Abboud v The State of New South Wale

APPLICANT: Mr Toni Najdov LEGAL REPRESENTATIVES: RESPONDENT: Ms Valentina Angelovska Mr Dushan Ristevski

JUDGMENT: - 40 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 22 April 2004 Matter No IRC02/7115 TONI NAJDOV AND MACEDONIAN AUSTRALIAN WELFARE ASSOCIATION OF SYDNEY INC Application by Tony Najdov re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2004] NSWIRComm 101

1 Mr Toni Najdov ('the applicant') was dismissed from his employment as a community settlement services worker by the Macedonian Australian Welfare Association of Sydney Inc. (MAWA) ('the respondent') on 22 November 2002.

2 The applicant had been employed in a full time capacity since 21 August 2000 under the terms of a staff employment contract and the Social and Community Services Employees (State) Award 333 IG 344 ('the Award'). His rate of pay was $731.00 per week. The applicant had been associated with the MAWA as a Board member or volunteer for four years prior to taking up full time employment.

3 On 13 December 2002 the applicant filed a claim for alleged unfair dismissal, pursuant to Pt 6 ch 2 of the Industrial Relations Act 1996 ('the Act'). It is relevant to note that another employee, Boris Tasevski, (who features prominently throughout this case) was dismissed at the same time as the applicant. Mr Tasevski filed an unfair dismissal claim, which was allocated to the Commission as presently constituted (Matter IRC02/7122). In view of the circumstances of both dismissals, it seemed appropriate that the two applications be listed at the same time.

4 Both dismissals were said to have been as a result of misconduct surrounding allegations of sexual harassment made against Mr Tasevski. However, as the case progressed, the respondent also relied on claims of poor work performance against Mr Najdov.

5 At directions and conciliation proceedings on 4 February 2003 the two applicants were represented by Mr J Roskov (Solicitor) and the respondent was represented by Mr L Ristevski (Solicitor). Following preliminary submissions, the Commission chaired unsuccessful conciliation conferences with the parties. As a result, the Commission made a finding of unsuccessful conciliation and listed both matters for arbitration. Directions were issued in preparation for the hearing. The dates set for the arbitration in May 2003 were subsequently vacated due to the late filing of the respondent's evidence. New dates were set for November 2003 and my earlier directions were amended accordingly.

6 At this juncture, I note that on the first day of hearing, Matter IRC02/7122 was settled and a deed of release was tendered in the proceedings with consequential consent orders made by the Commission. On the same day, further efforts at conciliating Mr Najdov's claim were attempted, but proved unsuccessful. Mr Najdov's claim thereupon proceeded to hearing with both parties dispensing with their legal representation.

7 The MAWA was established in 1982 as a non profit welfare organisation for the local Macedonian community in Sydney. The organisation offers a range of welfare and information services which include youth and family services, domestic violence advice, aged care assistance, community settlement advice and counselling.

8 The organisation is managed by a Committee made up of the President, Vice President, Secretary, Treasurer and volunteer committee members. The day to day management of the MAWA is through the Coordinator/Counsellor, Mr Dushan Ristevski. At the time of the applicant's dismissal, the organisation had six full time employees, a number of voluntary employees and student work experience placements.

9 The MAWA's funding is derived primarily from Government grants, particularly through the Department of Immigration, Multicultural and Indigenous Affairs ('DIMIA'). As would be expected, approval for funding requires strict reporting and accounting regimes to be observed.

10 During the case, evidence was sought to be addressed concerning allegations of illegality with the voting procedures at the MAWA's Annual General Meetings. The applicant contended that the legality of his dismissal was doubtful because the Committee was not elected according to the Rules of the Association. However, as no conclusive evidence was brought about this matter and as it was not pursued with any vigour, I make no findings of the evidence about it, and I take the matter no further.

11 As stated earlier, the applicant's employment was governed by the Award and a staff employment contract he signed on 9 September 2002. That contract specified a term from 1 July 2002 - 31 December 2002. The applicant gave evidence that he worked a 35 hour week with flexible start and finish times. He also received a mobile phone allowance in order to be contacted after hours, particularly at times when he attended meetings.

12 There was an attempt by the respondent to characterise the applicant's employment as being for a six month fixed term and that his dismissal occurred at the expiry of the contract's term. To the extent that such a contention was pressed as a defence in this case, it is rejected. I do so for the following reasons: Firstly, the applicant had been employed in a full time capacity for two years and three months on various contracts of three or six months duration. Each contract was simply " rolled over ". In my view, the duration of the contract was irrelevant for the purposes of the applicant's employment and his expectations of continuing employment. Secondly, the work performed by the applicant was ongoing and did not evince any suggestion of being related to a specific task or project which ended after six months. Thirdly, in any event, the applicant was dismissed before the expiry of the contract term in December 2002, and Fourthly, on the respondent's own evidence, the reason for the applicant's dismissal had nothing to do with the expiry of the contract.

13 The applicant provided a primary affidavit and reply affidavit to each of the respondent's witnesses. The respondent's case relied on affidavits from: Nada Nalevski - Member of Management Committee Roza Georgieva - Member of Management Committee Slavica Risteska - Youth and Family Worker Katerina Cvetanoska - Work Experience Student Astrid Perry - Co-ordinator of the St. George Migrant Resource Centre Lidija Sestakova - Member of Management Committee Gorjana Milosevski - President of the MAWA Valentina Angelovska - Secretary of the MAWA Dushan Ristevski - Coordinator/Counsellor of the MAWA Dragan Cvetkovski - Boyfriend of Katerina Cvetanoska

14 A convenient means of summarising the evidence is to refer to it in the context of the various issues raised during the proceedings. Those matters fall under the following headings: a) Allegations against the applicant of poor performance. b) Applicant's relationship with Ms Cvetanoska and other staff. c) Allegations against the applicant of interference in the investigation of the sexual harassment claim and breach of confidentiality. d) Disciplinary meetings with the applicant and procedural fairness.

15 At this juncture, I note the similarity of the affidavit evidence of all the Management Committee members; particularly that of Ms Nalevski and Ms Georgieva, whose affidavit evidence was identical in all respects.

16 Further, I note that the bulk of Ms Angelovska's and Mr Milosevski's affidavit evidence was identical to Mr Ristevski's evidence and that of the other Committee members. For this reason, I do not intend to repeat it.

Allegations against the applicant of poor performance

17 Mr Ristevski was the applicant's direct supervisor. He held regular meetings with the applicant every two weeks which were described as "supervision sessions." Mr Ristevski deposed that he had spent considerable time with the applicant discussing his work performance, conduct and disciplinary action in respect to: (a) Toni's repeated failure to attend planned supervision sessions. These failures left the Management Committee without any, or any adequate, feedback on the CSS program and Toni's work performance. (b) Toni's repeated failure to account for his work time and submit time-sheets and weekly plans by their required dates. These failures left the Management Committee without any, or any adequate, feedback for reporting, budgeting and funding purposes in respect of the CSS program. (c) Toni's repeated failure to 'repay' MAWA the 100 plus work hours he owed it on account of having worked, without MAWA's knowledge or authority, as an interpreter for private clients during MAWA time. As at 21 November 2002, Toni still owed MAWA in excess of approximately 80 work hours. (d) Toni's repeated failure to prepare and submit complete and timely reports to funding bodies and to commence, complete and report on "milestones" to those bodies (eg Commonwealth Department of Immigration and Multicultural and Indigenous Affairs). These failures jeopardised future funding for and the existence of the CSS Worker role. (e) Toni's repeated failure to register as a Migration Agent despite having completed the necessary training at MAWA's expense. Without such registration, Toni was unable to offer or give any migration advice and assistance to the very clients that were meant to be serviced by him as a CSS Worker. (f) Toni's repeated failure to lobby for the translation into the Macedonian language of, for example, the RTA Drivers Test Booklet and associated educational material and DIMIA Migrant Services Settlement booklet. These failures deprived MAWA clients of appropriate representation in essential community services. (g) Toni's repeated failure to address other areas including, but not limited to: punctuality for work and other commitments; work performance; complaints from Management, staff and clients; unaccounted absences from work of varying lengths; general record keeping; and the taking of time-in-lieu without prior notice and authority.

18 Five members of the Management Committee, Ms Angelovska, Ms Nalevski, Ms Georgieva, Ms Sestakova and Ms Milosevski all deposed that during 2001 and 2002 the Management Committee had many meetings to discuss the complaints deposed to by Mr Ristevski. I note that all the Committee expressed these complaints in exactly the same terms as Mr Ristevski (see para 17).

19 In oral evidence, Mr Ristevski said that the applicant was given formal and informal warnings about his work performance throughout 2001 and 2002. He believed the issues raised with the applicant were serious and justified summary dismissal. Mr Ristevski relied on various minutes of the Management Committee meetings and his own notes of the "supervision sessions." Mr Ristevski agreed the applicant was not present at the Management Committee meetings.

20 Mr Ristevski said the applicant was later informed of the outcomes of the meetings and was also formally warned in his supervision sessions. Mr Ristevski said that the reason why the applicant had earlier been given a three months contract was to monitor his performance. He said that the applicant had applied for two pay rises, but had been refused because of concerns with his performance.

21 Mr Ristevski confirmed that the only matter of concern in November 2001 was the applicant having a second job as a translator. This had been proven by an examination of the applicant's diary and from invoices for work allegedly done by the applicant which had been sent to the MAWA postbox. Mr Ristevski denied that the applicant's diary was taken out of his bag without permission. He said the diary belonged to the respondent and was on the applicant's desk in plain sight. Ms Sestakova said she believed the diary was the MAWA's property. I note that Ms Nalevski and Ms Milosevski said they had not seen the diary extracts at the time the applicant's second job was discussed in November 2001.

22 Ms Sestakova was asked about entries in the diary in which the applicant was said to be in two places at the same time. She agreed the applicant had only one warning about working a second job. Ms Sestakova had not been aware of other interpreting, the applicant had performed for the President's husband. Ms Sestakova had relied on the minutes of the Management Committee meetings, as she had been away for five months during 2002.

23 Ms Angelovska agreed it would be wrong to photocopy a personal diary, but this was not such a diary. In any event, Ms Angelovska said she had relied on other information, such as the invoices and her own noted experiences of the applicant going missing for long periods of time. She agreed the MAWA paid for mobile phones so that staff could be contacted outside the office.

24 As to the applicant's alleged failure to complete reports, Mr Ristevski agreed that the DIMIA consultant was new to the position and there had never been any issue between the applicant and previous DIMIA consultants. He agreed that the previous consultant had expressed positive views about the applicant's reports.

25 Mr Ristevski claimed that the applicant had been reminded many times to register as a Migrant Advisor, but he had failed to do so. It was his responsibility to arrange for registration.

26 Mr Ristevski agreed that the RTA did not believe there was a need for a Macedonian language driver's booklet. However he said that it had been the applicant's responsibility to try and change the RTA's opinion. He had failed to do so. Mr Ristevski believed that many clients had been disadvantaged by not having this booklet translated. He believed the applicant could have done more to get this project accepted by the RTA.

27 Mr Ristevski believed the applicant's performance was below average and he had received numerous informal warnings. He said the applicant received support and assistance from the Association, and in particular, Ms Angelovska. Mr Ristevski agreed it was sometimes difficult to complete reports on time. However, the applicant should have started his last funding report six months before he did so. Mr Ristevski conceded that the funding had been extended.

28 Mr Ristevski said the applicant had also failed to open letters and was advised to take a time management course, but he had refused to do so. Mr Ristevski did not believe that applicant played a significant part in securing Government funding. Everyone in the organisation had contributed.

29 As a member of the Management Committee for six years, Ms Nada Nalevski gave evidence that she had participated in Management Committee meetings that had discussed the applicant's performance. She could not recall the details, as she was involved in many community organisations. She believed the main reason for the applicant's dismissal was his conduct, harassment and breaches of confidentiality. She believed she had been harassed by him as a member of the Management Committee.

30 Ms Georgieva had been a member of the Management Committee for six years. She believed the applicant had been given more than one written warning. She referred to other warnings about time sheets, failure to do projects and a failure to meet milestones.

31 Ms Sestakova was the Committee's Vice-President and a member of the Management Committee for eight years. She claimed that there were many instances of the applicant being warned about his performance. She referred to the applicant's supervision sessions with Mr Ristevski as examples of the warnings. Ms Sestakova said the reason why the 2001 disciplinary letter included positive statements was to provide positive reinforcement.

32 Ms Sestakova said she had lost trust in the applicant around the time of the second job incident. She originally had a great belief he would be a good worker. He had been assisted when he needed it. She also believed the applicant became arrogant in his attitude to his work.

33 Ms Valentina Angelovska was the Secretary of the MAWA. She has had fifteen years' experience in community services, mostly at management level. She holds a Bachelor of Social Work and a Diploma in Alcohol and Other Drug Studies.

34 Ms Angelovska described many grievances with the applicant's performance and conduct. Ms Angelovska believed the applicant had admitted he was wrong to work a second job and agreed to pay back the "stolen" hours. This was the main reason for the letter of December 2001. She agreed this was the only written warning in 2001. However, Ms Angelovska said there had been many other issues of concern.

35 Both Ms Angelovska and Ms Milosevski said the reason why the letter included matters, for which the applicant was praised, was to offer positive motivation and support. However, Ms Angelovska said the applicant had received many other warnings from his supervisor. She agreed that these warnings had not been produced. Ms Angelovska relied on the minutes of the Management Committee of 5 July 2002 in which matters were raised about the applicant. She said the minutes were confidential, as they related to staffing issues.

36 Ms Angelovska did not know if the applicant had attended a planning day at the same time as his diary records a translator's job. She agreed she did not know whether the applicant had attended certain meetings.

37 Ms Milosevski was the MAWA President. Her affidavit evidence largely replicated that of the other members of the Committee. She did however, include a copy of an anonymous and threatening letter which she said she received on 23 January 2003. That matter had been referred to the Police.

38 Ms Milosevski denied any conflict of interest in that she now performs many of the duties the applicant had performed. She had not voted for his dismissal, in order to benefit herself. In fact, she went back three grades in order to help out the organisation.

39 Ms Milosevski said that she had relied on the supervisor's reports and the applicant's translating invoices when considering the applicant's second job in 2001. At the time, the applicant had been asked to explain and give names of persons working for him, but he wouldn't. Ms Milosevski was asked about various entries in the diary and the applicant's movements. She said the applicant was always late for meetings, he would sign his name and just walk out.

40 In re examination, Ms Milosevski drew a distinction between work and personal diaries. Work diaries assisted in situations where a person was absent so that any appointments could be handled by someone else.

41 The applicant replied to each of the performance allegations as follows:

42 From November 2001 he had attended all supervision meetings as required. He had always submitted time sheets and weekly plans by the required date; otherwise he wouldn't have been paid. The applicant said that since a new procedure had been introduced twelve months ago, he had always put his time sheets in on time.

43 The applicant had "repaid" all hours owed to the respondent as a result of performing some work as an interpreter. The applicant said that he did conduct interpreting services, but only during his personal time in lieu. He had agreed to pay back the hours, as he had been concerned he would lose his job. He claimed to have had only three or four translating jobs in twelve months. The applicant said that, in any event, he would have worked more than 100 hours in unpaid overtime. The applicant explained that diary notes of interpreting jobs were for other persons he employed through his private company.

44 The applicant said in August and September 2002 he provided interpreting services for Ms Milosevski's husband with Management's approval. The applicant had invoiced Mr Milosevski's solicitor. The applicant agreed he had been paid for eight hours, but had worked six hours for the MAWA on one of these days. The applicant recalled one occasion where Mr Ristevski had asked him to do an urgent interpreting job during work hours. He had also done other work for Mr Ristevski and not been paid.

45 The applicant agreed that the November and December 2001 letters also concerned non-attendance at supervision sessions and failure to submit timesheets. However, he said the only formal written warning he received was on 18 December and that related primarily to the undertaking of a second job. Moreover, the applicant pointed to the second paragraph which stated: Firstly, we would like to recognise the work that you have achieved in the last 12 months. We particularly acknowledge the work you have done in promoting Macedonian Cultural Days, supporting groups, participating in submission writing, linking with Macedonian organisations/groups, and meeting your milestone requirements. But the focus of our concerns are on conduct (which is a serious matter) and on accountability. He claimed this warning obviously did not relate to his performance. 46 The applicant agreed that other concerns were raised in an earlier letter, but they had been addressed and not pursued. The applicant deposed that he had never seen the policy procedures manual, but he was generally aware of the respondent's policies. The applicant was also asked about 34 hours work for SBS on 23, 25 and 27 October 2002. The applicant said payment would have been sent to the respondent and he would have claimed time in lieu. However, he had been dismissed before he could do so.

47 He had never been told of any concerns with submitting reports to funding bodies or milestone reports. All reports had been provided to Management by the due date. In any event, the applicant said it was the Management who signed off on all reports and projects.

48 In oral evidence the applicant was shown a letter from a DIMIA consultant, Lynette Jackson, concerning a report he had prepared. The letter said in part "the report is very detailed and clearly demonstrated that the organisation is overall achieving good outcomes." The applicant said that Ms Jackson had sought clarification of certain issues because she was new to the position.

49 The applicant was asked about a project for isolated women in Richmond. He said that he couldn't recall if a progress report had been completed.

50 Management was responsible for ensuring his registration as a Community Migration Agent. He had completed all the administrative and legal requirements in October/November 2001. He gave evidence that the respondent had failed to register him. The respondent was required to place public advertisements proposing him as an agent.

51 It was not his responsibility to lobby organisations. He had in fact raised the issue of a Macedonian language drivers' booklet with the RTA, but the RTA had not considered it as a priority.

52 He had not been warned verbally or in writing about his work performance and was not aware of any complaints from the MAWA management, staff or clients. Rather, he said he had always enjoyed a "great rapport" with his colleagues.

Applicant's Relationship with Ms Cvetanoska and other Staff

53 Ms Katerina Cvetanoska commenced a student placement at the MAWA in September 2002. Much of her cross examination dealt with her association with Mr Tasevski and the allegations against him. For reasons already expressed and in Ms Cvetanoska's interests, I shall not refer to this evidence.

54 Ms Cvetanoska said she had returned from the Rockdale Plaza on her first day of placement very distressed about what had happened. She could not recall speaking to the applicant or a Ms Slavica Risteska. She denied asking the applicant not to tell Mr Tasevski about her discussion of sexual matters with him. Ms Cvetanoska said she reported the Rockdale Plaza incident to Ms Angelovska some time later. She had not done so immediately because this was her first field placement for her university degree. She had not discussed the matter at any time with her supervisor.

55 Ms Cvetanoska deposed that at the beginning of her work placement her relationship with the applicant was fine. He had helped her with her work. However, she said it all changed when the complaints were made against Mr Tasevski. Ms Cvetanoska claimed that she began to feel the applicant was acting inappropriately after she had complained about Mr Tasevski. She said that the applicant had once said, "if I step on your cigarette that means I will dream of you naked."

56 Ms Cvetanoska denied showing the applicant her bleeding pierced naval. At the time she said it had not been bleeding as she had been washing it with salty water four to eight times a day. She believed the applicant knew about he naval after she had shown it to Mr Tasevski.

57 Ms Cvetanoska denied discussing personal or sexual matters with the applicant. Ms Cvetanoska denied asking the applicant about performing certain sexual acts. She had not spoken to him about problems she had with her boyfriend's brother. She denied saying anything like this to Mr Tasevski and the applicant in the car park. She believed the applicant may have heard this from Mr Tasevski, as he was her boyfriend's cousin.

58 Ms Cvetanoska deposed that there had been an incident where she hit the applicant with her belt after he had flicked her with an elastic band. She had said, "serves you right."

59 Ms Cvetanoska was asked about an incident where she had been crying after criticism from her supervisor. She agreed the applicant had asked what was wrong and had been supportive. Ms Cvetanoska denied telling management that the applicant was extra nice to her and there was no inappropriate behaviour.

60 Ms Cvetanoska gave evidence about another incident in the car park when she was introduced to Mr Tasevski's brother who was described as a photographer. The applicant had been present and the three of them had been laughing and suggesting she pose nude or in lingerie and wear short skirts to work. She could not recall if she had later told the applicant that he was very nice compared to Mr Tasevski's brother. She denied asking him if Mr Tasevski's brother shot portfolio photos, as she already had a modelling portfolio. When asked why she didn't leave the car park she said she just wanted to finish a cigarette.

61 Some time later, Ms Cvetanoska said she went to see Ms Angelovska about her student placement and then "one thing led to another" and she told her of the sexual harassment by Mr Tasevski. Ms Angelovska said she had a duty to report the matter, but Ms Cvetanoska didn't really want it to go any further. She said she had not been pressured by anyone or forced to make a statement. Ms Cvetanoska gave evidence that she had a similar experience at a previous placement and did not want a second incident to jeopardise her university course.

62 Ms Cvetanoska denied apologising to Mr Tasevski for what she had done in reporting him to Ms Angelovska. She denied saying that Ms Angelovska had twisted everything around and had pressured her into complaining. She claimed it was the applicant who had said Ms Angelovska had twisted everything. He had said, "let's get rid of them. I'll get you a job here, we'll become the new MAWA."

63 It was Mr Ristevski's evidence that there was an occasion when the applicant told him Ms Cvetanoska naval was bleeding and she had cleaned it with swabs. Mr Ristevski agreed that the applicant had expressed concern and showed him the swabs. Mr Ristevski did not take the matter any further as there was nothing to deal with. It wasn't a big issue. Mr Ristevski agreed that Ms Cvetanoska had told him that the applicant was OK and had treated her well.

64 Ms Slavica Risteska was the respondent's Youth and Family worker. She gave evidence that she was present on 20 September 2002 with the applicant when Ms Cvetanoska approached them to complain about Mr Tasevski. Ms Cvetanoska asked them not to tell Mr Tasevski. However, the applicant had said Mr Tasevski was his friend.

65 Ms Risteska deposed that she could not recall any occasions when Ms Cvetanoska spoke about her private or sexual life in front of the applicant. She recalled their own numerous discussions of a personal nature, but they did not involve sex and were not in the presence of the applicant.

66 Ms Risteska could not recall any incident of inappropriate behaviour by Ms Cvetanoska. In oral evidence, Ms Risteska agreed that Ms Cvetanoska had told her that the applicant "was nice and careful with her." Ms Risteska agreed that the applicant was a good worker and had provided assistance to her from time to time.

67 Ms Astrid Perry provided a one page uncontested affidavit. Ms Perry worked at the St. George Migrant Resource Centre (MRC). The MAWA had it's offices at the Centre. Ms Perry recalled the occasion when Mr Tasevski insisted that he give Ms Cvetanoska a lift home. Ms Perry said Ms Cvetanoska appeared very quiet and shy and kept to herself.

68 Ms Angelovska said that when the applicant was asked whether he discussed personal or sexual matters with Ms Cvetanoska he had said: I don't have sex talks with her…, It's all her [Katerina's] fault. She wears provocative clothes and acts in a provocative manner. She has showed me her new belly button piercing. I've never met anyone in welfare who dresses the way she does.

69 Ms Angelovska said she had lost faith and trust in the applicant, particularly as she had offered him lots of support. Ms Angelovska agreed she had applied for the same position as the applicant in 2000. However, she had withdrawn her application and obtained a better paid job. She denied being upset that the applicant had got the job.

70 The applicant deposed that Ms Cvetanoska had told him that she and Mr Tasevski had spoken about her private and sexual life. He had told her that if Mr Tasevski had sexually harassed her, she should proceed with her complaint.

71 The applicant claimed he had never spoken to Ms Cvetanoska about her private life. It was she who had raised it with him. He referred to a conversation involving Ms Risteska and Ms Cvetanoska about the Rockdale Plaza incident. He said that Ms Cvetanoska was not upset and had explained how she and Mr Tasevski had gone to a shopping plaza and bought wine and a CD.

72 The applicant claimed that Ms Cvetanoska had never complained to him about Mr Tasevski's behaviour. He had told her that she shouldn't tell him what she and Mr Tasevski had discussed in private conversation. He didn't report these matters because she appeared "quite cheerful" and he didn't know the details.

73 The applicant referred to the incident in the carpark involving Ms Cvetanoska, Mr Tasevski and his brother. The applicant denied that the brother was introduced as a photographer of nudes. He denied conversations alleged by Ms Cvetanoska about posing in lingerie and her being asked why she didn't wear short skirts to work.

74 The applicant claimed he was not aware of any inappropriate behaviour by Mr Tasevski. He said he had never warned Mr Tasevski or covered up anything he had allegedly done.

75 The applicant said that on 18 November 2002 he had formally complained that management had not seriously considered or taken action about his concerns with Ms Cvetanoska's inappropriate behaviour toward him. He said that on two occasions in the previous two weeks, he had reported to management inappropriate behaviour such as: a) comments of a personal and sexual nature; b) uncomfortable language; c) uninvited physical contact; d) intentional exposure of private body parts (her pierced navel). 76 The applicant denied telling his supervisor that unless management dropped the allegation against Mr Tasevski he would make a sexual harassment complaint against Ms Cvetanoska. The applicant claimed Mr Ristevski told him that, "even if you put a complaint, it will not help you. You know the courts favour women."

77 The applicant described how he felt uncomfortable when Ms Cvetanoska showed him her bleeding pierced navel. While he didn't regard this as sexual harassment, he believed it was inappropriate behaviour.

78 The applicant was asked about another incident in which he claimed Ms Cvetanoska "whipped" him on the upper arm with her belt. He didn't appreciate what she had done.

Allegations against the applicant for interference in the investigation of sexual harassment claim and breach of confidentiality.

79 Mr Ristevski referred to a meeting of the Investigating Subcommittee. At the end of the meeting Mr Ristevski deposed to this conversation: Dushan: "This is an official warning as this is a serious matter. You are not to discuss this matter or this meeting with anyone, especially Boris, until our investigation is complete. This matter is to be kept confidential. You are also to refrain from approaching or intimidating Katerina in any way about her complaint. Do you understand this warning and agree to it?" Toni: "Yes, OK."

80 Mr Ristevski said that in the meeting with the applicant on 15 November 2002, the applicant was aggressive, arrogant and threatening. He acknowledged giving Mr Tasevski a report of the Investigating Subcommittee after having been given it by another employee. He had said he could do whatever he wanted, he was not happy with the investigation and that Ms Angelovska had forced Ms Cvetanoska to make false statements.

81 The Management Committee had decided to reprimand the applicant for his conduct and comments. Mr Ristevski agreed that the report had no signature, no letterhead and was not marked confidential. He agreed the document could have been authored by anyone, although three members of the Management Committee were named at the top of the document. Mr Ristevski said the applicant was given an opportunity to explain his actions and he did so.

82 Mr Ristevski said on 18 November Ms Cvetanoska told him that Mr Tasevski and the applicant had threatened and intimidated her in the car park that morning. They had said that unless she withdrew her complaint, the applicant would make a sexual harassment complaint against her.

83 Mr Ristevski said Ms Cvetanoska appeared visibly shaken, upset and confused and he had he sent her home. Two hours later, Mr Ristevski met the applicant and handed him a letter which was in the following terms: Dear Mr Najdov, Last Friday, 15.11.2002, while the members of the Management Committee were in the process of reviewing the findings of the Investigating Subcommittee regarding a sexual harassment complaint, you interfered in the process of investigation. The main areas of concerns are: a. The absence of your own loyalty to the organisation and the Employer b. Breaching of confidentiality c. Your insistence to hinder the investigative process against Mr Tasevski Last Friday, you were given confidential written material which concerned Mr Tasevski. You immediately made the decision to photocopy and hand the document over to Mr Tasevski. When you were asked at the meeting what authorization were you given to do so, your replay (sic) was: "Why not, he is my colleague, I can do what ever I want!" You further said that you did not agree with the process of investigation and accused our Secretary Ms Angelovska of being responsible for the creation of the present situation by stating the following: "You forced Katerina to make false statements against Boris". Although you were reminded that you should not interfere with the investigation process in which you were a witness, you continued with your aggressive behaviour and continued to blame and accuse other members of the Management. We are extremely concerned about this type of behaviour on your part and we demand a thorough written explanation as to true reasons for it by 5pm Wednesday, 20.11.2002.

84 Mr Ristevski said the applicant had denied discussing the matter with Mr Tasevski or Ms Cvetanoska. The applicant had said the investigation was unfair and if people said things about Mr Tasevski he would have plenty to say about others.

85 Mr Ristevski claimed he warned the applicant his behaviour would not be tolerated. Mr Ristevski said that at the end of the meeting the following exchange occurred: Toni: "If management doesn't drop the complaint against Boris, I will make a sexual harassment complaint against Katerina." Dushan: "That's blackmail. What's she done to you." Toni: "No, its not. I have a right to make a complaint against her. I've already told her about this." Dushan: "If she has really sexually harassed you, why have you not raised this before? It's your right to make a complaint, but you'll have to put it in writing. I'll give you some information about making a complaint."

86 Mr Ristevski said that the applicant was disloyal to the MAWA by interfering in the investigation. Mr Ristevski also believed that the MAWA had a twenty year reputation, which had been shaken by these events. It has caused a lot of problems within the small close knit community.

87 Ms Nalevski attended the 15 November Management Committee meeting. She recalled two other members of the Committee saying that they had seen Boris (Tasevski) talking to Ms Cvetanoska in the kitchen prior to the meeting. Vlade Grbevski had said he saw the applicant talking to her in the corridor.

88 Ms Nalevski said the applicant was aggressive, arrogant and threatening in the meeting. He had said he was unhappy with the investigation. He had said he could do what he liked with the confidential report and that Ms Angelovska had forced Ms Cvetanoska to make false statements. The Committee decided the applicant would be reprimanded.

89 Ms Nalevski and Ms Sestakova said that on 18 November, Mr Ristevski had told them that the applicant had threatened Ms Cvetanoska in the car park with a sexual harassment claim.

90 In oral evidence, Ms Nalevski believed the document from the Investigating Committee was confidential. It was an invasion of privacy for the applicant to have given it to Mr Tasevski. She agreed the document had no signature, no letterhead and was not marked confidential. She could not say it was a confidential document. She believed it was the author's responsibility to keep it confidential.

91 Ms Nalevski also raised the issue of the applicant's involvement in the Church and said he had been given several warnings not to get involved. She also believed the applicant was spreading rumours about the investigation. He had also visited her home two or three days after his dismissal to speak to her husband about the matter. The applicant had been trying to influence members of the Management Committee, including herself.

92 It was Ms Georgieva's evidence that there were no markings on the Investigator's report which disclosed it as confidential. She agreed at first sight it might be regarded as "a scrap of paper." She said however, that confidentiality had been breached when the applicant gave it to Mr Tasevski. Ms Angelovska had made a simple mistake of leaving the documentation on the photocopier.

93 Ms Georgieva also described the applicant's behaviour at the 15 November meeting as arrogant and threatening. She was stunned because she had never seen him behave like that before. She agreed the meeting was heated and Ms Angelovska was angry at being accused.

94 Ms Sestakova gave evidence as to what occurred at the 15 November disciplinary meeting in identical terms to other members of the Committee. However, Ms Sestakova had left the meeting early. Her affidavit evidence records both the applicant's demeanour and what was told to her by other unnamed persons.

95 In oral evidence Ms Sestakova agreed the confidential document had no signature, was not on letterhead and was not marked confidential. However, she said that the applicant had breached confidentiality by copying the document and giving it to Mr Tasevski. After being shown the minutes of the meeting, Ms Sestakova agreed that it did not say that the applicant had admitted photocopying the document, nor had she seen him or anyone else photocopying it. Ms Sestakova said the Committee had warned Ms Angelovska she should have been more careful with the document. In re examination, Ms Sestakova said it was not usual to have signatures on reports to the Management Committee.

96 Ms Angelovska deposed what when the Investigating Subcommittee was set up, the MAWA was advised by the Anti Discrimination Board to interview all the persons directly involved and keep the matter confidential. The three members of the subcommittee had been delegated to make recommendations. Everything had been presented to the Full Committee. She believed the process was fair and professional.

97 Ms Angelovska took detailed and accurate notes of all the interviews. The Subcommittee concluded that the applicant was not a credible witness. She was not biased against the applicant, even though she did not trust him.

98 Ms Angelovska acknowledged that she wrote the confidential document and it should have been kept confidential. Ms Angelovska admitted she was sorry for not keeping the document confidential. She had made a mistake. However, there was absolutely no way the applicant had innocently passed it on to Mr Tasevski. The applicant had breached confidentiality by talking to Mr Tasevski, Ms Cvetanoska and her boyfriend.

99 Ms Angelovska said she was shocked when she was accused of pressuring Ms Cvetanoska into making her statement. Ms Angelovska said that while Ms Cvetanoska maintained that everything was true, she had withdrawn her complaint after the applicant and Mr Tasevski had applied pressure to her.

100 Ms Milosevski said the reason for the applicant's dismissal was gross misconduct - intervening in the investigation, disrespecting the process, defaming management and harassing witnesses. The applicant had been well aware of the reasons for his dismissal.

101 Ms Milosevski believed the applicant had defamed Ms Cvetanoska by saying she was asking for trouble by wearing skirts which were inappropriate. She agreed he was not a credible witness because of his behaviour particularly during the 15 November meeting. He was screaming, pointing the finger and blackmailing the Committee. He had a history of lying.

102 Ms Milosevski said the document the applicant gave to Mr Tasevski was confidential and he must have known of its contents. She believed the applicant had made a copy of the document. She believed he had done so to hinder the process and prepare Mr Tasevski in advance. She also believed the applicant's claim against Ms Cvetanoska was blackmail.

103 Ms Milosevski believed that these matters had destroyed twenty years of hard work undertaken by volunteers for the MAWA. She had been selected for the subcommittee because of her training in domestic violence and harassment issues.

104 Ms Cvetanoska claimed the applicant had told her that if she dropped the allegation he would fix the rumours about her. After she had written her letter (which didn't work) the applicant got very angry and said he would lodge a sexual harassment claim against her. Ms Cvetanoska said she had not discussed, at any time, the applicant's claim of her inappropriate behaviour.

105 Ms Cvetanoska said that both the applicant and Mr Tasevski pressured her into withdrawing her allegation. On the day in question they were sneaking around trying to talk to her without anyone observing them as they had been told not to.

106 Ms Cvetanoska deposed that she was pressured into writing her withdrawal letter. She believed her reputation and her relationship with her boyfriend were more important than the complaint. She believed she had been blackmailed. She had nevertheless written that everything she said was true. She just wanted to drop everything as it was getting out of hand and affecting her personal life. Her boyfriend had told her that Mr Tasevski and the applicant had been spreading rumours about her.

107 Mr Dragon Cvetkovski said his girlfriend had told him that Mr Tasevski and the applicant had tried to blackmail her and pressure her into withdrawing her complaint. He believed that the applicant had harassed and intimidated his girlfriend. He said she was constantly upset and didn't know what to do.

108 Mr Cvetkovski gave evidence that both the applicant and Mr Tasevski tried to convince him to have Ms Cvetanoska drop her complaint. This was in his cousin Peter's shop at Arncliffe (Peter was also Mr Tasevski's cousin).

109 Mr Cvetkovski said the applicant and Mr Tasevski had both said words to the effect of: We have made a mistake about previous rumours we have told Peter [meaning my cousin Peter] about Katerina. We have told her that we can fix up these rumours if she drops her complaint. We are going to (sic) fired because of Katerina's complaint, which was all a big misunderstanding. Katerina misunderstood our intentions. People always muck around and talk bullshit in offices and it's no harm. We were only trying to be nice to her. Get her to drop the complaint so that we can keep our jobs.

110 In his oral testimony, Mr Cvetkovski gave a different version of what had happened. He claimed that the applicant had told him they would take the MAWA to court, get everyone fired and they would take over the MAWA. Mr Cvetkovski said he was fuming and said "Fuck this, I'm supporting my girlfriend, if she wants to go ahead with her complaint she will. If she doesn't that's going to happen," and then walked out.

111 Mr Cvetkovski claimed that his cousin Peter believed the whole matter was getting out of hand because Mr Tasevski wanted him to spread rumours that he (Mr Tasevski) was having an affair with the MAWA President.

112 Mr Cvetkovski believed the applicant had been spreading rumours about his girlfriend and had done so in front of a number of his friends when he had been drinking with Mr Tasevski.

113 The applicant claimed he had never threatened or intimidated Ms Cvetanoska. He had not approached Ms Cvetanoska after his interview concerning the allegations. Rather, he said, she had approached him. The applicant deposed that Ms Cvetanoska had told him that Ms Angelovska had forced her to make the complaint against Mr Tasevski.

114 The applicant had understood the matter was confidential and that he shouldn't talk to anyone about it. Mr Tasevski had spoken to him about his concerns, but the applicant said he did not say anything about what was said at the meeting.

115 The applicant said he had not approached Ms Cvetanoska's boyfriend about the matter. He had never threatened or blackmailed anyone. He had never approached Ms Cvetanoska to drop the complaint against Mr Tasevski. He said, on the contrary, that if Mr Tasevski had acted in an inappropriate way, then she should go ahead with her complaint. He claimed to be very supportive of her.

116 The applicant denied he was angry or had defamed the members of the Committee. He said he had no reason to do so as no one had ever complained about him.

117 The applicant denied spreading rumours about Ms Cvetanoska when he went to Mr Tasevski's cousin's shop in November 2002. The applicant claimed he had never spoken to anyone about Ms Cvetanoska.

118 The applicant agreed Mr Tasevski was an acquaintance. They had lunch together and drinks and had been to each other's homes.

119 The applicant denied giving a confidential report to Mr Tasevski. It had been given to the applicant by another employee. The applicant claimed he didn't even read it. He gave it to Mr Tasevski believing it was his draft letter to the Management Committee. When shown the letter, the applicant said it wasn't the one he gave to Mr Tasevski. The contents were similar, but the formatting was different.

120 The applicant said that Mr Tasevski took the letter into the disciplinary meeting. The applicant was called into the meeting and asked how he got the letter. The applicant denied that he was threatening or intimidating. He said there was so much shouting, it was difficult to make sense of what was going on. He denied saying he could give the letter to whoever he wanted.

121 The applicant said the treasurer, Mr Musovski, asked him what Ms Cvetanoska had told him. The applicant replied that Ms Cvetanoska had told him Ms Angelovska was pressuring her to make the complaint.

122 The applicant said the letter from Mr Ristevski of 18 November accused him of: a. The absence of your own loyalty to the organisation and the Employer. b. Breaching of confidentiality. c. Your insistence to hinder the investigative process against Mr Tasevski.

123 He was then suspended on 19 November 2002 in a letter which directed him to attend a disciplinary meeting on 21 November. He could bring a union or support person with him.

124 The applicant said he did not attend the meeting because he was stressed and wanted to obtain legal advice. Two days' notice was insufficient. He obtained a doctor's certificate and responded in writing on 20 November, that the allegations were untrue and requested a fourteen day postponement of the meeting. The applicant said he was unaware that Mr Tasevski obtained a doctor's certificate on the same day, from the same doctor.

125 The applicant said that on a previous occasion involving a disciplinary matter in 2001, management had given him seven days to respond. He did not believe that the management had considered his request for postponement on this occasion.

126 The letter which suspended the applicant referred to two matters: 1. (The applicant) interfered in and hindered the investigative process against Mr Tasevski and 2. (The applicant) approached Ms Cvetanoska with an intention to intimidate and harass.

127 Mr Ristevski said the applicant handed him a letter and a medical certificate on 20 November. Mr Ristevski said that up to this time the applicant had never mentioned being stressed or anxious. He had in fact been seen on 20 November at the St George Migrant Resources Centre.

128 Mr Ristevski believed the applicant had been given a fair opportunity to respond to the allegations before he was dismissed. The Committee had taken everything into account.

129 Mr Ristevski said it was important to go ahead with the meeting on 21 November, in view of the effect the matter was having on the MAWA. It had been a "terrible environment." Ms Georgieva described the situation as "really hot." Ms Nalevski said that the whole episode had affected the MAWA's reputation.

130 Ms Nalevski believed the applicant was given "plenty of time" to respond to the allegations and to attend a meeting with a witness to explain his actions. Ms Georgieva also said the applicant had "sufficient notice."

131 The Management Committee met on 21 November and determined to terminate the applicant's employment for "gross wilful misconduct." The vote was six in favour and one against. Ms Angelovska said everyone on the Committee knew the reasons for the applicant's dismissal.

132 Mr Ristevski said that the applicant's complaint of inaction over Ms Cvetanoska's conduct was not investigated, but was discussed at the meeting on 21 November. Ms Georgieva said she wasn't aware of this complaint. Had she been aware of it, she believed it should have been investigated.

133 Mr Ristevski was shown the applicant's contract of employment. He agreed that it required a reason to be given for the applicant's dismissal. However, the MAWA had advice from Jobs Australia, their own solicitors and the DIR that a reason was not necessary. Ms Georgieva and Ms Sestakova had also accepted this advice. In hindsight, Ms Georgieva said it was probably not fair not to give a reason. However, the Committee had acted on legal advice. Ms Sestakova and Ms Nalevski believed the applicant was well aware of the reasons for his dismissal.

134 Ms Sestakova did not know if giving the applicant two days to seek legal advice was sufficient, but it was sufficient for him to attend the meeting. She believed it was a very serious matter which had got "out of hand." Ms Sestakova said the applicant knew as early as 4 November of the nature of his disloyalty. He had then started to threaten management and to blackmail others. These matters were all contained in the letter on 18 November. Further, he had been told of the matters on 15 November by Mr Ristevski.

135 Ms Angelovska believed that the letter of 18 November was linked to the dismissal letter. The reasons for dismissal were clearly outlined and the applicant was well aware of the reasons. His supervisor had also spoken to him. She said that there was no breach of contract.

136 Ms Angelovska agreed that someone might be stressed after being suspended for serious allegations and might need legal advice. However, the meeting on 21 November was to give him an opportunity to give his side of the story. Indeed, the applicant had been through the process twelve months earlier. She agreed the applicant had not been suspended at that time and he had been given seven days' notice.

137 Nevertheless, Ms Angelovska believed two days notice was necessary when there were threats and harassment. She believed the applicant's stress claim was questionable because he and Mr Tasevski both went to the same doctor and the applicant was seen at a Church meeting causing trouble.

138 As to the applicant's own claim of sexual harassment, Ms Angelovska said it was very strange considering its timing and his collusion with Mr Tasevski. She believed it was unlikely a young women, twelve years his junior would be sexually harassing him. She regarded it as a ridiculous threat, as the applicant had been known to lie before.

139 Ms Angelovska believed that the reputation of the MAWA had been affected by the applicant's behaviour. She believed the applicant did not care about the MAWA, only about himself.

140 Ms Milosevski said the issue was urgent and had to be addressed. There was harassment and disruption to the organisation. The respondent had a duty of care to all the employees. The applicant declined to attend the disciplinary meeting.

141 Ms Milosevski agreed that those involved in the situation, including members of the Management Committee, would have been stressed. However, she believed the applicant had ample opportunity to defend himself and that the Committee had to take immediate measures to stop the harassment.

142 The applicant submitted that his dismissal was harsh, unreasonable and unjust, as it was not based on fact or substance. The process was also unfair because he had not been given a reasonable opportunity to defend himself.

143 The applicant said he had reasonable and innocent explanations for all the allegations made against him. He had not threatened or intimidated Ms Cvetanoska or her boyfriend.

144 The applicant said that the allegations of poor work performance were minor matters which did not justify the decision to dismiss him. The applicant claimed that all the allegations against him were untrue and only raised after his dismissal in order to bolster the case against him. The applicant claimed that there was no proof of poor performance. The only warning he received was in 2001, related to working secondary employment. The respondent had acknowledged his good work and ability to meet milestone reports. The respondent's witnesses had even described him as a good worker.

145 Moreover, it was the respondent who breached the employment contract. He was entitled to a fair hearing, free of stress and with legal advice. This had been denied. The applicant submitted that Ms Angelovska was biased against him and should never have been involved in the investigation or the decision to dismiss him.

146 The respondent had failed to give a reason for his dismissal, failed to back up its allegations and failed to understand that his questioning of the investigative process was not disloyalty. However, the consequences for the applicant were terrible. He lost his job, his livelihood, his reputation and his health had suffered.

147 The applicant claimed that his contribution to the organisation and the community was ignored by the respondent. He had admitted doing interpreting work, but believed it was in his own time. He had only agreed to pay back the hours as he was afraid of losing his job. This matter had been dealt with and was irrelevant to his dismissal 12 months later. Even so, the MAWA's President's husband had asked him to interpret for him.

148 As to hindering the sexual harassment investigation, the applicant put that the so-called breach of confidentiality could not be proven. The document he gave to Mr Tasevski was left lying around and it was not marked confidential.

149 The applicant agreed that he did approach Ms Cvetanoska and her boyfriend. However, he did not threaten or intimidate them, as he was not subject to any harassment allegations. He claimed that he was not a violent or aggressive person.

150 The applicant believed that the real reason he was dismissed was because he criticised management's handling of the sexual harassment allegations against Mr Tasevski and because he criticised their failure to investigate his own complaints against Ms Cvetanoska. This was not disloyalty to the MAWA or its ideals.

151 The applicant claimed that his own evidence was disregarded by management and he was accused of not being a credible witness. Moreover, the investigation was flawed because Ms Angelovska was biased against him and Ms Georgieva had animosities with Mr Tasevski.

152 Ms Angelovska had admitted she did not trust him and had slandered his character. The investigation was based on personal vendettas and false claims. The Investigating Subcommittee had influenced and misled the other members of the Management Committee. The decision was therefore irresponsible and wrong.

153 The applicant submitted that his dismissal was procedurally unfair. He referred to Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 and s88 of the Act. He said that he was not given reasons for his dismissal, not provided with an opportunity to defend himself, not offered a warning or an opportunity to improve. He was dismissed two days after being suspended when he was stressed and was seeking legal advice.

154 The applicant submitted that he suffered emotionally and financially from his dismissal. He was depressed, had to postpone his marriage plans and could not find a job for eight months. He now worked outside his chosen field of the community sector.

155 The applicant put that the respondent's conduct was unfair and it had breached its duty as an employer and its contractual arrangements.

156 The applicant sought the maximum compensation under the Act. He said that just because the MAWA is a voluntary organisation dependent on government grants, it should not be able to claim that compensation was inappropriate. The MAWA had an opportunity to settle the matter, but had refused. It could not avoid its obligations under the law simply because it's committee are volunteers. They must be held accountable for their actions. The applicant also foreshadowed an application for costs associated with his earlier legal expenses.

157 Ms Angelovska put that the applicant had committed "grave misconduct." He was given reasons for his dismissal and given ample opportunity to respond, which he did in writing and verbally. Ms Angelovska said that as a welfare organisation, the respondent had no choice but to dismiss a staff member who was an "abuser."

158 Ms Angelovska suggested that all the respondent's witnesses had been fair and unbiased. The applicant was well aware of the reasons for his dismissal. He had the letter of 19 November 2002. He had an opportunity to defend himself and to attend a disciplinary meeting with a union representative. He had failed to do so.

159 Two months after he was initially questioned, the applicant had put his own claim of harassment. This claim appeared unbelievable and ridiculous. It was designed to cover up his friend's own behaviour. It was the applicant who had intimidated, bullied and harassed Ms Cvetanoska into withdrawing her complaint. Numerous witnesses had said so, all of whom were hard working and passionate about helping disadvantaged members of the community. Ms Cvetanoska gave direct evidence of being harassed and pressured by the applicant. He had made allegations against the MAWA committee members and threatened to raise his own harassment claim if she didn't drop hers against Mr Tasevski. Mr Cvetkovski had said that the applicant had told him that if his girlfriend dropped everything, she would be given a job with the MAWA and everything would be all right.

160 Ms Angelovska submitted that the disciplinary meeting was held after two days' notice because it was necessary for the respondent to act quickly. Even though he was suspended, the applicant was still saying certain things in the community and approaching Ms Cvetanoska. The respondent also had advice that a couple of days' notice was adequate for summary dismissal.

161 Ms Angelovska said the respondent had raised the applicant's performance issues because he had claimed he was a good worker. The respondent could have dismissed the applicant in 2001. However, it chose to give him a chance and an opportunity to improve. There had been numerous supervision meetings. Management, including herself, had been very supportive of him. His dismissal was not as a result of some kind of a vendetta. He had flexible hours and was given professional development through counselling.

162 Ms Angelovska believed that the applicant's credibility was in question as he gave contradictory evidence about a number of matters. For example, he said he did not know of the contents of the letter of 15 November. However in his written evidence, he claimed to know the contents of the letter. She sais he must be lying in respect to one or the other. Another example was contradictory evidence of when he attended the Migrant Resource Centre after his suspension.

163 Ms Angelovska submitted that the evidence was that the applicant had harassed and pressured Ms Cvetanoska and her boyfriend. Ms Angelovska reiterated that the respondent had to act quickly to stop the harassment of a young person - the very thing that the MAWA is obliged to assist with in the broader community. The respondent had acted according to the Anti-Discrimination Act 1977 which defines harassment as a serious offence. She said the respondent regarded it as "very very serious" and "very serious misconduct".

164 Ms Angelovska put that the applicant's claim of being stressed was questionable. He and Mr Tasevski had similar doctor's certificates, issued on the same day by the same doctor. His claim to be stressed seemed "very unbelievable" when the applicant was observed at the Migrant Resource Centre and at a church function on the same day. Notwithstanding his claim of being stressed, he did in fact reply in writing.

165 Ms Angelovska said that the applicant had been given an opportunity to explain himself at the Management Committee meeting on 15th June. He was interviewed by the Subcommittee and was invited to a further meeting on 22 November. Ms Angelovska said it was wrong for the applicant to claim that members of the Management Committee had a vendetta against him. This allegation was only first raised in these proceedings. Ms Angelovska asked why would the management spend so much time and effort in assisting the applicant and forgiving his past performance and stealing issues, if it simply wanted to get rid of him.

166 Ms Angelovska noted that the applicant called no witnesses to attest to his positive work performance. Moreover, he had been known to have lied and cheated in the past. The respondent's main witness, Mr Ristevski, had given evidence of the numerous conversations held with the applicant about his performance.

167 Ms Angelovska said the evidence was that the respondent had acted very professionally. The management had many years of experience in the welfare sector and with employing staff. It always acted independently. The MAWA had had high hopes for the applicant and they had been greatly disappointed. She explained that the favourable comments in the letter of December 2001 were in order to give positive feedback. However, the rest of the letter dealt with negative issues. Ms Angelovska acknowledged that the majority of the letter dealt with the secondary employment issue.

168 The Commission should question the applicant's motivation and claims of being unemployed for eight months. This, she said, was probably due to his behaviour.

169 Ms Angelovska submitted that the applicant abused his power and position of trust. He threatened Ms Cvetanoska and the Management Committee and had shown no remorse. He sought to cover up the issues by making up his own false harassment claim.

170 Ms Angelovska cited Foster v Woolworths [2000] NSWIRComm 208 and Ian Ueckert v Australian Water Technologies Pty Ltd [2000] NSWIRComm 123 as cases involving harassment at the workplace.

171 In reply, the applicant said he had never raised a direct complaint of sexual harassment by Ms Cvetanoska. His complaint was that management failed to investigate Ms Cvetanoska's inappropriate behaviour. This could not be considered as blackmail. The applicant emphasised that there was no harassment or inappropriate behaviour allegations against him. Even witnesses for the respondent had said he was a good worker.

172 The applicant said that he had worked as an interpreter for many years for various Government departments and agencies. He was a volunteer on the MAWA Committee and was involved in many Macedonian community organisations. The applicant referred to the evidence when he had been commended for his reports and his work.

173 Finally, the applicant said he believed he had a right to raise his concerns at the way the investigation against Mr Tasevski had been conducted.

174 This has been a very sad and depressing case. Nevertheless, it will be decided on a proper application of the law in New South Wales dealing with unfair dismissals. The case involved members of the close knit Sydney Macedonian community giving hurtful, embarrassing and conflicting evidence against one another. The evidence was riddled with claims and counter claims of sexual harassment, threats, vendettas, corruption, blackmail, theft, lying and defamation. On one occasion, during an adjournment of the proceedings, there was an unpleasant incident outside the Court involving witnesses verbally abusing and threatening one another. This was most regrettable.

175 While not expressly disclosed, it seemed to me that a theme underlying this case was a factional struggle for control of the MAWA Committee. If this be so, then I am greatly troubled that a fine community organisation has been torn apart and the Sydney Macedonian community bitterly divided, for no good reason. I sincerely hope that the level of disharmony and depth of emotion revealed during this case will now be put aside; notwithstanding what some no doubt may feel about the Commission's decision in this matter.

176 The respondent variously described the applicant's conduct leading to his dismissal as "grave misconduct" or "very serious misconduct". The applicant was accused of harassment, intimidation, blackmail and disloyalty. He was described as an abuser, liar and thief. Viewed from this rather jaundiced perspective, it is not surprising that the respondent dismissed the applicant for serious misconduct. However, in addition it strenuously argued that the applicant's poor work performance was also such as to justify his dismissal. I shall return to this contention later.

177 In a case of summary dismissal for misconduct four questions usually arise for consideration. Firstly, was the conduct alleged against the dismissed employee proven? Secondly, if the misconduct was proven, did the seriousness of the misconduct justify summary dismissal? Thirdly, did the conduct constitute a fundamental and willful repudiation of the contract of employment? Fourthly, were mitigating factors taken into account? I shall discuss each of these questions seriatim, in the context of the relevant authorities of the Commission

178 In some cases of summary dismissal the employee will contest the allegations which led to the employer's decision to terminate the contract of employment. In such cases, the employer is required to prove the allegations. The Commission must be satisfied that the employer's onus to do so has been discharged and make findings, on the balance of probabilities, that the misconduct occurred.

179 The oft quoted authority for this proposition is found in Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70: It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street (1947) AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) (1949) AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 at 279 and Homebush Abattoir (1966) AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson (1957) AR (NSW) 547 at 552, 553; North v Television Corporation Ltd (1976) 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr Newall submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643, and in that passage from his Honour's judgment which said at 644: Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principles to regard fault as a particular exception defeating the right only when alleged and proved.

The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it. In support of his submission on onus, Mr Walton referred to the judgment of Dey , J. in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355, in which his Honour clearly held that the necessity for proving misconduct lay upon the party setting it up, namely the employer, and even though the union had the responsibility for establishing a proper case for reinstatement. I respectfully agree with his Honour's conclusion, it being entirely consistent with well established authority

180 This principle was neatly summarised by a recent Full Bench of the Commission in Humphries and Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 at p86: …where an allegation of misconduct is raised as a defense or as a justification for a particular course of action, the legal burden shifts to the respondent employer (although the onus to be discharged in unfair dismissal proceedings is to establish to the satisfaction of the Commission according to the civil standard of proof, that the dismissal was harsh, unreasonable or unjust): Pastrycooks Case at [83] - [84]) and Price v Box Valley Pty Ltd (1999) 90 IR 480 at 483. See also other Full Bench authorities on the subject in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Shop, Distributive & Allied Employees' Association v Jewel Food Stores (1987) 22 IR 1; Franklins Ltd v Webb (1996) 72 IR 257, Price v Box Valley Pty Ltd (1999) 90 IR 480 and Bigg & Anor v NSW Police Service (1998) 80 IR 434.

181 In Byrne and Anor v Australian Airlines (1995) 61 IR 32 the High Court said a termination of employment "may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted" (p72). In Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 at p302 the Full Commission said: The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233 as follows : I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. 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. See also Little v Commissioner of Police (No.2) (2002) 112 IR 212, Busways v Johnson (1994) 55 IR 255 and Wells v Commissioner of Police (2000) 100 IR 106.

182 That it is plainly open for the Commission to review the decision of the employer and determine that a particular dismissal was too severe a penalty is, in my view, beyond doubt (see also my conclusions in Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited, trading as TNT Express [2002] NSWIRComm 46; Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Gregory Bowman and City of Sydney Council [2001] NSWIRComm 91 and Police Association of New South Wales on behalf of Adam Tregonning, and New South Wales Police Service [2000] NSWIRComm 14.

183 It is obvious that the summary dismissal of an employee for misconduct can have serious and sometimes long term implications for the employee. It is for this reason that the Full Bench in Franklins Ltd v Webb reminded employers of the need to be fully satisfied that the misconduct had been committed and that the conduct justified dismissal. The Full Bench said at p261: We consider that the significance of decisions by employers to dismiss employees in circumstances such as occurred here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account. It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employers of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal.

184 In Hill v Department of Juvenile Justice [2000] NSWIRComm 128, serious allegations concerning the supply of drugs to juvenile offenders, by a person in charge of their welfare were the alleged reasons for the employee's dismissal. The allegations had no basis in fact and could not be proven. I said at para 62-63: In Standley v Electronics Boutique Australia Pty Ltd , IRC 4516 of 1998, 18 March 1999, I considered the serious implications for an employee where allegations of misconduct are made. I said at p14: It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee. It can, not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee's future employment prospects.

A finding by this Commission that a summary dismissal was justified, is a most serious matter which may unhappily burden and grievously harm an employee for years into the future.

See also my discussion of this matter in Thornton and Happy Hours Pre School Kindergarten , IRC5333 of 1999, 29 July 1999 and Taggart and Bell Sports Australia , IRC5224 of 1998, 10 September 1999. The serious unproven allegations made against the applicant have gravely impugned his reputation. Left to stand unchallenged, these allegations would seriously hamper his future employment prospects, damage his reputation and more than likely, deleteriously effect his well being and that of his family. It is the Commission's duty - indeed, its obligation - to correct the injustices the applicant has so plainly suffered. I unreservedly intend to do so. See also my comments in Standley and Electronics Boutique Pty Ltd (unreported, Sams DP, IRC98/4516, 18 March 1999) ; Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Bowman, and City of Sydney Council and Staal and Tupene and Health and Research Employees' Association of New South Wales (on behalf of Nagy and Others) and Western Sydney Area Health Service [2004] NSWIRComm 27.

185 The later allegations against the applicant were described as gross or serious misconduct; the additional word "wilful" was not used. However, in my opinion, where an employee has been dismissed for misconduct, the conduct must be such as to constitute a repudiation of the contract of employment by the employee. There must be disclosed a wilful and deliberate intent by the employee.

186 Did the serious misconduct here alleged constitute a wilful repudiation of the contract of employment by the applicant? In deliberating on this question, I refer to four authorities: In North v Television Corporation Ltd (1976) 11 ALR 599, Franki J said at p616: It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions.

The 1959 English case referred to makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be " wilful ": … I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions. (P288). Hungerford J in Day v Lumley Life Limited (1999) 90 IR 70, described the employment relationship as a serious contractual relationship involving rights and obligations on both sides: The employment relationship, I have to say, is a serious relationship with important incidents for both parties to it. It is a consensual relationship based on contract and with respective rights and obligations. It should not, I think, operate, or to be so seen, in practice in a way, which permits one party, here, the employer, to act in a one-sided manner contrary to the legitimate expectations and understandings of the other party, here the employee, and particularly where such action damages or detrimentally affects the career interests of the employee. Employees have a corresponding duty to act with fidelity and good faith. In Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160, his Honour, McHugh J, dealt with the ordinary relationship of the employer and employee at common law: The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law: "[c]onduct which in respect of important matters is incompatible with the fulfillment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ... [T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises." In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the "confidence" essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer's counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company's service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee's summary dismissal. It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal. See also Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66; Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited, trading as TNT Express and Hunt v Hornsby Shire Council [2001] NSWIRComm 242.

187 The respondent placed considerable reliance on the applicant's alleged poor performance. Indeed, the bulk of the evidence in the case concerned this matter.

188 It is generally accepted that an employer may take into account an employee's past conduct or warnings when making a decision to dismiss the employee. Authority for this proposition is found in John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (1972) AILR 517: The union's argument in relation to this matter is not easy to understand. It suggests that although the record is not a satisfactory one, it should be overlooked because the company, except for a warning and a suspension here or there, allowed it to run on and in effect condoned or waived it. It further says that the record has to be looked at in the light of the fact that there is admittedly a good deal of absenteeism generally in the plant. If one were to take this argument to its full extent, it would involve the union in saying that Mr York should have been dismissed long ago. It is no doubt possible for the company to waive particular acts of misconduct that would otherwise justify dismissal without notice. These particular acts could not subsequently be used for this purpose once a decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about dismissal. This will be all the more so where, as here, the dismissal is upon notice.

189 Where the employer discharges the onus to prove allegations made against an employee, it is then incumbent on an applicant to discharge the onus of satisfying the Commission that his/her dismissal was harsh, unreasonable or unjust within the meaning of Pt 6 ch 2 of the Act (see Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273). A finding of whether a particular dismissal is harsh, unreasonable or unjust is a mixed question of fact and law.

190 It is now well settled that each of the words - harsh, unreasonable and unjust - have their own discrete meaning and not all three descriptions of a dismissal are necessary for a finding of unfairness. In other words, a particular dismissal might be found to be "harsh" but not "unreasonable" or "unjust". This principle arises from the oft-quoted authority in Byrne & Anor v Australian Airlines where the expression "harsh, unreasonable or unjust" was considered in an Award clause. In their joint judgment McHugh and Gummow JJ said at p72: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 191 The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session ( Perrignon , Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'.

It has been said that those words are a 'tautological trinity' ( Davis v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power.

In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made.

192 A Full Bench authority reaffirming the distinction between the three words, and requiring the Commission to make a positive and specific finding on a dismissal is to be found in Bankstown City Council v Paris (1999) 93 IR 209: The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made.

193 I turn now to discuss the question of procedural fairness in the context of an unfair dismissal.

194 A recent Full Bench decision of this Commission stressed the importance of ensuring that an employee is afforded procedural fairness in the process leading up to a decision to dismiss an employee following allegations of serious misconduct. In Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited the Full Bench said at para 118: This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious.

195 These observations are unremarkable and merely reflect the statutory instruction found at s88 of the Act and the relevant authorities which identify the matters the Commission may take into account when determining an unfair dismissal claim. These matters include, but are not limited to, whether, (i) a reason for dismissal was given. (ii) any reason given had a basis in fact. (iii) an applicant was given an opportunity to make out a defense or give an explanation of his or her behavior.

(iv) any warning of unsatisfactory performance was given. (v) the applicant sought but was refused reinstatement or reemployment.

It is important to note that the Commission may take other matters into account which it considers relevant (s88(f)).

196 In Byrne & Anor v Australian Airlines, the High Court, concluded that "it is clear that the use of an unfair procedure may result in a dismissal being 'harsh, unreasonable or unjust.' To this authority may be added the weight of a number of Full Bench decisions of the Commission. In Antonakopoulos v State Bank, the Full Bench said at p389: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. and later, at page 390:

While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust .

197 The above reference to Buckman is Buckman v Burdekin (1998) 85 IR 415. In that case, the Full Bench said at p418: Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness. See also Wilson v Department of Education and Training (2000) 100 IR 1; Byrne & Anor v Australian Airlines ; Burke v McGirr (1995) 87 IR 54; Oswald v NSW Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57; Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32, Antonakopoulos v State Bank of New South Wales , Buckman v Burdekin ; and D & R Commercial Pty Ltd v Flood (2002) 113 IR 344.

198 I turn now to consider the particular facts and circumstances of the case.

199 As might be expected with both parties unrepresented, much of the evidence in these proceedings was repetitive and irrelevant to the issues to be determined. This was particularly demonstrated by the evidence concerning the allegations against Mr Tasevski. As I said during the proceedings, this is not a case about the reasons for Mr Tasevski's dismissal. I have no intention of making any findings about what was alleged against him; particularly as he was not a witness in this case and I have had no opportunity to judge his version of events.

200 It hardly needs to be said that this case concerns the reasons for the applicant's dismissal and whether such dismissal was harsh, unreasonable or unjust. I would emphasis most strongly, that it was neither suggested or inferred that the applicant was involved in any improper conduct of a sexual harassment nature against anyone. That being said, I am satisfied that both parties put all, and whatever, they believed to be important to advancing and supporting their respective cases.

201 At this juncture, I would say that I found the applicant to be a believable witness. He was confident in the witness box - but not overly so. His evidence made sense and he was truthful when aspects of his evidence were adverse to his interests. The applicant's behaviour during the proceedings, both as a witness and advocate, was in my view, courteous and restrained. He was co-operative and respectful to the respondent's witnesses, even in the face of some provocation. The applicant did not object to matters which were clearly prejudicial to his own interests. This was to be contrasted to the silly and irrelevant points taken by the respondent to the applicant's evidence.

202 Accordingly, I am satisfied that the applicant was a witness of credit and truth. I am fortified to this conclusion by the evidence concerning the applicant's character, from a number of the respondent's own witnesses. For example, Mr Ristevski acknowledged that Ms Cvetanoska had told him that the applicant was a good person who had helped her and was a team player. Ms Georgieva described the applicant as a "good person". Ms Risteska described him as a good worker who had assisted her.

203 The evidence supported a conclusion that the applicant's conduct in the workplace was entirely appropriate and, indeed was supportive of Ms Cvetanoska. Ms Cvetanoska referred to an incident when the applicant had supported her when she had been crying over a comment made by Mr Tasevski. On the other hand, Ms Cvetanoska's evidence clearly contradicted that of the applicant. She denied showing the applicant her bleeding pierced navel. However, it was Mr Ristevski's evidence that the applicant had told him about this incident and Mr Ristevski agreed he had seen bloodied swabs on a desk. One might well ask how the applicant would have known about this, if he hadn't been shown or told about it. I do not accept Ms Cvetanoska's evidence on this matter. Moreover, the applicant knew about certain other personal matters concerning Ms Cvetanoska, such as her modelling portfolio.

204 Further, Ms Cvetanoska gave evidence that the applicant had been present in the car park and was laughing when Mr Tasevski and his brother discussed nude photography, lingerie posing and short skirts. The applicant said he was in the carpark for about thirty seconds and Ms Cvetanoska later came and asked him whether Mr Tasevski's brother did modelling portfolios. Mr Tasevski and his brother did not give evidence in the proceedings. I only have the applicant's and Ms Cvetanoska's contradictory versions of what occurred. I can not be satisfied that Ms Cvetanoska's evidence was entirely forthcoming. I am disposed to accept the applicant's version of the incident.

205 In my opinion, if the applicant had one fault, it was his over zealous support of his friend, Mr Tasevski. I shall return to this friendship later. However, I accept the applicant's evidence that he had no reason to threaten or intimidate Ms Cvetanoska or her boyfriend, because he was not the subject of any allegations of harassment.

206 Mr Cvetkovski claimed his girlfriend told him that the applicant and Mr Tasevski threatened her and pressured her into withdrawing her complaint. It is to be observed that this is consistent with Ms Cvetanoska's evidence. Mr Cvetkovski referred to a conversation in his cousin Peter's shop at Arncliffe. I quoted it earlier in full.

207 I would say four things about this conversation. Firstly, in the face of the applicant's denials and the failure of Peter to give evidence, I cannot be convinced that the applicant used these words - perhaps Mr Tasevski did. Secondly, on any fair assessment of what Mr Cvetkovski claimed was said, the words do not, in my opinion, amount to threats or intimidation. Thirdly, it would be odd for the applicant to mention he was "fired because of Katerina's complaint," as no such complaint had been made against him. Fourthly, I do not doubt that conversations may have been had which were intended to encourage Ms Cvetanoska to withdraw her complaint. Indeed, she believed herself that the matter had got "way out of hand." However, I find no conclusive evidence that the applicant threatened, blackmailed or pressured Ms Cvetanoska into withdrawing her complaint. That being so, I find that there was no basis for this allegation against the applicant.

208 I turn now to deliberate on the allegations of poor work performance.

209 I found much of the respondent's evidence to be ex post facto justification for the summary dismissal of the applicant. Moreover, the respondent did not seem to appreciate that the onus lay with it to prove the allegations of poor performance and misconduct. In my view, it failed to do so on both grounds. One example, at this juncture, serves to make the point. Ms Angelovska suggested that it was up to the applicant to produce evidence about his time sheets. It was obvious he couldn't do so, as the time sheets were in the respondent's possession. If the respondent was relying on this to justify poor performance, then it was up to the respondent to produce the relevant documentation.

210 Mr Ristevski and Ms Angelovska were both advocates and principal witnesses for the respondent. I should say I found them both to be most unhelpful witnesses. Mr Ristevski was defensive, evasive and would not answer questions directly. He preferred to answer almost every question in such a way or with a little commentary, such as to colour the answer to reflect unfavourably on the applicant. Ms Angelovska was argumentative and aggressive in her questioning of the applicant. She interrupted the proceedings unnecessarily whenever something was said which she didn't like, or agree with.

211 In addition, I am profoundly troubled by the affidavit evidence from a number of the MAWA Management Committee; particularly Ms Georgieva, Ms Sestakova, Ms Nalevski and Ms Milosevski. Their evidence of crucial conversations (recalled to the best of their knowledge) was in identical terms. Moreover, the seven page affidavit evidence of Ms Nalevski and Ms Georgieva was exactly the same. It is not possible for three or four persons to recall exactly the same words in conversations held eight months earlier. In other words, this evidence must lead to a firm conclusion that these witnesses did not give their evidence freely or independently. I regard this as a most serious matter.

212 Other disturbing examples of the evidence of the MAWA Committee was to be found. Ms Sestakova quoted Boris (Tasevski) as saying certain things in the meeting of 15 November at which she was not even present. She said she had been informed of this by an unnamed person. There are obvious difficulties with such evidence as to both hearsay and form. It must be rejected.

213 Like other members of the Management Committee, Ms Nalevski is a volunteer member. It was obvious from her evidence that she was not in tune with the relevant issues in any detail. While this may be understandable for a volunteer there are, to my mind, serious obligations on a member of the Management Committee to know exactly what allegations are made against an employee and to be personally satisfied that the allegations are proven. From Ms Nalevski's vague evidence, I cannot be satisfied that she understood, let alone applied the correct tests of making such serious findings against the applicant.

214 Moreover, Ms Nalevski seemed to base her judgment of the applicant by relying on matters that were never the subject of any disciplinary proceedings. This concerned firstly, the applicant's involvement in the Church and her evidence that the applicant was warned on several occasions not to be involved. Secondly, she said the applicant had been spreading rumours about the investigation of sexual harassment. Thirdly, that the applicant had spoken to her husband about this matter.

215 It follows, where the evidence of the applicant conflicts with that of members of the MAWA Committee, that I prefer to accept the evidence of the applicant.

216 Before leaving these matters I am disposed to observe that bringing numerous witnesses who give exactly the same evidence does not impress this Commission one iota. Rather, it leads me to conclude that the witnesses had the evidence put in front of them and/or collaborated to give the same evidence.

217 No reasonable person could be satisfied that the applicant was guilty of the poor work performance alleged by the respondent. As I said earlier, much of the material seems to have been created after the event. Moreover, even if the allegations of poor performance were justified, it was certainly not of sufficient gravity as to warrant summary dismissal.

218 Nevertheless I found a number of difficulties with the evidence in this regard. Leaving aside that the only letter of warning was in December 2001, I have trouble accepting the bona fides of the respondent as to the applicant's alleged poor performance. I make this finding for the following reasons:

219 The applicant did not attend the meeting in 2001 which considered his performance. He received the warning without being given an opportunity to respond to the allegations. There was very little referred to in the December 2001 warning about issues which have now taken on such magnitude and became central to the respondent's case. This warning dealt primarily with the applicant's working a second job. In my view the applicant gave credible evidence that he only worked three or four translation jobs during the relevant period. His diary shows that he had booked clients at the same time as he was somewhere else. This seems to be entirely consistent with his evidence that he booked other translators who he engaged through his personal company.

220 The management had photocopied the applicant's diary to prove he was undertaking numerous translating jobs. It was unclear whether the diary was on his desk or removed from his bag. Whatever be the case, this action was most improper and was an invasion of the applicant's privacy. It was simply not good enough to put that the diary had been purchased by the respondent and, as such it belonged to the respondent and further that its contents could be used in whatever manner the respondent saw fit.

221 In any event, if the applicant had been wilfully and dishonestly working a second job against the express instructions of the respondent, he would hardly note such appointments in his diary or have invoices sent to the MAWA post box. There was no challenge to the applicant's evidence that he had in fact undertaken a translating job for the President's husband.

222 I turn now to the claims that the applicant failed to complete reports on time. Only one example was seriously debated and this concerned his end of year report to the DIMIA and arose by the letter of clarification sought by the DIMIA officer, Lynette Jackson. In my judgement, that criticism was unwarranted and misplaced for these reasons.

223 Firstly, it must be observed that Ms Jackson was a new consultant. It was perfectly understandable that she would seek clarification of matters with which she was unfamiliar. Secondly, there was no evidence of any problems with the timelines or contents of the applicant's reports. Significantly, the letter says, "the report is very detailed and clearly represents that the organisation is overall achieving good outcomes." How could this possibly be construed as criticism? On any proper and objective reading of the letter, the points raised by Ms Jackson merely sought clarification of unclear matters - nothing more.

224 When one reviews all of the evidence it is abundantly plain that the applicant only received one formal warning in 2001 over the issue of a second job. There were no formal warnings about his work performance or conduct. True it is that management had notes and minutes of issues raised with the applicant. However, it appears to me that these issues were simply work related matters discussed in the ordinary course of employment. I do not understand why these issues have now been elevated to matters of grave moment and significance. There was nothing advanced by the respondent which warranted dismissal; let alone summary dismissal.

225 On the other hand, during the applicant's employment, there was a significant expansion of the MAWA's activities through the appointment of new staff. While no doubt this reflected on the competency of the Management Committee, it must also reflect the combined contribution by all of the paid staff, including the applicant.

226 There is no doubt, that with hindsight, both parties may well have acted differently, especially in light of the highly charged workplace atmosphere in late 2002. The applicant was accused of providing a confidential report about the sexual harassment allegation from the Investigating Subcommittee to Mr Tasevski. There were two versions of the document in the evidence - although I don't think much turns on this.

227 On any objective analysis, it cannot be said that this document was confidential. It was certainly not marked as such. There are no signatures on the document. Indeed, it was given to the applicant by another staff member (Jamal), who was not even the author of the document. In other words, the document was floating around the office for anyone to see. It must be said that the author of the document did not ensure it was kept confidential. Ms Angelovska took some responsibility in this regard.

228 As I said, in hindsight it was unwise for the applicant to give the document to Mr Tasevski. Doing so was another example at the applicant's unswerving support for his friend. I believe that the applicant gave it to his friend so that he would be aware of what the investigation had found.

229 However, I find that there was no breach of confidentiality as alleged by the respondent. As this allegation is not sustained, it cannot stand as grounds for the applicant's dismissal.

230 The applicant was also accused of acting in a threatening manner at the 15 November meeting when asked about the confidential document. All the respondent's witnesses used the expressions "aggressive" and "arrogant" to describe the applicant's behaviour. Ms Georgieva's evidence was that Ms Angelovska was angry and the meeting was heated. Ms Georgieva was stunned by the applicant's behaviour because she had never seen him act that way before. It is my view that, even if the applicant had behaved as described, it was out of character and a result of the serious matters he was accused of and his loyalty to his friend. I have little doubt that everyone at the meeting was in a high state of anxiety. It was little wonder that tempers were frayed and emotions were running high. It was the responsibility of the Chairperson to ensure the meeting was conducted in a proper atmosphere. Clearly, this was not the case.

231 A more serious allegation was that the applicant had threatened or intimidated Ms Cvetanoska into withdrawing her complaint against Mr Tasevski. Having heard all of the testimony during these proceedings, I cannot be convinced that this allegation has been properly made out. In view of the speed with which the respondent acted, I cannot accept that it was any better position to establish the truth of this allegation. I say this for the following reasons.

232 Ms Cvetanoska had informed Mr Ristevski of the alleged intimidation on 18 November. The applicant was suspended the next day and dismissed on 22 November - four days later. It is inconceivable that the respondent would have been able to properly investigate Ms Cvetanoska's allegation in four days. At this stage the respondent did not even have the applicant's response to the allegation.

233 Further, once the applicant on 20 November had filed his own claim of inappropriate behaviour by Ms Cvetanoska there was an obligation on management to investigate that matter. It was not good enough to presume that this was merely a "get square" for the allegations against the applicant's complaints about the allegations against Mr Tasevski. I note that he had mentioned the claim on two occasions in the previous two weeks - well before he knew he was to face a disciplinary inquiry.

234 Thus, the respondent had serious claims and counter claims, but did very little to investigate either, and in respect to the applicant's claim did nothing at all. It was Ms Georgieva's evidence, that she wasn't even aware of the applicant's complaint. The respondent adopted a far too hasty process in light of the seriousness and complexity of the issues involved.

235 I am also of the view that Ms Angelovska should not have participated in the Investigating Subcommittee. She was seriously prejudiced against the applicant. This quote from transcript at p66 makes the point: I did not trust you (the applicant) since November 2001 and since around that time that you started lying and stealing hours from the MAWA.

236 This was not the only example of Ms Angelovska's antagonism and bias against the applicant. Ms Angelovska should not have been a member of the Investigating Subcommittee. She should have disqualified herself from its deliberations. The Subcommittee found that the applicant was not a credible witness. It was hardly surprising that the Full Committee took the action it did in light of such a prejudicial finding.

237 The applicant was suspended on 19 November and told to attend a disciplinary meeting on 21 November. The applicant refused to attend the meeting and asked for a postponement. He said he wanted more time to seek legal advice and that he was stressed. He had obtained a doctor's certificate to this effect.

238 In my opinion, two days notice of a disciplinary meeting, particularly in view of the vagueness of the allegations, was unreasonable. The respondent ridiculed the applicant's claim of being stressed and noted that he attended the office to photocopy a document and was seen that night at Church.

239 I have no doubt the applicant was stressed after being charged with the allegations he was accused of. The fact that he was preparing his defence or attending Church is irrelevant and not inconsistent with someone who was stressed by the events of those few days. He had been accused of serious matters and had been suspended. I ask rhetorically, who wouldn't be stressed? As Ms Milosevski said "everyone was stressed".

240 It is my firm opinion, that there was no reasonable basis for refusing to grant the applicant a postponement of the disciplinary meeting. By so refusing, the respondent's decision was prejudicial and unfair. After all, it was certainly not the same way the respondent had handled the 2001 disciplinary issue when it had given him seven days notice on a far less serious charge. I do not accept the respondent's submission that management had to act quickly because of the difficult workplace environment. The applicant had been suspended and wasn't even at work.

241 I am comfortably satisfied that the respondent had been determined to dismiss the applicant, whether he responded to the allegations or not. Axiomatically, the applicant was denied due and fair process.

242 It was also obvious that the applicant was not given a clear reason for his dismissal. Mr Ristevski claimed that he was advised it was unnecessary to give a reason for dismissal. He said this advice came from the DIR, the respondent's solicitor and Jobs Australia. Maybe, Mr Ristevski misinterpreted the advice, because if it was true, such advice was wrong!

243 Moreover, the applicant's employment contract made clear what was required in these circumstances. The relevant clause is expressed in these terms: 2. Advise the employee that they have been dismissed and put (briefly) the reason.

244 In my view, the applicant's submission that his treatment was in breach of his contract was soundly based. On the other hand, it would be unrealistic to believe that the applicant did not have a reasonable idea as to the reasons for his dismissal. But that was not enough to satisfy the terms of his contract of employment. There were three broad issues identified for discussion at the meeting on 21 November. They were: a. The absence of your own loyalty to the organisation and the Employer b. Breaching of confidentiality c. Your insistence to hinder the investigative process against Mr Tasevski

245 It will be readily seen that these matters were generic and did not give the applicant any specificity as to who made the allegations, when they occurred and in what circumstances. There was no evidence on what charge or charges the applicant was eventually found to be guilty of. As I said the allegations were never put to the applicant in specific terms. This was unfair and unreasonable. Moreover, the Committee made serious findings against the applicant without ever hearing his side of the story. This was grossly unfair.

246 For the aforementioned reasons, I have found that the applicant's dismissal was substantively and procedurally harsh, unreasonable and unjust within the meaning of Pt 6 ch 2 of the Act.

247 In view of the comments made in the introduction to my conclusions, reinstatement would obviously be impractical. In any event, the applicant does not seek reinstatement or re-employment.

248 That being said, I believe this to be a case which warrants an amount of compensation at the higher end of the scale, notwithstanding the relatively short service with the respondent. I have taken into account the damage to the applicant's reputation and standing in the community and the difficulty of finding work in his specialised field of social work.

249 Balanced against this, I have considered the applicant's age, his undoubted skills and personal characteristics which clearly should not see him without work for any extended period of time.

250 The Industrial Relations Commission of New South Wales orders that: 1) Pursuant to s89(3) of the Industrial Relations Act 1996, the respondent, the Macedonian Australian Welfare Association of Sydney Inc. shall pay to the applicant an amount of $14,620.00 representing twenty weeks' pay at $731.00 per week. 2) The amount so ordered shall be paid within 28 days of today. 3) Any application for costs must be made by notice of motion within 21 days. 3) Save for any costs application these proceedings are now concluded.

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