Industrial Relations Commission of New South Wales CITATION: Horton -v- Dept of State & Regional Development [2006] NSWIRComm 1020 APPLICANT PARTIES: Rebecca Horton RESPONDENT Department of State & Regional Development FILE NUMBER(S): 987 of 2005 CORAM: Cambridge C CATCHWORDS: Unfair dismissal - termination of employment - misconduct - performance and conduct improvement plan - further misconduct - investigation - employment record considered - repeated failure to comply with reasonable instructions of employer - valid substantive basis established - proper process followed - application dismissed. LEGISLATION CITED: Industrial Relations Act 1996 Public Service Management Act 1988 HEARING DATES: 07/09/2005; 08/09/2005; 21/11/2005 DATE OF JUDGMENT: 02/10/2006 APPLICANT Ms E Raper, barrister Solicitors LEGAL REPRESENTATIVES: KR Lawyers RESPONDENT Ms E Brus, barrister DECISION: - 15 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES COMMISSIONER CAMBRIDGE 10 February 2006 Matter No IRC 987 of 2005 Rebecca Horton -v- Department Of State & Regional Development Application by R Horton re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2006] NSWIRComm 1020 1 This matter involves an unfair dismissal claim made pursuant to section 84 of the Industrial Relations Act 1996 [NSW] (the Act). The claim was made by Rebecca Horton (the applicant), and taken against her former employer, the Department of State & Regional Development (NSW), (the employer). 2 The claim was filed on 25 February 2005 and following unsuccessful conciliation proceedings the Arbitration of the matter was conducted over three days, 7, 8 September and 21 November 2005. BACKGROUND 3 The applicant is a woman who was some fifty three years of age at the time of her alleged unfair dismissal on 25 February 2005. The applicant had been employed for a period of almost ten years. The applicant worked in a position of Administrative Assistant in the Industry Division of the employer. The applicant performed a broad range of secretarial, administrative and other support duties for Mangers of the Industry Division. The applicant was classified in a position of Clerical Officer Grade 3/4. 4 The applicant's dismissal occurred on 25 February 2005. The applicant was dismissed following an extensive procedure that involved investigation into and ultimately findings of misconduct. The findings of misconduct that underpinned the applicant's dismissal generally focussed upon events that occurred during the last half of 2004. The applicant has asserted that the factual basis upon which the alleged misconduct was established could not be properly substantiated and that additionally, the procedure that the employer invoked in respect to the investigation and ultimately the findings made, was also erroneous. Consequently the applicant has claimed that on both substantive and procedural grounds her dismissal was unfair. THE EVIDENCE 5 There has been a reasonably substantial amount of evidence provided in this case. During the three days of Hearing evidence was adduced from a total of ten witnesses. The volume of evidentiary material was commensurate with the extensive history involved with the incidents that concerned the alleged misconduct of the applicant together with the extensive investigation and associated procedures that were adopted by the employer. 6 The applicant together with one other witness provided evidence in support of the claim. The primary evidentiary material to support the claim was provided by the applicant. There were a variety of factual conflicts about particular incidents arising from different recollections of those incidents as between the applicant and other persons. The applicant's presentation and demeanour as a witness was reflective of a general level of heightened anxiety beyond that which is ordinarily associated with giving evidence as a witness. The Commission received evidence about the emotional and psychological difficulties that the applicant has faced and which appear to have become entwined with the misconduct matters that have underpinned her dismissal. 7 The Commission acknowledges certain sensitivities that are relevant in regard to the assessment of the veracity of the applicant's evidence. Upon careful review of the entirety of the evidence, and having regard for the applicant's general demeanour and other exhibited characteristics, wherever the applicant's evidence differed from that provided by other witnesses, the Commission has generally adopted a preference for the latter over the former. 8 The adoption of this preference for the evidence of others over the applicant's testimony should not be translated into any specific finding that the applicant deliberately attempted to provide false or misleading evidence. Although particular points of detail of some of the applicant's evidence were very curious, the Commission is prepared to believe that the applicant may genuinely have a different recollection of various events, and that upon analysis of an alternative recollection, it has appeared that the applicant's memory may be less than reliable. 9 There were a total of eight witnesses that provided evidence on behalf of the employer. All of the employer's witnesses attempted to provide evidence in an open and direct fashion. It is unnecessary to make any detailed record of the observations of each of the various witnesses. The Commission however must record particularly positive impressions that were provided by Ms Pamela Fountain, a person engaged in a position of Executive Assistant. Ms Fountain provided very believable "no nonsense" testimony. The evidence provided by Ms Fountain particularly regarding events concerning an incident that involved the applicant on 17 December 2004, was compelling and notable for its clarity and veracity. 10 The most striking aspect of the evidence provided by the employer was the absence of two potentially important witnesses. The absence of any evidence from Mr Butterworth, Executive Director of the Policy and Resources Division of the Department, together with the absence of Mr Jim Horder, who apparently acted in that position at the time of the applicant's dismissal, meant that the Commission did not have the benefit of direct evidence from the two Senior Managers who apparently took the decision to dismiss the applicant. In many instances the absence of direct evidence from key decision makers in unfair dismissal cases would provide considerable difficulty for any defence of the claim. Consequently, in this case, the Commission has been troubled and a little perplexed by the absence of direct evidence from either Mr Butterworth or Mr Horder. THE CASE FOR THE APPLICANT 11 The applicant was represented at the Hearing by Ms E Raper, barrister. Ms Raper submitted that there was no valid reason for the applicant's dismissal. Further, Ms Raper submitted that the relevant decision maker, namely Mr Jim Horder had not provided any direct evidence and therefore the Commission would be unable to properly conclude as to the reason or reasons for the applicant's dismissal. 12 Ms Raper made further submissions which acknowledged that the applicant had been provided with correspondence signed by Mr Butterworth, wherein it was asserted that the applicant was guilty of various specified incidents of misconduct. Ms Raper submitted that the extent that the Commission could establish any of the alleged acts of misconduct as purportedly found by Mr Butterworth, represented matters of such alleged misconduct which were not sufficient to justify the dismissal of the applicant. To support this submission Ms Raper made detailed submissions about each of the various incidents of alleged misconduct as contained in the letter dated 21 January 2005, signed by Mr Butterworth, and addressed to the applicant (Exhibit 8 - Attachment R). Ms Raper made submissions which contested each of the findings of alleged misconduct. 13 Ms Raper made further submissions which criticised the procedure that the employer had adopted for handling various matters relating to the applicant's employment. Ms Raper mentioned that the applicant had suffered a workplace injury in 2002, and that the employer had not properly managed the arrangements that were required to allow for the applicant to perform limited duties which would not exacerbate her workplace injury. 14 Further, Ms Raper criticised the employer's procedure in respect to the attempted management of certain performance and conduct issues that had been identified in respect to the applicant. In this regard, Ms Raper mentioned that the applicant had made complaint about the conduct of at least two of her Managers, and the employer did not properly handle the complaints and grievances of the applicant relating to the conduct of Management personnel. In addition, Ms Raper criticised the employer's procedure in respect to the investigation and determination of the matters of alleged misconduct made against the applicant. 15 Ms Raper submitted that the applicant's dismissal was harsh, unreasonable and unjust because there was no proper basis upon which to establish the alleged misconduct of the applicant. Further Ms Raper submitted that the applicant had been subjected to inappropriate or incorrect procedures in respect of a variety of processes that included the investigation and determination of the alleged misconduct that gave rise to her dismissal. Ms Raper urged the Commission to find in favour of the applicant and to Order her reinstatement or in the alternative, if the Commission was to find that reinstatement was impracticable, Ms Raper urged the Commission to make Orders for the maximum amount of compensation that was available. THE CASE FOR THE EMPLOYER 16 Ms E Brus, barrister, appeared for the employer. Ms Brus commenced her submissions by stating that the applicant as an employee of the Department of the State & Regional Development, was subject to the provisions of the Public Sector Employment and Management Act. Ms Brus submitted that the employer was therefore required to establish and follow procedural guidelines to deal with the management of conduct and performance issues relating to employees of the employer such as the applicant. Ms Brus submitted that the evidence established that the employer had adhered to a process as set down in guidelines that were established under the Public Sector Employment and Management Act. 17 Ms Brus made detailed submissions about the procedure that was established for dealing with the conduct and performance issues such as those that arose in respect of the applicant. Ms Brus mentioned that the initial process of dealing with the applicant involved the development of a conduct plan that was designed to remedy particular identified problems. Ms Brus submitted that the applicant never accepted or recognised that she had any problems with her work performance or conduct. According to Ms Brus the applicant resisted and objected to the employer having the audacity to raise concerns or problems with her work performance or conduct. Her reaction to the employer's attempted remedial processes involved outrageous allegations against her Managers whereby she claimed that the Managers were stalking her. 18 Ms Brus rejected the suggestion that the employer did not properly manage the workplace injury suffered by the applicant. Ms Brus submitted that the employer had provided for arrangements to allow for certain limitations and other arrangements that would ensure that there was no exacerbation of the applicant's workplace injury. Ms Brus submitted that the applicant's workplace injury did not provide her with immunity from the employer's capacity to properly manage other problems with the applicant's workplace performance and/or conduct. Ms Brus rejected any suggestion that the findings of misconduct arose from aspects of modified work requirements that were necessary as part of the accommodation of the applicant's workplace injury. 19 Ms Brus made further submissions which concentrated upon particular conduct of the applicant during meetings that were held to manage certain performance and conduct matters. Ms Brus made particular mention that the applicant had been represented by Mr Andrew Wilson from the Public Service Association, and that the applicant's conduct had come into criticism from her own representative. Ms Brus said that the applicant conducted herself in an extraordinary manner such that her own representative was required to caution and advise her to calm down. Despite the assistance and advice from Mr Wilson, the applicant continued to act in an agitated and aggressive manner and she spurned all attempts of assistance and counsel. 20 Ms Brus submitted that the manifest refusal of the applicant to properly comply with the reasonable requirements of the employer particularly as established in the conduct plan, provided proper basis for the applicant's dismissal. Ms Brus said that the applicant's conduct particularly on 17 December, demonstrated that the best endeavours of the employer to remedy the applicant's unacceptable workplace behaviour would not succeed. Consequently the employer then moved from the remedial phase of its procedure and commenced a disciplinary process involving investigation of the allegations of misconduct which were ultimately established. 21 Ms Brus submitted that the evidence before the Commission established that there was a valid reason for the dismissal of the applicant. Ms Brus submitted that the protracted nature of the series of incidents of misconduct of the applicant represented justifiable basis for the applicant's dismissal. Ms Brus said that notwithstanding the absence of direct evidence from either Mr Butterworth or Mr Horder, the evidence in the proceedings clearly established various incidents of misconduct which were reflected by the findings that were made by the employer as set out in the correspondence to the applicant from Mr Butterworth dated 21 January 2005. Consequently according to the submissions made by Ms Brus, the applicant's dismissal was neither substantively nor procedurally unfair. CONSIDERATION 22 As mentioned earlier in this Decision, the evidence of the applicant has been treated with some delicacy and sympathy. The Commission has been cognisant that the applicant experienced protracted difficulties at work, including issues surrounding her return to work from absence as a result of workplace injury. Further, the Commission has been mindful that the applicant's first language is not English. Notwithstanding this care and caution, the evidence reveals a number of disturbing aspects of the conduct of the applicant. Stalking 23 The applicant alleged that certain of her Managers were stalking her. The applicant did appear to properly understand the criminal connotation attached with such an allegation. Regrettably the applicant appeared to deliberately misuse the terminology of stalking as the following extract from transcript involving the applicant's cross-examination reveals: "Q. And you go on in your document at page 56 to allege that Steve Hogan was stalking you? A. True. Q. Now when you say stalking, Ms Horton, you're aware that stalking can in some circumstances be a criminal offence? A. Yes. Q. Are you suggesting that Mr Hogan was stalking you in a criminal manner? A. Stalking me in the sense that it wasn't good for me. There was an intention behind it. Q. I see. So when you say he was stalking you, you're not suggesting that he was constantly following you are you? A. He was following me. Q. Constantly? A. Not constantly but by - well, not physically, but by watching me all the time." Transcript of proceedings (07/09/05) @ page 24. 24 The applicant's use of the word stalking was not some unfortunate, unintended exaggeration made as a consequence of English not being the applicant's first language. The applicant used the word stalking to heighten tension and emotion surrounding her complaint. In reality her complaint involved no more than an attack on the Managers who were conducting appropriate and justified supervision of the applicant. Lipstick Mirror 25 The applicant's objection to being scrutinised and supervised by her superiors also manifest in one more bizarre aspect of her workplace behaviour. As with the retaliatory motivation for the use of the word stalking, the applicant installed a small mirror on her computer terminal and faced it towards the office of one of her Managers. The installation of the mirror was an attempt to "return fire" or reflect the unwanted supervision that was being undertaken by the applicant's Manager. When asked about the installation of the mirror, the applicant's responses during cross-examination were less than convincing, as exampled by the following extract from transcript: "Q. I see. So those people who were complaining to Mr Hogan about you are part of this stalking of you on behalf of Mr Hogan? A. Well he's stalking me, so whether it's he himself or somebody else I cannot - all I can see is my observation. Q. I see. And your observation included the installation of a mirror on your computer terminal didn't it? A. Well that mirror is for me to use to groom myself and at the same time put on my lipstick. I would stand up and basically see if there are people around and I can put on my lipstick in privacy. Q. Do you normally put your lipstick on in front of a mirror that's concave and magnified Ms Horton? A. Well that's the only one available in the market that I bought." Transcript of proceedings (07/09/05) @ page 48. 26 Unfortunately the applicant's problems at work increased. By mid September 2004, the applicant had sought the assistance of the Public Service Association and Mr Wilson attended a meeting where a conduct plan for dealing with the applicant's performance and behaviour issues was developed. 27 The conduct plan sought to address a number of basic requirements in respect to the applicant's work performance and/or conduct. The conduct plan contained six broad issues that required attention by the applicant. Firstly, the applicant was required to comply with all reasonable directions from Managers. Such compliance had to be consistent with the work/rest regime and other particular arrangements that had been made in respect to ensuring that there was no exacerbation of the applicant's workplace injury. 28 Secondly, the applicant was required to attend for work between the hours of 10.00 am and 5.00 pm. If the applicant was unable to attend for work between the specified hours certain notification was required. 29 Thirdly, the applicant was required not to divert her office telephone to the voice mail system unless she was on an authorised break. 30 Fourthly, the applicant was required not to make excessive personal phone calls during working hours. In particular, personal phone calls via the applicant's mobile phone were to be limited. 31 Fifthly, the applicant was required not to make telephone calls using any of the Managers' phone extensions unless there was specific approval to do so. 32 Finally, the applicant was directed to not behave in a manner which would be viewed as rude, offensive, harassing, threatening or bullying of other persons in the workplace. In particular, the applicant was directed not to abruptly hang up during telephone conversations, nor use foul language or throw objects at other persons in the workplace. 33 The various requirements of the conduct plan as outlined above represented a reasonable and sensible means by which to remedy any apparent performance and/or conduct issues of any employee. The progress of the conduct plan was to be the subject of review at a further meeting on 25 October 2004. 34 Although there was apparently some improvement in respect to some aspects of the applicant's workplace performance and behaviour, particularly in respect of a reduction in the use of personal mobile phone during working hours, the review meeting on 25 October led to a further unfortunate deterioration in the applicant's behaviour. During the course of the review meeting the applicant became agitated and emotional. The applicant's misconduct during the review meeting was highly regrettable and something that appeared to ultimately be recognised as unsatisfactory conduct by the applicant herself, as the following extract from transcript reflects: "Q. Well, when Ms Edwards was asking you about the ministerial register, you replied that "Is it a matter of life and death. Why do I have to do it now. What is the problem". Do you recall saying that or words to that effect? A. Something like that, yes. Q. And at that point in time Mr Wilson asked you to lower your voice didn't he? A. Well because - - Q. Did he or didn't he? A. He did. Q. He did? A. Yes. Q. And then you went on to say "No, I won't. It pisses me off" didn't you? A. I don't remember if I answered that that way. Q. Well I put it to you did? A. Yes, okay, if that's - - Q. Okay. Do you consider that was satisfactory conduct in the context of this meeting Ms Horton? A. Well, no Q. No? A. Well, no. Okay, no." Transcript of proceedings (07/09/05) @ page 68. 35 As a result of the applicant's misconduct during the review meeting she was placed on special leave. Subsequently the applicant was provided with a return to work plan that was the subject of a meeting upon her return to work on 16 December. 16 and 17 December 36 Despite the considerable efforts of the employer to modify the applicant's workplace behaviour, the events of 16 and 17 December confirmed failure. Although the applicant was under no misunderstanding as to particular requirements that the employer was making, such as attending for work at specified hours, and not making excessive private mobile phone calls etc, the applicant managed to contravene most of the conduct plan requirements during the short time that she attended for work on 16 and 17 December. 37 From the beginning of the return to work meeting on 16 December the applicant's approach did not signal any intention to attempt some rectification of the behavioural issues and was instead the antithesis of conduct that would promote enduring employment. Shortly after the meeting commenced the applicant produced a tape recorder and proceeded to record the discussion with her Managers concerning her return to work. The action of producing the tape recorder would not ordinarily be considered as conducive to restoration of harmonious workplace relations. Further, it appeared that the meeting had been delayed as a result of the applicant not attending for work on time. The applicant was then directed on to standard hours of work which involved the requirement that she be at her workstation at or before 9.00 am on the following day 17 December. 38 The events of 17 December were regrettably a further deterioration in the applicant's behaviour. Although the employer mistakenly believed that the applicant was about ten minutes late for work on 17 December, the evidence established that in fact she was slightly early. The evidence also reveals that the applicant was slightly early because she was endeavouring to obtain unauthorised access to locked cupboards that contained the time sheet records of various of the employees in the Department including her own. 39 The applicant was seen by another employee searching through the drawers of the desk of an Executive Assistant. The drawers contained the keys to the locked filing cabinets that the applicant was endeavouring to access. The employee that saw the applicant's activities reported this matter to the relevant Executive Director. A short time later the Executive Director went looking for the applicant and found her in a locked conference room apparently making either a phone call via the extension in the conference room or via her personal mobile phone which she had in her possession. 40 A meeting was then convened in order to discuss the ongoing problems with the applicant. During this meeting, when the applicant was asked to explain her actions in accessing the locked filing cabinets, she abruptly left the meeting and confronted the other employee who had seen her earlier in the morning accessing the cabinets. The applicant then shouted at the other employee accusing her of "dobbing her in". 41 Consequently in the short period of two days during her return to work after extended special leave, the applicant managed to contravene almost all of the reasonable requirements that had been established as part of the conduct plan aimed at rectifying the applicant's workplace performance and behaviour. 42 The employer then moved to investigate the allegations of misconduct that had been formalised and the applicant was again suspended from duty. The investigation process was extensive and included a transcribed interview with an independent consultant from the Internal Audit Bureau Company. In due course the investigation report was provided to the Executive Director of Policy and Resources Division, Mr Butterworth, and by way of letter dated 21 January 2005, he advised the applicant that he had made certain findings that the applicant had engaged in misconduct. 43 Unfortunately the Commission has not had direct evidence from Mr Butterworth about the particular findings of misconduct that he made. However, the evidence in this matter about various incidents and in particular, culminating in the events of 16 and 17 December 2004, provides the Commission with proper basis upon which to conclude that there were various particular incidents of misconduct of the applicant which collectively, and in the context of a history of attempted remedial action, represented justification for dismissal. 44 Specifically the Commission finds that the applicant's misconduct on 17 December 2004, whereby she firstly attempted to obtain access to certain filing cabinets without authorisation, secondly whereby she made a phone call or phone calls, from within the locked conference room contrary to the expressed direction of the employer, and further whereby the applicant abruptly left a meeting involving serious disciplinary procedures and was loud and abusive towards another employee namely, Pamela Fountain, represents misconduct that justifies dismissal. In addition, prior misconduct on the part of the applicant including but not limited to, a failure to comply with the reasonable and lawful directions of the employer, together with repeated loud, aggressive and abusive conduct in the workplace, provides further, proper foundation for the dismissal of the applicant. CONCLUSIONS 45 Consequently the Commission has established that the applicant committed repeated breaches of the reasonable and lawful instructions of the employer. In addition the applicant's workplace behaviour was unacceptable and despite the employer's concerted attempts for rectification of such behaviour, the applicant was unable to modify her conduct such as to conform with reasonable contemporary workplace standards. 46 The employer conducted an extensive process for providing the applicant with opportunities to make out any defence or provide explanation for the various matters that involved complaint by the employer. The processes followed by the employer were in accordance with an established and documented procedure that broadly provided for an appropriate process for handling matters that might ultimately lead to the dismissal of an employee. Therefore the applicant's dismissal was not procedurally at fault. 47 The Commission must therefore conclude that on both substantive and procedural grounds the employer was entitled to dismiss the applicant. The dismissal of the applicant was not harsh, unreasonable or unjust. The Commission is not prepared to intervene in the employer's decision to dismiss the applicant. Therefore the applicant's claim must be dismissed and the proceedings are accordingly concluded. oooOOOooo 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.