Samaraweera v Director-General of Health [2011] NSWIRComm 1009 (10 March 2011)

New South Wales Industrial Relations Commission

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Samaraweera v Director-General of Health [2011] NSWIRComm 1009 (10 March 2011)

Last Updated: 23 June 2011

Industrial Relations Commission New South Wales

Case Title:	Samaraweera v Director-General of Health
Medium Neutral Citation:	[2011] NSWIRComm 1009
Hearing Date(s):	7,8,9,27 July 2010 and 5,13 August 2010
Decision Date:	10 March 2011
Jurisdiction:	Industrial Relations Commission
Before:	Bishop C
Decision:	Application dismissed
Catchwords:	UNFAIR DISMISSAL - physical altercation between two staff specialists - no eye witnesses to entirety of incident - some corroborative evidence as to some issues - conflicting evidence - complainant had already resigned and in notice period - two allegations of physical violence by one staff specialist against the other made - disciplinary investigation undertaken - only one complaint investigated - allegations sustained - dismissal of staff specialist - unblemished work record - issues of procedural fairness raised - reinstatement sought - onus and burden of proof tests applicable - second allegation sustained and first allegation sustained on balance of probabilities - serious misconduct found - no procedural fairness issues to warrant intervention - dismissal not harsh unjust or unreasonable in all of the circumstances given severity of misconduct - application dismissed.
Legislation Cited:	Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 Transport Administration (Staff) Regulation 2005
Cases Cited:	Antonakopoulos v State Bank (1999) 91 IR 385. Australian Services Union of NSW and Sydney Water Corporation [2008] NSWIRComm 1064 AWU-FIME Amalgamated Union v. Queensland Alumina Limited (1995) 62 IR 385 Barten v Williams (1978) 20 ACTR 10 Bhandari v Advocate's Committee [1956] 1 WLR 1442 Bigg v NSW Police Service (1998) 80 IR 434 Bounouar v The Spanish Club Ltd (1998) 94 IR 166 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Budlong v NCR Australia [2006] NSWIRComm 288 Burge v NSW BHP Steel Pty Ltd[2001] NSWIRComm 117 Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 Caspanello v Telstra Corporation (PR922915) Williams SDP, Lacey SDP and Simmonds C, 27 September 2002 and Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 Cockayne v Hurstville City Council [2009] NSWIRComm 1013 Coles Myer Ltd v Shop, Distributive and Allied Employees Association (1989) 27 IR 299 Concut Pty Ltd v Worrell and Anor [2000] HCA 64; (2000) 103 IR 160 Department of Health v Perihan Kaplan[2010] NSWIRComm 65 Four Sons Pty Ltd v Limsiripothong [2000] NSWIRComm 38; (2000) 98 IR 1 Franklins Ltd v Webb (1996) 72 IR 257 G J Coles and Company Limited v Shop, Distributive and Allied Employees' Association of New South Wales (1983) 6 IR 42 G v H [1994] HCA 48; (1994) 181 CLR 387 Graham v South Eastern Sydney & Illawarra Area Health Service [2010] NSWIRComm 1023 Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 In re H. and Others (Minors) [1996] AC 563 Marsden v Amalgamated Television Services Pty Ltd [2002] NSWCA 419 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 New South Wales Fire Brigade Employees (on behalf of Natoli) v New South Wales Fire Brigades [2005] NSWIRComm 1170 New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 Nikolis v South Eastern Sydney & Illawarra Area Health Service [2009] NSWIRComm 1091 North v Television Corporation Ltd (1976) 11 ALR 599 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Transport Industries Insurance Co v Longmuir (1997) 1 VR 125 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273. Whitlam v Australian Securities and Investment Commission [2003] NSWCA 183; (2003) 199 ALR 674. Wilcox v Sing [1982] 2 Qd R 66
Texts Cited:
Category:	Principal judgment
Parties:	Dr Ushma Samaraweera (Applicant) Director-General of Health in respect of South Eastern Sydney Illawarra Area Health Service a division of NSW Health (Respondent)
Representation
- Counsel:	Mr T Saunders of counsel (Applicant) Ms E Brus of counsel (Respondent)
- Solicitors:	Morris Legal (Applicant) South Eastern Sydney Area Health Service (Respondent)
File number(s):	IRC 138 of 2010
Publication Restriction:

DECISION

1. This matter concerns an application by Ushma Samaraweera against the Director-General of Health in respect of South Eastern Sydney Illawarra Area Health Service a division of NSW Health ("SESIAHS") for a remedy pursuant to s.84 of the Industrial Relations Act. Dr Samaraweera was dismissed from her position of Staff Specialist Pathologist at the Prince of Wales Hospital by the SESIAHS on 4 February 2010. She sought reinstatement to her former position.

2. The matter was listed for conciliation and directions on the 16 March 2010 before Commissioner Tabbaa, at which time conciliation took place. The parties were to confer further and the matter was set down for report back and directions on the 29 March 2010. As no settlement was able to be reached between the parties, directions as to the filing and exchange of witness statements were issued pursuant to Practice Direction 17. Those directions were further amended by Justice Staff on 9 June 2010 and hearing dates set for the 7,8 and 9 July 2010 before the Commission as currently constituted.

3. The hearing was conducted over the 7, 8, 9, July as well as the 27 July and the 5 and 13 August 2010.

4. At the hearing Mr Saunders, of Counsel, appeared on behalf of Dr Samaraweera and the following witnesses gave oral evidence in addition to their affidavits as filed:

Dr Ushma Samaraweera - applicant (Exhibits 7 and 8),

Dr Roger Crouch - Senior Staff Specialist, Prince of Wales - Hospital (Exhibits 5 and 6),

Dr Catherine Camaris - Acting Director Anatomical Pathology, Prince of Wales Hospital, (Exhibit 15),

Dr Peter Bullpitt - Senior Staff Specialist, Prince of Wales Hospital (Exhibits 20 and 21).

5. An affidavit was also filed on behalf of Dr Frederick Joshua , Staff Specialist, and the husband of Dr Samaraweera (Exhibit 14), however he was not required for cross-examination.

6. A Summons to Give Evidence pursuant to s.165 (3)(b) of the Act directed to Dr Ella Sugo was also filed by Morris Legal on behalf of the applicant. Dr Sugo duly attended in response to the Summons and gave oral evidence on 7 July 2010.

7. Ms Brus, of Counsel, appeared on behalf of the SESIAHS and the following witnesses gave oral evidence in addition to the affidavits as filed:

Dr Lyndal Edwards - Anatomical Pathologist, Prince of Wales Hospital, (Exhibit 22),

Dr Claire Cooke-Yarborough - Anatomical Pathologist, (Exhibit 27),

Dr Sue Fredericks - Pathologist, (Exhibit 28),

Ms Margaret Savage - Manager, Professional Practice Unit, SESIAHS, (Exhibit 29),

Mr Terry Clout - Chief Executive, SESIAHS (Exhibit 37)

8. With the consent of the parties further conciliation was conducted on the first day of the hearing, however that conciliation was unsuccessful.

Background and chronology - taken from the transcript and the evidence filed.

9. Dr Samaraweera commenced employment with the SESIAHS as an Intern in 1999, becoming a Resident Medical Officer in 2000. She transferred her specialist training in anatomical pathology from Wollongong Hospital to the Anatomical Pathology Unit at Prince of Wales Hospital ("the Unit") in 2001, completed her training in October 2006 and then commenced as a Staff Specialist with the Unit and remained in this position until her termination in February 2010. At the time of her dismissal Dr Samaraweera was working 28 hours per week, Mondays to Thursday, on a permanent part-time basis.

10. Dr Fredericks was employed by SESIAHS as an Anatomical Pathologist in the Unit from March 2007 to 20 September 2009. She had submitted her resignation from her position on 24 August 2009 giving 4 weeks' notice. On the 9 December 2009 she commenced employment as a Pathologist with a private sector pathology provider.

11. On the morning of 3 September 2009 an altercation took place in the corridor of the Unit between Dr Samaraweera and Dr Fredericks after they had walked past each other and a "bumping" had occurred. The altercation involved physical contact between the two women, in the course of which an A4 empty plastic filing tray (Exhibit 13) being carried by Dr Samaraweera was broken. Each accused the other of initiating the physical contact and of punching, and striking with the tray/punching the tray, causing it to break into at least three pieces. Each maintained that they acted in a defensive mode in the face of the physical attack by the other person.

12. A diagrammatic representation of the relevant section of the Unit showing the corridor, with various named doctors' offices on either side (Exhibit 1) was also relevantly marked by each witness on a separate copy showing their individual position when anything in the corridor was sighted/occurred and also the relative positions of Drs Samaraweera and Fredericks, as well as their evidence as to their relative positions during the various stages of the altercation, (Exhibits 4a through to 4g,iii).

13. It was generally agreed that the corridor in question was approximately 2.5 metres in width and was sufficiently wide enough to allow two persons to walk past each other. There was nothing in the corridor to block access. The location of the various doctors' offices is shown on Attachment "A" to this decision being an unmarked copy of Exhibit 1.

14. Dr Fredericks is 175 cms (or 5'9") tall and Dr Samaraweera is 158 cms (or 5'2") tall. Neither doctor could accurately remember what type of shoes they were wearing that day. Dr Fredricks wears low heeled shoes not high heels.

15. Dr Fredericks maintained that she sustained bruising to her right arm, as well as an abrasion to her right arm, as a result of the incident. She subsequently had photographs of her injuries taken by a professional photographer on Monday 7 September 2009 (Exhibit 26).

16. Dr Fredericks maintained that Dr Camaris was in the corridor when the physical contact commenced and after the incident concluded and Dr Samaraweera had gone into her office. Dr Fredericks followed Dr Camaris into her office and alleged that Dr Camaris had seen what had occurred and had taken no action. This was denied by Dr Camaris. Dr Fredericks also picked up the broken pieces of the tray and placed them on the bench inside Dr Camaris' office.

17. Dr Cooke-Yarborough came to her office doorway after the altercation concluded and observed Dr Fredericks holding the broken pieces of the tray and speaking to Dr Camaris.

18. Dr Edwards maintained that she saw part of the altercation from where she was standing in her office doorway. She subsequently briefly went and spoke to Dr Fredericks in her office and also spoke to Dr Camaris in her office.

19. Dr Crouch, who had been in the laboratory at the end of the corridor (but not within sight of the corridor) also came into the corridor after the altercation had concluded and Dr Fredericks rolled up her sleeve and showed him the bruising and abrasion and told him that Dr Samaraweera had hit her with a tray and that Dr Camaris had seen the whole thing and was not going to do anything about it. Dr Camaris denied that she had seen anything.

20. Dr Fredericks subsequently went to A/Professor Wilson's office and told him about the incident. No-one else was present during this discussion. She then left the hospital went and saw her local GP at Randwick and then went home. She was absent on sick leave until her resignation took effect.

21. Following the incident Dr Samaraweera spoke to Dr Camaris and told her she had just been "beat up" by Dr Fredericks. After going to her office, she then left the Unit and went to her husband's office (Dr Joshua) and was taken by him to her parents' residence. Later that day (about 6.20pm) she contacted A/Prof Wilson by phone, advised him of the incident and asked to see him. She and her husband then met with A/Prof Wilson in his office. Later that night she took (black and white) photographs of injuries she maintained she had sustained in the incident - bruising to her right upper arm and two cuts to her right thumb (Exhibit 9). She also took further photographs of the bruising to her upper right arm on 12 September 2009 (Exhibit 10).

22. A/Prof Wilson made contemporaneous notes of the meetings with both Dr Fredericks (Exhibit 39a) and Dr Samaraweera (Exhibit 39b). His notes referred to the respective descriptions of the actual physical contact as follows:-

Dr Fredericks' version:

She said that she had been walking down the passage in Anatomical Pathology when she saw Dr Ushma Samaraweera (US) coming towards her holding a plastic paper tray. As she approached US suddenly raised the tray up and hit SF with it, hard enough for it to break in pieces on her arm. SF said she had lifted her arms in front of her face to protect herself and was hit near the right elbow. She showed me an obvious swelling where she said she had been struck. She said if she hadn't put her arms up she would have been hit in the head.

Dr Samaraweera's version.

US said she wanted to make a complaint about SF. US said that SF made a completely unprovoked attack on her. She said that she was walking down the passage when SF was walking towards her and then veered towards her shoving her into the wall with her shoulder. US had been carrying a plastic tray which broke in the incident.

23. On 10 September 2009 Dr Fredericks mailed A/Prof Wilson 7 coloured photographs demonstrating how she had her arm above her head in a defensive position and showing bruising and an abrasion to her right arm and with the following handwritten note:

Hi Roger,

I would like you to have these photos for your records. Please note that I was wearing two thick layers of clothing at the time. Also, a large bruise was inflicted 5 cm from my head! Things may have been a lot worse. I have left now and you will not hear from me again, but I hope this episode will alert you to the fact that there is a problem. Sue.

24. A/Prof Wilson also completed a "Self-Initiated Briefing" on 21 September 2009 to report "serious breaches by one or more SMOs in Anatomical Pathology at SEALS Randwick on3/9/09 and to seek assistance and support to investigate and manage" (Exhibit 30). In 'Background' he briefly set out the incidents as reported by the two women and indicated :

No eye witnesses to the incident have been identified. The accounts of the two SMOs involved are conflicting, in fact diametrically opposite.

25. He also detailed that on 10 September 2009 he had sent an email "for distribution to all staff in Anatomical Pathology SEALS Randwick acknowledging the incident and the intention to investigate, as well as drawing attention to the attached Code of Conduct and its definition of violence in the workplace." The email referred to was not in evidence.

26. Margaret Savage is the Manager of the Professional Practice Unit ("PPU") of the SESIAHS and is responsible for the management and/or investigation of serious complaints or issues raised by consumers and/or staff about the provision and conduct of services in the Area that have not been or cannot be resolved at local, facility or Network level. Her position reports directly to the Chief Executive, Terry Clout. The PPU is a stand-alone unit and is not part of WorkForce Services, it has a Principle Investigations Manager and a personal assistant that report to Ms Savage (Exhibit 29).

27. Ms Savage was requested to conduct an investigation into the complaints made by Dr Fredericks, not only about the incident that occurred with Dr Samaraweera on the 3 September, but also about Dr Camaris' response to the incident.

28. Ms Savage conducted an investigation into the following allegation concerning Dr Camaris:

Allegation One - That on 3 September 2009 Dr Camaris witnessed Dr Samaraweera punching and then (attempting) to smash a tray on Dr Frederick's head and did not take any immediate or subsequent action to manage the matter.

29. In the course of her investigation she interviewed Dr Fredericks, Dr Samaraweera, Dr Edwards, and Dr Camaris. Her report of the investigation (Exhibit 31) summarised the evidence of those interviewed and found that the allegation was "not sustained". Recommendations were made that no disciplinary action be taken and that "the SEALS Executive give consideration to supporting Dr Camaris undertaking further training in respect to grievance handling".

30. Dr Camaris was advised of the outcome of the investigation by Mr Clout in correspondence of the 5 December 2010 directed to her Union (who had accompanied her to her interview), the Australian Salaried Medical Officers' Federation, New South Wales ("ASMOF").

31. Ms Savage also conducted an investigation into the following allegations concerning Dr Samaraweera:

Allegation 1:

It is alleged that on 3 September 2009 after Dr Samaraweera and Dr Sue Fredericks bumped into one another, that Dr Samaraweera turned and said to Dr Fredericks "don't do that to me" after which Dr Samaraweera strode towards Dr Fredericks and started punching her. It is alleged that Dr Samaraweera punched Dr Fredericks at least 8 times.

Allegation 2:

a) It is alleged that on 3 September 2009 Dr Samaraweera attempted to hit Dr Fredericks over the head with a plastic tray

b) It is alleged that Dr Fredericks raised her arm over her head in an effort to defend herself and that Dr Samaraweera struck Dr Fredericks with the plastic tray with sufficient force to break it into pieces.

32. Dr Samaraweera was formally advised by email from Ms Savage of the allegations against her on the 20 October 2009. She was advised that she was required to attend an interview on the 27 October to discuss the allegations; that the interview would be sound recorded with her consent, with a copy of the transcript provided for review and signature, and she was encouraged to have an observer/support person in attendance. She Dr Samaraweera was also advised that the process was to be managed in accordance with NSW Health PD2005_225: (Disciplinary Process in NSW Health - A Framework for Managing) (Exhibit 29-M1) and a copy of the document was provided to her.

33. Dr Samaraweera was accompanied to the interview by an officer from ASMOF. She declined to have the interview sound recorded and the record of interview subsequently made available to her was based on the record contemporaneously made by Ms Savage and then immediately dictated by her and typed up following the interview (Exhibit 7-F). Dr Samaraweera also provided Ms Savage with a detailed written response to the Allegations (Exhibit 7-E).

34. During the course of the investigation into the allegations against Dr Samaraweera, Ms Savage also interviewed 13 other persons from the Unit including the following:

Dr Fredericks - 7 October 2009 (Exhibit 7-L),

Dr Crouch - 23 October 2009 (Exhibit 5-B),

Dr Cooke-Yarborough - 23 October 2009 (Exhibit 40),

Dr Edwards - 23 October 2009 (Exhibit 25a), and 29 January 2009 (Exhibit 25b),

Dr Camaris - 27 October 2009 (Exhibit 15-C) ,

Dr Sugo - 27 October 2009 (Exhibit 3).

35. Only staff who had been present in the Unit on that day and in the immediate vicinity of the corridor were interviewed. Interviews were sound recorded (with the exception of Drs Camaris and Samaraweera) with a copy of the transcript provided for checking and signature. Due to an administrative oversight, (see evidence below), Dr Sugo did not receive a copy of her interview transcript for checking until some two months before the hearing of this matter.

36. Dr Camaris was also accompanied to her interview by an officer from ASMOF and also declined to have the interview sound recorded. Again the record of interview was based on the contemporaneous notes made by Ms Savage that were then dictated and typed up immediately following the interview. Dr Camaris also provided Ms Savage with a written response to the allegations (not in evidence).

37. Ms Savage's undated 'Investigation Report' (Exhibit 7-G) summarised the evidence of those interviewed with reference to each allegation. The evidence so summarised (listed under each name) was that of Drs Fredericks, Edwards, Cooke-Yarborough, Crouch, Camaris, Samaraweera and "staff working in the Laboratory" with the names of those 9 staff members listed in a footnote. An analysis of the evidence was then set out and the allegations found to be "sustained". Recommendations were made that the Chief Executive accept the Report and that Dr Samaraweera's services be terminated on the grounds that she "knowingly and wilfully breached the following sections of the NSW Code of Conduct":

Section 1.1 Personal and Professional Behaviour. Dr Samaraweera has failed to carry out the job with courtesy and respect. In addition, she has failed to conduct herself in an open and honest manner.

Section 7.2 Violence. Dr Samaraweera acted in a violent manner towards Dr Fredericks.

Section 8.1 Occupational Health and Safety. Dr Samaraweera failed to take reasonable care and safety of people at work, specifically, Dr Fredericks, who was affected by her actions.

38. Ms Savage also provided an 'Internal Briefing' document (dated 19 November 2009) to the Chief Executive (and other relevant and listed executive/management personnel) summarising the key issues concerning the allegations against Dr Samaraweera and also noting under 'Other Issues' the following:

In the course of the investigation it was noted that there were serious concerns raised by staff about work scheduling and working relationships between senior staff. These were not pursued by the investigator.

39. One of the recommendations then made was as follows:

That the SEALS Executive takes action to address the concerns about work scheduling and working relationships in consultation with Workforce Services.

40. By correspondence of 5 December 2009, the Chief Executive, Mr Clout, advised Dr Samaraweera that he was "inclined to accept the report" and she was given the opportunity of responding in writing as to why she should not be dismissed (Exhibit 38). A copy of the Report should have been attached to this correspondence, but was not, and Dr Samaraweera subsequently received a copy of the Report on 8 December 2009.

41. On the 10 December 2009, ASMOF forwarded an extensive and detailed response to the Report giving reasons why it was considered that the evidence upon which Ms Savage had made her findings was "unreliable" (Exhibit 7-H). Each allegation was addressed and responded to in detail and ASMOF sought that the recommendations not be accepted. In particular it was indicated that:

1. Dr Samaraweera has a 10 year unblemished work record at the Prince of Wales Hospital;

2. Dr Samaraweera has, by unbiased account, a 'calm and placid nature' and such behaviour would be 'totally out of character;'

3. Dr Samaraweera has never had any altercation with any other member of staff over a period of 10 years;

4. Dr Samaraweera has never received any prior verbal or written warning or lawful direction regarding her behaviour over a period of 10 years;

5. Dr Edwards' evidence is entirely uncorroborated against a background of harbouring a long-term grudge against Dr Samaraweera, and

6. To terminate Dr Samaraweera's employment would have an extremely negative impact on her reputation, professional standing and ability to find work and support herself and her family in the future.

42. Ms Savage subsequently interviewed Dr Edwards for a second time, at Mr Clout's request, on the 29 January 2010 (Exhibit 25-b).

43. By further correspondence of 4 February 2010, the Chief Executive, Mr Clout (Exhibit 7-I), advised Dr Samaraweera that the correspondence from ASMOF on her behalf had been "carefully considered". He further indicated that ...."I do not accept that a recommendation to terminate the services of a staff member who has acted in an unprofessional and violent manner towards another staff member is unfair, harsh, unreasonable, particularly in view of your submissions which I did not find credible". She was advised that it had been decided that her employment was to be terminated due to her serious and wilful breaches of the NSW Health Code of Conduct (which were then specified). The termination was effective from the date of the letter and she was paid 14 days pay in lieu of notice.

44. The letter further advised that as this was a serious disciplinary matter Mr Clout was obliged to record her name, and the disciplinary action taken against her, on the 'Service Check Register for NSW Health'; she was able to obtain a copy of her record and the record "may only be amended or removed in limited circumstances as outlined in the policy".

45. 'The Service Check Register' is a standard pro-forma document now used within NSW Health as outlined in the NSW Health Policy Directive PD2009_004: Service Check Register for NSW Health Services (Exhibit 41) and provides for 6 specific "Risk Actions" (including "dismissed") with a tick to be placed in the appropriate adjoining box. The form also provides for 4 reasons for removal of an SCR Record (with the selected option to be ticked) - 'investigation finding not substantiated'; 'disciplinary outcome returned to full duties/privileges'; 'SCR created in error'; and 'removed following review'.

46. Dr Samaraweera's Service Check Register was in evidence (Exhibit 2) and states inter alia :

"Creation of this SCR Record is based on a serious disciplinary matter involving an allegation which if proven involves a serious sex or violence offence (carrying a possible penalty of 12 months or more imprisonment) unsatisfactory professional conduct or professional misconduct as referred to in s117 of the Health Services Act 1997."

47. Dr Camaris commenced employment with the SESIAHS as a Staff Specialist in 1999, became Acting Director of the Unit in 2004, and as such she had worked with Dr Samaraweera since 2001, initially as a co-worker and then as her Manager. She works Monday to Friday on a full time basis.

48. Dr Edwards is an Anatomical Pathologist and has worked in the Unit since 1997. She works part time on Thursdays and Fridays.

49. Dr Cooke-Yarborough was employed as a full time Senior Staff Specialist in the Unit for nearly two years until her resignation on 31 March 2010. She now works as an Anatomical Pathologist for a private pathology provider.

50. Dr Crouch was head of the Unit from 1984 until his retirement in mid 2004. He returned to the Unit as a part time Senior Staff Specialist the end of June 2005 until his retirement in March 2010. He job-shared the position with Dr Bullpitt, each working a week and a half in rotation from Wednesday to Tuesday and sharing an office in the process.

51. Dr Bullpitt has been working in the Unit since 1978, first as a Registrar and then as a Staff Specialist from 1980. He job-shared the position with Dr Crouch (as indicated above). He was not present in the Unit on the 3 September 2009 when the altercation occurred between Dr Samaraweera and Dr Fredericks.

52. Dr Bullpitt was present in the Unit on Monday 31 August 2009 and had a "confrontation" with Dr Fredericks arising from a difficult specimen that he had allocated to her on the previous Friday. Due to her absence on sick leave the specimen was left for her to complete on the Monday. Dr Camaris became aware that Dr Fredericks objected to the allocation of this specimen and as a consequence the specimen was re-allocated to Dr Samaraweera. When Dr Bullpitt subsequently became aware of this he took exception to it and went and challenged Dr Fredericks and a confrontation ensued in which words were exchanged (see evidence below).

53. Dr Samaraweera maintained that it was this incident that prompted the subsequent actions against her by Dr Fredericks on 3 September. This was disputed by Dr Fredericks.

54. The practice in the Unit is for Dr Camaris to prepare rosters that provide for two Staff Specialists per day to be allocated specimens, with one doing the odd, and the other the even, numbered specimens according to a set roster covering the week.

55. Dr Samaraweera had not sought alternate employment since her termination and as at the date of the hearing.

56. Copies of Performance Reviews for Dr Samaraweera and Dr Fredericks, as carried out by Dr Camaris, were also in evidence as follows:

Dr Samaraweera -15/08/2007 (Exhibit 11a), 13/10/2008 (Exhibit 11b), and 17/11/2008 (Exhibit 11c).

Dr Fredericks - 30/01/2008 (Exhibit 17) and 13/.10/2008 (Exhibit 18).

57. There were no issues raised about Dr Samaraweera's work performance.

The Evidence

Relationships in the Unit

58. All the doctors called to give evidence indicated, to varying degrees, the existence in the Unit of strained relationships between certain doctors. There was also evidence about varying levels of dissatisfaction of certain doctors with the system of allocation of pathology specimens amongst the Staff Specialists. These issues were also subject of some comment in the various interviews with Ms Savage.

59. Dr Samaraweera deposed that she first met Dr Edwards in 2001 when she commenced in the Unit as a Registrar in 2001. Dr Edwards subsequently went on maternity leave for 12 months in 2003 during which time Dr Samaraweera married Dr Joshua, inviting Dr Camaris, Dr Crouch and Dr Bullpitt to her wedding. When Dr Edwards returned from maternity leave she found her to be not as friendly towards her as she had been previously. She also considered that when she was appointed as a Staff Specialist by Dr Camaris in 2006 that Dr Edwards did not subsequently treat her as a colleague of equal status, continuing to treat her as a junior Registrar.

60. She acknowledged that Dr Edwards liked to talk to people and spoke to her in a friendly manner and that she initially had a good working relationship with her. She also said that she was somebody who liked to gossip and wanted to know about other people's personal details.

61. Dr Samaraweera maintained that Dr Edwards constantly felt the need to supervise her in trivial tasks and "talk down to her". She gave examples of Dr Edwards coming into her office to ask what she was doing, she did this several times a day, telling her that she didn't look very busy.

62. Dr Edwards also enquired about her private life "quite often" (asking questions about her husband and when was she planning on having children). Dr Samaraweera found these questions to be an invasion of her privacy and she refused to answer such questions. She also believed that Dr Edwards on many occasions would make an effort to look at the size of her stomach, and would focus her eyes on her stomach instead of on her face, which she found "a little odd and intrusive". This occurred every month or so. She had also asked her about 5 times since 2007 whether she was pregnant, which she had to deny.

63. In late 2007 she also recalled Dr Edwards coming into her office to discuss a case and a conversation then ensued in which Dr Edwards told her that she was offended that she was not invited to her wedding, Dr Samaraweera apologised and told her she didn't mean to "offend" her, Dr Edwards replied that she probably thought it was difficult for her to come to the wedding with a new baby.

64. Dr Camaris said that she did not recall Dr Samaraweera ever expressing concern or distress about Dr Edwards making enquiries about her marriage and/or pregnancy. She did not recall her saying she was offended.

65. Dr Camaris agreed that she had the usual sort of conversations with Dr Samaraweera that one had with work colleagues about "what did you do on the weekend", and agreed that also included, "how's your partner", "how are the kids", etc., "normal kinds of conversations".

66. Dr Samaraweera also maintained that in May 2008 when Dr Camaris was absent from work for approximately one month that Dr Edwards took it upon herself to manage the Unit, even though she was only working two days a week. During this time she was confronted by Dr Edwards who asked her why she was reporting so much cytology. Dr Samaraweera responded that Dr Camaris had prepared the rosters before she left, they were the only two people prepared to do cytology and she had rostered her on cytology reporting every day in her absence.

67. Dr Samaraweera stated that she did not understand why she had to constantly justify what would she was doing to Dr Edwards. During this period Dr Samaraweera worked Fridays as well and maintained that Dr Edwards regularly entered both her office, and the offices of other Staff Specialists and secretaries, to find out the work that was being done and to make sure everyone was working.

68. She acknowledged in cross-examination that it was Dr Cooke-Yarborough who was the person who was appointed Acting Director in Dr Camaris' absence. She did not go and see Dr Cooke-Yarborough about issues with Dr Edwards because "she was in alliance" with Dr Edwards, the two of them bullied her, and she didn't think there would be any point.

69. Dr Samaraweera further maintained that on 28 May 2008, Dr Edwards entered her office without knocking and challenged her as to whether she had any work to do. Dr Samaraweera told her she had a lot of work to do, was tired of her coming into her office every day to try and catch her not working so she could report back to Dr Camaris, and to leave the room and let her do her work. Dr Edwards said that she was not trying to spy on her and appeared "embarrassed" and "taken aback". Following this incident Dr Edwards stopped speaking to her and made no further attempts to enter her office. Dr Samaraweera continued to smile at Dr Edwards and greet her as normal, however Dr Edwards refused to maintain eye contact with her, or acknowledge her, so she stopped speaking to her.

70. Dr Samaraweera said she mentioned this incident a couple of days later to Dr Bullpitt at a medical conference because she had discussed with him on prior occasions when Dr Camaris was away that Dr Edwards was constantly coming into her room, several times a day, to see what she was doing, making sure she was working, checking her tray to see if there was work in there and making comments about her not doing work.

71. Dr Edwards said her relationship with Dr Fredericks was "polite and professional" and their interactions consisted of "friendly chitchat." They did not have a relationship outside of work. She viewed her as being "private," and with "a reserved personality"". She was not unfriendly and always acknowledged her.

72. It was Dr Edwards' evidence that, due to their respective part time working arrangements, Thursday was the only day when she and Dr Samaraweera worked in the Unit at the same time. Dr Edwards diagnosed Gynaecological pathology exclusively. Dr Samaraweera did not report Gynaecological pathology on the days she worked, meaning that they did not have a great deal to do with each other. She did occasionally review Gynaecological cases that Dr Samaraweera had previously reported and found her to be competent and sound in her diagnoses.

73. Dr Edwards considered that when Dr Samaraweera commenced in the Unit they got on well and were quite friendly with each other and that whilst they did not socialise out of work they did have social conversations at work.

74. She recalled being disappointed that she was not invited to the wedding, concluding that it was because she had a young baby and was on leave at the time. She expressed that disappointment to Dr Camaris, but did not say anything to Dr Samaraweera when she returned from leave. She denied that she changed her behaviour towards Dr Samaraweera because she was not invited to the wedding. On her return from leave she reduced her working days from 4 to 3 and had to be home by a particular time to relieve her nanny and thus spent less time being sociable.

75. Dr Edwards said it was common practice for capable registrars to be successful in becoming staff specialists. She was not consulted about Dr Samarweera's appointment as she was on extended leave, did not expect to have been consulted, and would not have objected to the appointment if she had been consulted.

76. Dr Edwards denied attempting to supervise Dr Samaraweera in trivial tasks or talking down to her or continually going into her office several times a day to ask what she was doing. She acknowledged that she would not knock on her door and would also routinely enter the offices of colleagues without knocking and that her colleagues would do the same when entering into her office. She believed this reflected the level of familiarity within the Unit rather than rudeness.

77. Dr Edwards also rejected Dr Samaraweera's assertion that she would pry into her private life or to enter her office under the guise of discussing a professional case only to ask personal questions. She had met Dr Samaraweera's husband at a staff Christmas party and he was mentioned from time to time in the Unit as he also worked at the Hospital. If she did enquire about him she did not consider this an offensive comment.

78. She also did not recall asking Dr Samaraweera about when she planned to have children. Dr Edwards said that as she had a history of IVF treatment she had a heightened sensitivity about fertility issues and therefore it would be unusual for her to ask people about their intention to conceive. She recalled Dr Samaraweera talking freely during her registrar training about her intention to have children after she completed her training. She also came into her office to ask about IVF treatment. Dr Edwards used the Internet to give her recommendations of the best specialists.

79. Dr Samaraweera denied talking publicly about having children or IVF treatment with Dr Edwards or anyone else in the Unit. She did acknowledge that Dr Edwards shared information with her about her multiple rounds of IVF and her difficulties, this was told to her after she was called into her office and she just started the story so she listened sympathetically.

80. Dr Edwards maintained that the conversation referred to by Dr Samaraweera in May 2008 occurred when she came to her office to complain about Dr Dianne Reeves and about how she treated her as "a junior", "dumped work" and requests from clinicians on her, and talked loudly on the phone, which was distracting. Dr Edwards recalled listening to her supportively but found it strange that she had not approached Dr Reeves directly about the issue.

81. Dr Edwards indicated that her perception of Dr Samaraweera was that she was "sensitive, quite easily slighted, and that she might take offence when no offence was intended". She had not observed any of the behaviour complained about Dr Reeves and said she endeavoured "to help her" by telling her that sometimes people could say or do things that we are offended by without them actually meaning to offend. She then gave as an example the fact that she had not been invited to her wedding and indicated that she also realised that there was no intention to offend. Dr Samaraweera responded by apologising, said that it wasn't her intention to offend, with Dr Edwards indicating she knew that and it wasn't a problem. Dr Edwards maintained that she also gave Dr Samaraweera a book entitled 'Change Your Thinking' which had a chapter on 'Effective Communication' containing suggestions on how to assert oneself and she felt the book might assist her.

82. Dr Samaraweera did not agree with Dr Edwards' version of how this topic came up. It was her recollection that she called her into her office to discuss a case and then mentioned the issue, which she thought "a bit odd" to be bringing up 4 years after her marriage that she was still upset about not being invited. She could recall the second part of the conversation, but denied the first part and that she was trying to assist her with something. She also denied that she gave her a book, saying that the only time Dr Edwards gave her a book was after the death of a colleague in 2001. The book was about how to cope with grief after losing a close family member or friend.

83. Dr Edwards denied that during Dr Camaris' absence in May 2008 she attempted to manage the Unit. As she only worked Thursdays and Fridays she did not believe it would be possible to manage the Unit in two working days. She also denied that during this time she regularly entered the offices of staff with the intention of finding out the work that was being done. She could not recall the specific conversation referred to by Dr Samaraweera but could recall at some point in time making a comment about her having a lot of cytology work.

84. Dr Cooke-Yarborough also denied that Dr Edwards tried to manage the Unit during this period and confirmed that the position of Acting Director was allocated to her, she was responsible for overseeing the day-to-day running of the Unit and staff were aware of this. The work rosters and allocation of cases had been drawn up and distributed by Dr Camaris prior to her departure.

85. Dr Edwards recalled an occasion when Dr Reeves and Dr Samaraweera were standing and chatting in the corridor and that as she passed she smiled at them and made a comment about them not having any work to do and that she was "as busy as a bee in a bottle". It was a flippant comment, not designed to cause offence and was reflective of how busy she felt.

86. Later that same day she asked Dr Samaraweera where she had been all afternoon as the secretaries had been paging her over the intercom and she should contact them. The comment prompted an "extremely angry response" from Dr Samaraweera who told her to "get off her case", she worked really hard, no-one realised how hard she worked and that she thought Dr Edwards was spying on her so she could report it to Dr Camaris. Dr Edwards said that she apologised immediately seeing her obvious emotion and did not contest what she said or accuse her of overreacting and was surprised to find that she was offended by what she said. Dr Samaraweera told her to get out of her office, which she did. Dr Edwards said that she felt "humiliated, hurt and embarrassed" and recalled being "flushed" in the face. She considered the intensity of Dr Samaraweera's anger to be disproportionate to her comment, particularly as she had apologised immediately.

87. After this incident Dr Edwards said that Dr Samaraweera ceased acknowledging her in the corridor and did not speak to her for some months, so from that time she limited their interactions to completely professional issues to avoid any further situations. She considered this a "protective rather than a vindictive approach to the situation". She denied that Dr Samaraweera continue to smile at her in the corridor or greet her as normal.

88. Dr Cooke-Yarborough's evidence was that she overheard this particular conversation. She maintained that during this period (Dr Camaris' absence) Dr Samaraweera had been absent from the Unit without explanation on one Thursday, and the following week she was again absent without explanation. She heard Dr Edwards asking her where she had been and that the secretaries had been looking for her. She recalled that Dr Samaraweera responded by yelling at Dr Edwards to the effect of minding her own business and getting out her office, with Dr Edwards very apologetic, saying she was sorry and no slight intended.

89. It was Dr Cooke-Yarborough's impression that the relationship between the two remain strained thereafter. It was also her observation that Dr Samaraweera "tended to keep herself and limited her professional relationships to Dr Camaris, Dr Bullpitt and Dr Crouch".

90. Dr Cooke-Yarborough acknowledged that one of the reasons she resigned in March 2010 was due to "disharmony" within the Unit. She considered that Dr Camaris showed favouritism to Dr Samaraweera and to some extent that contributed to the disharmony in the Unit but did not underpin her decision to leave. She further indicated that in her view there were "multiple factors" which were quite "long-standing" that caused/contributed to the disharmony saying: "

"there were behavioural factors, there was a cultural of verbal aggression, I thought intimidation to some extent. Then there were the more broad based things like unfair work allocations or what were perceived to be unfair work allocations. And I think that there was a general departure from acceptable code of conduct, and the Area Health Service has a policy about that. So there were - it was a very multifactorial set of problems in the department."

91. Dr Cooke-Yarborough indicated that there was a perception that Dr Samaraweera got a lighter workload. She also said that it was not a perception, there were figures and rosters drawn up, turnaround times, figures on how many cases were done and the complexity level of cases and unrostered work that was not on the roster, that had to be taken into account. One would have to look at the figures and rosters to understand the complexity levels of cases to see who was doing the bulk of the work and the unrostered work.

92. She went on to say that the issue about "her" (Dr Samaraweera) workload was:

"about people participating comprehensively in the workload of the department. And the workload of the department was cytology, histology and then there were additional specialties that weren't covered that. And it was I think a lot of the disharmony about the distribution of the workload did come down to the extra work that was not being covered as well".

93. She agreed that there were interpersonal problems between Dr Samaraweera and Dr Reeves and Dr Fredericks and that with Dr Reeves it went back to the registrar days. She also agreed that one of the sources of those interpersonal problems were the views held by Dr Fredericks and Dr Reeves about the allocation of work to Dr Samaraweera. She observed tension building up in the Unit prior to 3 September 2009. However she did not agree that there were effectively two camps within the Unit. There might have been "interpersonal tension", but not two camps.

94. Dr Cooke-Yarborough also indicated that there was a very "open door policy" and if someone wanted to show her a case they could walk into her office, she didn't care if that was lab staff or another consultant. She had known Dr Fredericks, Dr Reeves and Dr Crouch for many years, she had trained with Dr Crouch and they certainly always went in and out of each other's offices, and she did the same with Dr Bullpitt. She noticed that Dr Samaraweera tended not to like to do that with either herself or Dr Reeves and Dr Fredericks. She said that she had made it very clear when she first went there that she was more than happy to help Dr Samaraweera with any case and even offered to go in after hours and look at a frozen section with her if that was required and it was "quite striking" that holding back and not wanting to interact. It was her impression that she was uncomfortable doing it.

95. She said that the interpersonal differences were "a constant presence" and she was certainly aware of it.

96. Dr Crouch also said that he was aware of "a number of issues" during 2009 from his own observation, but not as aware as other people. He did not elaborate further.

97. Dr Crouch confirmed that he had indicated in his interview with Ms Savage each that he had never seen Dr Samaraweera explode and would have to say that it was very uncharacteristic of her. He said that he had seen Dr Fredericks "angry and out of control" and gave an example of when she "burst in and yelled at" Dr Samaraweera (when she was consulting with him in his office) saying that she (Dr Fredericks) was not doing her cases and she was really "very angry". The issue concerned allocation to her of a case originally allocated to Dr Samaraweera.

98. Dr Bullpitt's evidence was that Dr Edwards would frequently enter both his office, and other staff members' offices, and ask questions about what work they were doing and how busy they were. He also recalled an occasion "at about the beginning of 2008" when Dr Camaris was on leave and Dr Samaraweera came and told him that she was sick of Dr Edwards coming into her office and sticking her nose into her work, that she'd done it again and she told her to leave. He recalled that after this Dr Edwards had very little to do with Dr Samaraweera and their relationship was a "strained one".

99. He acknowledged in cross examination that the frequency of Dr Edwards' visitations was only once or twice a day (and due to their respective work patterns that could only be on 2 days per fortnight) and that some of those visits to his office would be for a consultation on a specimen. He identified the "strained" relationship as being that they spoke to each other on work-related issues only when they had to. That was the only thing he saw in that regard that led him to the conclusion that the relationship was strained. They were not openly unpleasant to each other, most of the time they just ignored each other.

100. Dr Bullpitt also indicated that he had never experienced any difficulties with Dr Samaraweera and his dealings with her had been friendly and cooperative.

101. Dr Camaris deposed that in her dealings with Dr Samaraweera she had known her to be a "very placid, friendly and pleasant colleague". She had never witnessed her raise her voice or display any other aggressive behaviour.

102. She recalled a conversation with Dr Edwards in about April 2004 during which she told her that she was "really annoyed" that she wasn't invited to Dr Samaraweera's wedding.

103. Dr Camaris said she had observed that in or about 2009 Dr Fredericks became isolated and non-communicative with other staff specialists in the Unit and from the middle of that year became "increasingly unhappy and angry" and spent increasingly large amounts of time in her office with the door closed. Dr Camaris said that as Acting Director she had always insisted on an "open door" policy with the staff specialists in the Unit and Dr Fredericks was the only staff specialist who closed the door while at work.

104. It was a Dr Camaris' evidence that an important part of any staff specialist's duties was the teaching of registrars, and for this reason all staff specialists in the Unit were provided with a double headed microscope. However shortly after Dr Fredericks commenced employment she approached her and said that she would like to bring in a single headed microscope that she had previously used. Dr Camaris said that this was fine, but that she needed to use the multi headed microscope to teach registrars. Despite her direction that Dr Fredericks undertake the teaching of registrars, she did not observe her carrying out this teaching. She said that it was "particularly infrequent' to see her teach the registrars. She did not press her on this issue at the time as there was, and continued to be, a worldwide shortage of anatomical pathologists.

105. She denied that the position was that when Dr Fredericks started there was no double headed microscope available for her because it was being used by another doctor.

106. Dr Camaris said that she was aware of the infrequency of Dr Fredericks' teaching because her office (with the her door open) was next door to Dr Fredericks, the walls were thin and the doors were open.

107. She said that in the teaching of a registrar it would be expected that a registrar would go into a staff specialist's office if they had a double headed microscope. If a registrar was to be taught on the multi headed microscope that would be done in that office. She maintained that staff specialists were required to take a "directive role" in teaching, and that if Dr Fredericks said that her way of teaching the registrars was that they prepared a report and went through it together, then that was one way of doing it, but it was still a directive way. A staff specialist could teach in that manner but she maintained that it was very rare that Dr Fredericks did that. She knew exactly what was going on. She acknowledged that she was not in her office every hour of every day, but most of the day she was as she had a very big workload and notwithstanding other requirements (going to the laboratory, conducting interviews etc.,) there was only a small portion of that time she was not in the office. She agreed that it was possible that Dr Fredericks was teaching a registrar during that time but maintained that that only left "a very small window of opportunity".

108. She acknowledged that the Performance Review that she conducted of Dr Fredericks in January 2008 (Exhibit 17) provided for 90% of the work to be "Diagnostic" and 5% to be "Teaching", with those teaching activities being of undergraduate teaching and advanced trainees. She maintained that this was a mistake and she should have fixed it up, but also acknowledged that the next Performance Review that she conducted in October 2008 still provided for the same 5% of work allocation to teaching. She also acknowledged that in her comments on the Forms in question she indicated as follows:

Sue is a valuable asset to the Department. She is a high competent and capable pathologist with excellent diagnostic skills and a very pleasant manner. She is fast becoming a specialist renal pathologist for which we are in desperate need. She is a team player.

109. Dr Camaris maintained that it was after 2008 that Dr Fredericks changed her personality and attitude and so she thought that what she wrote in 2008 may have been "a fair comment".

110. Dr Fredericks' evidence was that she did not have a "positive relationship" with Dr Samaraweera, who did not speak to her. She made efforts to speak to Dr Samaraweera but said it was obvious that she did not wish to speak to her. She never took this personally. Dr Samaraweera did not speak to a lot of the other pathologists. She knew this because she observed that when she came into the Unit in the morning she would close the door to her office so that was only "minimally ajar" and from her observation the only people she saw her talking to on a regular basis were Dr Camaris and Dr Bullpitt.

111. Dr Camaris denied that Dr Samaraweera only talked to Dr Bullpitt and herself on a regular basis saying that she had observed that she had a good relationship with Dr Tobias, Dr Sugo, Dr Crouch, the secretaries and registrars in the Unit.

112. She went on to say that she observed "general unfriendliness and unpleasantness" from Dr Edwards towards Dr Samaraweera. "It was body language, it was almost tangible, the standoffish nature that unfortunately Lyndall projected," This was in the corridors, in staff meetings and in interactions with Registrars.

113. Dr Fredericks agreed that when she commenced in the Unit she would exchange pleasantries from time to time with Dr Samaraweera. She did not think she engaged in any significant conversations and did not notice any difference between 2006 and 2007 nor could she recall any difference in their relationship in 2008 when compared to 2007. She had a fairly "distant relationship" with Dr Samaraweera over her whole time at the Unit. She had noted those statements which referred to some disagreements between them but they didn't have much of an effect on her at the time. She said they obviously upset other people but would not have been something that she would have commented on herself.

114. She had believed that she had got on well with Dr Crouch until she read his statement. Prior to the incident with Dr Bullpitt, she had not had any arguments with him.

115. Dr Fredericks deposed that the reason she resigned was because her relationship with Dr Camaris had deteriorated to such an extent, particularly in the months before she resigned, that it had become "very unpleasant and unworkable." She maintained that in about June 2009 she recalled Dr Camaris "threatening her", with words to the effect of, "I'm ready to get nasty with you if you resign".

116. She further indicated that she did not consider her problems with Dr Camaris were insurmountable. She preferred to work somewhere else and was in a position to get a better job. She acknowledged that she told Ms Savage in her interview that the relationship between herself and Dr Camaris had deteriorated to such an extent that it had become "unworkable as well as extremely unpleasant". That was the truth both at that time and at present.

117. She indicated that she had a good working relationship with Dr Edwards and Dr Cooke-Yarborough as well as with Dr Reeves before she left the Unit. They would not come to her office and engage in social chat but they would exchange pleasantries in the tea room or in the office.

118. Dr Fredericks acknowledged that she had the impression that Dr Camaris was very protective of Dr Samaraweera and that she said that to Ms Savage in her interview and also that it was reflected in work distribution and workflow, and the way she was treated and the leave she got but could not remember what incident she was referring to in the interview.

119. Dr Frederick's evidence was that she preferred to report histology rather than cytology, although she did report cytology. She considered that cytology reporting took less time than histology. Dr Samaraweera did more cytology reporting than histology and she agreed that therefore she considered that Dr Samaraweera had a lighter workload than she did. She also perceived that she had a lighter workload than other pathologists in the Unit, at least during 2009, but said that she did not think about it that much. She could not recall if she had ever spoken to Dr Edwards about her views, it was possible she spoke to Dr Reeves and she may have spoken to Dr Cooke-Yarborough, but couldn't recall a specific conversation.

120. Both Dr Samaraweera and Dr Crouch gave evidence about an incident in mid-2009 concerning the allocation of an odd numbered specimen to Dr Fredericks at the time when she was doing evens. They both said that Dr Fredericks came into Dr Samaraweera's office (Dr Crouch was also present assisting her) seeking an explanation and during the course of the conversation with Dr Samaraweera (in which Dr Crouch also became involved) "screamed" at each of them and was very aggressive in her demeanour. This was denied by Dr Fredericks who said she was "taken aback and frustrated" due to her existing workload that day, but was not aggressive and neither yelled, screamed or shouted, and did not slam the door when she left.

121. Dr Fredericks also denied that after Dr Reeves left she became increasingly angry at work, saying that she was not happy in her job by that stage and was just looking for a new job. She said she missed Dr Reeves but did not think it made a great difference to "her psyche". She did not recall slamming doors and refusing to acknowledge people in the Unit, but did agree that she was having problems with Dr Camaris, both at that time and before that, but said that if any one were to say hello to her she would gladly say hello back.

Staff meeting - 27 August 2009

122. It was Dr Samaraweera's evidence that at this staff meeting Dr Camaris told Dr Fredericks that as she had resigned there was no reason to remain at the meeting as they would be discussing the future management of the department and she would like her to leave the meeting. She recalled that Dr Fredericks became angry that she had been asked to leave and about 10 minutes later returned to the meeting in tears and shouted to Dr Camaris and demanded that her exclusion from the meeting be clearly documented in the minutes. She then left the meeting and returned to her office with her door shut for the remainder of the day.

123. It was Dr Fredericks' evidence that prior to this staff meeting, when she was in her office, she had had a conversation with Dr Camaris where she was told by her that she did not think it was appropriate for her to attend the staff meeting. Dr Fredericks responded that she really wanted to go as there were agenda items she could contribute to. She was told that she was "not allowed to go". She said that she was not asked to leave the meeting but forbidden to enter the meeting. She felt "hurt" by Dr Camaris excluding her from the meeting and sought for it to be officially noted. She stood at the doorway of the meeting and asked her exclusion from the staff meeting to be minuted. She did not go into the room and denied that she was in tears. She had not seen a copy of the minutes of the meeting.

124. Dr Camaris' evidence was that as she had observed Dr Fredericks to be very angry, and given that she had resigned, she decided that her presence at this senior staff meeting was not necessary, particularly when they were going to discuss future staffing issues and persons who might be considered for positions. She excluded Dr Fredericks from the meeting because she considered that it was only "disruptive" to have a member there who has a "hostile, aggressive manner". She observed this from the way she walked and talked and looked at you. She had also had numerous staff come to her in Dr Fredericks' last months and make the same observations.

125. She confirmed that she recalled seeing Dr Fredericks come to doorway where the meeting was being conducted, that she was in tears and that she said she wanted it minuted that she had been excluded from the meeting.

126. Dr Camaris said that she had also excluded Dr Reeves from staff meetings once she had submitted her resignation because she felt she could "sabotage the future of the department".

127. Dr Camaris denied that she was angry with Dr Fredericks because she had resigned, she was relieved because her manner did not make for "a nice environment".

Incident with Dr Bullpitt - Monday 31 August 2009.

128. Dr Bullpitt's evidence was that on the previous Friday 28 August, Dr Fredericks was on sick leave and a difficult specimen was allocated to her prior to it going to a registrar for cutting up, as per usual practice. He recalled telling the registrar to leave the specimen until Monday and show it to Dr Fredericks, as she was would still want to see it before it was cut up. He maintained that on Monday 31 August Dr Fredericks returned to work and refused to accept this specimen and that this was the third occasion he was aware of where she had refused to accept the specimen allocated to her.

129. Dr Bullpitt said that about mid-morning on that day he was in the wet specimen area looking at another case with a registrar when Dr Samaraweera came in "visibly upset" and said that Dr Fredericks had rejected the specimen and that she now had to take it over. Dr Bullpitt was upset at this refusal and then went to Dr Fredericks' office deposing that they had a conversation in words to the following effect:

I said:

"Sue this is your specimen. It is not from today but from Friday. I told the registrar to put it aside until today as I thought that you would want to see it."

Dr Fredericks said:

"You're a disgusting little man. Get out of my office".

I said:

"Sue, this is your specimen. You're not going to reject it. Just accept it and stop causing problems."

130. Dr Bullpitt also maintained that Dr Fredericks slammed the door of her office in his face. He denied that he was aggressive to Dr Fredericks or that he was poking his finger in her face. He also denied that he re-entered her office or spoke to her in a threatening manner. He said that this confrontation was the only time he had raised his voice in anger to a fellow employee since he had been employed with the respondent.

131. Dr Samaraweera said that on Monday, 31 August, she was rostered to report odd numbered cases. She was contacted by the registrar, Dr Cherapanoff, who asked her to come and see a specimen that she had called Dr Fredericks about, but she had refused to come and told her to call Dr Samaraweera.

132. When she went to the wet specimen area to look at the specimen Br Bullpitt was already there looking at another case with Dr Cherapanoff. He asked her what she was doing, that the case was Dr Fredericks, he had seen the specimen on Friday and told the registrar to show it to her on Monday. Dr Samaraweera told him she knew that but Dr Fredericks had refused to do it. Dr Bullpitt became angry and went immediately to Dr Fredericks' office. She agreed that he was "fired up" and said she didn't have time to tell him that Dr Camaris had been advised. Dr Samaraweera ran after him and tried to stop him, but he was already at the office and the two of them were shouting at each other. She didn't know who started shouting first. She stopped outside her own office. She did not feel she should intervene and stood back as Dr Camaris had came out of her office and started trying to separate them.

133. She only recalled the end of the exchange in words to the effect of:

Dr Bullpitt said:

"It's your case. Stop causing problems in your last few weeks here."

Dr Fredericks said:

"Shut up you disgusting little man. Get out of my office."

134. Dr Samaraweera said that Dr Fredericks then slammed the door in Dr Bullpitt's face. She then "reluctantly" reported the specimen. She said that Dr Fredericks became "even more unhappy and uncommunicative" in the days leading up to the incident on 3 September and remained in her office with the door closed not speaking to anyone.

135. Dr Samaraweera agreed that nothing took place between herself and Dr Fredericks over the next two days and that the opportunity existed if Dr Fredericks had wanted to talk to her or take her to task about the incident.

136. Dr Camaris' evidence was on that day she was in her office and heard a conversation between Dr Bulpitt and Dr Fredericks with words said to the effect of:

Dr Bullpitt:

" This case is yours. It is from Friday, and the registrar wanted to show you the specimen in cut up."

Dr Fredericks said:

"You are a disgusting little man. Get out of my office."

Dr Bullpitt said:

"This is your case. Just accept it."

137. Dr Camaris then went into the corridor and advised both Dr Fredericks and Dr Bullpitt to return to their offices. She said Dr Fredericks then slammed the door in Dr Bullpitt' face and remained in her office until she went home later that day. She acknowledged that Dr Bullpitt was standing in his own doorway and that there was very little space between the doorway of Dr Fredericks' office and that of Dr Bullpitt. Dr Fredericks was shouting, Dr Bullpitt's voice was "slightly raised" and he sounded "annoyed".

138. Dr Camaris did not speak further to either doctor about this event, because Dr Fredericks had already resigned and Dr Bullpitt had been a "loyal fabulous pathologist" for the last 30 years in the department and there was no point.

139. Dr Camaris agreed that prior this conversation she remembered that Dr Samaraweera and one of the other registrars came into her office to ask her advice about what to do with a case that was allocated to Dr Fredericks but that she was refusing to report. She advised Dr Samaraweera to please report it because Dr Fredericks was obviously in such an aggressive mood that she didn't want to "fuel" any situation. She did not speak to Dr Fredericks about it.

140. The only information she had about whether Dr Fredericks knew about the specimen was what the registrar told her. She said she must have been aware of it because the registrar wouldn't have come to her in the first place and said that she had refused to report it.

141. Dr Fredericks' evidence was that when she arrived at work on Monday 31 August, Dr Cherapanoff approached her and said that she just wanted to "warn" her that there was a case that had been allocated to her and did she want to come and have a look it. Dr Fredericks responded that she hadn't seen the roster yet for the day or the week but if she was on wet specimens she was happy to look at it and if not then the person that was on should look at it. She then went to her office and started preparing for a Renal Biopsy meeting later that afternoon.

142. Approximately mid-morning Dr Fredericks overheard Dr Samaraweera in Dr Camaris' office saying "you know what she has done now, surely you are not going to let her get away with this" and shut the door. She could hear whispering but could not hear what they were saying.

143. Dr Fredericks said that later on she was in her office looking at the microscope, with her back to the door, and Dr Bullpitt came into her office, stood behind her on her right and "slammed down" an accession sheet beside her. He stood over her and shouted in an aggressive way. She deposed as to the following exchange between them with words said to the effect of:

Dr Bullpitt:

"This is your case, I have allocated it to you, and you should be the one to do it".

Dr Fredericks:

"OK, if you want to be lazy I will do it".

Dr Bullpitt continued:

"I am glad you are leaving".

144. Dr Fredericks said he was aggressive towards her and was poking his finger at her face and she felt very intimidated. She also saw Dr Samaraweera standing outside her office, shouting something but could not recall what she was saying.

145. Dr Fredericks said that after Dr Bullpitt left her office she shut the door "firmly" as she did not want him re-entering, but despite the door being closed he did re-enter her office and recommenced speaking to her in a "threatening manner" about the specimen but she could not recall what he said to her.

146. Dr Fredericks said she was not rostered to do this case and neither Dr Bullpitt nor Dr Samaraweera had previously brought this particular specimen to her attention, or asked her to do the case, or indicated that she was expected to do it. She believed the incident could easily have been prevented if someone had told Dr Samaraweera that it was an odd specimen, she was on odds for that day and so she should have had a look at it.

147. Dr Fredericks denied calling Dr Bullpitt "a disgusting little man" during this exchange saying that the worst thing she called him was "silly".

148. Dr Fredereicks said that when she had the argument with Dr Bullpitt she assumed that it was his specimen that he was giving her and it was only after he left her office and she thought that she had better check that she was on even numbers that day and check the roster that she then she realised that Dr Samaraweera was the one who was on odd specimens that day. She thought the disagreement was between herself and Dr Bullpitt, however once she had had the altercation with Dr Samaraweera on 3 September and went back to try to make sense of why this might have happened she thought that this incident may have had something to do with it.

149. She acknowledged that she told Ms Savage she thought the incident with Dr Bullpitt on Monday 31 August was an incident in which Dr Samaraweera was instrumental and that Dr Bullpitt was coming to fight her battles. She also acknowledged that that was the view she formed on Monday 31 August.

150. Dr Sugo was in her office on Monday 31 August and heard raised voices. Whilst initially she didn't recognise that it was Dr Bullpitt, she subsequently ascertained that it was by the context of the conversation. She was able to hear parts of the conversation quite clearly, but could not remember all of it. She acknowledged that she was asked by Ms Savage about whether or not she had heard Dr Fredericks call Dr Bullpitt "a disgusting little man" and she confirmed her response was that she didn't hear that and told her that "had I heard this, I would have remembered". She agreed it was a fairly memorable comment.

151. She did not agree that if she had heard words to the effect of "you silly man" she would also have necessarily remembered something like that because she did not find those words as offensive. She considered that in a word environment offensive words would have made an impact whereas things that might just be more in the colloquial sense may not necessarily have impacted on her memory.

152. She could recall hearing Dr Samaraweera's voice but did not remember the words. She didn't think her voice was raised. Dr Bullpitt's voice had an alteration to its tone to what she was used to. She remembered hearing Dr Fredericks saying words to the effect of "well if I need to take it, I'll take it", she could hear her voice quite clearly, it wasn't being shouted but it might have been raised without shouting.

153. She agreed that she was telling Ms Savage about these events in October (2009) and it was likely that if she had remembered something about that conversation she would have told her.

Incident of 3 September 2009
Dr Samaraweera's version of events

154. Dr Samaraweera's evidence was that at about 11 am on 3 September she was walking along the corridor towards her office having come from the laboratory carrying an empty black plastic filing tray (with a double line of square shaped holes on each side of the bottom of the tray) which she was holding in front of her with both hands (with the open end pointing towards her body) when she saw Dr Fredericks walking along the corridor towards her. Dr Fredericks was walking in the middle of the corridor and she knew that if she stayed where she was she was going to hit her so she moved in further to her left.

155. Dr Fredericks then "veered" towards her and "rammed" her against the wall using her right shoulder and upper arm. Her left side hit the wall and the force half turned her around and she then just kept turning to her right of her own accord and completed the turn. That contact was made against the wall between Dr Tobias' office and Dr Sugo's office.

156. Dr Samaraweera then said words to the effect of - "thy did you shove me?" and took a step to the left bringing her into the middle of the corridor facing the laboratory.

157. Dr Fredericks then laughed and with both hands pushed her against her shoulders. Dr Samaraweera said she held up the tray (with the open end facing the floor and the end that has a back to it facing the ceiling), using both hands, to protect her face and upper body. Dr Fredericks then punched her around the tray using both fists against her upper arms at least six or seven times. Dr Fredericks used both hands to punch her and was trying to get around the tray and so Dr Samaraweera was moving the tray to try and block where she was coming from. She was unable to block every single punch and contact was made with her right arm and she also thought her left arm, but the bruising was more so on her right arm and it was the right arm that received the hardest punch, that was the bruise.

158. She said that while punching her, Dr Fredericks punched the tray with her right hand and it broke into multiple sharp pieces and fell to the ground. Dr Samaraweera agreed that the left side of the tray (facing the open end) was the most broken part of the tray, but with some damage sustained to the right side. She ended up with two smallish loose pieces in her hand and the main part of the tray and some other pieces fell to the floor.

159. When the tray broke Dr Samaraweera said she screamed and Dr Fredericks was "a little bit shocked " and "backed away a bit". Dr Samaraweera said she was holding the tray with her right hand because that was the part that obviously cut her thumb and she dropped the pieces that were in her hand, turned around and ran towards Dr Camaris' office, She noticed that there was no one in the corridor at this time. However she agreed that when she was facing the laboratory, and standing in the middle of the corridor being punched by Dr Fredericks that she could not see if anyone was standing behind her at all.

160. As she approached Dr Camaris' office she came out of her room and Dr Samaraweera said to her words to the following effect:

"Sue has just beat me up. I can't work like this, I have to leave."

161. Dr Samaraweera said that she didn't run away right at the beginning when she was bumped into the wall because there was nothing to run from at that point. When she turned round and asked Dr Fredericks why she did that, she didn't stop, she didn't apologise, she just kept on walking. Dr Samaraweera said she just turned around and asked "why did you do that, why did you shove me" and then Dr Fredericks turned around and came within seconds and she couldn't get away. She ran away as soon as she could.

162. Immediately after the incident she said that she was very upset and distressed, and telephoned her husband (Dr Joshua) and told him she needed to see him urgently as Dr Fredericks had just "hit" her. She then went to his office and told him that Dr Frederiks had rammed into her while she was walking in the corridor and started punching her with no reason. She showed him the beginnings of a bruise on her right upper arm and then they had a conversation where she told him what had happened.

163. While she was in her husband's office Dr Camaris rang her on her mobile phone and asked her if she was okay and told her she could "come back now it's safe, Sue has gone to Dr Wilson's office." Dr Samaraweera told her she couldn't come back, she was too upset and Dr Camaris told her that was okay, she understood, and that it was too big for her to handle and she was handing it over to Roger Wilson and that Dr Samaraweera should make an appointment to go and see him. She then gave her his number.

164. During the afternoon Dr Camaris rang her at about 4 pm on her mobile phone asking if she was okay, and told her that Dr Fredericks told Roger Wilson she had a cut on her arm. Dr Samaraweera said that she had been injured too and had a bruise on her arm where Dr Fredericks had punched her and Dr Camaris told her that she had better take photographs in case she needed them because Dr Fredericks was saying that she had hit her.

165. Dr Samaraweera said that when she and her husband saw A/Prof Wilson at 6 pm in his office she told him that she wanted to make a complaint against Dr Fredericks that she had assaulted her. A/Prof Wilson told her she couldn't make a complaint as there was "no point", she had already resigned. Dr Samaraweera told him that Dr Fredericks rammed her into a wall with her shoulder and punched her. A/Prof Wilson said that that was not that Dr Fredericks had said, she had shown him her injuries and this was "a serious matter". Dr Samaraweera told him that she was injured and lifted up the right sleeve of her blouse to show him the redness and early bruising on the external aspects of her upper arm. She told him that she had been holding a plastic tray to defend herself and it broke when Dr Fredericks punched her and that she was too scared to return to work while she was still there and of what she might do to her. A/Prof Wilson told her not to speak to Dr Fredericks in the next two weeks, to just stay in her office with the door shut and do her work. When asked what would happen now, A/Prof Wilson said the matter would not be taken further since Dr Fredericks had already submitted her resignation.

166. That night whilst having a shower Dr Samaraweera said she felt pain in her right thumb and when she looked at it she noticed that there were two cuts on the inner aspect and they were bleeding. She inspected the cuts, noticed there was a very small piece of black plastic tray lodged inside one of the cuts and used tweezers remove the piece of plastic. She was surprised that she had not noticed the cuts earlier. Dr Samaraweera said she thought the cuts had bled before, but she was so "distressed and flustered" that she was not paying too much attention earlier in the day and it was when the blood started flowing again that she noticed it.

167. Later that evening, using her left hand, she photographed the cuts and the bruising on her right upper arm with a digital camera. She tried to photograph of redness of her arm and took one photograph which did not turn out very well. She said she did not bruise easily. She took further photographs of the bruising some 12 days later when it had become "blue-ish".

168. Dr Samaraweera absolutely disagreed that after Dr Fredericks had bumped her that she was the one who had advanced towards Dr Fredericks and started punching her; punched her 6 to 8 times and for approximately 5 seconds; that Dr Fredericks was on the left-hand side of the corridor and raised her arm in a defensive position to protect herself; that as a result of the punching there were several bruises to Dr Fredericks' right arm and a large bruise caused when Dr Samaraweera hit her on that arm with the tray. Dr Samaraweera also denied calling Dr Fredericks "a fucking bitch".

169. Dr Samaraweera maintained that there was no one else in the corridor when Dr Camaris came out of her office. She came towards her and they had a conversation in the middle of the corridor. She did not see Dr Edwards and said she couldn't have been standing in her doorway because she would have seen her. Her doorway was directly opposite that of Dr Camaris and if she could see Dr Camaris she could surely see someone who was standing a metre away.

170. She believed Dr Edwards was not being truthful because she disliked her because she didn't invite her to her wedding and after the argument that they had in 2008.

Dr Fredericks' version of events

171. Dr Fredericks' evidence was that at about 11 am on the 3 September 2009 she came out of her office and was walking normally down the left-hand side of the corridor to the laboratory with her arms swinging a little. Dr Samaraweera was walking towards her in the opposite direction going from the laboratory to her office. Dr Fredericks had her arms by her side and Dr Samaraweera was holding, with both hands, a plastic filing tray in front of her body and her elbows were sticking out at about a 10 or 20 degree angle. As she passed Dr Samaraweera Dr Fredericks felt a bump on the anterior part of the upper arm. She did not consider the "bumping" to be anyone's fault.

172. She recalled glancing at Dr Samaraweera, did not say anything to her and continued working towards the laboratory. She had taken about four or five steps when she heard Dr Samaraweera say words to the effect of "don't do that to me" and she sounded very angry. Dr Fredericks stopped walking and turned to face her to see what she was talking about and was then facing the direction of her own office, with Dr Samaraweera facing the laboratory. She did not move towards Dr Samaraweera, and recalled that she was directing insulting words at her, but did not recall what she said.

173. Dr Fredericks said that she then saw Dr Samaraweera advancing towards her quite quickly, holding the tray in her right hand. She then stood very close to her in an open position and started punching her. The first punch was with her left hand. She punched her about 6 to 8 times repeatedly and in quick succession and alternatively with her left arm and right arm. She was holding the open end of the tray in her right hand and punching alternately with her left hand and the right whilst holding the tray. She estimated the punching lasted for approximately 5 seconds.

174. Dr Fredericks said she was not aware that Dr Samaraweera was right handed but did not think it odd that her first punch was with her left hand as she had the tray in her right hand.

175. Dr Fredericks said she did not have the time to speak one word before she reached her, she could have, but was shocked and it was not in her nature or character to scream. She didn't know what Dr Samaraweera was going to do until she actually did it. She did not try to push her away, she was a "civilised person" and did not do that sort of thing, nor did she hit back, or run away, or say anything.

176. Dr Fredericks maintained that when Dr Samaraweera was striding towards her in the corridor she saw Dr Camaris appear outside her office and when she started to punch her she recalled Dr Camaris saying words to the effect of, "oh no", but did not recall her saying anything else. She did not believe Dr Samaraweera would have seen that Dr Camaris was in the corridor as she had her back to her. She also maintained that Dr Camaris was standing in the corridor the whole time that Dr Samaraweera was punching her and didn't do anything or say a word.

177. While Dr Samaraweera was punching her, Dr Fredericks was stationary by the wall and standing in a defensive position with her right side slightly in front of the left. She considered Dr Samaraweera's actions were directed at her upper body. Dr Fredericks' arms were folded across her chest in a "V" shape with her right arm in front of her left arm and she used her right arm defensively throughout the attack and did not alter her position significantly. Dr Samaraweera stopped punching her of her own accord and still had the filing tray in her right hand.

178. Dr Fredericks said that once Dr Samaraweera stopped punching her she moved back slightly out of her way but was still next to the wall, with Dr Samaraweera standing diagonally opposite her in the corridor. She stood looking at her a few seconds, without expression on her face or saying anything and Dr Fredericks recalled thinking that the attack had ceased. Dr Samaraweera then turned sideways, stretched her right arm behind her at full length and with "a straight arm swung the filing tray over her head in a cricket bowl type action" and brought it down towards her head with force. Before the tray hit her Dr Fredericks put her right arm over her head as a reflex action and her forearm was against the top of her head. She said that she "braced for impact and was able to break the impact". The filing tray crashed against her right forearm at a position a few centimetres above her head with sufficient force to smash it into multiple pieces which then fell onto the floor. She did not recall which part of the tray hit her but believed it was one of the long edges between the base and the side and not a corner point. After this Dr Samaraweera stood in front of her "looking surprised".

179. Dr Fredericks maintained that her description of the action of Dr Samaraweera as being a "cricket bowl action" was the best description she could use. It was not exactly a cricket bowl thing, but she felt that was the basic action. She was not able to say whether or not the arm was exactly straight because it was winter and she had clothes on as well and Dr Fredericks was actually watching the tray coming down towards her rather than what Dr Samaraweera was doing with her arm, but she believed she stretched up over her head when she did it and her arm was "either very nearly full stretch or full stretch".

180. Dr Fredericks agreed that Dr Samaraweera only hit her once with the tray, she was punching before that and she had the tray in her fist but it was the fist making contact rather than the tray.

181. She also acknowledged that in her interview with Ms Savage when she related the section about the tray she also described it as Dr Samaraweera "took a run-up of several steps" and that she did not make any mention in her affidavit of any run-up. She maintained she had not been clear about how Dr Samaraweera was moving her feet at that stage, she was moving towards her and she was concentrating more on the tray than her feet. Before that she thought she was actually turning away from her and going to go back to her office. When she was moving towards her how many steps she took was not something she was paying attention to. She did not step forward and push her back as she was a "civilised person" and she didn't go around pushing people smaller than she was. It was all very sudden one minute she had her head turned away and the next, the tray was smashing down and she didn't have time to do anything she just had to try to save her head.

182. Dr Fredericks did not agree that the difference in height between the two was such that it was a physical impossibility that Dr Samaraweera could get the tray up high enough to smash it down on her head with any force, that was because she had her arm outstretched with a 40 or 50 cm tray attached to her arm. She also disputed that Dr Samaraweera was only 5 foot 2, she thought she was taller than that and did not trust her when she said that.

183. Dr Fredericks maintained that she sustained several bruises to her right arm when Dr Samaraweera was punching her. These consisted of a large bruise halfway up the outer aspect of the right upper arm from a punch from the left fist and two small bruises on the outside of the right arm and another one on the inside of the right elbow. She also sustained an injury to the arm underneath her elbow from the impact of the tray hitting her and although she was wearing a lined suit at the time with a jumper beneath it, the skin on her forearm was broken at the point of impact.

184. Dr Fredericks said that at about this time (after the tray was broken) Dr Cooke-Yarborough stuck her head out of her office door. Dr Camaris was also still in the corridor and that when Dr Samaraweera became aware that Dr Camaris was behind her she "appeared to panic", went into her office and shut the door.

185. Dr Fredericks said she did not see Dr Edwards but was not going to suggest that she wasn't there as she wasn't looking up into the distance up the corridor, she was concentrating on the events around her. She thought that Dr Edwards must be mistaken if she had said that when she came out to the corridor to see part of what happened that Dr Camaris was sitting at her desk.

186. Dr Fredericks said to Dr Camaris words to the effect of : "it's enough that you ignored what Peter Bullpitt did to me on Monday but surely you're not going to ignore this". Dr Camaris replied that she didn't see anything then turned and started walking towards her office. Dr Fredericks followed her and said words to the effect of - " but of course you saw something, you were standing right there, of course you saw it". Dr Camaris repeated that she did not see anything and Dr Fredericks said words to the effect of "you saw me with my hand over my head in self defence while Ushma smashed a tray over my head."

187. Dr Fredericks denied that if she had really been punched and that Dr Camaris must have seen it, then she would have said that to Dr Camaris at some stage. She said that Dr Camaris was walking away from her "at quite some pace" and she just stuck to the most important thing, she didn't have time to go into detail.

188. Dr Fredericks followed Dr Camaris into her office where Dr Camaris said words to the effect of "I don't have time for this." Dr Fredericks was standing in her doorway and Dr Camaris had her back to her and said words to the effect of "Ushma would say that you assaulted her."

189. Dr Fredericks believed that Dr Camaris was saying this for Dr Samaraweera's benefit; providing instruction as to what she should say; indicating her support; and that she would have been able to hear it this as her office was next door to that of Dr Camaris, the partitions between the offices were thin, and normal conversation could be heard through the partitions.

190. Dr Fredericks then went and picked up the pieces of the filing tray from the floor in the corridor and put them on the bench just inside Dr Camaris' office and told her that it was the tray that Dr Samaraweera "smashed" over her head. She then went to her own office.

191. Dr Edwards then came to her office door and asked if she was all right.

192. Dr Crouch also came into the corridor sometime after the incident and from her office Dr Fredericks heard him say words to the effect of "what's going on". She then left her office, went into the corridor and said to Dr Crouch words to the effect of "look I will tell you what's going on". She then pulled up her sleeve and showed him the haematoma and graze on her arm and said words to the effect of "Ushma has just smashed me over the head with a tray and Catherine has seen the whole thing and she is not going to do anything about it". She then took Dr Crouch into Dr Camaris' office and showed him the broken filing tray on the bench and pointed to the tray. Dr Crouch and Dr Camaris then sat down at the double headed microscope and neither of them said anything to her.

193. Dr Fredericks said that she did not feel she could stay at work and did not feel safe. She went and told Dr Camaris that she was going home and didn't know when she would be back. Dr Camaris and Dr Crouch was still sitting at the double headed microscope and did not acknowledge her or make any comment. She then went to see A/Prof Wilson and told his Executive Assistant, Ms Lorger, that she had been assaulted and would like to speak to him. She recalled being "very teary, shaken and distraught". She told A/Prof Wilson about the incident, spending approximately half an hour with him, also told him that she did not feel able to return to work.

194. In cross examination Dr Fredericks was also taken in some detail through what she told A/Prof Wilson, based on the notes that he had made. She could not remember whether she told him anything about being punched or whether she had demonstrated what happened, she said that she would have done one or the other. She did not know that A/Prof Wilson had made no reference in his notes to punching.

195. When she left the Unit she went to see her GP in Randwick. She did not have an appointment and had to wait about two hours. The GP, Dr Chuang, documented the injuries to her arm. She recalled that her arm was very painful. She was given a medical certificate for the remaining two weeks until her resignation was going to take effect.

196. Dr Fredericks said that she went to the Unit briefly the next day, left the medical certificate with the Laboratory Manager (Mr Jian Yang) and gave him the cases she had left over for redistribution. She also spoke to Dr Camaris and told her she wasn't coming back but would come in after hours to clean out her office and that her medical certificate was in Mr Yang's office. Dr Camaris said "okay" but said nothing else to her.

197. Dr Fredericks made attempts to engage a photographer on Saturday 5 and Sunday 6 September, but was unsuccessful, and had photos taken of the bruises by professional photographer on Monday 7 September.

198. Dr Fredericks did not make any notes about what had happened on 3 September and the first time she was involved in creating any record of the incident was when she was interviewed by Ms Savage in October 2009.

199. In cross-examination Dr Fredericks was taken through each stage of Dr Samaraweera's version of how the altercation unfolded between them and what had happened and denied that account in its entirety. She also denied that she was still upset about the earlier incident involving Dr Bullpitt and him fighting Dr Samaraweera's battles.

200. Dr Fredericks further clarified that Dr Samaraweera said a number of expletives and called her names. She couldn't remember the exact sequence but she called her something like "stupid bitch" or "fucking bitch". She could recall the word "bitch", but not the words that went with it, but remembered they were derogatory and offensive. She acknowledged that she had not mentioned those swear words in her statement as it was embarrassing to her and she had to do this statement very quickly. When she said "insulting words" in her statement she did not specify the specific insulting words. She also acknowledged she did not say anything to Ms Savage about insulting words being said to her.

201. She denied now saying that Dr Samaraweera had said those words because she knew someone else had made the same allegation. She had not spoken to Dr Cooke-Yarborough or Dr Edwards about the case since the event.

202. She also maintained that when Dr Samaraweera went back into her office after the altercation had taken place that she did not see her come out and said she would have heard her come out because there was no one in sight at that time. She maintained Dr Samaraweera was in her office the whole time that she was talking to Dr Camaris and that she might have left after that, but she did not leave while Dr Fredericks was still in the corridor. Dr Fredericks had not seen Dr Samaraweera since that day and up until the hearing.

203. Dr Fredericks acknowledged that she was aware that there had been an investigation into her allegation that Dr Camaris had witnessed the whole event and the finding of the investigation was that her allegation was not sustained and that finding was based on Dr Camaris being believed over Dr Fredericks. She believed it was Dr Camaris' word against hers.

Dr Camaris' account

204. Dr Camaris relied essentially on her record of interview with Ms Savage as to what occurred on 3 September. She denied seeing the incident. She was in her office and heard a scream. She could not remember the exact word she heard and felt that it was Dr Samaraweera who screamed. She came out of her office into the corridor and looked left, then right, and saw Dr Fredericks and Dr Samaraweera and a broken tray on the floor. They were just in front of the empty office next to that of Dr Tobias. Dr Fredericks was facing towards her, but on an angle, and more facing her own office. Dr Samaraweera had some of her back towards Dr Camaris.

205. She did not see any one else in the corridor. Dr Samaraweera then went to her office, collected her handbag and left in a distressed state, that is, she was "teary and shaking".

206. She told Ms Savage in the interview that she did not speak to Dr Samaraweera, however she deposed that she now recalled that when she was leaving Dr Samaraweera said to her in a distressed manner words to the following effect .."I have just been beaten up. I can't work like this. I am leaving." It was also her evidence that Dr Samaraweera went past her at a "slow run" down the main corridor and out of the Department.

207. Dr Camaris said that Dr Edwards was not standing outside her doorway when she came out of her office and entered the corridor and agreed that if she had said she was that she was then being untruthful.

208. Dr Camaris believed the reason for Dr Edwards to be untruthful was that she did not like Dr Samaraweera, and that maybe she did not want to work with her anymore. She believed that it had started because Dr Samaraweera did not invite Dr Edwards to her wedding and then when Dr Edwards came back from maternity leave in 2004 she expressed to Dr Camaris how annoyed she was about that, which Dr Camaris thought was "silly", but it became more apparent to her after this time that she was unfriendly and holding a grudge towards Dr Samaraweera.

209. Dr Camaris did not agree that there was only one day of the week when they both worked together. Prior to Dr Edwards' maternity leave she worked 4 days, then 3 days. She agreed that since her maternity leave she had only worked two days and that on most occasions there was only one day when they worked together but she also asked Dr Samaraweera to do extra days for her on occasion.

210. Shortly after Dr Samaraweera left the Unit after the incident, Dr Camaris telephoned her on her mobile and asked if she was all right and she replied "no I'm not, I had just been beaten up". Dr Camaris told that she had to go to interviews and would call her later. Dr Camaris said she rang later that afternoon at about 4 pm, asked how she was and also whether she had taken any photos of any injuries. Dr Samaraweera said she hadn't, so Dr Camaris told her she thought she should and that the incident had been handed over to Roger Wilson.

211. Dr Camaris said she did not recall the conversation that Dr Samaraweera attributed to her as taking place in that phone call and her recollection of the conversation was as set out in her affidavit. She said that at no time did she indicate to Dr Samaraweera that she believed Dr Fredericks was lying and she also denied that that was the view she had formed. She denied that what she was concerned about was that Dr Samaraweera had in fact hit Dr Fredericks and that she was likely to be in some trouble and difficulties as a result of that and that she may lose yet another senior pathologist and that it was in her interest to back Dr Samaraweera. She was not backing anybody, she had referred the matter on to her senior.

212. Dr Camaris also said she could not recall Dr Fredericks saying anything about her ignoring what Dr Bullpitt did to her on Monday etc. and denied the conversation that Dr Fredericks recounted. Dr Camaris recalled having a conversation with Dr Fredericks to the effect of:

Dr Fredericks:

"You saw Ushma strike me?"

Dr Camaris:

"Sue, I didn't see anything."

213. She maintained that Dr Samaraweera had already left the building before she had returned to her office and either denied or didn't recall any of the words Dr Fredericks maintained were exchanged between them in her office.

214. Dr Camaris did recall that Dr Fredericks left her office and then came back very shortly thereafter with the broken pieces of plastic tray in her hand and left them on the bench and then left. She denied that Dr Fredericks said anything to her when she did this.

215. She did not recall asking Dr Fredericks whether she was okay because she was in shock and didn't really know what to do for a few minutes. She then rang Roger Wilson, who was her boss, and asked for his help and to manage the issue.

216. She did not ask Dr Fredericks if she was alright because she had left the Unit. She agreed she didn't call Dr Fredericks because she had already resigned and she was concerned for Dr Samaraweera because she saw her in "a terrible distressed state" when she ran out of the Unit. She didn't feel that Dr Fredericks was in such a distressed state.

217. Dr Camaris said that on 4 September neither Dr Fredericks nor Dr Samaraweera attended work. They were very short staffed and she telephoned Dr Samaraweera and asked that she come to work. Dr Samaraweera came to work at about 11 am and said "look at my injuries". She then showed her cuts on the inner aspect of her right thumb and a "sizable red mark" on her upper outer right arm consistent with an early bruise

218. Dr Camaris said that she did not investigate the incident because Dr Fredericks had accused her of seeing the incident when she hadn't, and of ignoring the incident, so how could she possibly objectively investigate something that serious when she had alleged two things that were not true. Dr Camaris also felt that the seriousness of the situation was so great that it was beyond her capabilities to investigate and that was why she referred it on to her senior.

Dr Sugo's account

219. Dr Sugo confirmed that she had not been provided with a copy of her record of interview with Ms Savage to sign until sometime in the 2 months before the hearing. No-one had chased her up about it. She had now looked through it and she had also asked for the recording because of the time that had elapsed, but in the end did not listen to it as she was satisfied on reading through it that she was quite happy with it. She then signed it.

220. Dr Sugo's recollection of what happened on 3 September was very much in line with what she told Ms Savage in her interview on 27 October 2009 (Exhibit 3) and she did not have any additional recollection. She said that she was in her office, which is adjacent to the office of Dr Samaraweera, sitting at her desk and that the door was "not fully closed". She was unable to see down the corridor but did remember people walking past during the incident. She heard raised voices, and recollected that Ushma was walking towards the lab and Sue came behind her but she thought that was sort of "through the corner of her eye through a partly open door". She believed someone said "don't you punch me" and that it was Dr Samaraweera.

221. She also believed that Dr Fredericks said something about the fact that Dr Samaraweera had done something to her before and Dr Samaraweera said that the whole thing was unacceptable and then she went back to her room. At that stage there were a lot of other voices coming in and then Dr Samaraweera left. Dr Camaris had also come into the picture and Dr Fredericks was talking to her and raised the fact that Dr Camaris had not intervened on her behalf in the previous incident and she remembered Dr Camaris saying "I haven't seen anything, I didn't see anything", repeating that on a number of occasions. She felt the conversation basically took place in the T intersection of the corridor.

222. She did not hear a tray being broken and did not hear any noise or any bumping.

Dr Cooke-Yarborough's account

223. Dr Cooke-Yarborough said that on the morning of 3 September she was in her office with the door "almost closed" reading CVs for interviews due to commence at 12.30 pm. The first she became aware of an incident was when she heard Dr Samaraweera scream " You fucking bitch". At that point she got up from her desk, crossed the room, opened her office door and stood in the doorway. She said that she did not hear Dr Samaraweera say anything like "how dare you punch me" or why did you shove me" or "how dare you push me", but was quite sure she heard "you fucking bitch".

224. She did not see any physical altercation between Dr Samaraweera and Dr Fredericks. She could not recall the exact sequence of what she saw, but her recollection was that Dr Fredericks was to her left in the corridor walking towards Dr Camaris picking up pieces of a black plastic filing tray and holding them in her outstretched right hand which was trembling. She recalled hearing Dr Fredericks say words to the effect of - "You saw this. You saw this" - to Dr Camaris who was in the corridor near her office door, (but did not recall seeing Dr Camaris). She did not see Dr Edwards.

225. She then saw Dr Samaraweera come out of her office carrying her handbag and she yelled something to the effect of - "I'm not staying here" - and she "stormed" (which was her impression) straight ahead going along the main corridor between Dr Cooke-Yarborough's office and that of Dr Edwards, leading towards the front entrance of the Unit. She did not return that day. Dr Cooke-Yarborough said that she then retreated into her office feeling very "shaken and shocked", gathered together the papers for the interviews and went to the conference room at about 12.15pm.

226. The day after the incident when she arrived at work she observed Dr Samaraweera leaving the hospital but avoided her attempt to discuss the incident, she pointed to a Band-Aid on one of her fingers and said that she and her husband had been to see A/Prof Wilson the previous evening and she had spoken to Dr Camaris.

227. Dr Fredericks came into the Unit midmorning that day to collect a pot plant and said that she was leaving and wouldn't be returning. They did not discuss the incident, but Dr Fredericks said words to the effect of - "my elbow is stiff and sore from being hit with the tray". She left the Unit shortly afterwards. Dr Cooke-Yarborough had not spoken to Dr Fredericks since that day.

228. In the days following 3 September she wrote an unsolicited account of the incident (Exhibit 27-CCY1). The document did not add any further or different detail to her account above and also dealt with her views about interpersonal relationships in the Unit and unequal work distribution.

Dr Crouch's account

229. Dr Crouch relied mainly on the transcript of his interview with Ms Savage but provided additional detail in his second affidavit. He indicated that at the time of the incident he was in the Registrar's room going through a difficult case with one of his registrars. The Registrar's Room is down the corridor about 3 or 4 doors from the corridor in which the incident took place and there is a "T" junction. He heard a loud scream followed shortly thereafter by a crash and he thought at the time that someone had dropped a tray of specimens and the scream was related to that. Shortly afterwards he heard Dr Samaraweera say "I'd had enough, I'm out of here" or words to that effect.

230. He then stepped out into the corner, but didn't see anything in the corridor that he was in, so he went back to the Registrar's Room to finish what he was discussing. When he was returning to his office about five minutes later he asked Dr Camaris what was going on and at that point Dr Fredericks came out of her office next door and the following conversation took place with words to the effect of:

Dr Fredericks:

Ushma hit me with a tray and Catherine saw the whole thing and is not going to do anything about it."

Dr Camaris:

"Sue, I did not see anything. I was in my office."

231. This conversation was not mentioned in his interview with Ms Savage and when he was asked - " she didn't say anything about how it happened to you or" - he responded "No." .

232. Dr Crouch said that Dr Fredericks pointed to an abrasion on her arm and at that stage she said "I am out of here" and she "took off". He did not really see her thereafter. He confirmed that there was a graze on her arm and the skin was "slightly broken". Dr Crouch then went back to his office.

233. Dr Camaris did not recall any conversation between Dr Fredericks and Dr Crouch.

234. Dr Crouch told Ms Savage that after the incident "the place was in a sort of state of shock" and no one knew what to do, there was some talk, and he gathered from what he was told, that Dr Samaraweera claimed that Dr Fredericks had pushed her or punched her against the wall as they passed in the corridor. He had no way of verifying that as he didn't see it and he thought she had retaliated, but didn't think there was any question that she had retaliated by throwing a tray. It was unexpected to him because it was totally out of character for Dr Samaraweera to react. She was a "very calm pleasant girl" and for her to react seemed totally out of character to him.

Dr Edwards' account

235. Dr Edwards' evidence was that she was working in her office at about 11.30 am on 3 September when she heard a cry from the corridor and someone, who she believed was Dr Samaraweera, shouting words to the effect of "how dare you, how dare you punch me". There was a soft spoken and indistinguishable response from the other person. She then heard the words to the effect of "well how dare you push me".

236. Dr Edwards then stood up from her desk, walked to her door and looked out into the corridor. She stood in her doorway at a right angle to the door frame looking in the direction of the laboratory. Dr Samaraweera and Dr Fredericks were standing in the corridor near the room being used by the IT workers (and that was next to Dr Cooke-Yarborough's office). They were facing each other but standing slightly diagonal to the corridor with Dr Fredericks facing in Dr Edwards' directions and Dr Samaraweera facing the laboratory.

237. Dr Edwards recalled that Dr Samaraweera then turned away as if to go her office and she thought that she had taken no more than one or two steps before turning back. She shouted words to the effect of "You fucking bitch". Dr Edwards could not recall if she shouted those words before she turned away or after she turned back.

238. She said that Dr Samaraweera had a black object in her hand (which she later realised was a black plastic filing tray) and she lifted the filing tray and attempted to strike Dr Fredericks on the head with it. She described the striking action as a "flexion or extension of the elbow motion." She did not count the number of striking actions but recalled it being more than one. Dr Fredericks put up her forearm to protect herself and was crouching slightly with her knees slightly bent. During Dr Samaraweera's striking action Dr Fredericks was changing positions to avoid being hit, with Dr Samaraweera stepping sideways. Dr Samaraweera then threw the plastic tray down onto the carpeted corridor floor which bounced into the laboratory making a loud clattering noise on the lino. She could not recall whether the tray was already broken when it hit the floor but later recalled seeing it in more than one piece in Dr Camaris' office.

239. Dr Samaraweera then shouted words to the effect of "I'm not putting up with this" or "I don't have to put up with it" and ran out of the Unit. Dr Camaris had also come out of her office, but Dr Edwards could not recall exactly when this happened, but did recall her running immediately after Dr Samaraweera. She reappeared quickly, However Dr Edwards said her sense of time may not have been correct.

240. Dr Camaris denied running after Dr Samaraweera.

241. Dr Edwards said that Dr Camaris then went to her office and Dr Fredericks held up her forearm and said words to the effect of "I've been assaulted" and attempted to approach Dr Camaris in the corridor but Dr Edwards did not hear the whole conversation. Dr Camaris denied that this was said to her.

242. Dr Edwards said that she stayed in her office during the part of the incident that she witnessed and did not move or say anything as she was shocked by what was happening.

243. At some point she recalled Dr Fredericks looking at her but was uncertain of what she said to her with Dr Fredericks saying words to the effect of "I probably should compose myself before I speak to Catherine". She said that Dr Fredericks appeared "subdued and calm she did not appear angry".

244. Dr Edwards recalled Dr Camaris making a phone call when she went to her office, she did not hear the conversation but was later told that she was trying to call A/Prof Wilson.

245. Dr Edwards said she did not understand why Dr Camaris had gone straight to her office without discussing the matter with Dr Fredericks and she then went to and spoke to Dr Camaris with words to the effect of "you need to say something to Sue", or " you need to show some concern for Sue" followed by words to the effect "it looks as if you are showing favouritism to Ushma."

246. Dr Edwards said that when Dr Camaris did speak to Dr Fredericks she said words to the effect of "look I have to interview now but it will get sorted I can't do it now". Dr Fredericks became angry and began shouting about an argument earlier on in the week (when Dr Edwards does not work) and said to Dr Camaris words to the effect of "I have been assaulted and the other day Peter Bullpitt was shouting at me and you did nothing. He drummed my chest with his fingers and you did nothing". Dr Edwards did not hear the whole conversation as she had moved away.

247. Dr Edwards also recalled having a further conversation with Dr Camaris about the incident on either the 3 or 4 September where she perceived from her body language that Dr Camaris was angry with her. During the conversation Dr Camaris said words to the effect of, "I didn't appreciate your comments during the incident". She also said, "look no one saw what happened I spoke to Ushma and this is what she told me. She says Dr Fredericks pushed her, she fell to the ground, the tray broke and she cut her finger and that's what happened".

248. Dr Edwards recalled interrupting Dr Camaris with words to the effect of "But I saw Ushma hit Sue. Dr Camaris replied with words to the effect of: "well don't you think it's reasonable that in the heat of the moment Ushma should lose control and give Sue a pathetic little tap with a tiny piece of plastic" She then became increasingly upset and Dr Edwards did not feel she should contradict her but did not believe it was reasonable what she was claiming. Dr Camaris also said words to the effect of "I don't know what I will do if Ushma doesn't come back to work" and then spoke about being under extreme work pressure. Dr Edwards discontinued the conversation as she could see Dr Camaris was extremely upset. She had not spoken to Dr Camaris about this conversation or the incident since that time.

249. Dr Camaris maintained that when Dr Edwards spoke to her in her office that it was later in the same day after the interviews that she was conducting took place and this was after 3pm. She recalled her saying that it appeared she was showing favouritism, and remembered the word 'favouritism" as it upset her because she felt that by handing the incident onto Roger Wilson she was not showing favouritism. She denied telling Dr Edwards anything about seeing Dr Samaraweera hit Dr Fredericks or that it was reasonable etc. She did agree that she did say that she didn't know what she would do if she didn't come back to work.

250. She also confirmed that she did tell Dr Edwards that she didn't appreciate her comments as she said she was upset at being accused of showing favouritism and she had passed the matter directly on to A/Prof Wilson. She denied the rest of the conversation as alleged by Dr Edwards.

The Investigation and decision making process

251. It was Ms Savage's evidence that she was first made aware of the 3 September incident around the 22 September by Ms Elizabeth Koff, Director, Clinical Operations. She had a discussion with Ms Koff and then a discussion with A/Prof Wilson who later provided her with file notes he had made following his discussions with Dr Fredericks and Dr Samaraweera. In neither discussion was the issue of Dr Samaraweera making allegations against Dr Fredericks raised. Ms Savage agreed that she did not raise any issue that there were allegations by Dr Samaraweera against Dr Fredericks and that in order to be balanced she should investigate those as well. Whilst she was aware that there was content in Dr Samaraweera's file note and she fully expected it to come out during the investigation she was only instructed to investigate Dr Fredericks' allegation.

252. Ms Koff then tasked her with investigating Dr Fredericks' complaints (against Dr Samaraweera and Dr Camaris). As part of the investigation process she interviewed approximately 14 staff from the Unit between 7 October and 29 October. She interviewed Dr Edwards twice with the second interview taking place on 29 January 2010. Ms Savage acknowledged that she had A/Prof Wilson's file notes before she commenced the interviews and that she told interviewees that she was investigating a complaint made by Dr Fredericks against Dr Samaraweera.

253. She prepared the Investigation Report and Recommendations that were presented to the Chief Executive as the decision maker in this matter and it was her view, "on balance", that the allegations against Dr Samaraweera should be sustained.

254. In relation to Ms Savage's investigation into the allegation against Dr Camaris the following exchange took place:

Q. And with respect to your first investigation, you made a finding that Dr Camaris had not witnessed any of the event alleged by Dr Fredericks?

A. Well, I couldn't reasonably satisfy myself that she was in the corridor, so I couldn't reasonably reach the conclusion that she had witnessed anything that occurred there.

Q. So in making that finding, you preferred Dr Camaris' account of what had happened over Dr Fredericks' account?

A. That's correct. That was based on the fact that there was a person in corridor who did witness the event who could not put Dr Camaris in the corridor.

Q. That person you are talking about is Dr Edwards?

A. Correct.

Q. Your reasoning was that because you believed Dr Edwards was in the corridor and she didn't see Dr Camaris, then Dr Camaris must be telling the truth when she said she wasn't there?

A. I just said that on balance, I couldn't sustain that allegation, because Dr Edwards couldn't recall seeing Dr Camaris there, and if she wasn't there, she couldn't have seen it as was alleged.

Q. Did you find Dr Camaris to be a credible person when you interviewed her?

A. I found her a difficult person to interview.

Q. Did you find her a credible person?

A. I had issues to do with her credit. I thought that she in all likelihood probably did hear and see things and her behaviour after the incident left me with some doubts as to her credit in the whole situation.

Q. You said you formed a view that she probably did hear and see things?

A. Mm-hmm.

(Exchange with Commission re non-verbal answer)

Q. The question was that you formed the view that Dr Camaris probably did hear and see things?

A. Yes. In fact I formed that view about a lot of the people who claimed they didn't hear and see things, because I'm told it was a very loud exchange in the corridor and there were a lot of people in offices very close by.

Q. You didn't tell anybody about this view you formed that that Dr Camaris probably did hear and see things, did you?

A. No, because I couldn't prove it. It was a personal view.

Q. You didn't even mention it in your report to Terry Clout, did you?

A. No, I didn't think it had any value. If a professional person tells me they heard certain things or didn't hear certain things, I can only present the evidence as it's given to me.

Q. In reports to Terry Clout, both in respect to the allegations against Dr Camaris and Dr Samaraweera, you make findings about who was being truthful and who was not, didn't you?

A. I did, yes.

Q. And you found --

A. Where there was, in my view, corroboration of particular events.

Q. And you found that my client, Dr Samaraweera, was knowingly untruthful, didn't you?

A I did, yes.

255. Ms Savage indicated that in the light of the evidence obtained by Dr Edwards and others she did not consider it necessary to put separate allegations to Dr Fredericks. She agreed that she believed Dr Edwards to be a truthful and reliable witness when she told her that she saw Dr Samaraweera trying to hit Dr Fredericks with a plastic tray and that on the basis of what Dr Edwards told her, she formed the view that Dr Fredericks was telling the truth when she said Dr Samaraweera hit her with a plastic tray. She also agreed that because she believed Dr Fredericks when she told her that Dr Samaraweera hit her with a plastic tray, that she also believed Dr Fredericks when she told her she'd been punched by Dr Samaraweera

256. Ms Savage said that in the final analysis she didn't believe there was any merit in putting Dr Samaraweera's allegations to Dr Fredericks. She said that it was not at all uncommon in the investigations she did for there to be counter allegations made in the course of an interview or in an investigation. If at the end of that process there was as a question as to whether or not those matters should be pursued, then they were pursued, either by her, or by someone else in the organisation.

257. When asked whether she considered that for there to have been a balanced and proper investigation it was necessary to investigate both sets of allegations rather than just one, she contended that that was precisely what had happened, "the same issues were under investigation". She went on to say that, "the allegations are essentially the same allegations, and that is that one must assaulted the other in the corridor".

258. Ms Savage acknowledged that she interviewed both Dr Fredericks and Dr Edwards (the first interview) before she interviewed Dr Samaraweera. When she came to interview Dr Samaraweera she had not formed the view, based on what Dr Fredericks and Dr Edwards had told her, that Dr Fredericks was telling the truth because she hadn't heard Dr Samaraweera's version of events. There appeared to be some corroborative evidence, but that didn't mean that there wasn't something that Dr Samaraweera might say that might shed a different light on that.

259. Ms Savage also acknowledged that when she interviewed Dr Samaraweera she, (Dr Samaraweera) did not know that Dr Edwards claimed to have witnessed part of the incident. She also could not recall whether she asked Dr Samaraweera about her relationship with Dr Edwards and probably asked the same broad question about relationships in the Department.

260. She acknowledged that due to an administrative oversight Dr Sugo had not received a copy of her interview transcript. She did not rely on Dr Sugo's evidence when preparing the Investigation Report findings or when recommending disciplinary action. She also formed the view in interviewing her that she wasn't willing to be interviewed, that was the impression she got; some comments she made, before and after, suggested to her that she may not be entirely reliable.

261. When asked what Dr Sugo said that led her to believe she might not be reliable she replied:

A. I didn't hear anything, I didn't see anything, I might have heard little bits here and there, but ultimately I don't want to have a lot to do with this, I just want to come to work and this is all very unpleasant, those kinds of comments.

262. She agreed that she attempted to press her for some details about what she could remember.

263. There was extensive cross-examination of Ms Savage concerning Dr Sugo's record of interview. She did not consider it relevant that Dr Sugo said that someone said "don't punch me " and she "thought it was Ushma but was not 100% sure", or that Dr Edwards had mentioned punching, because Dr Samaraweera herself didn't say she had said that.

264. Ms Savage said she did not give any weight, or think that it added any value, when Dr Sugo said she heard "Sue saying that Ushma may have done something to her before and Ushma saying the whole thing was unacceptable."

265. She denied that Dr Samaraweera was not provided with the opportunity to comment on relationships within the Unit during her interview and said that on her review of the record of interview she noted that there were comments from her about relationships. Also Dr Samaraweera's separate document responding to the allegations contained approximately a page of specific comment on Dr Fredericks' character and demeanour. She did not recall whether she asked Dr Camaris about the relationships in the Unit. She noted that in the record of interview Dr Camaris commented on Dr Fredericks' conduct but did not recall her commenting on the conduct or relationships of other staff in the Unit.

266. Ms Savage said that the purpose of the investigation was to ascertain whether "on the balance of probability" the alleged conduct occurred. As part of the interview process she recalled asking staff "open ended questions" to the effect of "is there anything else that you think I should note that may assist in consideration of this matter?". During the course of the investigation she recalled that a number of the staff interviewed raised issues about the relationships in the Unit. She did not take this information into account when making findings in the Investigation Report.

267. She agreed that she asked Dr Edwards specifically about her relationship with Dr Samaraweera for obvious reasons and that was to try and satisfy herself whether there would be any reason for her to lie.

268. She did not consider the relationship issues in determining the allegations but did consider it in relation to Dr Edward's credibility and whether reliance should be given to her evidence. She had regard to the relationship between Dr Edwards and Dr Samaraweera in making her findings in the report and was satisfied there was no issue.

269. She denied that not contacting Dr Bullpitt, (as suggested by Dr Samaraweera) or Dr Fredericks' previous employer, (as suggested by Dr Camaris) represented procedural unfairness. She did not consider it relevant. She also said that Dr Camaris would have checked Dr Fredericks' reference with her previous employer. When conducting an investigation she did not take direction from witnesses or respondents about who to interview and how to conduct an investigation.

270. Ms Savage said she did not investigate anything about the incident on 31 August as she was asked to establish the facts about what happened on 3 September. She agreed that the context of what had happened leading up to a violent incident could be relevant but said that she was conscious that there were "timeliness limitations and resource implications about investigations." She established what the terms of reference were and stuck to them. In this investigation people were also seeking intervention about how rosters were run in the Department and were seeking all sorts of assistance about issues in the workplace.

271. She did not interview Dr Bullpitt as part of investigation as he was not at work on 3 September and therefore could not have witnessed the incident and whilst the earlier incident on 31 August involving Dr Fredericks and Dr Bullpitt may have been a contributing factor, it was not directly relevant to the allegations she was investigating. She did not give weight to the earlier incident when making findings in the investigation. She agreed that she asked Dr Camaris, Dr Sugo, Dr Fredericks and Dr Samaraweera about it, but said she satisfied herself that it wasn't going to assist her in determining what had happened in the corridor.

272. Ms Savage was taken in some detail to the interview record of Dr Fredericks and her account of seeing Dr Camaris in the corridor and hearing her say "oh no". She was also taken to the diagrams that had been marked by both Dr Fredericks and Dr Edwards. She recalled that she was definite about saying that Dr Camaris was in the corridor and indeed was more annoyed with Dr Camaris than she was with Dr Samaraweera. She did not suggest to Dr Fredericks that she might have been mistaken and might have seen Dr Edwards rather than Dr Camaris even though that was one of the findings she made in one of her reports (the allegation about Dr Camaris).

273. She went on to say:

A. Look, what I think is possible and what I can establish on the facts might be two different things. I don't know whether Dr Camaris came out and saw a bit of it, went back in and then Dr Edwards came out, but all I can go on is what Dr Edwards told me and that was that she came out into the corridor and she didn't see Dr Camaris Dr Edwards came out and didn't see Dr Camaris there.

274. She still considered that it was possible that Dr Fredericks was mistaken when she said she saw Dr Camaris in the corridor rather than Dr Edwards but said that she could reasonably satisfy herself that she knew Dr Edwards was in the corridor or she accepted that Dr Edwards was in the corridor and, based on that acceptance, that was the conclusion she reached. She agreed that there were only two possibilities open to her - one. that Dr Fredericks was lying, or the other, that Dr Camaris was lying, with a third possibility that there was another person in the corridor with dark hair.

275. She rejected outright the proposition that she was eager to establish that Dr Fredericks was mistaken, because if she found that she was lying about that, then it would have been hard to believe her accusation against Dr Samaraweera.

276. Ms Savage confirmed that Dr Fredericks demonstrated to her during the interview how Dr Samaraweera was punching her with the tray and that Dr Samaraweera was holding the tray on one side and allegedly punching Dr Fredericks with her right hand. However she could not recall whether Dr Fredericks demonstrated how Dr Samaraweera was initially carrying the tray.

277. Ms Savage also indicated that Dr Edwards pointed to the handwritten floor plan that Dr Fredericks had prepared but did not mark where it was that she said was standing. Ms Savage thought "she said she was sort of just outside her doorway". Ms Savage then proceeded to mark where she thought Dr Edwards had pointed to, although she thought that Dr Edwards would be the better person to ask about that.

278. Ms Savage could not recall whether Dr Edwards had any notes with her during either interview and said it wouldn't be uncommon for people to do that. If she had notes with her, but was not reading from them, she would not ask for a copy of the notes, but if the person was reading from them then she would asked to see them or get a copy.

279. She interviewed Dr Edwards twice because she was directed to by the Chief Executive, Mr Clout. He told her that he wasn't satisfied as to whether or not Dr Samaraweera had been waving the tray around or whether or not she had actually struck Dr Fredericks with the tray and he asked her to clarify a few points with Dr Edwards in her previous interview so that he could better consider how to progress the decision.

280. Ms Savage also acknowledged that in a second interview she did raise with Dr Edwards, in some detail, her assertion that Dr Samaraweera was initially facing away from where Dr Edwards was standing and then turned around facing back towards her and agreed that Dr Edwards changed her story about which way she turned and gave her an explanation about Dr Samaraweera looking down. She accepted it as a truthful explanation that Dr Edwards was giving at the time and said she would have thought that in an incident like that, if someone was around, people might see them, but she did accept that it was a heated exchange and things might happen more quickly. Dr Edwards did say that it all happened very quickly.

281. Ms Savage was also asked about the inconsistency in evidence about Dr Samaraweera leaving the Unit through the Laboratory (according to Dr Edwards) or going along the corridor between Dr Edwards' and Dr Cooke- Yarbrough's offices. She did explore that because she thought it was an inconsistency and reconciled it because Dr Edwards couldn't be sure of what happened and whether or not she went to her office, got her bag and left, or whether she just left. She didn't think that inconsistency was pertinent to what had happened in the corridor at all.

282. Ms Savage did not think it odd that no one else saw Dr Edwards in the corridor at all, not Dr Fredericks, Dr Samaraweera, Dr Camaris nor Dr Cooke Yarborough, and it did not strike her as "odd" because this was an incident that occurred very quickly in the corridor and there were lots of peoples' focus of attention in different areas. In comparing the inconsistency in the evidence between what Dr Edwards said about Dr Samaraweera's action with the tray and what Dr Fredericks said, she thought that the inconsistencies were still consistent with the overall allegation and was certainly completely inconsistent with the alternative put forward by Dr Samaraweera, which was that she was holding the tray in front of her while being punched. Ms Savage demonstrated where Dr Samaraweera said she was holding the tray in front of her and said that was how the tray got broken when Dr Fredericks punched into the tray.

283. Ms Savage agreed that Dr Fredericks showed her photographs of bruises on her arm she thought that they were more consistent with Dr Fredericks having her arm up while she was being struck with the tray and she was also seen by Dr Edwards in the corridor holding her arm up.

284. Ms Savage was also asked about the inconsistency between Dr Fredericks' evidence and Dr Edwards' evidence about when the tray broke. She said had regard to that inconsistency and reached the conclusion that she couldn't say how or when the tray broke.

285. Ms Savage agreed that there were no eyewitnesses apart from the two participants to the punching and if there had only been one allegation of punching and not an allegation of hitting, then on that basis she would not have found it sustained. She found the allegation of the hitting with the tray sustained because Dr Edwards had witnessed part of the event and she believed her to be an accurate and truthful witness, and a credible witness and she corroborated key parts of Dr Fredericks' allegation. On that basis, rightly or wrongly, she made the decision that Dr Samaraweera's submissions on that key point were untruthful and if she was untruthful on that point then she may well have been untruthful on the other points.

286. She was aware that in the notes of A/Prof Wilson he had made no reference to Dr Fredericks telling him about being punched. She also had regard, when she considered this matter, to the fact that Dr Fredericks didn't say anything to either Dr Camaris or Dr Crouch about being punched. The issues of whether or not anyone was punched at all did weigh on her mind. She said that similarly Dr Samaraweera didn't mention that she was punched in her meeting with A/Prof Wilson.

287. Ms Savage agreed that at no time during her interview with Dr Samaraweera did she tell her that her employment was at risk as it was not her usual practice to do that. The usual practice was to provide people with the Policy that outlined the process that will be followed. She did not like to pre-empt what a recommendation might be. She also indicated that Dr Samaraweera was legally represented.

288. She also agreed that she did not tell Dr Samarweera who else she intended to interview or that she would have transcripts of those interviews available to her. She did not provide Dr Samaraweera with copies of any transcripts she received nor did she do that in the normal course of an investigation. She provided them with the Policy. In the normal course of events people who were represented had copies of the report and knew what they were entitled to request and if it was requested then she provided it. Dr Samaraweera was legally represented and if she had asked at any point in the proceedings if she could have a copy of the investigation file then Ms Savage would have given it to her.

289. She also did not provide Dr Samaraweera with A/Prof Wilson's notes and she did not request them. Nor did she provide those notes to the decision maker. She did not consider that they constituted part of her investigation and did not rely on them in forming her views and having spoken to Dr Fredericks and Dr Samaraweera they did not add any value in terms of the decision Mr Clout would be taking.

290. Ms Savage acknowledged that following the second interview with Dr Edwards she prepared a further updated advice for Mr Clout in which she referred to those file notes. She also indicated, however, that such internal documents (her self-initiated briefings) were not provided outside the organisation in the normal course of events.

291. Ms Savage acknowledged that in her Report she referred to the photographs of both Dr Fredericks and Dr Samaraweera and differentiated between them as to the provision of a date and whether the face could be seen and said that she was simply being factual in her description of the photographic evidence before her. She denied that this was done to portray Dr Fredericks' photographs as better evidence than Dr Samaraweera's. She presented the evidence about the photos on the basis of what they showed her.

292. Ms Savage was taken to the section of her Report concerning those interviewees (the 3 lab staff) who had reported hearing Dr Samaraweera say "bitch" with one saying that it was someone who "sounded like Ushma". Ms Savage thought that person said two different things, that she heard screaming and then she thought she heard Ushma say "bitch".

293. She went on to say that you also had to take into account when you were dealing with people in subordinate positions giving evidence about a senior doctor that they always couched things in "tentative ways" which was why she didn't really "make a big deal" of the evidence of any of those people. She said Dr Cooke-Yarborough heard something to that effect and also Dr Edwards. It was put against the corroborative evidence of the other people and she probably concluded "on balance" and made a decision. If all the evidence was tentative or unsure then she probably wouldn't have included it.

294. It was put to Ms Savage that her interpretation of who said what, was not an accurate reflection of what was said and she ultimately agreed, based on what was read to her from her report, that it was not fair or balanced.

295. However it was subsequently agreed between the advocates, without the necessity of tendering that record of interview, that the third person from the lab staff told Ms Savage that he recognised the voice that said the words "you bitch", or words to that effect, as being that of Dr Samaraweera.

296. Ms Savage also gave evidence in cross examination about a meeting she had with A/Prof Wilson and Mr Clout following the interview that she had conducted with Dr Fredericks. A document with the key points was sent attached to the email arranging the meeting. Those points outlined Dr Fredericks' allegations against Dr Samaraweera and Dr Camaris. Ms Savage said that the purpose of the meeting was to tell them the nature of the allegations and the way she intended to proceed. She did not tell either A/Prof Wilson or Mr Clout that she thought Dr Fredericks was credible or that she believed her, and neither did they express any view about Dr Fredericks' allegations. They told her she should proceed to investigate them. A/Prof Wilson did not say anything at that meeting about the allegations that had been made to him by Dr Samaraweera. At that stage she had not formed a view about the truth or otherwise of the allegations.

297. She agreed that it was certainly evident to her that there were issues in the Department that were creating tensions and that one of the two doctors must have "just snapped" and that was the way the evidence would fall. She was aware of the fact that Dr Fredericks had been unhappy at work in the Unit and had submitted her resignation two weeks before and that was in the back of her mind and she had regard to it. However she did not think that somebody who had already submitted their resignation had less to lose and was therefore, on that fact alone, more likely to be the aggressor.

298. She said she also explored the incident earlier on in the week involving Dr Fredericks and Dr Bullpitt with Dr Samaraweera when she spoke to her.

299. Ms Savage said that there were assertions made as to Dr Fredericks being aggressive at work and she recalled that there was a lot of frustration and a lot of unhappiness around the issues of rostering, and equity in rostering, and disagreements and arguments on that subject. She agreed that no one told her about Dr Samaraweera being aggressive in the Unit, only Dr Fredericks.

300. She did not consider the difference in height between Dr Fredericks and Dr Samaraweera meant that it was unlikely that someone smaller would pick on someone bigger as she had had a number of cases where very little people had attacked very big people in the organisation.

301. Ms Savage also indicated that there was no evidence of the fact that Dr Fredericks and Dr Camaris did not get long until she interviewed Dr Camaris. Her performance reviews of Dr Fredericks were very positive.

302. Ms Savage said she put the issue about rostering favouritism to one side and it was her intention to refer those operational issues back to the Director to deal with.

303. Ms Savage acknowledged that the letter of 5 December from Mr Clout to Dr Samaraweera did not have attached to it the Investigation Report. That was an administrative oversight. She was subsequently advised by Ms Lorger, the Office Manager/Executive Assistant to A/Prof Wilson, that Dr Samaraweera was sent the Investigation Report on 8 December 2009.

304. Ms Savage believed that the NSW Health Policy Directive PD2005_225 and the SESIAHS's Disciplinary Policy Directive , when properly interpreted, provided that Dr Samaraweera had a right to request additional information. At no stage did Dr Samaraweera or her industrial adviser approach Ms Savage seeking to exercise that right to seek additional information. Had she been approached for additional information, such as interview transcripts, they would have been provided. She did not believe that those sections of the Policies were intended to cover internal briefings to the decision maker.

305. Ms Savage also denied that the Policy was contravened by not providing Dr Samaraweera with the file notes made by A/Prof Wilson or her own file notes. These file notes were not provided to Mr Clout the decision maker and therefore fell outside of the range of information "... taken into consideration by the decision maker..." as outlined in the Policy.

306. Ms Savage did not believe that the investigation process was skewed in favour of Dr Fredericks and against Dr Samaraweera and believed that it was conducted in an impartial manner.

307. Mr Clout outlined his knowledge of the events leading up to the termination of Dr Samaraweera based on his own knowledge and a review of the records.

308. He could not recall that there was a separate investigation into allegations by Dr Fredericks against Dr Camaris but accepted that it was evident that that had occurred.

309. In addition to the documents that he had seen, Mr Clout said he had also spoken to A/Prof Wilson who indicated to him that there had been an incident and had actually sought his advice as to whether or not the process of referring it Margaret Savage was the correct process. He indicated that there had been an allegation of pushing and shoving and an allegation of hitting with a tray. It was Mr Clout's best recollection that there had been allegations both ways but not the detail. He told A/Prof Wilson that he should discuss the matter with Ms Savage who would ensure that an appropriate process was put in place.

310. He left it up to A/Prof and Ms Savage to establish a proper investigation process because it was possible that he could be the decision maker and his objective at that point in time was to allow the appropriate people to look after it.

311. He became aware that there was one investigation and not two when he read Ms Savage's report. It did not strike him as odd that he had not received a report into any investigation into Dr Samaraweera's allegations against Dr Fredericks in circumstances where he knew there had been allegations both ways.

312. He subsequently became aware that there had been a discussion between Dr Samaraweera and A/Prof Wilson who had made comments in relation to the allegations that she had made concerning Dr Fredericks. He said that he either read this or gleaned that in discussions with Ms Savage. What he understood was that A/Prof Wilson had indicated that he considered the allegation by Dr Samaraweera against Dr Fredericks was a matter that didn't need to proceed to be investigated because Dr Fredericks had resigned.

313. Mr Clout said he disagreed with this view but did not go back to Ms Savage and tell her she needed to conduct an investigation into the allegations by Dr Samaraweera against Dr Fredericks.

314. He went on to say that:

What I believed was that the information I then had in front of me, had comprehensively covered the issues and incidences that had occurred in the interplay of the incident and that I was in a position to make a judgement as to whether or not - being [ ] as I was at the time that Professor Wilson's view was incorrect, I was in a position to come to a conclusions as to whether or not there was sufficient evidence to determine on the balance of probability whether or not that incident occurred.

315. He said that he disagreed with the reasoning of A/Prof Wilson in relation to it not being necessary to have matters that are alleged either way in a fracas investigated, but at that point in time he had concluded that the issue around the pushing and shoving had been comprehensively covered and he was not of the view that there was sufficient evidence for him to rely upon that particular component either in relation to the allegation by Dr Fredericks in relation to pushing and shove it in the corridor, or by Dr Samaraweera in relation to Dr Fredericks.

316. Mr Clout agreed that as the Chief Executive it was within his power and authority to have said that he disagreed with the view that it was inappropriate to investigate the allegation by Dr Samaraweera against Dr Fredericks and that such an investigation should take place. He did not agree that that was what he should have done. He did not get involved in the actual running of an investigation and it would be inappropriate if he did, because he could be the decision maker.

317. He went on to say that the position he got to when he became aware of that, was that he needed to make an assessment of whether or not the investigation that had occurred had allowed the parties to put the views that they had and also had an opportunity to have information about what the incident was and be satisfied that the process that had been put in place had allowed both parties to have the views that they had in relation those matters covered and dealt with. The conclusion he came to was that it was the same incident. The parties had the opportunity, and indeed had put their views as to what they believed had happened, and the one investigation had covered all of those material facts and had given the parties involved the opportunities they would have got if he had been told that there had been two separate investigations covering exactly the same matters, talking to exactly the same people and giving the people exactly the same rights. The view he came to was that it was. If he had concluded at that point that it hadn't, then he would have said that he didn't believe that all of the matters, including the allegation that Dr Samaraweera had made against Dr Fredericks, had been properly covered and therefore they needed to be investigated in addition to those matters that he had in front of him.

318. He did not know whether Ms Savage, during the process of the interviews, had told the witnesses that there had been allegations both ways. What he was sure about was that people are made aware of the incident that had occurred, and were made aware that Dr Fredericks and Dr Samaraweera were in an incident where there were allegations of bumping, pushing and shoving and hitting with a tray.

319. His understanding of what had been indicated to the witnesses was that there had been allegations made by Dr Fredericks against Dr Samaraweera and that those were the matters that were the subject of the investigation.

320. Mr Clout went on to say that he was not sure whether he would have been concerned had he known that Ms Savage was saying to witnesses that she was investigating Dr Fredericks' allegations against Dr Samaraweera but not the other way round. He may have been, if he had been specifically told that Ms Savage was saying that there weren't views and counter views either way as to whether they'd formed the formal allegations or not. What he was clear about was that everyone was aware that there was an incident involving two people and that the incident and the views being put, and the allegations being put, were the subject of the investigation.

321. He said that the information that was put in the Report clearly indicated that there were allegations put as to 'so-and-so said such and such', and 'so-and-so said such and such'. The assertions were that one party said they were bumped, and the other party said that they were pushed up against the wall. He was satisfied that the relevant parties that needed to be asked questions and answer questions were made aware of the incident that was being investigated and the parties that were involved.

322. The material in Ms Savage's Report was sufficient for him to be able to conclude that the appropriate matters had been put and that those were an accurate reflection of what people said. He was sure that he would have read the transcripts. The reason he could recall that was that he was most interested in whether or not there was sufficient evidence from the investigations that had occurred to be confident that the actual striking had occurred. He wanted to get an indication for himself of the information that had been said, and whether or not there was sufficient evidence to conclude in relation to the bumping and the pushing and shoving in the corridor on the one hand, and the second, the actual striking of the tray.

323. Mr Clout indicated that with the benefit of hindsight it might have been better, easier and cleaner, if it had been clearly stated that there were two sets of allegations, that they were separate and they stood there as separate allegations. But he said that even if that had been the case the fact was there would have been an investigation which would have canvassed both sets of allegations and he needed to be satisfied before he issued any final letter or came to any final decision that those matters had been canvassed and the rights that were necessary to be provided to both parties involved had been given. He considered those matters and concluded that they had.

324. He considered that it might have been better procedurally because it wouldn't have raised issues of this nature at this juncture (that is at the hearing). He went on to say that it was important for him to consider, and he did, whether or not it was necessary for him to stop at a point in time and ask for a supplementary process to be put in place and make a judgement about whether or not that would make any difference to the information necessary to make decisions on the rights of the parties involved. He said it may have been more "prudent", but did not agree that it would have been "far preferable" for the reasons he had articulated.

325. Mr Clout also agreed that at the time he made his decision he was aware that Dr Sugo said she was sitting in her office and said she thought she heard Dr Samaraweera say "don't punch me". The decision he made was that he was not satisfied that there was sufficient evidence either way for him to conclude, in relation to the initial bumping, pushing and shoving, that there was enough evidence for him to draw conclusions either way as to whether it happened or what happened. He did not base his decision on the basis of that component of the incident.

326. He agreed that his decision to dismiss Dr Samaraweera was based on him being satisfied of the allegation that she had hit Dr Fredericks with the tray. He didn't need to be satisfied that it was over the head.

327. Mr Clout acknowledged that Ms Savage in her Report made a finding that the allegation that Dr Samaraweera punched Dr Fredericks at least eight times was sustained. He said he believed there was insufficient evidence on the information that he had to sustain that component of the Report and therefore he did not rely on it.

328. In response generally to claims made on behalf of Dr Samaraweera as to procedural unfairness, Mr Clout indicated that she was provided with an opportunity to provide a submission to be taken into account in relation to the proposed findings and recommendations of Ms Savage's Report consistent with the NSW Health Policy Directive. He denied that the words "inclined to accept" in his letter of 5 December 2009 constituted a denial of procedural fairness. The purpose of the letter was to provide Dr Samaraweera with an opportunity to comment on the findings and recommendations. The letter afforded her procedural fairness by allowing her the opportunity to respond so that he could take that response into account before he made his decision.

329. ASMOF subsequently responded on Dr Samaraweera's behalf on 10 December 2009 and he carefully considered those submissions before making a decision to terminate her employment. He did not take such decisions lightly.

330. Mr Clout agreed that after he received the response from ASMOF he asked Ms Savage to re-interview Dr Edwards. At that point in time, having considered the material that was before him, he was not confident or prepared to accept that there was sufficient evidence in relation to the bumping, the pushing, the shoving, or the allegations of punching in the corridor and therefore the critical issue for him was whether or not there was sufficient evidence to sustain the view that the hitting of the tray that was alleged had occurred. He put to Ms Savage that it seemed to him that it was unclear and it was necessary to put that proposition to Dr Edwards and get her response as to whether or not she actually saw the incident occurring and that's what he asked Ms Savage to do.

331. He was not 100% sure, whether he read the second record of interview Ms Savage conducted with Dr Edwards (but thought he did) but he knew that the particular question that he put was answered in the further information provided to him. He was satisfied that the information he had in front of him indicated that there was corroboration of the fact that Dr Samaraweera hit Dr Fredericks with the tray.

332. Mr Clout was asked whether he was aware that at the time he decided to dismiss Dr Samaraweera that Dr Edwards had said she did not actually see Dr Fredericks hit Dr Samaraweera with a tray. He indicated that he was, and that he was also aware that she had indicated in some considerable detail what she did see, what she heard and what she observed.

333. Mr Clout said he was also aware of the fact that, taken with the information provided on the evidence, that there was actual injury and he was satisfied there was corroborating evidence of the fact that the incident had occurred and that Dr Samaraweera had hit Dr Fredericks with a tray which was a critical issue for him.

334. As he recalled it, Dr Edwards did not see the absolute moment of contact but she did see that which led up to it and she did see and hear what occurred. She did see the injuries and from his point of view that was collaboration of the fact that the incident occurred and in fact that Dr Samaraweera had struck Dr Fredericks with the tray.

335. Mr Clout could not recall the details of those persons who said they did not see Dr Edwards in the corridor nor the details of what Dr Edwards said she heard Dr Samaraweera say.

336. Mr Clout agreed that he formed the view that the injuries Dr Fredericks sustained to her arm and hand were consistent with her being hit with a tray by Dr Samaraweera and that was his sole reasoning in finding the allegations sustain.

337. The following exchange then took place:

Q. Did it occur to you that the injuries Dr Fredericks sustained to her forearm and hand were equally consistent with Dr Samaraweera's version of events, namely that Dr Fredericks had used her forearm and hand to try and punch Dr Samaraweera, Dr Samaraweera was holding the tray in front of her to defend herself, and Dr Fredericks hit the tray in front of Dr Samaraweera, at which time it broke?

A. Of course I was aware that that was the counter version.

Q. And did you consider that the injuries to Dr Fredericks' forearm and hand were consistent with Dr Samaraweera's version of events?

A. Yes, I did consider that.

Q. Did you consider that they were equally consistent?

A. No.

Q. What aspect of the injury do you say led you to believe that Dr Fredericks' version of events was to be preferred over Dr Samaraweera's?

A. Okay, that's a fair question, and the answer to it is simple. If I were thrusting forward and looking to hit someone with my fist, it is highly unlikely that I would injury my elbow or my lower forearm, because I would be coming down like that. If, on the other hand, I was like this, I would get injuries in both places. I did consider that and I preferred one version over the other on the basis of the information I had available to me, including the evidence of Dr Edwards.

Q. What you've just told us assumes that Dr Fredericks, if my client is correct, was using her fist to come forward on its own and not using her fist and forearm at the same time. That is right, isn't it?

A. I think you've said what I just said.

Q. I'm just making sure I'm clear that I understand what you're saying.

A. There is no question in relation to this matter that I considered both of those, because they were both in front of me to consider, they were the two version that were put. And on the basis of the information and the evidence I had, I took the decision that one was consistent and one was not.

Q. So if my client is correct in saying that Dr Fredericks, when she punched her, used her forearm and her hand at the same time, your theory about the inconsistency of injuries is out the window, isn't it?

A. I'm confused, if I may, you've changed the question again. You've used the word "punched her", as opposed to "hit the tray". Which do you want me to answer?

Q. Please don't suggest I've changed questions, I'm putting a question to you.

A. Which one?

Q. The last one I asked.

A. Okay. Then the answer is, I have not stated at any point in time that I took a consideration in relation to Dr Fredericks punching Dr Samaraweera at the time of the tray breaking and the tray incident.

Q. I put this question to you. If my client is correct and your assertion that when Dr Fredericks tried to hit her, used her fist and forearm at the same time, then your theory about the consistency of injuries against the actions is blown out the window, isn't it?

A. No.

Q. So you say that if Dr Fredericks in fact did use her forearm and fist to try and hit my client and hit the tray in doing so, you say that that version of events is still inconsistent with the injuries that Dr Fredericks suffered to her hand and forearm?

A. Well

Q. Do you?

A. No, because

338. Mr Clout was asked whether in his decision-making he took into account the inconsistency in the evidence between the action Dr Edwards said she saw Dr Samaraweera use (bent elbow swatting motion to try and hit Dr Fredericks with the tray 2 or 3 times) and what Dr Fredericks said she used (straight cricket bowl action, tried to hit her once and in doing so the tray broke). He indicated that at the time he had the information in front of him and whether or not he was aware of that he was not sure, what he was concerned with was whether or not striking occurred. He had strong recollection of the information in relation to the "flailing and hitting" from Dr Edwards' information. He didn't have a clear recollection of what Dr Fredericks said the motion was.

339. He did not recall there being any inconsistencies between what Dr Edwards said she saw and what Dr Fredericks said she saw happen in relation to the striking. In considering any inconsistency about the breaking of the tray he considered that striking and breaking, as far as he was concerned, were two parts of the same thing.

340. He did not have any regard in making his findings to the fact that Dr Fredericks was about 5 foot 9 and Dr Samaraweera about 5 foot 2.

341. Mr Clout acknowledged that he was aware of Dr Crouch having a previous experience with Dr Fredericks when she had been angry and aggressive and also aware of the events leading up to the incident on 3 September 2009 but said that those issues did not help him conclude whether or not there had been any striking by an employee of another employee. At the end of the day that was a matter that was pivotal to him and that was the matter that he considered to be of a serious enough nature to take the decision he took. Those issues didn't change how people reacted and what they did. It was background information that might explain how people feel and might explain what they say to each other but could not help him determine whether or not someone hit someone or not.

342. Mr Clout also acknowledged that to an administrative error Ms Savage's Report, that was supposed to be attached to his 5 December letter to Dr Samaraweera was not provided uhtil three days later, and that his letter gave her seven days to respond to what was proposed. He did not tell Dr Samaraweera or her representative that she could have more time to respond because of the late provision of the Report as he assumed that being represented by the Association, (as being involved in these matters), if they had required more time then they would have sought that, and if they had, in all likelihood he would have granted it.

343. Mr Clout considered that Dr Samaraweera's breaches of the Code of Conduct "to be wilful and so serious" as to want termination. Given the severity of the allegations and the outcome of the investigation he considered that it was appropriate that she be permanently removed from the workplace. He took violence in the workplace seriously and believed termination was the appropriate penalty and was proportionate having regard to the severity of the breaches of Code of Conduct involved.

Remedy sought

344. Dr Samaraweera sought reinstatement and said that she had an excellent relationship with Dr Camaris and Dr Bullpitt and had no problems working with any other staff in the Unit. She did not have any animosity towards Dr Edwards or any other staff, and would be willing to work with Dr Edwards and all other staff in the Unit if she were reinstated.

345. Dr Samaraweera acknowledged that following her termination she was advised that the Medical Board had been notified of her situation and they subsequently advised her that they were not going to take any further action and that no action had been taken by the Medical Board with regard to her rights or capacity to practice.

346. She also acknowledged that the issue of the Service Check Register had not been tested by her and she had not applied for any alternative positions because she had formed the view that she would be unsuccessful because of the Service Check Register. She agreed that there was a shortage of qualified and experienced anatomical pathologists in the Sydney area and that there were jobs available, but indicated that she wanted her former position.

347. Dr Camaris indicated that the Unit was currently understaffed to the equivalent of 2.5 full-time positions. She had employed two part-time staff specialists which would be the equivalent of 1.5 full-time positions and those Staff Specialists were due to commence employment at the end of May and September respectively, but even with those appointments the Unit would still be understaffed by the equivalent of one full-time position.

348. She saw no issues arising in the Unit if Dr Samaraweera were to be reinstated to her position. In her opinion Dr Samaraweera was well liked by her colleagues, Dr Fredericks was no longer an employee and both Dr Samaraweera and Dr Edwards worked part-time and they could easily be rostered to work without any overlap.

349. The only Staff Specialist who expressed concern with working with Dr Samaraweera should she be reinstated was Dr Edwards.

350. Mr Clout believed that reinstatement of Dr Samaraweera was impracticable. He considered that the employment relationship had irretrievably broken down and could not be re-established and that he could not have Dr Samaraweera employed again as a Staff Specialist within the SESIAHS because of her conduct. He no longer had the necessary trust and confidence that she could operate in the workplace in a professional and respectful manner towards colleagues. It was his responsibility to ensure the health and safety of all staff and not expose them to situations of risk and he was concerned that reinstatement of Dr Samaraweera it would compromise a safe workplace.

351. Mr Clout said that he had not sought Dr Camaris' views about the prospect of Dr Samaraweera being reinstated because it was not a decision for her, it was a decision for him; nor had he had a discussion with anyone else in the Unit about whether they would be prepared to work with Dr Samaraweera were she to be reinstated.

Submissions on behalf of the Applicant

352. Mr Saunders , on behalf of Dr Samaraweeera, made oral submissions supplementing the extensive written submissions as filed (Exhibit 43) and in doing so took the Commission in some detail to relevant extracts of the transcript in support of those submissions.

353. It was submitted that the evidence that was available to SESIAHS and put forward in these proceedings, was incapable of properly satisfying a reasonable employer, or the Commission, that Dr Ssamaraweeera hit Dr Fredericks with a tray or of otherwise justifying her dismissal. The findings against her by SESIAHS could not fairly stand, and she must therefore be reinstated to her former position by Order pursuant to s.89(1) of the Act.

354. It was submitted that four issues arose for consideration by the Commission in this matter:

1. Had the conduct alleged against Dr Samaraweera been proven? If not, there was no valid reason for the termination.

2. If the conduct (or any part of it) had been proven, did the seriousness of the conduct justify the termination of Dr Samaraweera's employment?

3. Was Dr Samaraweera afforded procedural fairness?

4. Was the termination of Dr Samaraweera's employment harsh, unjust or unreasonable?

355. The onus was on an applicant to establish that a dismissal was harsh, unjust or unreasonable. However, the onus of proving an allegation of misconduct leading to termination of employment was on the party alleging misconduct, regardless of whether the dismissal was summary, or by notice, or by payment in lieu of notice, ( see Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70; Franklins Ltd v Webb (1997) 72 IR 257 and Inspector Vince Castro v Supreme Poultry & Chickens Pty Ltd & Anor [2005] NSWIRComm 386).

356. It was now well established that where a termination of employment was for reasons related to conduct, the relevant test was not whether the employer believed on reasonable grounds after sufficient enquiry that the employee was guilty of the conduct that resulted in the termination. Rather, where a dismissal was based on reasons related to conduct, the Commission was required to determine for itself, on the evidence before it, whether or not the alleged conduct occurred, (see Caspanello v Telstra Corporation (PR922915) Williams SDP, Lacey SDP and Simmonds C, 27 September 2002 and Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).

357. SESIAHS had conducted both its 'investigation' into the allegations against Dr Samaraweera, and these proceedings, as though the question was whether she did, or did not, misconduct herself as alleged. In practice this seemed to cast an onus of disproving the latter proposition on Dr Samaraweera. This approach was wrong and the error that it embodied fatally infected the investigation and decision-making process and the case of SESIAHS in these proceedings. Dr Samaraweera bore no legal or evidentiary burden on any issue.

358. The standard of proof required was the balance of probabilities. However strict proof and the highest and most stringent degree of satisfaction were properly required before the Commission could properly be satisfied that the allegations against Dr Samaraweera had been made out, (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Franklins v Webb ; Bounouar v The Spanish Club Ltd (1998) 94 IR 166; Transport Industries Insurance Co v Longmuir (1997) 1 VR 125; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; G v H [1994] HCA 48; (1994) 181 CLR 387; In re H. and Others (Minors) [1996]AC 563; and Whitlam v Australian Securities and Investment Commission [2003] NSWCA 183; (2003) 199 ALR 674).

359. Reliance was also placed on s.140 of the Evidence Act which now reflected the common law position.

360. This Commission had also applied the Briginshaw test in unfair dismissal cases, (see Four Sons Pty Ltd v Limsiripothong [2000] NSWIRComm 38; (2000) 98 IR 1; Coles Myer Ltd v Shop, Distributive and Allied Employees Association (1989) 27 IR 299 and Bigg v NSW Police Service (1998) 80 IR 434.)

361. The nature, gravity and consequences of the allegation and finding that SESIAHS had made against the Dr Samaraweera were obvious. She had been placed on the State-wide Service Check Register. The Commission was then taken in some detail to the relevant provisions of the Service Check document.

362. The only way in which SESIAHS will remove the Dr Samaraweera's name from the Service Check Register is if the Commission makes a finding in the her favour in these proceedings. Given that any other Area Health Service in NSW must check the Service Check Register and must contact SESIAHS to find out details about the 'substantiated investigation finding' made against Dr Samaraweera before that Area Health Service could make an offer of employment to her, it was highly unlikely that she would be able to obtain alternative employment in an Area Health Service anywhere in NSW. Accordingly, Dr Samaraweera's career as a specialist pathologist, particularly within the NSW Area Health Services, was at stake in these proceedings.

363. It was submitted that Briginshaw required that the allegation could not be sustained unless the Commission was actually persuaded by strict proof that it could be satisfied to the highest degree as to the existence of the conduct alleged. The Commission ought not to be satisfied that the allegation against the Dr Samaraweera had been established unless the preponderance of evidence was so substantial as to establish it clearly (see Helton v Allen [1940] HCA 20; (1940) 63 CLR 691).

364. It was submitted that there was no escaping the conclusion that the allegation put forward by SESIAHS involved such a degree of "moral turpitude and delinquency" that, if made out, it would attract substantially the same degree of "opprobrium and ruin" as many charges of "criminal" conduct involving medical practitioners. Therefore for practical considerations, these allegations should be judged in the same way as allegations of criminal conduct.

365. It was accepted that this did not derogate from the application of the civil standard of proof. However, the nature and seriousness of the allegations made against Dr Samaraweera required strictness of proof, and clear and cogent satisfaction, to the highest degree.

366. The conclusion that this was the correct test in this case was confirmed when the allegation that SESIAHS had made against Dr Samaraweera was compared with other matters to which the Briginshaw test has been applied. The Commission was then taken to the following cases and examples:

Briginshaw - allegations of adultery,

Bhandari v Advocate's Committee [1956] 1 WLR 1442 - allegations of professional misconduct,

Marsden v Amalgamated Television Services Pty Ltd [2002]NSWCA 419 - allegations of sexual misconduct in a defamation suit.

Barten v Williams (1978) 20 ACTR 10 - allegations that might result in the cancellation of a builder's licence, because of the effect that that might have on the builder's capacity to earn his livelihood in that occupation.

Wilcox v Sing [1982] 2 Qd R 66 - the question of whether a medical practitioner had been negligent, because a charge of such a character put his reputation and earning capacity at risk.

367. It was submitted that if, as the courts had held in the cases above, that the highest standard of proof and satisfaction was called for, then there could be no doubt that it was also required in this case.

368. It was also relevant, in applying Briginshaw and Neat Holdings, to take into account the inherent improbability of the allegations that had been made. The allegation made against Dr Samaraweera was inherently improbable, namely, that Dr Samaraweera, a calm and pleasant specialist pathologist with a perfect 11 year employment record with SESIAHS, would, for no reason and with no provocation, try to hit Dr Fredericks, a person who had already given her notice of resignation and was leaving her employment, over the head with a plastic tray.

369. It was also submitted that whether or not misconduct on the part of an employee warranted their summary dismissal was a question of whether that conduct had been so inconsistent with the employee's duties under the employment contract that it struck down any reasonable suggestion that the employer/employee relationship could be continued into the future, (see Pastrycooks ; North v Television Corporation Ltd (1976) 11 ALR 599 and Concut Pty Ltd v Worrell and Anor [2000] HCA 64; (2000) 103 IR 160).

370. In relation to the allegations against Dr Samaraweera it was submitted that Mr Clout, the decision maker in determining whether they were sustained and what, if any action, should be taken as a consequence, gave evidence in cross examination that he disagreed with Ms Savage's finding that the allegation of punching Dr Fredericks was sustained. He decided that there was not sufficient evidence for him to be satisfied that she had punched Dr Fredericks. This was the first time Dr Samaraweera or her representatives became aware of this determination. In Mr Clout's 5 December 2009 letter he stated that he was inclined to accept Ms Savage's "findings and recommendations" but made no mention of his decision not to accept the finding concerning the punching. He also made no mention of his decision not to accept this finding in the termination letter of 5 February 2010.

371. The Commission was taken to the Respondent's Reply filed on 24 March 2010, where it was indicated that one of the reasons it was believed the dismissal was not harsh, unreasonable or unjust was that:

On 3 September 2009, Dr Samaraweera attempted to physically hit Dr Susan Fredericks with her hands in the corridor of her workplace at Prince of Wales Hospital, SEALS Pathology Service.

372. The case on behalf of Dr Samaraweera was prepared and run on the basis of this assertion and in the absence of any indication by Mr Clout that he had decided not to rely upon the allegation that Dr Samaraweera had punched Dr Fredericks. This finding was relied upon by SESIAHS to justify her dismissal.

373. It was submitted that by failing to inform Dr Samaraweera that SESIAHS was not relying upon the allegation that she had punched Dr Fredericks, she was not provided with an accurate description of the reason(s) for the decision to terminate her employment. The failure in this regard was a relevant factor for the Commission to have regard to in accordance with s.88(a) of the Act.

374. Mr Clout's evidence was that he formed the view, having received Ms Savage's first report and ASMOF's response, that there was insufficient evidence for him to make a decision as to whether the second allegation of hitting Dr Fredericks with a black plastic filing tray, was made out. He told Ms Savage that he wanted to know, in order to make his decision, whether Dr Edwards actually saw the Applicant hit Dr Fredericks with the tray. He was informed by Ms Savage, following her second interview with Dr Edwards, that Dr Edwards had not actually seen Dr Samaraweera hit Dr Fredericks with the tray.

375. It was submitted that having been informed that the one fact about which he required clarification could not be established following a second interview with Dr Edwards, the only option available to Mr Clout, had he been acting properly, was for him to determine that the allegation that Dr Samaraweera hit Dr Fredericks with the tray was not proven to the requisite standard.

376. Further, notwithstanding the concern he expressed to Ms Savage about Dr Edwards' account of what she had seen, Mr Clout put to one side the fact that Dr Edwards did not see Dr Samaraweera hit Dr Fredericks with a tray and instead determined the allegation on the basis that, according to him, the injuries to Dr Fredericks' hand, forearm and elbow, as shown in the photos, were more consistent with Dr Fredericks' assertion that she had been hit with the tray when using her arm in a defensive position than the Dr Samaraweera's assertion that Dr Fredericks' injuries to her hand, forearm and elbow were caused when Dr Fredericks hit the tray that she had been holding in front of herself as a defensive shield. That was Mr Clout's sole reason for making his determination that Dr Samaraweera had hit Dr Fredericks with the tray.

377. It was submitted that no evidence had been put forward to the effect that Mr Clout had any medical or forensic expertise. Accordingly, it must be found that Mr Clout was a lay person on the question of assessing the cause of injuries to a hand, forearm and elbow. It then followed that Dr Samaraweera's employment was terminated on the basis of an assessment by a lay person as to the most likely cause of injuries to Dr Fredericks' hand, forearm and elbow.

378. When regard was had to the Briginshaw test, there could be no doubt that the evidence relied upon by SESIAHS was nowhere near sufficient to justify a finding that Dr Samaraweera hit Dr Fredericks with a plastic tray or that her employment ought be terminated. Having regard to the consequences of such a finding appearing on Dr Samaraweera's (a specialist pathologist) record, being dismissed from an Area Health Service and being placed on the Service Check Register, it was inappropriate in accordance with Briginshaw for her career to be ruined on such flimsy evidence and speculation by an unqualified man such as Mr Clout.

379. It was further submitted that Mr Clout, the decision maker, did not have regard to the following:

1) Inconsistencies in the accounts given by Dr Fredericks and Dr Edwards in making his finding that Dr Samaraweera hit Dr Fredericks with a tray those inconsistencies being:

Dr Edwards was not seen in the corridor by any witness.

Dr Edwards account of how Dr Samaraweera left the Unit compared with other witnesses' accounts.

Dr Edwards told Ms Savage several times she was standing in the corridor outside her office but in cross examination asserted she was in the doorway of her office.

Dr Edwards' account of Dr Samaraweera's actions with the tray (bent arm, swatting motion 2 or 3 times) compared with Dr Fredericks' account (cricket bowl action, once).

Dr Edwards did not see the tray break, whereas Dr Fredericks said it broke on impact.

Dr Edwards saying Dr Samaraweera turned round to face her yet Dr Samaraweera did not see her, and Dr Edwards explanation for this to Ms Savage.

2) Any of the events leading up to the incident on 3 September which were relevant to who was likely to be the aggressor or why one person snapped as follows:

The heated argument between Dr Bullpit and Dr Fredericks on 31 August, and assertion that Dr Fredericks called Dr Bullpit a "disgusting little man" and slammed a door in his face.

Dr Fredericks believed Dr Samaraweera was instrumental in this argument.

Dr Fredericks felt angry and hurt that she had been excluded from a senior staff meeting by Dr Camaris on Thursday 27 August 2009, 4 days after submitting her resignation and one week prior to the incident on 3 September.

Past angry and aggressive behaviour shown by Dr Fredericks particularly to Dr Crouch and Dr Bullpit.

Dr Samaraweera was described by long term co-workers as a very calm and pleasant girl, for whom an act of violence would be totally out of character.

Dr Samaraweera is 5'2" and Dr Fredericks is 5'9" and it was unlikely that a much smaller person would pick a fight with a much larger person.

Dr Fredericks had submitted her resignation 2 weeks earlier and as a result had less to lose by being involved in a fight.

Dr Fredericks and Dr Camaris did not get along, the working relationship had deteriorated to such an extent that Dr Fredericks could not continue working her.

Dr Fredericks believed that Dr Camaris showed favouritism towards Dr Samaraweera in allocation of a lighter workload than the other specialist pathologists.

3) Dr Samaraweera was not upset or in conflict with Dr Fredericks. Therefore there was no rational basis for such a long serving employee, with an excellent employment record, no prior history of angry or aggressive behaviour to attack Dr Fredericks without provocation.

380. It was submitted that in view of Mr Clout expressly disavowing any reliance upon the allegation that Dr Samaraweera had punched Dr Fredericks in deciding whether to dismiss her, it was not open to SESIAHS in these proceedings to now rely on that allegation to justify its decision to dismiss Dr Samaraweera.

381. However it was submitted that the punching allegations were relevant in the following ways:

• The determination of the punching allegations impacted on the credibility of both Dr Fredericks and Dr Samaraweera.
• If it was found that Dr Fredericks punched, or at least pushed, Dr Samaraweera then that finding was significant in explaining what then happened concerning the breaking of the tray.
• If it was found that Dr Fredericks punched Dr Samaraweera that was consistent with her assertion that the tray broke when Dr Fredericks used her elbow, forearm and fist to attempt to hit her whilst she was holding the tray in front of her as a shield.
• Dr Fredericks' injuries to her elbow, forearm and fist were consistent with Dr Samaraweera's assertions
• In the absence of expert evidence on the issue, the injuries to Dr Fredericks' elbow, forearm and fist were equally consistent with both doctors' versions of events.
• If it was found that, contrary to these submissions, that Dr Samaraweera used the tray to hit, or attempt to hit, Dr Fredericks, then she did so after being punched by Dr Fredericks, in which case Dr Fredericks' conduct in provoking the response was highly relevant.

382. The evidence as to the punching allegations was detailed and summarised as follows:
     • Nobody saw punches being thrown by either Dr Fredericks or Dr Samaraweera.
     • Two witnesses, Dr Sugo and Dr Edwards, heard relevant words spoken by Dr Samaraweera about punching
     • Dr Sugo's evidence about what she heard Dr Fredericks say was consistent with Dr Fredericks punching Dr Samaraweera and then justifying her conduct by telling her, in effect, that she was obtaining revenge for what she "done to her before", namely being instrumental in the heated argument with Dr Bullpitt 3 days earlier.

383. It was submitted that Dr Samaraweera had provided contemporaneous photographs to support her assertion that she sustained bruising to her upper right arm as a result of being punched by Dr Fredericks. Further, contrary to SESIAHS' assertions, the bruise on Dr Fredericks' upper right arm did not establish that she was punched by Dr Samaraweera. If that bruise was caused on 3 September 2009, it most likely arose as a result of Dr Fredericks ramming Dr Samaraweera into the wall of the corridor or, (according to Dr Fredericks' version) when they bumped into one another as they walked past each other in the corridor and Dr Samaraweera.

384. It was further submitted that:

• In view of Dr Samaraweera being right handed, if Dr Fredericks' version of events was true and Dr Samaraweera punched her 3 or 4 times with her right fist and 3 or 4 times with her (weaker) left fist, it was most unlikely that the only bruise suffered by Dr Fredericks on her upper arm, from punching, was on her right upper arm (ie from a left handed punch).
• Dr Fredericks' evidence was that Dr Samaraweera's first punch was with her left hand. It made no sense for a right handed person to swing the first punch at someone with their non-dominant hand. It would make even less sense for her to continue to hold the tray in her right hand whilst trying to punch Dr Fredericks with that hand. Had she wished to punch Dr Fredericks, she would either have dropped the tray or placed it into her non-dominant (left) hand so that she could punch with her right hand.
• The manner in which Dr Fredericks demonstrated that Dr Samaraweera was carrying the tray when she was walking towards Dr Fredericks and how she was holding the tray when she was punching did not ring true. In particular, she asserted that Dr Samaraweera was carrying the tray with the open end away from her body whilst walking towards her, but was holding the open end towards her body at the time she was punching Dr Fredericks with her right hand. According to this assertion Dr Samaraweera must have turned the tray around 180 degrees between the time when she was carrying it in front of her and when she started punching Dr Fredericks.
• It would also be very awkward and cumbersome to maintain hold of a tray whilst trying to punch someone with the same fist.
• A/Prof Wilson's file note of his discussion with Dr Fredericks on 3 September 2009 made no mention of any alleged punching by Dr Samaraweera.
• The evidence of both Dr Fredericks and Dr Camaris concerning Dr Fredericks' assertion to Dr Camaris that she had witnessed Dr Samaraweera strike her with a tray (denied by Dr Camaris) made no mention of any complaint about punching or her witnessing punching.
• The evidence of both Dr Fredericks and Dr Crouch about what Dr Fredericks said to him also made no mention of any complaint about punching.

385. It was submitted that the evidence in relation to the punching allegations was strongly supportive of Dr Samaraweera's allegation that Dr Fredericks punched her and did not support Dr Fredericks' allegation that it was Dr Samaraweera who did the punching. A positive finding should therefore be made that Dr Fredericks punched Dr Samaraweera.

386. In relation to "ramming" as opposed to "bumping" in the corridor it was submitted that Dr Samaraweera's evidence to what happened when they passed each other in the corridor, namely that Dr Fredericks rammed her into the wall, should be preferred over Dr Fredericks' assertion that the two doctors accidentally bumped into one another and that bump just happened to ignite what took place thereafter. Such a finding was supported by the following:

• The inherent improbability of such accidental bumping in light of the width of the corridor; Dr Fredericks did not stop and apologise, the usual course of action if there was an accidental bumping; the heated argument between Dr Fredericks and Dr Bullpitt on 31 August in which she thought Dr Samaraweera was 'instrumental'; Dr Fredericks remained in her office after that argument with the door closed for the next 2 days; the first time that Dr Fredericks saw Dr Samaraweera after this was when she passed her in the corridor on 3 September and she just happened to 'bump' into her.
• Dr Samaraweera was a far more credible witness when compared to Dr Fredericks giving direct and honest answers in cross examination and coming across as a truthful and reliable witness. Dr Fredericks, on the other hand, gave evidence which did not ring true in many respects.

387. It was submitted that it was open to the Commission to make either of the following findings in relation to Dr Edwards' assertion that she witnessed the Dr Samaraweera 'attempt' to hit Dr Fredericks with a tray:

• Firstly, Dr Edwards' evidence should not be accepted because it was unreliable, or,

• Secondly, Dr Edwards was mistaken as to what she saw during the period of about 10 seconds in which she said that she witnessed the incident.

388. Mr Saunders then took the Commission in some detail to the evidence supporting the submission that Dr Edwards' evidence was unreliable and mistaken and in doing so relevantly traversed her evidence, both written and oral, changes in that evidence, conflicts with the evidence of other witnesses, her relationship with Dr Samaraweera, her interviews with Ms Savage and her contemporaneous notes (with particular reference to Dr Camaris in relation to what she saw/did not see).

389. It was submitted that in light of the obviously difficult and distressing circumstances that existed within the Unit on 3 September 2009, Dr Edwards' memory of what she saw was, in part, her recollection of the images she saw when she looked down the corridor and, in part, what Dr Fredericks told her happened immediately after the incident. That was precisely the way in which human memory works, particularly in an unusual and stressful environment.

390. It was submitted that if the Commission found that Dr Edwards gave truthful and reliable evidence, then she was mistaken about what she saw (with reference made to those mistakes) and that what Dr Edwards really saw, if anything, was Dr Samaraweera holding the tray up in front of her and using it as a shield to protect herself from Dr Fredericks' attack, and moving the tray from side to side to intercept Dr Fredericks' punches.

391. It was further submitted that the one thing that was abundantly clear was that the strength of Dr Edwards' evidence as to what she allegedly saw on 3 September was nowhere near sufficient to satisfy the standard of proof required under the Briginshaw test to, in effect, destroy, or have a very significant negative impact, upon Dr Samaraweera's career as a medical practitioner in NSW.

392. Mr Saunders submitted that Dr Samaraweera had consistently given the same account of what happened on 3 September 2009; to Dr Camaris and also Dr Joshua immediately after the event occurred; to A/Prof Wilson on the same day as the event occurred; to Dr Bullpitt the next day; and to Ms Savage on 27 October 2009. The Commission was relevantly referred to that evidence.

393. Mr S aunders also drew the Commission's attention to relevant evidence concerning Dr Fredericks' personality and style (her earlier notice of resignation; slamming of doors, being abusive to other staff including Drs Bullpitt, Crouch and Camaris; unhappy and angry at work; the argument with Dr Bullpitt, Dr Crouch's views and what he had observed in specific incidents etc,).

394. Mr Saunders went on to contrast this evidence with the relevant evidence concerning Dr Samaraweera's personality and style (placid, friendly, co-operative, very calm, never aggressive or physically violent, a hard worker and with a good rapport with co-workers, and good working relationships with Drs Camaris, Tobias, Sugo, Crouch, and Bullpitt as well as other staff etc,.)

395. In relation to Dr Fredericks' evidence it was submitted that she had maintained throughout her interview with Ms Savage and her evidence before the Commission that Dr Camaris was in the corridor a few metres away from Dr Fredericks and Dr Samaraweera and witnessed the entire incident. Dr Camaris emphatically denied, and had always denied, that allegation. Dr Fredericks expressly disavowed in cross examination the possibility that she made a mistake and in fact saw Dr Edwards in the corridor rather than Dr Camaris. In light of that denial and the obvious close proximity between where Dr Fredericks was standing and Dr Camaris was allegedly standing, it was not open to the Commission to find, as Ms Savage did, that Dr Fredericks was mistaken when she said that she saw Dr Camaris in the corridor and that she witnessed the entire incident. Accordingly, either Dr Fredericks or Dr Camaris was lying.

396. It was submitted that Dr Camaris gave evidence in a direct and responsive way, came across as a hard working Acting Director of the Unit, was honest and reliable, with no motive to lie and her evidence ought be accepted. Further Dr Camaris' evidence was supported by Dr Edwards' evidence that she saw Dr Camaris sitting at her desk when she looked out her office door part way through the incident.

397. It was submitted that on the other hand, Dr Fredericks had already handed in notice of her resignation; had less to lose by being involved in a physical altercation; had a dispute with Dr Camaris regarding her exclusion from a senior staff meeting, had a dispute with Dr Bullpitt on Monday, 31 August 2009, for which she blamed Dr Samaraweera and whom she had not seen or spoken since that Monday; disliked Dr Camaris and did not get on with her and resented her allegedly showing favouritism towards Dr Samaraweera.

398. Mr Saunders submitted that in assessing who out of Dr Fredericks and Dr Samaraweera was a 'powderkeg' waiting to explode on 3 September 2009, all the objective facts pointed towards Dr Fredericks as being the instigator and aggressor in the altercation that took place between the two doctors. There was no evidence that Dr Samaraweera disliked Dr Fredericks or had any reason to hit her.

399. It was submitted that Dr Fredericks, on the other hand, blamed Dr Samaraweera for her heated argument with Dr Bullpitt on 31 August and viewed her as the 'teacher's pet', who received preferential treatment from Dr Camaris. Dr Fredericks used the opportunity to assault the Dr Samaraweera in order to get back at Dr Camaris, who Dr Fredericks despised (as was evident from Dr Fredericks' interview with Ms Savage). Further Dr Fredericks resented Dr Samaraweera doing mostly cytology work, which she believed was less time consuming work, notwithstanding that neither she nor Dr Cooke-Yarborough wanted to do cytology work.

400. It was further submitted that Dr Fredericks' evidence that, notwithstanding her obvious physical advantages (in terms of height and athletic build), she said nothing and did nothing during the time that she was allegedly being punched and then hit with a tray was simply unbelievable.

401. It was submitted that procedural fairness was a factor the Commission may take into account when assessing whether a particular dismissal could be characterised as "harsh, unreasonable or unjust"- see Antonakopoulos v State Bank (1999) 91 IR 385. The Commission was also taken to the statutory basis for considering procedural issues as found in s.88 of the Act.

402. It was submitted that a number of procedural issues arose in relation to the dismissal of Dr Samaraweera.

Investigation of the Allegations

403. There should have been two investigations conducted in relation to the incidents on 3 September 2009; one investigation into Dr Fredericks' allegations against Dr Samaraweera and a second investigation into the allegations made by Dr Samaraweera against Dr Fredericks.

• Despite both sets of allegations being made to A/Prof Wilson only one investigation was conducted by Ms Savage into the allegations by Dr Fredericks against the Dr Samaraweera.

• Dr Samaraweera made a complaint to A/Prof Wilson that Dr Fredericks had rammed her into the wall in the corridor and then punched her. She was told by A/Prof Wilson that she could not make a complaint against Dr Fredericks since she had already resigned and that the issues concerning what had happened on 3 September 2009 would not be taken further because of that resignation.

• Mr Clout's evidence in cross examination was that he disagreed with A/Prof Wilson's view that there should not be a separate investigation into the allegations made by the Dr Samaraweera against Dr Fredericks and conceded that there should have been two investigations conducted in relation to what happened on 3 September 2009.

• Mr Clout later became aware from what Ms Savage had told him that she was only investigating Dr Fredericks' allegations and could not provide any explanation as to why he did not direct Ms Savage, at an early stage in her investigation, to conduct a separate investigation into the Dr Samaraweera's allegations in circumstances where he knew from the outset that there were "allegations going both ways". Mr Clout should have directed Ms Savage, or taken other appropriate steps, to investigate the Dr Samaraweera's allegations against Dr Fredericks.

• By the time Mr Clout received Ms Savage's report in early December 2009 and appreciated - he says for the first time - that only one investigation had been conducted, he should have directed Ms Savage to conduct a second investigation into Dr Samaraweera's allegations. It was not too late for that to happen as he said he had received Ms Savage's report but had not made up his mind about the allegations. He should have delayed making any findings or decisions until he had ensured that both sets of allegations had been investigated. Any delay caused by such a second investigation would have been unlikely to delay the resolution of the matter beyond the time actually taken by Mr Clout to make his findings and decision (4 February 2010).

404. It was submitted that Mr Clout's evidence in relation to this important aspect demonstrated his inability or unwillingness to bring an impartial mind to the role of decision maker on the question of whether the allegations were sustained and the consequences for Dr Samaraweeera. As a result of the failure of SESIAHS to conduct a separate investigation into the allegations made by Dr Samaraweera against Dr Fredericks, as it plainly should have, the whole investigation was skewed against her. This unfair and unbalanced approach to the investigation process became real and apparent when Ms Savage told the employees she was interviewing that she was investigating allegations by Dr Fredericks against Dr Samaraweeera. In light of witnesses being told that such an investigation was being conducted, it could not seriously be disputed that when such witnesses were asked who said or did something on 3 September 2009, they were more likely to say Dr Samaraweera than Dr Fredericks if they were in any way uncertain about the matter.

405. It was further submitted that no allegations were ever put to Dr Fredericks, either in writing (as they were to Dr Samaraweera) or orally, to the effect that she had rammed Dr Samaraweera into the wall and then punched her. No witnesses were asked whether such incidents occurred.

406. It was therefore submitted that the failure on the part of SESIAHS to conduct any investigation into Dr Samaraweera's allegations against Dr Fredericks rendered the findings it made 'unsafe and unreliable'.

407. Further it was simply impossible to predict what the outcome of an investigation into Dr Samaraweera's allegations would have been, had such a process been followed; the impact such an investigation or any findings would have had on SESIAHS finding that Dr Samaraweera hit Dr Fredericks with a tray or its decision to subsequently dismiss Dr Samaraweera; or the impact such an investigation or any findings would have had on the present proceedings, in that the responses given by the relevant witnesses to Dr Samaraweera's allegations could well have revealed important facts favourable to her and thereby strengthened her case even further.

408. It was submitted that in those circumstances, the failure on the part of SESIAHS to conduct an investigation into Dr Samaraweera's allegations against Dr Fredericks meant that the procedure adopted by SESIAHS was fundamentally flawed to such an extent that:

• the findings and recommendations made by Ms Savage were tainted and should not have been relied upon;
• Mr Clout, who was aware of the failure from an early point in time, should have rectified the failure before making any findings or decision in relation to Dr Samaraweera's career. Instead, he did nothing about it; and
• Dr Samaraweera's dismissal was harsh, unjust or unreasonable.

409. It was further submitted that the investigation process followed by SESIAHS was also flawed because Dr Samaraweera was not provided with copies of the following documents prior to her dismissal:

• transcripts of each of the other 13 interviews conducted by Ms Savage with various persons from the Unit.
• the updated advice and analysis of the PPU.
• photographs provided by Dr Fredericks to A/Prof Wilson. These were subject of specific mention in the ASMOF letter of 10 December 2009 that she had not had an opportunity to see or comment upon such photographs. Even after Mr Clout and Ms Savage read this part of ASMOF's letter, neither of them took any step to arrange for a copy of the photographs to be provided to Dr Samaraweera. SESIAHS' lack of response demonstrated how insincere it was of Ms Savage to repeatedly assert during cross examination that Dr Samaraweera was represented during the investigation and she would have been provided with the entire investigation file had she asked for it.
• the notes made by Dr Edwards on 15 September 2009 and provided by her to Kestrel Leevers of SESIAHS.
• the 2 file notes made by A/Prof Wilson on 3 September 2009 together with the handwritten letter from Dr Fredericks to A/Prof Wilson.
• file notes made by Ms Savage on 2 October 2009.
• the 'Self-Initiated Briefing' from SEALS dated 21 September 2009 in relation to the incident on 3 September 2009.
• Email from Margaret Savage to Elizabeth Massey dated 14 October 2009.; and
• South Eastern Sydney Illawarra Health Internal Briefing dated 19 November 2009.

410. It was submitted that the failure of SESIAHS to provide these documents and records of interview to Dr Samaraweera was in contravention of its own written disciplinary process policy and in particular, the Policy Directive entitled ' Disciplinary Process in NSW Health - A Framework for Managing the Disciplinary Process in NSW Health (PD2005_225)', which provided that there was a positive obligation on SESIAHS to provide those documents.

411. The Commission was then taken to specific relevant sections of that Policy ( 1.1, 1.2 and 1.3) and in particular the requirement of procedural fairness - "to give the person who is the subject of a disciplinary process a fair hearing and an opportunity to present his/her own case". Reference was also made to the requirement to give a person being investigated the "opportunity to comment on any relevant statements relating to their case"; the provisions of 3.2.1. that a person being investigated must be provided with "any information that is known to the complainant or manager, including dates, times and potential witnesses"; and 3.2.3 the requirement to provide the person being investigated with relevant information including statements made by other staff and transcripts of relevant interviews.

412. It was submitted that Ms Savage's evidence concerning the file notes of A/Prof Wilson; not giving them to Dr Samaraweera because she did not them to Mr Clout, the decision maker, and they fell outside the range of information "taken into consideration by the decision maker" but agreed in cross examination that her updated advice to Mr Clout recommended that such information be considered by Mr Clout. This resulted in there being no basis to withhold them from Dr Samaraweera and Ms Savage's evidence in this regard damaged her credibility and provided a further basis for the Dr Samaraweera's contention that she did not conduct a fair and balanced investigation.

413. Further Mr Clout's 'show cause' letter of 5 December, informing Dr Samaraweera that he had received Ms Savage's report and he was "inclined to accept the findings and recommendations" was a statement made before Dr Samaraweera had even received the report or responded to it. This particular denial of procedural fairness was advised in the 10 December ASMOF letter.

414. Reference was also made to the fact that Ms Savage did not provide Dr Sugo with a transcript from her interview for her to check and correct until one or two months prior to the hearing and, even then, there was no follow up to obtain her comments or find out whether she agreed with the transcript so provided.

415. It was submitted that Dr Sugo's evidence was important for the reasons already referred to, however Ms Savage gave evidence that she did not have regard to what Dr Sugo told her because she believed her to be an unreliable witness. When pressed for an explanation as to why she formed this view Ms Savage gave evidence in cross examination that Dr Sugo had been unwilling to become involved in the incident. Notwithstanding Dr Sugo's alleged unwillingness to become involved, she did agree to be interviewed by Ms Savage and did answer Ms Savage's questions, providing as much detail as she could remember from the incident.

416. It was submitted that an unwillingness of a witness to become involved in an incident was a basis for finding that the witness was impartial and therefore reliable, as distinct from Ms Savage's conclusion that Dr Sugo was unreliable. Neither Mr Clout nor Ms Savage had any regard to Dr Sugo's record of interview in making the findings and decisions against the Dr Samaraweera.

417. It was further submitted that whilst Ms Savage asked Dr Fredericks and Dr Edwards about the relationships between various members of the Unit, and obviously took that information into account in making her findings, she did not give Dr Samaraweera the same opportunity to comment on her relationships with Dr Edwards and Dr Fredericks, thus preventing her from providing the foundation for the assertion that Dr Edwards and Dr Fredericks were biased against her and were not telling the truth to Ms Savage. Further, Ms Savage did not ask the head of the Unit, Dr Camaris, for her views on the relationships between the various specialists in the Unit, or their prior conduct.

418. Mr Saunders submitted that it was of particular significance that Ms Savage interviewed Dr Edwards prior to interviewing Dr Samaraweera; was told by Dr Edwards that she witnessed part of the incident; invited Dr Edwards to comment on her relationship with Dr Samaraweera, but then failed to either tell Dr Samaraweera that Dr Edwards alleged that she was in the corridor outside her office and had witnessed part of the incident, or invited Dr Samaraweera to comment on her relationship with Dr Edwards so that she could provide information on which Ms Savage could assess whether Dr Edwards had any reason to be untruthful or unreliable. Dr Samaraweera did not find out that Dr Edwards was allegedly a witness to part of the incident until she had been dismissed and had commenced the current proceedings.

419. Mr Saunders also raised that Ms Savage did not ask Dr Bullpitt about the incident he was involved in with Dr Fredericks on 31 August. Ms Savage asked Dr Camaris, Dr Sugo, Dr Edwards and Dr Crouch about this incident even though Dr Crouch and Dr Edwards were not at work on the day of the incident. Notwithstanding that Dr Samaraweera suggested to Ms Savage in her interview that she should speak to Dr Bullpitt about the incident, Ms Savage did not do so. This suggestion was made following receipt the letter of 20 October 2009 in which she was told that she could "provide additional evidence and/or suggest additional witnesses".

420. Further procedural fairness deficiencies were identified by Mr S aunders as follows:

• Dr Samaraweera was never told that her employment might or would be terminated as a consequence of the investigation into Dr Fredericks' allegations against her.
• She was never provided with an opportunity to put a case, face to face, with the decision maker in relation to the findings made against her or the decision to terminate her employment for misconduct.
• Dr Camaris, the Acting Head of the Unit, suggested that Ms Savage, the investigator, contact Dr Fredericks' previous employer to find out information about Dr Fredericks' behaviour in the past but Ms Savage did not contact, or made any attempt to contact, Dr Fredericks' previous employer.
• The information contained in Ms Savage's two reports to Mr Clout was neither fair nor balanced, an example being her unqualified assertion about the accounts of the lab staff as to what they heard (as referred to previously).
• Ms Savage failed to point out to Mr Clout any of the inconsistencies in the information given to her by the relevant witnesses, as raised elsewhere in these submissions
• Ms Savage failed to make any reference in either of her reports to Mr Clout to the account given by Dr Sugo of what she had heard in her location which was closest to the incident.;
• Ms Savage described the photographs taken of Dr Fredericks in her report in a positive way, providing details of the date and areas shown in the photographs. Dr Fredericks was not able to provide any proper explanation as to why it took her 4 days to have the photographs taken. In contrast despite Dr Samaraweera's description of the nature of the photographs in her written response to the allegations Ms Savage portrayed the photographs provided Dr Samaraweera in a negative way.
• Ms Savage gave evidence that she did not put the Dr Samaraweera's allegations to anybody because she felt that "in light of the evidence obtained by Dr Edwards and others I did not consider that it was necessary to put separate allegations to Dr Fredericks". This amounted to an admission on her part that she did not investigate those allegations because she believed the evidence of Dr Edwards and others to be true. That is, Ms Savage had already decided that Dr Fredericks' version of events was true when she prepared the written allegations that were put to Dr Samaraweera, which was before she was even interviewed.

421. Submissions were made in relation to the issue of whether the dismissal of Dr Samaraweera was harsh, unreasonable or unjust with reliance placed on Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410

422. It was submitted that the dismissal of Dr Samaraweera was unjust because it had not been established that she engaged in the conduct on which SESIAHS relied upon for the dismissal and thus there was no valid reason for such.

423. The dismissal was also harsh because it was disproportionate to the gravity of the alleged conduct (even if it were found to have happened), having regard to her perfect 11 year record as an employee of SESIAHS and by reason of the damage to Dr Samaraweera's reputation, was likely to preclude her from obtaining alternative employment in another Area Health Service in NSW.

424. Finally if the Commission were to find, contrary to Dr Samaraweera's primary case, that she did hit, or attempt to hit, Dr Fredericks with a tray, then that event took place after Dr Fredericks had rammed (or at the very least bumped) into Dr Samaraweera and then punched her. Unjustified provocation of this kind would render harsh any dismissal on the basis of an isolated and out of character reaction by the Dr Samaraweera.

425. The dismissal was also unreasonable because the decision to dismiss was made on the basis of inferences (ie misconduct) which could not reasonably have been drawn from the material before SESIAHS. In addition, the procedure followed by SESIAHS was fundamentally flawed as outlined.

426. Mr Saunders sought the following orders on Dr Samaraweera's behalf:

1. An order pursuant to s.89(1) of the Act that SESIAHS reinstate her to her former position on terms not less favourable to her than those that would have been applicable if she had not been dismissed;

2. An order pursuant to s.89(4) of the Act that her period of employment with SESIAHS is taken not to have been broken by the dismissal; and

3. An order pursuant to s.89(3) of the Act that SESIAHS pay to the her an amount equal to the remuneration she would, but for being dismissed, have received before being reinstated.

427. It was submitted that reinstatement was the appropriate remedy for the following reasons:

• The Department in which Dr Samaraweera worked is currently understaffed to the equivalent of 1 full time position.
• Dr Camaris, the Acting Director of the Anatomical Pathology Unit in which Dr Samaraweera worked, was supportive of her being reinstated.
• Dr Samaraweera had an excellent working relationship with Dr Camaris and Dr Bullpitt and had no problems working with any other staff in the Unit. She Samaraweera did not have any animosity towards Dr Edwards or any other staff in the Unit, and
• Dr Fredericks, the other person involved in the incident on 3 September 2009 was no longer employed by SESIAHS, nor was Dr Cooke-Yarborough.

428. It was submitted that Mr Clout was the only person to raise a concern as to a loss of trust and confidence in the employment relationship. His concern in that regard is based on a finding by him that Dr Samaraweera hit Dr Fredericks with a tray. Mr Clout relied on that finding to assert that she was a risk to the safety of other employees engaged by SESIAHS. In response to this concern the following was submitted:

1. If the Commission found that the evidence did not support a finding that Dr Samaraweera hit Dr Fredericks with a tray, there was no basis for any perceived risk to the safety of other employees;

2. In any event the fact that she had an excellent 11 year record with SESIAHS and had never been involved in any dispute, whether physical or otherwise, at work demonstrated that she is not a risk to the safety of other employees engaged by SESIAHS;

3. SESIAHS has approximately 22,000 staff. Many decisions of the Commission have recognised that reinstatement is less problematic in large employers than it is in a very small employer; and

4. When assessing Mr Clout's alleged concerns as to a loss of trust and confidence the Commission would have regard to decisions such as Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117.

429. Finally, if the Commission formed the view that it would be impracticable to reinstate Dr Samaraweera to her former position, then compensation in lieu of reinstatement was sought pursuant to s.89(5) of the Act.

Submissions on Behalf of the Respondent

430. Ms Brus on behalf of SESIAHS also made oral submissions supplementing the written submissions as filed (Exhibit 44) and in so doing took the Commission to relevant evidence, transcript and cases.

431. It was submitted that it was well settled that fighting in the workplace warranted dismissal: see G J Coles and Company Limited v Shop, Distributive and Allied Employees' Association of New South Wales (1983) 6 IR 42; AWU-FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385, and most recently Graham v South Eastern Sydney & Illawarra Area Health Service [2010] NSWIRComm 1023 . Further the Commission need not be troubled by the oft-cited Jupiter General Insurance Company Limited v Andeshir Bomanji Shroff (1937) 3 All ER 67, the authority for the principle that a person who has been reprimanded may lose his temper and it is the standards of men and not those of angels that ought to be applied. In this matter Dr Samaraweera denied that she was the instigator of the fight or that she retaliated in any way to the actions of Dr Fredericks. In effect she asserted that she was the victim.

432. It was submitted that, given the position adopted by Dr Samaraweera, the Commission was faced with same task as was the original decision maker of determining who was telling the truth about what happened on 3 September 2009. On that particular day either Dr Fredericks or Dr Samaraweera "snapped. However, whilst it had been said that it was a "most improbable and unlikely situation" with respect of Dr Samaraweera, it was equally improbable and unlikely with respect to Dr Fredericks.

433. As a general submission, Ms Brus indicated that where there were differences as between the evidence of the parties, the evidence the witnesses for SESIAHS should be preferred.

434. Ms Brus submitted that Dr Samaraweera's evidence could be summarised as follows:

• she had a strained relationship with Dr Fredericks; Dr Edwards and Dr Cooke-Yarborough;
• Dr Fredericks had an argument with Dr Bullpitt that took place on Monday 31 August 2009, 3 days prior to the incident. This argument involved the applicant and was the catalyst for the attack by Dr Fredericks on 3 September;
• On 3 September 2009 Dr Samaraweera was walking from the laboratory back to her office - Dr Fredericks was walking from her office to the laboratory. As they passed in the corridor, Dr Fredericks deliberately veered into her path and rammed her against the wall of the corridor with force. Dr Fredericks then laughed and proceeded to punch Dr Samaraweera who in turn was forced to use the plastic filing tray she was carrying to defend herself. The punches from Dr Fredericks caused the plastic tray to break.
• She was able to escape the altercation with Dr Fredericks and ran to her office; grabbed her bag and left the premises.
• She did not see anyone else in the corridor at the time of the altercation.
• She suffered an injury to her right thumb and also some minor bruising as a result of the attack.

435. Ms Brus submitted that in cross-examination Dr Samaraweera was questioned about the key elements of evidence about the incident. Firstly she claimed that Dr Fredericks was the aggressor as she rammed her against the wall of Dr Tobias' office and that this was done with some force. The Commission's attention was drawn to the floor plan showing that Dr Tobias' office was next door to the office of Dr Sugo and almost directly opposite the office of Dr Cooke-Yarborough. None of the witnesses who stated they heard things at the time of the incident and in particular Dr Sugo; Dr Cooke-Yarborough; Dr Edwards or Dr Camaris, could recall hearing a noise consistent with someone being rammed into the wall. Dr Fredericks also denied that she engaged in this action. If Dr Samaraweera had been rammed into the wall as she claimed there would have been a noise, and a noise of such note that at the very least, Dr Sugo would have heard it. There was evidence about the walls of the offices not being particularly substantial or sound proof and it was most improbable that a body being rammed, with force, against such a wall could be done silently as claimed by Dr Samaraweera Her evidence about Dr Fredericks laughing was simply uncorroborated. Again, none of the witnesses - Dr Sugo, Dr Cooke-Yarborough, Dr Edwards or Dr Camaris heard laughter and Dr Fredericks denied that she laughed at any time.

436. Dr Samaraweera asserted that the black filing tray was broken by Dr Fredericks striking it when she was attempting to punch her. The damage done to the filing tray was extensive with the tray being broken in a number of places leaving sharp and ragged edges. The photographs taken by Dr Fredericks of her injuries, only days after the incident, clearly show both her right and left hands and they are clearly uninjured. There are no signs of cuts/abrasions or bruising to either hand. Such injuries might be expected if she had in fact punched the filing tray with sufficient force so as to break it. It was most improbable , given the damage done to the tray, that there would not have been some mark on her hand. It should also be noted that Dr Samaraweera was the only person to suffer an injury to her hands, the cut to her right thumb presumably caused when the tray broke. That was the only noticeable injury she had.

437. It was submitted that the version of events put forward by Dr Samaraweera was simply not sustainable. Dr Fredericks' injuries were consistent withwhat she said happened.

438. It was submitted that a great deal of Dr Samaraweera's affidavit evidence dealt with matters other than the incident of 3 September. She directed much of her evidence to the subject of her relationship with Dr Edwards and had attempted to paint Dr Edwards as a person of questionable character and credibility and in doing so strongly implied that the evidence of Dr Edwards should not be believed. Her reason for doing this was clear - Dr Edwards was an eye witness to certain critical aspects of the incident of 3 September and her version of what transpired differed significantly from that of Dr Samaraweera.

439. According to Dr Samaraweera, Dr Edwards disliked her and this dislike apparently came about because she did not invite Dr Edwards to her wedding, an event that took place in 2004 some 5 years prior to the incident. She knew that Dr Edwards was annoyed about this issue because Dr Edwards raised it with her sometime in 2007. Significantly, although she claimed that Dr Edwards did not like her, any animosity that did exist between the two doctors, seems to have been directed by Dr Samaraweera towards Dr Edwards. She felt that Dr Edwards made "constant" inquiries about whether she was pregnant; was "constantly" asking about her work and checking up on whether she was busy; made unnecessary and frequent inquiries about Dr Samaraweera's husband and, she was forced, in May 2008 to tell Dr Edwards that she was tired of her inquiries about work. The evidence however clearly showed that it was Dr Samaraweera who had an unreasonable reaction to Dr Edwards, and for reasons unknown, resented her.

440. Dr Samaraweera worked 28 hours per week, Monday to Thursday with the occasional Friday. Dr Edwards had only ever worked 2 days per week (Thursday and Friday) since returning from a period of leave in early 2007. On most weeks, Dr Edwards and Dr Samaraweera worked in the same location for one day per week and yet she insisted that on this one day, despite both of them being busy reporting on pathology samples, Dr Edwards spent a significant period of that time looking at Dr Samaraweera's stomach or questioning her about pregnancy plans and her husband or about how busy she was. It emerged late in the course of cross-examination that this purported behaviour in fact, ceased in May 2008 and from that time there was little if any interaction between the two doctors.

441. It was submitted that the evidence of Dr Edwards about their relationship confirmed that it was Dr Samaraweera who maintained feelings of resentment and bitterness against Dr Edwards. Dr Edwards did not harbour any grudge against Dr Samaraweera and had no reason to lie about what she saw on 3 September 2009. Further, whilst Dr Edwards enjoyed a professional relationship with Dr Fredericks during the time they worked together at the Unit, she had not seen nor spoken with her since the date of the incident. She had no reason, nor opportunity to structure her evidence to corroborate the evidence of Dr Fredericks.

442. It was submitted that Dr Samaraweera had knowingly embellished her evidence in an attempt to discredit Dr Edwards and in doing so had damaged her own credibility and could not be regarded as a witness of truth.

443. Ms Brus also summarised Dr Fredericks' affidavit evidence as to the incident as follows:

• She was walking up the corridor on the left hand side towards the laboratory. Dr Samaraweera, holding a plastic tray, was walking in the opposite direction and as they passed each other there was a bump.
• Dr Fredericks continued for a few more steps when she heard Dr Samaraweera say something. Dr Fredericks then stopped and turned towards her.
• Dr Samaraweera then advanced towards Dr Fredericks and commenced punching her. Dr Fredericks assumed a defensive position by crossing her arms with her right arm crossing over her left arm but she sustained several punches to both arms.
• Dr Samaraweera stopped punching Dr Fredericks and swung the plastic tray she had been holding towards Dr Fredericks' head. Dr Fredericks deflected the blow with her right upper-arm and the impact of the tray on the arm caused the tray to break.
• Dr Samaraweera made a derogatory comment to Dr Fredericks.
• Dr Fredericks was aware that other people came into the corridor - Dr Cooke-Yarborough and Dr Camaris and she believed that Dr Camaris saw Dr Samaraweera strike her with the tray.
• Dr Fredericks made a formal complaint about the incident to A/Prof Wilson stating that she had been assaulted by Dr Samaraweera.
• Other than Dr Samaraweera and Dr Fredericks no-one was a witness to the initial stages of the incident. Dr Samaraweera claimed that Dr Fredericks deliberately veered towards her whilst Dr Fredericks stated that the first physical encounter was merely a bump as they passed in the corridor. Given the dimensions of the corridor it was entirely possible, if not probable, that the initial physical contact was as described by Dr Fredericks.

444. Ms Brus submitted that there was corroborating evidence for Dr Fredericks' evidence which was summarised as follows:

• Various witnesses corroborated the fact that words were spoken in a raised voice, with accounts varying as to the actual words spoken, but with general consensus that Dr Samaraweera was accusing Dr Fredericks of either pushing or shoving or punching her.
• Dr Fredericks and Dr Samaraweera were in direct conflict in their evidence as to what happened next and there was no corroboration from other witnesses about the punching phase of the incident.
• Dr Edwards confirmed that when she came to the doorway of her office and looked up the corridor she saw Dr Fredericks in a defensive position on the left side of the corridor. She also corroborated Dr Fredericks' evidence as to where she was standing in relation to Dr Samaraweera.
• Dr Edwards corroborated Dr Fredericks' evidence about being struck by Dr Samaraweera with the tray.
• Dr Cook-Yarborough; Dr Edwards and a laboratory staff member all confirm that Dr Samaraweera called Dr Fredericks a "fucking bitch." Dr Samaraweera denied she said this.

445. It was submitted that whilst it was true that there were differences in the evidence of the corroborating witnesses, the key elements of Dr Fredericks' evidence were overwhelmingly supported by the evidence of other witnesses, but the same could not be said for Dr Samaraweera's evidence, her evidence was without any corroboration.

446. The incident of 31 August and the evidence as to what occurred was detailed and it was submitted that the evidence of Dr Fredericks as to the incident of 31 August 2009 must be preferred to that of Dr Samaraweera, Dr Bullpitt and Dr Camaris. Whilst Dr Samaraweera saw this incident as being the catalyst for the 3 September incident, Dr Fredericks' oral evidence about this issue showed that whatever lingering resentment she may have had about the exchange with Dr Bullpitt, it was directed at him and Dr Camaris. It was not disputed that Dr Fredericks and Dr Samaraweera had no contact in the time immediately after the argument with Dr Bullpitt and the incident of 3 September. Had Dr Fredericks wanted to take the matter further with Dr Samaraweera she had 2 clear days in which to do it and she did not. What she did do was to resume her usual low profile and get on with her work. The evidence from Dr Bullpitt, Dr Samaraweera and Dr Camaris that they observed that Dr Fredericks continued to be angry about the argument was baseless, yet Dr Bullpitt was not there after Tuesday, having finished his rotation. Further, the person who was angry, didn't deny he was angry, and on his own evidence "enraged", was Dr Bullpitt. Dr Fredericks was sitting in her office and suddenly confronted by an angry Dr Bullpitt and yet the suggestion was that she was in the wrong.

447. Further, the matter of Dr Fredericks allegedly calling Dr Bullpitt a "disgusting little man" had little bearing on the substantive matters before the Commission. However it should be noted that Dr Sugo heard the exchange between the two doctors and had no recollection of those words being uttered.

448. It was submitted that in relation to Dr Fredericks' claim that Dr Camaris witnessed a significant part of the assault, this was denied by Dr Camaris and it was conceded that there was no other evidence to support Dr Fredericks' recollection and she was incorrect, she may have thought Dr Camaris was there earlier than she was. However there was no dispute that Dr Camaris did emerge from her office at some point in time proximate to the incident. The fact that Dr Fredericks believed Dr Camaris saw more than she was prepared to say was, in fact, of little importance. It did not mean that Dr Fredericks was being untruthful or wrong in what she alleged. The only thing she was wrong about was when she believed Dr Camaris was in the corridor. Dr Camaris did not say she saw something contrary to that asserted by Dr Fredericks, she simply said she didn't see anything.

449. In relation to Dr Edwards' evidence it was submitted that she had not claimed that she saw the beginning of the incident. What she did claim however was that she was in her office and heard shouting; she stepped out of her office to observe what was going on and looked up the corridor towards the laboratory where she observed Dr Fredericks half crouching in a defensive pose; Dr Samaraweera had her back facing towards Dr Edwards on a slight diagonal; Dr Edwards saw Dr Samaraweera raise her right arm and proceed to strike Dr Fredericks with the black filing tray; upon impact the tray broke; she heard Dr Samaraweera call Dr Fredericks a "fucking bitch" and she then observed Dr Samaraweera turn and head back towards her office.

450. It was submitted that key elements of Dr Edwards' evidence were confirmed by other witnesses. Dr Sugo and Dr Cooke-Yarborough confirmed they heard shouting in the corridor outside Dr Tobias' office and even Dr Camaris confirmed that she heard shouting. Dr Fredericks also stated that Dr Samaraweera had shouted at her before the physical assault. Dr Cooke-Yarborough confirmed that she heard Dr Samaraweera call someone "a fucking bitch" as did another staff member in the Laboratory and Dr Fredericks also recalled Dr Samaraweeera referring to her as a "bitch" or "a fucking bitch".

451. It was submitted that Dr Fredericks' evidence about being hit by Dr Samaraweera with the plastic tray was corroborated by Dr Edwards and there no evidence to suggest that Dr Fredericks and Dr Edwards had spoken to each other about the incident, nor was there any evidence to suggest that Dr Edwards had any reason to fabricate her evidence about the incident.

452. Whilst it was asserted that aspects of Dr Edwards' evidence were simply wrong (her initial recollection of how Dr Samaraweera left via the Laboratory), she had conceded that on this issue she was in error when she spoke with Ms Savage and to her credit was frank about this faulty recollection and it was submitted that the Commission should accept her explanation.

453. It was further submitted that an inordinate amount of time was spent with Dr Edwards about whether she was standing in the corridor or in her doorway. It was contended that Dr Edwards was untruthful about where she was standing, and if she was untruthful about this matter than the balance of her evidence could not be relied upon. The Commission was reminded that her evidence was that when standing in the doorway part of her body was in the corridor. Dr Edwards had at no time suggested that she had a perfect recall of what she saw on 3 September 2009. That was the point of making the note to herself on 15 September 2009. She was, like many of the other witnesses, overwhelmed and shocked by what she had seen and heard. Her evidence during the investigation and before this Commission had, on the whole, remained consistent and she should be regarded as a credible and truthful witness.

454. In response to the extensive list of purported denials of procedural fairness by SESIAHS in relation to Dr Samaraweera, it was submitted that these matters were dealt with in the affidavits and evidence of Ms Savage and Mr Clout. Whilst in hindsight there were things that SESIAHS would do better, the same could be said for every investigation into every breach of discipline whether in the Area Health Service or elsewhere. It was submitted that where there had been errors of omissions they had not been to such an extent as to deny Dr Samaraweera procedural fairness.

455. Further, whilst Mr Saunders had relied on Antonakopoulos on the issue of procedural fairness that was not an authority which said that if you didn't follow the process your dismissal was unfair. What it did say was that if you didn't follow the process, it might make your dismissal unfair by reason of the ramifications of failing that process. In this matter whilst the process was perhaps not as perfect as it could have been it was submitted that not one of the indiscretions were fatal.

456. No evidence had been produced to demonstrate how, when or where Dr Samaraweera was prejudiced by any of the purported breaches. Throughout the entirety of the investigation process, she was represented by her Union - ASMOF, an experienced and competent industrial organisation.

457. It was submitted on behalf of Dr Samaraweera that the failure of SESIAHS failure to provide certain documents to her represented a breach of its own disciplinary policy. Dr Samaraweera misunderstood the policy. What the policy states is that an employee has a right to access certain documents. It does not state that an employee shall be automatically provided with documents. Dr Samaraweera and her Union knew that a number of people had been interviewed during the course of the investigation and a summary of the information provided by those persons was included in the investigation report of Ms Savage which was provided to Dr Samaraweera and her Union. Dr Samaraweera and/or her Union had the opportunity to seek access to the full transcripts at that time and apparently chose not to do so. It would have been expected that if ASMOF thought the policy was not being correctly applied then they probably would have lodged a dispute about that and that did not happen.

458. In response to the submission that Dr Samaraweera was denied procedural fairness because her complaint about the incident was not investigated and that because the investigation was into Dr Fredericks' complaint, the outcome of the investigation was "skewed in favour of Dr Fredericks", it was submitted that Ms Savage undertook an investigation into the incident that occurred on 3 September 2009. That incident involved both Dr Fredericks and Dr Samaraweera who each provided conflicting versions of what had occurred. Other persons interviewed were asked what they saw or heard and they provided information accordingly. Was it seriously suggested that the information provided would have been different if a separate investigation into the same incident had been undertaken? There was a paucity of evidence to support such a contention and the Commission should have no regard to such a claim.

459. The issue of Dr Edwards being interviewed before Dr Samaraweera was referred to and the suggestion that if she had known this she could have put something forward contrary to that, was refuted, as nothing further had been put forward during proceedings other than that it was a breach of policy.

460. In reply to the contention that Dr Samaraweera was denied the opportunity for a face to face interview with the decision maker, again this was something that she could have requested and did not do so.

461. It was accepted that SESIAHS bore the onus of proof in respect of matters involving misconduct applying Pastrycooks and Budlong v NCR Australia [2006] NSWIRComm 288. It was submitted that SESIAHS had satisfied its burden to the requisite standard as per Briginshaw.

462. It was submitted that in denying her conduct on 3 September 2009 Dr Samaraweera had presented no evidence in mitigation other than her performance reviews. However this was not a matter where the professional expertise of Dr Samaraweera had any bearing on the reasons for the dismissal and as such evidence as to how she performed her work was of little, if any, relevance. Further in relation to the submissions made about the impact and import of the Register that issue had not been tested as Dr Samaraweera had not tried to get a job in another Area Health Service.

463. It was submitted that the evidence clearly demonstrated that her conduct on 3 September was wilful and serious (see New South Wales Fire Brigade Employees (on behalf of Natoli) v New South Wales Fire Brigades [2005] NSWIRComm 1170 and Nikolis v South Eastern Sydney & Illawarra Area Health Service [2009] NSWIRComm 1091). On any fair assessment it was also reprehensible. It was clearly contrary to all accepted standards of conduct in the workplace and contrary to what could reasonably be expected from any employee.

464. Finally it was submitted that the decision to terminate the employment of Dr Samaraweera was not procedurally unfair, nor was it harsh, or unjust, or unreasonable, and as such the application should be dismissed.

Submissions in Reply on Behalf of the Applicant

465. Mr S aunders in reply submitted that it was not the case that there was no collaboration Dr Samaraweera's version of events. If one looked at the punching allegations the only evidence apart from what she said, was supportive entirely of Dr Samaraweera. The collaboration was Dr Sugo heard her say, "don't punch me" and Dr Edwards heard her say, "how dare you punch me", that was the collaboration and was entirely in Dr Samaraweera's favour. As to the so-called corroboration of Dr Edwards of what Dr Fredericks said as to the hitting with the tray, the difficulties with that evidence had already been pointed out.

466. The detrimental impact of Dr Samaraweera being placed on the Service Check Register and having the ability to obtain another job in an Area Health Service was reiterated and the submissions made on behalf of SESIAHS on this issue rejected.

467. It was also submitted that, contrary to the submissions of Ms B rus, the Jupiter General line of authorities was relevant if it was found that Dr Fredericks had punched Dr Samaraweera. The Commission was again taken to the evidence about the "ramming" and where in the corridor the incident had taken place (outside Dr Tobias' office) and the reliance placed by Ms Brus on Dr Sugo's evidence also rejected.

468. Mr Saunders also countered the submissions about no injury on the part of Dr Samaraweera by referring the Commission back to her evidence (does not bruise easily, her photos, etc,) and indicated that it had never been said that Dr Fredericks used a straight punch when she broke the tray but rather she was using her forearm and elbow.

469. It was further submitted that Dr Edwards still harboured a grudge against Dr Samaraweera, and if she was disinterested after the incident why did she conduct her own little investigation and ring everyone up saying, what did you see, what did you hear. The only explanation was that she was trying to make sure Dr Samaraweera did not end up back there.

470. If it was conceded that Dr Fredericks was incorrect when she said she saw Dr Camaris in the corridor, the Commission needed to decide whether she was lying about that or was mistaken. There were only two possibilities once it was conceded that she was wrong. It was not open to the Commission to find that Dr Fredericks was mistaken about this, the only conclusion was that she was lying and if she was lying about such a fundamental issue then the rest of her evidence was not reliable.

471. The significance of the argument between Dr Fredericks and Dr Bullpitt, which on any view was heated, was that at the end of it Dr Fredericks slammed the door. She told Ms Savage she thought Dr Samaraweera was instrumental in that. The significance was not the argument was not whose fault it was but the fact that it caused Dr Fredericks to be upset and angry and she blamed Dr Samaraweera for it.

472. If Dr Edwards had been standing where she said she was, whether in her doorway or outside of her office and Dr Fredericks had been hit with a tray by Dr Samaraweera it was undeniable that she would have seen it. It also defied belief that if Dr Edwards was outside her office she was not seen by anyone else who was also in the corridor. The Commission didn't need to find that she was lying, only that she was unreliable or mistaken. Her evidence was not reliable enough to meet the Briginshaw standard. Further it was said Dr Edwards did not know what Dr Fredericks had said about the incident but Dr Fredericks showed her elbow and the graze, said she was assaulted, and the broken tray was seen on the floor - that was Dr Fredericks telling Dr Edwards her version of the events and she was the only one of the protagonists to do so.

473. Submissions were made about the number of people hearing Dr Samaraweera say, "you bitch", however it would be uncommon and unusual to punch somebody, hit them with a tray and then say "you bitch".

474. The procedural unfairness arising from the failure of SESIAHS to follow its own policy in relation to provision of documents was reiterated, as was the fact that this was raised by ASMOF on 10 December 2009. The Investigation Report did not disclose who had been interviewed, some names were disclosed, but not Dr Sugo's for example. The failure to provide the photographs from Dr Fredericks for comment was significant because Mr Clout decided the entire issue and Dr Samaraweera's entire fate on the basis of those photographs and his view about their consistency with one version of events or another. Further Ms Savage did not put to Mr Clout that she found inconsistencies. In doing a fair and balanced account of why a certain conclusion had been reached one had to tell the "pros and cons" of why one had reached a certain conclusion so the decision maker could assessment for themselves of finding and make a decision.

Consideration

475. I have very carefully considered the transcript, all the evidence as tendered, the submissions of the parties and the cases cited. That consideration has required an extremely detailed, thorough and extensive review of all the documentation and transcripts in this matter. I have also outlined above the respective submissions of Counsel in greater detail than would normally be the case given the diametrically opposed versions of what occurred in the altercation between Drs Fredericks and Samaraweera on 3 September 2009. Those submissions thoroughly summarised the respective and opposing positions of the parties and have been of great assistance to the Commission.

476. What has not been of assistance to the Commission is not only the outright conflicting evidence from Drs Fredericks and Samaraweera but also the conflicting evidence from those other witnesses who maintained that they either saw or heard, or indeed did not see or hear, parts of what took place in the corridor from the point of the initial bumping up until both Doctors had separately left the Unit. It is also hard not to come to the conclusion that some (but not each) of the doctors have frankly either embellished their accounts, have just not been totally forthcoming with what they did really see and hear, or indeed have been untruthful to this Commission.

477. Most unfair dismissals are like jigsaw puzzles with the various pieces supplied by the applicant and respondent respectively through the evidence and submissions. The Commission then puts all those pieces together to make a picture from which one can usually, eventually draw reasonably clear conclusions. Frustratingly in this matter, there are pieces that are just either missing, or simply do not fit together, making the task of reaching a conclusion, I have to say, the most difficult I have yet undertaken when compared to all previous decisions I have had to make.

478. There is no doubt that the task that faced the investigator, Ms Savage, and the decision maker, Mr Clout, was particularly onerous and difficult. The advantage that I have had in comparison is that I have had all the available evidence before me, and, in some minor instances evidence, that was not before Ms Savage. That evidence has been able to be thoroughly tested out during the course of these proceedings. However that process has not necessarily made the task any easier, indeed it has made it even more difficult and has not been approached lightly by any means.

479. The parties have rightly identified the requisite standard of proof to be applied as that established in Briginshaw v Briginshaw, as further explained in Neat Holdings , and as consistently applied in unfair dismissal cases before this Commission. That being the civil standard of the balance of probabilities.

480. The Full Bench in New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 considered the intertwined issues of both who bears the evidentiary onus and the standard to be applied to that onus.

481. 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 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] HCA 34; (1938) 60 CLR 336, should apply. It is timely in such circumstances , in our view, to once again set out the observations of Dixon J (as he then was) in Briginshaw at 361 - 363:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exist may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect inferences.

...

This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt relied upon criminal inquest in the reasonable satisfaction which in a similar issue in may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil preceding a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues... But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (Emphasis added).

14 In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR at 449 - 450. Mason CJ, Brennan, Deane, and Gaudron JJ explained the above passage from Briginshaw this way:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved. This, authoritative statements have been made to the effect that clear or cogent or strict proof is necessary "were so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage fraudulent or criminal conduct and a judicial approach that a court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (emphasis added).

482. The Full Bench also went on to observe in relation to the specific decision the subject of appeal:

19 The Commission, at first instance, should be conscious of the gravity of the allegations made by both sides when reaching a conclusion. Ultimately, however, it remains incumbent upon the Commission, at first instance, to determine the issue by reference to the balance of probabilities. The question then becomes: did the Commission, in making the findings of fact at first instance, approach its tasks by mechanically applying a mere preponderance of probabilities, or, on the other hand, did reach a state of reasonable satisfaction, bearing in mind the seriousness of the matters alleged?.........

483. In Burge the Full Bench also relevantly observed as follows:

6. The commissioner, in a very detailed and comprehensive decision, examined the altercation between the appellant and Mr Usher in light of their relationship over the previous few years, their conflicting evidence about the fight itself (to which there were no eyewitnesses), the nature of the investigation conducted by the respondent (including interviews with the two employees concerned), the respondent's policy as to fighting in the workplace and the consequences of the appellant being reinstated. Much of the commissioner's decision referred to the parties' submissions on the applicable law from the cases on the subject of fighting at work and how it was applied to the particular facts of those cases. However, the commissioner did not go to the next step after his analysis of the facts here and making findings thereon to relate those findings to the relevant principles of law. In any event, we have to say the commissioner's process in reasoning the available facts, many of which were based on circumstantial evidence, was inconsistent with the evidence so as to lead to an unreasonable explanation for what occurred. As was said by Dixon J, with whom Latham CJ agreed, in Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 - " If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established which the conclusion follows as a rational inference"..........

484. Observations I made in Australian Services Union of NSW and Sydney Water Corporation [2008] NSWIRComm 1064 seem particularly apposite to this matter:

Whilst it is clear that this case is about onus and whether Sydney Water has established, to the Commission's satisfaction, that the men were drinking alcohol and did therefore commit serious misconduct, coming to a conclusion about whether that onus has been discharged is also inextricably bound up with issues of the credit of witnesses and the credibility of the evidence of both sides not merely whether there is sufficient evidence of the misconduct alleged. Given how diametrically opposed the accounts are of what happened on 16 October, it ultimately comes down to whether the Commission believes one side in preference to the other and any basis for that belief.

485. Generally in misconduct cases however, even if it is established after applying the requisite tests, that misconduct did occur, the Commission must also consider whether termination in the circumstances was too harsh a penalty per Byrne . Likewise the Commission must also consider whether the termination was harsh and/or unjust and/or unreasonable per s.88 of the Act. Here however, the onus moves back to an applicant per Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273.

486. Although I have to say that that if it was held that the misconduct alleged against Dr Samaraweera had occurred, there would have to be very compelling reasons to support a finding that termination was a penalty that was too harsh, or unjust or unreasonable given the overall circumstances.

487. In New South Wales Fire Brigade Employees (on behalf of Natoli) v New South Wales Fire Brigade [2005] NSWIRComm 440, Sams DP at para. 218 posits four questions that arise for consideration in a case concerning 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?

4. Were mitigating factors taken into account?

488. Those questions are just as applicable when a dismissal was not "summary" but still clearly for misconduct, as was the case with Dr Samaraweera.

489. In considering whether the misconduct as alleged as did occur it is necessary to commence with those background matters that were raised on behalf of Dr Samaraweera, that being the strained relationships in the Unit and the events of 31 August 2009.

490. The evidence that was led on behalf of Dr Samaraweera about relationships in the Unit sought to essentially achieve three outcomes. Firstly, to attack the credibility of Dr Edwards' evidence on the basis of long held and demonstrated resentment of Dr Samaraweera; secondly to establish that Dr Fredericks had acted angrily and aggressively towards Dr Samaraweera in the past; and thirdly that Dr Fredericks' personality and style, particularly in the months leading up to her resignation and her resentment of Dr Camaris, formed some sort of basis for her attack on Dr Samaraweera.

491. Contrary evidence from Dr Edwards, Dr Fredericks and Dr Cooke-Yarborough went to the alleged perceived favouritism shown by Dr Camaris towards Dr Samaraweera and issues of unequal workload. Dr Fredericks' evidence also dealt with the aggression shown to her by Dr Bullpitt on 31 August, the failure of Dr Camaris to do anything about it and also Dr Camaris' treatment of her since she had submitted her resignation.

492. It was more than evident that there were strained relationships and resentments held within the Unit and it did seem to me (only based on those giving evidence) that there were essentially two clear camps - those supporting Dr Camaris (Dr Samaraweera, Dr Crouch and Dr Bullpitt) and those discontented with the way things were managed (Dr Reeves, Dr Fredericks, Dr Edwards and Dr Cooke-Yarborough).

493. A/Prof Wilson made mention in his 'Self Initiated Brief' of 21 September 2009 of being approached by "several individuals.... expressing concerns about what happened and intimating broader underlying issues needing attention".

494. All of those witnesses referred to above had something to say about relationships in the Unit (either in generally terms or specifically directed at a particular person) during the interviews with Ms Savage and she further commented on this in her evidence.

495. I have to say that I found much of what Dr Samaraweera raised against Dr Edwards to be terribly trivial matters and somewhat demonstrative of a person overly sensitive, thin-skinned and perhaps lacking in confidence. Indeed some of the specific incidents she referred to, both in relation to Dr Edwards and Dr Fredericks, they just could not recall, which it is not surprising given the length of time that had elapsed and the triviality of the incidents in question.

496. I appreciate that in any workplace what a person takes offence at or finds objectionable will vary from individual to individual and the person giving offence may not even be aware (and indeed usually isn't) that they have done so, yet nevertheless even seemingly trivial matters can be the cause of on-going resentment that can build up to become a more serious issue.

497. Having said that, I find it hard to accept, and do not consider, that those issues that Dr Samaraweera raised against Dr Edwards provides a sufficiently substantial basis for establishing that Dr Edwards held some sort of grudge against Dr Samaraweera (particularly in relation to the issue of the non-invitation to her wedding some six years previously); but more significantly, a grudge of such degree that she would give untruthful evidence to Ms Savage and this Commission. Further it is clear that Dr Edwards and Dr Samaraweera reported on different types of pathology and thus had minimal work-related contact in any event.

498. Dr Edwards came across as a witness as being a very outgoing and chatty person and this could well be interpreted in a workplace environment by someone who was obviously a private person (such as Dr Samaraweera) as being a "busybody".

499. There is no doubt that Dr Fredericks was not happy in her last months in the Unit and had a somewhat problematic relationship with Dr Camaris, a problematic relationship that went both ways. I have to say Dr Camaris came across as being somewhat dour in demeanour and if that was reflective of her demeanour in the workplace that would not have assisted in that relationship.

500. The evidence of Dr Crouch about Dr Fredericks' alleged aggression in the workplace on a previous instance (relating to the issue of allocation of specimens) and evidence of Dr Samaraweera about such issues, I do not consider sufficient to establish that she was an aggressive person by nature and therefore likely to have been the aggressor on 3 September 2009. Just because a person gets angry about particular incident is not sufficient to establish that they have a pattern of aggressive behaviour in the workplace.

501. There was no evidence of any previous violent action/s on the part of Dr Fredericks. Just as there was no evidence of any previous violent action/s on the part of Dr Samaraweera. I do not accept that slamming the door/ shutting the door forcefully/closing the door, when Dr Bullpitt was still standing there on the previous Monday is of any particularly significance in this regard or demonstrative of an aggressive nature either. It was clearly in response to an angry and aggressive confrontation of Dr Fredericks on the part of Dr Bullpitt.

502. I agree with Ms Brus that in relation to the incident on 31 August 2009 that it was characterised as being Dr Fredericks' fault and that she was in the wrong rather than Dr Bullpitt. I do not accept this characterisation. Nor do I consider it of any particular significance or relevance as to whether Dr Fredericks referred to Dr Bullpitt as a "disgusting little man" or a "silly little man". I acknowledge that Dr Camaris and Dr Samaraweera both told Ms Savage that the term used was "disgusting" (Dr Samaraweera's notes for the interview). In Ms Savage's interview with Dr Fredericks the transcript refers to "an unpleasant man" and it is quite unclear whether Dr Fredericks actually told her the specific words she used. The first time she would have seen the actual words she was she was alleged to have said would have been in witness statements as filed in June 2010. I don't believe any different recollection she now has as to what she said at that point in August 2009 raises any issue of credibility.

503. The evidence is clear that no one had spoken specifically to Dr Fredericks about the fact that the specimen had been left for her attention by Dr Bullpitt, or for what reason it had been left for her.

504. Dr Cherepanoff was not called to give evidence by either side and Dr Fredericks' evidence stands in my view. She was off on sick leave on the previous Friday when this specimen was evidently allocated to her by Dr Bullpitt. On that Monday she had only just come in, was holding her coffee, had not looked at her roster for the week, and was "warned" by Dr Cherepanoff about a specimen (but not, it appears, given any detail or particulars about it) and she simply said that if she was on "wet" specimens she was happy to do it and if not, then the person who was on should do it. That hardly constitutes a refusal to attend to the specimen yet Dr Cherepanoff told Dr Samaraweera that this is what she had done (on Dr Samaraweera's evidence) and then Dr Samaraweera went and complained to Dr Camaris, with Dr Camaris telling her to attend to it as she didn't want to confront Dr Fredericks and give her reason to take more sick leave. Dr Samaraweera didn't subsequently explain what had happened to Dr Bullpitt, but seems to have made some comment of complaint, and he just went charging off to confront Dr Fredericks on her behalf in an angry and aggressive way. Dr Camaris made no attempt to properly intervene in the situation and calm things down and explain things, other than to tell people to go back to their offices.

505. I consider that Dr Fredericks would have had every right to be upset, offended and angry with Dr Bullpitt as a result of the way he confronted her and spoke to her and indeed to realise that probably Dr Samaraweera had something to do with it, and as she put it subsequently was "instrumental" in the confrontation arising. It would also not be unexpected that she would feel aggrieved at the way Dr Camaris had handled (or rather not handled) the situation.

506. However it seems to me that Dr Fredericks is not the only one who could have harboured some resentment over the next couple of days as a result of this incident. The evidence shows that this was not the first time that there had been issues between Dr Fredericks and Dr Samaraweera about who should attend to a particular specimen. This had happened before on both Dr Samaraweera's evidence and the evidence of Dr Crouch.

507. Indeed on that particular day, on Dr Samaraweera's evidence (her second affidavit) she had complained firstly to Dr Cherepanoff (after she was told by her about the specimen) and then made her come with her (Dr Cherepanoff did not want to get involved) to complain to Dr Camaris where she said:

Catherine [Camaris], Sue [Fredericks] is once again trying to offload difficult cases onto me. Svetlana [Cherepanoff] says this case was allocated to Sue on Friday and that Sue is now refusing to do it and claims that I should do it.

508. Dr Samaraweera could not have been pleased or happy about the fact that, notwithstanding her complaint to Dr Camaris, she was still going to have to look after the specimen rather than Dr Fredericks being made to do it. This would seem to me to give Dr Samaraweera clear cause not just to feel resentment towards Dr Fredericks for having yet another difficult case "offloaded" onto her but even more resentment as she had not been successful in getting the case given back to her.

509. As to the incident on the 3 September, about the only three facts that are agreed between the two protagonists are that it started at about 11 am (this time differs from that given by other witnesses) as they walked past each other on their respective ways to and from the Laboratory and there was a "bump" (on one version "accidental", and the other "deliberate") and that at the end of the subsequent physical exchange an empty black plastic A4 filing tray was broken into pieces.

510. It frankly seems inherently implausible that either of these two adult, intelligent, professional women would resort to physical violence yet obviously that is what occurred. Just who was the one resorting to violence is the issue to be determined.

511. What little corroborative evidence there is has not been of great assistance. Indeed, given the very real conflicts and contradictions in some of that evidence it would have been far easier to decide this matter based on Dr Fredericks' and Dr Samaraweera's evidence alone.

512. This was an incident that from the time of the "bump" to the breaking of the tray took place over the space of literally seconds in a corridor where doors were either "not fully closed" (Dr Sugo) or possibly open in the case of Dr Camaris (there was no actual evidence clearly indicating whether her door was open or closed other than she had an "open door policy"). Yet the only things heard variously are, "you fucking bitch" ( 4 definite confirmations - Dr Edwards, Dr Sugo, Dr Cooke-Yarborough, someone in the laboratory and Dr Fredericks in cross examination), a scream (Dr Crouch, Dr Sugo and Dr Camaris), words like "don't push" or "don't punch me" (Dr Sugo and Dr Edwards) and the sound of a crash as if a tray of specimens was dropped (what Dr Crouch heard from the Registrar's Room).

513. Dr Samaraweera denied saying "you fucking bitch" and only mentioned saying "why did you shove me" (or push me) with no mention of punching at all. She also significantly said that Dr Fredericks did not say anything during the whole encounter, only gave a laugh. Dr Fredericks also maintained that she did not say anything. It should be noted that no other witness heard Dr Fredericks laugh and she also denied that she did this.

514. This would indicate to me that what Dr Sugo said she heard (words about Dr Fredericks saying something about what Ushma had done to her before, with Ushma saying the whole thing was unacceptable and going into her room) was in fact what was said after the actual physical altercation had finished and when Dr Fredericks (still in the corridor) made her accusation to Dr Camaris about her seeing what had happened and also about ignoring what Dr Bullpitt did to her on Monday etc.,(Dr Camaris could not recall this being said).

515. I also consider that Dr Sugo appeared uncomfortable giving evidence and reluctant to be more forthcoming and I find it hard to believe that she did not hear more than she said she did (or indeed did not look through her "not fully closed door"), given the proximity of her office to the altercation that unfolded. However, I do not think that her evidence is particularly significant or of any real assistance and I do not find it unusual that Ms Savage did not take it into consideration in her Report.

516. Even if I accept, as I do, that Dr Samaraweera did say "you fucking bitch," the only evidence that pinpoints when that happened is that of Dr Fredericks who said that after the initial bump Dr Samaraweera said "don't do that to me" and used expletives (which she subsequently clarified as being "you fucking bitch"). This would seem to point strongly to considerable anger on the part of Dr Samaraweera who believed that she had been deliberately bumped by Dr Fredericks. It does not totally assist in any way in clarifying what subsequently occurred however, as that could have equally have been said as a response to Dr Fredericks punching her (Dr Samaraweera's version of events).

517. Dr Edwards maintained she saw the incident from when the two doctors turned to face each other but yet did not see Dr Samaraweera punching; did not recall when she saw Dr Camaris come out in the corridor; Dr Fredericks said Dr Camaris was there the whole time; Dr Camaris said she wasn't there until it was over and the tray was on the floor, broken and that Dr Edwards was not in the corridor when she came out; Dr Cooke-Yarborough said that she only saw Dr Fredericks and Dr Camaris (and Dr Samaraweera running out of her office at some stage) and not Dr Edwards.

518. I have to say that I do not consider that Dr Edwards' evidence is completely accurate or reliable (her account of subsequent conversations is particularly confusing in terms of timeframe) and may even have been embellished based on what she subsequently heard from others. That it contradicts Dr Fredericks' evidence in a couple of key respects (Dr Camaris being present particularly and possibly the 2 or 3 swatting motions of Dr Samaraweera with the tray compared with the one striking motion) would of course strongly support that there had not been any subsequent discussion with Dr Fredericks in any attempt to "line up" their evidence or accounts.

519. However the 2 or 3 swatting motions would accord with Dr Fredericks evidence about Dr Samaraweera punching her with her right hand which holding the tray.

520. Having said that, I do consider that Dr Edwards did look out down the corridor, from her doorway, at some stage and did see something of the incident. Exactly what she saw, and at what stage of the altercation is difficult to conclusively resolve.

521. The reason I am convinced that she did see something of what occurred, despite the inherent contradictions referred to above, is mainly because if, as suggested by Dr Samaraweera, she was always going into others' offices and being nosey, it would be really be quite out of character for her to not to have got up to investigate what was going on and could clearly be heard. I just can't see Dr Edwards sitting in her office and ignoring what she heard and not going to investigate as Dr Sugo did. However I don't think that she would have wanted to be seen by Dr Samaraweera given their somewhat non-existent personal relationship at that stage and may not have wanted to be seen by Dr Camaris either. Her evidence is confusing - she compresses into one seemingly sequential conversation a number of subsequent conversations that could not have occurred immediately after altercation and she also has Dr Camaris running after Dr Samaraweera and then returning, which she did not do, on either her evidence or that of Dr Fredericks. It would be speculation to suggest that this may have occurred when Dr Camaris went off to the later interviews and did so in a hurry or a rush.

522. I do not however make a positive finding as what Dr Edwards did see and I have not relied on what she saw (or any issue of credit) for the findings that I do intend to make in this matter.

523. I acknowledge that Ms Savage placed great reliance on Dr Edwards' evidence and that Mr Clout felt it necessary that she be interviewed a second time to confirm her account and that her evidence was in fact one of the two "clinchers" as it were, the other being the photographs of Dr Fredericks' injuries (the latter particularly so for Mr Clout.)

524. I remain convinced that Dr Camaris did in fact come out of her office, (even if only to stand in her doorway) and did see some of the incident, even if that was only after the initial bumping and what she initially heard, and may then have retreated back to her office. I am also not convinced that Dr Fredericks would really have been in a position to be aware of whether or not Dr Camaris was in the corridor for the whole time during the incident, particularly when she was defending herself (as she said she was) from Dr Samaraweera's punching (and thus focusing her attention on her) and even more so when Dr Samaraweera raised the tray and struck her (again, as she said she did). I consider it somewhat unlikely that she would have been able to have Dr Camaris in her vision whole time even if she had been in the corridor the whole time particularly when you consider where in the corridor this incident took place (between Dr Tobias' and Dr Sugo's offices) relative to Dr Camaris' office (which was on the other side of Dr Samaraweera's office)

525. The only reliance I place on this scenario is that it does not lead me to question the credibility of Dr Fredericks' evidence as a result of the otherwise contradictory evidence.

526. In further considering whether there was the possibility/probability that Dr Camaris did see some of the altercation, on the one hand if she had seen Dr Fredericks attack Dr Samaraweera then I have no doubt whatsoever that she would have very readily come forward and said so in, both her interview with Ms Savage and her evidence to this Commission. This possible scenario was discussed with Mr Saunders during submissions (who adopted it very readily). However, as I also went on to suggest in that exchange, the converse would equally be true, if not even more probable, that if Dr Camaris did see Dr Samaraweera attacking Dr Fredericks she would not be prepared to come forward and say anything because of her support for her and also because she would not want to faced with the possibility of losing another senior pathologist, Dr Fredericks having already submitted her resignation.

527. I also found Dr Camaris a somewhat unsatisfactory witness, very reluctant and reticent to give evidence (and many conversations or parts of conversations referred to in other evidence she could not recall) and had already formed much the same views as subsequently relayed by Ms Savage when she came to the Commission to give evidence some one month after Dr Camaris. There is also no doubt that she was hardly even handed and impartial in her subsequent action. She contacted Dr Samaraweera by phone twice to enquire as to her welfare and give her advice (going to see A/Prof Wilson, taking photographs etc.). No such concern was displayed towards Dr Fredericks or any enquiry made as to her welfare.

528. Evidence that I did find reliable, and do rely on, is that of Dr Crouch, and that was evidence that was not before Ms Savage. He certainly told Ms Savage that Dr Fredericks had shown him an "abrasion on her lower right arm with the skin broken" and this was immediately after the incident. However he did not tell Ms Savage what he subsequently put in his second affidavit and that was that when she showed him the abrasion she said that "Ushma hit me with a tray". Indeed, he told Ms Savage when asked, that she didn't say anything about what had happened (his response to the question she asked him was "no").

529. That also accords with what Dr Fredericks accused Dr Camaris of seeing - Dr Samaraweera hitting her with a tray, and would be consistent with her belief that Dr Camaris was in the corridor at the relevant time. It would be a bizarre accusation to make if she had not seen Dr Camaris until after the altercation was over. This was also what she told A/Prof Wilson, who was also shown the "obvious swelling" to her right arm occasioned by the strike with the tray.

530. However I do find Dr Fredericks' evidence about how Dr Samaraweera punched her with the tray to be somewhat improbable and the number of punches seem somewhat exaggerated. But I find Dr Samaraweera's account even more improbable. I also note that neither of the doctors mentioned punching to A/Prof Wilson. Even though both Dr Samaraweera and Dr Joshua (her husband ) say this was mentioned to him, and Dr Fredericks thought that she would have mentioned it, I just cannot believe that if punching was mentioned (in either interview) it would not have been noted by him as that would have been a very significant and unusual action to have taken place by such professional staff members.

531. Without clear evidence it would be quite improper for the Commission to indulge in speculation about alternative versions of what may or may not have happened during the altercation in the light of the conflicting evidence.

532. In determining whether or not the allegations against Dr Samaraweera have been proven there are three matters upon which I rely.

533. Firstly, when comparing overall the evidence of Dr Fredericks and Dr Samaraweera and their respective demeanour in the witness box, I prefer the evidence of Dr Fredericks to that of Dr Samaraweera. Further I do not think that there has been sufficient evidence put forward that would establish that Dr Fredericks had some overwhelming grudge or complaint against Dr Samaraweera or any previous violent behaviour, to justify a quite out of character physical attack by her.

534. I also acknowledge that it was also quite out of character for Dr Samaraweera to attack another member of staff such as Dr Fredericks, however I consider that she was far more likely to have held a grudge against, and resentment of, Dr Fredericks and just "snapped" in response to what she thought was a deliberate bump. I arrive at this view based on all the evidence - Dr Samaraweera's oversensitive nature (in my view); other incidents where she was on the receiving end from Dr Fredericks about specimens and clearly resented that; and the way she viewed Dr Fredericks, Dr Reeves, Dr Edwards, Dr Cooke-Yarborough.

535. I do not accept that Dr Fredericks could have broken the tray in the course of simply trying to punch Dr Samaraweera and not suffered some visible injury to her right hand as a result, and an injury which would have subsequently been readily observable by Dr Crouch and A/Prof Wilson and further and more crucially, which would have also shown up in her photographs. There was no evidence that Dr Fredericks struck at Dr Samaraweera using her arm and forearm and thus hit and broke the tray.

536. Mr Saunders also relied on the fact that as Dr Samaraweera was right handed and any blows from her left hand (if made) would have been weak and not have resulted in the bruising sustained by Dr Fredericks, leaving the injuries to have been caused by Dr Fredericks striking at Dr Samaraweera and hitting and breaking the tray with her right forearm and lower right arm.

537. However, it would also in fact be logical, and indeed a more probable explanation in my view, in being right handed, for Dr Samaraweera in the course of turning around to confront Dr Fredericks after the initial bump, to have shifted the tray from both hands to her right hand (this may possibly have necessarily involved reversing the position of the tray) and thus used that dominant hand to punch at Dr Fredericks with the tray and then raise the tray to strike her.

538. I accept Dr Fredericks' evidence that she had her arm above her head in a defensive position and was struck with the tray by Dr Samaraweera, which explains the injuries that she subsequently showed to others and also had photographed.

539. In this I rely not only on the evidence of Dr Fredericks but also Dr Samaraweera's evidence . In cross examination the following relevant exchanges took place with Dr Samaraweera:

Q. And then you say Dr Fredericks began to punch you?

A. Yes.

Q. And that she punched you six or seven times around your other arms?

A. Yes.

Q. And all the time she was doing this, you had the tray in front of you?

A. Yes.

Q. And at some point she punched the tray and it broke into multiple pieces, sharp pieces and fell to the ground? A. Yes. ...................

...................

Q. And was it more your right arm or more your left arm that was

punched?

A. What I tried to do at that point, because I was holding the tray up, as I was trying to intercept her punches, so she was trying to get around the tray and I was moving the tray to try and block where she was coming from. In terms of the actual contact with my arm, obviously I couldn't block every single punch and she did make contact with my right arm definitely and I think my left arm, but the bruising was more on my right arm.

Q. I see. So if your right arm was the one that received the punching that caused bruising, is that the arm that received most of the punches, is that correct?

A. Both arms did receive punches, but that was the one that received the hardest punch that was the bruise. I think I managed to intercept most of the ones that were coming on the left-hand side.

Q. And that was caused by Dr Fredericks' left hand or right hand?

A. Left hand.

Q. I see. Do you recall which hand broke the tray?

A. Her right hand.

Q. Her right-hand?

A. Yes.

540. In my view the significant bruise near Dr Fredericks' right fore arm could not have been made as a consequence of the initial bump and contact with Dr Samaraweera's elbow given the height difference between the two women (as suggested by Mr Saunders ). I also do not consider that the height difference between the two women (17 cms or 7 inches) meant that it was impossible for Dr Samaraweera to have been able to reach Dr Fredericks with the tray. Dr Fredericks' evidence was that Dr Samaraweera had her arm extended and swung at her and with such an action she could clearly have made the contact alleged in spite of the height difference.

541. I acknowledge that Dr Samaraweera's photographs also show the cuts to her right thumb and what could only be described as a minor bruise to her upper right arm. However those cuts could have been, and in my view were, sustained while she was holding the tray and it broke in the course of her striking at Dr Fredericks. The bruise could have been caused by the initial bump, or, it is conceded, if Dr Fredericks had indeed punched her at some stage.

542. However for me the respective photographic evidence overwhelmingly favours Dr Fredericks, just as it was the conclusive issue for Mr Clout.

543. Mr Saunders maintained it was inappropriate for Mr Clout to form views about Dr Fredericks' photographs as he was not an expert and had no medical or forensic expertise. There was also issue made of the fact that they were taken some four days after the altercation.

544. If there was any issue as to the possibility that what was shown in the photographs was not caused by the altercation, then as Dr Fredericks said that immediately following her interview with A/Prof Wilson she went to see her GP at Randwick, records of that attendance and any notes (or indeed a report from the GP) could have been the subject of a Summons for Production.

545. It is not unusual in cases that have come before the Commission involving fighting that there is photographic evidence tendered by one side or another (or both) in support of respective cases. Those photographs usually speak for themselves and have corroborated the evidence in a particular case. It is also usual for such photographs to have already been relied upon by the relevant decision-maker involved in the dismissal of the employee/s.

546. The Full Bench in Burge, having concluded that Mr Burge's appeal should be upheld, conducted a separate review of the evidence below and in so doing had particular regard to the photographs of Mr Burge's injury, observing as follows:

22 . We would emphasise in that respect that the injury sustained by the appellant, so graphically demonstrated by the photographs of his face, neck and hands taken shortly after the altercation, amply demonstrated consistency only with his account of the fight but not that given by Mr Usher. It must be observed that this aspect, which we think to be significant objective evidence , was never referred to by the commissioner in his reasons (notwithstanding the reasonably substantial submissions put by the parties as to those issues at first instance).............. the injuries sustained by Mr Usher, abrasions to the knuckles on his hands, compared to those sustained by the appellant was entirely consistent with him being the sole aggressor as was his observed highly emotional state at the time. (emphasis added).

547. Having carefully considered the relevant evidence and mindful of the requisite tests to be applied, I make the following positive findings:

• There was an initial bump between Dr Fredericks and Dr Samaraweera as they passed each other in the corridor. (The bump was more likely to have been accidental contact).
• Dr Samaraweera did call Dr Fredericks "a fucking bitch" at some stage of the altercation (more likely as a response to the initial bump).
• Dr Samaraweera struck Dr Fredericks with an empty black plastic A4 filing tray hitting her right arm which was being held by Dr Fredericks in a defensive position to avoid being struck on the head. The tray broke as a result of coming into contact with Dr Fredericks' arm.
• During the course of this strike Dr Fredericks sustained a significant bruise to her right forearm and an abrasion to her lower right arm.
• Given that I have accepted the evidence of Dr Fredericks and rejected that of Dr Samaraweera in respect of the striking with the tray it follows that it is probable that Dr Samaraweera also punched Dr Fredericks with her left hand and the right hand which was holding the tray.

548. This action on the part of Dr Samaraweera was clearly misconduct and thus the first question posited by Sams DP in Natoli is answered in the affirmative.

549. I find that SESIAHS have discharged the requisite onus applicable under the cases cited above to establish that misconduct on the part of Dr Samaraweera did take place.

550. Such action by Dr Samaraweera against Dr Fredericks was also clearly contrary to SESIAHS Policy (and indeed would be contrary to acceptable standards of conduct in any workplace) and was of such seriousness as to warrant dismissal. Thus the second question posited in Natoli is also answered in the affirmative. It would also follow, in the light of Dr Samaraweera's clear breaches of SESIAHS Policy and Code of Conduct (as referred to in the letter of dismissal from Mr Clout) that such action could be considered a fundamental and wilful repudiation by her of her employment contract in answer to the third question posited in N atoli.

551. As rightly pointed out by Ms Brus it is well established that fighting in the workplace is misconduct and grounds for dismissal, usually on a summary basis - see G J Coles v SDA and the relevant observations of Moore J in AWU-FIME Amalgamated Union v Queensland Alumina Limited :

...whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that, in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations, such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self defense...

552. I also note the following observations of Connor C in Graham:

25 I consider there to be three possible defences in a claim of unfair dismissal based on an established incident of fighting at work, viz:

(i) where the employee was doing no more than defend himself and was not himself the aggressor (in which case I believe that he would have a total defence from the allegations levelled against him);

(ii) where the employee was provoked into a fight by the other party (in which case that provocation may constitute a mitigating factor to take into account when assessing whether his dismissal was there unfair); or

(iii) where the employer is not even handed in his approach, ie disciplining one employee for fighting but not similarly disciplined the other employee, provided of course that the other employee is equally culpable (in which case it would possibly be a factor in assessing the fairness or unfairness of the dismissal of the employee who was actually disciplined).

553. In my view there were no actions on the part of Dr Fredericks that could possibly be held to justify the actions of Dr Samaraweera against her.

554. It is clear that ASMOF, on behalf of Dr Samaraweera, in responding to the show cause letter of 5 December, raised a number of matters for the decision maker Mr Clout to take into account before arriving at a decision on whether or not to dismiss Dr Samaraweera. It is also clear from the letter of dismissal that notwithstanding those matters so raised that Dr Samaraweera's actions against Dr Fredericks were considered serious enough to warrant dismissal. It can clearly be said that the decision maker had taken mitigating factors that were available into account (the fourth question posited in Natoli ).

555. There is no doubt that Dr Samaraweera had an unblemished 11 year work record with SESIAHS and that her actions that day were by all accounts totally out of character. However that does not sufficiently mitigate against unprovoked physical violence involving actual physical contact with an object against a fellow employee. If only bumping and shoving with expletives had taken place then it might have been a different matter with a different outcome.

556. As indicated at the outset whilst the onus is on SESIAHS to establish that misconduct took place, and I have found that they have satisfied that onus and misconduct did take place, the onus then moves back to Dr Samaraweera to establish that, notwithstanding that finding, her dismissal was harsh, unjust and unreasonable and sufficiently so as to warrant the intervention of the Commission pursuant to s.89 of the Act.

557. The expression "harsh, unjust or unreasonable", was considered in Byrne . 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.

558. Bankstown City Council v Paris [1999] NSWIRComm 585; (1999) 93 IR 209, is authority for the necessity of the Commission making a positive finding as to whether a termination was harsh, or unjust, or unreasonable (or any combination thereof) and the grounds upon which the Commission so finds.

559. 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, with 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 wide, under each limb of the tripartite test, the dismissal was not an "unfair dismissal".

560. A dismissal can be both substantively and procedurally unfair. The case usually quoted in this regard is the High Court Judgment in Byrne .

561. In relation to procedural fairness that decision has also been relied on in numerous decisions of this Commission, and the parties have also referred the Commission in particular to Wang v Crestell and Antonakopoulos.

562. However just because misconduct is found, that does not mean that there cannot also be such procedural unfairness so as to warrant the intervention of the Commission.

563. Mr Saunders , on behalf of Dr Samaraweera raised a number of matters said to raise serious issues of procedural fairness in relation to both the investigation of the allegations against her, and the decision-making process undertaken by Mr Clout which principally may be summarised as follows:

• There was no investigation of the allegations made by Dr Samaraweera against Dr Fredericks, only into the allegations by Dr Fredericks against Dr Samaraweera and this tainted the whole investigative and decision-making process.
• Dr Samaraweera was not provided with any of the documentation including photographs and transcripts of interviews that were relied upon by both the investigator and the decision maker. This was said to be contrary to SESIAHS policy.
• Dr Edwards was interviewed before Dr Samaraweera and she was not subsequently told about what Dr Edwards maintained she saw and heard.
• Although Ms Savage found both allegations sustained, Mr Clout in his evidence indicated that he did not rely on the first allegation (that of punching), only the second allegation (striking with the tray). This was not how the letter of dismissal was expressed nor had this been raised in the Employer's Reply document and Dr Samaraweera was disadvantaged in the preparation of her case by not being advised that the first was not relied upon by SESIAHS.

564. It is difficult to see how the allegations made by Dr Samaraweera against Dr Fredericks could in fact have been pursued by SESIAHS in any meaningful way given that as from 20 September 2009 she ceased to be an employee as a consequence of her resignation which was effective from that date. Indeed, if Dr Fredericks had not been prepared to attend the interview with Ms Savage on 7 October 2009 as a result of which specific allegations against Dr Samaraweera were formalised in writing and subsequently conveyed to her, then it is hard to see how Dr Fredericks' verbal complaint to A/Prof Wilson could have been taken any further.

565. The complaint made by Dr Fredericks against Dr Samaraweera to A/Prof Wilson that was subsequently formalised into written allegations was not done either at the behest or initiation of Dr Fredericks who made it clear in her note to A/Prof Wilson, as sent with the photographs on 10 September, that - "I have left now and you will not hear from me again".

566. Having said that, there is no doubt that at the outset of the interviews undertaken by Ms Savage she generally (but not in every case) indicated to interviewees that "this is a process that is being looked into following a complaint by Dr Susan Fredericks about Dr Ushma Samaraweera (although I have only seen those transcripts of interviews referred to in the Background and Chronology above) and she did not mention that there was also a counter complaint by Dr Samaraweera.

567. In hindsight this probably should have been done, if only for abundant caution and to avoid any suggestion of bias (as has now been raised). However having carefully considered in some detail those interview transcripts that were before the Commission I am satisfied that Ms Savage did indeed ask open ended questions and did not refer in any way to the specifics of the complaint made by Dr Fredericks against Dr Samaraweera and conducted the interviews in a fair and unbiased way and with a genuine attempt to elicit any available information.

568. It would also have been common knowledge in the relatively small Unit that an incident had taken place between Dr Samaraweera and Dr Fredericks on the morning of 3 September 2009 and this was an incident that was the subject of discussion (and probably gossip) by various staff members in the days following that incident.

569. I do not consider that the fact that it was only the complaint of Dr Fredericks that was being investigated "skewed" the investigation in favour of Dr Fredericks. If those persons who had either seen or heard anything relevant about the incident between the two doctors then the questions asked were designed to elicit any such information that a staff member had. It could hardly be said that as a result of being told that a complaint by Dr Fredericks against Dr Samaraweera was being investigated that the evidence was given by Dr Crouch and Dr Camaris was skewed in Dr Fredericks' favour.

570. Dr Samaraweera was at that time represented by her Union, ASMOF, who were also present during her interview with Ms Savage as well as the interview with Dr Camaris. If it was considered that the interviews were proceeding in an unfair and biased way and that Dr Samaraweera's allegations against Dr Fredericks should have been separately investigated then that could have been raised at any time by either Dr Samaraweera herself or by ASMOF.

571. Issues of procedural fairness have now been raised on her behalf (Mr Clout being "inclined to accept" Ms Savage's report) yet there was no complaint made (nor was it even mentioned) by ASMOF in their letter of 10 December to Mr Clout that there had been no investigation of Dr Samaraweera's allegations or that to only investigate Dr Fredericks' allegations was procedurally unfair.

572. If ASMOF were concerned that any stage of the investigative process or indeed, prior to the decision being made, that it was unfair or something untoward had occurred, then a dispute could have been notified to this Commission. It has not been uncommon over the years for unions to notify disputes to this Commission concerning disciplinary investigations into a particular member prior to a final decision being made about that member.

573. I do not accept that there would have been a different outcome had both allegation and counter allegations been investigated. I do not consider that it would have changed the evidence given by the various witnesses interviewed by Ms Savage or that necessarily any information not forthcoming in the interviews would have suddenly been provided. I am satisfied that Ms Savage elicited what information was available, or indeed the information that some staff members were prepared to make available. I do not consider that any reluctance to provide information and become involved would necessarily have changed if the allegations by Dr Samaraweera against Dr Fredericks were also being investigated at the same time.

574. As far as provision of documents is concerned I agree with Ms Brus ' submission that SESIAHS policy does not provide that such documents must be given to a person against whom allegations have been made. The policy just does not go that far. Thus there was no obligation on SESIAHS to provide a copy of Dr Fredericks' photographs without a specific request for such, and such a request was not made (only a complaint that they were not provided).

575. The requirement under the Policy is quite clear. It is to allow access only, with the onus then on an individual employee and/or their union to request of the employer the opportunity of approaching to give effect to that access to obtain copies or to viewing relevant and required documents. Even then the Policy makes clear that it only relates to documents relied upon by the decision maker.

576. In this matter Dr Samaraweera and ASMOF would have been well aware of just who was interviewed as Ms Savage's Report makes that quite clear . The evidence of the various doctors relied upon is summarised in point form and reference is made by way of a footnote to the names of Laboratory Staff interviewed. They would also have been aware that transcripts of the interviews were made. If copies of other transcripts of interviews were sought then they could have been asked for by ASMOF on Dr Samaraweera's behalf, as could any other document thought relevant (such as the photographs). However it could not be said that Dr Samaraweera was not aware of the essential facts/information to come out of those interviews given the summary contained in Ms Savage's Report.

577. The only person not so listed in the Report was Dr Sugo. Ms Savage indicated in evidence that she did not rely on what Dr Sugo told her. Much was made of this as being a significant oversight. I did not find it so. The only useful corroboration provided by Dr Sugo was that she heard Dr Samaraweera say "You fucking bitch" and that does not assist in determining whether or not Dr Samaraweera struck Dr Fredericks with the tray. Other words she reported I have already indicated would have related to the later exchange in the corridor between Dr Fredericks and Dr Camaris (and what was said by Dr Samaraweera as she left the Unit).

578. I would readily agree that If Mr Clout only relied on the second allegation (striking with the tray) as grounds for dismissal then that should have been clearly stated and the basis given for not relying on the first allegation in light of the positive finding that had been made about that allegation by Ms Savage. Having said that however I do not see how that is a denial of procedural fairness or would have made a great deal of difference to the nature of the case required to be put on by each side. There was still a finding of misconduct warranting dismissal, the whole of the altercation and any relevant background still needed to be explored and the onus and burden of proof tests would not have changed. The only consequence may have been that there might not have been the necessity to in effect chase quite as many rabbits down rabbit holes with respect to the conflicting evidence.

579. As to the issue of Dr Edwards being interviewed before Dr Samaraweera there was no evidence that this was deliberately contrived. Indeed it would have been logical to interview Dr Samaraweera after all other interviews had taken place. It is clear that Dr Samaraweera was interviewed on the last day of such interviews along with Dr Camaris and Dr Sugo (see Background and Chronology above). It is also clear that, with the exception of what Dr Fredericks as the person making the allegations said so that those very specific issues could be responded to by Dr Samaraweera, no detail of any information elicited from other persons interviewed before Dr Samaraweera was given to her (Dr Cooke-Yarborough, Dr Crouch and possibly some of the Laboratory staff). None of the other persons interviewed were given any detail about what Dr Fredericks said.

580. The process seems to have been conducted in a similar matter to many, many others that I have encountered over the years in matters that have come before me particularly in the public sector.

581. Although I have often commented to employers that my preference would be to have an investigative process where perhaps the person complained about is interviewed immediately after the complainant, and then any other relevant persons are interviewed and then a second interview takes place of both the complainant and the person complained against, once all available information has been gathered and then any conflicting or unresolved issues can then be tested out with both parties. That would obviously lengthen the process and may also raise issues of problems concerning confidentiality of information/witnesses. I stress that it is a personal view about such a process only.

582. However when an issue of procedural fairness is raised what must be considered is whether the defect complained about is of such substance that it could have in fact materially affected the final outcome and thus could clearly be said to have produced an unfair or questionable result.

583. With specific regard to the issue of the interview of Dr Edwards, given the conflicting evidence between Dr Fredericks, Dr Samaraweera, Dr Camaris, Dr Edwards and Dr Cooke Yarborough about who was present in the corridor and when at any relevant time, I remain unconvinced that if Dr Samaraweera had indeed been aware that it was being alleged that Dr Edwards had seen her "swatting" at Dr Fredericks (with Dr Fredericks holding her arm over her head in a defensive position) that it would have made any difference to her responses to Ms Savage.

584. I do not see how Dr Samaraweera could really conclusively say that Dr Edwards could not have seen her at any time when she was not facing Dr Edwards direction but was facing Dr Fredericks in spite of her evidence. She may have been able to say that she did not see Dr Edwards when she turned around and went back to her office but by that stage Dr Edwards may have been back in her office. This is of course speculation. In any event Dr Samaraweera has consistently denied striking at Dr Fredericks and having Dr Edwards say something to the contrary I don't believe would have changed matters for Dr Samaraweera. I also don't believe that, given the direction Dr Samaraweera was facing with her focus and attention on Dr Fredericks, that any denial she made about Dr Edwards being able to see what happened could have assisted Ms Savage's consideration of what had actually happened and who had hit who, and therefore undermined any reliance she placed on Dr Edwards' evidence. Certainly it may have prompted Dr Samaraweera to give more information about any issues she believed existed between herself and Dr Edwards but that may only have led to Ms Savage being more cautious in how she dealt with the conflicting evidence. In the long run that may just have meant that it would have been a judgement call weighing Dr Fredericks' word against Dr Samaraweera's word and vice versa .

585. It should not be overlooked that the determinative factor for the decision maker was in fact not the totality of Dr Edwards' evidence (only that Dr Fredericks was observed holding up her arm in a defensive motion) but the photographic evidence of Dr Fredericks' injuries, as dealt with above.

586. Having carefully considered the issues raised on behalf of Dr Samaraweera concerning procedural fairness I am satisfied that a fair and unbiased investigation took place, Dr Samaraweera was well aware of the allegations against her, had the opportunity of responding to those allegations verbally and in writing and of making representations to the decision maker before a final decision was made and throughout this process she had the support of her union, an experienced, and competent industrial organisation well versed in both Area Health procedures and this jurisdiction. There was an insurmountable practical obstacle to the investigation of Dr Samaraweera's allegations against Dr Fredericks (she was no longer an employee and as such no disciplinary action could have been taken against her even if such were to prove warranted). That only the allegations against Dr Samaraweera were investigated did not automatically skew the investigation in Dr Fredericks' favour as I am satisfied that questions were asked by Ms Savage in an open ended way and were designed to elicit whatever relevant information an interviewee had to put forward about the altercation that day.

587. Therefore, in summary, I do not find that there was procedural unfairness in relation to the dismissal of Dr Samaraweera and as such given the gravity of the misconduct I do not find that Dr Samaraweera's dismissal was unjust or unreasonable in the circumstances.

588. However that still leaves me with the task of determining whether or not in all of the relevant circumstances dismissal was too harsh a penalty to have been imposed.

589. The issue of harshness and the task required to be undertaken in assessing whether a dismissal was too harsh a penalty, notwithstanding a finding of misconduct, was considered by the Full Bench in Department of Health v Perihan Kaplan [2010] NSWIRComm 65 as follows:

27 The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" ( Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ( 'Little ') stated:

The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act.

28 This conclusion must also follow from the very meaning of the concept of "harshness" within s 84(1). The words "harsh, unreasonable or unjust" in s 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at [467] ( "Byrne" ), per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account.

29 We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows:

In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.

590. It is without question and beyond doubt that Dr Samaraweera had a totally unblemished 11 year work record with SESIAHS and was a very competent and professional Staff Specialist.

591. It is also quite clear that her actions on 3 September 2009 were totally out of character and whilst an out of character action set against a lengthy unblemished work record can result in a dismissal being considered too harsh and disproportionate a penalty (see Cockayne v Hurstville City Council [2009] NSWIRComm 1013), those matters do not of themselves, in my view, sufficiently mitigate against the very serious nature of the misconduct of Dr Samaraweera which I have found did take place and did warrant dismissal.

592. Extreme concern has been expressed on the part of Dr Samaraweera in relation to her ability to obtain further employment in an NSW Area Health Service as a pathologist notwithstanding the widely acknowledged shortage in these proceedings of pathologists in both the public and private sector.

593. The basis of this concern is her placement on the NSW Health Service Check Register. It should be said however that as at the date of the hearing her placement on such Register operating as a barrier to further employment had not been tested out by Dr Samaraweera in any way .

594. I also note that the Policy Directive - Service Check Register for NSW Health Services PD2009_004 specifically details under '1. Policy Statement':

Inclusion on the register does not automatically preclude a person from employment or appointment. The role of the SCR is to alert staff involved in recruitment and disciplinary processes to the existence of previous matters that may be relevant when making an offer of employment or appointment or when finalising a disciplinary process.

595. Notwithstanding the comprehensive Policy which sets out clear guidelines and provisions for its use and administration, I do have some concerns about how the particular form that is the Service Check Register Record (SCR) is set out. This form and the applicable Policy is of only a fairly recent implementation (no more than two years). There was no evidence before me of practical examples of how it has actually been operating within the NSW Health system.

596. There are drop-down boxes on the form in question (see Exhibit 2) which specify a range of 'risk actions' available (dismissed, suspended, etc.) with the appropriate box to be ticked. There are also drop-down boxes for 'Reason for the removal of an SCR', with a tick to be placed in the appropriate box (e.g. Investigation Finding - Not Substantiated etc.). However, as indicated in the Background and Chronology above, the SCR also indicates under the heading 'Creation of a Service Check Record':

"Creation of this SCR Record is based on a serious disciplinary matter involving an allegation which if proven involves a serious sex or violence offence (carrying a possible penalty of 12 months or more imprisonment) unsatisfactory professional conduct or professional misconduct as referred to in s117 of the Health Services Act 1997." (emphasis added).

597. There are no drop-down boxes which enable a specific selection to be made of exactly which of these four extremely grave and serious matters are actually applicable to the risk action then indicated below with respect to the particular person the subject of the SCR, leaving a reader to be entitled to consider that the person may have indeed committed a "serious sex or violence offence" etc., or "professional misconduct" rather than simply "unsatisfactory professional conduct". I would suggest that if one was rating those four matters in order of gravity then "unsatisfactory professional conduct' would be at the bottom of the list and not necessarily viewed with the same concern or have the same adverse implications as the other three matters.

598. The second page of the SCR does provide for the specification of an 'Area Health Service Contact' which would presumably allow for more detailed and relevant information to be obtained about a particular person such as their work record, any disciplinary history etc., and whether or not the issue involved carrying out their professional medical duties in some inappropriate way.

599. The other problem I have with the SCR form is that the drop-down boxes concerning the risk actions do not seem to allow for the possibility of a resignation being accepted as the consequence of a disciplinary process. This contrasts with what occurs in relation to disciplinary actions applicable to employees engaged under the Public Sector Employment and Management Act 2002 pursuant to s.42(2), where an employee can be "directed to resign" or "allowed to resign" (and presumably records would reflect this). It also contrasts with 'Punishments in disciplinary proceedings' available to employees covered by the Transport Administration (Staff) Regulation 2005 which provides that one of the options is that an officer may be allowed to resign as an alternative to dismissal (Clauses 12 (2) and 28 (2)).

600. There is also no time limit in relation to the existence of an SCR although the Policy does provide for an application to be able to be made for removal from such Register.

601. I make no formal findings in relation to the SCR Record, that would not be appropriate as that was not a matter formally before the Commission. I simply draw my concerns to the attention of SESIAHS and NSW Health as to what may be perceived as shortcomings in the form that are perhaps worthy of further consideration and review.

602. Notwithstanding my concerns with the particular SCR form I do not consider that Dr Samaraweera's placement on the Register would in fact act as a barrier to further employment in another Area Health Service. She simply needs to test this matter out. There would certainly be no barrier to seeking alternate employment in the private sector. Given the acknowledged shortage of pathologists in both the state and private sector I do not consider that her future employment prospects have been seriously put at risk by the decision of SESIAHS to dismiss her from her employment.

603. Having carefully considered this issue I do not consider that there is a sufficient basis for concluding that in the circumstances the decision of SESIAHS to dismiss Dr Samaraweera was too harsh given the seriousness of the misconduct that did take place.

Conclusion

604. For the reasons set out above I have made findings that SESIAHS has discharged the requisite onus it bears and that misconduct did take place, the striking of Dr Fredericks by Dr Samaraweera with a black plastic filing tray; the penalty of dismissal was warranted and the dismissal in all the circumstances was not unjust or unreasonable. I have further found that in all the circumstances dismissal was not too harsh a penalty to be imposed for the misconduct that took place.

605. The application is therefore dismissed and these proceedings concluded.

Elizabeth Bishop

Commissioner

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Exhibit 1