Industrial Relations Commission of New South Wales CITATION: Jeanie Marie Parsons and Katungal Aboriginal Corporation Medical and Community Services [2009] NSWIRComm 1007 APPLICANT Jeanie Marie Parsons PARTIES: RESPONDENT Katungal Aboriginal Corporation Medical and Community Services FILE NUMBER(S): 1781 of 2008 CORAM: Macdonald C CATCHWORDS: Unfair dismissal - Applicant engaged as receptionist at Moruya clinic - Applicant called to a meeting with Chief Executive Officer - Applicant used company vehicle to attend meeting - Applicant left meeting upset - Applicant returned to Moruya clinic and then left clinic shortly thereafter - Applicant received dismissal letter by courier the next day - Unfair dismissal application filed - conciliation unsuccessful - Hearing in Moruya Court House - Respondent submitted Applicant had resigned or abandoned her employment following the meeting with Chief Executive Officer - Respondent claimed that dismissal letter authored by Chief Executive Officer was incorrectly drafted by him - Respondent raised other issues concerning Applicant to support a dismissal or a cause for the dismissal of the Applicant if the Commission found that the Applicant had not resigned or abandoned her employment - onus on Respondent for submission that summary dismissal warranted where Applicant allegedly failed to obey a lawful direction - HELD: Applicant did not resign or abandon her employment - Allegation that Applicant failed to obey a lawful direction not made out - Other issues from Applicant's employment history relied upon by Respondent to support a cause for dismissal not made out by the Respondent - Reinstatement ordered - mitigation considered. LEGISLATION CITED: Industrial Relations Act 1996 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown v Dunn (1893) 6 R.67 Byrne v Australian Airlines Limited (1995) 185 CLR 410 CASES CITED: Cherry v Allied Express Transport (1997) 73 IR 305 Clarke v Metropolitan Meat Industry Board (1967) AR (NSW) 16 Outboard World Trade Pty Ltd t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No. 3) (1990) 35 IR 70 Transport Workers Union of New South Wales o/b B &C Delivery Services Pty Ltd (Robert Perks) and P & B Foods Limited [2004] NSWIRComm 1012 (31 March 2004) HEARING DATES: 17/02/09 & 18/02/09 DATE OF JUDGMENT: 3 April 2009 APPLICANT Mr A McAvoy, Barrister LEGAL REPRESENTATIVES: RESPONDENT Mr D Groundwater, Solicitor DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 3 April 2009 Matter No IRC 1781 of 2008 Jeanie Marie Parsons and Katungal Aboriginal Corporation Medical and Community Services Application by Jeanie Marie Parsons re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2009] NSWIRComm 1007 1 This is an application by Jeanie Marie Parsons ("the Applicant") for unfair dismissal against Katungal Aboriginal Corporation Medical and Community Services ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The matter was set down for Conciliation/Teleconference on 9 October 2008. The Applicant was represented by Ms Ridge, solicitor, of Ridge & Associates Pty Ltd. The Respondent was represented by Ms Yacoubian, solicitor, of Warren McKeon Dickson Lawyers. 3 Ms Yacoubian raised two jurisdictional issues as a ban to the Industrial Relations Commission of NSW having jurisdiction to deal with the unfair dismissal application. That is: alleged federal award coverage of the Applicant's work and the corporation status of the Respondent. The jurisdictional issues were programmed for a Hearing on 27 November 2008. Subsequently, the Commission received correspondence from the Respondent's law firm that the Respondent would not challenge the jurisdiction of this Commission to deal with the Applicant's unfair dismissal application, in order to avoid costs in challenging jurisdiction. 4 The matter was set down for further conciliation on 25 November. Ms Ridge continued her appearance and Mr Groundwater (from the same law firm) now appeared for the Respondent. Conciliation was unsuccessful. 5 The Hearing took place in Moruya Court House on 17 and 18 February 2009. The Applicant was represented by Mr A McAvoy, Barrister of Ridge & Associates Pty Ltd. Mr McAvoy called the following witnesses: Jeanie Marie Parsons - the Applicant Angela Nye - Board member of the Respondent The Respondent was represented by Mr D Groundwater, solicitor, who called the following witnesses: Damien Matcham - Chief Executive Officer Jade Hansen - Section Leader Shannon Gill - former employee Mervyn Cooley - Medical Transport Driver Karen Boscheiner - Practice Manager BACKGROUND 6 Ms Jeanie Marie Parsons (the Applicant) has worked for the Respondent, on and off, for some 13 years. The length of her last engagement with the Respondent was raised as an issue, in the event that the Commission decided to order payment of compensation. 7 The Applicant worked four days per week as a receptionist at the Moruya clinic at the time of her cessation of employment. Prior to that, she was engaged as a medical driver working out of Narooma. 8 On 21 August 2008, the Applicant received an email from the Narooma office advising of a change in clinic hours and the Applicant began informing clientele of this change and the possible need to rearrange appointments. 9 Her notifications also included a typed notice which she also brought to the attention of Damien Matcham, Chief Executive Officer, on 26 August 2008 (a Tuesday). 10 Mr Matcham emailed the Applicant on the same day, questioning her as to who had authorised/approved the notice. The Applicant responded on the same day by email that she was unaware approval was required and apologised. 11 On Thursday, 28 August, the Applicant sent an email to Ms Jade Hansen, Section Leader (copy to Mr Matcham) expressing, inter alia, her disappointment at the change in clinic hours and that the community will be in uproar about this hours change. She also said: "I will also be looking for employment elsewhere because I don't want to be apart of such a good service that always lets me down and the people". (Ex 1, Annex I) 12 Mr Matcham requested Jade Hansen (both of whom worked at Narooma) to have the Applicant attend a meeting with him to discuss her email. 13 The Applicant drove to Narooma in a company car which use was authorised by Ms Hansen. The Applicant also had her children in the company car and this had not been authorised. The Applicant gave evidence that her mother was not available to care for the children, who had been mucking up at school. 14 The meeting took place on the Thursday, 28 August in the afternoon. The meeting between Mr Matcham and the Applicant (dressed in her company uniform) became heated and the Applicant abruptly left the meeting which was also attended by Ms Hansen. There was a dispute in the evidence as to the ending of this meeting. Mr Matcham said in the witness box that he gave a direction to the Applicant which she disobeyed. 15 The Applicant drove back to the Moruya clinic. There was an issue as to whether the Applicant had dropped her children off, before going into the office. That issue went to the opportunity for the Applicant to then pick up her company uniforms and hand them in to the Moruya office. That issue was raised by the Respondent in final submissions to support its claim that the Applicant's conduct, back in the Moruya office, supported its claim that she had resigned her employment. 16 On the Applicant's account, she drove back directly to the Moruya office in the company car. She returned the car keys. She deposed she said to Shannon Gill and Mervyn Cooley: "Give my keys to Dr Rob to lock up the building, I'm going home". (Ex 1, para 28) 17 There was a dispute in the evidence as to whether the Applicant also handed over her company uniforms at this time. Mr Cooley deposed she did so and this was relied upon by the Respondent to support its resignation scenario. The Applicant denied she handed over the uniforms at that time. 18 The next day was a Friday and was not a working day for the Applicant. 19 On that Friday (29 August), the Applicant received a letter, by courier, from the Respondent. The letter was signed by Damien Matcham, Chief Executive Officer, and informed the Applicant that she had been dismissed ("your services are no longer required"). (Ex 1, Annex K) The Commission notes, for the moment, that no reason is provided in the letter for the dismissal. 20 The Applicant gave oral evidence that in consequence of the dismissal, she returned the company uniforms (three shirts and two jackets) on the following Monday to the Moruya clinic/office. FINAL SUBMISSIONS For the Applicant Mr McAvoy, barrister for the Applicant, put the following in final submissions: (a) The Applicant sought primarily reinstatement and alternatively, compensation. Her dismissal was harsh, unreasonable or unjust ("unfair"). (b) The issue before the Commission was whether the Applicant had resigned her employment (as claimed by the Respondent) or had been terminated by the Respondent (as claimed by the Applicant). The Respondent was not entitled to argue, as it did, that the Applicant had resigned her employment, but if the Commission was against the Respondent on this claim, then the facts existed to justify a termination of the Applicant because of her history of misconduct. The Commission should therefore ignore any evidence going to the issue of misconduct. (Mr McAvoy addressed this issue on a just-in-case basis). (c) As to the Respondent's claim that the Applicant had resigned her employment, the evidence on this issue was at best, equivocal. (d) The notion of resignation was pleaded by the Respondent, after the unfair dismissal proceedings had commenced. (e) The Applicant had in reality been terminated when the Applicant had been provided, by courier, with a letter of termination, authored by Mr Matcham, the chief executive officer. The reason given for the termination did not ground a reason for termination. (f) The Applicant was a witness of credit. For the Respondent 21 Mr Groundwater, solicitor for the Respondent, put the following in final submissions: (a) The Applicant resigned her employment on 28 August 2008. (b) In the alternate, the Respondent contends that the Applicant was dismissed for serious misconduct: the Applicant's conduct at the meeting of 28 August which culminated in the Applicant swearing and storming out of the meeting. (c) As a further alternative, if the Commission is not with the Respondent on (b) above, then all of the adverse circumstances (surrounding the Applicant's employment) that culminated in the meeting of 28 August meeting, justified termination. (d) As to the resignation scenario, the events surrounding her meeting of 28 August with the chief executive officer, supported that resignation scenario: the Applicant blew up at that meeting and stormed out. The Respondent claimed that the Applicant drove home, and before returning to the office, collected her uniforms and then handed them in at the office as part of conduct evidencing a resignation. The Applicant cleared her desk and this evidence evinced a resignation. As well, fellow employees, who witnessed the Applicant's return to the office, formed the view that the Applicant would not be returning to work. (e) If the Commission does not find that the Applicant resigned her employment, then the reason for dismissal set out in the termination letter issued by the chief executive officer, was justified. (f) In the alternative, there was other conduct (separate to that relied upon in the termination letter) of the Applicant that would have justified termination of the Applicant's employment. (g) The evidence of the Applicant was not to be preferred against that of the other witnesses. (h) If the Commission should find that the Applicant was unfairly dismissed, then any order for compensation could not exceed a three month duration. This was so, as it was submitted that the Applicant had previously abandoned her employment and later taken up a new contract of employment which, at the time of the cessation of her contract, was only of a three month duration. It was also submitted that the Applicant had not taken all reasonable steps to mitigate her loss of remuneration. (i) Reinstatement was opposed as there had been an irretrievable breakdown in the relationship. Applicant in Reply 22 Mr McAvoy put the following in reply: (a) There was no evidence as to an irretrievable breakdown in the relationship. (b) As to the resignation scenario put by the Respondent, the claim that the Applicant returned home first (and picked up her uniforms) and then went to the office to hand in the uniforms, was not put to the Applicant in the witness box. (c) It was disputed that a fellow employee (Ms Shannon Gill) had given evidence that the Applicant had cleaned her desk of her belongings, when the Applicant returned to the office from her meeting with the chief executive officer. (d) The Applicant's conduct post dismissal reasonably addressed the mitigation issue. CONSIDERATION 23 The primary remedy sought by the Applicant is reinstatement with attendant orders for continuity of service and loss of remuneration. Her fallback remedy is compensation. Either remedy, of course, can only be granted if the Applicant establishes that she was unfairly dismissed. The Applicant said she was dismissed by a letter of termination couried to her on Friday, 29 August, 2008. 24 The Respondent contends firstly, that the Applicant resigned her employment on Thursday, 28 August 2008 and therefore this Commission has no jurisdiction to consider any further, the Applicant's remedies. In the alternate and secondly, the Respondent contends that, if the Commission finds that the Applicant did not resign her employment, then the dismissal of the Applicant was justified on the ground of serious misconduct. That is, the Applicant's conduct at the meeting of 28 August justified termination. As a further alternative, the Applicant's dismissal could be justified given all of the adverse circumstances surrounding the Applicant's employment history that culminated in the meeting of 28 August 2008. 25 The first issue for consideration by the Commission is the Respondent's claim that the Applicant resigned her employment. If that is so, then the Applicant can not claim she was unfairly dismissed. RESIGNATION CLAIM 26 The Respondent claimed that the Applicant resigned her employment and relied upon certain events that occurred on Thursday, 28 August, to support that claim. Those events were an email authored by the Applicant and a certain conversation that took place in the Moruya office in the afternoon of that day. (That certain conversation took place after her meeting with the chief executive officer and her supervisor). 27 Before considering the evidence as to whether the Applicant had resigned her employment, the Commission refers to case law on this point. A discussion of authorities on this point is contained in the judgement of Peterson J in Cherry v Allied Express Transport (1997) 73 IR 305 at 309 to 311. The authorities suggest that a resignation by an employee needs to be unambiguous. The Commission will now consider the evidence surrounding the purported resignation of the Applicant, against those authorities. 28 The email was sent by the Applicant to her supervisor (copy to the chief executive officer) at 11.50am and concerned "drop of hours", which was a reference to her being notified that the Moruya clinic would now be closed on Tuesdays and in turn, this would mean she would only be working a three day week (instead of four days). 29 The Applicant's email stated her view about this "drop of hours". For example, she said she was "disappointed" and "disheartened". The Applicant's email concluded with a sentence that the Respondent relies upon to support its claim of a resignation: "I will also be looking for employment elsewhere because I don't want to be apart of such a good service that always lets me down and the people". (Ex 1 - Annex 1) 30 The Applicant was cross-examined on the email and in particular on this last sentence italicized above. (Tr 17/02/09 : p18 to 20) The Applicant denied that that sentence meant she was going to leave her employment " straight away ". She did not know when she might start looking for a job when she wrote that email/sentence and that the email " was just more of a response after I'd received the phone call in regards to a day taken from me after signing a four day contract, a week before". 31 Having considered the evidence on this issue, the Commission finds that the Applicant's email/sentence does not constitute a resignation. This email/sentence speaks of future conduct and does not state that the Applicant has just repudiated her contract of employment by way of an oral resignation. The Commission also observes that there was no evidence that Mr Matcham asked the Applicant at their meeting if her email represented a resignation. Nor was the witness to their meeting (Ms Hansen) asked if Mr Matcham questioned the Applicant's email as being a resignation. Again, the Commission states that this email was not a resignation by the Applicant. 32 The next event on that day was the Applicant being contacted by her supervisor, Ms Jade Hansen (located in Narooma) and advised that Mr Matcham wanted to meet with the Applicant. This contact was subsequent to the Applicant's email discussed above. This necessitated the Applicant using a company vehicle to drive to Narooma for that meeting. The Applicant had her children in this company car. The Applicant gave evidence that she had been called into school that day to pick up her youngest child who was mucking up in school. She went to her mother's place to drop the children off, but the mother was not home. Hence the children were in the car. (The relevance of this evidence is dealt with below). The Respondent does not claim that the Applicant resigned her employment during her meeting with the chief executive officer. The Applicant's supervisor also attended that meeting. 33 The Applicant "left" the meeting and drove back to Moruya. The Respondent drew an inference in final submissions that the Applicant would have driven home first (to drop off her children) before returning to the office. (The relevance of that inference is dealt with below). 34 The Respondent relies upon the return to the office and the alleged conversation and conduct of the Applicant to claim that the Applicant resigned her employment. 35 When the Applicant returned to the office, there were two other employees present: Ms Shannon Gill and Mr Mervyn Cooley, both of whom gave evidence. 36 Mr Cooley deposed that the Applicant said, on entering the Moruya clinic and throwing the company vehicle keys on to the desk, "I can no longer work under Damien" (the chief executive officer). Under cross-examination, the Applicant said of this assertion: "I can't recall actually saying those words, because I was quite upset at the time. I may have, but I don't recall". She could not recall throwing the keys because she had two sets of keys (office and car keys) and remembered placing the office keys on the reception bench. (Tr 17/02/09: p24, line 19 to p26, line 32) 37 Ms Shannon Gill gave evidence under summons issued on behalf of the Respondent. (Tr 17/02/09 - pp95 to 99) She did not therefore, file a witness statement. 38 She said that the Applicant had put the keys down on the table and that the Applicant was really distraught and upset. The Applicant did not say anything to Ms Gill. Pointedly, she could not recall anything being said by the Applicant about Mr Matcham. 39 Ms Gill stated that the Applicant had not said "I'm quitting". Nor had the Applicant said anything like "I'm resigning". 40 Ms Gill was also asked in reply by the Respondent's representative if she thought the Applicant "was coming back". She responded, "I don't think so, no". 41 Ms Gill was asked if the Applicant had packed up her "personal belongings" and responded "Yes, her personal folder". 42 In assessing that Moruya office evidence so far, it is clear that (a) The Applicant had not used explicit words of a resignation intention. (b) Ms Gill's view that she thought the Applicant was not "coming back" does not assist the Respondent's claim of a resignation. This perception of hers is no more than that. She did not speak to the Applicant to clarify her perception. Further, in the lead up to being asked if she thought the Applicant was not coming back, she was asked if the Applicant had packed up her " personal belongings ", but responded " personal folder ", which might be her carry case that she took to and from work each day - this point was not clarified in evidence. (c) Ms Gill could not give any evidence corroborating Mr Cooley's claim that the Applicant had said, " I can no longer work under Damien ". 43 As to Mr Cooley's claim that the Applicant uttered those words, the Commission forms the view that that utterance per se, does not constitute a resignation. Those words might be words of frustration, given the events leading up to the making of that statement. This included evidence as to the emotional state of the Applicant arising out of her meeting with Mr Matcham, earlier on that day of the utterance. Jade Hansen witnessed that meeting and said the Applicant's demeanour at the end of the meeting was one of being "angry, upset". (Tr 17/02/09 - p90, line 23 to p92, line 48) 44 Another aspect of the Moruya office scenario was used by the Respondent to support its resignation claim. This aspect was Mr Cooley's evidence that the Applicant returned her office uniforms upon her return to the Moruya office, on that Thursday, 28 August. The Applicant denied this claim in re-examination and said she returned her office uniforms on the following Monday. 45 In assessing the evidence surrounding this claim of Mr Cooley, the Commission finds that the Applicant returned her office uniforms on the Monday. In coming to that decision, the Commission has had regard to the evidence set out below. (a) The Applicant gave evidence that her uniform comprised three shirts and two jackets and she was wearing the uniform on that day - as she did each day (one shirt and one jacket). She came to work each day in the company uniform. She therefore did not change into a uniform at work - that is, she had no change of clothes at work. (Tr 17/02/09: p44, line 21 to p45, line 27) (b) Given (a) above, then Mr Cooley's claim that the Applicant handed in her company uniforms on the Thursday afternoon, would require the Applicant to have changed out of her uniform. The only way she could have done so, was for her to detour home on her way back to the Moruya office from her meeting with Mr Matcham in Narooma. This detour scenario was put in final submissions by the Respondent's representative. However, it was put by way of an inference. That is, in order for Mr Cooley's claim to be correct, then it was inferred, in final submissions, that the Applicant had made that home detour in order to change out of her uniform and pick up the remainder of the company uniforms. (c) The problem with this inferential submission, is that it was an inference. The Applicant was not cross-examined on this inferential scenario. It was not put to her that she had made that home detour. Given that the inferential scenario was not put to the Applicant when she was in the witness-box by the Respondent, then the Respondent is not able to draw that inference. In any event, the compelling evidence on this home detour scenario, is that given by the Applicant when she was directly asked, in reply, if she had gone home to pick up her uniforms before returning to the Moruya office and the Applicant replied in the negative. (d) Given the foregoing compelling evidence on the home detour scenario, then the Commission is left with Mr Cooley's claim that the Applicant returned her uniforms on the Thursday and the Applicant's denial. (e) For Mr Cooley's claim to be correct, then the Applicant had to be standing in the Moruya office and not dressed in her uniform. This non-uniform dress attire would be unusual attire and would presumably have been noticed by Ms Shannon Gill. (f) Ms Gill was not questioned by the Respondent's representative on this uniform issue at all. The inference that the Commission is entitled to draw from not asking that question is that Ms Gill's answer on this issue would not have helped Mr Cooley's claim. The Commission draws that inference. Accordingly, the Commission finds that the Applicant returned her uniforms on the Monday and not on the Friday as claimed by Mr Cooley. 46 What falls from the foregoing finding in (f) above, is that the Respondent's claim that the Applicant resigned on the Thursday - by her alleged conduct of returning the uniforms on that Thursday - has not been made out. 47 Taking all of the evidence collectively as to what transpired on that day, the Commission still concludes that the Respondent's claim that the Applicant resigned her employment (or abandoned her employment), has not been made out. Despite that finding, the Commission will consider one more resignation scenario put by Mr Matcham. This will be considered below in the context of Mr Matcham's "Termination Letter". The Commission will now proceed to the next phase in its determination of the Applicant's unfair dismissal claim - that is, the termination letter sent by courier to the Applicant on Friday, 29 August. TERMINATION SCENARIOS (A) TERMINATION LETTER SCENARIO 48 The termination letter sent by courier to the Applicant on Friday, 29 August 2008, is dated the previous day. It is signed off by Damien Matcham, Chief Executive Officer. (Ex 1 - Annex K) The letter advises that the Applicant's services are no longer required effective immediately. No reason(s) is given for the termination. 49 Before considering the reason(s) for the termination, the Commission will firstly consider Mr Matcham's affidavit in which he put the claim, in so many words, that the issuing of the termination letter was a mistake. He deposed that it would have been more appropriate to have sent a letter confirming the Applicant's resignation, because he had heard that the Applicant had resigned her employment. (Ex 8 - paras 4 to 15) 50 He deposed that he formed the view that the Applicant had resigned her employment based on the Applicant's email of that day and the actions of the Applicant when she had returned to the Moruya clinic after the meeting with him and Jade Hansen. 51 The Commission has already dealt with this email and found that the last sentence could not be construed as a resignation by the Applicant. 52 The "actions of the Applicant" were explained by Mr Matcham to be a reference to a conversation he had with Jade Hansen, who informed him that she had received a telephone call from Shannon Gill to report that the Applicant had returned to the Moruya office and had thrown the keys to the company vehicle on the reception desk and said she could no longer work with that man. 53 The Commission has already found that the Applicant had not resigned her employment, by action or words, upon her return to the Moruya office. 54 The Commission also observes that Mr Matcham has made a decision that the Applicant had resigned based on hearsay evidence. He heard from Jade Hansen (who was in Narooma office and not in the Moruya office) who heard from Shannon Gill (who was in the Moruya office). The chief executive officer had no direct knowledge himself as to what had transpired in the Moruya office. 55 He did not seek to clarify this hearsay report directly with the Applicant herself in order to confirm that the words, "she could not longer work with that man", had in fact been said by the Applicant and that the Applicant meant by those words that she had resigned her employment. 56 The Commission now turns to Mr Matcham's affidavit in which, in so many words, he said he erred in sending a termination letter to the Applicant. 57 Evidence arose during the proceedings that this termination letter was not the first time in which he had dismissed an employee of the Respondent. He had dismissed four or five staff. (Tr 17/02/09 - p61, line 29 to 49) Later in cross-examination, he then confirmed that he (and the Respondent) had terminated the contract of the Applicant. (Tr p63, line 8 to p65, line 43) 58 This confirmation put to bed the Respondent's claim, put in final submissions, and in Mr Matcham's affidavit that the Applicant had resigned her employment. Despite that confirmation, the Commission considered all of the evidence surrounding the claim for a resignation scenario, in order to show that the evidence did not support any claim that the Applicant had resigned her employment. Reason(s) for Termination 59 As already stated above, the termination letter did not set out a reason(s) for the termination. 60 In his affidavit, Mr Matcham sets out a reason for dismissal, "had she (the Applicant) not resigned". (Ex 8 - paras 16 to 17) That reason is set out under the heading: Summary Dismissal - Serious Misconduct. The reason that Mr Matcham deposed would constitute a reason for termination (but for her resignation), was her "failure to obey the lawful directions I was giving her at that meeting…." (Thursday 28 August). He further stated that that conduct by the Applicant would have entitled the Respondent to summarily dismiss for serious misconduct. (The Commission, of course, has already determined that there was no resignation and during cross-examination, Mr Matcham confirmed that he and the Respondent were terminating the Applicant's services per the termination letter). 61 Given that the termination letter states that it is a summary dismissal, then the Respondent carries the onus to prove that the facts existed to support Mr Matcham's decision to summarily dismiss the Applicant: Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 at 83-84. The standard of proof required to prove that those facts existed, is the balance of probabilities. That is, the Respondent (in summarily dismissing the Applicant) has to prove that those facts existed, on the balance of probabilities. The above standard of proof required of the Respondent is the Briginshaw standard of proof: Briginshaw v Briginshaw (1938) 60 CLR 336 at 354 - 369 per Dixon J. 62 Before dealing with this claimed failure to obey lawful directions, the Commission will set the background as to why that Thursday, 28 August meeting took place. 63 The Applicant had been working at the Narooma office and was asked in July 2008 to transfer to the Moruya office/clinic, where she worked a four day week (Monday to Thursday). 64 On Tuesday, 26 August 2008, the Applicant received an email from her supervisor, Jade Hansen, advising of a change to the Moruya clinic hours of operation. The Applicant deposed (Ex 1 - paras 16 to 17) that she began informing people of the change in the clinic's hours and rearranging appointments. She said she received adverse comments about the change in the clinic's hours and directed people to the complaints procedure. She also put out a notice to the relevant Aboriginal organisations to advise of the change of hours. 65 The Applicant deposed that on that same Tuesday 26 August, she informed (by email) her supervisor Jade Hansen and the chief executive officer Mr Matcham of the notice. She received a response from Mr Matcham, by email, as follows: "Hi Jeanie. Who authorised/approved these notices?" The Applicant responded by email that she was unaware she needed approval to issue the notice and apologised. (Ex 1 - paras 18 to 19 and Annex G) 66 Two days later, Thursday 28 August, the Applicant received a telephone call, just before noon, from her supervisor Jade Hansen and was told that the Moruya clinic would be closing on Tuesdays from next week. The Applicant deposed she outlined her disappointment at this advice by responding with an email to Jade Hansen and copy to Mr Matcham. (It is this email wherein the Applicant expressed she was "disappointed" and "disheartened" about the "drop of hours" for the Moruya clinic's hours of operation and the reduction in her working week from 4 days to 3 days. The email concludes with the sentence: "I will also be looking for employment elsewhere because I don't want to be a part of such a good service that always lets me down and the people". The Commission has already dealt with this email/sentence and concluded it does not represent a resignation). On receipt of this email, Mr Matcham sent an email to the Applicant (copy to Jade Hansen), requesting the latter to organise a meeting with the Applicant at Narooma "ASAP". (Ex 1 - para 20, Annex I) 67 The Applicant drove to Narooma in a company vehicle and had her children in that car. Her meeting with Mr Matcham took place around mid afternoon and Jade Hansen was present. 68 Given that background, the Commission returns to the reason given in Mr Matcham's affidavit for the dismissal of the Applicant: "failure to obey the lawful directions I was giving her at that meeting…" (Thursday 28 August). 69 The Commission has already noted that no reason for dismissal was provided in Mr Matcham's termination of employment letter. 70 The Commission notes that the term "lawful directions" is in the plural. It follows that Mr Matcham is asserting that he gave more than one direction to the Applicant at that meeting of Thursday, 28 August - and she failed to obey them. There is a witness, Jade Hansen, to these alleged directions and disobedience. 71 Mr Matcham's affidavit states the following about that meeting: 9. "At the meeting I discussed and reminded Jeanie about not following and adhering to Katungul policies and procedures and, in particular, acting without authority with regard to telling other staff what to do, making accusations and innuendo about other Katungul staff, using Katungul resources such as vehicles without authority, having children in the work-place on a daily basis without authority, continually breaching confidentiality to the community and to Katungul Directors, being professional, attitude and behaviour to direction, continually not obeying a lawful and reasonable commands. 10. At the conclusion of the meeting, the Applicant stormed out of my office in a very agitated state and said words to the following effect: The Applicant said: " This is a load of bull shit "" 72 On the Commission's reading of the forgoing account by Mr Matcham, there is no reference to at least two "lawful directions" having been given by him at that meeting. Nor does the extract state, for example, "I told her to do X or not to do X " and she refused. 73 Mr Matcham was cross-examined on this issue of the Applicant not obeying "lawful directions" at the meeting. (Tr 17/02/09 - p65, line 41 to p77, line 28; and p82, line 22 to line 48). The result of that lengthy cross-examination just on that issue of not obeying lawful directions, elicited the evidence from Mr Matcham that there was only one direction given by him to the Applicant at that meeting. This one only direction was when he said the Applicant " stormed out " of the meeting and he said to her, " Can you please return to the office ". He also agreed that he had not included that evidence of her leaving the meeting, without his consent, in his affidavit. When challenged that that direction/without consent incident had not occurred, he responded that it had (Tr pp75-76) Mr Matcham confirmed that the foregoing direction was the only lawful direction given by him at that meeting. (Tr p82). 74 The Applicant (who gave her evidence before Mr Matcham) was not questioned on Mr Matcham's evidence (given for the first time in the witness box) that he had directed her to return to the office when she "stormed out" of their 28 August meeting. Given that the Applicant was not questioned on this alleged failure to return to the office direction, then the Commission can not give any weight to Mr Matcham's evidence on this point. This is so, because a party is required at law to test its case during the proceedings, in order to put its case in final submissions. Simply put- if you don't test it, you can't use it: Brown v Dunn (1893) 6 R.67. 75 For completeness of the record on this point, the Commission refers to the evidence of Jade Hansen who was present during this 28 August meeting. Ms Hansen's evidence was interposed with that of Matcham, but her evidence was given after Mr Matcham had identified this issue as the failure to obey the only lawful direction given by him at the 28 August meeting. 76 Ms Hansen was not directly asked to comment on Mr Matcham's alleged direction. She was asked as to what transpired at that meeting. In doing so, her evidence did not support Mr Matcham's evidence of his giving a direction to the Applicant. Indeed, her evidence was that the Applicant "was angry, upset" and "walked out of the office". Ms Hansen then said she asked Mr Matcham if she could "just go and see if she's all right?" Mr Matcham responded, "Yes, no problem". (Tr 17/02/09 - p91, line 24 to 32) 77 Even if Mr Matcham gave such a direction, and the Applicant disobeyed that direction (assuming it be lawful), then the Commission would have found, given the circumstances, that such a direction was harsh and a dismissal so based would have been found to be unfair. 78 There is one other matter to consider in the context of this meeting of 28 August. The Respondent put in final submissions, that the Applicant had engaged in conduct (including swearing) that was disrespectful and would justify summary dismissal. The Commission does not accept this submission for the following reasons: (a) The Respondent carries the onus given its characterisation of the alleged conduct as warranting summary dismissal. (b) The evidence of Mr Matcham and the Applicant was in much conflict as to what transpired at this meeting. (c) Mr Matcham's filed affidavit as to what transpired at this meeting is set out in a sweeping third hand summary of issues raised by him. The issues are not set out in a conversational format of: "I said" - "She said". (d) The only time Mr Matcham records a first hand conversation is when he states the Applicant stormed out of his office in a very agitated state and said: " This is a load of bull shit. " The Commission finds on the evidence that this comment (is it swearing?) by the Applicant was directed at one or more matters being raised by Mr Matcham. The comment was not directed at the person of Mr Matcham. The comment is not to be characterised as conduct by the Applicant repudiating her contract of employment. (e) In not setting out their conversation as to the issues discussed, Mr Matcham also did not record any (adverse) behaviour by the Applicant in response to issues discussed. His affidavit does not claim that the Applicant was disrespectful to him (or challenged his authority) at this meeting. (f) It was not put to the Applicant in cross-examination, that she had behaved in a manner (at this meeting) that showed she was repudiating her contract of employment. (B) EMPLOYMENT HISTORY INCIDENTS SCENARIO 79 The Respondent put as its second dismissal scenario, that the Applicant's course of conduct during her employment, would have justified the Respondent dismissing the Applicant - even though the Respondent had not acted upon any of that course of conduct at the time. The Applicant's solicitor objected to such a case being run by the Respondent given that its initial position was that the Applicant had abandoned or resigned her employment. 80 For abundant caution, the Commission will consider the issues raised by the Respondent as to the Applicant's employment history, wherein the Respondent asserts these issues would have warranted the Respondent dismissing the Applicant - if it had chose to do so. 81 Those issues are set out in Mr Matcham's affidavit and are set out again below. (Ex 8 - para9) "At the meeting I discussed and reminded Jeanie about not following and adhering to Katungul policies and procedures and, in particular, acting without authority with regard to telling other staff what to do, making accusations and innuendo about other Katungul staff, using Katungul resources such as vehicles without authority, having children in the work-place on a daily basis without authority, continually breaching confidentiality to the community and to Katungul Directors, being professional, attitude and behaviour to direction, continually not obeying a lawful and reasonable commands." 82 The three persons (Messrs Matcham, Hansen and the Applicant) involved in this meeting of 28 August were questioned about what topics were indeed raised for discussion. Mr Matcham and the Applicant were not in entire agreement as to issues raised. Be that as it may, the Commission will consider the Respondent's case at its highest - that is, will assume that the issues set out in the above extract were raised by Mr Matcham. 83 Mr Matcham's extract begins with the descriptors that he "discussed and reminded". For clarity of analysis, the Commission itemises those issues below and sets out the evidence surrounding those issues. The Commission also sets out its consideration of that evidence as to whether it constitutes a reason(s) for dismissal. (a) Not following and adhering to Katungal policies and procedures. · Under cross-examination, it emerged that Mr Matcham had not counselled the Applicant as to Katungal policies and procedures. Nor was there evidence she had been directed to follow policies and procedures and had disobeyed that directive. The subject of policies and procedures arose in the situation wherein the Applicant had raised a matter with Mr Matcham, the chief executive officer and he had said to her that she should have raised the matter firstly with another manager before raising a matter with him. That is, he raised with her the chain of command procedure only. · A further incident referred to by Mr Matcham under (a) above, was the Applicant's sending out a notice to Moruya clientele, advising of a change in the hours of operation of the clinic. The Commission has referred to this incident earlier in this Decision. That incident had only just happened in the days immediately before this meeting of 28 August. The Applicant had not been counselled over this very recent incident. She had not been given a direction by Mr Matcham about the issuing of notices and which she disobeyed. Accordingly this incident can not be relied upon by Mr Matcham to support a reason for dismissal. · Another incident raised with the Applicant under cross-examination, was the illicit use of drugs. Mr Matcham had deposed that the Respondent could have summarily terminated the Applicant for breaching the Respondent's policies and procedures but had not done so. The Respondent, however, attempted to assist the Applicant with her problem. (Ex 8 - paras 19 to 24) The Applicant agreed that this matter was raised at the 28 August meeting. The Applicant denied the issue had been raised with her by Mr Matcham (or anyone else) at their initiative before that day. Her evidence was that it was she who sought a meeting with Mr Matcham in order to discuss the drug test results. The Respondent had been supportive to her in respect of this issue, she said. The Applicant stated she declined the support offered and dealt with the issue herself. (Tr 17/02/09 - p34, line 8 to 41) Later in cross-examination, the Applicant advised that there was a group of people (workers implied) who had carried out a drug test and some of whom had come back positive. Further, she said that the group of people had been " given the opportunity to get clean (of drugs) in a certain period of time " The Applicant voluntarily undertook a second drug test and her drug levels had reduced dramatically. She asserted her drug levels would now be free. (Tr 17/02/09 - p40, line 6 to 41) The foregoing evidence of the Applicant is that she was not the only worker with an illicit drug issue and the Respondent was aware of the issue by offering support to, at least, the Applicant. Given the Respondent's knowledge of the illicit drug use and support for the Applicant, how can Mr Matcham turn around and now assert that it was a sackable offence that would now justify the Applicant's dismissal. Further, and separate to the above, Mr Matcham is prevented from raising this past illicit drug use as an issue now justifying dismissal, because of the defence of waiver (condonation). That is, the employer had knowledge of the breach of a policy and did not act upon that breach by way of say, dismissal. The principle of condonation was referred to in Clarke v Metropolitan Meat Industry Board (1967) AR (NSW) 16 at 25. In summary, that principle of condonation, as referred to in that case, is that where an employer has full knowledge of an act amounting to misconduct justifying summary dismissal, but does not exercise that right to summarily dismiss, then the employer has waived the right to summarily dismiss. In any event, it seems from the evidence that the employer had knowledge of this breach and was aware of one or more employees taking remedial action and supported that remedial program. In summary of issue (a) above , the Commission finds that there is no ground, given the circumstances, for dismissal of the Applicant - now or then. (b) Acting without authority with regard to telling other staff what to do. · Mr Matcham said he had "discussed" this matter with the Applicant, but no example(s) was given in evidence. There was an attempt to introduce evidence on this issue but the Commission did not allow the evidence to be introduced on the ground of hearsay. Under cross-examination, the Applicant denied she had been counselled in respect of this issue. (Tr 17/02/09 - p38, line 11 to 17) (c) Making accusations and innuendo about other Katungal staff. The response set out in this Decision for allegation (b) above, applies equally to this allegation. (d) Using Katungal resources such as vehicles without authority. · Mr Matcham said in his affidavit that he had "discussed" this matter with the Applicant. The Applicant's witness statement in reply (Ex 2 - para 11) refutes this allegation. In saying that he had " discussed " this and other issues contained in his paragraph 9, Mr Matcham gave evidence that he would need to refer to emails to obtain the exact date he had " discussed " this issue and others. (Tr 17/02/09 - p67, line 34 to 46) The Commission notes that the emails were not attached to his affidavit and hence were not available as evidence as to this matter or other matters " discussed ". The Commission also notes that this issue was not put to the Applicant during her cross-examination for comment. Accordingly, for the reasons set out above, the Commission can not give any weight to this allegation. (e) Having children in the work-place on a daily basis without authority. · The response set out in this Decision for allegation (d) above, applies equally to this allegation. The Applicant denied, under cross-examination, that Jade Hansen had spoken to her about this issue. (Tr 17/02/09 - p38, line 1 to 9) Jade Hansen's witness statement (Ex 11) makes no reference to this issue. Nor was she questioned in-chief in the witness box on this point. Accordingly, as Mr Matcham relies upon Ms Hanson for support on this allegation by him and she gave no evidence on this allegation, then this issue can not be given any weight by the Commission. (f) Continually breaching confidentiality to the community and to Katungal directors. · Mr Matcham, under cross-examination, stated initially that he had not had a previous conversation with the Applicant about this issue. A few questions later, he said he "may have" spoken to the Applicant about this issue and would need to refer to his emails to identify any "previous discussion". The next question/answer was as follows: "Q. You can't point to any previous discussion where you've discussed that matter ? A. No " (Tr 17/02/09 - p68, line 9 to 30) The Applicant denied this allegation in her witness statement in reply. Given the foregoing uncertainty as to Mr Matcham's evidence on this issue, then the Commission can not give any weight to this allegation against the Applicant. (g) Being professional, attitude and behaviour to direction. · The Commission notes that this allegation reads as a positive comment about the Applicant and presumably was unintended, given the context of Mr Matcham's allegations against the Applicant. In any event, Mr Matcham was questioned on this issue. Mr Matcham said he had " discussions in passing " with every staff member - be it " in the lunch room or the kitchen room….about those sort of items ". He then clarified that he was referring to: " Just general discussions about people getting on together in the workplace and those sort of items ". (Tr 17/02/09 - p68, line 32 to p69, line 23) The Applicant denied this allegation in her witness statement in reply. The evidence of Mr Matcham shows that his discussions with the Applicant on this issue (and perhaps other issues raised against the Applicant) were " discussions in passing ". The context of such " discussions in passing " were not in his office behind closed doors but in the " lunch room or the kitchen room ". Such " discussions in passing " strongly suggest, the Commission infers, that the subject matters were not of a nature to have the Applicant (or any other employee) think that she/they were being counselled or that their job was "on the line". Suffice to say, the Commission can not give any weight to this issue as supporting a reason for dismissal. (h) Continually not obeying a lawful and reasonable commands. · Mr Matcham said under cross-examination that there was more than one instance involved for this issue. He said he would need to refer to his emails as to the date of his conversation with the Applicant about this issue. The emails had not been brought to court. When questioned to be specific as to matters that were evidence of this allegation, he could not give specific instances, initially. Eventually, he gave the specific instance of his direction to the Applicant not to leave the meeting of 28 August (" Can you please return to my office ") but the Applicant did not do so. And in not doing so, she was disobeying a lawful direction. The Commission has already dealt with this specific instance in this Decision under the heading of "Termination Letter". The Commission finds that no other specific instances were brought forward by Mr Matcham to support his allegation that he had given a direction(s) to the Applicant and she had disobeyed the same. Accordingly, the Commission finds that it can give no weight to this allegation against the Applicant. 84 In summary of the issues (a) to (h) inclusive above, the Commission finds that none of those issues constitute a ground for dismissal (given the circumstances) - either now or in the past. CONCLUSION 85 The Commission has before it, an application for reinstatement by the Applicant, on the ground that she was unfairly dismissed. In considering the application for reinstatement, it has not been necessary for the Commission to make any finding(s) about the credit of a witness(es), in order to consider the Applicant's claim for reinstatement. 86 The Respondent argued firstly that there was no jurisdiction for the Commission to consider the Applicant's unfair dismissal application because she had resigned her employment. The Commission considered the evidence surrounding that resignation scenario, and found that the Applicant had not resigned her employment. 87 The Commission then considered two termination scenarios. 88 The first termination scenario went to the termination letter issued by Mr Matcham, the chief executive officer. No reason(s) for termination was given in that letter. A reason for dismissal was set out in Mr Matcham's affidavit which read, relevantly, that the Applicant was dismissed for failure to obey lawful directions (note the plural terminology) at the meeting of 28 August. However, the Commission found that no directions (let alone one direction) was given at that meeting. Further, even if the Commission concurred that one direction was given at that meeting, then a dismissal based on that direction would have been found to be harsh and hence, unfair. The Commission also assumed, as to that alleged one direction ("Can you please return to the office") that it would be a lawful direction. 89 The second termination scenario was Mr Matcham's claim that the Applicant's employment history, would have justified dismissal of the Applicant. Mr Matcham's affidavit raised issues about the Applicant's past employment history. The Commission considered and rejected all such issues. There was no issue, given the circumstances, that would have justified the Respondent dismissing the Applicant in the past - let alone at the time of the Hearing before the Commission. 90 Given all of the above findings, and having considered all of the evidence, the Commission concludes that the dismissal of the Applicant was unfair. Specifically, the Commission finds that the dismissal of the Applicant was unjust: Outboard World Trade Pty Ltd t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 of 183. 91 The dismissal was unjust because the Applicant had not engaged in any of the conduct relied upon by Mr Matcham in his affidavit, to support his reason for dismissal. 92 The next issue for consideration is the Applicant's substantive remedy of reinstatement - is it impracticable? There was no evidence that the relationship between the Applicant and the Respondent had irretrievably broken down. This then is not an issue for the Commission's consideration. 93 Having considered all of the evidence, the Commission will issue an order for reinstatement, without loss of continuity of employment. 94 The remaining issue for determination, is whether the Commission should issue an order for payment by the Respondent to the Applicant, for lost earnings. The Respondent was opposed to any such order on the ground that the Applicant had not taken steps to mitigate her loss of employment (and hence income). 95 There was evidence given by the Applicant as to what steps she had or had not made to find other employment - following her resignation/dismissal. The applicant advised that she had not made any job application. She had been offered a job in the health industry but this fell through due to budget restraints. As well, there was the difficulty of finding a job in such a small geographical area of employment (Tr 17/02/09 - p30, line 8 to p32, line 11) 96 Having considered the evidence surrounding mitigation, the Commission has determined to exercise its discretion to order payment for some of the earnings lost by the Applicant in consequence of her unfair dismissal: s89(3) of the Act. O R D E R S The Commission hereby makes the following Orders: (a) The Applicant (Jeanie Marie Parsons) is to be reinstated by the Respondent (Katungal Aboriginal Corporation Community and Medical Services) into her former position (Receptionist at the Moruya Clinic). (b) The employment of the Applicant is to be taken not to have been broken by her dismissal. (c) The Respondent shall pay to the Applicant the amount of $9,000 gross. (d) The Orders of the Commission shall take effect within twenty-one (21) days from the date of this Decision. A Macdonald Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.