Janaki Kasippillai and St Joseph's Village Limited (2006) NSWIRComm [2006] NSWIRComm 1069 (23 May 2006)

Last Updated: 10 December 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Janaki Kasippillai and St Joseph's Village Limited (2006) NSWIRComm [2006] NSWIRComm 1069



FILE NUMBER(S): 6127

HEARING DATE(S): 22/05/06, 23/05/06

DECISION DATE: 23/05/2006
PARTIES:
APPLICANT
Janaki Kasippillai

RESPONDENT
St Joseph's Village Limited

JUDGMENT OF: Bishop C


LEGAL REPRESENTATIVES

APPLICANT
Mr Berwick, of Counsel
Solicitor, Mr Wilson
Craddock, Murray Neumann Lawyers
RESPONDENT
Mr. Meeham, of Counsel
Solicitor, Ms. Srdanovic
Blake Dawson Waldron

CASES CITED: Antonakopoulos v State Bank (1999) 91 IR 385
Bigg & Anor v New South Wales Police Service (1998) 80 IR 434
Blythe Chemicals v Bushnell (1993) CLR 66
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
Burke v McGirr (1998) 87 IR 54
Busways v Johnson (1994) 55 IR 255
Byrne & Anor v Australian Airlines [1995] HCA 24; (1995) 61 IR 32
Franklins Ltd v Webb (1996) 72 IR 257
Harley Bell v Linfox NSWIRComm 1025
Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3)
(1990) 35 IR 70
Rapp v Wauchope RSL Club (1998) 81 IR 116;
Tradition Australia Pty Limited v Gunson 206 SC 298
Wang v Crestell (1997) 73 IR 454
Western Suburbs District Ambulance v Tipping (1957)
AR NSW 273.

LEGISLATION CITED: Industrial Relations Act 1996



JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: BISHOP C

23 May 2006

Matter No IRC 6127 of 2005

Janaki Kasippillah and St Joseph's Village

Application by Janaki Kasippillai re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2006] NSWIRComm 1069

1 This is an application by Janaki Kasippillai against St Joseph's Village Limited for a remedy pursuant to s 84 of the Industrial Relations Act 1996.

Ms Kasippillai was dismissed from her position of care service employee Grade 2, with the respondent, on 17 November 2005. She sought re instatement to her former position.

2 The matter was listed for conciliation and directions before Commissioner Cambridge on 16 December 2005 at which time conciliation took place. As no settlement could be reached, directions were issued as to the filing and exchange of witness statements. The matter was subsequently set down for hearing, in compliance with Practice Direction 17, yesterday and today, the 22nd and 23rd of May 2006, before the Commission as currently constituted.

3 At the hearing Mr Berwick of Counsel appeared with Mr Wilson, Solicitor, on behalf of the applicant and called the following witnesses:-

Janaki Kasippillai - the applicant

(exhibits 1, 2 and 3);

Ahila Antony, - sister of the applicant

(exhibit 9);

Dominique Wilson, solicitor

(exhibit 10).

Mr Meehan, of Counsel, with Ms Srdanovic, Solicitor, appeared on behalf of the respondent and the following witness statements were tendered as the evidence of the respondent.

Aysel Ozdemir, - Finance Manager

(Exhibit 11),

Jennifer Arnold, - Human Resources Coordinator

(exhibit 12),

Jonathan Anderson, Executive Director

(exhibit 13),

Richard Wood, Internal Auditor

Liberty Financial Pty Ltd

(exhibit 14).

As the witnesses were not required for cross examination they did not appear before the Commission.

BACKGROUND

4 Ms Kasippillai was employed as a Care Service Employee by St Joseph's Village. She commenced as a casual on 7 July 2004 and her permanent employment status was confirmed in writing on 23 October 2004.

In October 2005 Aysel Ozdemir, the Finance Manager, received a phone call relating to information that had been put forward concerning an application for finance for the purchase of a property by Ms Kasippillai, which had resulted in the generation of a letter, purportedly signed by Ms Ozdemir as Finance Manager indicating that she was employed as a Registered Nurse, had been employed since 2002 and was on an annual income of $60,000.

A copy of that letter was subsequently obtained from Liberty Finance.

The letter was brought to the attention of the management of St Joseph's. On 3 November 2005 Ms Arnold prepared a letter concerning allegations about the letter which was provided to Ms Kasippillai. An interview took place with Ms Kasippillai on 7 November 2005 with Ms Arnold and Mr Anderson. That interview was taped and Ms Kasippillai had her sister present as a witness.

Further information was subsequently provided by Ms Kasippillai and also the further investigations that was undertaken by Ms Arnold and Mr Anderson of Liberty Finance and a further meeting was held on 17 November 2005. That further information was discussed and a decision was taken to terminate Ms Kasippillai effective the 17th November.

EVIDENCE

5 It was Ms Kasippillai's evidence that in approximately October 2004, whilst at an Indian festival, she had met Mr Visa Vellu, (to use his short name), at an Indian festival. He was in charge of a booth for Park Trent Properties. It should be noted that Ms Kasippillai is of Sri Lankan background and of Tamil ethnicity, having arrived in Australia in 1999. Mr Vellu is also of Tamil ethnicity.

6 Ms Kasippillai discussed with Mr Vellu the idea of buying a property. There was subsequent contact with Mr Vellu about this and provision of a variety of documentation by Ms Kasippillai in approximately January and February, in relation to seeking a loan for the purposes of purchasing a property. However, at this stage no loan application was completed by the applicant. The applicant enquired of Mr Vellu in February as to what was happening with her loan and was told that she had had to work for six months and have three more payslips and bank statements, which she did subsequently provide. There was further discussion in March and April with Ms Kasippillai and her sister in contact with Mr Vellu about a property in either Melbourne or Queensland, that notion was rejected in May in favour of a property in Sydney.

7 In May Mr Vellu contacted the Ms Kate to indicate that there was a property available in Wentworthville, that it was under $300,000. She had indicated previously to him that she was seeking a property for around $250,000. Inspections of the property were subsequently arranged and there was further financial documentation and detail provided by Ms Kasippillai.

8 In June she signed loan documents and property documents, including a Contract for Sale which she maintained had on it an amount of $300,000 as the purchase price.

9 She indicated during her evidence that she did not read the documentation, simply signed three pages of it. The next day Mr Vellu arranged for her to visit a Solicitor and further documentation was signed at the Solicitor's office.

10 Ms Kasippillah at some stage was also contacted by someone inquiring as to her income, details of which she gave over the phone. Also Ms Ozdemir in her evidence said that in March or April she was also contacted by some man querying Ms Kasippillai's income, and whether it was an amount of $60,000 and what she was employed as. That inquiry does not seem to have been passed on to anyone at that stage. Ms Ozdemir also told Ms Kasippillai about the contact

11 . Mr Vellu at this stage told her that the loan was not approved because her deposit and savings were not sufficient but that she was able to move into the property and rent it for a period. The property was inspected and they did move in and rent the property. This was done in August.

12 On the evidence it appears that possessions were moved into the property and then subsequently Ms Kasippillah and her mother moved in. However, they only stayed on three separate nights, it would appear, during August as mother had concerns about safety and security. Ultimately the applicant moved out giving three weeks notice and on 14 October they moved into the the flat that she now occupies with her mother.

13 In August, whilst still at the Wentworthville property, she was asked to provide further details by Mr Vellu and place them in the letter box at the house. It should be noted that during the evidence it was clear that Mr Vellu only ever visited the applicant either at her residence, whether that be with her mother or her sister, or at the Solicitor's office that Mr Vellu arranged for the applicant to attend. Mr Vellu had provided the applicant with a calling card that was attached to her witness statement that indicated that Mr Vellu was a ”Consultant" with Park Trent Properties Group.

14 Subsequently a person that Ms Kasippillai called Zaidi, but is a person called Zaidi Syed, came to her sister's home with a loan application. This was a new application that she signed. He asked her to sign three pages, again she did not check the content or read the application.

15 In September Ms Kasippillai told Mr Vellu she no longer wished to buy the property and gave three weeks notice and moved out.

16 Also during this time Liberty Finance was undertaking investigations as to the background matters relating to the loan application. Mr Wood's evidence (Exhibit A) attaches a spreadsheet which details a phone call that was made to the applicant on 29 September 2005 in which he noted that she had advised that the loan amount requested was $340,000 on a purchase price of $336,000, and that the property was to be owner occupied.

17 Ms Kasippillai indicated in evidence that the valuation of the property was $340,000, she had only intended to borrow $300,000. At some stage there was an issue about the deposit being insufficient and Mr Vellu had told her that she needed to obtain a greater deposit and also indicated that she needed to have additional monies for lawyer's fees and other expenses.

18 Ms Kasippillai had previously applied for finance for the purchase of furniture through Harvey Norman via one of their interest free arrangements. The finance for such purchase was provided by GE Credit and Ms Kasippillai completed an appropriate form and provided payslip details. Ms Kasippillah also had applied for a credit card, initially with the Commonwealth Bank and subsequently with the St George Bank and on both occasions provided payslip details to those institutions.

19 On questioning from the Commission she indicated that at no stage had she ever been required to provide a letter from her employer providing pay details.

20 It was the evidence of the respondent that the letter that purported to be from the Finance Manager was not the standard sort of letter that was provided by St Joseph's Village. It did not have a water mark impressed on it and the details of the Finance Manager could not have been known by anyone outside the organisation.

21 It was the evidence of Mr Anderson that following the interview process that had been undertaken, he came to the view that on balance Ms Kasippillai had provided false information or was otherwise complicit in the provision of false information to obtain a benefit. He regarded this as a very serious issue as it was contrary to the Code of Conduct and Ethics of St Joseph's Village. It also raised serious issues about the trust that could be reposed in on Ms Kasippillai in the carrying out of her duties in relation to the care of persons resident at the St Joseph's Village.

22 Mr Anderson also deposed that he had lost all trust and confidence in Ms Kasippillai based on his investigation into the allegations of misconduct against her, and having regard to the high degree of autonomy, and level of trust and responsibility associated with the position of Care Service Employee.

23 Mr Wilson's evidence went to the efforts that had been made to try and contact Mr Vellu to seek to have him clarify issues in relation to the documentation that was in question, namely, the letter purportedly from the Finance Manager of St Joseph's Village. He had left messages at Raine & Horne and had also faxed him a copy of the letter in question as requested.

24 Mr Wilson's evidence also outlined the inquiries that had been made of Forensic Document Services Pty Limited in relation to having the documents in question forensically examined as to their authenticity and origin as to who may or may not have signed them.

SUBMISSIONS

25 Mr Berwick on behalf of the applicant submitted that the termination of Ms Kasippillai in all the circumstances was harsh, unjust and unreasonable.

26 There had been no complaint about her job performance or the duties that she had carried in her position. He invited the Commission to conclude that her performance was adequate, as no issue had ever been raised.

27 The case was based on false documentation that was not produced by anyone at the retirement village. It was falsified by persons unknown and whilst names had arisen during the course of proceedings and suspicions certainly raised, it would not be proper to go further and there was no evidence that could take the matter any further.

28 Mr Berwick cited the appropriate authorities to be relied on in such matters, and the onus that had to be established by the respondent as set out in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

29 He also relied on Blythe Chemicals v Bushnell (1993) CLR 66 at 81 82. In relation to the issue that where there had been a person whose name had been blemished and reduced in employment, a higher standard of proof must be established to where misconduct was alleged. Ms Kasippillai had essentially been accused of a crime, that of fraud. Wang v Crestell (1997) 73 IR 454 was also relied on, and the comments of the Full Bench, particularly at 463 to 464 concerning the onus that was required to be established by the res[pondent.

30 It was submitted that nothing had been established that would enable the Commission to be satisfied that those standards in Wang v Crestell had been met, either to justify the dismissal in the first place, or indeed to deny re instatement.

31 There was evidence that the applicant had sought to mitigate her loss and had discovered and encountered extreme and insuperable difficulty in applying for subsequent positions. On two occasions she was told that she needed references from an immediate supervisor.

32 It was submitted that re instatement was not only the primary remedy under the Act, but the only way that an applicant could be restored in relation to their good name and future job prospects.

33 It was also submitted that procedurally there were flaws in relation to the interviews that were undertaken by the respondent and particularly the reliance placed by the respondent on the basic premise that it was Ms Kasippillai who was the only one who had an interest in the falsification of the documents. Certainly Mr Vellu and Mr Syed worked in an industry where there are both profits and commission and also had an interest. The record of interview clearly shows that the whole process proceeded on an incorrect premise, that Ms Kasippillai was the only one to have an interest and to be affected. That had resulted in the conclusion reached by the employer and visited an injustice on the applicant.

34 The onus had not been satisfied and discharged by the respondent to enable the Commission to come to a conclusion in this matter that misconduct had taken place.

35 There was no attempt by the respondent to properly investigate or contact the person at the centre of the suspect transaction. The only party who did that was the applicant through her solicitor.

36 The Commission was entitled to draw the inference that Mr Vellu did not wish to participate in these proceedings based on the evidence of Mr Wilson.

37 It was also submitted that the evidence, by way of witness statements, was one thing but the actual evidence of the applicant in the proceedings should also be taken into account.

38 Nothing had come out which would give the Commission concern as to the applicant's honesty.

39 There was extensive cross examination on the issue of the Contract of sale. However there was documentation that subsequently emerged that suggested that there were in fact a number of versions of that Contract and that white out had been used by some person on those versions. Those circumstances underpinned the applicant's evidence that indeed figures had been whited out and altered.

40 It was submitted that the Commission could safely conclude that she was telling the truth as best she could recollect. She had made a number of attempts to clear her name. She had nothing to fear from in fact contacting Mr Vellu and trying to ascertain who had initiated the documents. The applicant was the only one who had tried to do this. The applicant also had nothing to fear from any forensic examination of the documents.

41 The applicant had been treated badly by the respondent and the only way to remedy that treatment was re instatement. Re instatement is the whole purpose of the Act.

42 Mr Berwick also relied on Tradition Australia Pty Limited v Gunson 206 Supreme Court 298 a decision of Barrett J in the Equity Division delivered on 13 April 2006 concerning the specific performance of the contract of employment.

43 It was submitted that there was a policy provision underpinning the Act that the only remedy that can justly recompense an applicant was re instatement.

44 It was also submitted that the respondent could not have a manifestly inadequate investigative process and say that that had created doubts in the respondent's mind and therefore a barrier to re instatement.

45 Mr Meehan on behalf of the respondent submitted that he concurred with Mr Berwick as to the relevant authorities concerning the onus on the respondent and the appropriate standards to be applied in this matter.

46 He submitted that the Commission could make a positive finding that misconduct had occurred. That was available on the evidence before the Commission. The applicant had motive - she wanted to buy a house. She did not have more than $250,000 and there was a house at Wentworthville for $300,000 which was outside her price range. She had signed a Contract in 2005 and made application for finance which was declined. She understood the need to obtain more money in order to be able to make a successful application. That was made on 30 August.

47 It was submitted that the Commission could readily infer that getting finance was in fact important to the applicant and she had made application for that finance and provided false details in relation to that.

48 There were also submissions made as to the applicant's credit, that her evidence was improbable and inconsistent and relied on Mr Vellu being the one who had prepared documentation. Her story was difficult to accept. There were also inconsistencies raised regarding the fact that she had determined to not occupy the Wentworthville residence in August, yet had a conversation with Mr Wood in September concerning the fact that she wanted to borrow $340,000 when she asserted she only needed $300,000. This was not correct. Her uncle had agreed to contribute additional finance to her.

49 The applicant's credibility was also in question as to her seeking to have this Commission accept that she had signed contracts and loan applications without reading the documentation. It was incredible to accept that she would enter into any such documentation.

50 The evidence was all designed to lead the Commission into thinking that the applicant was naïve. That was improbable on the balance of probabilities.

51 Whilst the applicant had insisted she had only made one application, the evidence showed she did concede that there had been an earlier application in June. It was submitted that on careful consideration of the evidence the Commission could not come to any conclusion other than that the applicant had falsified documentation to support a loan application.

52 In relation to the evidence concerning Mr Wilson, it was submitted that Mr Vellu told him that he had not seen the document and there was no evidence from Mr Vellu that he could have known of the name of the Finance Manager or indeed that there was such a position of Finance Manager. There was also no evidence that anyone else knew that there was a position of Finance Manager at the village.

53 The Commission therefore had to focus on the probabilities in this matter. . There were also strong inferences that could be drawn concerning the group certificates and information that could not have come into Mr Vellu's possession. There was no evidence linking that documentation with Mr Vellu. All that documentation, the group certificates and the letter, had been designed to enhance the applicant's prospects of obtaining a loan.

54 It was conceded however that the Commission had to be satisfied to the requisite level that misconduct fhad taken place. It was finally submitted that the authorities were clear and if the Commission was satisfied that the conduct alleged had taken place then concerns as to the conduct of the interview became relevant. The nature of any conduct by an applicant could outweigh procedural issues. The conduct that the applicant was accused of clearly contravened the respondent's code of conduct and ethics and was conduct that was repugnant to the continuation of the employment relationship and warranted summary dismissal.

55 It was accepted that the primary remedy under the Act was re instatement. However, the Commission should find that such remedy was impracticable if it found that in favour of the applicant. There was the evidence of Ms Arnold and Mr Wood in relation to the loss of trust and confidence. The Commission was asked to be mindful of the nature of the organisation; the duties that were required to be carried out by the applicant and the level of responsibility in carrying out those duties in an unsupervised way That should weigh heavily against any considerations of re instatement if such were to be looked at.

56 If compensation was to be considered it was submitted that the starting point for such consideration was the annual salary of $28,000. It was submitted that if the misconduct had occurred then the only option was for the Commission to dismiss the application.

57 If the Commission was satisfied that the misconduct had not occurred then clearly it was accepted the respondent had not satisfied the onus that was on it.

58 In reply Mr Berwick took the Commission to the evidence of Mr Wilson and countered the submissions of Mr Meehan concerning what Mr Vellu had said in reply to Mr Wilson's telephone inquiry and submitted that when you looked at all of the paragraphs in Mr Wilson's statement it showed that Mr Vellu was wan and that he asked for the letter. He avoided subsequent attempts to contact him and the only conclusion that could be drawn was that he had something to hide. In particular he drew the Commission's attention to paragraphs 8 and 9.

59 It was also submitted that it was never put to Ms Kasippillai that she had involved Mr Vellu in any way purely to cover her dishonesty. It was also rejected that the only person who had intimate knowledge of the Village and Ms Ozdemir and that she was the Finance Manager was the applicant. Other persons had rung the Village and spoken to Ms Ozdemir, that was in her evidence. It was a substantial enterprise, and knowledge of the Village may be widespread.

60 As far as the group certificate and the letter and the submissions made by the respondent, Mr Berwick said that on the one hand the respondent was placing reliance on the applicant's certainty of knowledge concerning the letter, yet on the other hand suggesting that she did not have the wit to find out the name of the person who was authorised to write the group certificate.

61 In relation to trust and confidence it was submitted that senior management did not spend time working with the applicant on a day to day basis. She occupied a junior position and really if there was any genuine concern at her working with elderly people that would have resulted in evidence being led by her immediate supervisor or those in a supervisory position. Re instatement of the applicant was pressed.

Consideration:

62 I have given very careful consideration to the evidence and the submissions of the parties in this matter.

63 The parties correctly identified that the appropriate standard of proof to be applied in matters relating to misconduct, commonly referred to as the Briginshaw v Briginshaw standard. The tests in Briginshaw v Briginshaw have been applied in numerous decisions of this Commission, and indeed were applied in Wang v Crestell.

64 I have also had the opportunity during the course of these proceedings of observing the demeanour of the applicant. It was quite clear from the difficulties that were encountered, particularly by Mr Meehan and indeed by the Commission, in putting questions to the applicant and having the applicant understand what was being asked of her, and indeed being able to respond that there were communication problems. Certainly there can be no issue that Mr Meehan did not ask reasonably straightforward questions, but on many occasions the language that Mr Meehan used was clearly not being understood by the applicant.

65 It is quite clear from the evidence, in my very firm view, that in this matter we have an applicant who has placed her trust in a person from the same ethnic background, and relied on that person and the efforts that he was expected to expend on her behalf in relation to the purchase of the property and the various loan applications.

66 When one looks at the documentation relating to this matter it is clear that a number of questions can be raised about Mr Vellu. One notes that he purports to represent Park Trent Properties and yet evidently is located at an estate agent that does not appear as the agent on the Contract of Sale (Exhibit 4). When you look at Exhibit 4, and all the subsequent versions of the Contract, they indicate that the agent for the Wentworthville property is Visa Vellupillai. No mention was made of Raine & Horne, although I note that Mr Wood in making his inquiries in relation to the loan application in September contacted Raine & Horne to inquire as to the security of the property and was advised by a gentleman at Raine & Horne that they could not find the property listed. However, once Mr Vellu's name was mentioned it was indicated that he was a partner and therefore it must be okay. In my mind that raises considerable doubt as to whether Raine & Horne had any knowledge of this transaction at all, and indeed raises doubt about Mr Vellu's role in the whole matter.

67 It was apparent, in response to questions from the Commission, that Ms Kasippillai did not appreciate that Mr Vellu was in fact acting on behalf of the vendor and was not in fact acting as her agent. It is also apparent from questions from the Commission that the vendor, as listed on the various contracts, is also a person of Tamil extraction. Certainly the Commission cannot draw any firm conclusions but it is equally certain there great deal of suspicions are raised as a consequence of the activities of Mr Vellu in particular and his whole role in this matter.

68 It should be noted that in response to the submissions made by Mr Meehan that there had been an earlier loan application that was not acknowledged by Ms Kasippillai, the initial inquiry by her of Mr Vellu seems to have been

a general one about a loan application. She provided a whole lot of information, documentation, driver's licence, payslips, bank statements and so forth, very early in the piece, in February. She asked him about the progress of the loan application but it is quite clear that at that stage no actual loan application had been completed by her. That application is not completed until June because Mr Vellu told her that she must have another six months of employment and three more payslips, which she subsequently provided.

69 The reason given for the failure of the June application is that she has insufficient money in the bank and an insufficient deposit. That is when further issues are raised about the uncle and the assistance with the deposit and it can be noted from her bank records that the additional money for the $5,000 that she was obtaining was in fact deposited in her bank account in September. only a matter of a week or two prior to the phone call with Mr Wood.

70 Under normal circumstances one would have thought it would raise suspicion in the minds of anyone that all the dealings with this agent are conducted either where Ms Kasippillai resides, or over the phone never at his office. Indeed I note that at one stage when she is to provide further documentation to Mr Vellu she is asked to place it in the letterbox of the premises of the Wentworthville property, where at that stage she has moved to - that is in August.

71 It is quite clear from the additional contract documents that were obtained on subpoena from Liberty Finance that there have been alterations made in liquid paper to that documentation. Who has made those alterations cannot be established and there was clearly insufficient evidence to make any findings in relation to that issue.

72 I further note that the evidence of Mr Wood clearly indicates that he in fact only made one call, as listed on that spreadsheet, and that was to the applicant He he made a call to Raine & Horne. The other entries on the spreadsheet emanate from another person at the company.. There is reference at the first entry of the spreadsheet to a second call to "the employer", (The Village) presumably there was an earlier call to the employer which is not noted. Given that Mr Wood on his evidence, only had one phone conversation with the applicant and given the clear and obvious difficulty that the applicant had in understanding Mr Meehan's questions and sometimes the Commission and Mr Meehan and Mr Berwick understanding the applicant's responses I have no doubt whatsoever that there could clearly have been a misunderstanding on the part of Mr Wood of what she was telling him. It is apparent that the valuation of the property was $340,000 and apparent there is no doubt that properties can be valued at amounts either higher than or lower than the purchase price.

73 I accept the submissions that are made by Mr Berwick that obviously Mr Vellu and Mr Syed are persons who also have a financial interest in this transaction They operate in an industry where there are commissions that are paid. There is not sufficient evidence to establish just what the relationship is between Liberty Finance and Mr Syed as a broker on behalf of Mr Vellu nor what other financial benefits might have emanated to either person.

74 It does not take anyone of very great intelligence or very much imagination to look at the fact that Ms Kasippillai is not the only one with a vested interested in a successful loan application. Indeed, whilst the real estate industry and the finance industry are replete with very genuine, honest, upright and reputable companies, there is no doubt that in those two industries there has been publicity over recent years about rogues in the industry who seek to take advantage of the gullible in the community to their own financial advantage, nor only in relation to mortgages and finance, but also in relation to the purchase and sale of properties.

75 It is clear that Ms Kasippillai placed her trust in Mr Vellu principally, I believe, on the basis of the shared Tamil background. If she is guilty of anything it is being naïve and gullible.

76 I do not believe that Ms Kasippillai in any way was responsible for production of the letter purported to come from the finance manager, or indeed the group certificate.

77 The information that Ms Kasippillai had provided to Mr Vellu would have enabled a group certificate to have been prepared and these days those types of group certificates can be readily generated by most computer accountancy programs. It is not difficult. She had provided information in relation to her taxation return and assessment, and it would have been abundantly easy for a third party to get hold of letterhead from St Joseph's Village.

78 Certainly I have examined and compared the letterhead that was provided by the applicant to Mr Vellu by way of her original letter of casual employment, and her subsequent letter confirming her permanent employment, and yes, there are differences between that type of letterhead, particularly in relation to the bottom, and the letterhead that purports to be from the Finance Manager. However, I do not consider that that is totally fatal to the appicant's case such material could have been obtained in any number of ways, as could have the information relating to the salary of a registered nurse.

79 Estate agents and persons involved in providing finance and assisting in finance being obtained, clearly have dealings with a variety of people in the community and therefore acquire a variety of knowledge about various occupations and the levels of remuneration that are available. That type of information is readily available on the internet and from the Department of Commerce. To imply that the position of this specific title, Finance Manager, and other information that was purportedly only available to the applicant and not available to anyone else is not reasonable. This is not a secret organisation, we are not talking about classified documentation and information that could not be obtained by some person who sought to use it inappropriately.

80 The onus is clearly on the respondent to establish that misconduct took place and that that misconduct warranted summary termination. The decision that is generally applied is Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 that was applied in Wang v Crestell and has been applied in numerous other decisions of this Commission.

81 The Commission must then be satisfied that that onus has been discharged and misconduct has occurred. In New South Wales Fire Brigades Employees' Union (on behalf of Natoli) v New South Wales Fire Brigades (2005) NSWIRComm 440, Sams DP identified at paragraph 218 that four questions arise for consideration in cases for summary dismissal for misconduct.

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 of employment?

4. Were mitigating factors taken into account?

82 The standard I need to apply in considering those issues is the Briginshaw v Briginshaw standard. Applying the Briginshaw v Briginshaw standard I am unable to find that the respondent has established that Ms Kasippillah committed the misconduct of which she was accused. I am of the very firm view, having heard the evidence of the applicant, having considered all of the evidence, that she was an innocent and gullible victim of someone else's misconduct in this case. In arriving at that conclusion I have taken into account the evidence, the submissions of the parties and the demeanour of the applicant.

83 If I answer the first question posited by Sams DP entirely in the negative, it is then unnecessary for me to consider the remaining three questions posed.

84 Whilst the onus is on the company to establish that misconduct has occurred, per Pastrycooks, there still remains the onus on the applicant to establish that the termination was harsh, unjust or unreasonable, per Western Suburbs District Ambulance v Tipping (1957) IRNSW 273.

85 A dismissal can be both substantively and procedurally unfair, and the case usually quoted in this regard is the High Court judgment in Byrne & Anor v Australian Airlines (1995) 61 IR at page 72.

86 Having found on the evidence before me, and applying the standards required, that misconduct did not occur it follows that on substantive grounds the dismissal of Ms Kasippillah was harsh, it was unjust and it was unreasonable.

87 In relation to concepts of procedural fairness Byrne & Anor v Australian Airlines has also been relied upon in Full Bench decisions of this Commission, including Wang v Crestell Industry, Rapp v Wauchope RSL Club (1998) 81 IR 116, Bigg & Anor, New South Wales Police Service (1998) 80 IR 434, Burke v McGirr (1998) 87 IR 54, Busways v Johnson (1994) 55 IR 255, Antonakopoulos v State Bank (1999) 91 IR 385 and was also relied on by Sams DP in Natoli.

88 I do have some concerns that the procedures followed by the respondent in relation to the interview process. The respondent cannot be faulted for the process as a whole, in terms of it properly put the allegations to the applicant in writing; giving her a copy of the letter; holding interviews at which she had the opportunity of having a witness present; interviews were taped; there were copies available of the interview process; she was able to go away and seek further information if that was available. The respondent made further inquiries and there was a second interview before the decision to terminate was made and termination took place.

89 However, the flaw in that process arises from the investigation that the respondent undertook. The only investigation that the respondent undertook was of Liberty Finance. It did not undertake any investigation involving Mr Vellu. Liberty Finance are the end product of all the documentation that has been provided by Mr Vellu or Mr Syed. That documentation resulted from documentation that the applicant provided, not directly to Liberty Finance, but to Mr Vellu. So there is no direct link between the applicant and Liberty Finance, or any other finance company. Any investigation could more properly have been made of Mr Vellu.

90 It had been clearly indicated by the applicant in those two interviews that she had provided everything to the "real estate man." That is where the inquiries should have been made. Which is not to say that based on what the employer had before it, that it was not totally unreasonable for it to form the suspicion that it did. But I think perhaps it too readily jumped to the conclusion that the only person with an interest, was Ms Kasippillai. Obviously there are other persons that do benefit financially from the purchase and sale of the property and from the undertaking of a loan.

91 Clearly the premise that the respondent has operated on, that only the applicant was the one that had access to the information that was subsequently provided, that also is just not correct. Based on all of the documentation that the applicant provided to Mr Vellu he could have gone about putting together documentation that was then subsequently relied on by Liberty Finance, who are simply relying on what documentation provided to them by this third party.

92 I therefore have concerns that procedurally the investigation of the respondent was flawed in that the appropriate party was not properly investigated, and to that extent procedurally the termination of Ms Kasippillai is then harsh, unjust and unreasonable.

93 The other issue that I must take into account in considering this matter is the remedy sought by the applicant. The applicant seeks re instatement. The termination of the applicant for misconduct and the grounds of that termination do raise serious questions about her character that should certainly be resolved.

94 In Natoli Sams DP indicated that the summary dismissal of an employee for misconduct could also have had serious and sometimes long term implications for an employee. It was for that reason that the Full Bench in Franklins Ltd v Webb (1996) 72 IR 257 reminded employers of the need to be fully satisfied that misconduct had been committed and that the conduct justified dismissal. That decision was also applied by the Deputy President in Hill v the Department of Juvenile Justice where he observed, in paragraph 62 63:

"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 employees 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."

He then goes on to say:

"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."

95 As I observed in Harley Bell v Linfox NSWIRComm 1025 earlier on this year, having found that the termination of the applicant was harsh, unjust or unreasonable, that the applied did not commit the misconduct of which he was accused and sought re instatement, that do otherwise would be to visit a further injustice on the applicant.

96 There were submissions made that the respondent had lost trust and confidence in the applicant. I note that Mr Anderson and Ms Arnold did not have the opportunity of being present during proceedings and, did not have the opportunity of hearing the applicant in the witness box. I have had that opportunity. I have had the opportunity of carefully considering all the evidence, of carefully considering the evidence of the applicant. I have found the applicant to be an honest person in my view. I found her to be a gullible and naïve person.

97 There is no issue that the applicant's performance was anything other than entirely satisfactory during her employment. I can see no good reason why she should not be re instated and I frankly am disappointed that the respondent should express views that if it is that she had not committed the misconduct that they still could not place trust and confidence in her. If she did not commit the misconduct for which she was dismissed, then there can be no issue as to her character or her capability of continuing to carry out her role at St Joseph's Village.

98 I am very mindful of the nature of this industry. I was part of the Full Bench that looked at the work of Registered Nurses and Assistant in Nursing in the aged care industry. I am extremely mindful of the very high standards required in such establishments. I take particular note of the very commendable Code of Ethics and Conduct that the respondent has, and I have no doubt that the respondent takes its obligations to its employees and to those in its care very seriously.

99 But I stress that I have had the opportunity observing the applicant in the witness box, and of considering all the evidence.

100 In my view misconduct did not take place. Ms Kasippillai is innocent of the allegations that were made against her. She has been the victim of someone else's misdoing.

101 She seeks re instatement. I can see no good reason why she should not be re instated, and why her name should not be totally cleared and Ms Kasippillai be able to continue working in this industry.

102 I therefore make the following orders:

ORDERS

1. Janaki Kasippillai is to be re instated to her position of care service employee Grade 2 with St Joseph's Village Limited.

2. Such re instatement is effective from 17 November 2005 without loss of continuity or service.

3. Ms Kasippillai is to commence work on the next shift practicable.

4. These orders take effect on and from today's date, 23 May 2006.

Elizabeth Bishop

Commissioner


LAST UPDATED: 15/08/2007