew if she could do it, and then said that she would allow her to take one blood sample a week, until her probation was over, and then she would speak to the AMA if she could be employed as a nurse. According to Dr Badami, "so she would take the blood, and then of course Dr Rapson found out that she was not a registered nurse", and so he told the respondent, "you'd better be careful because she's not a registered nurse". Dr Badami gave evidence of contacting the AMA about the matter, who advised her that they had done a search and that Ms Azar has not been a registered nurse. At that stage she called the applicant into her office, reminding her that she was not paid as a nurse, and that from now on she was not to perform any nursing duties. 205 However, one day she come to the practice after her house calls and Ms Azar had already done a pregnancy test on a young female patient, so she again called the applicant inside and said, "Nayla, you can't go ahead and do that. If I wanted you to do a pregnancy test, I would ask you to do it. I do the pregnancy test myself, because it is a private thing. If suddenly the girl wants it terminated and things like that, I don't want everyone to know it". Soon afterwards, Dr Badami saw the applicant taking blood from a patient, which was an event recorded in her affidavit. At that stage she called the applicant in, saying not to undertake nursing duties, to which she responded, "but the patient asked me, the patient said I take blood well". 206 Dr Badami agreed with the applicant that she was the most qualified employee she had employed, but disagreed that she was an honest person, and stated that whilst the applicant starting off working very well, her conduct deteriorated in the fashion testified earlier. Her performance began to decline in January/February, 2005, up to which time her performance was good, and after which she began placing pressure upon Dr Badami for a review of her salary, and to have the Doctor sign a draft reference, which the applicant had typed up in an attempt to have the Doctor sign it at busy times, when she was required to sign other documents. 207 Dr Badami gave evidence contrary to the proposition put to her in cross-examination that the applicant did not have her folder with the originals of her qualifications at interview etc. but merely a copy. She had said at the time; "All these qualifications seem very impressive, but I'm employing you only as a medical receptionist. You could be a registered doctor, but I'm only hiring you for your expertise as a Grade 4 Medical Receptionist". She testified that the applicant was very impressive at interview, well dressed and seemed very sensible, sincere, honest and trustworthy and also claimed to be god-fearing and a good Christian, and while that made no difference to Dr Badami, she nonetheless presented herself very well, and the faxed resume that she had at interview, was quite impressive. 208 Dr Badami gave evidence that the reason she approached the AMA was because she had received two or three letters, "almost threatened that she would leave me without any notice and that she would take me to the Industrial Relations and to the court, and that I had caused her a lot of mental trauma and I had degraded her". 209 Dr Badami, when pressed by the applicant, clarified her comments as to the decision of Commissioner Patterson, concerning her previous employment with Dr Ritchie on the basis that it had concerned her that she had misrepresented her experience, skills and references that she may have provided. She had made such reference on the basis that the decision in respect of Dr Ritchie's dismissal of the applicant was a public document. Dr Badami also testified that she believed that letters written to blackmail Dr Ritchie were in contradiction to her representations at point of interview, that she had been appreciated by Dr Ritchie and received favourable references. 210 In respect of another reason for the applicant's dismissal, Dr Badami gave evidence in cross-examination on a matter relied upon by the applicant that the GIO investigator had allegedly accepted that there had been some rudeness from Dr Badami. Dr Badami gave evidence that: "the GIO rehab counselling was going on for her mental trauma from the previous employer. I was just added on to the list Applicant: I oppose, Commissioner. A. and there is no evidence here because it is just Ms Azar accusing me of treating her badly and being nasty". 211 In respect of the closeness of the applicant to the respondent at page 107 of the transcript, the applicant questioned as follows: "Q. Certainly, I agree with that. Dr. Badami, after I started working with you, and of course you and I were very well known to all the industry plus the patients in the area, everyone knew that you and I were very close. Do you disagree on that? (No verbal reply) Q. You disagree on that? A. Yes. Q. For some period we working very close, do we? A. No. Q. We wasn't? We didn't sleep in the same bed did we? A. No. Q. Dr Badami, you and I, we stayed in a conference, we get conference, stay in same room. Do you deny that? A. Same room, but not the same bed, we have three beds. Q. I'm not talking, your honour, about whether I'm a lesbian right now. Commissioner: Just be careful what you are saying here. Applicant: Your honour, I'm talking the way we were very close, enough like a daughter and a mother, that's what I'm talking, so I make it clear". 212 The evidence in that area continued with the question as to whether or not the applicant had driven the Doctor and loaned her a motor car, with Dr Badami giving some limited agreement to an occasion of borrowing her motor car, but offering to pay for petrol. Dr Badami gave evidence in that area: "A. Now I believe that you made me use your car so that you could use that as evidence, it was collecting of evidence. Q. Dr Badami, I asked you a direct question. We are attending, you and I, many seminars together, do you deny that? A. Yes. Q. You deny that? A. Many conferences, definitely, I have been. You (sic) used to beg me to come for the seminars. When my son sent me tickets for a dance drama, you begged me that you could come. You would beg in such a way that I'd feel pity for you and I said, alright, you can come. That is when you got me to write that you were as a Practice Manager when you went to the Central Coast. Q. Dr Badami, when you asked me on many occasions to stay late to help you, did I stay late, yes or no? A. I have never asked you to stay more than five o'clock". Final Submissions 213 It is necessary to deal only briefly with the submissions of Ms Azar and Mr Saunders. 214 The applicant's arguments were lengthy, but of minor relevance, as they bore little resemblance to the evidence from which she was supposed to be drawing and presented a broad range of mischaracterisations. . In effect, she was found to have apparently followed her own script, undeserving of repetition here. 215 Mr Saunders' submissions were succinct, to the point, and accurate. 216 Again, because of the unusually detailed treatment of the evidence by me earlier, I will refrain from too much repetition in referring to the points made by Mr Saunders. 217 Nonetheless, I must give him the courtesy of acknowledging the validity of all his submissions and noting some in particular, and which I have independently dealt with in my consideration hereunder. 218 In support of his contention that Ms Azar was someone willing to say anything and allege anything in an attempt to further her cause, he offered specific examples. 219 The first was her claim that when being interviewed, she provided Dr Badami with a resume containing a full account of her work undertaken since 1991. He went on then to detail the omissions, later conceded by the applicant, but pointed out that the changes in her evidence in her cross-examination were simply unbelievable. This area is dealt with in more detail by me in both the evidence summary and my consideration hereunder, along with other areas raised by Mr Saunders. 220 Mr Saunders referred to the contradiction in her evidence that Dr Badami had herself classified her as Practice Manager, yet elsewhere complained of always being referred to by her former employer as Medical Receptionist, demonstrated by her own correspondence complaining about being only called Receptionist. 221 Her acceptance when employed by being covered by the Clerical and Administrative (State) Award, contrasted with her correspondence to Dr Badami contending the medical industry was not covered by the award. 222 She alleged she won the appeal against her former employer, Dr Ritchie and that the Commission made an order that Dr Ritchie pay her legal costs. This is contrary to the transcript, showing that a settlement had been agreed, making it unnecessary for a decision on appeal being handed down as such. 223 The applicant denied meeting with Dr Badami in June, 2005 to discuss her wages, which contradicts her own correspondence, mentioning a meeting on 31st June. When asked whether 31st December was in December, she claimed it was not. 224 She claimed that she was not dismissed by Dr Ritchie, when it was clear she was - otherwise she would not have brought a claim as she did in the Commission. 225 Mr Saunders on a more general note, claimed that Mr Azar's evidence was inconsistent, erratic and self contradictory and should not be accepted. He went on to provide specific comparisons with the respondent's witnesses, which established that the five grounds for dismissal were proven by the civil standard of proof and that the respondent had discharged the onus upon it, whilst the applicant failed to discharge the onus upon her to prove that her dismissal was either harsh, unjust or unreasonable. He concluded by summing up the proven instances of the misconduct of Ms Azar consistent with the reasons given to her for her dismissal, and now detailed under CONSIDERATION by the Commission hereunder. 226 The Commission was also assisted by Mr Saunders' reference to several authorities as indicated in the coversheet to this decision, which I have found to be most apposite to the issues in this case, including the breach of essential terms of contract and that of summary dismissal, but it is not necessary to summarise those at this stage. CONSIDERATION 227 This case depended more than usually on the Commission's assessment of the credibility of the various witnesses. 228 That required a close examination of all the transcript as indicated by the extensive summary, made necessary by the confused and complicated presentation of the applicant's case. 229 If I could say firstly in respect of the respondent witnesses, that Dr Badami gave careful and measured evidence. I formed the view that Dr Badami's account of the applicant's relatively brief period of employment was entirely plausible and that she discharged the onus of satisfying the Commission on all significant matters identified as to the reasons for the applicant's termination, which included the important issues of patient confidentiality, together with the way she conducted herself towards and spoke to her employer, especially in the final months of her employment. 230 The evidence of Ms Neville and Ms Chary was cautious and convincing and has to be accepted by me as corroborative of certain statements and behaviour of the applicant. 231 By stark contrast, the applicant was perhaps the most unreliable witness that this member of the Commission has experienced. 232 I have given the applicant the benefit of the doubt in many areas where she gave unsatisfactory evidence, but a reading of the summary of evidence gives some indication of the range of those. 233 There were a number of specific instances identified by me, independently of those canvassed in the final submissions of Mr Saunders, where she had demonstrated an extraordinary capacity to shift her position and even contradict herself - usually within a short space of the transcript Most of those are outlined in some detail below, but there was a range of less direct credibility issues, which, whilst there is a lesser reliance on such matters by me, they should be mentioned here at this stage for a broader understanding of the applicant's motives in pursuing this claim. They were consistent with the unusual behaviour of the applicant claimed by Dr Badami during her employment. 234 The first of these was that Ms Azar seemed both impulsively and compulsively evasive. Her practice of rarely ever answering a question put by Mr Saunders in a direct fashion, often with another question, could not be accounted for by an over exuberant self representative. 235 She was in fact not an inexperienced advocate, as revealed by Mr Saunder's cross-examination of her when she reluctantly acknowledged having brought three previous unfair dismissal claims against members of the medical profession over recent years. Also relevant to this was that she had worked for a time for Employment Help Services as an agent for dismissed employees, at least in conciliation conferences. 236 Her constant slipping away from direct answers was disingenuous and could not simply be put down to a more than usual desire to score every point and to concede nothing, and she was the opposite of a cautious and measured witness. 237 One irritating aspect of her behaviour throughout was her continued failure to heed the plethora of warnings and instructions given by the Bench to alter her conduct when in the witness stand and at the bar table. It has to be said that she proved to almost impossible to control - talking over the Bench, the witnesses and Counsel for the respondent. The failure to answer questions properly was a constant problem or to allow Dr Badami in particular to answer questions put to her, before launching into another multi faceted question; or simply cutting the witness off midstream; or to indulge in speechifying from the bar table; to make a stream of ill-founded objections; or to cast frequent unjustified aspersions against Mr Saunders. These antics proved to be a continual distraction. 238 Again I need to emphasise that whilst such matters might strictly be of secondary importance in respect of either credit or of limited forensic value in providing a manifestation of how the applicant was alleged to have conducted her employment, it does need to be recorded for a fuller understanding of the more direct indicia. 239 The outlandish and provocative content and style of speech in her correspondence to the respondent, complaining about real or imagined wrongs and seeking a pay increase, and to the respondent's AMA representative when challenged over issues, (referred to later) might for instance, otherwise be puzzling, given her obvious status as a fairly short term employee. Ordinarily such an employee could be expected to be a little more guarded and see themselves as somewhat dependent upon the goodwill and trust of their employer. 240 As already alluded to, because of the unusual and often complicated nature of these proceedings, the Commission has deemed it wise to deal in some particularity with the evidence as it unfolded from the transcript, which might even assist the applicant's understanding of this decision. It is appropriate to now highlight some of those revelations, especially as they went to credit. 241 The applicant's emphatic denials, that the Grade 5 status under the Award was important to her, such as of her evidence at page 52 line 48 of the transcript 17/02/06, where she claimed that the grading was unimportant and irrelevant to her, flew in the face of her other evidence. That contradiction was contained in her letter of 10th June 2005, Exhibit A, Annexure (k) which showed her emphasis upon her claim that her position was "NOT A RECEPTION POSITION BUT A GRADE 5 ADMINISTRATIVE/RECEPTION". At paragraph 5 she repeated that claim. 242 A little less obvious was her continued insistence that the Clerical and Administrative (State) Award had no application in medical practices even after acknowledging that she had no foundation for saying so. 243 Her various claims as to the hours worked by her could only be described as wild and conflicting. An illustration of that is shown when she claimed at page 24 of transcript of 17/02/06 to have started at 8am, yet when on the very next line of transcript Mr Saunders asked, "So you started at 8.30am did you?" Her immediate response was, "Yes" (meaning 8.30am and not 8am). There were other exaggerations and shiftings in her evidence around that issue shown by the summary of transcript earlier outlined but not repeated here. 244 The applicant's carelessness with the truth was also instanced by her leaving out significant parts of her employment history in the resume provided to Dr Badami at employment interview, upon which she was cross-examined. The earlier summary of evidence highlights the extent to which she gave enthusiastic assurances that she had not made exclusions, yet when she was shown to have made blatant omissions she obfuscated and made unbelievable excuses for the omissions and then, in the face of facts to the contrary, resumed her position that the resume was a truthful account of her employment history. 245 Yet another silly area of the applicant's evidence was her oft repeated ill-founded description of the outcome of her appeal against the decision of Commissioner Patterson in a previous application against Dr Ritchie, that she had "won that appeal". She also claimed at one point that Dr Ritchie had been ordered to pay costs, directly implying that her costs also had to be paid, she only clarified that under pressure from Mr Saunders, but later continued inaccurate references to the Ritchie appeal, which seemed quite deliberate. This was despite unsuccessful efforts made by counsel for the respondent and by the Commission itself to have her give a more truthful account of the appeal result where Dr Ritchie had agreed in a conciliated outcome before his Honour Deputy President Grayson to not pursue his costs award by Commissioner Patterson at first instance. 246 In a related area of evidence she also claimed not to have been dismissed by a former Doctor who had employed her, yet acknowledged having brought an unfair dismissal action against him. She denied at page 102 of transcript that her earlier former employer, Dr Ritchie, had claimed misconduct as the grounds of dismissal and at one stage had difficulty even agreeing she had been given any reasons by Dr Ritchie when he dismissed her, even when presented with the facts by Mr Saunders. 247 One of numerous small instances where the applicant gave careless and sloppy evidence was where she claimed to have doubled the number of patients for Dr Badami and when challenged, resiled from that unlikely claim, only to then say she had doubled Dr Badami's income. 248 The denial of having had a meeting with her employer in June was similarly marked by a failure to acknowledge something demonstrated to be incorrect. Her fallback position that a date at the end of the month should not be regarded as being in June, or that 31st December was likewise not within December, was risible. The fact that there is no 31st June was not the point in dispute, but the instance again showed how easily the applicant chopped and changed in her testimony. 249 Overall, it seems an understatement to say that the applicant's evidence was unreliable and in fact wherever her evidence conflicted with that of the respondent's witnesses, it had to be disregarded. Indeed the quality of her evidence was so poor that it hardly needed to be refuted, having a largely built in self-destructive quality. Summary - Findings 250 I am satisfied that the applicant did access Dr Badami's email to obtain the draft letter proposed to be sent to the applicant on 23rd August 2005 of anticipating the calling of a show cause interview. Even if she had found it on the kitchen bench as she claimed, her action in prematurely replying directly to the AMA before officially receiving it, combined with the tone and content, was little short of audacious. The applicant placed herself in a situation where any reasonable employer would feel that the prospects of straightening matters out at interview had been retarded by her pre-emptory response. 251 Indeed that letter dated 23rd August from Ms Azar was consistent with the abrasive tone of all her correspondence to Dr Badami, starting from the letter of 10th June 2005 (Annexure (h) of Exhibit H(a)); and continuing with those of 12th July 2005 (Annexure (l) of Exhibit H(a); 23rd August as mentioned before; and 25th August 2005 (Annexure (p) of Exhibit H(a). 252 Those letters sent to her employer and the representative of the AMA had more of the air of a genuinely aggrieved litigant in a strong bargaining position rather than an ordinary employee of short employment duration up to the time of commencing her demands. 253 It would certainly have assisted her case, if she had been found to have been justified in pursuing her claims in using what can only be described as the provocative and irritating manner of her physical face to face and written encounters with Dr Badami. Instead she has been found to have relentlessly pursued her employer on false claims. 254 Because of the unusually poor state of her credibility, as opposed to the respondent's account of incidents, which established, inter alia that the applicant had been disrespectful and abusive, I have found that the respondent was entirely justified in bringing matters to a head in the style and with the timing which she did. 255 I have not been able to accept the applicant's claim of a lack of procedural fairness. The fact that she did not bring a support person with her, (for whatever reason), does not mean that the interview scheduled for 26th August should have been postponed. Given that the employer has been found to have put the applicant on written notice of the issues for discussion and the applicant wrote two detailed letters of reply prior to the meeting, the important natural justice concept envisaged within Section 88(b) (providing the opportunity to defend charges) cannot be said to have been overlooked or disregarded. This is especially so as the meeting spanned some two to three hours, with an adjournment of around half an hour in between, prior to the applicant being further informed as to the respondent's intention to terminate. 256 In any event, I have not accepted that the applicant could not organise a support person in the time allowed, especially as her two written replies display a capacity to not be easily overcome by the process adopted by this small employer. 257 As the relevant authorities make clear, there is certainly no automatic right to be represented by a lawyer or anyone else in this situation unless such procedure is a term of contract or administrative policy. Anyway, the applicant did not seek an adjournment to seek such representation. 258 Given the applicant's conduct during this case, I readily accept the evidence of Dr Badami, that she lapsed into being abusive and incoherent during the interview on 26th August 2005. 259 To summarise some of the other particular findings: · Doctor Badami was entitled to take account of the direct complaints of patients and attempt to pull Ms Azar into line and when she re-offended, the applicant was rightly found to have breached confidentiality on several occasions. She made inappropriate comments to patients, particularly patient M, whose medical condition was embarrassing and announced it in front of other waiting patients. · Likewise, the respondent satisfied herself through direct reports that the applicant not only breached confidentiality but openly defied the prognosis given to one patient by suggesting an alternative course of treatment to that prescribed. · Given the standard of the applicant's credit, there is no reason to doubt that other instances with patients coming to Dr Badami's attention happened as outlined in the respondent's evidence and show an overall lack of appreciation for a fundamental requirement of discretion and trust in her position. · Although some of these incidents happened over some months and might well have justified dismissal much earlier, the respondent cannot be said to have acquiesced in such conduct (as shown by her diary notes) and opted to give the applicant warnings, which she defied with further indiscretions. · Ms Azar failed to follow various directions including being told not to perform nursing duties which she persisted with after Dr Badami found out that the applicant was not a Registered Nurse, as she had claimed to various people including Dr Badami, and told to desist. · The employer was justified in including the issue of whether the applicant had misrepresented her skills and the reference obtained from previous employment with Dr Ritchie in the light of findings of Commissioner Patterson's decision coming to the respondent's attention at the time. · Her pursuit of the title of Practice Manager was based upon her retention of documentation prepared for trivial reasons, which did not support an intention to promote her beyond receptionist as she claimed or, that as the only full-time employee in a small practice, that she should have been designated Manager. · There was no foundation for her claims of underpayments, and neither were promises made to do things in that area as claimed. · The applicant carried out her threat in her letter of 12th July (Annexure (l) of Exhibit H(a)) to restrict her "administrative duties to the current wages until further notice" by failing to perform essential invoicing and billing work and related to Workers' Compensation matters. This came to light afterwards but should be included here as being consistent with the reasons for her dismissal and could not have been readily ascertained prior to her dismissal. (See Lane v Arrowcrest Group Pty Ltd, von Doussa J (1990) 27 FCR 427. Conclusion 260 The applicant was employed as a receptionist under a written Letter of Appointment clearly setting out the main conditions of employment, which included that she be paid as a Grade 4 Clerk under the Clerical and Administrative (State) Award. Her terms were varied soon after she commenced to increase the rate, following early complaints by the applicant that she was not being paid enough. She also signed a separate confidentiality provision, quite apart from that contained in the original terms of engagement. 261 Some months after commencing, the employer became aware that Ms Azar was not as she seemed at interview, and at the early stage of her employment. The deterioration in the relationship was gradual, but came about over such things as finding the applicant continuing to perform nursing duties, contrary to instruction, and being indiscreet in handling patients and towards the final stages, becoming abusive in her conversation and in her correspondence to her employer, and making derogatory remarks to staff and patients about her employer. 262 Whilst the applicant's pursuit of her claims for additional remuneration were found to have no justification, they were nonetheless unrelenting to the point where her employer was forced to take advice from the AMA, which became involved, to no avail. In the meantime, the applicant was found by Dr Badami, largely from direct reports from patients complaining of her conduct, to have made several indiscreet comments to patients on important confidential matters and to have continued to perform nursing duties after the respondent had instructed her against doing so, following the discovery that she was not a registered nurse as she had claimed. 263 Because of her extraordinary behaviour and the tone and content of the applicant's persistent approached over her remuneration, along with the direct verbal abuse of Dr Badami, such as to say "shit you're a bad employer" and to others that "Dr Badami is a bitch", the respondent did what any reasonable employer would be entitled to do in the situation. She enlisted the AMA's help to finally call the applicant to what was effectively a show cause interview on 26th August, 2005. The five areas mentioned in her dismissal letter of 31st August, 2005, were canvassed at that meeting with no satisfaction. 264 Given the applicant's reactions in writing to the AMA and the unsatisfactory attitude and responses at interview on 26th August, 2005, her dismissal at the end of that lengthy interview was justified, and given the breakdown of trust and confidence on fundamental aspects of the employment contract. 265 The interview confirmed that the applicant had effectively repudiated the employment contact by not complying with essential provisions and was unlikely to alter her behaviour and attitude. 266 The Commission has been comfortable in drawing from Mr Saunders' submissions in finding that the dismissal of Ms Azar was not harsh because the breaches of loyalty, honesty and confidentiality had destroyed the necessary confidence between employer and employee and the dismissal was not a disproportionate penalty. Neither was her termination unjust, when the misconduct for which she was dismissed has been established before the Commission. It was not unreasonable that Dr Badami dismissed the applicant on the basis of the inferences reasonably drawn from material and reports before the respondent. 267 The application is dismissed. 268 Costs are reserved. J Murphy 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.