Industrial Relations Commission of New South Wales CITATION: Australian Services Union of NSW on behalf of Valentina Angelovska and St George Youth Services Inc. [2010] NSWIRComm 1051 APPLICANT Australian Services Union of NSW on behalf of Valentina Angelovska PARTIES: RESPONDENT St George Youth Services Inc. FILE NUMBER(S): IRC 2078 of 2009 CORAM: Bishop C CATCHWORDS: UNFAIR DISMISSAL - small community based service organisation - dismissal of manager for serious and wilful misconduct - unblemished record and service of 9 years - allegations of taking work/files home & working from home without approval - carrying out work for another community based organisation using employer's time and resources without approval - grievances from staff - meetings with manager - suspended for not following directions - manager maintained had long standing approval from committee of management - work carried out in own time/time in lieu - manager's computer & phone examined after suspension - further documentary evidence found and further allegations made - applicant not provided with evidence - not told about grievances - issues raised re investigation - procedural fairness issues re compliance with policies and procedures followed in terminating manager - reinstatement sought. HELD - onus on employer to establish misconduct - onus not discharged - no evidence to contradict applicant's position - evidence of approval from former committee - never revoked - no proper investigation - employer failed to follow own procedures - procedurally unfair - reinstatement not impracticable - reinstatement ordered with backpay. Industrial Relations Act 1996 LEGISLATION CITED: Workplace Surveillance Act 2005 Associations Incorporation Act 1984 Antonakopoulos v State Bank of NSW (1999) 91 IR 385 Australian Services Union of N.S.W. v Sydney Water Corporation [2008] NSWIRComm 1064 Bankstown City Council v Paris (1999) 93 IR 209 Briginshaw v Briginshaw (1938) 60 CLR 336 Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 Byrne v Australian Airlines (1995) 185 CLR 410 Franklins Ltd v Webb (1996) 72 IR 257 Harley Bell v Linfox [2006] NSWIRComm 1025 Hill v Department of Juvenile Justice [2000] NSWIRComm 128 Janaki Kasippillai v St Joseph's Village Limited [2006] NSWIRComm 1069 Little v Commissioner of Police (No 2) (2002) 112 IR 212 CASES CITED: National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 New South Wales Nurses Association on behalf of Debbie Rudder v Booroongen Djugan Aboriginal Corporation [2007] NSWIRComm 89 New South Wales Nurses Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 North v Television Corporation Ltd (1976) 11 ALR 599 Outboard World v Muir (1993) 51 IR 167 Perkins v Grace Worldwide (Aust) Pty Ltd (197) 72 IR 186 Plummer v Stannard Bros Launch Service (2005) 145 IR 111 Re Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 Riley v Workcover Authority [2006] NSWIRComm 108 Samms v Contact Point International [2001] NSWIRComm 18 Sharma v Sydney South West Area Health Service [2006] NSWIRComm 1157 Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273. HEARING DATES: 17, 18 and 19 May, 7 and 8 June 2010 DATE OF JUDGMENT: 24 September 2010 APPLICANT: Mr A M Slevin, of Counsel, Australian Services Union of NSW LEGAL REPRESENTATIVES: RESPONDENT: Mr K Godfrey, Jobs Australia DECISION: - 152 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BISHOP C 24 September 2010 Matter No IRC 2078 of 2009 Australian Services Union of NSW (on behalf of Valentina Angelovska) and St George Youth Services Inc. Application by Australian Services Union of NSW on behalf of its member Valentina Angelovska re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2010] NSWIRComm 1051 1 This is an application by the Australian Services Union of NSW ("ASU") made on behalf of Valentina Angelovska against St George Youth Services Incorporated ("SGYS")for a remedy pursuant to s.84 of the Industrial Relations Act,1996. Ms Angelovska was dismissed from her position of Manager of SGYS on the 22 December 2009. She sought reinstatement, re-employment or, alternatively, monetary compensation in lieu thereof. 2 The matter was listed for conciliation and directions before Commissioner Connor on the 15 January 2010 at which time conciliation took place. The matter was set down for further conference on 29 January and further directions on the 5, 12 and 26 February 2010. However as no settlement could be reached, directions as to the filing and exchange of witness statements were issued pursuant to Practice Direction 17. 3 The matter was re-allocated to Commissioner Tabbaa and listed for the 29 March 2010 to deal with a Notice of Motion filed by Jobs Australia Ltd as agents on behalf of the respondent in relation to a Summons for Production issued by the ASU pursuant to s.165. Further conciliation, at the request of the parties, was also conducted by Commissioner Tabbaa on that date but was unsuccessful, however the ASU withdrew the Notice of Motion. 4 The respondent subsequently exercised its rights pursuant to s.173 of the Act and as a consequence the file was re-allocated to the Commission as currently constituted and set down for hearing on the 17, 18 and 19 May and the 7 and 8 June 2010. 5 On the 27 April 2010, a Summons to Give Evidence pursuant to s.165 was issued by Jobs Australia with respect to Ms Phuong My Vo who appeared before the Commission on 18 May 2010 and gave evidence. 6 A s.90 undertaking signed by Ms Angelovska was tendered at the commencement of proceedings on the 17 May 2010 (Exhibit 1). 7 At the hearing Mr Slevin, of Counsel, appeared on behalf of the ASU and Ms Angelovska and called the following witnesses who had all filed witness statements: Valentina Angelovska.......applicant (Exhibits 2 and 3) Mark D'Astoli....................former Chairperson, Management Committee SGYS (Exhibit 4) Nicole Scobie.....................former Management Committee member SGYS (Exhibit 15) 8 Mr Godrey, from Jobs Australia, appeared on behalf of SGYS and called the following witnesses who had also filed witness statements: Vicki Petrakis.............Chairperson, Management Committee, SGYS (Exhibit 8) Mariam Faraj..............Management Committee, SGYS (Exhibit 10), John Dangas................Acting Manager, SGYS (Exhibit 16) 9 Witness statements on behalf of SGYS were also filed for following persons who were not required for cross examination: Anna Pedone..............Youth Worker SGYS (Exhibit 11), Vera Nedelkovska......Youth and Family Worker SGYS (Exhibit 12), Angela Roberto..........Administrative Officer SGYS (Exhibit 13), Janeta Gravche.........Project Officer, Community Development - Culturally Diverse Community Projects (Exhibit 14), Background and Chronology - based on the evidence filed and the transcript, and, of necessity, set out in some detail. 10 SGYS is a youth interagency representing over 40 agencies providing a range of services to young people in the St George region (the Hurstville, Kogarah and Rockdale Local Government areas). These services cover areas including: accommodation, counselling, health, arts and culture, family support, employment, education and training, recreation and social support, migration settlement, legal and juvenile justice, emergency relief, child protection, community development, information and referral. Members represent all levels of government and the non-government sector (Exhibit 2-MFI.22). 11 Ms Angelovska has worked in the social and community services sector since 1989 and holds tertiary and other relevant qualifications in social work and related fields. She commenced employment with SGYS on 4 September 2000, as Co-ordinator of the Reconnect St George project. Her employment was based on Grade 6 - Level 1 of the then Social and Community Services Employees (State) Award 1999. 12 On 3 January 2001, she signed an initial Staff Employment Contract (also signed by Mr D'Astoli, the then Chairperson) for the position of Co-ordinator. The Contract provided for the following hours of work in Clause 5 (Exhibit 2- MFI.2): a) Ordinary hours of work shall be 35 hours per week, between the hours of 8 am and 8 pm, Monday to Friday. b) The Employee's attendance at professional supervision as directed by the Employer shall be included as normal time at work. c) Subject to 5(a), ordinary hours of work may be worked on a flexitime basis at the employee's discretion. A record of time work is to be kept by the employee and is to be totalled every payday. Where excess hours have been worked, these shall be credited to the employee's leave in lieu total. Conversely, if there is a shortfall in hours worked, this shall be subtracted from the employee's leave in lieu total. 13 The Contract also covered annual salary, time in lieu entitlements, travel allowance, (weekly car allowance etc.,) sick leave, leave without pay, educational leave, Christmas closure and Civil Liability. 14 At the time of Ms Angelovska's dismissal she was employed as the Manager of SGYS at Grade 6 - Level 2. 15 During Ms Angelovska's employment with SGYS she was also on the management committee of the Macedonian Australian Welfare Association of Sydney (MAWA) and had been so since 2001. 16 Mr D'Astoli was the chairperson of the Management Committee (formerly known as the Executive Management) from 1999 to 2007. He undertook this role as it related to his duties as a Community Worker - Youth Service with Hurstville City Council. He resigned from the position of Chairperson consequent upon his resignation from his employment with Hurstville City Council in 2007. He briefly rejoined the Management Committee from March to November 2008, in order to assist SGYS concerning the planned demolition of their Rockdale premises and negotiations with Rockdale City Council about ongoing accommodation arrangements. 17 Mr D'Astoli deposed that during his time as Chairperson the organisation expanded from a basic interagency (then known as the St George Youth Workers Network) with a budget of $600 per annum to an integrated service provider (now the SGYS) with an annual turnover of over $800,000. 18 Ms Scobie has worked in the community welfare sector for the past 25 years. She was a member of the Management Committee (formerly known as the Executive Management) of the St George Youth Workers Network (now the SGYS) since 1993 and since the organisation's incorporation, a member of the Executive Committee for SGYS up until 2002 and held the position of Secretary for the majority of that time. She now works as a self-employed consultant in the community welfare sector. She provided consultancy services to SGYS on a fee for service basis for a period of approximately 5 years until November 2009. 19 Ms Petrakis became a member and Chairperson of the Management Committee of SGYS in December 2008. She holds tertiary qualifications in Business (majoring in Employment Relations) and Occupational Health & Safety. She is currently employed full time as the Service Manager of a community services organisation. She has worked in the community services sector for a number of years in both aged care and youth services. 20 Ms Faraj became a member of the Management Committee of SGYS in February 2007. She holds tertiary qualifications in education and social science. She is currently employed as an Adolescent and Mental Health Program Officer in the health industry. Ms Faraj is also a member of another community organisation which receives funding fom various sources. 21 Ms Roberto is the Administration Officer for SGYS and commenced with the organisation in March 2005. She works part time, 2 days per week. 22 Mr Dangas commenced his employment with SGYS as a Youth Worker in February 2005, progressed to Team leader in August 2006, and is currently the Acting Manager of SGYS. 23 Ms Nedelkovska has been a Youth and Family Worker with SGYS since November 2004. 24 Ms Pedone has been a Youth Worker with SGYS since April 2007. 25 Ms Gravche previously worked at SGYS and has been employed as a Project Officer, Community Development - Culturally Diverse Community Projects since March 2009. 26 Ms Vo works five days per week (based on a seven hour day) for SGYS as their Bookkeeper and Receptionist. She commenced employment with SGYS in 2003 as a part-time employee working three days per week. In 2007 she took up a full time position which involved a job-share arrangement of the receptionist work. She currently job-shares that function with Ms Roberto. Prior to 2007 she was employed for two days per week at the St George Migrant Resource Centre. She also commenced doing bookkeeping work for MAWA in mid-2008 and worked about two hours a week on Saturdays. MAWA had one full time and two or three part time employees in 2008 in addition to Ms Vo's casual employment. She resigned from her position with MAWA in January 2010. 27 During the second half of 2009 Ms Angelovska was on 5 weeks annual leave commencing 4 September and returning to work on the 26 October. On her return she received an email from Ms Petrakis instructing her to attend a meeting at 6 pm on the 27 October, with Ms Petrakis and Ms Faraj to discuss issues that had arisen whilst she was on annual leave. 28 At that meeting Ms Angelovska was advised that it was "not a disciplinary meeting" and a range of matters were then raised with her, including keeping electronic files at home and that she had the only key to SGYS filing cabinets etc. A further meeting was arranged for the 10 November 2009. 29 There were no formal minutes kept of the meeting but Ms Angelovska subsequently received an email from Ms Petrakis on 2 November with notes about issues raised at the meeting and with 7 "Action" items identified for her to follow up (including dates listed for completion), which are summarised as follows (Exhibit 8 - C1): · All directives from Management Committee must be followed with Management Committee member to be contacted if in doubt, copy of contract, job description and last performance appraisal to be provided and subject of future discussion; · N. Scobie to be advised SGYS ceasing to use her consultant services; · Files to be organised into secure and accessible area and spare key for filing cabinet provided to Management Committee member or delegated staff member; · Financial reports - various issues raised re MYOB and including finalising internet banking arrangements; · Staff structure - current organisational structure to be circulated with proposed new structure to be discussed at next meeting; · Proposed dates for completion of annual report and dates for AGM to be circulated; · Table of programs and progress on reports to funding bodies to be provided by next meeting. 30 Ms Angelovska disputed that all of the issues listed in Ms Petrakis' notes had been discussed or that deadlines for all issues had been discussed. She kept notes during the meeting which she subsequently typed up (Exhibit 2 - MFI.5). 31 A further meeting was held on 10 November 2009 between Ms Angelovska, Ms Petrakis and Ms Faraj. Again no formal minutes were kept and following the meeting both Ms Angelovska and Ms Petrakis typed up their version of the record of the meeting. 32 A further meeting was held on the 20 November between Ms Angelovska, Ms Faraj and Ms Petrakis concerning instructions from the Management Committee on issues such as signing of timesheets, time in lieu and leave requests to be signed by the Chairperson. 33 This meeting had commenced at 2 pm and because Ms Angelovska had a prearranged meeting at 2:30 pm, she had to leave the meeting before all items had been addressed. Before she left she was given a document, "Items for Action" (Exhibit 2-MFI.9) listing various items under the following headings, with dates for implementation ranging from 23/11/2009 to 4/12/2009: a) Hours of Work b) Staff Contact with Management Committee c) Delegation of Budgets and Access to Funding Agreements d) Internal audit of Financial Records e) Computer network f) Staff contracts, job descriptions and appraisals g) Involvement with Macedonian Welfare Association 34 Under item a), 'Hours of Work' a number of matters were raised that affected Ms Angelovska: Hours of work would be 9 to 4:30 pm (to be implemented on 30/11); no accrual of time in lieu or variation to core hours without prior approval from the Chairperson; no working from home; Chairperson to be notified if out of the office for 1 or more days; evidence of communication with staff at lease 2 days prior to absences; all leave forms for Manager to be signed by Chairperson. (The last 4 items to be implemented by 23/11.) 35 Under item g), 'Involvement with Macedonian Welfare Association' was noted the following: To what extent is your involvement with MWA during work hours and outside work hours. What if any SYS resources are being used to support/partner with MWA? 36 On the 23 November 2009, Ms Angelovska received the following email from Ms Petrakis, which had been circulated to other Committee members (Exhibit 2 -MFI.11): Dear all, As per very brief meeting with Vale, I attach an electronic copy of the document provided to Vale, detailing items requiring action and timeframes, I have suggested that if Vale has any questions that she contact me. (Vale's 2.30pm appointment arrived early, and Vale felt it was more important to attend meeting than to conclude meeting with committee members). 37 Ms Angelovska forwarded a copy of this email and the 'Items for Action' list to the ASU asking for their assistance. 38 On 25 November 2009, following advice from the ASU, Ms Angelovska sent an email to the Management Committee indicating that she was currently seeking advice in relation to the meeting of 20 November, the content of the email and the list of "Items for Action" (Exhibit 2-MFI.13). She then indicated inter alia as follows: I have been advised to continue work as normal while I seek advice as such I am unable to agree to the short deadlines included in your list of "Items for Action". This is particularly the case in those items that pertain to the proposed unilateral altering of conditions of employment. I will respond further and in due course as I am advised and on all items. 39 She also responded to certain financial matters and then went on to say: Should the Management Committee have any allegations to put to me in relation to my involvement with MWA, or regarding finances, or any other matters, for my response please put them to me in writing with adequate detail to allow me to respond. I will then seek advice and respond in due course, in keeping with principles of natural justice. Should you require any further information please contact myself or, or (sic) in relation to industrial issues or questions, my representative - Emily Mayo at the Australian Services Union. (with email address supplied) 40 On the 25 November 2009, Ms Petrakis replied by way of the following email (Exhibit 8- F4): Dear Valentina, I am disappointed that you opted to a) leave our meeting early and b) not follow our request [to] contact me should [you] wish clarification. Note also you were given a hard copy of the action items, and we had commenced going through the actions still outstanding and then the items for action, them (sic) when you opted to leave our catch up. These items were raised by myself and Mariam (who are the chairperson and Mariam who has been the longest standing member of our committee), as the representative of the management committee and as such are the specific request of the committee, not a reflection of my particular thoughts. We have discussed on numerous occasions our way forward and had hoped that you would have come on board with our request for certain tasks to be completed. We certainly have no concerns about your ability to complete these tasks. In short, yes we want to pursue an internal audit, and would like you to provide us with accountant details as requested. Secondly we have made no 'allegations' against you or your work with MWA - I believe we have supported you by both allowing you time off to attend conferences and I believe we even made a comment about future formal partnerships. We simply asked what your and SYS current involvement with MWA was. If nothing else this process is about accountability and transparency, for the organisation as a whole. Please note that the timeframes and length of actions have been deemed realistic given that most require little of your time, and many have been on the agenda with the management committee for some length of time. However you have been given the option to discuss these directly with me, and to date have not made any contact with either myself, or any other member of the committee. The tasks indicated also fall well within your position description, however if you require further clarity around your responsibilities am I (sic) happy to meet with you to go through these. I look forward to the completion of these so we can move forward to a more strategic focus in the new year. Thanks 41 On or about 30 November 2009, Ms Angelovska forwarded an email to the Committee of Management concerning the "Items for Action", seeking clarification and providing relevant information and comment in a "reply" document (Exhibit 2- MFI14) in which she indicated as follows: Reply to Items for Action from Manager I am quite confused about the following items for action, plus I need clarification. None of these items have been discussed in board meetings this year, I have checked minutes to make sure, so I am confused about the items which were first presented to me through this document and without discussion. They were given to me during a recent half-hour meeting during the last few minutes, when I was already running late for my next appointment (10 minutes late). I seek clarification about some items and comment as follows: 42 Then followed various specific items and the clarifications sought and comments were made concerning past/existing practice in relation to certain other items. 43 On the 4 December 2009, Ms Petrakis and Ms Faraj attended the workplace and provided Ms Angelovska with the following suspension letter. She was also required to hand over her keys, mobile phone and the token for internet banking (Exhibit 2 - MFI15): We refer to our meeting on 27th October 2009, 10th November 2009 and 20th November 2009, and the issues/items that you were required to address within the deemed timeframes, as directed by the Board of Management. Rather than address these matters, you have decided to provide 'responses' and arguments for matters not relevant to you being directed to complete the tasks. In addition, your behaviour is disrupting the workplace and endangering the health and safety of staff. Therefore we have decided to suspend you, on full pay, until such time as directed by the management committee. In the meantime we require from you a written explanation as to why you refuse to comply with reasonable direction, by failing to comply with the action items identified. You are required to provide a written explanation by close of business (4:30 pm) Friday, 11th December 2009. During this time you are not to discuss the matter with staff or the Board of Management or to attend any premises of the St George Youth Services. The letter was signed by Ms Petrakis, Ms Faraj (Secretary) and Mr Gillies (Treasurer), as the Executive Committee. 44 Following Ms Angelovska's suspension John Dangas was asked to act in the capacity of Manager of SGYS. 45 On the 7 December 2009, the ASU, on Ms Angelovska's behalf, responded by correspondence to the Executive Committee (Exhibit 2 - MFI16) seeking "further and full details" on the following two points (with comments about those issues also being made): 1. "behaviour is disrupting the workplace and endangering the health and safety of staff", and 2. "refused to comply with reasonable direction" 46 It was also requested on behalf of Ms Angelovska that any matters relating to her employment conditions be directed to the Union and that all matters, responses and requests be directed to Emily Mayo, of the ASU, as her representative. 47 On the 11 December 2009, Ms Petrakis wrote to the ASU indicating that they were still receiving advice in relation to the ASU's request and that the deadline previously advised, no longer applied. The ASU was to be notified of the new timelines and "the outcome of your request for documents early next week" (Exhibit 2 - MFI.18). 48 The ASU forwarded a further email to Ms Petrakis in reply on 11 December 2009 (not in evidence). 49 On 15 December 2009, Ms Petrakis sent a letter to the ASU in reply to that email, confirming that the timeline for providing a written response had changed and also enclosing documents in relation to the previous matters as requested (meeting notes and the "Items for Action" list), the letter then went on to indicate (Exhibit 2 -MFI.19): In addition to the matters above, the following additional matters have come to our attention, we now require a written response from Ms Angelovska of these matters as well: · Organisational files, to which only she has access, including staff personnel files have been removed from the organisation, without authorisation. · Electronic copies of documents dating from 2008 onwards to which only she has access have been removed from the organisation, without authorisation · Evidence that Ms Angelovska has during paid SGYS time been working on matters of behalf of the Macedonian Welfare Association, including tracked correspondence which demonstrates using the St George Youth Services time and resources to support the Macedonian Welfare Association · Furthermore we have evidence that Ms Angelovska has been copying and amending tenders written for St George Youth Services, to submit on behalf of the Macedonian Welfare Association, who are in direct competition with St George Youth Services, and that such action is a breach of her duty of fidelity to her employer. We require a written response relating to all of these matters, but because of the new matters, we have decided to extend the deadline to close of business, (4.30 pm) Monday 21st of December 2009. In addition we note your comments regarding clause 48 of the SACS award. This award provision clearly excludes matters relating to work performance, and conduct, and therefore does not apply in this instance. 50 On the 18 December 2009, the ASU responded in writing to this letter (Exhibit-MFI.20) seeking the immediate reinstatement of Ms Angelovska to her position to enable work to continue as normal while the matter was resolved "as is her right". It was indicated that, in the ASU's view, being stood down was not warranted in these circumstances and was completely disproportionate to what was being alleged. It was also advised that, as there were no details forthcoming in relation to the allegation concerning "behaviour disrupting the workplace and endangering health and safety", this matter was "resolved". Further and better particulars were sought in relation to the allegation that Ms Angelovska had failed to comply with a reasonable direction. A response was also provided in relation to the documents forwarded as follows: § our member does not endorse the notes as a complete and true record of the discussions and we understand that no official minutes were taken of the meeting - however, in good faith, we refer to them to make response. § The documents state that "these gaps were not anyone's 'fault'..." § Our member was not informed that the various meetings were part of a disciplinary process or that disciplinary action could result from her participation in the meetings. Given our member has now been stood down this is a clear breach of both the organisation's own policy on grievance and disciplinary procedures and the principles of natural justice. § The documents clearly demonstrate our member's willingness to follow reasonable directions, particularly our member's response to the items for action which you have a copy of. 51 The letter then advised that, given the above information, it was considered that the matter in relation to the alleged failure to follow a reasonable direction was "resolved"; a separate one and a half page document prepared by Ms Angelovska was attached providing her response to the "additional matters" contained in the letter of 15 December; relevant award provisions concerning the decision to restructure were drawn to the Committee's attention and serious concerns raised about what had occurred on 4 December. The Union reiterated its position that Clause 48, Grievance and Disputes, in the SACS Award applied and that the ASU's communications were "a formal grievance" on behalf of their member. Both the allegations and the manner in which the Organisation had dealt with them was disputed and it was indicated that it was inappropriate to continue to raise additional matters before this had been concluded and it was requested that this course of behaviour cease. A specific response by Tuesday 22 December was also sought to the following: 1. Your agreement to our position that the initial allegations are resolved. 2. Your agreement to our member's reinstatement to her normal duties. 3. Your fair and reasonable outcome in relation to the additional claims on considering our member's response 52 In Ms Angelovska's specific response she indicated, in summary, as follows: · That she had taken organisational files from the office in the past to work on at home or at other venues in line with fulfilling her duties and responsibilities but had always returned them. The Service did not have a policy about the removal of files and she did not know this required authorisation. She would produce a policy if such was sought. · All electronic copies of Manager's documents were on the C-drive of the Manager's computer in the office. She had taken electronic copies of documents to work on at home and in other places of work and deemed this as appropriate as Manager to fulfil her work obligations. There was no policy about removing electronic copies of documents and she did not know this required authorisation. If a policy was required to be produced she would be happy to work on this. · She had previously informed Committee members of her volunteer involvement with MWA. There might be occasions when MWA would contact her during work time even though she had told them not to and she followed this up on either break or time off/after hours. There was no policy preventing staff from sitting on management committees and she had been told this might be a good partnership to have. · She denied copying and amending tenders written for SYS and the MWA was not in direct competition with SYS as it was a Sydney wide service and specifically targeted Macedonian people primarily aged over the youth aged 25, including older people, carers and new migrants in particular. · She also stressed her length of service and commitment to the organisation, that no previous performance issues had ever been raised with her and indicated she was happy to work with the Management Committee in identifying areas of service improvement and to implement changes that were in the best interests of SYS. 53 On 21 December 2009, Ms Petrakis sent the following termination letter to Ms Angelovska (Exhibit 2-MFI.21): ..................................... Your responses to the new matters have been discussed by management who have decided the following; o Point 1. Your response is factually incorrect. You are aware that you were instructed not to take organisational files home and not to work from home, as clearly instructed on 20 November 2009. Your answer is therefore factually untrue and an attempt to misinform the board of management. o Point 2. The direction regarding working from home and storing matters on a private computer drive are both in direct contradiction to the directions of your employer. o Point 3. While you may have informed the board of management that you were a volunteer with MWA, you were not given any approval to use work time and resources to support MWA. We have evidence including emails that clearly show that you have used St George Youth Services time and resources to conduct work for MWA. o Point 4. Your comments in regard to MWA are not relevant to you taking and using documents which are clearly the legal property of St George Youth Services, and you had no authority to do so. Using SGYS documents by changing the name and details to MWA is clearly misappropriation of SGYS property. The Board of Management have decided that these actions breach your fiduciary duty of fidelity to your employer, are totally unacceptable, and are considered serious and wilful misconduct. Therefore your employment with St George Youth Services is terminated with immediate effect. Any outstanding entitlements will be paid directly into your bank account, and, all St George Youth Services property including documents and files you have in your position must be returned forthwith. 54 The SGYS Policies and Procedures Manual was also in evidence (Exhibit 3-MFI.24). 55 During the evidence the following extract from Section 2 Staffing & Employment of the Manual was relevantly referred to by the parties: Staff Files Upon commencement of employment, an individual staff file will be established and maintained. This file will include copies of; · Resume/application for the position · Letter of appointment · Details of above award conditions · Reports of performance appraisals · Other records relevant to employment with the Association Staff may have access to their own file, however no staff file or any file contents may be removed from the SYS office. 56 The Grievance & Disciplinary Procedure as set out in Part 2 of the Manual was also referred to in evidence in relation to 'Step 6 - Termination' as follows: Termination may be a Planned Termination or Summary Dismissal. Neither step should be taken until a full investigation has been carried out . A decision to terminate an employee should be taken at a meeting of the whole Executive Committee, with all levels of management represented (ie Manager/Line Managers and the Executive). All parties should be given 7 days notice of such a meeting, and representatives of the ASU and Jobs Australia may be present. Before the meeting: 1. Steering Committee should discuss the situation thoroughly, making sure all facts and documentation are considered. It must be objectively clear that termination is not harsh, unjust or inequitable; and consistent with treatment of other employees. 2. A planned termination should come as no surprise to the employee if the correct procedure has been followed. The Manager (or Line Manager) should ensure all award and legal obligations have been met (eg notice, leave owing etc.) 3. Consider the possibilities of potential industrial action involving other staff; and anticipate any questions the employee may ask eg a request for a final chance. During the Meeting : 1. Tell the employee that he or she has been terminated. 2. Verbally explain the reasons for the termination. 3. Give the employee any information needed re. Payments, entitlements etc. 4. Ask for and answer any questions the employee may have. 5. Pick up any SYS property in the employee's possession eg keys. 6. Confirm the employee's current address and telephone number. 7. Give the employee their final pay, Employment Separation Certificate and, if requested, a Certificate of Service in the following form :- Employee's name Period of employment Title of position Salary scale Nature of work (including if applicable, details of other staff supervised by employee) Signed by a Committee member Date 8. End the conversation on as positive a note as possible. Recognise positive contributions the employee has made or express confidence that they will find more success with another employer. After the meeting: The Manager (or Line Manager) will write a memo, including: employees name; date of the incident; specific explanation of the incident which resulted in the employee's termination; the nature and dates of all previous disciplinary actions Summary Dismissal In a Summary Dismissal, the employee commits an offence which is so serious that firing on the spot is appropriate regardless of previous disciplinary actions taken. There is no period of notice nor payment in lieu of notice to be considered. 1. Upon receiving a complaint of an action warranting summary dismissal, the Manager (or Line Manager) must give the matter priority attention. 2. Have the employee stop work and meet with Executive Committee as soon as possible. Ask the employee to explain their side of the matter. Direct them not to resume work until they have been instructed to, then complete your inquiries by speaking personally to all who can put light on the situation. 3. Call an urgent meeting of the Executive Committee (including Line Manager and Executive representatives) to discuss the complaint and any action to be taken. During the meeting: 1. Executive Committee should ascertain and document which facts are agreed, contested and unclear. It must be objectively clear that termination is not harsh, unjust or inequitable; and consistent with treatment of other employees. 2. Consider whether the employee clearly understood the rules or policy that was broken. Did they know in advance that such action would be subject to disciplinary action? Was the rule/policy related to the safe, efficient and orderly conduct of the organisation? Is there substantial evidence that the employee did actually break the rule? 3. Consider: is the action planned reasonably related to the seriousness of the offence? The employee's record? Action taken with other employees in similar circumstances? Is the issue gross deliberate wilful misconduct? This may affect an employee's entitlements and lead to further legal action. 4. Consider any other statutory obligations under industrial awards etc. 5. Consider whether the ASU and/or Jobs Australia should be consulted. 6. Review all options from warnings through to dismissal. If the Executive Committee decides, having reviewed all facts and examined all options, that summary dismissal is warranted: 1. Invite the employee to join the Executive Committee meeting. 2. Advise the employee that they have been dismissed and put (briefly) the reason. 3. Proceed in accordance with steps for a planned termination. 57 Since her termination Ms Angelovska had not been able to secure alternate employment in the community services sector. The Evidence 58 It should be noted that there was extensive cross examination of both Ms Petrakis and Ms Faraj who had both deposed as to events concerning Ms Angelovska in almost identical terms. Cross-examination of Ms Faraj traversed the same areas already traversed with Ms Petrakis and only those relevant matters which added to or clarified that evidence will be referred to below. General 59 Ms Angelovska deposed that during the time of her employment she had co-ordinated the development of SGYS into an integrated community service provider offering a range of family, education, employment and general support services. That co-ordination included the expansion of the organisation's annual income from approximately $600 per annum prior to her commencement, to over $836,000 per annum by the last financial year. She also considered that she had built the Service into a strong vibrant organisation with a strong reputation, recognised by the Federal and State governments as such, and acknowledged so by local services, the local community, Committee of Management and staff. 60 She further deposed that a strong component of SGYS's core operations and success had been based on the strong collaborations and partnerships with other services, and that SGYS had coordinated a network of seamless cooperative services for disadvantaged young people and families. 61 Ms Angelovska deposed that she had had both authority to work from home at her discretion and to take files home at her discretion since the early days of her employment. As part of her employment conditions she also had private use of the mobile telephone provided for work purposes. 62 Ms Angelovska said that as she was allowed to do work from home so she was allowed to take work files home to work on. She did not believe that that was against the policies and procedures of the organisation. 63 Ms Angelovska also deposed that she had "extremely flexible hours" and could take breaks whenever she needed at her own discretion. The hours of work as per her contract of employment were 35 hours per week between the hours of 8 am and 8 pm. Whilst she had flexible start and finish times she had a later day and she would stay back in the afternoon. It was her practice to come into work at about 10 am and to work until about 5.30 or 6.30 pm. She also frequently took work home. She would keep a record of hours worked and the hours to be taken off in lieu. She could utilise any time-in-lieu at her own discretion. 64 Ms Petrakis said that she was not aware of Ms Angelovska's hours of work. 65 Ms Angelovska gave evidence that the SGYS phone bill was on a month by month plan and they had a certain number of free calls. So as long as she monitored that and made sure that it was kept within that range it was fine. There wasn't any problem with that the whole time she had been there. The monthly phone bill would go to SGYS but she did not have to differentiate which were personal and which were business calls. She was given the mobile phone at some stage during the first few weeks after she first commenced with SGYS. 66 Ms Angelovska was the one who would look at the phone bills in terms of signing cheques being paid for them and that was for all the mobile phones in the organisation. The bookkeeper and accountant would also be overseeing them as well as the auditor. There were also monthly or bi-monthly reports given to the Board of Management as required by the Board and they would get a financial report specifying how much was spent on phone calls and things like that. It was not broken down on an individual staff member bases. It was just on an overall basis or a project basis as a whole. There was an annual budget for the telephone and it would be monitored on a monthly or bimonthly basis by the Board of Management as well as herself. There were never any problems with expenditure for phone calls during the time she had been there. 67 Mr D'Astoli deposed that Ms Angelovska consistently demonstrated commitment to her work and the organisation. He had signed off on her work times for some years as her line manager and was satisfied (as was the Management Committee) that she managed her time and SGYS resources effectively and professionally. She was authorised by the Management Committee to work from home occasionally, at her discretion, in a suitable environment that satisfied SGYS's OH&S requirements. This authority to work from home extended to her occasionally taking home administrative files to work on when required. However confidential Client records were always kept in a locked filing cabinet at SGYS premises. 68 He confirmed in cross-examination that the approval that was given to Ms Angelovska was done at a formal Committee meeting. He was not able to supply evidence to that effect but was sure that if the minutes of the Committee meetings were gone through then those decisions would be clearly documented. She was authorised to do the general administrative tasks that would normally be undertaken as a Manager. 69 He clarified what he meant in his statement about "to work from home occasionally" and indicated that the discussion at the time generally meant between a half day to one day a week. It was around about the same time that Ms Angelovska's father was gravely ill and died and she was at home doing some support there and basically it was acknowledged that there was a need to be looking out for the mother and that kind of thing. So they said "alright you can complete some of this work from home". He agreed that the request arose out of a specific need in her private life and was also around the time that email and internet usage was becoming more and more prevalent. The ability of people to work from home and work on electronic files was becoming more commonplace. They saw no reason to prevent that. They also allowed her to take electronic files home. 70 Mr D'Astoli indicated that his experience on the SGYS Committee was that there was a stable core group of 3/4 maybe 5 members over his eight year period. 71 Initially there was a small Committee and other people who came on board. The Committee met at varying times. Initially it would have been monthly when they were starting up new projects and starting up the first project. There was a minimum requirement for three Committee meetings per annum so there would have been at least one every four months. By and large it would be monthly or bi-monthly. There were also different points of time where they had different subcommittees operating, concentrating more closely on specific projects and they may have had a managing committee meeting every two months and the other committees might meet on alternate months. 72 Mr D'Astoli also said that there were certainly minutes and agendas kept more often than not. He could not swear that every meeting was documented perfectly, but major decisions and policy changes were documented. Ms Angelovska developed the delegation manual and he spent a lot of time working with her on the policies and procedures manual for the organisation and that sort of thing was done very much with the Committee's involvement. 73 He also indicated that Ms Angelovska, as Manager, reported to the Committee of Management at each meeting, usually by way of a written report, although as the organisation grew those reports would have taken a different format and may have been more of an overview in the latter part of the period. Ms Angelovska confirmed in oral evidence that reports she had attached to her witness statement (Exhibit 3-M27) were typical of the reports she would provide for tabling at Management Committee meetings. The headings were those that she had used for a number of years and the Management Committee were always satisfied with the reports. 74 Ms Petrakis confirmed that since she came on the Committee in December 2008, that it met on a fairly regular basis at least every two months and that Ms Angelovska as Manager attended those meetings and provided written reports. 75 Ms Angelovska said that she was never required to diarise what she had done over the month in any way. Everyone had a lot of autonomy in managing their own work. They had their accountability mechanisms in place including the written reports. Every staff member had to provide one of those to herself as well as one that went to the Management Committee. She also provided a report to the Management Committee. They also had supervision support meetings where each staff member had a mechanism by which to discuss their work on a monthly to 6 weekly basis. She would meet with Mr D'Astoli on a regular basis about every two or three months. 76 Mr D'Astoli also confirmed that he met with Ms Angelovska on a regular basis as part of his role as her line manager. 77 Ms Petrakis said in evidence that she did not formally meet with Ms Angelovska outside of the Management Committee meetings, there were the odd occasions when she would come into the office. She did not hold regular supervision meetings with her. She had correspondence with Ms Angelovska on a regular basis via email and they worked together, and with other staff members, on projects. She considered that they were working on particular tasks together. 78 Mr D'Astoli agreed that when he left the Committee, having been a chair for eight years, it would have been a fairly substantial change in the organisation. Subsequently one or two other people did leave. He had flagged quite some time prior to his departure that he would be leaving and worked with Ms Angelovska and the Committee to try and handover and step back from a lot of the things he had been doing so that it wasn't a surprise to people when it happened. When he left he recalled that there were new members of the Committee elected and he believed that not all of them stayed around for the long term afterwards. He was aware of a least a couple of them being there for a while and one was still there. There would certainly not have been the same kind of continuity. 79 He could not recall specifically mentioning to the incoming Committee the arrangements with Ms Angelovska and her doing work for MAWA, but there would have been some members of the Committee who continued after he left who would have been aware of that. It would also have been documented in earlier Committee decisions if people wanted to look for it. It did not appear to be a live concern at the time against many other things, he didn't specifically identify that as something to pass on. 80 He also indicated that during his time on the Committee with the use of electronic equipment expanding and growing, the Committee did give consideration to developing and implementing policy in relation to the use of the internet and emails but did not ever get around to finalising the policy. They had a "reasonable use" policy and certainly had conversations saying they should write something up. He remembered discussing with different staff who had more outreach kind of roles where they travelled around and used a laptop and sometimes they asked whether they could use it for personal use and that kind of thing. So there were some considerations but they may not have been formalised. 81 He also said that during his time on the Committee there were no perceived issues with staff generally about excessive use of email, internet, computer or mobile phones. He was aware of one staff member that they took disciplinary action against. The person subsequently left and two weeks after they left they found his mobile phone records detailing a number of phone calls that clearly had not been made from work. Ms Angelovska had tracked his whereabouts on the white whiteboard and they didn't match with his phone records but that had been picked up and they had gone through the appropriate channels. The Union represented the staff member and agreed that it was best that they move on. Apart from those kind of situations they didn't have any issues. 82 In relation to that person terminated, the use of a mobile phone was the least of the issues. They had accessed the phone records as part of monitoring the work activities. Ms Angelovska was very closely under the Committee's instruction monitoring his movements because they had reason to believe he wasn't going to places where he said he was going. There was very thorough documentation because the person had a reasonable understanding of their industrial rights and they needed to be extremely thorough in proceeding with that matter. 83 He conceded that it was reasonable that the current Committee would look at similar records if they had concerns but said that there was "a whole bunch of steps that ought to happen before you get to that point including asking a staff member to provide that information for you". There was no reason such a staff member could not go through their phone records and say these are all the MAWA calls for instance . 84 He also did not think that when a person was acting up in the Manager's position that they would necessarily have access to the Manager's email account. He could only recall one other position who acted up and he could not imagine there would have been particular issues that required Ms Angelovska's email account to be accessed for that. The Acting Manager would not necessarily access the Manager's account. Mr D'astoli said that even he, in his management position, did not have automatic access to her emails. If someone sent an email to the Manager he would expect the person on leave to have an out-of-office reply saying that the current Acting Manager is 'so-and-so' and please contact them at 'such-and-such'. 85 In relation to his knowledge of Ms Angelovska's involvement with MAWA, the following exchange took place: Q. How can you say it's a voluntary capacity when the time she was using for this was put on her timesheets and there was no indication that she had volunteered for something and noted that on the timesheets? A. Well, again I would say we didn't have any concern that the work that she was doing was impacting unduly on her paid work. I was aware from very early on in Valentina's employment that she had a tendency to work very long hours and that was her prerogative. And I was aware that some of those long hours she would stay back till 6.00/6.30 and she would use the last half-hour to do some MAWA committee kind of follow-up, that kind of thing. So in that context, again it didn't concern us greatly that she was undertaking some of that work with resources that were, as far as we were concerned, public resources, publicly funded, they were all going towards the same kind of community benefit in the long term. It wasn't like she was making any personal profit, it wasn't costing us anything personally, you know, I think it was putting what resources were there to related and constructive use. Q. Are you saying it was not costing St George anything? A. It was not costing St George enough to concern us, you know, it wasn't a significant impost on the organisation. Q. But ever (sic) time she worked late, every time she worked extra, she put it on her timesheets as time in lieu as a charge against St George Youth Service? A. Not necessarily, I don't think. Q. Well, can you give me an indication of when she didn't, because if you want to look at the timesheets, which you say you signed off on, they're all full of time in lieu that you're saying she did up to half an hour's work for MAWA. A. Yes, I wouldn't have signed off on time in lieu for another organisation. As far as I was concerned, I was signing off on hours that she'd worked for the organisation, which were often time in lieu in relation to the work that she did with SGYS. Q. So as far as you were aware, she was working for St George Youth Services? A. Yes. 86 Ms Angelovska indicated that she did not have to get her time-in-lieu approved beforehand. Mr D'Astoli would look at her timesheets or she would have meetings with him where they would go through her times and he would look over things. She could not remember who did it after he left, she thought that it would have been the responsibility of the Chairperson. She did not know if those timesheets after 2007 were approved by Management, she didn't know that was her responsibility. 87 She did not approach the Committee for approval to work additional hours because from her memory of her contract that was not what it said in regards to time-in-lieu. She had the discretion to use and take time-in-lieu at her own discretion. She would accrue time-in lieu to do work time and she did a lot of extra hours for the organisation over the whole 9 1/2 years she been there and when she took time-in-lieu that was her personal time and she do not have to write it down anywhere. It was all logged on her timesheets. 88 Sometimes she would take it as a half-hour here or there. Every staff member had a similar arrangement so that they could do it at their own discretion, take an hour here or there if they had time accrued but sometimes it would add up to one day or two days at most, but usually one day. It was in their contracts that the maximum number of hours that could accrue was 14 hours or two days within the space of a month. She also vetted and oversaw staff time-in-lieu and kept a really close eye on that. 89 She had never been asked by the current Committee to provide her timesheets. 90 Mr D'Astoli agreed that he signed off on, and approved, the time-in-lieu for Ms Angelovska when he was the Chairperson and he did not pass on to the incoming Committee the specific information that they had the obligation to approve that time-in-lieu, but he would have expected them to do so. 91 Ms Petrakis said that she had never seen any of Ms Angelovska's timesheets or any request for time-in-lieu, she had only sighted her request for the annual leave in 2009. 92 Mr D'Astoli was also aware of the kinds of files that Ms Angelovska might have been taking home, for instance a funding application that might have been due in a couple of days. 93 He indicated that there would have been a number of occasions with different organisations when Ms Angelovska would be involved in working on submissions with them. He didn't remember any specifically with MAWA. He considered it quite normal for people to work with other organisations whether as partner organisations, or in his case, as an employee of the local Council, but also a member of the Committee of SGYS to work on a funding project or a funding submission to that organisation. 94 He also detailed the variety of funding agencies applicable to SGYS. He could not recall all of them, but said there were a large number of funding bodies. 95 He did not consider that Ms Angelovska was "working" for another organisation, as far as they were concerned she was working for them. 96 When asked about the large number of documents concerning MAWA that were on Ms Angelovska's can work computer and asked if he was aware of the extent of the work she was doing he indicated that it would depend on the content of those documents. He used his own work as an example and said that you would have found a number of folders relating to a number of different organisations with whom he worked and corresponded on a regular basis. He knew of at least one or two projects where Macedonian young people were a targeted group and were a shared targeted group in the sense of both MAWA and SGYS, and that would have been a clear reason for having a number of emails, phone calls and files, working in partnership with that organisation. 97 He also thought that in working with any organisation there was going to be a fair amount of correspondence, phone calls etc. From the Committee's perspective, they were not concerned at any particular point that the involvement Ms Angelovska had with MAWA was of concern in terms of her capacity and demonstrated work with SGYS. The extent of the MAWA work wasn't a concern to them because as far as they were concerned she was doing her job as the Manager of SGYS so what she did in her voluntary capacity with another organisation didn't unduly impact on them. 98 He went on to indicate that he would was not surprised that there was quite a lot of documentation considering the fact that she'd been involved with MAWA for over 10 years. He said he would be very surprised if it showed that it was all done in SGYS time. He would be extremely surprised if she could do the amount of work that she did for SGYS and do a significant amount of work for another organisation at the same time. 99 Mr D'Astoli indicated that he now worked the Department of Community Services, the Department of Human Services. He was no longer on any committees. He indicated that if he was found to be working on other community organisations when he was working for DOCS, "then the DOCS policy on things like reasonable personal use of electronic or mobile phone policy states the odd phone call, email, bits and pieces here and there, reasonable use. Reasonable use was perfectly within the policy". 100 Mr D'Astoli further deposed that as office technology advanced and the organisation expanded its service delivery, this required the transfer of electronic files and the use of equipment such as laptop computers which enabled greater flexibility and efficiency for Ms Angelovska and a number of other project staff at SGYS who also had access to such equipment. At times major submissions and reports, combined with pressing deadlines, made it essential that Ms Angelovska utilise this technology outside of the office. 101 Mr D'Astoli also indicated that in addition to the increase in annual turnover during his period as Chair, there was also an increase in the number of persons employed by the organisation. When he ceased to be Chairperson in 2007 there were roughly speaking 10 or 12 full-time and part-time staff. 102 Ms Scobie also deposed that as a member of the Executive Committee she was aware that Ms Angelovska was authorised to work from home when required. Management deemed that this was sometimes necessary especially at times when funding body reports and/or funding submissions were due so that interruptions were kept to a minimum. This necessitated paper and electronic information to be taken home with her. 103 Ms Petrakis deposed that since her time on the Management Committee and prior to October 2009, the Committee was not aware that Ms Angelovska had removed organisational files from the workplace and was not aware that she was the only person who had access to organisational files such as funding submissions. Ms Petrakis maintained that this was in direct contradiction to SGYS policies and procedures (Exhibit 8-A). 104 Ms Petrakis acknowledged that although Ms Angelovska had told her before her dismissal that she had prior approval of the Management Committee and therefore Ms Petrakis did have some knowledge of that, but said that there was no evidence to prove that she did have such approval. She had looked at the approvals that had been given since her time on the Committee and since December 2007. She did not go back to minutes of Committee meetings prior to 2007. 105 In relation to the issue of organisational files, Ms Petrakis maintained that the reference to 'Staff Files' in the policy meant that all information pertaining to staff needed to go on a staff file and that even if that meant there might be a number of files depending on how the filing was done they were caught by the prohibition on removal from the SGYS office. That was how she read the policy, whether it was an electronic or hard copy, it was staff records. Ms Angelovska had removed supervision notes of staff members contrary to that prohibition. 106 Her staff file had also been removed and although Ms Angelovska had told her a number of times that she had not removed the file, Ms Petrakis simply did not believe her. She was the only person who had access to where those files were stored and up until her suspension they had no reason to look for that information. When she was suspended they went looking for the information and that was when they discovered it had been removed. It was very clear to them that no one else had access to that information. 107 Ms Faraj also agreed that Ms Angelovska was a very hard worker, was acknowledged by the SGYS as a hard worker and people appreciated that she was a hard worker and devoted to her job. Background to the Meetings 108 In cross-examination Ms Petrakis indicated that during October 2009 (on a date she could not recall) whilst Ms Angelovska was on leave, the Management Committee held a meeting and that subsequently two or three other meetings were held at which the issues were discussed that arose from the three meetings Ms Petrakis and Ms Faraj held with Miss Angelovska. Ms Petrakis could not remember the dates of those meetings, they were extraordinary meetings that Ms Petrakis and Ms Faraj called with all four Committee members and minutes were kept of the meetings. (Those minutes were not in evidence). 109 Ms Petrakis agreed that the approach they took to the meetings was simply about filling in gaps that had arisen while Ms Angelovska was away. She went on to say that the Management Committee "became aware of certain concerns. Given the instability of the Management Committee prior to December 2008 they felt they would try and resolve the issues in an appropriate and professional manner, that is raise the issues, work through with the Manager on solving those so they didn't happen in the future and ensure that her areas of responsibility and delineation were clear". 110 The context of the three meetings that were held was that they were attempting to have Ms Angelovska "perform and conduct in a way that the Management Committee wanted the organisation to do." 111 Ms Petrakis indicated that at the commencement of the meeting process they hoped that Ms Angelovska would work together with the Management Committee in "improving and clarifying the roles responsibilities and what was expected." At the initial stages there was no disciplinary action to be taken against her and they had no formal grievances at that time. She agreed however that they did have a grievance procedure and that they did not follow it. 112 Ms Petrakis was taken through a number of the action items listed as arising in the three meetings during cross-examination. The meeting of 27 October 2009 113 Ms Angelovska deposed that the meeting commenced with Ms Petrakis making a general statement about the need to fill some gaps and that it was not anyone's fault and that no one was to blame. She then proceeded to raise a number of issues, including their proposal to Council for premises, use of consulting services, access to certain documents, financial reports, staff restructure, the AGM and finally, annual accountability. She recalled thinking that those items surprised her and she did not know why most of them were being raised this time. 114 She also noted that neither Ms Petrakis nor Ms Faraj were taking any minutes and when Ms Petrakis noticed that she was taking minutes, she actively discouraged her from doing so, saying words to the effect of "why don't you put down your pen, so that you may listen more clearly to what we are saying to you". Ms Angelovska told her that she was listening and wanted to have a clear record of what they were discussing. 115 Ms Angelovska deposed that whilst she was a little perplexed by their request for meeting at such short notice she did not sense any hostility from the invitation to the meeting. However, during the nearly two-hour meeting she said that she "felt under siege and offended on a number of occasions" especially when it was stated that she had not done anything on the Council building proposal since March 2009, which she felt was untrue. She also thought that Ms Petrakis was "critical, condescending and intimidating in her communication and manner". She was provided with little opportunity to properly respond to questions and statements and, in addition, felt that Ms Petrakis would not respond to her questions when she sought on a number of occasions to clarify items. 116 She also recalled taking "particular offence" to Ms Petrakis' claim that in future all directions from the Committee of Management must be followed, as this implied that she had failed to do so in the past and she felt strongly that this was untrue and not an accurate representation of her overall performance. Her performance was not raised during the meeting and no issue was tabled to suggest that she was not following directions or performing poorly. 117 Ms Petrakis deposed that during Ms Angelovska's annual leave urgent matters arose, and it was at this time that the Management Committee became aware that no one within the organisation could access hardcopy or electronic copies of important organisational documents. 118 She further deposed that during the meeting Ms Angelovska stated that she kept electronic files at home on an external hard drive, and had also given her sister a USB with organisational files that she should not have access to. 119 Ms Petrakis indicated in cross-examination that this issue had arisen around accessing a particular document that Ms Angelovska had declared was complete. On her return they asked her where the original document was because they had been unable to access it and therefore had to recreate the document. In her response to them she initially claimed she had stored on an external USB drive on which she kept SGYS files. She went on to clarify that Ms Angelovska had initially told them that she had the information they were seeking stored on an external hard drive and when they continued to ask about where the original document was, she said she had saved it on a USB stick that she given to her sister who could access it while she was on leave. 120 Ms Faraj also further explained the background to the issue concerning the correspondence to Rockdale Council (precipitated by an invoice for rent) that arose during Ms Angelovska's annual leave. 121 Ms Faraj also indicated that Ms Angelovska had taken a longer break than usual and that normally the Team Leader acted up into the Manager's position and then they would take over the role of Manager, however that didn't quite happen this time that was why there was some gaps in information. 122 Ms Angelovska denied saying during the meeting that she had stored electronic files at home on an external hard drive. She also maintained there was no discussion about what was or wasn't on her computer at home. She said she did not say that she had given her sister a USB with organisational files that she should not have access to. The first time she saw the allegation of storing electronic files at home was in the termination letter on 22 December 2009. 123 Ms Angelovska acknowledged that she had a USB and had electronic copies of files on it. 124 Ms Petrakis deposed that it was also revealed during conversations in this meeting that Ms Angelovska had the only key that unlocked the SGYS filing cabinets where all documents were kept. Ms Petrakis deposed that this was in direct contradiction of the SGYS Policies and Procedures Manual. The Management Committee requested that she move all files so that they could be appropriately accessed. 125 Ms Angelovska denied that she had the keys to all of the filing cabinets where all documents were kept. The first time she had seen this allegation was in Ms Petrakis' witness statement. 126 She explained that there were approximately 9 filing cabinets in the SGYS office at Rockdale where she was based. Staff had access to organisational files to be able to do their work. Documents were kept in all of these filing cabinets with various staff having keys and access to them. There was a 'keys' register' that she had set up for this purpose. One of the filing cabinets was in her office and was known as the Manager's filing cabinet. It was in that cabinet that she kept confidential records, including Management Committee files, some confidential staff files, funding contracts and confidential recruitment files. She also kept other files on which she was working on a day-to-day basis in that cabinet. She acknowledged that she was the only one who had a key to that cabinet, but said that at no stage was it raised with her that this was contrary to the Policy and Procedures Manual. 127 In relation to the issue of the key to the cabinet in her offices she maintained that when this was raised during the meeting she said that it had never come up as an issue in the years that she had been the Manager and she had never been asked for access to the filing cabinet before. If they had needed access to the filing cabinet then she could have made keys available to pick up from home through her sister. They told her they wanted to have a copy of the key for emergencies as a backup because of what had apparently happened while she was away on leave. However the organisation had been in touch with her on other matters while she was on annual leave. 128 When she was asked why it had taken two weeks to provide the key she responded that she didn't believe there had been a deadline for that relayed to her in the meeting of 27 October when she was asked to make the key available. There were other very important priorities going on at the time such as saving the organisation from homelessness. They had a meeting with the Council during that two week period which was going to affect the future of whether they had premises or not. She was busy planning for that for one thing, apart from the rest of the work that was going on. She was told that making a key was necessary so that management could access the filing cabinet for emergencies when she was not there. She was there during that period and thus didn't believe it was a priority. 129 Ms Petrakis agreed in cross examination that they were only talking about one filing cabinet that they were concerned about obtaining a key for and that was the filing cabinet in the Manager's office. She also agree that Ms Faraj had received the key to that filing cabinet at the time of the meeting of 20 November. The issue was the time it had taken to provide the key. 130 Ms Angelovska deposed that the day after this meeting she commenced work on a number of the action items as determined in the meeting, including emailing the Committee about a tentative meeting with Council, proposing a series of dates and schedule for the upcoming AGM and she had also spoken with Ms Scobie, the external consultant. 131 When she received the email from Ms Petrakis on the 2 November and read the minutes she had attached, she was "shocked" at the number of issues that had been omitted from the record or that had been added, even though it was not discussed during the meeting. Dates had been added to a number of items even though such deadlines had not been discussed. Further the minutes effectively had little, if any, account of the position that she had taken during the meeting. It was as if she had not spoken or replied to any issues and that the meeting was "simply an exercise in which the directors dictated a series of issues and which I had simply agreed to or it was discussed". She also felt that the minutes "unfairly" presented her to the rest of the Management Committee. 132 After receiving this email she had a meeting with her external supervisor and discussed feeling stressed about the way the meeting had been conducted, the unfairness of the meeting and Ms Petrakis's attitude towards her. 133 Ms Angelovska deposed that on or about 4 November she had completed many of the tasks set at the meeting and other items were completed by 10 November as requested, including the final restructure proposal with copies of documents for the Committee members. The Meeting of 10 November 2009 134 Ms Angelovska deposed that at the commencement of the meeting she stated that she had some serious concerns about the process in which the previous meeting was conducted and particularly the notes of the meeting which contained a number of issues with which she disagreed. She then deposed as to the following discussion taking place with words to the effect of: Ms Angelovska: I need to let you know that I have concerns about the nature of our previous meeting. I think there were a number of mistakes in the notes which you produced of that meeting. I had prepared my own minutes and I'd like to issue those today...... Ms Faraj: Val, that's inappropriate. The meeting was a friendly chat. As Vicki said in the meeting, "no one is to blame". So, I think it's inappropriate for you to have your own minutes. Ms Angelovska: I am just worried that your notes had a series of errors and did not reflect what I thought had occurred at our last meeting..... and also I have concerns about the way I was spoken to at the last meeting Ms Faraj: I have no time to listen to this! I'm really busy and I have kids you know! ! Ms Angelovska: I'm wondering if this is about my performance and not some so-called "gaps". If this is about my performance then you need to formally inform me, so that I may get some representation. In addition, you need to also inform you of what I'm alleged to have done Ms Petrakis: Do you want this to be about your performance? Ms Faraj: These are friendly chats Val! It's not about your performance. Stop over reacting... now let's move on. 135 Ms Faraj did not agree with Ms Angelovska's account of that conversation and considered that she "put words in my mouth." However Ms Faraj agreed that at some stage she was told that this wasn't a disciplinary matter in response to her raising that. 136 Ms Angelovska maintained that after this discussion she felt "restricted" in what she could say, especially if she was taking a different position. She thought that she was being "railroaded" and that her concerns were being "devalued". Also, as the meeting progressed, she realised that it did not appear to be about the restructure as she had originally been told, she realised that Ms Petrakis was going through items of the last meeting and checking on their progress to date. 137 Ms Angelovska again took her own minutes and noticed that neither Ms Petrakis nor Ms Faraj took any notes while the meeting was in progress. 138 Ms Faraj indicated in cross examination that she had not seen a copy of the notes taken by Ms Angelovska in either this or the previous meeting until she saw them attached to her witness statement. She acknowledged that Ms Angelovska did dispute the accuracy of what was set out in Ms Petrakis' notes. 139 During the meeting Ms Angelovska said she also raised that in relation to some items, there were either no deadlines stated at the last meeting or the due date was different from her record of the meeting. Further she noticed that for some of the items there were changed instructions or additional instructions added. 140 Ms Faraj indicated that most of the meeting was "consumed" by Ms Angelovska's disagreement with the minutes that were taken and she spent all her time arguing about how that meeting was recorded rather than following through on some of the things that they were asking. 141 Both Ms Petrakis and Ms Faraj deposed that it was evident that Ms Angelovska did not follow the direction of the Management Committee, including the matter of access to organisational files. They relied on the evidence for this as being contained in Ms Petrakis's minutes of the meeting. Those minutes indicated inter alia the following: 2. Consultant Services: ACTION: .... STATUS: Partially completed ......This needs completion by the end of the week (Is by Friday 13th November) 3. Keys and access to important documents. ACTION: Vale to organise files into a secure and accessible area, possibly behind front reception. The spare key to Vale's filing cabinet to be given to management committee member (or delegated staff member), so that when Vale is not in the office, important documents can be accessed. STATUS: Not completed. Vale has assured Mariam and Vicki that this will be completed by Friday 13th November 2009. 4. Financial reports ....................... 5. Staff Structure ACTION: Vale to circulate current organisational structure. Mariam and Vicki will meet with Vale on Tuesday 10th November 2009, to review proposed new structure ready for presentation to management committee STATUS : Not completed. Current structure not circulated until 1.30 pm Tuesday 10th of November 2009. Draft proposal involved only request to recruit two vacancies and not proposed savings/changes to structure as a result of no consultant, changes to workload in admin etc. Vale to provide draft proposal to Vicki and Mariam by close of business (4.30 pm), Monday 16th November 2009 6. Annual Report and AGM ACTION: Vale to circulate proposed dates for completion of annual report and time for AGM STATUS: not completed. Vale to finalise dates for Annual Report completion and AGM by end of week (i.e. by Friday, 13th November 2009). 7. Annual Accountability ACTION: Vale to provide table of programs and progress on reporting to funding bodies by next meeting with Mariam and Vicki. STATUS: Not completed. Vale had indicated she had the document but couldn't locate it on her drive. Vale to forward by close of business (i.e. 4:30 pm Tuesday, 10th November 2009). Based on completion of the above tasks, the Committee will work through proposals and schedule next meeting. Vale will be notified of when the meeting will occur. 142 Ms Angelovska deposed that during the week after the 10 November meeting she had completed the follow-up tasks which had been set, including the second restructure proposal (and by 16 November as agreed), filing the funding agreements into electronic format onto the front office computer (by 13 November as agreed) and organising a spare key for her filing cabinet. There were also other matters attended to (discussions with the consultant, finalising details of the AGM report etc., etc). 143 She maintained that in relation to not providing the key or moving any files until 13 November, she had not done this because she did not understand previously that there was a deadline to do those things. At the meeting on 10 November she was told to do them by 13 November and so she did. 144 She also indicated that at the meeting of the 27 October she was asked to move funding agreement documents only, not "all files" as stated by Ms Petrakis in her witness statement. She did this by 13 November 2009. 145 This was one of the issues where she disagreed with the minutes because the minutes didn't accurately show what was represented to her in the meeting. What she was told was to make available funding agreements and to put them at the front desk and that was what she did. 146 Ms Petrakis indicated that the staff did not have access to funding submissions and gave one example of a staff member who did not have access to a funding document that they required to their work (the staff at Reconnect). The staff raised this as a direct complaint with her sometime in October or November. 147 Ms Petrakis said that they raised with Ms Angelovska the concern around access to funding documents because the Management Committee also wanted copies. Ms Petrakis maintained that the Management Committee had previously requested from her copies of funding agreements at Management Committee meetings and there were minutes of those meetings. 148 Ms Angelovska deposed she received Ms Petrakis' minutes of the meeting and after reading them, again felt that a number of issues had been omitted from the record, additional information not discussed had been added, and deadlines had again been added. Her concerns about the conduct of previous meetings were not minuted and the deadlines had actual times added which had not been discussed with her during the meeting. She again felt that she had been misrepresented "in a critical and negative way" in the minutes to the rest of the Management Committee. 149 Ms Petrakis and Ms Faraj deposed that during this time (between the meetings of 10 and 20 November) staff had contacted the Management Committee and raised a number of grievances including the amount of time and resources Ms Angelovska was using to undertake work for MAWA. This was the first time that Ms Petrakis had become aware of Ms Angelovska's involvement with MAWA. 150 Ms Angelovska deposed that she had never been informed by Mr Dangas or any other staff members as to their concerns about her work with MAWA, she had not been approached about that. It was well known by both staff, the Management Committee and other local community services in the area that she was involved with the MAWA management committee. The Meeting of 20 November 2009 151 On or about 17 November 2009 Ms Petrakis left Ms Angelovska a phone message to ask if she could meet her at 2 pm on 20 November so that Ms Petrakis could pick up the spare key for Ms Angelovska's filing cabinet. This was followed up the next day by an email from Ms Petrakis asking whether she was available to meet with Ms Petrakis and Ms Faraj at 2 pm on the 20 November. Ms Angelovska emailed a reply indicating that she was available, but that she would have to leave the office at 2.30pm for another pre-scheduled meeting. Ms Petrakis emailed her back stating that half an hour should be enough. 152 Ms Petrakis maintained that they believed they had scheduled the meeting on 20 November but acknowledged that they would have left a message about the meeting. 153 Ms Angelovska deposed that because of her concerns that now two people were coming to pick up the key, she contacted her Union and sought advice about how the meeting might be conducted if it was to be similar to the previous meetings. She also advised the Union that she felt she had been treated unfairly so far. Following advice from the ASU, she sent an email to Ms Petrakis requesting information about the meeting (see Background and Chronology above). 154 Ms Angelovska deposed that during this meeting she was asked about, and updated, Ms Petrakis and Ms Faraj on items from the previous meetings and there was discussion of the restructure proposal. She asked whether there was any progress on her recommendations for staffing and thought that the answers that were provided were confusing, they did not appear to have read the documents she had sent them and their priority concerning the urgency for the restructure appeared to have changed. 155 She again noticed that neither of the two women took any notes and she again took her own minutes. 156 At the end of the half-hour meeting Ms Petrakis said that since they were finished with the previous items they had some new things which the Committee wanted to get moving on and make changes and that some of those items Ms Angelovska could do, and some the Board could do, and that they would work together on them. She then handed her a document titled "Items to Action" which came as a complete surprise to Ms Angelovska. 157 As it was already past 2.30 pm and she was late for the 2.30 appointment with Council which had been previously advised to Ms Petrakis, there was no time for discussion of this document and these items. As she was leaving Ms Petrakis asked about the last item on the page, her involvement with MAWA and she replied that she had approval from the employer to be involved on the management committee of MAWA for many years. 158 Ms Petrakis indicated that she considered that Ms Angelovska could have remained in their meetings for a few more minutes rather than leave as she did. 159 Ms Petrakis and Ms Faraj deposed that Ms Angelovska continue to fail to follow instructions and again in that regard relied on the minutes of the meeting as evidence for this. Those minutes added "STATUS 20/11" entries below the previous "ACTION" and "STATUS" entries (which were repeated) and included the following: 2. Consultant Services: ACTION: ............ STATUS : ........... STATUS 20/11: Vale spoke to Nicole re mileage. Note it has been subsequently discovered that Nicole was issued keys to building and these have not been returned. I have asked Vale to follow up and we will hold off paying any further invoices until these have been returned. 3. Keys and access to important documents. ACTION: ............ STATUS : ........... STATUS 20/11: partially completed. Filing cabinet move to admin area, however only Vale and Phuong have keys. Scanned copies on to admin computer, however staff cannot access unless they go through Vale or Phuong. Issue should be addressed when Vale completes items for action specified on 20/11. Mariam has spare key of this filing cabinet. 5. Staff Structure ACTION: ............ STATUS : ........... STATUS 20/11: Structure forwarded to management committee, however no evidence of any proposed deficiencies, financial savings indicated, Vale has not spoken to either Jessica or John re short-term arrangements until Chloe's return. (see email sent mid week). 6. Annual Report and AGM ACTION: ............ STATUS : ........... STATUS 20/11: Annual Report to be finalised by 23rd November. AGM invitations were ready but not posted as at Friday 20th November. Based on completion of the above tasks, the Committee will work through proposals and schedule next meeting. Vale will be notified of when the meeting will occur. 160 On 23 November, Ms Angelovska received an email from Ms Petrakis which also attached the "Items for Action" list. She noted that it was also sent to all Committee members and felt that it portrayed her in a "negative light" and was "patronising to her". She considered that Ms Petrakis made an "inappropriate comment" that she felt her next meeting was more important than finishing the meeting with them. She had not said anything of the kind. She forwarded the email to her Union asking for assistance. 161 When she received Ms Petrakis' notes of the meeting she was again concerned about the "negative and critical wording" and about the additional items and tasks which appeared in the notes and which were not discussed. She also considered that even though she had completed all the tasks from the previous meetings, she was still being criticised and portrayed negatively to other Committee members. 162 After reading and discussing the "Items for Action" list with the ASU she found the first few items concerning her working conditions to be totally unreasonable in that she was being instructed to change the industrial conditions under which she had been working since her commencement in 2000. She considered that she did not have clear information of what was required in many of the items. She also considered that the deadlines for most of the items were unreasonable and impossible with the resources and instructions provided and also considering that the information she needed to get the tasks done was being held back from her. This was also a busy time when she was preparing for the AGM and the end of year period 163 In relation to the email exchange between Ms Angelovska and Ms Petrakis concerning the "Items for Action" list (see Background and Chronology), Ms Angelovska deposed that she believed that Ms Petrakis' email response of 25 November could not have been endorsed by other Committee members as she knew they were not in their office that afternoon and she was concerned that it was going against SGYS decision-making policy. She again considered that the email was misrepresenting events to other Committee members. The email mentioned that she had been supported by being allowed time off to attend conferences, but she had not been to any conferences at all. Further she was shocked at the statement by Ms Petrakis that the "Items for Action" had been on the agenda of Management Committee meetings for some length of time. She had been to all Committee meetings and had not heard or seen any of these "Items for Action" discussed at any of those meetings nor had she seen any minutes of such discussion. 164 Ms Angelovska maintained that following the meeting she continued to work on commencing what new tasks she could do at that point (giving examples), and said that this was on top of a busy week where she was coordinating the AGM on behalf of the organisation. 165 Ms Angelovska did not agree that in relation to the "Items for Action" concerning hours of work, that the Committee were making it clear what hours of work she could do and when, or what processes she would have to follow to have extra time approved. This was given to her on the 20 November two weeks before her suspension. Based on the advice that the Union gave her, it was not a reasonable instruction and she told the Committee she would need to continue working as normal and in the meantime get advice from her Union to make a response. She said that she and the Union felt that those items were directly in contradiction to her contract of employment and the good conditions of employment that she had had for the last five years. 166 She did not deliberately ignore the direction of the Committee, she followed the advice of her Union because it was not a reasonable instruction. It was not a reasonable instruction to change her hours of work. 167 In relation to the proposed change in hours, Ms Petrakis indicated that they required Ms Angelovska to work in line with the office hours. They were aware of her contract of employment conditions and had received a copy of the contract. She also believed that they adequately turned their minds to Ms Angelovska's rights under her contract of employment when they made the direction to change the hours. They did not consider it was contrary to her contract of employment and it was not contrary to the requirements of the role. They wanted to clarify the hours that were expected for her to work. She agreed that they didn't just want to clarify them they wanted to make a direction that she worked certain hours. 168 Ms Petrakis acknowledged that they had scheduled a half-hour meeting to discuss the action items, ncluding the topic of the changing of her hours. She also agreed that they did not give Ms Angelovska any notice that the issue would be discussed at the half-hour meeting. There was also no further meeting about Ms Angelovska about those issues nor any discussion of those issues on the day of her suspension. 169 Ms Petrakis gave evidence about a particular issue that arose during Ms Angelovska's leave concerning a letter that was to be sent to Council about the premises. Ms Petrakis had drafted a letter on behalf of the management committee asked that it be sent to Council. Approval for the letter had been obtained from the management meeting via e-mail circulation. Ms Angelovska had not been copied into that because she was on leave. Ms Petrakis had asked Ms Vo in Ms Angelovska's absence to print it out and forward it on letterhead and Ms Angelovska had got access to the document on her return and contacted her on the phone and said she didn't agree with some of the things that when the letter and wanted to change them and in fact had started to change them. Ms Petrakis made a clear instruction at that time that she was not to change that and that she should forward it through and she continued to argue. 170 Ms Petrakis agreed that the letter eventually got sent and did not get changed. She acknowledged that Ms Angelovska had been involved in working on this issue with Mr D'Astoli who had come in and negotiated on behalf of SGYS on the process of the relocation. She said it was claimed by that Ms Angelovska that there had been a discussion and a draft response prepared. The Management Committee had been asking Ms Angelovska on progress and what issues there were and had identified that they would be interested in working with the Council. Ms Petrakis explained that a response was required while she was on leave and there had been correspondence from her stating that she had prepared a submission. 171 After this issue with the letter Ms Petrakis continued to have concerns that Ms Angelovska would not follow her directions because at the meeting she raised her concerns about her entitlement to do certain things. They had been raising these and other issues around directives by the Management Committee and they were not satisfied that the directives were going to continue to be followed. She argued about the action items. She raised concerns at the meeting and she subsequently attempted to provide her own record. 172 Ms Petrakis also agreed that they did receive a response to the 'Items of Action' from Ms Angelovska. She also indicated that they did not have any specific allegations to put to her about her involvement with MAWA on 20 November or after receiving her response on 25 November. 173 Ms Faraj also clarified that the Committee of Management's expectation was not that they would be implemented immediately, here were dates, it wasn't immediate, ut there was an expectation to when things would be followed through. It was never said that the Items for Action required her to follow those items without further discussion. Nor was it their expectation, when she was provided with that document, that she would simply follow that without further discussion. She was always told, and it was written in several emails that she could clarify, ask questions if she had any concerns, and that she could bring it back to them. Suspension of Ms Angelovska - 4 December 2009 174 Ms Petrakis and Ms Faraj deposed that following the 20 November meeting Ms Angelovska continued to fail to follow directions and they both received complaints from staff who were feeling "bullied and harassed". 175 The Management Committee decided to suspend Ms Angelovska for the health and safety of staff while she prepared a response to the letter of suspension. 176 In relation to "endangering the health and safety of staff", Ms Petrakis said that the staff had raised concerns with Ms Faraj that they were feeling stressed and anxious and uncomfortable and for the process of precaution - "and we felt that that tied with what was going on at the time. It was best approach that we ask Ms Angelovska just to move away from the organisation's site". They opted to take that approach "given the continuing resistance and aggression from the ex manager at that time". 177 In relation to "behaviour disrupting the workplace", Ms Petrakis indicated that both she and Ms Faraj received complaints from staff members about Ms Angelovska continually questioning them about who was approaching the Management Committee, who was talking to them, what were they talking about. She also had one phone call from a staff member quite distressed. She acknowledged that there was no further information or explanation given to either Ms Angelovska or her Union about what exactly was meant by "behaviour disrupting the workplace". They didn't specify the particular allegations at that time. 178 Ms Petrakis said that the decision to suspend Ms Angelovska was made by a meeting of the Management Committee held on 3 December. Three Management Committee members attended the meeting, herself and Ms Faraj and Mr Ray Gillies. 179 She also agreed that in addition to deciding to suspend Ms Angelovska they also completed a form from the Department of Fair Trading changing the public officer of the organisation, who had been Ms Angelovska. Another Management Committee member had obtained advice that they could make that change. She could not comment on the advice that member had received from the Department, but held that the advice given to the rest of the Committee was that they could do this. 180 Ms Petrakis' attention was drawn to an information sheet from the Department of Fair Trading about public officers under the Associations Incorporations Act 1984 (Exhibit 9) and the requirement that a public officer "is removed from office by way of a resolution passed at a general meeting of the members of the incorporated association". She acknowledged that there had been no general meeting of the organisation. 181 When asked why they removed Ms Angelovska as the public officer given the reasons they had stated as their intention in suspending her, Ms Petrakis responded as follows: A: The AGM was scheduled three days after. We thought it was unfair for Ms Angelovska not to be able to attend that AGM. We didn't want members to have to ask questions. We were hoping that Ms Angelovska would be able to come on board, so in order to change the date of the AGM, the public officer was the only person who could do that, so we changed the public officer in order to postpone the AGM to a later date. 182 Ms Petrakis also indicated that the Committee was mindful of the policy and procedure on disciplinary action when it took the decision to suspend, but said no one had a copy of that procedure in front of them when it was being considered. They believed they were in the process of following that procedure and said that: "We believed we were starting a process of looking at performance gaps in trying to improve them. We opted to suspend so that we would give Ms Angelovska some time away from the office to reconsider her approach to the way the management committee was instructing her to do things and her responses back." 183 Ms Petrakis acknowledged that in the exchange of correspondence following the suspension that at no stage did they put in that correspondence that their intention in suspending Ms Angelovska was so that she could go away and think about her approach to following directions of the Management Committee. 184 Ms Petrakis indicated in cross-examination that the reference in the suspension letter to "responses" was a reference to the numerous emails backwards and forwards from the Management Committee to Ms Angelovska requiring her to follow through with the tasks identified. She considered Ms Angelovska would have been aware of the responses that were being referred to in the letter. She also acknowledged that there was no discussion with Ms Angelovska on the day of the suspension about the 'Items for Action.' 185 Ms Petrakis said that their view of Ms Angelovska's responses was that they were - "inadequate". The perception created was that she was continually resisting following their instructions. They felt the tasks were simple and should be completed in a timely manner and that when an instruction was given that would be acted upon immediately. There were many circumstances where items were not acted on immediately 186 Ms Petrakis said that when they suspended Ms Angelovska they expected that she would take the time away to reflect on her behaviour and they hoped that she would come back and apologise and then they could move forward. The purpose of the meetings and the actions they required was to progress the Service forward. There were issues of concern that had been discussed at previous Committee meetings and they were now becoming pressing and they wanted action on them. They did not consider that the suspension was a disciplinary process. It was a strategy to help her work in line with the organisation. 187 Ms Angelovska deposed that at approximately 4.50 pm on Friday 4 December 2009, she had a "surprise visit" from Ms Petrakis and Ms Faraj who handed her the letter of suspension dated 4 December 2009. The letter was not discussed with her and she was only told that the Committee had asked them to give the letter to her. She had no idea why this was occurring and it came as a complete surprise to her. She had had a full day of meetings and activities. 188 Ms Angelovska was shocked at the situation and both Ms Petrakis and Ms Faraj stood over her in the office while she was sitting at her desk. 189 Ms Angelovska deposed that she asked them what was going on and what behaviour was disrupting the workplace and endangering the health and safety of staff and what instructions she wasn't following. Ms Petrakis told her to just give her the keys. Ms Angelovska indicated that she didn't understand what was going on and needed to ring her Union and ask about it and wasn't sure if what they were doing was right and what she should do. Ms Petrakis told her that she could ring the Union in her own time and that she needed to leave right now and then told Ms Faraj to ring the police. 190 After a quick phone call to her Union, during which she could hear Ms Faraj talking to what appeared to be the Police on another phone, she gave Ms Petrakis her keys, her mobile phone and the internet banking token. She did not have time to look for any personal things or take any personal belongings with her. She indicated in oral evidence that she still had not had her own property returned to her. 191 She also advised them that the pays were due that day and that she was about to do them and no one would get their wages. She was told by Ms Petrakis not concern herself with that and that they would work that out. She was not given a chance to talk to the other two staff in the building and tell them she was leaving the premises. 192 Ms Angelovska said that all she was required to hand back on that Friday afternoon was the keys, her phone and Internet token. She was asked about nothing else. She raised some concerns about what she should do with the confidential documents lying on her desk and wasn't given a response by those Committee members, they just said don't worry about it, they just wanted her to leave the premises right now. 193 She was not asked about the USB at that time. She denied that she was asked about the USB and had said to them that it was her private USB. 194 In relation to the reasons outlined in the letter of suspension Ms Angelovska said she had no idea what was meant by - "refusing to comply with reasonable directions" meant and, - "behaviour was disrupting the workplace and endangering the health and safety of staff". She was given a deadline of 11 December to respond to the allegations, but had no idea what was being specifically alleged. 195 She was also perplexed at the reference in the letter to her not addressing the items for follow-up from the three meetings. She had completed every task which had been asked of her in the meetings of 27 October and 10 November, and in relation to the third meeting, she had addressed almost immediately the items with her "response" document in attempting to complete these tasks. 196 Ms Vo also gave evidence that during that afternoon Mr Dangas had approached to and told her that Ms Faraj had phoned him and requested that he ask if she was available to work back that afternoon. She initially indicated that she had personal commitments but she did agree to work back and sent out a letter cancelling the AGM. 197 In cross-examination Ms Faraj generally confirmed what happened when Ms Angelovska was suspended. The Dismissal of 22 December 2009 198 Ms Petrakis deposed that during the time that John Dangas was acting in the capacity of Manager, the Management Committee continue to ask for information and for action times to be addressed. During Ms Angelovska's absence it was discovered that files had been removed, including staff personnel files (as well as Ms Angelovska's file), funding submissions and other organisational documents from 2008 onwards. 199 It was Ms Petrakis' evidence that when Mr Dangas, in his capacity as Acting Manager, accessed Ms Angelovska's work computer he discovered a significant number of files created for MAWA. In accessing her emails it was evident that she had used work time and resources to support MAWA. The Management Committee had not been aware that she was using SGYS resources to support MAWA. She had not been given permission to do so and her actions were in conflict with the organisation's Policy and Procedures Manual which included policies around removal of files, code of conduct around conflict of interest and using organisational resources for personal gain. 200 Mr Dangas also accessed Ms Angelovska's work mobile and discovered a significant number of text messages. He typed up a document setting out the detail of all those text messages (Exhibit 16-H1). 201 In cross-examination Ms Petrakis said that they did not ask him to make searches of Ms Angelovska's computer or her mobile phone. He brought those matters to their attention in the days following Ms Angelovska's suspension. 202 She said that he first showed the documentation to Ms Faraj (documents, text messages, phone calls being received from MAWA etc.,) and then to her. He showed them files and emails and showed both material that he had annexed to his witness statement and a screen print out. They saw a vast number of MAWA documents over the couple of days. He did not print out all of documents in the directory but he was present when they sighted the documents. 203 They understood that they were looking at documents created for MAWA and they thought that in some instances Ms Angelovska must have been using the SGYS computer to create those documents from scratch because the evidence was there. There were some instances where documents could well have been saved. 204 Ms Petrakis said that they were concerned about the quantity, rather than the content, of the documentation. There was a vast amount going back to 2005. They were filed, they were organised, and in comparison to the SGYS documents the MAWA documents were significantly higher indicating to them that it appeared that Ms Angelovska spent quite some time working on those documents or accessing them while using the SGYS computer. 205 The Management Committee was concerned about the impact of these matters and wrote to Ms Angelovska via her Union representative on 15 December to provide her with an opportunity to respond to these allegations. They received a response from Ms Angelovska on 18 December which the Management Committee considered together with the evidence they held. They felt the information provided wasn't the appropriate response. The Committee determined that the allegations were upheld, that her behaviour constituted serious and wilful misconduct and her employment was terminated by way of the letter of 22 December. 206 In cross-examination Ms Petrakis was taken in some detail to the screen dumps in the documentation attached to Mr Dangas' witness statement. When asked to show the evidence that Ms Angelovska was creating - meaning from scratch - a document on her C drive, she said she could only confirm that she "accessed" the documents. She agreed that she was mistaken when she formed the conclusion that Ms Angelovska was creating documents from scratch on the SGYS computer. 207 Ms Petrakis acknowledged that they did not provide to Ms Angelovska or the ASU, the evidence referred to in the termination letter. 208 She also said that the Committee did not formally meet between 18 December and 21 December. They did not physically come together, they spoke over the phone. In the conversations over the phone they did not have reference to the policy and procedure manual specifically as far as it related to the disciplinary procedure. However they had the view that they followed an appropriate process. 209 Ms Faraj confirmed that there was not a meeting about the response from the Union but that there were phone calls between her and the other members of the Committee straight after the response. There were lots of individual phone calls but not a phone hook-up where all of the Committee members were on the phone at one time. She also indicated that this was not common and was an unusual way to make decisions. She also indicated that because of the circumstances of the correspondence and the situation and given all the information at hand, that was how they made the decision. 210 Ms Faraj also indicated that in reading the Policies and Procedures Manual she believed Ms Angelovska was in conflict when she was doing work for another organisation using the resources of SGYS and in the time of SGYS for the gain of another organisation. That was how she thought it was ethically not correct and against what the code of ethics were for the Service. She was not talking about anything specific in the manual just her understanding of when she read the code of ethics and what it meant to her. 211 They believed the matter was serious and wilful misconduct and that they did not have to follow the first part of the policy, they only had to follow the summary dismissal part. Ms Petrakis went on to say that "components" of that procedure were followed. She agreed that they did not have a formal meeting with the Manager and also agreed that if that was the case then they did not follow the procedure. 212 Ms Angelovska deposed that the 22 December letter of dismissal did not clearly state the reasons for her dismissal and the matters alleged were both unrelated and different to the allegations contained in the suspension letter. The allegations in the dismissal letter were never discussed with her and some of the matters were raised for the first time in the letter of 15 December 2009. 213 Other allegations in the dismissal letter included new matters which had never been brought up with her. She responded to the 4 points specifically detailed in the letter as follows : · She had never stored matters on a private computer drive or said that she had done so, nor was she instructed or asked about this; · She had never been instructed not to take files home in her entire employment and she had not given incorrect information to the management regard this; · She had not been working from home in direct contradiction to the directions of management, such a direction had not been provided until 20 November 2009. 214 Ms Angelovska said that she did not know what files Ms Petrakis was referring to as having been removed from the office. She only had three hard copy files at home when she was suspended. They were not staff personnel files, funding submissions, or her own file. 215 Both Ms Petrakis and Ms Faraj indicated that it was during Ms Angelovska's absence on suspension that it was discovered that files had been removed. They were not in the filing cabinet so they assumed she must have removed them as she was the only person that had the key. 216 Ms Faraj went on to say that the staff had a good look at all other files to locate the funding files that were of concern. Ms Faraj also indicated that this arose in the capacity of continuing with the work in her absence. Mr Dangas was in the Acting Manager's position and he was instructed to follow through on some of the things that she had not completed like giving the staff access to budgets and their program descriptions so they could carry on their work. The expectation was that he would need to do work as it came through in terms of funding submissions, reporting back to funding bodies and the like. In doing his work this was how it was discovered that this information was missing. 217 Ms Faraj also said that she had made the assumption that if a document wasn't at the office then Ms Angelovska had removed it. She didn't know whether she had removed them. She didn't have permission to remove the documents. She said she was just informed that there were files missing and she assumed that Ms Angelovska had all the files that were missing. She also indicated that she had not seen the files since they had been returned. 218 Ms Angelovska said that she was never specifically asked about missing files. She had authorisation to take files home at her discretion over the last five years that she was working there. She did not have her own personnel file, it should be in the admin. reception filing cabinet where all the other staff files were kept. 219 She also said that she would not be surprised that files could not be found as she was never asked to hand over or show people where things were when she was suspended. 220 She also had a USB which had electronic copies of files from SGYS. The files on the USB were all on the SGYS computer. The USB was a backup of the C drive of the Manager's computer, which had all of the files that the Manager was working on, on a day-to-day basis. They were a variety of documents, original files were on the computer at the workplace. The USB basically had some of those files as a backup, so they could be things that she worked on at home. 221 She indicated that when she was terminated she had three files in her possession (that were subsequently returned to SGYS via the ASU). They were three files which related to the support that she had been providing to 3 different staff members. She agreed that those files related to staff performance and staff supervision, but she did not consider that they were the same type of staff files referred to in the policy. She also had an electronic USB which she returned through the ASU. 222 The return of the hard copy files was being discussed as part of the settlement of her unfair dismissal case, however those discussions did not lead to a settlement. She understood that the Union had now returned both the files and the USB. 223 At the time of her suspension she did not get any chance to return any files. She was the one who brought up, in her letter of 18 December, that she currently had files with her because there was no chance for her to return them due to her suspension and the way she was suspended. She had always wanted to return those files, there was no reason for her to keep them. She had thought that she was going to be returning to work, had faith that that was going to be happening and that this was all some misunderstanding that would be cleared up and she would return to work and return the files, but she did not get asked to do that until later. 224 In cross-examination she was referred to an extract of the SGYS Policies and Procedures Manual - "Staff Files" (see Background and Chronology above), but said that that was part of the induction and orientation policies for new staff. She believed that that the 'staff files' that this policy referred to were the staff files that were kept permanently in the administration filing cabinet and they did not get removed out of the office at all. 225 She said that they were individual staff files that were commenced when an employee started. They contained the employee record form, tax declaration, their appointment letter and things like that from when they first started. Leave applications were just filed with timesheets and they were not kept in those files. She had different files for performance appraisals and those were kept in the Manager's filing cabinet. There were also other staff who would keep the relevant performance appraisals of the staff they were supervising. 226 Ms Angelovska considered the reasons given for her dismissal to be unfair, unjust and unreasonable. She had adequately addressed the concerns contained in the 15 December letter from Ms Petrakis via her letter of response of 18 December. She considered that the Committee did not consider this response in deciding to dismiss her and that it was unfair that new allegations were added to the dismissal letter for the first time without providing her with a chance to address them prior to her dismissal. She was also not provided with the alleged evidence relied on in relation to the allegations concerning her involvement with MAWA prior to her dismissal. 227 Ms Angelovska said in cross examination that she was not provided with the specific evidence referred to in the letter of termination. She was not given the actual copies of the tender documents that were being relied on. She acknowledged that she did not ask for a copy at that point because she thought it would be adequate to say what was true. What she said was that she did not copy and amend tenders and that was a true answer. General allegations concerning Ms Angelovska's involvement with MAWA 228 Ms Petrakis deposed that the Management Committee had not been aware that Ms Angelovska was using SGYS resources to support MAWA and permission was not given to her to do so. Her actions were in conflict with the organisation's Policy and Procedures Manual which included policies around removal of files, code of conduct around conflict of interest and using organisational resources for personal gain. 229 Ms Petrakis said that at no time did Ms Angelovska come to the Committee and explain her role in MAWA. They asked her to explain that on the 20 November 2009 and not before then because they were unaware of her involvement. If they had been aware they would have asked her. They would then have made an assessment on how much time was required and whether they would have allowed Ms Angelovska to participate in that. They would determine conflict-of-interest and they would certainly require accountability and would certainly not have allowed her to submit tenders for competing money. 230 Ms Petrakis indicated that she herself was on the committee of a community organisation but had approval from her current employer for that. She was also aware of another staff member with an outside role and the Committee was informed of that role and the person requested permission from Ms Angelovska and she notified the Management Committee for final approval. 231 Ms Petrakis said that she had never spoken to Mr D'Astoli about either Ms Angelovska's working conditions or the issue of having approval to do MAWA work. The first time she spoke to Mr D'Astoli was in October 2009 and that was in direct relation to supporting them by providing them with copies of previous submissions so they could access them on site. At that time there was no discussion about prior approval or MAWA. 232 She also agreed that they did not look at the minutes of any Committee meetings prior to 2007. She was not aware of whether those minutes were still on the premises at SGYS. 233 Ms Faraj indicated that she was aware that Ms Angelovska was on the MAWA committee in a volunteer capacity in her own time. In relation to the evidence given by Mr D'Astoli that permission had been given by the Committee of Management prior to her being on the Committee, she did not make any enquiries of previous Committees to find out whether she had permission to do that work during the day. When it came to their attention and they asked if she was, she said she was not using work time or resources to work for MAWA. 234 Ms Faraj said that she was not suggesting that Ms Angelovska went to MAWA meetings during work time but was suggesting that she did work for MAWA during work time. That was based on the emails and the computer records that she had seen and also the staff who said that there were phone calls and there were meetings. 235 Ms Faraj said that she would not have been surprised if it had occurred in relation to SGYS and MAWA that there might have been instances where projects occurred where the two organisations worked together but there was nothing she could recall in that time she had been there. She would have read it in a report or she would have signed off on its submission or she would have read a funding application. To the best of her knowledge nothing happened specifically with MAWA. 236 Ms Faraj also gave evidence about her role on other committees of management and indicated that she had specific approval from her employer to do work for those organisations, she reported that, went out of her way to make them aware of it and every time she left the office, if she had to attend a meeting or whatever it might be in relation to the service that she was volunteering on or involved in, then her manager knew where she was. 237 During 2009 Ms Angelovska was on the management committee of MAWA and also the honorary Treasurer. 238 She deposed that she had had been "endorsed" to sit on and participate on the management committee of MAWA since 2001 and that the SGYS Committee was aware that even though she predominantly did this role in her own time, she did occasionally use SGYS time and resources for that role at her discretion. She further deposed that it was acknowledged by her employer that her role with MAWA would benefit St George Youth Services and thus she was allowed "to intersect" any occasions of this role in this way. The role had never been raised as a problem prior to December 2009 and she had never been instructed to cease the role. The first time her role on MAWA had been raised as a question was at the meeting of 20 November 2009. 239 Mr D'Astoli deposed that Ms Angelovska had worked hard to establish and maintain positive relationships and partnerships with other organisations in the St George area and beyond, and this included being a member of the board at MAWA. He maintained that this was a well accepted and mutually beneficial practice amongst agencies in the non-profit community sector. He also deposed that this was approved by the SGYS Management Committee which had been informed of Ms Angelovska's position. 240 He further deposed that other staff and Committee members at SGYS were involved in similar roles with other organisations, and indeed, often had secondary employment with other agencies, such as casual residential shifts at Southern Sydney Youth Refuge. He maintained that this was commonplace in the sector and the Management Committee allowed this to the extent that it did not undermine service provision or create conflicts of interest. 241 Mr D'Astoli deposed that he did not feel that Ms Angelovska's work at SGYS was unduly affected by her involvement with MAWA. It was acknowledged that there might be "occasional use" of SGYS' resources and time for this role. He believed that the Committee was satisfied that any use of such resources in this regard was no more significant than most employees would utilise for "reasonable personal use" such as private phone calls or limited use of the internet and email. 242 Ms Scobie was also aware, in her role as an Executive Committee member, that Ms Angelovska sat on the MAWA board. She also deposed that this was a common practice for staff working in the community sector and was viewed as an important part of networking, collaboration and professional development and resource sharing. She said that Ms Angelovska primarily did this volunteer work in her own time but due to her position as Secretary it was sometimes necessary to deal with things during work hours and utilise service resources 243 Ms Scobie further deposed that she was aware that some staff and Management Committee members of SGYS were also members of other management committees of community organisations in the local area. 244 Both Ms Petrakis and Ms Faraj deposed that since their time on the Management Committee, the Committee was not aware that Ms Angelovska was using SGYS' time and resources for the benefit of MAWA. No permission was given to her to use organisational resources to support MAWA. 245 Mr Dangas also confirmed his work with another community organisation during 2008 and 2009 which had the approval of SGYS via Ms Angelovska the Manager. He was also aware of other staff who were involved in holding positions on boards of other community sector organisations and also working part-time in other organisations. He acknowledged that it wasn't unusual for Ms Angelovska to hold a voluntary position on another board whilst she was the Manager of SGYS. 246 Mr Dangas deposed that during his employment at SGYS he became concerned with the regular phone calls made and taken by Ms Angelovska during work time regarding matters to do with MAWA. Other staff members had also often approached him about their concern regarding the frequency of her involvement with matters regarding MAWA during office work time. Both he and other staff became familiar with the names of the MAWA staff members due to the frequency of calls made to SGYS requesting that Ms Angelovska call them back. He also witnessed on numerous occasions where she would receive calls from a MAWA staff member and then spend prolonged time in another room discussing matters with that particular caller. 247 He maintained that he became concerned about the regular phone calls made and taken by Ms Angelovska during work time after about 6 to 8 months of commencing in his position. He acknowledged that he did not raise those concerns through a grievance procedure but said he had "an array of dialogue" with Ms Angelovska throughout the years and would have discussed what he'd written in his witness statement regarding MAWA with her. He did not at any point raise those concerns as a grievance. 248 Mr Dangas also said that he had had other people from the Migrant Resource Centre contact him and say that Ms Angelovska was there doing "some stuff upstairs" regarding MAWA. 249 He deposed that during his time as the Team Leader he often discussed these concerns with Ms Angelovska who would inform him that she dealt with MAWA matters after hours or took time off from SGYS to attend MAWA meetings. 250 He deposed that this raised further concerns for him as he was aware that she would often note on the whiteboard that she worked back late. He was concerned as it was only since October 2009 that the time sheets were monitored by a Board member. He became concerned that prior to that there was no accountability regarding her times or what she wrote on her time sheets. 251 Since becoming Acting Manager in December 2009 he had assessed her timesheets and had noticed that there were no records indicating any time spent on MAWA matters. He had contacted Management about her timesheets (and annexed those timesheets to his witness statement Exhibit 16-A). 252 Mr Dangas also received further concerns from staff regarding MAWA and a range of other issues about Ms Angelovska and expressed those concerns to the previous Chairperson, Mr D'Astoli, who also expressed his concerns. Little was done and he and the staff had concerns about their lack of exposure to the then Board of Management. 253 He acknowledged that there were regular staff meetings and that he attended those and that these sorts of concerns could be raised at a staff meeting, saying "in theory yes but in reality no". He maintained that the times when concerns were raised Ms Angelovska would pull him aside and say "I wish that you discussed these with me in a private matter and not within a staff meeting", given that he was the Team Leader and she was the Manager, he respected that hierarchy. 254 Mr D'Astoli did not accept Mr Dangas' assertion that staff did not have access to the Board. He recalled examples where Mr Dangas and various other staff members approached him directly about issues. Also the SGYS Policies and Procedures Manual outlined procedures about going to the Management Committee over the Manager's head if there were serious concerns. He gave an example of one such instance that had occurred. 255 Mr Dangas said that he and his staff became "disgruntled" and "felt at a loss" in dealing with these concerns especially when they were not allowed to attend Board meetings, plus Board Members' contact details were removed by Ms Angelovska who also informed all staff that any matters would need to go to her first before they went to the Board. 256 Mr Dangas subsequently discussed these concerns at the end of October 2009 with Ms Faraj who informed him that she would discuss his and the staff's concerns, (which also included the MAWA related matters) with the current Management Committee. 257 Ms Faraj confirmed that there were at least three or four staff members that mentioned that there were MAWA staff that met with Ms Angelovska at the Service. They said it was frequent and happening over a long period of time. They did not give any indication of the time that was involved and she did not ask them about that. She acknowledged that she did not know whether it was someone dropping in to say hello as they were passing or staying for half an hour or an hour. She would not be able to say accurately or what the nature of the meetings were. 258 During November 2009 Mr Dangas and the staff contacted the Management Committee and raised a number of grievances including the amount of time and resources Ms Angelovska was using to undertake work for MAWA. 259 Ms Roberto deposed that she had also previously worked at the St George Migrant Resource Centre (where MAWA is based) and was familiar with, and had contact with MAWA staff. 260 Part of her duties as Administration Officer at SGYS was to answer phone calls and "Meet and Greet". She deposed that over the five years of working for SGYS it always a concern to her as to the number of phone calls for Ms Angelovska from MAWA staff. She listed five Christian names of such staff with whom she was familiar. Ms Angelovska also received visits on SGYS premises from MAWA staff. She also deposed that on many, many occasions when she received calls from MAWA staff, Ms Angelovska would call them back, however this involved using the cordless phone and she would make the calls in a private room. Similarly when she received visitors from MAWA staff they would either be ushered into a private room or she would deal with them downstairs. 261 Ms Roberto deposed that, "either way it was MAWA matters on SGYS time". She was also aware that Ms Angelovska photocopied MAWA paperwork. She also observed her making visits to the St George Migrant Resource Centre during SGYS work time and her observation was that these visits usually occurred after several phone calls from MAWA. 262 She further deposed that she had considered raising the issue of her concerns about Ms Angelovska's "second job" with the Management Committee however she did not believe that was possible. She maintained that Ms Angelovska denied staff any direct line of contact with management. She had directed staff to make any complaints/grievances to her and then, if needed, she would bring it to management's attention. This was a very difficult situation especially as many of her grievances related to Ms Angelovska herself. Furthermore she deposed that she did not trust some of the earlier Management Committee members and was unsure of the "agendas" of some of the others. 263 Ms Nedelkovska deposed that on many occasions since she commenced with SGYS she had answered phone calls from MAWA staff wanting to speak to Ms Angelovska. (She gave the name of one of those persons) She was always under the impression that these phone calls related to Ms Angelovska's community work and her role with SGYS. 264 In 2007 Ms Angelovska and Ms Nedelkovska ran an information session targeting Macedonians who were parenting teenagers. This was a partnership between SGYS and MAWA. They both delivered the information session with MAWA translating the flyer and advertising the information session. 265 Ms Gravche deposed that around the middle of September 2009 she was told that Nicole Scobie (whom she knew as a consultant for SGYS) was working on a submission application for a Grant from the Drinkwise government initiative for MAWA. Ms Gravche had herself previously applied for this grant for SGYS, at around the same time as Ms Scobie was working on this initiative. 266 She also deposed that she was instructed by Ms Angelovska to help Ms Scobie with any information that she had from her own submission. Her contributions/help towards the submission was supplying Ms Scobie with cultural and ethno-specific information regarding the Macedonian culture for the purpose of the application, which was conducted on the premises of SGYS at around the same time (that is the middle of September 2009). Ms Scobie had also frequented their Service and was sharing/using Ms Gravche's computer. 267 Ms Scobie confirmed that she was contacted by Ms Angelovska in September 2009 regarding her interest and availability to undertake paid work for MAWA to write an application for funding under the Department of Health and Ageing. A decision still had to be made by their management committee however. Ms Scobie told her that she would be interested and that her contact details should be passed onto the MAWA Secretary. 268 She was subsequently contacted the following week by Dragana Bozinovski from MAWA to ask if she would be available and interested to do this submission and they spent some time discussing project ideas. However Ms Scobie maintained that the submission she was to work on was not the Drinkwise government initiative as stated by Ms Gravche. The submission she was writing for was the "National Binge Drinking Strategy - Community Level Initiative" funded by the Department of Health and Ageing. She was subsequently forwarded similar projects that MAWA had written in the past to provide her with requisite background information. 269 Three days later after this contact she met with Ms Bozinovzki at the St George Migrant Resource Centre to discuss the draft submission she had written and the attachments that were required. She also had a meeting that same day with Ms Gravche from SGYS to assist her with the community development project that she was currently working on. This was done as part of Ms Scobie's role with SGYS. Ms Gravche was aware that Ms Scobie was working on a submission for MAWA and offered her help if needed. She told her it was fine but that she may need some clarification on the 'culture of drinking' in the Macedonian community from another perspective, specifically regarding the 'homebrew' and whether that was the correct name. They discussed this issue for about 5 minutes. 270 Ms Scobie deposed that at no time was she ever aware that Ms Angelovska had asked Ms Gravche to assist her with that application for funding. 271 Ms Angelovska confirmed that the grant Ms Scobie was working on was a submission for funding from the Department of Health and Ageing. She denied instructing Ms Gravche to help Ms Scobie with information from her submission. She also denied instructing her to supply Ms Scobie with cultural and ethno-specific information concerning Macedonian culture nor to use the SGYS premises this purpose. 272 She deposed that Ms Gravche was not working on a submission for that same funding. The submission that she referred to was 'Drinkwise Australia - Building Safer Drinking Cultures Innovation Grants' and this was an alcohol industry-based initiative not a government initiative. Furthermore it was not undertaken around the same time as the MAWA submission worked on by Ms Scobie. Ms Gravche completed a draft submission for Drinkwise as per her instructions, prior to the deadline of 11 September 2009 and Ms Angelovska edited, completed and emailed the submission that same day to the funding body. 273 Mr D'Astoli deposed that during his 8 years experience he recalled that there were very few occasions where there was potential for competition between SGYS and another local agency for the same funding opportunity. In these events the issue was discussed by the SGYS Management Committee with a view to negotiating a collaborative or mutually agreeable approach. Of those few occasions he could not recall any that resulted in an unsatisfactory outcome for SGYS. 274 Ms Angelovska deposed that she was never advised of the concerns expressed by Mr Dangas, Ms Pedone, Ms Roberto, Ms Nedelkovska or Ms Gravche about her involvement with MAWA. She did not believe the calls made to her from MAWA were of a continuous high-frequency as alleged and she told them on many occasions not to contact her whilst at work unless it was an emergency. However there were times when they did still contact her or attempt to contact her. She was never informed by either Ms Pedone or Mr Dangas of any "continued interruptions" regarding these calls. She would most often make calls to MAWA either on her break, during time-in-lieu or in her other own time. 275 She rejected the claim that she denied any staff any direct line of contact with Management. She said that Ms Roberto had contact with various Management Committee members when she would "meet and greet" them when they came for meetings or when she would take calls from them. Ms Roberto was also the staff member who updated the SGYS telephone number directory which included Management Committee contacts. Ms Angelovska had also distributed this directory to all staff in 2009 after it was updated and kept a copy on her desk for regular usage. 276 Further, staff should have been aware that any complaint about her could be made directly to the Committee in line with the SGYS grievance policy. The policy manual was provided to each staff member to read at the commencement of their employment and ask questions, and the process was communicated to staff in other ways from time to time. 277 Ms Roberto also deposed that she was aware that Ms Vo was involved with MAWA matters and when Ms Angelovska was not available to take phone calls from MAWA staff they would often ask if Phuong was available and she took the calls. She did not notice this in her earlier working days but was very aware of it during 2009. 278 Ms Angelovska deposed that due to Ms Vo's hours of work she would generally accumulate time in lieu each week of about 2.5 hours unless she adjusted her hours during the week. Additionally she was often required to work extra hours due to her bookkeeping role and was also more flexible across the five days' work. Ms Roberto was strictly administration/reception with set hours (9:30 am to 5 pm) and on set days (2 days). 279 Ms Angelovska also indicated that the address of MAWA was Level 1, 552 Princes Highway Rockdale and that the address of the St George Migrant Resource Centre was on the Ground floor, 552 Princes Highway. There were many occasions when she went to the St George Migrant Resource Centre, for example a two-hour meeting on a monthly basis for the St George Multicultural Network. That was part of her networking role as Manager of SGYS. She would be downstairs in a meeting with 30 other people. She was there for a purpose, the meeting and then she went back to the office, she rarely went upstairs to the MAWA office. 280 Ms Vo's evidence was that she did her work for MAWA as a casual only on the weekends and because she had a full-time job at SGYS sometimes she would organise to come in, in the morning, at seven o'clock. She was the Bookkeeper and she wrote cheques and they paid the payroll for the staff which was a very small organisation. She would go to the MAWA office and use the MAWA computer. She never did work on the SGYS computer that was MAWA work. 281 She also indicated that no one from MAWA came to the office to ask her questions about finances for MAWA during work time. Once or twice they did come to the office to get one of the cheques signed and then they took that to Ms Angelovska. They would hold the cheque at the MAWA office and bring it to Ms Angelovska to sign because at that time there was no one else available and staff needed to be paid so she would just have to come and sign a cheque and they would go and it would just take a couple of minutes. This did not happen often. She went on to indicate that during the two year period she worked for MAWA she believed that this only happened around three or four times. 282 She also did reception work for SGYS because that task was in conjunction with her bookkeeping tasks. She arranged meetings for people who visited SGYS. She had also arranged meetings for MAWA committee people in the past. There had been a project where they had used the SGYS hall so she charged them. They needed a room to hire so she charged them but they did not come to meet with Ms Angelovska they just came to use the SGYS room for two hours. They booked a room for a short period maybe for a few months and that was it. 283 Ms Vo did not think her work with MAWA was in conflict with the work she did with SGYS because she never intended to do MAWA work during her hours at SGYS because she worked for them on the weekend. 284 She left MAWA because after this incident because the Acting Manager said to her that it was not really convenient or good for her so she had better stop, so she resigned. She did not want staff to think that she had anything to do with MAWA because of these things happening at that moment so she resigned. 285 This happened some time in January because of what was happening with Ms Angelovska and because she worked at SGYS and also worked casually from MAWA she thought it affected her and the SGYS staff excluded her because they knew she was still with MAWA. She felt uncomfortable and she went to see Mr Dangas and said she didn't know what to do and felt in an awkward position. She asked him for an opinion and he advised her that the best way was that she not work for MAWA and so she resigned and sent an email to MAWA. 286 The current Committee were aware that she worked for MAWA, they approached her on 20 November last year and she told them that she worked at MAWA. No one ever asked her anything and she didn't say anything. 287 Ms Faraj also gave evidence of being involved in the process of examining Ms Angelovska's computer. This occurred on the first day when she left the office on 4 December. It was subsequently brought to her attention by Mr Dangas that there were MAWA files on the computer and that he could not find other documents relevant to the Service on the computer. She saw the files on the computer but did not go through the pages of what was in them. She also saw the hard copies as well as the hard copies of the emails sometime in December. 288 Mr Dangas indicated that when he was asked to step up to the acting position he had access to the computer and because there was no handover for him at all and he needed to run the Service he was obviously searching through the computer to find funding agreements just to orientate himself with what needed to be done. 289 He said that he showed Ms Petrakis and Ms Faraj the documents on the computer screen in the December period. That particular evening he was asked to stay back and the computer person came and changed the passwords and that was when they noticed that all this information was on the computer. Prior to that he had never sat at the computer or had access to it. After the Board were aware that there was this extra information on the computer they asked him to print that out. Specific allegations concerning Ms Angelovska's involvement with MAWA 290 Mr Dangas deposed that he was certain that Ms Angelovska was performing a significant amount of work for MAWA using SGYS resources during time when she was supposed to be working for SGYS and said that the documents provided (as attached to his witness statement) confirmed this. 291 He said that these documents were printed out in January/February 2010 at the request of the Committee of Management. He went on to indicate that he did not have IT qualifications or any particular expertise that would assist him with the creation dates that appeared in the various documents and was "pretty average". 292 He went on to say that that the two members of the Board, Ms Faraj and Petrakis, were basically asking him if he could actually collate that information. That happened over a number of meetings and there were a number of times when he provided and printed out different documents. He was also asked to photocopy the time sheets of a particular period. He did not recall printing anything off in December. 293 Ms Angelovska deposed that she had not seen any of that documentation prior to her dismissal and that the first time she did see any of the documentation was when she read Mr Dangas' witness statement. 294 She acknowledged that she had on her work computer files that were marked "MAWA", including finance records and records of funding submissions. She could not remember exactly what was in that folder and did not know how many files there were in the folder. She did not believe that there were over 500 as was suggested to her. She did not know how many pages were involved in those documents Mobile telephone text messages 295 Mr Dangas deposed that during Ms Angelovska's absence her work mobile was returned to SGYS and he continued to receive calls from MAWA staff. Those messages ceased once he changed the message on the mobile phone. He then searched the mobile phone text messages that were noted as received and sent and found that they displayed at least 200 messages relating to MAWA and non-SGYS matters. He considered that a large number of these texts were of an inappropriate personal nature. He typed up a list of those text messages around March, early April in the form of the spreadsheets attached to his witness statement (Exhibit 16-H1 and H2). 296 Mr Slevin on behalf of Ms Angelovska objected to the tender of those annexures. 297 No allegations had been raised at any time in relation to the dismissal of Ms Angelovska concerning her private use of the mobile telephone provided by SGYS. The Commission therefore ruled that the parties should confer and determine which text messages were of a private and personal nature and which concerned staff from MAWA. Only those text messages that emanated to and from MAWA staff would be admitted as evidence and text messages of a private and personal nature were not relevant and would not be admitted. 298 As a consequence of that ruling an agreement was reached between the parties concerning the relevant messages and the following list was admitted into evidence (Exhibit 17). Text messages from MAWA numbers (Exhibit 16-H1) 25/11/09 19.37 25/11/09 19.06 20/11/09 8.29 26/10/09 19.22 4/9/09 14.21 3/9/09 14.10 9/8/09 20.07 22/6/09 19.05 Text messages to MAWA numbers (Exhibit 16-H2) 25/11/09 7.11 pm 25/11/09 6.53 pm 25/11/09 5.28 pm 16/11/09 4.37 pm 16/11/09 4.32 pm 26/10/09 6.47 pm 26/10/09 6.47 pm Emails sent to and from MAWA 299 Mr Dangas also deposed that he discovered a number of emails on Ms Angelovska's computer relating to MAWA. On accessing those emails it was evident to him that Ms Angelovska was doing this during work time. He attached copies of those emails to his witness statement (Exhibit 16-G). 300 Ms Angelovska was not aware of any email or Internet policy of SGYS which permitted management to look at an employee's email account. As Manager she did not, and would never, read the emails of employees without having their permission. 301 She was not shown any of the emails that Mr Dangas had annexed to his witness statement before she was dismissed. If she had been she would have explained that a number of the emails referred to were done as part of her SGYS role. Other emails were initiated to her by MAWA where she had made no reply and only a couple were brief emails that she sent to MAWA. She had also stated on two of those emails to MAWA not to use the SGYS email for MAWA correspondence and to email her instead at the MAWA email address. If a document was created by MAWA staff and emailed to her than her usual practice was to save that to the SGYS computer and then save it on a USB so that she could take it home to work on. 302 Ms Angelovska was taken to certain emails (9 November 2009 3:12 PM), she indicated that it was an email from Tatjana who was the manager of MAWA. She would have read the email as it was a quick email to read but couldn't remember what she did with it afterwards. Someone sent the email to her Manager's email address. There were very occasionally emails sent to the Manager's email address because she did have a MAWA address so there weren't many occasions for people to send her emails. There were a few emails sent whilst she had been on annual leave in October and for some reason at that time she got a couple of emails sent from MAWA to the Manager's email address. 303 She said that it was easier to send a two-second email to her MAWA email address, when someone had already sent that email to her Manager's email address. She just forwarded it to herself at MAWA. She had told people at MAWA not to send emails or text messages to her SGYS account or phone but they still did that at various times especially when there were urgent things going on and people were panicking. That was the same when people would call her at the office when there were emergencies on. 304 She went on to say that if she got an urgent enquiry from MAWA to do something, she addressed it urgently if she had the time and wasn't doing anything else and it was something quick. She was not able to establish whether or not she did it in time that she recorded on her time sheets as time worked for SGYS as she did not have access to those records. She mostly used the MAWA email address and forwarded it to that so she could access it from her home computer. 305 She acknowledged that she could have on her home computer the records of whatever it was that the computer had received/sent relating to MAWA and that even if it had been deleted it would be retrievable. She could have had a computer expert look at her home computer and she could have refuted these issues and she had had six months to do so. She acknowledged this, but said that she did not think that it was a big deal because it was a small number of emails that were sent to her work email address and most of them were forwarded straight away to her MAWA email address without her spending any time on them. 306 Ms Angelovska also indicated that a number of the emails supplied (those listed in Exhibit 16-G from 2006) were in relation to the Macedonian Women's Health Project. It was the South Eastern Sydney Area Health Service (one of the SGYS funding bodies) who was running the project, and they asked her to sit on that committee as the SGYS Manager and to represent young people on the committee. There were bi-monthly meetings and she was on the advisory committee. There were also MAWA staff on that advisory committee as well because it was a Macedonian women's health project. She sought, and was given approval from the Committee of Management to sit on the committee. It was reported in the minutes of meetings of the Management Committee at the time that she had approval. MAWA Documents on Ms Angelovska's SGYS computer 307 Mr Dangas deposed that when he took on the Acting Manager's position he had access to the Manager's computer and noticed a "high volume" of MAWA files which also included large funding submissions and when he did a properties check he noted that it was done during work time. He annexed a copy of the computer printout of the overview of those documents to his witness statement (Exhibit 16-B). 308 In cross-examination Mr Dangas was taken in some detail through the various documents/computerprintouts attached to his witness statement. He indicated that in relation to his knowledge about the words, "create", "modified" and "access," in the dialogue box shown on various documents, that "created" would have been when that file was actually created, which was the date. He understood that to mean when it was opened or put together onto the computer or when it was sent and actually saved on the computer. He was not sure whether that could either be when it was first made or when it was downloaded from an email as his computer knowledge within the workplace was quite limited compared to other staff members. 309 He was also taken through a range of documents and could not explain those documents where the created date/time appeared to be earlier than the modified time, as he said had limited computer skills. 310 He also indicated that whilst he had seen the actual files on the computer he had not gone through and opened every file. He also acknowledged that there were some files that suggested they were created on 4 December 2009 but last modified on a date in 2006. He explained that they were "recovered files". They were files that were actually deleted off the current computer system from what he could recall, and on request from the Board to actually recover the files this was what actually came up. He could not recall how many there were, there were ones that were recovered and others still on the system. Whilst he saw the files he did not access them until 20 April 2010. 311 Mr Dangas was taken to one of the "recovered files" (Exhibit 16-E1) which concerned Supervision Notes of a meeting between Ms Angelovska and a MAWA employee on 5 January 2006. He said that he assumed that if it was on the computer that somehow this was typed up and put on the computer but he couldn't say whether it was typed up in that timeframe, he didn't know, it was just information that he found. 312 A number of other specific MAWA documents were dealt with during the course of the evidence as set out below. 1. Similar funding applications for Community Development Funds 313 Mr Dangas deposed that two of the files concerned funding application for Community Development Funds which seemed to him to be remarkably similar and appeared to be copies of each other (Exhibit 16-C). He went on to acknowledge in cross examination that he was not suggesting that all that had been done was simply changing the name of the organisation and putting in the same funding application, he was not saying that all of it was identical. 314 Ms Angelovska denied that the funding applications were copies of each other and said that they were from 2006. As an experienced funding submission writer of over 20 years she was aware that funding bodies typically used the same pro-forma for a grants application and they asked the same questions to be answered of any applicant. She deposed that that explained the similar format of the documents. 315 Ms Angelovska indicated in cross examination that the Community Fund application form came from Rockdale Council and was a standard form that all organisations used. The headings and questions were standard and most times they had a word limit as well, usually one could not go outside of the boxes very much, so the length of space would be the same for everyone. 316 When taken to a comparison between the two documents and the actual wording she was asked whether she thought that they were .. "in all respects the same except for the number of services", she responded that she did not consider they were the same, they referred to different groups. Her name and contact were there because she was on the board (of MAWA). She thought that having the phone number there was a mistake that she made because there was a phone number at MAWA but because she was at work all the time that was the common phone number that she used. 317 She acknowledged that the applications were for the same funds but did not believe that the MAWA application was in direct competition to the SGYS application because MAWA had been in existence for many more years than SGYS and they had been getting funds from Rockdale Council prior to SGYS obtaining funds. The organisations were not seeking the funds for the same type of service. 318 She went on to indicate that they were both different types of services that they were seeking to provide in the funding proposals. One was of a research project specifically for Macedonian families and young people to print a research project, and the SGYS one was to provide group work activities for disadvantaged young people from all cultures who were at risk of dropping out of school. 319 She acknowledged that both tenders were looking for funding for youth from the one bucket of money. However she did not believe they were competing for the same funds, although it was from the same pool of money, because both of the organisations had been obtaining funds from Rockdale Council each year. 320 She acknowledged that she did put in an application for funds for SGYS from the same fund that she put in a competing application for MAWA but did not agree that they were competing applications because the funding body looked at organisations separately and they looked at ethnic specific services differently to youth organisations. 2. - MAWA Funding application 321 Mr Dangas deposed that a further application from MAWA for a grant to Kogarah Council was found dated 27/08/09 at 4:25 PM (Exhibit 16-D) 322 Ms Angelovska deposed that she did recognise this particular document as a MAWA funding submission however she did not believe that it was on her computer as a Word document because it had her signature on it at page 7. As a committee member for MAWA she did review funding submissions. She could not recall when she reviewed this document but estimated that it would only taken her 10 or 15 minutes to do so. 323 Ms Angelovska acknowledged that the date of the document indicating when it was modified was a date at which time she was engaged by SGYS. She did not believe she was working on it because she only took a half-hour lunch break that date and she would not have worked on it unless she worked on it during that half-hour. She took lunch really late. That was the same position in relation to two other documents to which she was referred. 324 Ms Angelovska indicated that she understood that the reference to "created" in the document meant the day that it was saved as a file or created as a file. The specific reference to the date and time of day she understood to mean when it was re-saved or modified in any way. 325 She agreed that she may have completed some submissions for MAWA and stored them on SGYS computers. 3. - 2008/2009 Work plan - MAWA staff member 326 Mr Dangas deposed that there was also a very large document on the computer relating to the supervision and work plan for a MAWA employee (Exhibit 16-E2) which indicated in the properties check dialogue box: Created: Friday, 4 December 2009, 5:20:31 PM Modified: Thursday, 30 July 2009, 1:39:10 p.m. Accessed: today, 20 April 2010, 1:03:14 PM 327 He believed this document was done by Ms Angelovska during work time at SGYS. 328 He acknowledged in cross examination that he could not say whether it was just typed up on the computer in that timeframe (30 July 2009 at 1:39), it was just information that he found. He assumed that the document had been created and typed on the SGYS computer by Ms Angelovska because the properties check showed that it was modified on Thursday, 20 July 2009. He acknowledged that it did not have a creation date, only a modified date and that if he had more computer knowledge he might be able to say what had happened and what had been the process. He also acknowledged that he just did not know whether this was a document that was downloaded from Ms Angelovska's email. 329 Ms Angelovska deposed that she could not recall that particular work programme. She sometimes reviewed that type of document in her role as a committee member for MAWA. The document was created by MAWA staff. If it had been sent to her email address then her usual practice was to save it to the SGYS computer, then save it onto her MAWA USB so that she could take it home to work on. 330 She indicated further in oral evidence that in relation to that particular plan the first two columns were already pre-filled in by the funding body and the staff member concerned filled in the third column. She was only sent the plan so that she could review that third column and that was what she did. She checked it and signed off on it. However she was unable to recall when she conducted that review. She did say that with something like this it would only have taken her to 10 or 15 minutes to review the third column so it could have been something that she did during the day if it was something urgent. She could do it during her lunch hour or her break because she had the discretion to take breaks whenever she wanted. 331 She did not mark that time worked as time worked for MAWA on her timesheet because any small amounts of things she did for MAWA she would do on her breaks, which was time in lieu, or her lunch break or after work hours, things like that the majority of the time. 332 She said that some of the documents she actually didn't work on, some of them would just be dumped on her C drive and she would put them on the USB, or email them to herself, to work on at home at night. The majority of the work for MAWA she actually did at night. SGYS were fully aware that she was doing this and approved of her doing it. 4. - MAWA financial records 333 Mr Dangas deposed that there were a number of financial records relating to MAWA found, including invoices, PAYG statements, BAS statements and other financial records. Those documents were dated 16/11/2009 at 11:43 am (Exhibit 16-F). 334 Ms Angelovska deposed that those financial records were sent to her by the MAWA bookkeeper in an email as one PDF file (the Zip file - Exhibit 6) as urgent questions were needed to be answered in preparation for the MAWA audit. Those documents were already completed as it was not her role as a MAWA management committee member to complete those financial records, she just needed to check and clarify them for the audit purposes. She saved this PDF file onto her C drive and then opened the email quickly to assess its urgency and then emailed it to her MAWA email address so that she could finalise what was required at night and out of hours. 335 She went on to say in oral evidence that at the time there was some urgency around these documents, the Auditor having some questions about their audit in preparing for their 12 month financial audit. These documents were prepared by the Bookkeeper and Accountant of MAWA and sent her to have a look at and for the management committee to answer some questions that the Auditor had about their audit at that time. She did recall that she conducted a review of those documents at home at night. 336 She also indicated in cross examination that she was not aware that there were 351 files in that Zip file as she did not open the file, those files were an attachment to the Zip file. This was also the first time she had seen the list of 351 files. 337 She further indicated that she may have had email evidence of sending it to herself as she had some extra documents in court and had printed out some MAWA e-mails from the other side. She had not put it in her statement because they had applied for a Summons for Production to try and get some of the documents she didn't have access to. She only found some later on the MAWA email address when she went looking for them. 338 She further clarified in oral evidence that it was actually an MYOB file that was zipped up and sent to her by the MAWA bookkeeper. It was a very big file and included all the financial records for 12 months because this was being used for the MAWA audit. That was the only way you could send an MYOB file. Because it was such a big file it had to be zipped up and was an attachment to the email. 339 She also said that could not open the file as she did not have MYOB on either her work or home computer and she had no need to open the file. The MYOB software for SGYS was on the SGYS' Bookkeepers computer. 340 She also confirmed that the MAWA Bookkeeper was in fact Ms Vo who was the same person who was the Bookkeeper for SGYS, and that at the time she sent the email she would have been working for SGYS. She did not know why Ms Vo sent the Zip file directly to her and not directly to the accountant. 341 The MAWA financial files were kept at the MAWA office and created by MAWA staff. Although Ms Angelovska was the MAWA Treasurer and had access to the financial files she did not actually do that much on a day to day basis. she mainly reviewed things or had discussions with people like the Bookkeeper, the Accountant and the Auditor. More was actually done at monthly meetings of the management committee than a volunteer Treasurer would do on a day to day basis in a community organisation. They had paid staff to do the work for them. 342 When she received the email at the St George email address she did not do anything else with it. She did not need to. She was not an MYOB specialist so there was no reason to open it. The only reason it was sent to her was so that she could then pass it on to the MAWA auditor with other instructions from the management committee about their audit and other documents that she needed to send the auditor. Which is what she did. Basically she needed to forward the whole zipped file to the auditor so the audit could be done based on those records. 343 Ms Angelovska's email record concerning that Zip file was also tendered in evidence (Exhibit 5). She received the email at 1.30 pm on 3 September. She had gone back and checked her records and she had actually been at a meeting in the morning at the Red Cross in the City so when she had come in and checked her emails she had found this email amongst the other ones. 344 She had attempted to open the email overnight, (during the course of the hearing) and she got the same menu indicating 351 files but when she attempted to open it, an error message popped up along the lines of not having the software. She printed out a screen shot of those attempts (Exhibit 6). 345 Ms Vo confirmed that all of the work she did for MAWA was done on the computer at the MAWA office. She did not have a computer at home and she did not ever do MAWA work on the SGYS computer. 346 She said that she sent the Zip file to Ms Angelovska because she was the Treasurer and MAWA had an audit and had to make decisions so they forwarded it to her and she forwarded it on to Ms Angelovska. 347 Sometimes it was more convenient to forward it to the SGYS email address. She did not do that often, only once or twice. She acknowledged that at the time she sent this email she was working her SGYS. She did it because she saw it and it needed to go to the decision maker during that time so she just forwarded the email and deleted it. Ms Angelovska did not ask her to forward it to her but because she was the Bookkeeper she knew she was the one that had to make the decisions so she forwarded to her. 348 Ms Vo was also taken to another of the listed emails (4/11/09 - 2.03.40 p.m.) and she explained that this concerned a new MAWA worker or the work hours that had been offered for MAWA employees. The manager of MAWA was not sure of the employee's pay rate or anything so she forwarded it to Ms Vo, however as she didn't make decisions about the rate or anything, she just opened it in her personal emails and forwarded it to Ms Angelovska for her to make a decision in her capacity as Treasurer of MAWA. She acknowledged that at the time she did that she was working for SGYS. 349 Ms Vo said that she could not access the MAWA email from SGYS. She also said that such emails only took a minute or two of her time and she didn't think it impacted on her work she still performed her normal tasks. She was aware that she should not do that but because it just took one or two minutes and she forwarded it to her as she did not think it was illegal or anything. 350 She acknowledged that she was not given permission by anyone at SGYS to do this sort of thing on behalf of MAWA during her work time and knew that she was not supposed to do that. She said that Ms Angelovska sometimes said to her that she should send it to her private email but Ms Vo just opened her email and saw it and thought it was just convenient to forward it to her at SGYS because it took only one or two seconds so she did that and went back to her normal tasks. Ms Angelovska also said to her to be aware that she still had to perform her work and don't do anything and she never did she only forwarded email. She also said Ms Angelovska said to her "don't do it in case other staff assume you're doing work for MAWA", but she never did that. Submissions on behalf of the Applicant 351 Mr Slevin on behalf of the ASU and Ms Angelovska made oral submissions in addition to the detailed written submissions as filed (Exhibit 18) and indicated that orders of reinstatement, lost remuneration and continuity of service were sought. 352 Mr Slevin detailed the relevant background and context to Ms Angelovska's employment at SGYS as well as her relevant experience and qualifications and in so doing took the Commission to the evidence relied upon. 353 It was submitted that during Ms Angelovska's employment she was highly regarded by the organisation and was not the subject of any warnings or other disciplinary action. This was confirmed by the evidence of Mr D'Astoli, the former Chairperson and Ms Scobie formerly on the Management Committee and who had also worked with her in various capacities during her employment period. A letter from the Executive of SYS in early 2006 also confirmed and acknowledged her work. The Chairperson's 2008 report also acknowledged her work: "very special thanks to the Service's Manager who 'kept it all together'. Valentina not only maintained the infrastructure and management of the service during a challenging time, but worked tirelessly to secure alternate premises." 354 Further the consultant's Report from the Strategic Planning Day in July 2009 included the following observations - "Highly skilled and committed manager". An assessment that Ms Faraj agreed with during cross examination. The Chairperson's 2009 report also included the following: Many of us are new members and it has been a steep learning curve. Thank you to both our Manager Valentina Angelovska, and all the staff for their flexibility, openness to change and hard work. 355 It was submitted that on the 22 December 2009, following correspondence with Ms Angelovska's Union in December about the suspension, she was summarily dismissed by the Committee of Management with the reason for the dismissal was given as serious and wilful misconduct. The Committee did not meet together to make the decision and the decision was made in a number of phone calls between Committee members. A process described by Ms Faraj, one of those members, during re-examination, as "unusual". Further the Committee did not meet with Ms Angelovska. 356 It was contended that her dismissal was harsh, unreasonable and unjust. Specifically it was: · unjust as she was not guilty of serious and wilful misconduct; · unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer; · unjust because the employer failed to follow its own disciplinary procedure; · unreasonable because the employer failed to give Ms Angelovska the details of allegations made against her or a proper opportunity to respond to them; and · harsh as the employer failed to take into account the consequences for her personal and economic situation. 357 Mr Slevin took the Commission to the relevant provisions of s.88 of the Act. He relied on Byrne v Australian Airlines (1995) 185 CLR 410 and the High Court's consideration of the meaning of the expression 'harsh, unjust or unreasonable'. 358 It was submitted that the principles applying to unfair dismissal proceedings in circumstances of alleged serious misconduct were summarised in the decision of Sams DP in New South Wales Fire Brigade Employees' Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440. The Commission's attention was drawn to the 4 questions posed by Sams DP in relation to a consideration of misconduct. Further, in Natoli Sams DP also indicated that the summary dismissal of an employee for misconduct could have serious and sometimes long term implications for an employee. 359 Mr Slevin contended that SGYS, the respondent in these proceedings, did not get over the first hurdle referred to in Natoli in that the conduct alleged against Ms Angelovska was not proven in the sense that it was not misconduct to do work for MAWA in circumstances where a Committee of Management had approved that such work be done. It appeared that the new Committee of Management challenged that approval but in doing so were not thorough in their investigations to discover even if the approval had been given before they moved to the serious step of summary dismissal. Ms Petrakis only looked at minutes back to 2007 for an employee who had been there since 2000 and did not make reference to Mr D'Astoli or others who could have provided her with information about that approval. She simply did not believe the Manager who told her prior to her dismissal that she had such approval. In those circumstances the respondent in this case did not get over that first hurdle. The misconduct alleged was simply not proven. 360 Mr Slevin relied on New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 as to the question of the requisite onus being on a respondent in a matter involving dismissal for serious misconduct. The standard of proof to be discharged was as set out in Briginshaw v Briginshaw (1938) 60 CLR 336 as applied by the Full Bench in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 361 Reliance was also placed on Franklins Ltd v Webb (1996) 72 IR 257 which indicated the importance of employers being fully satisfied that misconduct had been committed and that the conduct justified dismissal. Hill v the Department of Juvenile Justice [2000[ NSWIRComm 128 was also relied on in relation to the implications for an employee's future of a summary dismissal. 362 Reliance was also placed on the nature of the employment relationship as described in Day v Lumley Life (1999) 90 IR 70, as being a serious contractual relationship involving rights and obligations on both sides. It was a relationship not taken seriously by the Committee in dismissing Ms Angelovska. The Committee proceeded on the basis of assumption in relation to documents that they thought meant something but as Ms Petrakis conceded she may well have been mistaken about what they meant once the documents were examined, however she did not give Ms Angelovska the opportunity to explain those documents. 363 Mr Slevin outlined the chronology of events leading up to and including the dismissal of Ms Angelovska and in so doing highlighted the relevant evidence. The Commission was also taken in some detail to the various notes (both versions) of the meetings and the exchange of emails and correspondence. He also indicated that there were no minutes of these meetings which tended to suggest that they were not disciplinary meetings. Certainly any disciplinary meetings, if the manual was followed, were to be backed up by minutes. 364 Mr Slevin submitted that, regardless of any finding by the Commission as to the accuracy of Ms Petrakis' notes, on their face they did not indicate anything more than meetings to deal with day-to-day type issues. 365 It was contended that in cross examination both Ms Petrakis and Ms Faraj said the purpose of the suspension of Ms Angelovska on the 4 December was to give her some time away from the Centre to reflect on what she had done in the hope that she would apologise, however both witnesses conceded that she was never told this. 366 It appeared from the evidence of Mr Dangas, who was appointed Acting Manager, that there was an "ad hoc process" initiated as soon as the suspension occurred and occurring over December 2009, January, February March and April 2010 involving an inspections of the Ms Angelovska's computer, her email account and her mobile phone. In doing so documents relating to MAWA were discovered. Mr Dangas provided Ms Petrakis and Ms Faraj with these documents as they were requested but he could not say when documents were provided and in what form. 367 The ASU sought clarification and specifics of the reasons for the suspension (4 December) but the 15 December letter from Ms Petrakis did not respond to this request for particulars and raised four additional matters and required a response by 21 December 2009. 368 The Commission was taken to the ASU's correspondence in reply and Ms Angelovska's own written response to the Committee in some detail. 369 Over the weekend of 19 and 20 December 2009 there were a number of phone calls between the members of the Management Committee and these calls resulted in Ms Angelovska being dismissed by way of the letter of 21 December 2009 also forwarded to the ASU. 370 It was submitted that the reasons for dismissal were set out in the letter of termination, however Mr Godfrey representing SGYS, contended contrary to that letter, that the sole reason for the termination was the Ms Angelovska's involvement with MAWA and told the Commission that the matters raised before the suspension had nothing to do with the termination. 371 It was submitted that the details of the allegations about Ms Angelovska's involvement with MAWA were not raised with her prior to her dismissal. The first reference of any concern was raised in the "Items for Action" document provided to her on the 20 November 2009. She responded to this allegation before she was suspended by requesting details of the allegation. None were provided. 372 The allegation was made again, after Ms Angelovska was suspended, in the letter of 15 December 2009 and references were made in that letter to "evidence" that she had used SGYS time and resources to support MAWA and "evidence" that she had been copying and amending tenders written for SYS to submit on behalf of MAWA. The "evidence" relied upon was not supplied to Ms Angelovska. 373 It was submitted that Ms Angelovska did however respond by informing the Committee that she had been given permission to do work for MAWA by previous Committees. She also denied the allegation that she had been copying tenders. 374 In the termination letter the Committee's conclusions about the MAWA allegations were stated as: Point 3. While you may have informed the Board of Management that you were a volunteer with MWA, you were not given any approval to use work time and resources to support MWA. We have evidence including emails that clearly show that you have used St George Youth Services time and resources to conduct work for MWA. Point 4. Your comments in regard to MWA are not relevant to you taking and using documents which are clearly the legal property of St George Youth Services, and you had no authority to do so. Using SGYS documents by changing the name and details to MWA is clearly misappropriation of SGYS property. 375 It was submitted that it was not until the evidence was filed in these proceedings that any "evidence" about Ms Angelovska's role with MAWA was made available to her. The Commission was taken to that evidence which was summarised as being: · Print outs of computer screens showing documents which have MAWA in the title found on her work computer; · Community Development Fund submissions for SGYS and MAWA; · A funding application from MAWA to Kogarah Council; · A document which set out a work plan for a MAWA employee which was on the her computer; · Financial records relating to MAWA which were on the Applicant's SYS computer. (Annexure F to Mr Dangas' Affidavit) · Emails to and from MAWA which were sent or received on her SGYS email account; · Text messages on her SGYS work phone; and, · Evidence from staff members about observations they had made about the her phone contact and occasional personnel contact with MAWA staff and volunteers whilst at SGYS. 376 It was submitted that Ms Angelovska had responded to this evidence in her witness statement in reply in which she repeated her response from the letter of 18 December 2009 that she had had permission from the Committee to be involved in MAWA. So much was confirmed by Mr D'Astoli, the former long time chairperson of SGYS, and Ms Scobie. In her oral evidence Ms Petrakis gave evidence that she checked the minutes for confirmation of any permission, but only went back to 2007 and did not make reference to Mr D'Astoli or anyone else who could have provided her with information about that approval. 377 In relation to the "evidence" of Ms Angelovska's activity on behalf of MAWA it was submitted that that evidence did not substantiate the reasons given in the termination letter. There was no evidence before the Commission that would lead to a conclusion that she "was not given any approval to use work time and resources to support MWA". To the contrary the evidence was that she was given such approval. There was also no evidence to support the allegation that she was "using SGYS documents by changing the name and details to MWA" which was said to be "clearly misappropriation of SGYS property". 378 It was submitted that the print-outs of computer screens showing documents in a folder bearing the name MAWA were not probative of anything other than that at the time the print-outs were made the documents were on the computer. They did not show, as the allegation appeared to be, that Ms Angelovska was spending vast amounts of time using the SGYS computer to write documents and submissions on behalf of MAWA. This was conceded by Ms Petrakis in cross examination when she agreed that she was mistaken about what the print-outs meant. 379 It was submitted that the presence of MAWA documents on the SGYS computer was explained by Ms Angelovska who described her practice of saving documents that she was sent to the hard drive so that she could then email them to her MAWA email account which she accessed at home. Any work on those documents was done by her at her home. 380 Submissions were made in rebuttal about the specific documentation relied on by the respondent and in so doing the Commission taken to the relevant evidence, which may be summarised as follows: · The Community Development Fund submissions for SGS and MAWA did not demonstrate anything other than that submissions made funding bodies for moneys were made in a standard format. The substance of the two documents were completely different. It was only the format that was the same. · The presence of the funding application from MAWA to Kogarah Council on the SGYS computer was explained by Ms Angelovska's practice of saving documents she was sent onto the hard drive of the computer so that she could email them to her MAWA account to work on at home. · The presence of the document which set out a work plan for a MAWA employee was also explained by this practice. · Ms Angelovska explained that the MAWA financial records on the computer were documents contained in a ZIP file which she emailed to herself at home. The suggestion that she worked on these documents on the SGYS computer was also refuted by the fact that the majority of these files were MYOB files and that computer did not have the necessary software to open those files. · As to the emails to and from MAWA which were sent or received on Ms Angelovska's email account there were only 8 emails from MAWA addresses and only 9 emails to MAWA included in the bundle. The times they were sent was dealt with by Mr Slevin. It was noteworthy that in the email exchange on 17 November 2009 with Dragna Bozinovski, Ms Angelovska asked that her MAWA address be used for MAWA business. · Similarly there were very few text messages to MAWA people on her SGYS work phone. It was noteworthy that most of these messages were out of work hours. Further, the evidence was that Ms Angelovska's SGYS phone was provided as a benefit of employment and that she was permitted to use the phone for reasonable personal use. 381 It was submitted that the affidavits of the staff who deposed as to witnessing Ms Angelovska communicating with MAWA people during the day were vague and unreliable and some of those witnesses deposed as to the content of conversations made in other rooms. No evidence was provided of phone records that could give this evidence some specificity and reliability. Such records would be available to SGYS, but were neither sought or obtained prior to the dismissal. Further no such evidence had been provided to the Commission. 382 Mr Slevin also submitted that there was nothing in the evidence that could point to any form of structured investigation or process of discovery to determine exactly what the allegations of the staff were and whether they were made out or not. There was just a collection of conversations and complaints and grievance reports that had not been seen. Mr Dangas for the first time in oral evidence talked about grievance reports from staff members. It wasn't known which staff members or what the content of the grievance reports were and they were not put in evidence. Ms Angelovska did not know anything about them. 383 They demonstrated further the lack of procedural fairness, the lack of due regard paid by the Committee members to the serious endeavour upon which they embarked on in ultimately dismissing an employee with 10 years commendable service who had helped build up the organisation to the state that it was in. 384 It was contended that the employer drew inferences from the material that led to a conclusion that Ms Angelovska had inappropriately used SGYS resources to assist MAWA but those inferences were not available on the so called "evidence". None of the material presented lead to a conclusion that she did anything beyond what she was authorised to do by the former Committee. 385 Mr Slevin submitted in summary that the evidence did not make out the two allegations in the termination letter about Ms Angelovska's involvement with MAWA. The first allegation about not having approval to use work time and resources to support MAWA was not made out on the evidence of both Ms Angelovska and Mr D'Astoli, the former Chairperson. She did have authority and she did nothing that was outside the authority given. The second allegation about taking and using documents which were property of SGYS was also simply not made out. She did not take or use property or documents by changing the name and details to MWA. 386 It was also submitted that it was curious that an allegation would be made against a worker in the social and community services sector that they have done something wrong by being involved in a voluntary capacity with another organisation in the sector. It was noteworthy that every witness that gave evidence had some involvement in another organisation and sometimes spent time doing tasks associated with that other organisation during their working day. The allegation itself demonstrated a double standard by the Management Committee and unequal treatment of the Applicant vis a vis other employees. 387 Whilst it appeared during proceedings that the other two matters referred to in the termination letter had apparently been abandoned as reasons for the dismissal (Points 1 and 2), Mr Slevin pointed out that the evidence showed that the direction issued on the 20 November did not include a direction about taking organisational files home. Further Ms Angelovska had always returned files and there was no policy on removing organisational files. 388 It was also submitted in relation to the other allegation in the termination letter that the Ms Angelovska had acted contrary to the directions of her employer regarding working from home and storing matters on a private computer drive, that it was unclear what directions were referred to in that allegation. There was a direction in Ms Petrakis's notes of the 20 November meeting as set out in the 'Items for Action', concerning working from home and that was that she should not work from home after 23/11/09. There was no evidence that she had worked from home after this date. The evidence of Ms Angelovska, Mr D'Astoli and Ms Scobie was that she had authority from the Management Committee to work from home. 389 Mr Slevin further pointed out that SGYS also had a "Working from Home" policy and took the Commission to the relevant extract (Exhibit 3-MFI24-p.13). 390 The allegation of removing electronic copies of files was also raised in the letter of 15 December 2009 and Ms Angelovska responded in the 18 December explaining that: she was unaware of what files were being referred to; she had taken documents home to work on; and copies of all documents she had were on the Manager' computer at SGYS. 391 The question of the storage of files on an electronic drive was also explained in Ms Angelovska's oral evidence as being the means by which she would transport information to allow her to work at home. This was consistent with evidence of Mr D'Astoli that working from home became more efficient with the advancement of office technology. 392 Mr Slevin submitted that the attempts by the employer during the proceedings to suggest that there was some breach of SGYS policy and procedures was misplaced. There were no particulars nor evidence of such a breach and there was nothing done by Ms Angelovska that could be said to have contravened the SGYS policies. 393 The two suggested breaches were summarised as follows: · Taking documents away from the SGYS Office which was said to be in contravention of the procedures relating to induction and orientation. However whilst the Induction & Orientation Policy refers to documents not being removed, those documents were of a specific class - staff files. The Commission was then taken to the relevant extract of the Policy. Ms Angelovska explained in her evidence that she had three files at the time of her suspension, they were not staff personnel files and they were returned by the ASU. · Breaching the Code of Ethics. Again no particulars are given of the breach and there is nothing in the evidence that would suggest that Ms Angelovska did anything in contravention of that policy. 394 In summary it was submitted that, based on the evidence, it had not been established that Ms Angelovska was guilty of the alleged serious and wilful misconduct. Consequently, the dismissal was unjust. 395 Mr Slevin also made submission about procedural fairness and took the Commission in some detail to the SGYS Grievance & Disciplinary Procedure, as referred to in Ms Angelovska's contract of employment and in particular 'Step 6 – Termination', as well as the provisions relating to summary dismissal. 396 It was submitted that it was quite clear from the evidence that this procedure was not followed when Ms Angelovska was terminated and so much was conceded by Ms Petrakis and Ms Faraj in cross examination. Thus it was unjust for the employer to act contrary to its procedures and contrary to the Ms Angelovska's contract of employment. 397 Further it was raised for the first time by Mr Dangas in his evidence that there were Grievance reports provided by staff members during December 2009 concerning Ms Angelovska. However he did not say how many or what they were about and confirmed that they were not raised with the her. The SGYS Policy manual included a Grievance procedure and that policy was not followed either. 398 In relation to procedural fairness reliance was placed on the principle enunciated in Byrne v Australian Airlines (1995) 185 CLR 410. This principle is expressed in s.88(b) of the Act and has also been considered by Full Benches of the Commission (see particularly Antonakopoulos v State Bank of NSW (1999) 91 IR 385). 399 It was submitted that Antonakopoulos was particularly apposite in the present case. Ms Angelovska was not given the opportunity to see the evidence against her in relation to the allegation about her work for MAWA and had she been given that chance she could have provided the explanations that she provided in these proceedings. There were innocent and appropriate explanations for the perceived misconduct. Some of which were foreshadowed in the correspondence of 18 December 2009. The full explanations could have been given if full particulars and evidence of the allegations had been provided. It was unreasonable for the employer to act as it did. 400 Mr Slevin also submitted that the dismissal was harsh on the basis that Ms Angelovska had worked at SGYS for 10 years; she had worked with the Management Committee to build the service from a $600 per annum operation to an organisation with a budget of over $800,000 and was a very committed employee. To be treated in the way she was treated being accused of serious and wilful misconduct and denied the opportunity to properly respond to allegations was harsh. 401 Mr Slevin took the Commission to the relevant provisions of the Act in relation to reinstatement and relied on the following authorities on the issue of reinstatement as the primary remedy, see Little v Commissioner of Police (No 2) (2002) 112 IR 212; Riley v Workcover Authority [2006] NSWIRComm 108 Plummer v Stannard Bros Launch Service (2005) 145 IR 111, and Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288. 402 Reliance was also placed on decisions of the Commission as currently constituted in Harley Bell v Linfox [2006] NSWIRComm 1025, Janaki Kasippillai and St Joseph's Village Limited [2006] NSWIRComm 1069, Sharma v Sydney South West Area Health Service [2006] NSWIRComm 1157 and Australian Services Union of N.S.W. v Sydney Water Corporation [2008] NSWIRComm 1064 where in each case it was found that the misconduct alleged did not take place and that in those circumstances to not order reinstatement would be to visit further injustice on the applicant/s concerned. 403 It was submitted that the reasoning in those cases applied equally to the current case. Allegations of misconduct were made against Ms Angelovska and the serious sanction of summary dismissal used. Her reputation had suffered with her dismissal being reported in a local newspaper and the newspaper story appears on the website for the paper and was a prominent search result for internet searches using her name. If left to stand unchallenged then these allegations will hamper her future employment prospects. 404 In conclusion it was submitted that the allegations made against Ms Angelovska were unsubstantiated, SGYS failed to follow its own procedures in dealing with those allegations and she was not provided with an opportunity to defend herself against them. A failure to reinstate would visit another injustice upon Ms Angelovska. 405 Mr Slevin sought specific orders as to reinstatement, continuity of service and payment of the amount she would have otherwise received had she not been dismissed less any other earnings received during the time from dismissal to reinstatement. Submissions on Behalf of the Respondent 406 Mr Godfrey, on behalf of SGYS, made oral submissions and in doing so took the Commission to the relevant evidence in support of those submissions 407 In opening Mr Godfrey submitted that this matter was about the events after the suspension of Ms Angelovska and the process of handling the termination, not matters that happened prior to her suspension. This matter had been portrayed as SGYS not pressing all, and in particular the first two, issues contained in the letters of termination from the Chairperson, Ms Petrakis. However SGYS terminated Ms Angelovska for all four reasons, this was clear on the evidence and the facts. 408 Whilst the events prior to the suspension of the Ms Angelovska on 4 December 2009 were not directly related to her subsequent termination it was submitted that they provided a clear insight into the operations of SGYS and the relationship between the Ms Angelovska, the Committee of Management and the staff. 409 Mr Godfrey summarised the first of the key elements relied upon by Ms Angelovska in later events as follows: i. She claimed that she had the approval of her employer in undertaking both the work from home and the work for MAWA. There was no evidence for this, other than vague, untested statements from Ms Angelovska, Mr D'Astoli and Ms Scobie. It would have been easy to provide documentary evidence of these claims, but none was produced and therefore no facts supported these statements. ii. Since the terms commenced of most of the current Committee of Management, there had been no information provided by her about this alleged approval, no reports about her activities and no requests for approval to undertake activities from home or from MAWA. iii. This compared with the related evidence of Ms Petrakis, Ms Faraj and Mr Dangas, all of whom either worked for other organisations or served on other committees of management in addition to their principal employment. Each of them, as loyal, committed employees, fully informed their respective employers on a regular basis, seeking clear permissions to undertake duties and to attend meetings for their other outside interests. They also provided reports on a regular basis to the primary employers. iv. This was in contrast to the actions of the allegedly loyal and diligent worker Ms Angelovska claimed to be. Since late 2007, in the time of its current Committee of Management, she did not fully inform her present employer; did not seek clear permission to undertake outside duties, and she did not provide regular reports on these activities. In fact, the opposite was the case. She did everything in her power to conceal these activities from her employer, using misinformation, dissembling and obstruction to avoid her being accountable. 410 It was submitted that these were not the actions of a loyal, committed employee and any positive statement made about her such as those referred to by Mr Slevin, were made in ignorance by SGYS. They did not know what was happening, so to say nice things about her was because they did not know otherwise. 411 It was submitted that in relation to the events of October and November, they were well reported and documented, albeit sometimes in conflicting versions. After nearly two years of attempting to fulfil their proper roles as the legal responsible party for SGYS, the Committee of Management was not getting any cooperation or information from Ms Angelovska and their patience was being tested. Any reasonable person looking at this process would see it for what it was. The employer, that is, the Committee of Management, was attempting to obtain from their principal employee information about the operations and activities of the organisation for which they, not Ms Anelovska was legally responsible and for which, if things were not being carried out properly, they would be held accountable. 412 It was submitted that these inquiries started in a very informal, and one could say friendly way, - as much as there was any goodwill between the parties. It has been rightly said that this was not a disciplinary process and was never intended by SGYS to be such a process. However, it soon became apparent that the "obstruction, disinformation, dissembling and misrepresentation" of the operations by Ms Angeloska would continue. 413 No answer to reasonable requests were forthcoming, no cooperation in providing information was given, and no open discussions were put forth by this allegedly loyal employee. 414 Mr Godrey submitted that there were two very clear examples of the attitude and obstruction of the Ms Angelovska and these are related specifically to the 'Items for Action' document as follows:. 1. Change in Hours of work; What would a normal, loyal and cooperative employee do in these circumstances? Such an employee would engage in discussions with their employer about the needs of the organisation, look objectively at what were the best hours to be worked to meet the needs of the organisation and see if changes might be needed and how to achieve these. But Ms Angelovska did none of these things, but the complete opposite. She attacked the Committee of Management, portraying it as an attack on her conditions of employment and rushed to seek advice. Her comment in her email response was a clear indication of her non cooperation with a reasonable request. This was not the action of a loyal and cooperative employee, but those of a person seeking to be uncooperative and obstructionist. 2. Request for a report on involvement with MAWA; This request was clarified by Ms Petrakis on 25 November 2009 as clearly a simple request for information. Again the reaction of the Ms Angelovska should be compared to those of other employees and it was not compatible with those you would expect from an employee. Instead of a cooperative and simple reply explaining her activities, which would be expected of any employee in response to her employer's reasonable request, she replied in her email seeking to have any allegations to put to her in writing with adequate detail to allow a response after seeking advice etc. Where did this response come from? Where was there any talk of allegations or details of concern? This was just a simple request for information. But knowing now that Ms Angelovska had sought to hide the reasons, then the response was clear. It was a continuation of the misinformation, of the obstruction, of the dissembling that she had engaged in for a long time. Again this was not the action expected from an employee, but those of one who was attempting to hide the facts from her employer and mislead them in relation to her activities. 415 It was submitted that after these final attempts to get Ms Angelovska to fulfil a principal role as the servant of her employer, the Management Committee's patience was stretched to the limit and they decided to suspend her from her duties to give her time to provide a proper and complete explanation of their concerns and directions. Little did they know or suspect what would then unfold. 416 The following was submitted in relation to the termination, the reasons for the termination and the process undertaken: · Firstly the Committee of Management appointed Mr Dangas as Acting manager on 4 December, immediately after the suspension of Ms Angelovska. This involved doing all the duties of the position of Manager, accessing the computer, emails and the phone relating to the Manager's position. It had been wrongly alleged that these items were the personal property of Ms Angelovska. This was not so. They were the property of SGYS and anyone who became or undertook the position of Manager of the Service had these items for their use and their duties. Everything concerned with them was the property of SGYS and not any individual. · The Acting Manager, Mr Dangas, rightly accessed these items and was surprised by what he found. It was his evidence that he found numerous computer files and emails which were relevant not to the activities of SGYS, but to those of MAWA. In addition, having access to the filing systems of SGYS, it was discovered that hard copy of files relating to staff were missing and that files and other electronic files were also missing and/or deleted. He reported his findings to the Committee of Management as any loyal and proper employee would do. 417 It was submitted that the Committee of Management rightly looked at these matters and decided that they must take action and they did so in their letter to the ASU of 15 December 2009 setting out the allegations against Ms Angelovska and requesting her to provide a response. The specific allegations were the four matters for which Ms Angelovska was dismissed: 1. Organisational files to which only she had access, including staff personnel files, had been removed from the organisation without authorisation; 2. Electronic copies of documents dating from 2008 onwards, which only she has access, had been removed from the organisation without authorisation; 3. Evidence that she had, during paid SGYS time, been working on matters on behalf of the MAWA including tracked correspondence that demonstrated using SGYS time and resources to support MAWA; 4. Evidence that she had been copying and amending tenders written for SGYS to submit on behalf of the MAWA, who are in direct competition with SGYS, such action a breach of her duty of fidelity to her employer. 418 A response was received from the ASU, attaching a detailed response from Ms Angelovska on 18 December 2009. The Committee of Management considered the responses and made a decision that they were inadequate and decided that they warranted termination for serious and wilful misconduct and advised Ms Angelovska of this in a letter of 21 December. 419 It was submitted that this was a reasonable decision based upon the facts and evidence when each allegation was looked at in turn as follows: Allegation 1 Ms Angelovksa admitted in her response to taking the files home, tried to justify this by saying she had approval and that there was no policy to say that she could not. This was untrue. It was clear from the policies and procedures of SGYS, that "Staff may have access to their own files, however no staff file or any file contents may be removed from the SYS offices". The statement that there was no policy was false and even if there was an alleged approval to do so from the former Committee of Management, which was disputed, such approval was contrary to the policy and procedure. Allegation 2 Ms Angelovska again admitted that the files in question were taken home and tried to rely on the same defence as in allegation 1. This response was also untrue. The relevant policy and procedure was that case documentation was not to be taken out of the Service's office without permission. Again reliance was placed on unsubstantiated evidence from long ago Committee members and not current Committee members and was dissembling at least, and, it was submitted in this matter, lying. Allegation 3 In Ms Angelovska's response, this allegation (using resources of SGYS for non-SGYS purposes without permission) was avoided entirely and she did not address the concerns of the Committee of Management. Once again the Committee of Management decided that this was probably untruthful and at the least misleading. Much has been made of the alleged lack of evidence provided to Ms Angelovska in support of this allegation. However a reasonable employee or her representative in other matters similar to this might have sought additional information and this would have been provided if such a request had been made or received. But in her and her Union's arrogance, they chose not to respond or, ask for additional information. Allegation 4 Ms Angelovska gave a flat response that this did not happen. The Committee of Management in looking at the documents in question did not believe her. Her later explanation was that the document in question had been sent to her by a MAWA employee for her to review. It was beyond belief that people with apparently no contact could use the same types of statement and language in supplying two totally unrelated matters. The question is why didn't this go to her private email or wasn't available on the MAWA email address, which was easily accessible by her from the Manager's computer. 420 It was submitted that the proof of the first two allegations was confirmed by the reference to the files being returned to the organisation by Ms Angelovska's Union. It could not be disputed that both hard copy and electronic files were taken and her witness statement confirmed this. This was one of the reasons why that matter was not pursued further. From the Committee's point of view the evidence, the acceptance of non-denial of having done it, did not require anything further. The allegation was put and confirmed, it was contrary to policy and the answer that was given about it being approved by policy was not true. 421 In relation to allegation 4, the Commission was taken in some detail to the similarities between the two documents referred to by Mr Godfrey. 422 Mr Godfrey refuted the claim that the termination of Ms Angelovska was not in line with the policy and procedures of SGYS in relation to summary dismissal, but this is not so. The relevant policy was outlined with three points referred to as follows: 1. Upon receiving a complaint of action warranting summary dismissal, the Manager or line manager must give the matter priority. Because as these were matters relating to the Manager, the next highest position above that did that action and the Committee did so. They gave the matter priority attention. 2. The issue of the employee stopping work and meeting with the Executive Committee as soon as possible was not practicable in the circumstances. It is clear that the Committee asked the employee to explain their side. There was no question of that. 3. Calling an urgent meeting of executive members to discuss the complaint and any action taken - It did not say how that meeting should be held and given the circumstances of the Committee, it was arguable that they conducted over the phone that urgent meeting and discussed the complaint and the action taken. So while the Committee did not follow it word for word, it could easily be argued that they did follow the intent of the policy. 423 It was submitted that what the Commission must consider is whether the process followed was a good and proper attempt to meet the requirements of the Act, taking into account the demands and the conditions on the organisations and its Committee of Management. 424 It was submitted that in looking at the process Ms Angelovska was advised of the allegations against her by letter, she was given an opportunity to respond and a response was received from both her and her Union. She was given/afforded the advice or assistance of her Union or support person as at all times the ASU was involved and in all letters and responses. In the opinion of the Committee of Management a valid reason for the termination was given, Ms Angelovska had lied to them, had misrepresented the facts and provided unsatisfactory answers. 425 It was submitted that what SGYS had been asked to expend on behalf of Ms Angelovska in this whole matter was a "gold plated five star version" of true and proper process, the sort of process one would expect from the HR Department of BHP Billiton, but this it not who we were dealing with. It had to be remembered that this organisation was a small community based not-for-profit organisation with a very small Committee of Management. That small Committee of Management in most cases had other things which took up their time in relation to employment and other activities. 426 It was also submitted in relation to process, that the evidence showed that subsequent events only went to substantiate the actions of Ms Angelovska and reinforce that the decision was based on facts and upon circumstances that taken together, reinforce that the decision to terminate was the correct one. Thousands of files and documents, numerous emails and text, all support the decision that she had acted against the intent and interest of her employer. 427 It was submitted that this Commission should find that Ms Angelovska was not dismissed in a harsh, unjust and unreasonable manner, but that the claim should be dismissed. 428 However should the Commission not agree with SGYS or decide that the "gold, five star" process was required and that SGYS did not meet these exceptionally high standards and find that Ms Angelovska was actually unfairly dismissed then the appropriate remedy would need to be considered. 429 Ms Angelovska sought reinstatement, but you only had to look closely at the relationship between her and the Committee of Management to see that this was not practicable. The relationship was full of distrust, unfaithfulness, misinformation and ill will, and it was not reasonable to make a decision in the belief that all will be forgiven and everybody will live happily ever after. In addition to the relationship between the Committee of Management and Ms Angelovska, then there was the relationship between herself and the other staff. The statements of the other four staff were uncontested and unchallenged as true. This indicated that this is and was a clear breach of trust and rapprochement between them and Ms Angelovska. 430 It was further submitted that in addition, there was mentioned - although not entered into evidence - grievances from all of these staff which would have to be addressed should she be reinstated. These grievances related to bullying, harassment and intimidation. Clearly a good working relationship would be difficult, if not impossible. All these matters made a decision to reinstate impracticable and should be discounted by the Commission. There was also mention of reinstatement addressing the question of the harm done to her reputation and this referred to the local press article which was allegedly an attack upon Ms Angelovska by the Committee of Management. There was no evidence and none was submitted. SGYS totally and wholeheartedly denied that this statement was either made, constructed or provided by SGYS, and one would look at the sources of this to determine where this prejudice came from. 431 The only other remedy available, if it was found that Ms Angelovska was unfairly dismissed, was compensation. It could be argued that a loyal, competent and long serving employee should receive a high level of compensation, but these were not the facts. She has been clearly shown by the evidence to be disloyal, untrustworthy, deceptive and clearly clinging to her imagined power. A compensation amount should take these factors into account if such is deemed appropriate, an amount of minimum compensation would be considered in the event of such a decision. But again it was emphasised that the right decision was to dismiss the claim, because the facts in the matter did not substantiate that this matter was harsh, unfair or unreasonable. Submissions in Reply on behalf of the Applicant 432 Mr Slevin submitted that Mr Godfrey had made a number of sweeping statements in response to the submissions made on behalf of Ms Angelovska about the unfairness of her termination. However any decision would have to be based on the evidence and the material before the Commission. In characterising that evidence in a number of areas, Mr Godfrey had exaggerated and misrepresented that evidence. It was not intended to go through the detail of it, the evidence was available for consideration. 433 It was submitted that the repeated suggestion that Ms Angelovska was being disloyal, distrustful, and concealing her activities from her employer were just not made out. Indeed the material showed that, when asked in particular about the activity with MAWA, she was up front and said that she was on the committee for MAWA and that she had permission to do the work for MAWA. That was borne out in each of the areas of the evidence where this was raised. The relevant evidence as to this was then detailed. 434 SGYS in its submission had urged the Commission to draw some inferences from her conduct. Those inferences were that the responses just described were somehow responses designed to hide her activities. 435 It was submitted that inferences could only be drawn by a court or tribunal based on facts. There were no facts in this case that would justify any inferences being drawn from the communications between Ms Angelovska and the SGYS about her involvement in MAWA that would give any indication that those responses did anything but frankly respond to the questions asked and certainly no inference could be drawn that those responses were designed to hide her activities. If her activities were somehow a continuing allegation about how much time she spent on MAWA work, then there was just no evidence before the Commission that she spent time on her MAWA work outside of the authorisations that she had. 436 There was some suggestion that there was no evidence that permission was given by the Committee of Management and that there was no document providing those permissions. It was agreed that it was the case that there was no documentary evidence. The documents are held by the respondent, SGYS. There was the evidence however, of Ms Angelovska, Mr D'Astoli and Ms Scobie, who were all aware of the permission being given to do the work for MAWA. No documentary evidence did not mean that there was no evidence at all. The word of these people under sworn testimony should be enough. No one had come along and said, "well, there was definitely no permission and indeed there was no permission because we said not to do this work". Ms Angelovska informed Ms Petrakis back in November prior to her suspension and prior to her dismissal that the relationship with MAWA could be a fruitful one. The relationship with MAWA was reflected in some of the documents to which the Commission was taken. There was no need for documentary evidence, there was evidence. 437 It was submitted that there was no reason for the Commission to find that Mr D'Astoli was lying, as was suggested in the SGYS submission. What also flowed from that submission was Ms Angelovska and Ms Scobie were lying. There was no basis for such findings. Consequently, the evidence that permission was given to do the work for MAWA and that that work was done within the bounds of that permission should be accepted by the Commission. 438 Mr Slevin refuted that he had made any submission that the computer, phone etc., were not the property of SGYS. The submissions made were about the admissibility of certain material before the Commission. Reference was made to the Workplace Surveillance Act 2005. It was not a question of property or otherwise, it was a question of the propriety of using that material in the proceedings. 439 Mr Slevin also refuted suggestions that the responses of Ms Angelovska to the requests from SGYS about her activities in relation to MAWA and activities in relation to documents, were inadequate and that that was the finding of SGYS in deciding to dismiss. That may well have been the finding of the respondent, but the question was whether the Commission was satisfied that those responses were inadequate in the way suggested. The responses in evidence were relied on by Ms Angelovska and the Commission was urged to find that those responses were indeed adequate. The suggestion that seeking her Union's assistance was otherwise obstructive was something that should not be accepted by this Commission. 440 It was submitted that the responses provided as to the substance of the allegations made in the various documents speak for themselves and should be found to be adequate responses. In relation to the issue of the staff files, there was a question that arose in the evidence as to just what were "organisational files". Reference was made to various files dealt with in the policies and procedures. "Organisational files" was a very broad term. The policies and procedures dealt with specific documents and the removal of specific documents and the need for permission to remove those documents. The question needed to be resolved by reference to the policy and then by reference to the allegations made. It was submitted that in that exercise the Commission would find that there was no specificity in the allegations made as to the nature of documents and the use of the term "organisational files" was one that just did not assist in an application of the policies and procedures. 441 The responses given by Ms Angelovska that were referred to in written submissions indicated her willingness to be frank and say, yes, I did take organisational files home, I took files home to work on. So the response was honest, frank and any suggestion that now those responses were somehow seeking to hide her activities simply could not be made out. 442 It was submitted that in relation to process, Ms Angelovska did not ask for a "rolled gold, five star process". She sought the standards set by the organisation itself in its policy and procedure manual. It was acknowledged that SGYS was a small community based organisation. That was all the more reason to follow its policies and procedures. The Commission should have regard to the organisation's own standard, it's own policies and procedures, and clearly they were not followed. 443 Ms Slevin submitted that Mr Godfrey did not take the Commission to the whole of the summary dismissal policy. He stopped before the process headed "During the meeting" and the 6 step process that was then set out as to what was to occur during the meeting. None of those steps were taken, because a meeting was not called, a number of phone calls were made instead. So any suggestion that that policy had been followed in these circumstances was simply not borne out on a reading of the policy itself. 444 On the issue of reinstatement and practicability Mr Slevin relied on a further two cases not raised in the written submissions as there was no evidence brought about a breakdown in the relationship. 445 It was submitted that this was not a case where the Chairperson had come along and ended her affidavit with a statement that she could not work with Ms Angelovska again. This was not a case where the employees had come along and said the management is a tyrant and please do not reinstate her. The employee statements went to one thing and that was what they observed about the work with MAWA. They did not go to the relationship between the employees and Ms Angelovska. Suggestions were made that grievance reports had been put in, and that there were suggestions of bullying and harassment allegations in some of the material. That was an allegation that appeared to have been dropped in the correspondence between the Union and the employer. Consequently no particulars were ever provided. The Commission was also taken to the relevant correspondence in this regard. 446 It was submitted that the Commission could not be satisfied on the material before it that there is any substantive allegation and certainly could not make any finding that any such allegation would preclude the remedy of reinstatement. Indeed the evidence about the way grievances are dealt with, if they persisted was that there were ample opportunities for such grievances to be dealt with through regular staff meetings, through the team building sessions, and through the grievance policy itself. 447 It was submitted that it would be a further injustice to Ms Angelovska if, as urged on behalf of SGYS, the Commission were to find that there was some form of bullying, unspecified, that precluded reinstatement in this matter. Mr Godfrey invited the Commission to make findings not available on the evidence. 448 On the issue of practicability, Mr Slevin referred the Commission to the decision of the Full Bench in New South Wales Nurses Association on behalf of Debbie Rudder v Booroongen Djugan Aboriginal Corporation [2007] NSWIRComm 89 which cited with approval Budlong v NCR Australia Pty Ltd as to the applicable principles. 449 Mr Slevin submitted that the comments in the passages he took the Commission to were apposite to this matter There was no direct evidence from any of the witnesses as to a breakdown in the relationship or the practicability of reinstatement. If there was any inference that there may be some inconvenience or some slight lack of trust with the applicant, the comments of the Full Bench in Perkins v Grace Worldwide were apposite and should be applied in these circumstances. 450 In relation to the submission that SGYS were a small organisation Mr Slevin also relied on a decision of Ritchie C in reinstating an employee in a similar organisation in the community services sector in Doyle v Kempsey Work Pool [2005] NSWIRComm 1029. It was noted that Jobs Australia appeared for the respondent in that matter as well. 451 It was submitted that the suggestion that the relationship with other staff was also somehow affected by these proceedings should be rejected. The evidence given by them simply went to what they saw and perceived in relation to the work done for MAWA and Ms Angelovska responded to that evidence, addressed those concerns and explained how she performed her work. In doing so, all that had occurred was an exchange through the evidence that should have occurred at the workplace. It was submitted that had proper procedure been followed - whereby the employees raised what they perceived was occurring, then Ms Angelovska could have answered and explained. It was not an exchange that would suggest a breakdown in a relationship. It was an exchange that occurred in the manner that it did, because the Committee of Management acted the way they did outside their own policies and procedures. There was nothing malicious in that exchange ands nothing of concern that would result in a conclusion that there had been any breakdown in the relationship with other staff. 452 Mr Slevin concluded by submitting that Ms Angelovska's claim was for reinstatement. However if the Commission was not minded to reinstate and compensation was considered, then Mr Slevin rejected the submission made on behalf of SGYS that Ms Angelovska had been deceptive and disloyal. There was is no basis for such a finding to be made and that the nature of the compensation should be assessed in the usual fashion in relation to the extent of the unfairness visited upon Ms Angelovska which was great, and the question of the length of service, which was nine years and three months, and the impact on the her given the specialised nature of her experience in a small sector of the community and social services industry. She had been unable to find employment since her termination. Consideration 453 I have very carefully considered the evidence, including all of the documentation filed, the transcript, the submissions of the parties and the authorities to which the Commission was taken. I have set out the relevant evidence in some detail, particularly in the background and chronology above, as Mr Slevin rightly points out the evidence speaks for itself and I only intend to refer to that evidence in a general way. 454 Mr Slevin has appropriately cited the relevant authorities which should underpin my consideration of Ms Angelovska's application for reinstatement. 455 It is appropriate therefore to return to those authorities as the starting point for that consideration. 456 The Full Bench considered the intertwined issues of both who bears the evidentiary onus and the standard to be applied to that onus in New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007} NSWIRComm 164. 457 In Prior, after upholding the "well established principle" that the evidentiary burden in a case of serious misconduct shifted to the respondent employer as set out in the line of authorities that commence with Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 through an unbroken line of authorities to Budlong v NCR Australia [2006] NSWIRComm 288, the Full Bench went on to state: 13 Although it must be accepted that the respondent carries the onus to be discharged according to the ordinary civil onus, on the balance of probabilities, the very nature of the issues involved and the consequences of a decision to summarily dismiss an employee, required the respondent to make out its case in a convincing way. It has long been established that the dicta laid out in the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336, should apply. 458 However it has also been held that in misconduct cases, even if it is established that misconduct did occur, the Commission needs to examine whether termination, in all the circumstances, was too harsh a penalty per Byrne & Frew v Australian Airlines (1995) 61 IR 32. Likewise, the Commission must also consider whether the termination was harsh or unjust or unreasonable, or any combination thereof, per s.88 of the Act. Here however, the evidentiary onus moves back to an applicant per Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273. 459 In considering the concept of misconduct and I have also been mindful of the following cases: in Re Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371, a decision which has also been consistently applied in numerous cases by this Commission, Cook J said at 374: ..... the question of whether the conduct of an employee amounts to misconduct justifying instant dismissal would generally depend upon whether or not the act complained of can properly be regarded as deliberate or wilful or of such a nature as to strike at an essential element in the contract of service, namely, obedience to lawful commands of the employer and the right of the employer to enforce discipline....... 460 In North v Television Corporation Ltd (1976) 11 ALR 599, what Smithers and Evatt JJ said at 608-609 is also relevant: It is of assistance to consider the expression "misconduct" by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct but not regarded as grounds for termination. In such a situation it is reasonable to interpret that the expression "misconduct" as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment. 461 Mr Slevin also took the Commission to Natoli where Sams DP at para. 218 summarised the issues for consideration in misconduct cases by positing four questions: 1. Was the conduct against the dismissed employee proven? 2. Did the seriousness of the conduct justify summary dismissal? 3. Did the conduct constitute a fundamental and wilful repudiation of the contract? 4. Were mitigating factors taken into account? 462 Therefore the starting point of my consideration is whether SGYS has discharged the requisite onus upon it to establish that Ms Angelovska did commit the serious and wilful misconduct relied upon in the termination letter of 22 December 2009. 463 Mr Slevin characterised this first question as a "hurdle" that SGYS had not overcome. He is quite correct in that characterisation. It is also axiomatic that if I find that Ms Angelovska did not commit serious and wilful misconduct and that the requisite onus has not been discharged, then it becomes unnecessary to consider further the remaining three questions posited in Natoli. 464 It should be indicated at the outset that I consider that at no stage has it been suggested, nor am I of the view, that Ms Angelovska was derelict or negligent in her duties/responsibilities on behalf of SGYS or other than a very hard-working and dedicated employee. Any dissatisfaction that has been expressed related to those issues/concerns raised by Ms Petrakis and Ms Faraj in the three meetings referred to in the evidence above. Even here the complaint is principally around the fact that she didn't immediately leap into action and carry out the directions issued immediately. There was also considerable disapproval expressed at the fact that she chose to essentially "argue the toss" as it were, and question or challenge what she was being asked to do, particularly in the absence of being aware of these issues/concerns having been raised at past Committee meetings. This will be commented on further below. 465 Ms Angelovska was terminated for taking organisational files home and working from home contrary to the directions of the employer and using SGYS time and resources to carry out work for MAWA without approval of the employer. 466 Ms Angelovska denied both allegations and maintained that she had had approval from the Committee of Management to both take work home and work from home for many years. In relation to the work for MAWA, she also maintained that she had been given approval by the Committee to be so involved, and essentially carried out any such work during her own time on breaks or on time-in-lieu. 467 For its part SGYS relied on MAWA documentation found on the Manager's computer by Mr Dangas following Ms Angelovska's suspension on 4 December 2009 and their interpretation and understanding of that documentation. They also relied on what certain staff members reported about their observations of Ms Angelovska and her involvement with MAWA. SGYS further relied on the absence of any record in minutes of Committee meetings going back to 2007 for any such approval having been given (in relation to both allegations). 468 It was suggested by Mr Godfrey that Ms Angelovska had had several months in which to have obtained expert IT analysis of documentation which she said that she had on her home computer and which she could have used to rebut the allegations made by SGYS, and had not taken the opportunity to do so. 469 On the contrary, in my view, there was no obligation or requirement for Ms Angelovska to obtain such expert analysis of any documentation she may have had. There was however an absolute obligation and necessity for SGYS to be quite certain about the very serious allegations it was raising against a Manager of some nine years unblemished, and indeed, exemplary service. Thus, if any expert analysis of the documentation was to be undertaken, keeping in mind that this was documentation in the possession of SGYS and relied upon by SGYS in coming their decision to terminate, such analysis should have been undertaken by SGYS rather than assumptions made and conclusions drawn in the total absence of any proper forensic examination of documentation relied upon. 470 As Mr Slevin again rightly highlighted, an employer must be satisfied that misconduct has been committed and that the conduct justified dismissal as enunciated in Franklins Ltd v Webb and Hill v Department of Juvenile Justice. In the former case the Full Bench cited with approval Shop Distributive & Allied Employees' Association, NSW Branch v Jewel Food Stores (1897) 22 IR1 and in doing so observed as follows (at p.261): ...... It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employers of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal. 471 Similarly, if Ms Angelovska was saying that she had had the approval of the Committee of Management for many years during the period in which Mr D'Astoli was the Chair of the Committee, then to have only checked back through the minutes to 2007 (when he left the Committee) was seriously deficient. Further, not to have had any reference to Mr D'Astoli for information to clarify just what approvals had, or had not, been given in circumstances where Ms Petrakis was clearly able to contact him (as she did in October/November 2009 about the funding submission) again shows the absence of properly substantiating the very serious allegations under consideration and attempting in any way to establish the veracity of the explanation provided by Ms Angelovska other than simply not believing her. 472 I accept unequivocally the evidence of Ms Angelovska, as confirmed by both Ms Scobie, and, more significantly and relevantly, Mr D'Astoli, that she did in fact have appropriate approval of the then Management Committee to take work home, in both hardcopy and electronic format, and to work from home. That approval was not revoked until the direction issued by Ms Petrakis on 20 November 2009. 473 True it is that there was no evidence as to whether the personal circumstances of Ms Angelovska, as detailed by Mr D'Astoli in his evidence, leading to the granting of that approval to work from home had changed in any way. However it is clear from his evidence that he was aware, throughout his period on the Committee, of her on-going work, and indeed was mindful of the need for other employees to be able to utilise such tools as laptops away from the office and obviously access files electronically in doing so. He, and the other Committee members clearly considered over the course of his years on the Committee that there was a continuing need for and utility in having Ms Angelovska work on files from home as the need arose and in the interests of the organisation. 474 I also consider that the reliance placed on SGYS on the provision in the Policies and Procedures Manual on "Staff Files" to be misplaced. The provision is not as all encompassing as Ms Petrakis and Ms Faraj believe. The prohibition on removal of files only applies to specific individual staff files, essentially the typical employment files that would be kept in a HR or Personnel Department. The only other prohibition on the removal of files to be found in the Manual relates to 'Client Files'. There is no suggestion in this matter that any such client files have ever been removed by any person, including Ms Angelovska. 475 SGYS maintained that some staff files were missing (or that the contents of some staff files were deficient) and in particular Ms Angelovska's file and that only she had access to the filing cabinet where those files were kept. That may be the case, however the policy also indicates that staff may have access to their own file. Ms Angelovska was also not the only person to supervise other employees and thus conduct performance reviews. She also gave evidence about maintaining a 'keys register' which suggests that there were copies of various keys available to enable access to filing cabinets (other than the Manager's filing cabinet). 476 There was no exact evidence sought from Ms Angelovska or provided by SGYS as to what precisely was on the three files that she had when she was suspended and which were subsequently returned to SGYS (indeed Ms Faraj said she had not even seen the files). Ms Angelovska did however indicate that the files contained supervision notes concerning the employees for whom she had direct supervisory responsibility. I would not have thought that the notes that were being made in the undertaking of such supervision were covered by the prohibition in the Manual, the important and relevant document required to be placed on the staff file would be any final formal performance appraisal document. There was no evidence as to what was involved in leading up to such a performance appraisal. Again I note that other staff (the Team Leaders) were also involved in supervision of employees. 477 I would also have thought it eminently practicable and indeed to the benefit of the organisation to have an employee of the dedication of Ms Angelovska who was prepared, if necessary, to take work home in order to complete essential documentation, such as that requiring completion by a deadline as was her evidence. 478 I also note and accept that, in relation to the three files that Ms Angelovska had when she was suspended, she was never given the opportunity to have any discussion about any handover (and clarify any issues about files) and that subsequently the issue of those files became caught up in the negotiations with the ASU once Ms Angelovska had been terminated. She maintains that those files were not staff files or funding files or her own personnel file. There was no evidence brought to rebut that contention. The onus was on SGYS to substantiate the allegation it made. 479 There was also insufficient evidence about the filing system/procedures in place at SGYS to make any finding in relation to this issue. It may, however, indicate a deficiency in whatever system is in place and highlight the need for review, after appropriate consultation with staff of course. 480 I also indicate that I accept Ms Angelovska's evidence concerning the USB stick and what she told Ms Petrakis and Ms Faraj at the meeting of 27 October. I am of the firm view that they have just misunderstood what they thought she was telling them. I accept that what she did say, and intended to convey, was that - yes, she had a USB stick and that whilst she was on leave it was at home, but that if access to the document in question (or indeed any document) was required then her sister had access to be able to obtain that USB stick, (not that her sister herself would actually access the USB stick and hence the files of SGYS), and get the USB stick back to the office if it was necessary. 481 I do not consider that it was inappropriate for Ms Angelovska to have used the USB stick as a backup to the C drive on her Manager's computer, indeed that was a sensible and prudent precaution to take. It was also the appropriate way to take electronic files home as per the approval that she was given to work from home by the Committee of Management during Mr D'Astoli's tenure, an approval that was never revoked until the direction issued by Ms Petrakis on 20 November 2009. 482 It would appear from the evidence of all concerned that there was an unfortunate absence of any appropriate handover and briefing of Ms Petrakis when she became the Chairperson of the Committee in December 2008. She was also new to the Committee at that time. She also indicated that there had not been a Chairperson for a period of time (just how long was not clear from the evidence). Mr D'Astoli relinquished his position on the Committee in 2007 and briefly rejoined it between March and November 2008 but only, it would appear, to assist in the negotiations with Rockdale Council concerning the SGYS accommodation arrangements. Again it is not clear from the evidence whether he was merely on the Committee or he again took up the Chairperson's position. 483 In any event there also does not appear to have been any discussion of any substantial nature between Ms Angelovska and Ms Petrakis about her working conditions/arrangements or any relevant approvals in place. This would suggest fault on both sides. However Ms Angelovska was not to know what discussions, if any, there had been between Mr D'Astoli and Ms Petrakis. I would have thought it would have been appropriate, and indeed essential, that when Ms Petrakis become the Chairperson she would have sought to have discussions with the Manager of the Service and satisfy herself with relevant information about all staff, including conditions of employment, as well as relevant projects, work in progress etc., etc. 484 It is also apparent from the evidence that Mr D'Astoli had a much more hands-on approach in relation to Ms Angelovska's role as Manager of the Service than did Ms Petrakis. Mr D'Astoli's evidence was that as her line-manager he held reasonably regular meetings with her and conducted her performance reviews. He also reviewed and signed off on her time sheets and approved her time-in-lieu. 485 It is clear that it is in that context, and with that background knowledge of Ms Angelovska, he was in a position to say, as he did in his evidence, that he also considered that her work for SGYS was not affected by her work for MAWA. 486 In contrast, Ms Petrakis did not conduct regular meetings with Ms Angelovska or any meetings of a supervisory nature at all and appears never to have sighted or asked for a timesheet until Mr Dangas was asked to provide timesheets following Ms Angelovska's suspension and arising from claims he was making to Ms Faraj about the time she was spending on work for MAWA. 487 Mr Dangas seems to have been very concerned that none of the timesheets annexed to his witness statement, which date from the period 1/10/2007 to 4/12/2009, were signed off. However they were all timesheets for the period subsequent to Mr Astoli's departure from the Committee. Timesheets prior to this time had been signed off during Mr D'Astoli's time, based on his evidence, which I accept. 488 Ms Petrakis seems not to have appreciated or known or even given consideration to the fact that it was her role, or the role of someone on the Committee to supervise Ms Angelovska, including signing off on timesheets and it does not appear to have arisen as a concern prior to her suspension. 489 In relation to Ms Angelovska's claim that she had approval to work from home this is also borne out by those time sheets. 490 I have carefully examined all the time sheets. There is a column headed - "Time in Lieu Planned/Unplanned + Reason". Ms Angelovska has consistently noted in this column any amount of time-in-lieu (generally as TIL or T/L) to be credited and on a number of occasions given the specific reason e.g. "Board planning", "moving day", 11/2 Council meeting". There are also notations about "work from home" (usually as "WFH"). For example, during the period 27/10/08 to 27/11/08, on the 3/11/08 she noted in the column - "2 1/2 hours JPET Submission/TIL". 491 Ms Angelovska is also correct in saying that she did not have to indicate when she was taking time-in-lieu or just what she was doing during that time. Her only obligation was to properly and accurately record her hours of work for SGYS and where those hours exceeded the daily hours to note that in the relevant column on her the time sheet and to ensure that she took any accrued time within the policy guidelines. Given that she ensured that all staff complied with the policy I consider that it cannot be suggested, and there is no evidence, that she herself did not comply with what was required. 492 There has just been no evidence brought to this Commission to establish that the hours she has shown on her timesheet as being in excess of her ordinary hours and thus attracting time-in lieu were not genuine or not undertaken in the course of appropriately carrying out duties and responsibilities for SGYS. 493 How and when she chose to use that time-in-lieu was her prerogative. If the Committee of Management is not satisfied with how that time is recorded or accounted for, or requires approval before being taken, then it needs to firstly amend its policy on time-in-lieu (but keeping in mind the underpinning SACs Award provision). Secondly, it needs to change the current timesheet in some way to allow more detailed information to be provided, if that is what is sought. 494 Those timesheets also clearly indicate a consistent starting time of, in the main, 10 a.m. There is sometimes variation to that of either 9.30 or 10.15 and on rare occasions, 10.45. Those times are generally accompanied by finishing times ranging from 5.30 to 6.30 and indeed on some infrequent occasions, 7 or 8. Lunch is always noted as "1/2". The times are certainly indicative of a person consistently working in excess of the daily times inherent in a 35 hour week as set by her contract of employment. Such times were clearly noted and approved by Mr D'Astoli. 495 The somewhat abrupt and precipitous changes to Ms Angelovska's hours of work sought by Ms Petrakis and Ms Faraj in the 'Items for Action' list on 20 November, in the absence of any previous discussion about starting and finishing times, quite understandably in my view provoked the reaction from Ms Angelovska that it did. This was clearly a significant change to her working conditions, conditions that she had observed for many years. Indeed it was a significant change to her Contract of Employment. 496 That is not to say that it was not an appropriate topic for discussion with a view to achieving change as a consequence of appropriate negotiation. 497 I can understand that where an organisation, or indeed any business, operates from 9 to 5 that it would generally be desirable (but not necessarily essential) that the manager of that organisation/business be present during those times, particularly at the start of the day. However many employers and businesses these days have employees with staggered starting and finishing times which often accommodate a broader range of operating hours, not to mention accommodating individual employees and their particular family/personal circumstances. I am also aware from my experience with matters coming before me that managerial/supervisory staff (and indeed accounting staff) often complain that the best time to get paperwork done is when the doors of the business are closed to clients/public at the end of the day. 498 In relation to Ms Angelovska's hours of work however, the appropriate way of undertaking such a discussion, particularly in the circumstances applicable to Ms Angelovska (her existing contract and the length of time worked on that basis), was to foreshadow the need for such a discussion, the reason for such change and to involve the ASU in those discussions rather than issue what amounted to authoritarian decrees without any attempt to seek to engage in any discussion or dialogue about the issue and reach a mutually agreed outcome. 499 I consider that it was entirely appropriate and not unreasonable that Ms Angelovska indicated that she would continue to work her existing conditions until she had sought the advice and the assistance of the ASU, that was not obstruction. 500 I should also indicate that after careful consideration of the documentary evidence (Ms Petrakis' notes of the meetings and Ms Angelovska's notes) as well as the oral evidence, I fail to see how Ms Angelovska "refused to comply with reasonable directions by failing to comply with action item" as alleged in the 4 December letter of suspension. As I have indicated above the only direction that could conceivably be considered as having been the subject of a refusal to comply was with regard to the change to her starting and finishing times. As I have already stated I do not consider that it was unreasonable or inappropriate for her not to comply with this direction in the circumstances I have outlined. 501 Based on the evidence, I consider that she was complying with the other action items as outlined, but not necessarily within the deadlines which appeared to have been arbitrarily set by Ms Petrakis. Simply because certain tasks had not been completed does not indicate a refusal to comply with a direction. 502 In relation to Ms Angelovska's involvement with MAWA I also accept the evidence of Ms Angelovska, as confirmed by Ms Scobie and again more relevantly and significantly by Mr Astoli, that she did have approval of the Committee of Management to be so involved. 503 Again there appears to have been a lack of appropriate communication, by all concerned including Mr D'Astoli, Ms Angelovska and Ms Petrakis about that involvement but that is not to say that approval was never given nor that if Ms Petrakis had bothered to search minutes from earlier years (or indeed simply ask Mr D'Astoli) she would have obtained information about that approval. 504 In circumstances where I acknowledge that it is extremely common in the community services sector for employees to be involved in various other community organisations, and where Ms Angelovska maintained that any work she did from MAWA she did in her own time, it may not have been considered an overwhelming priority to convey that information to Ms Petrakis as the new Chairperson in December 2008, particularly after she had been so involved with MAWA for so many years without it being a problem. 505 As far as the MAWA documentation relied on by SGYS to establish misconduct on the part of Ms Angelovska, after carefully examining the documentation attached to Mr Dangas' witness statement and carefully considering all the relevant evidence before me, I am satisfied that there is just no evidence that establishes that any of that documentation was created from scratch on the Manager's computer at SGYS during her working time for SGYS. 506 However I have to say that it does seem unusual that so many MAWA files were kept by Ms Angelovska on her Manager's computer and I can readily understand how this may have raised suspicions and doubts in the minds of Ms Petrakis and Ms Faraj. 507 I can also readily understand that in relation to some documents they would obviously have been forwarded to her by MAWA employed staff during business hours as that was when the MAWA staff would have been working on those documents. As Ms Angelovska indicated all that was sometimes necessary (and sought) was a quick review to see whether it was a document that needed a response during business hours or if it was a document to be worked on in her own time at home, in which case it was her evidence that she would simply save that document and email it to herself at her MAWA email address. If it required a response during business hours it was her evidence that she would use her own time (on a break or on time-in-lieu) for such purpose. 508 Ms Angelovska clearly had a practice of deleting MAWA files, as evidenced by the "recovered files" from 2006 discovered by Mr Dangas. However, perhaps she should have been more diligent in insuring that once a document was appropriately saved and forwarded to her MAWA email address (or presumably subsequently saved to her MAWA USB stick) that it was deleted from the SGYS system, although that does not appear to have caused any problem in relation to the capacity of the computer (there was no evidence of such). 509 One of the documents relied on (the MAWA employee supervision notes) was clearly a document from 2006 (one of the "recovered files"), a time when there can be no doubt that she had approval to be involved in work for MAWA and was doing so with the full knowledge of Mr D'Astoli. 510 The purportedly copied funding submissions were in a pro-forma document provided by Rockdale Council. There is no doubt that the wording is similar. However in my view a person writing funding submissions frequently, as Ms Angelovska did, would use the same terminology, the same phraseology, and given that generally speaking the same information would be required in such funding submissions, then it is no wonder that such documentation would appear similar. That does not mean, or prove in any way, that one was copied from the other (or indeed establish which one came first). 511 In a similar fashion the decisions that I issue, and indeed any of the decisions of the various members of this Commission, can be readily identified by their similarity in setting out, language, expressions etc. 512 The Kogarah Community Grants Program document (also a pro-forma application from the funding organisation), based on the computer printout in evidence, was "created" on Thursday, 27 August 2009 at 3:25:12 PM and "modified" on Thursday, 27 August 2009 at 3:32:01 PM. It is ludicrous to suggest that this document, which is also obviously a pro-forma document provided by the funding organisation in question, could have been created and completed in seven minutes. 513 Given the other computer printouts provided by Mr Dangas it is clear to me that "created" does not refer to when the document was actually compiled from scratch. For example, when Mr Dangas accessed various documentation following Ms Angelovska's suspension and conducted a computer properties search, they then indicate "created" on 4 December, those printouts then generally show when the document was last "modified". Clearly Mr Dangas did not create those documents on 4 December, he merely accessed them. 514 In the case of the Community Grants program, and indeed other documentation referred to such as the Zip file containing the MAWA financial records, those times are consistent with Ms Angelovska's evidence that she originally received those documents as emails to her SGYS email account, saved them on the SGYS computer and then emailed them to herself at home on her MAWA email account. She also indicated that she had a MAWA USB stick, although there was no evidence about whether such documents may have been saved directly onto that USB stick. 515 In relation to the MAWA staff workplan, it was Ms Angelovska's evidence that she received that as a totally completed document and all she was required to do was review the content of the third column, which she maintains she did very quickly (but could not recall when) and said it would have been either on a break or in taking time-in-lieu. Nothing put forward by SGYS contradicts this claim. 516 I also generally find that those matters referred to by the other employees of SGYS who had filed witness statements but were not required for cross-examination to be insufficiently detailed and lacking in substance to warrant any reliance. I also note that it could be considered that they represent a minority of the total number of employees working for SGYS. 517 As far as the MAWA Zip file is concerned, the evidence from both Ms Angelovska and Ms Vo was that it was an MYOB file that could not be opened on Ms Angelovska's computer (either at work or at home) and it was simply sent to her by Ms Vo (from Ms Vo's email account) so that it could be forwarded on to the MAWA auditor. I accept that evidence. Ms Vo acknowledges that she did that during SGYS work time but said that it only took a few seconds and did not consider that it interfered with her SGYS work. 518 As with the other MAWA emails in question I would suggest that the time involved was probably considerably less than the time involved in the personal phone calls and emails that I have no doubt whatsoever are made/sent/received by all staff at SGYS, just as it is not uncommon for such personal use (of a reasonable nature) to occur in any workplace these days. 519 Both Ms Petrakis and Mr Dangas conceded in cross examination that they were they were mistaken in the assumptions that they had made about the documentation and what the computer printouts established, although in contrast, Mr Dangas continued to maintain his belief that Ms Angelovska had created documents from scratch. A belief that is in my view totally unsupported by the evidence. 520 The evidence also just does not establish that Ms Angelovska was in any way competing for the same funds for MAWA as were sought for SGYS or that SGYS were ever disadvantaged in any way in the allocation of funds. Certainly funds were being sought from the same funding bodies and the same pool of funds, but not necessarily for identical projects. Indeed it is clear from the evidence that MAWA is a very small organisation but covering a much broader range, the Macedonian community generally across Sydney, than the comparatively narrow focus of SGYS on youth in the St George area. 521 After carefully examining the evidence I am also satisfied that Ms Scobie was not working on a project and seeking funds for MAWA in competition with SGYS. Ms Gravche was quite mistaken in the assumptions she made and the conclusions she has drawn. Even if Ms Angelovska (although this was denied by her) may have suggested that she provide some background information about the Macedonian community to Ms Scobie, this was of such minor consequence that I do not find any particular significance in this nor is it evidence of any wrongdoing on the part of Ms Angelovska. 522 A comparison of the relative size of the two organisations, based on the evidence, would also indicate, as suggested by Mr D'Astoli in his evidence, that given the workload of Ms Angelovska and the duties and responsibilities she undertook for SGYS that there was very little time left to spend on MAWA matters. It is hard to see that there would have needed to be significant quantities of time spent on an organisation that only had one full-time employee and a bookkeeper who only worked casually two hours on Saturdays and the odd half-hour occasionally prior to commencing her work at SGYS. 523 Again I stress that there has been no suggestion made at any stage that even the limited time (a phone call, someone calling in to have a cheque signed, the sending or receiving of an email or text message) in any way resulted in Ms Angelovska not carrying out her duties and responsibilities for SGYS fully and properly or impacted in any way on her work performance for SGYS. 524 As far as the text messages on Ms Angelovska's mobile phone are concerned I should also indicate that I consider that Mr Dangas engaged in a gross invasion of Ms Angelovska's privacy in accessing those messages. It was entirely inappropriate to do so without her knowledge and approval. It also does not establish in any way whatsoever that Ms Angelovska was inappropriately engaged on MAWA business during SGYS time. 525 A mobile phone will record the precise time a voicemail or text message is received. What it does not show is at what time that message is actually accessed by the person receiving the message. Simply because Mr Dangas has typed up a list of text messages and the times they were received gives no indication whatsoever as to when Ms Angelovska accessed those messages. Certainly the times that Ms Angelovska sent text messages to MAWA persons from her phone can be established and in relation to the text messages sent by her (as set out in Exhibit 17) all but two were sent outside business hours. However, again it cannot be established whether or not she was actually either accessing the text messages received or sent (the 2 text messages during business hours) in SGYS time or on her breaks, or when she took time-in-lieu. 526 In any event it was also her uncontested evidence that she had personal use of her mobile phone as part of her conditions of employment. She also had approval from the Committee of Management to be involved in doing work for MAWA, an approval that was never subsequently revoked as I have already indicated above. 527 The issue of approval for Ms Angelovska to use the work mobile phone for personal use arose as a consequence of questions from the Commission. That was not contested or rebutted in any way. 528 In my experience of the many matters that have come before me, particularly those involving employees on some kind of "package" of employment conditions, personal use of the mobile phone provided by the employer is extremely common. In those circumstances there is generally a policy/practice in place of either some form of reimbursement of the cost of any personal calls back to the employer. Although I am aware of a number of instances where no such reimbursement was required or sought. 529 What is obvious is that SGYS needs to develop an appropriate policy about, not only the use of mobile phones, but the Internet and emails etc., again after appropriate consultation with staff. 530 Returning to the questions posited in Natoli and after carefully considering the evidence I have come to the inescapable conclusion, based on the evidence before the Commission, that SGYS has not discharged the requisite onus upon it and established that Ms Angelovska committed misconduct by taking SGYS files home and working from home without the approval of the Committee of Management or that she committed misconduct by carrying out work for MAWA during SGYS time and using SGYS resources without the approval of the Committee of Management. 531 That being the case, as I foreshadowed above, it is unnecessary to consider further the remaining three questions posited by Sams DP in Natoli. 532 To have been terminated for misconduct is therefore, on a substantive basis, harsh, it is unjust and it is unreasonable. 533 I turn now to the consideration of the issue of procedural fairness, an extremely significant issue in this matter. 534 A dismissal can be both substantively and procedurally unfair as established in Byrne & Anor v Australian Airlines (at p.72). That decision has also been relied on in numerous decisions of this Commission including Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Rapp v Wauchope RSL Club (1998) 81 IR 434; Burke v McGirr (1998) 87 IR 54; Busways v Johnson (1994) 55 IR 255 and Antonakopoulos v State Bank (1999) 91 IR 385. 535 Mr Slevin submitted that Antonakopoulos was particularly pertinent to Ms Angelovska's termination. I agree with that submission and it is appropriate to return to the particular passage cited by Mr Slevin as follows: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. 536 In my firm view it is very clear from a consideration of the SGYS Policies and Procedures Manual in relation to the process to be followed where a summary dismissal is contemplated, that SGYS failed to follow its own procedure in virtually its entirety: · There was no meeting between Ms Angelovska and Executive Committee and Ms Angelovska was not given the opportunity to explain her side of the matter (the allegations against her), · Indeed it would have been impossible to explain her side of the matter in circumstances where she was not provided with any of the evidence upon which SGYS relied, · There was no meeting of the Executive Committee and the decision to dismiss was made via a series of individual phone calls and not even a conference hook- up, · I consider that the policy required that a physical meeting take place, not merely an exchange of phone calls. 537 These are serious and fundamental breaches of SGYS's own policy and procedures. 538 Indeed it is hard to see where Ms Angelovska has been properly afforded procedural fairness at any stage since the first meeting of 27 October 2009. In my view she was effectively "ambushed" at both that and the subsequent two meetings by having issues raised with her that had certainly been raised at Committee meetings on the evidence of Ms Petrakis, but Committee meetings to which Ms Angelovska had not been invited and from which she appears to have been specifically excluded. No wonder she could find no reference to those issues in her checking of earlier Committee meeting minutes at which she was present. Indeed one wonders whether proper minutes of these additional Committee meetings were kept (notwithstanding Ms Petrakis evidence), and if they were they were certainly never provided to Ms Angelovska. Indeed one wonders whether actual physical Committee meetings took place rather that merely a series of phone calls between Ms Petrakis, Ms Faraj and the remaining two Committee members. 539 On the subject of minutes, given the issues that were raised in the three meetings and notwithstanding the contention by Ms Petrakis and Ms Faraj that they were not about Ms Angelovska's performance, proper minutes of those meetings should have taken place because the reality is that it was all about Ms Angelovska's performance. 540 In my view what should have occurred is that prior to the meeting of the 27 October Ms Petrakis should have provided Ms Angelovska with a list of agenda items/queries/concerns sought to be discussed. This would have allowed Ms Angelovska to appropriately research such matters and provide any required information about existing/past practices and procedures. That process would also have put her on notice as to what was to be discussed. 541 There were clearly other issues of concern, apart from the issue of not having a key to the Manager's filing cabinet. It is obvious that a number of the concerns raised by Ms Angelovska in her notes of meetings and in her evidence and the subsequent conflict between the parties centred around that was being sought by the Committee as compared with what was existing or past practice and the reason for seeking change, particularly in the absence of these issues having been raised at meetings at which Ms Angelovska was present. 542 It seems to me that it would have been appropriate for there to have been a discussion initially in relation to each of the issues of concern between Ms Petrakis, Ms Faraj and Ms Angelovska about the exact nature of the concern the Committee now had and seeking information about what had been the existing/past practice in relation to an issue, and how changes/improvements might, if necessary, be accomplished. That would have allowed a more comprehensive, practical and sensible discussion to take place in a properly informed and cooperative way rather than the way in which Ms Petrakis and Ms Faraj did embark upon the exercise. 543 Mr Godfrey contended that Ms Angelovska had been "disloyal, untrustworthy, deceptive". Having carefully considered the evidence and the demeanour of the prospective witnesses, particularly Ms Angelovska and Ms Petrakis, I reject that contention entirely. Indeed if anyone has been deceptive it has been Ms Petrakis and Ms Faraj in not advising Ms Angelovska of the meetings of the Committee held during this period or providing her with minutes of such (if indeed such were kept and if indeed actual meetings took place rather that a series of phone calls and emails between Committee members at the instigation of Ms Petrakis). Ms Angelovska was thus denied the opportunity of discussing directly with the Committee the issues of concern they seem to have had with her management of SGYS that had apparently arisen and was also denied the opportunity of making any explanations that may have assisted in that discussion. 544 She was also not advised of any of the complaints/allegations raised by the staff that were apparently of such concern as to be one of the reasons for her suspension on 4 December 2009. 545 This whole unfortunate matter seems to have been in reality about control of the organisation. Ms Angelovska has been a very active and diligent Manager and on the evidence, as a consequence of her diligence and hard work, and under the stewardship Mr D'Astoli, the organisation has grown and prospered significantly. Understandably there was a degree of vacuum following the departure of Mr D'Astoli and prior to Ms Petrakis becoming Chairperson in December 2008. 546 Indeed Mr Godfrey submitted that the events of October/November came after nearly 2 years of the Committee of Management attempting to fill their proper roles as the legal party responsible for SGYS and not getting any corporation or information from Ms Angelovska and their patience being tested. 547 I have to say in response to this submission that there was simply no evidence whatsoever of any difficulties with Ms Angelovska's management of SGYS prior to October/November 2009. I simply do not know where this submission springs from. Ms Petrakis did not come onto the committee until December 2008, Ms Faraj was on the committee from February 2007 however it was also Mr D'Astoli's evidence that he came back onto the Committee during 2007. It does appear from the evidence that there may have been a period pre-December 2008 where there was no Chairperson of the Committee. That circumstance and anything that flowed from that can scarcely be blamed on Ms Angelovska who, on the documentation in evidence, carried out her duties in commendable fashion in difficult circumstances (as did all staff). . 548 Having carefully observed the demeanour of both Ms Angelovska and Ms Petrakis (and to a lesser extent Ms Faraj) it is fairly obvious that both of them are fairly strong minded, strong willed individuals and accustomed to exercise authority. I can also readily imagine that Ms Angelovska could be very intense and focused in carrying out her duties and responsibilities. She had effectively been carrying out the Manager's role without any supervision since 2007 and had been doing so, as commented above, apparently in difficult circumstances for the organisation. This may have resulted in her exercising a degree of authority, autonomy and independence that may not previously have been the case when Mr D'Astoli was the Chairperson of the Committee and there was apparently a greater degree of working together. 549 I acknowledge that there is no explicit evidence about that, it is just an impression I gained from an overall consideration of all of the evidence together with the submissions of Mr Godfrey. Thus Ms Petrakis and Ms Faraj's actions could be seen as an attempt to "rein in" Ms Angelovska and stamp the Committee's (and their personal authority) more clearly upon her. 550 In the absence of any significant interaction between Ms Petrakis and Ms Angelovska by way of supervision, as was engaged in by Mr D'Astoli and given the relatively brief period (from December 2008 to October 2009) of Ms Petrakis' involvement with SGYS, I can well understand Ms Angelovska's total bewilderment, anxiety and extreme concern and her resultant questioning at the way matters unfolded from 27 October onwards. 551 I also have to say that having carefully read all the emails put out by Ms Petrakis that I have found them to be somewhat biased against Ms Angelovska and lacking in objectivity. The emails she was sending out to other members of the Committee about Ms Angelovska and the meetings were quite prejudicial towards Ms Angelovska in circumstances where she did not have the opportunity of participating in any meeting with the Committee to properly discuss the issues raised and defend herself against the very negative comments that were made by Ms Petrakis in those emails. 552 I further note the actions taken, quite possibly contrary to the relevant legislation, to remove Ms Angelovska as the Public Officer of SGYS which in effect removed her entitlement to participate in the AGM. One has to wonder whether that was in fact the sole reason for that action given that this occurred in conjunction with her suspension. 553 That suspension was also quite unfair. The letter of suspension did not refer to any time period of suspension, it made general allegations and did not provide any sufficient detail, or indeed any detail at all about the reasons for her suspension or what directions she had refused to follow. Those reasons were never subsequently provided to the ASU when they sought further information. 554 Ms Petrakis in evidence said that the reason for the suspension was to enable Ms Angelovska to essentially go away and think about her position in relation to the Committee and the issues that had been raised. However nowhere in the letter does it say anything about this at all nor was Ms Angelovska told at the time of her suspension that this was the intention of the suspension. 555 When the further allegations were raised against Ms Angelovska in the subsequent correspondence and reference was made to the evidence held by SGYS at no stage was she ever provided with that evidence. She therefore never had any proper opportunity to explain or respond on her own behalf. Explanations were readily available and appropriate evidence to support those explanations quite possibly could have been obtained if this matter had been dealt with in accordance with the SGYS Policies and Procedures and with the full involvement of the ASU. 556 I have already referred above to the failure of the SGYS to comply with its own policies and procedures in relation to the dismissal of Ms Angelovska. Mr Godfrey protested that what was being sought was a "gold plated five star" procedure of the kind that might be conducted at an employer of the nature of BHP Billiton and that SGYS is a small community organisation and should not be expected to follow such procedures. However, as Mr Slevin rightly points out, that was never required. What was required was that SGYS, at a minimum, follow its own procedures. If that had been done appropriately and fully then it would have been possible to have said that procedural fairness was accorded to Ms Angelovska. 557 However I consider that if a proper and fair process had been followed then there may well have been a very different outcome and one that did not involve Ms Angelovska's termination and did involve addressing any concerns/issues the Committee may have had in a more appropriate and consultative way. 558 What happened instead was that very general allegations were initially made against Ms Angelovska, some of which were not referred to again (for example the OH&S issues concerning staff) additional allegations were made with reference made to evidence held by the employer, but again with no detail given about that evidence or indeed without that evidence being provided to Ms Angelovska or the ASU giving her no opportunity whatsoever to properly defend herself or respond to the allegations. It cannot be said that she was afforded a fair and due process in such circumstances. Further the process followed by SGYS in arriving at the decision to summarily dismiss Ms Angelovska was contrary to SGYS policies and procedures. 559 It was simply not good enough to take such a decision to terminate a manager of nine years standing with an unblemished record for serious and wilful misconduct as a result of a series of phone calls between members of the Committee rather than at a duly constituted Management Committee meeting. Further in my view the policy require that such a meeting to take place. 560 Having carefully considered the evidence in relation to procedural issues, I therefore find that the termination of Ms Angelovska on a procedural basis was also unjust and unreasonable and therefore it was also harsh. 561 The expression "harsh, unjust and unreasonable", was also considered in Byrne (also at p.72). The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 at p.182. Essentially, those cases hold that is not necessary that a termination be found to be harsh and unjust and unreasonable. It can be one, or any, or all, of those three. 562 The meaning of those individual terms was been considered in detail in Samms v Contact Point International [2001] NSWIRComm 18 and that decision has been applied in numerous other decisions of this Commission. I also adopt those considerations. 563 Bankstown City Council v Paris (1999) 93 IR 209, is authority for the necessity of the Commission making a positive finding as to whether the termination was harsh, or unjust, or unreasonable (or any combination thereof) and the grounds upon which the Commission so finds. 564 This approach was reiterated by the Full Bench in National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at paras [64] and [65]: 64 Finally, we stress the importance of a Member of the Commission at first instance in s 84 proceedings dealing expressly and specifically with the tripartite statutory test. As the Full Bench observed in Outboard Marine Pty Ltd T/As Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the tribunal should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, whether the dismissal was or was not harsh, unreasonable or unjust. 65 In the present case, Cambridge C found that the dismissal of the applicant was not harsh, unreasonable or unjust and we consider an examination of the Commissioner's reasons support his conclusion. It would have been preferable, however, if the Commissioner had spelt out in clear terms why, under each limb of the tripartite test, the dismissal was not an "unfair dismissal". 565 As indicated above I have found that, based on the evidence, SGYS have not discharged the requisite onus upon it to establish that Ms Angelovska committed misconduct. Having found that she did not commit misconduct, and that the process followed by SGYS was procedurally unfair I have also found on both a substantive and procedural basis that her termination was harsh and it was unjust and it was unreasonable. 566 Ms Angelovska has sought reinstatement to her former position. Reinstatement is the primary remedy envisaged by the Act as enunciated repeatedly in numerous decisions of this Commission as comprehensively summarised by the Full Bench in NSW Nurses Association (Rudder) v Booroongen Djugan Aboriginal Corporation. What I am required to do is to consider whether reinstatement is practicable in the particular circumstances of this case. 567 Reinstatement is opposed by Mr Godfrey on behalf of SGYS on the basis of impracticability due to both the relationship between Ms Angelovska and the Committee and the relationship between Ms Angelovska and the staff. 568 He asserted that the relationship with the Committee was full of "distrust, unfaithfulness, misinformation and ill will". 569 In my view if there was "distrust" and "ill will" it originated with the Committee, not Ms Angelovska. In accordance with the findings I have made above I do not consider that there was any "unfaithfulness" or "misinformation" on the part of Ms Angelovska. The Committee should accept the findings I have made that Ms Angelovska did not commit misconduct, that she had approval to take work/files home, to work from home and to be involved with MAWA and overwhelmingly used her own time on such involvement. 570 I acknowledge that the Committee has the right to determine that approval for such involvement should be revoked for the future. The Committee also has the right to determine that files and work should not be taken home by its Manager. 571 I also note that members of the Committee of Management are not required to work with Ms Angelovska on a daily basis. The only evidence in these proceedings has been from Ms Petrakis and Ms Faraj, not from other members of the Committee. I also note from the evidence that there was at least one new member elected to the Committee at the AGM held in February of this year. 572 As to the relationship between Ms Angelovska and the staff, she was quite unaware of any complaints or grievances from certain of the staff. SGYS has a grievance procedure. If any staff member has a grievance then that should be processed according to the grievance procedure. There was also no evidence from those staff members who did file witness statements that they could not continue to work with Ms Angelovska. 573 As Mr Slevin has pointed out in other decisions I have issued (ASU v Sydney Water, etc.,) where I have found that an applicant has not committed the misconduct alleged, I have also found that to not order reinstatement in those circumstances would be to visit a further unfairness on such an applicant. 574 I am also mindful of the observations relevantly expressed by Sams DP in Hill v Juvenile Justice Department as follows: It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee. It can not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee's future employment prospects. A finding by this Commission that a summary dismissal is justified is a most serious matter which may unhappily burden and grievously harm an employee for years into the future. .......................................................................... The serious, unproven allegations made against the Applicant have gravely impugned his reputation. Left to stand unchallenged these allegations would seriously hamper his future employment prospects, damage his reputation and more than likely deleteriously affect his well being and that of his family. It is the Commission's duty, indeed its obligation, to correct the injustices the Applicant has so plainly suffered. I unreservedly intend to do so. 575 Therefore having carefully considered the evidence and submissions of the parties, I do not consider that it would be impracticable to reinstate Ms Angelovska and I propose to issue orders to that effect. 576 In arriving at that consideration I have been mindful of the relevant authorities and the principles enunciated in such cases as Perkins v Grace Worldwide where it was observed: "If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there is the sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable." (Emphasis added) 577 I accept that there will be difficulties and possibly tension in the relationship between Ms Angelovska and particularly Ms Petrakis and Ms Faraj and quite possibly Mr Dangas who has been occupying the position of Acting Manager. However as I have frequently observed reinstatement is not about the difficulties that may arise in interpersonal relationships. People are not required to like each other to work together although I concede that that assists in creating and fostering a congenial and pleasant workplace. 578 There will clearly need to be discussion between the Committee, the Manager and staff about existing policies concerning the taking of time-in-lieu, and working from home (I note there was a draft policy about working from home in the SGYS Policies and Procedures Manual) as well as the development and implementation of policies concerning use of the Internet and email and personal use of work mobile phones, There may well be other policies that need revision as a consequence of the issues raised in these proceedings. 579 If there needs to be a discussion about Ms Angelovska's future working conditions then that needs to be undertaken in conjunction with Ms Angelovska and the ASU. 580 However the Committee needs to think very carefully about whether it really wants a situation where it has a Manager who strictly works a 35 hours week and does not work additional time outside those hours. Sensible and reasonable guidelines need to be discussed and put in place. 581 Similarly the Committee needs to consider the practicality of having the Manager always seeking prior approval for working additional time that would attract time-in-lieu (as required by the direction issued in the "Items for Action"). It seems to me that it would be very impracticable and unreasonable for such prior approval to always be required. The Manager of an organisation such as SGYS should surely have the discretion to judge when there needs to be additional time work to complete specific tasks or attend meetings. There are checks and balances existing in the Manager's reporting mechanism and further checks and balances can arise from supervision of the time sheets (which as I have previously observed may require amendment). 582 There may well be other issues that require discussion and resolution between the Committee and Ms Angelovska. Those discussions should be conducted with the assistance of Jobs Australia and the ASU. 583 The Industrial Relations Commission therefore orders that: 1. Pursuant to s89(1) of the Industrial Relations Act 1996, the respondent, St George Youth Services, shall reinstate the applicant, Valentina Angelovska, to her former position of Manager on terms no less favourable to those which would have applied had the applicant not been dismissed on 22 December 2009. Her conditions of employment will continue to be those observed prior to any direction issued on 20 November 2009. 2. The respondent, St George Youth Services, shall pay to the applicant, Valentina Angelovska, the amount she would have otherwise received had she not been dismissed, less any other earnings received during the period from dismissal to reinstatement. 3. Pursuant to s89(4) of the Industrial Relations Act 1996, the applicant's period of service shall be treated as not to have been broken by her dismissal. 4. The reinstatement of the applicant, Valentina Angelovska shall be effected no later than 21 days from today's date. 5. These orders take effect on and from today's date 24 September 2010. Elizabeth Bishop Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.