Apps v. Roads and Traffic Authority of New South Wales [2007] NSWIRComm 1025

Industrial Relations Commission (NSW)|2007-08-09

CITATION: Apps v. Roads and Traffic Authority of New South Wales [2007] NSWIRComm 1025

PARTIES: APPLICANT Nigel Apps

CATCHWORDS: termination of employment - misconduct - summary dismissal - allegation of sexual harassment - code of behaviour and ethics in the workplace - application for re-employment and transfer - dismissal considered to be fair in the circumstances - application dismissed

Attorney-General's Department v. Miller (2007) 160 IR 185 Bi Lo Pty Limited v. Hooper (1992) 53 IR 224 Briginshaw v. Briginshaw (1938) 60 CLR 336 Burge v. BHP Steel Pty Limited (2001) 105 IR 325 Busways v. Johnson (1994) 55 IR 255 Jones v. Dunkel (1959) 101 CLR 298 M v. M (1988) 63 ALJR 108 Maitland v. Royal Blind Society of New South Wales (2004) 138 IR 75 CASES CITED: McGregor v. Stokes (1952) VLR 347 O'Callaghan v. Loder (1984) 5 IR 320 Pacific Power v. Crump (1993) 48 IR 296 Plummer v. Stannard Brothers Launch Service (2005) 145 IR 111 Riley v. WorkCover Authority of New South Wales (12006) 151 IR 396 Rudder v. Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89 State of New South Wales v. Seedsman - unreported Ueckert v. Australian Water Technologies Pty Limited [2000] NSWIRComm 123 Wang v. Crestell Industries Pty Limited (1997) 73 IR 454

HEARING DATES: 10/05/2007, 11/05/2007, 25/05/2007

APPLICANT Greg Niven LEGAL REPRESENTATIVES:

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Nigel Apps and the Roads and Traffic Authority of New South Wales

Application under S.84 of the Industrial Relations Act, 1996

1 Mr Nigel Apps was employed in a works supervisor (bridge maintenance) with the Roads and Traffic Authority of New South Wales. He commenced employment as a bridge maintenance carpenter with the RTA attached to its Dubbo works depot in 1990 and was transferred (and promoted) to the Goulburn works depot as works supervisor on Monday, 29 September, 2003. His services were summarily terminated on Friday, 18 August, 2006 following allegations of his harassing and intimidatory behaviour towards a female employee - Ms Donna Brown, the wages clerk at the RTA Goulburn office. His dismissal was confirmed in a letter from the RTA dated Friday, 18 August, 2006 signed by Mr David Stuart-Watts, the RTA director of operations and services.

"...I do not accept that your claim that you did not engage in harassing and intimidatory behaviour to Ms Brown. I also do not accept your claim that you did not intrude into Ms Brown's private life. I consider your persistent misconduct as extremely serious, particularly given your reluctance to cease this misconduct despite a number of requests from Ms Brown. I am of the view that the extent of this misconduct, and your failure to show any contrition, let alone acknowledge your misconduct, demonstrates that there is little prospect of you modifying your conduct in the future. I also view your counter-allegations against Ms Brown, irrespective of overwhelming evidence to the contrary, indicative of a pattern of vindictive behaviour.

I consider your demonstrated lack of understanding of what constitutes sexually-harassing conduct, and a clear unwillingness to cease this behaviour, as a strong indicator of the likelihood of you engaging in this conduct in the future, irrespective of your work location. These allegations relate to conduct which constitutes a serious breach of the RTA's Code of Conduct and Ethics and the RTA's Harassment, Discrimination and Workplace Bullying Policy, and which is unacceptable to the RTA... I am satisfied that it is open to the RTA to conclude that you engaged in inappropriate and unacceptable conduct.

On the basis of the above, I have determined that the most appropriate disciplinary action is that your services be terminated immediately upon receipt of this letter. Upon receipt of this letter, you must immediately deliver any RTA identification pass, building keys, tools and/or equipment that you may have in your possession, or at your place of residence, to the RTA representative delivering this letter..."

3 Mr Apps lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act claiming that the termination of his services was unfair. The matter was allocated to me as part of my regional commitments for the Illawarra region. I nevertheless set Mr Apps' Part 6 application down for a preliminary hearing on Friday, 3 November, 2006 in Sydney. Conciliation failed to settle the matter. I programmed it for arbitration in accordance with Practice Direction No.17 and the matter was reallocated to me for that arbitration by Registry staff. 4 I set the matter down for a mention and programming, also in Sydney, on Friday, 13 April, 2007 to determine an appropriate venue for the arbitration of the matter and the parties requested that, for their convenience, the arbitration also take place in Sydney. Registry staff assisted by providing me with three days for that hearing from the days already committed in my diary: Thursday, 10 May, 2007, Friday, 11 May, 2007 and Thursday, 17 May, 2007. It became necessary to vacate Thursday, 17 May, 2007, a day that had been dedicated to final submissions, because it clashed with another commitment of Mr Niven, who represented Mr Apps in the hearing. With the consent of Mr Newall, representing the RTA in the proceedings, the hearing was rescheduled for Thursday, 21 June, 2007 for those final submissions. 5 Mr Niven called Mr Apps to give evidence in the hearing. Mr Newall called Ms Brown as a witness in the hearing. He also called four other members of the RTA staff to give evidence in the hearing: Mr Rod Tout, the director of corporate services and reform, Ms Emilia Cvetkovic, the manager of workplace conduct, Mr Stephen Butt, a regional manager, and Mr Robert Bill, an administrative services officer.

6 Mr Apps claimed in his evidence in this hearing that originally he was attempting to establish a personal relationship with Ms Brown but when she made it clear to him that she did not welcome his advances in that direction he no longer wished to continue that relationship with her and he did not do so. He nevertheless attempted to be " ...just friendly..." with her. Mr Apps claims that in return sometimes Ms Brown would be friendly to him and sometimes she would be rude to him. Mr Apps believed that Ms Brown was sending out confusing "...mixed signals..." to him. For instance:

Initially, when Mr Apps commenced employment in Goulburn Ms Brown went to lunch with Mr Apps and attended movies with him. She claimed she did so because she knew how lonely it could be for a single man relocated to a country region where he knew nobody. Ms Brown also asserted in her evidence that she had gone to lunch alone with other male employees as well. Ms Brown claimed that she subsequently ceased personal contact with Mr Apps and such lunches that Ms Brown and Mr Apps then attended were group lunches where other staff members were in attendance as well. * Mr Apps offered Ms Brown a disused bathtub which had been left at a stockpile site and delivered to her home.

*Ms Brown frequently brought in compact discs for Mr Apps to burn for her so that she would have a duplicate copy of the music to play when she was driving in her utility vehicle. Mr Apps also apparently burned a copy of those compact discs for his own use.

*Ms Brown accompanied Mr Apps to look at a display home that he was building. According to her, she did so to help him pick out colours as Mr Apps is colour blind.

*Ms Brown also sent various personal e-mails - jokes and unusual or humorous photographs - around the office, including to Mr Apps. (She has been disciplined by the RTA management for her excessive use of the internet for personal use in that respect.) She asserted that she continued to send him those personal e-mails even after her relationship with him had become strained because he had been angry with her when she ceased sending them to him.

7 Ms Brown claimed that within a few months of Mr Apps' arrival in Goulburn he became "...protective and a nuisance in my life...". She asserted that she was contemplating taking out an apprehended violence order against Mr Apps but did not go ahead with it. She claimed that she had informed Mr Bill of her intention to take out an AVO against Mr Apps but Mr Bill cannot recall any such conversation with her. But certainly by the time that Ms Brown found it necessary to lodge a formal complaint about Mr Apps - Thursday, 28 February, 2006 - and no doubt earlier than that, Mr Apps should have been well aware that there was no possibility of his continuing the personal relationship with Ms Brown that he was so obviously seeking.

8 Ms Brown had lodged the formal complaint with Mr Butt concerning Mr Apps' conduct with her extending over a period of two years, viz:

Ms Brown and Mr Apps are members of the Crookwell Amateur Dramatic Society. Mr Apps' role was essentially in the initial stages of productions, ie building the stages. Ms Brown was a performer in a particular stage production ("Rewound"). By the time of rehearsal for stage productions Mr Apps had no constructive duties to perform but according to Ms Brown, during rehearsals Mr Apps frequently sat and stared at her, making her feel most uncomfortable. She spoke to him in the kitchen of the building in which the stage performance was taking place and told him that she was not interested in maintaining a personal relationship with him.

Mr Apps sent Ms Brown numerous e-mails and cards seeking her friendship. Mr Apps also sent Ms Brown numerous other e-mails, some of which she claimed were of a sexual nature and included photographs of nude people.

Mr Apps on occasions gave Ms Brown gifts - flowers (on Valentine's Day), chocolates, a magnetic brown dog (which she placed up on the wall near her work station) and a stuffed teddy bear. She claims that she did not encourage him to do so. Mr Apps did not give such gifts to other female staff members who were married. Ms Brown was the only single woman on the Goulburn RTA staff and Mr Apps asserted in his evidence that he gave the gifts to her and not other female staff members because she was the only single woman.

Mr Apps also gave Ms Brown Christmas cards with personal messages on them thanking her for her friendship and expressing the wish to continue that friendship.

Mr Apps would often touch Ms Brown's shoulders to gain her attention and this physical contact bothered her to the point where she spoke to Mr Apps about it in the car park and asked him to stop touching her. Mr Apps claimed that it was difficult to communicate with Ms Brown when she was on the telephone but Ms Brown saw no need for any physical contact from Mr Apps and stated that no other employee needed to touch her to get her attention. Ms Brown also claimed that other staff members began copying Mr Apps by touching her in the same manner as Mr Apps as a joke.

Ms Brown also asserted that Mr Apps often would come and speak to her when she was alone, despite warnings that he had received not to have any contact with her.

It is notorious that there are a number of sex shops in Fishwyck and apparently something of a standing joke in the office when RTA employees were required to go there for work. Upon returning from a trip for the RTA to Fishwyck, Mr Apps presented Ms Brown with a brown paper bag containing a box of condoms and brochures concerning ladies' pubic hair shavers and when she refused to accept them, told her that she would need them "...for the life she led...".

*Ms Brown occasionally lives with her parents on their farm. She claimed that on Tuesday, 14 February, 2006 she observed the vehicle ordinarily driven by Mr Apps drive past her parents' residence three times in a short period of time - 15 minutes. On the first occasion she was saddling or unsaddling a horse. On the second time she was riding that horse. On the third occasion she had been standing in the paddock. Ms Brown did not see Mr Apps' face but she appears to me to be confident that it was Mr Apps driving the vehicle. Mr Apps conceded that he drove past Ms Brown's home on one occasion on that day but he denied that he did it more than once. * Mr Apps visited Ms Brown in hospital on Monday, 20 February, 2006. Ms Brown had fallen from her horse and had injured herself. She was also concussed at the time and was wearing a neck brace. Mr Apps claimed that when he visited Ms Brown he was merely being friendly to her but she did not wish to preserve any friendship with Mr Apps and she regarded his visit as unwelcome. She claimed in her evidence that she was scared.

Ms Brown retained the keys to the office safe and while she was recuperating from the fall from the horse. She made arrangements for the keys to be returned to the office. She claims that the plan was for her mother to hand over the keys to the bridge crew outside an hotel at Tarago - a five minute drive from the farm of Ms Brown's parents. Instead, Mr Apps went to pick up the keys with Ms Brown's parents at their farm. Mr Apps took it upon himself to make the trip some considerable distance out of his way - an hours drive, according to Ms Brown - to ingratiate himself with Mrs Brown's parents, she believes.

9 Ms Brown attended a wedding of a friend on Saturday, 28 January, 2006. She claimed that Mr Apps had continuously questioned her about who she was taking to the wedding, viz:

"You must be taking someone. Who are you taking to the wedding?"

And after the wedding, Ms Brown claimed that Mr Apps asked her:

Ms Brown claimed that she had ignored his comment and, in fact, tried to avoid talking to him at all, except for work related matters.

10 What finally prompted Ms Brown to make the complaint about Mr Apps on Tuesday, 28 February, 2006 - the "trigger", as Mr Niven described it in his submissions - was that Mr Apps had asked her:

And immediately after that, when Ms Brown indicated that she had met a policeman from Dubbo, Mr Apps responded with another question, viz:

Mr Apps denied that conversation but at least part it was overheard by Mr Bill. 11 Mr Bill recalled general discussions concerning the police officer and Mr Apps saying words to the following effect to Ms Brown:

To which Ms Brown replied that what she did in her own private life was no concern of Mr Apps. Then Mr Bill observed Mr Apps come over and whisper something in Ms Brown's ear which Mr Bill did not overhear. Mr Bill has confirmed in his evidence before me that when he used the expression "...slept with him..." he was being polite and he acknowledged that the offensive word "root" that Ms Brown has recorded in her evidence was what was actually said by Mr Apps at the time.

12 Ms Brown claimed in the witness statement she provided as part of her evidence that:

"...I had been unhappy about Mr Apps' behaviour and the attention he directed to me for some time. I had not complained formerly prior to Thursday, 28 February, 2006 because, up until late February, 2006, whilst Mr Apps' behaviour had frustrated me, I had felt that I could control the situation. However, when Mr Apps arrived, uninvited, to visit me in hospital on Monday, 20 February, 2006 I started to feel scared and intimidated and unable to handle the unwanted attention from him anymore..."

13 In fact, Mr Apps, no doubt recognising the souring of the relationship he had with Ms Brown and, in my view, expressing some jealousy with respect to any other person whom he believed had maintained a closer friendship with Ms Brown than he did, on Tuesday, 7 February, 2006 lodged a report of a conversation he had with another employee who had apparently alleged that Ms Brown had used the colour photocopy for private use, ie on behalf of Mr James Fitzpatrick, an RTA client (the manager of a heavy plant business) and a friend of Ms Brown with whom she had informed Mr Butt that she "...had gone out..." on occasions. In fact, whilst she apparently had no more than casual contact with Mr Fitzgerald, Ms Brown asserted that she had informed Mr Apps that he was her boyfriend in an attempt to discourage Mr Apps from pursuing his personal relationship with her. 14 That report was based on hearsay - what Mr Apps claims some other person said to him. The RTA has, in fact, taken the matter no further. There was, in fact, no colour photocopier in the Goulburn administration centre and depot at that time. The RTA view is that this allegation was malicious in nature on the part of Mr Apps - his attempt to get square with her. The friction in the working relationship between Mr Apps and Ms Brown, already high, appears to have increased as a result.

15 On or about Friday, 3 March, 2006 Ms Brown had a disagreement with Mr David Maloney, another RTA engineer, concerning contractors and hired plant. Ms Brown informed Mr Butt about the disagreement but asserted that the issue had been resolved. Nevertheless, Mr Apps telephoned Mr Maloney and informed him that Ms Brown had been "...bad mouthing..." him and Mr Maloney telephoned Mr Butt concerning it. It seems to me that Mr Apps' only motive for the telephone call he made to Mr Maloney was to cause difficulties between Ms Brown and Mr Maloney.

16 Mr Apps has also made a very serious allegation against Ms Brown with the RTA and he has repeated it in his evidence before me in this hearing. He claimed that Ms Brown telephoned him on Tuesday, 14 March, 2006 while he was at home on sick leave and described him as a "...low life, lying, fucking cunt...", that he "...was going down..." and that she "...never loses..". Mr Apps asserted that she said words to the following effect:

"Cowboys will do anything. And who knows cowboys? Me, as in Donna. When you are splattered, you'll be sorry."

Mr Apps asserted that he took Ms Brown's threat very seriously. He claimed that he informed another employee - his immediate supervisor - about the telephone call. That employee was not called to give evidence in the hearing by Mr Niven and Mr Newall highlighted that fact in his submissions. He argued that I should consequently draw an inference that the other employee would not have assisted Mr Apps in his claims [ Jones v. Dunkel (1959) 101 CLR 298].

17 The alleged telephone call is strenuously denied by Ms Brown. But her telephone records which were provided under subpoena reveal that some person from Ms Brown's residence, presumably Ms Brown, did, in fact, make a telephone call to Mr Apps on that day which extended for 25 minutes. Given the deteriorating relationship she had with Mr Apps at the time, and the fact that she had already made a complaint that Mr Apps was sexually harassing her, that was a very odd and unwise act on her part. What could she constructively hope to have achieved by any telephone contact with Mr Apps at that time? Mr Niven submitted that the telephone call "...cast a dark shadow..." over her credibility as a witness. 18 Of course, the fact that Ms Brown made a telephone call to Mr Apps does not provide any real corroboration of what she is alleged by Mr Apps to have said to him in the telephone conversation. But the fact remains that I am satisfied that she made the telephone call and that, unexplained, is an equivocal act [McGregor v. Stokes (1952) VLR 347 at pp.350 and 351]. I am satisfied that Ms Brown has not been entirely truthful in her evidence on that point at least and I therefore conclude that she is not a credible witness on whose uncorroborated evidence I may rely with any real confidence. 19 But I consider that Mr Apps has also presented himself in the hearing as an evasive witness and I believe that I must treat his evidence with some caution as well. Some of the claims he has made in this hearing are simply not supported on the evidence before me. Some of his evidence is, in fact, contradicted by other witnesses called to give evidence - Mr Butt and Mr Bill - whose evidence I regard as reliable.

20 Mr Butt spoke to Mr David Ebert, the general manager of financial and business services, concerning Ms Brown's complaint against Mr Apps and on Thursday, 16 March, 2006 Mr Ebert referred Ms Brown's complaint to Ms Cvetkovic who has the responsibility, in consultation with relevant senior line managers, to monitor investigations of misconduct by employees (excluding allegations of fraud and corruption). Ms Wendy Klaassen, a senior consultant, was appointed to carry out an investigation of the complaint and in a letter dated Friday, 17 March, 2006 Ms Cvetkovic wrote to Mr Apps and Ms Brown informing them that the RTA was to conduct a fact finding investigation into the complaints made by Ms Brown against Mr Apps.

21 Ms Klaasen's fact finding report was provided to the RTA on Thursday, 13 April, 2006. In her report she dismissed one allegation of the six allegations made against Mr Apps as not substantiated but she found four of the allegations wholly substantiated and constituting a breach of the RTA's Code of Conduct and Ethics and the RTA's Harassment, Discrimination and Workplace Bullying Policy. She recommended that Mr Apps be directed to attend a disciplinary interview and on Thursday, 18 May, 2006 Mr Apps received a letter from the RTA requesting him to attend a disciplinary meeting on Tuesday, 30 May, 2006, viz:

"..At this interview you will be asked to respond to allegations that you breached the RTA Code of Conduct and Ethics by failing to conduct yourself professionally towards Ms Brown and failing to treat her with courtesy and respect. You will also be asked to respond to allegations that you breached the RTA Harassment, Discrimination and Workplace Bullying Policy in that, over a period of approximately three years you engaged in behaviour which has harassed, offended and intimidated Ms Brown. As a consequence of your conduct towards Ms Brown, as described by her, she has become fearful for her safety.

You engaged in harassing and intimidatory behaviour when, within several months of commencing employment in September, 2003, and on an ongoing basis over the next three years, you began to intrude in Ms Brown's private life. These intrusions involved unwanted and unwelcome enquiries about her out-of-work activities including:

(b) showing unwanted and inappropriate attention towards Ms Brown at the Crookwell Amateur Dramatic Society;

(d) visiting Ms Brown in the Goulburn Hospital on Monday, 20 February, 2006 during working hours, even though you had not been invited to visit her;

(e) unnecessarily attending the Brown family farm on the evening of Monday, 20 February, 2006 to collect safe keys in an ongoing attempt to form a closer relationship with her through her parents;

(f) asking Ms Brown inappropriate questions about her association with a male police officer that she had met and making inappropriate comments about her personal ethics in a conversation at the Goulburn Administration Centre on Tuesday, 28 February, 2006.

You engaged in behaviour which is considered as sexually harassing, harassing and intimidatory when you formed an obsession to Ms Brown and have not acted in a rational manner in your dealings with her, including making unwelcome and unwarranted advances towards Ms Brown, such as:

(a) sending Ms Brown cards, e-mails and gifts indicating that you were seeking her friendship;

(b) giving Ms Brown disused RTA equipment (slings) and delivering a bathtub to her from an RTA stockpile site.

You engaged in behaviour which is considered as sexually harassing when:

(a) on return from a trip to Fishwyick, you presented Ms Brown with a brown paper bag containing a box of condoms and brochures about ladies' pubic hair shavers; and

(b) you said to Ms Brown that '...you will need it, with the life you lead...' when Ms Brown attempted to hand the bag back to you.

You did not treat Ms Brown and other staff professionally and with courtesy and respect when you became moody and ill tempered whenever your advances were rejected by Ms Brown.

You did not comply with RTA administrative requirements when on occasion you chose not to deal with Ms Brown on RTA plant hire matters in circumstances where it appears that you may have had a business case to do so.

You engaged in behaviour which is considered as victimisation when, prior to being formally notified, you became aware that Ms Brown had lodged a complaint against you, and you attempted to retaliate against Ms Brown by:

(a) lodging a report (which was based on hearsay) with the RTA's control management services on or around Tuesday, 7 February, 2006 about Ms Brown allegedly doing work for Mr Fitzpatrick: this notification was malicious in nature, potentially vexatious, or at best misconceived and ill founded: it is noted that after making the report you attempted to withdraw the allegation or part thereof;

(b) either fabricating entirely or significantly embellishing your report of a phone call from Ms Brown on Tuesday, 14 March, 2006 to the extent that it was false or misleading: it is alleged your motive in making the complaint by raising the matter with your supervisor and presenting false statements at interview during the fact finding investigation was malicious;

(c) involving yourself inappropriately in work related conversation between Ms Brown and another RTA employee in which you had no genuine interest in an attempt to further diminish Ms Brown's standing within the RTA..."

The final report of the chairperson of that disciplinary interview, Ms Helen Colbey, provided her report to the RTA on Thursday, 15 June, 2006 and it was referred to a disciplinary panel which was convened on Monday, 26 June, 2006.

22 The RTA wrote to Mr Apps on Monday, 10 July, 2006 informing him that the RTA was considering the termination of his services and giving him 7 days to make further submissions and provide any further information or material for the RTA to take into account. To ensure that there was no possibility of contact with Ms Brown in the workplace, Mr Apps was relocated to the RTA's regional office in Goulburn - away from Ms Brown.

23 On Friday, 14 July, 2006 a firm of solicitors representing Mr Apps wrote to the RTA requesting a 21 day extension of the 7 day time limit for his submissions and any further material concerning the prospect of his dismissal. On Tuesday, 18 July, 2006 the RTA replied to the solicitors granting a 14 day extension. On Friday, 21 July, 2006 another firm of solicitors (which is presently representing Mr Apps in this hearing) wrote to the RTA making a request for a 21 day extension. The RTA e-mailed to Mr Apps on Monday, 24 July, 2006 seeking clarification as a matter of urgency as to which firm of solicitors actually represented him and Mr Scott Kearley, the RTA workplace conduct officer, telephoned Mr Apps on Thursday, 27 July, 2006 to enquire whether he had received the e-mail. Mr Apps informed Mr Kearley that he had not received the e-mail but he confirmed that he was now represented by the new firm of solicitors. The RTA wrote to those solicitors on Monday, 31 July, 2006 granting a 14 day extension of time for Mr Apps to respond to the RTA letter of Friday, 14 July, 2006, ie until Friday, 4 August, 2006.

24 On Friday, 4 August, 2006 the solicitors wrote submissions on behalf of Mr Apps. The disciplinary panel was reconvened on Monday, 7 August, 2006. The subsequent recommendation of the disciplinary panel was to confirm the decision to terminate Mr Apps. The decision of the RTA, conveyed in the RTA letter to Mr Apps on Friday, 18 August, 2006, was to terminate Mr App's service summarily.

25 Various kinds of behaviour may fall under the general heading of sexual harassment: holding out promotion or other benefits for sexual favours, kissing, touching, pinching, tickling, sexual propositions and gender-based insults or taunts. A person is harassed if he or she is subjected to unsolicited and unwelcome sexual conduct, eg unwanted physical conduct, verbal comments or abuse or offensive gestures. At one extreme is criminal sexual conduct and coerced sexual intercourse. But sexual harassment may also be persistent staring, leering or confronting a person with pornographic literature or e-mails. It is sexual harassment for an employee to joke and snigger about sexual matters in the workplace in an attempt to humiliate or embarrass another person. 26 In the exercise of my functions in any proceedings S.169(1) directs me to have regard to the principles of the 1977 Anti-Discrimination Act which in S.22A relevantly describes sexual harassment in the following terms:

"For the purpose of this Part, a person sexually harasses another person if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated."

27 It is RTA policy contained in its published Code of Conduct and Ethics, that:

"...harassment will not be tolerated under any circumstances..."

And the Code of Conduct and Ethics describes harassment in terms consistent with the principles I have just described, viz:

"...Harassment is unwelcome or unreciprocated behaviour which makes a staff member or customer feel intimidated, offended or belittled in the workplace. It can take place between:

a staff member and another person in the workplace, eg a customer or student.

Harassment can occur in any location where people are working, including those where services are delivered outside the usual place of work, such as a customer's home..."

28 All employees have the right to the quiet enjoyment of their work without being bullied or harassed by supervisors and/or fellow employees. An employer has a duty of care to provide a safe system of work for all of his employees and, in that connection, to guard them against risk not only of physical injury but the mental or psychological injury which would flow from bullying and harassment as well. In his evidence, Mr Tout emphasised the importance of the RTA policy on workplace harassment in the context of the common law obligations falling upon all employers to provide a safe system of work. That obligation is complemented by S.8(1) of the 2000 Occupational Health and Safety Act, viz:

"Every employer shall ensure the health, safety and welfare at work of all his employees."

29 In that respect I note the unreported judgement of the Court of Appeal of the State Supreme Court (Spigelman CJ, Mason P and Meagher JA) on Friday, 20 May, 2000 in State of New South Wales v. Seedsman [Matter No. CA 40918 of 1998] and, in particular, the judgment of Spigelman CJ (with whom Mason P and Meagher JA agreed). His Honour commented (at p.7) that the trial judge had:

"…identified a duty of employers to provide a safe system of work, which included a duty to take reasonable precautions against the risk of mental or psychiatric injury, as well as against that of bodily injury. He propounded a test expressed in terms of whether or not the (employer) had, or ought to have had, knowledge of the risk and the means of reducing or avoiding it…"

Also I note the comments made by Sams DP in his unreported decision of Tuesday, 25 July, 2000 in Ueckert v. Australian Water Technologies Pty Limited [Matter No.IRC 5553 of 1999 at p.58, viz:

"...It is trite for the Commission to observe that there is absolutely no place, or reason for, the harassment of one employee by another employee, be it sexual or otherwise, in or outside the workplace. Indeed, such behaviour is unlawful. When proven, it will, in my view, be a sound basis for disciplinary action and, if the behaviour continues, or is of a serious nature, it may constitute grounds for summary dismissal..."

30 It is, of course, sexual harassment if a supervisor requests sexual favours from a junior employee in return for promotion or other benefit or threatens the sack for non-co-operation in that respect. It is sexual harassment for a person occupying a supervisory position to make intrusive inquiries into the private life of any employee or persistently request unwelcome social contract with that employee. In O'Callaghan v. Loder (1984) 5 IR 320 Matthews DCJ of the State Equal Opportunity Tribunal gave the words "sexual harassment" the widest possible meaning, based on her reading of the relevant literature and case law at that time, essentially from the United States of America and Canada, stating (at p.321) that:

"…I adopt as a starting point that a person is sexually harassed if he or she is subjected to unsolicited and unwelcome sexual conduct by a person who stands in a position of power to him or her..."

"...It follows...that if a complainant has been subject to unwanted and unsolicited sexual conduct by his or her employer in such circumstances that the employer knew or ought to have known that the conduct was unwelcome, then that will amount to a contravention of the Anti-Discrimination Act in the following circumstances: firstly, if the conduct was such as to create an unwelcome feature of the employment...or to be a detriment...or secondly, if the employer secured compliance with his sexual demands by threatening adverse employment consequences...or thirdly, if rejection of the employer's sexual demands led to retaliation in the form of loss of access to employment opportunities...or fourthly, if rejection of the employer's sexual demands led to retaliation in the form of dismissal or some other loss of tangible employment benefits..."

31 O'Callaghan v. Loder was thereby addressing a narrower field - the alleged discrimination of a female employee by a person occupying a position of authority and supervision of her. It does not appear that Mr Apps was really in any position of "power", ie in any direct supervisory role, with respect to Ms Brown, who was directly responsible to Mr Butt. Nevertheless, because Ms Brown had refused Mr Apps' advances to her and had lodged the complaint concerning his behaviour, he was taking steps to undermine her employment in the RTA in retaliation. His conduct represented an attempted threat to her continued employment with the RTA - or at least that was his intention - apparently to encourage her to have a social contract with him. 32 In his submissions, Mr Niven described the relationship that had developed between Mr Apps and Ms Brown as "dysfunctional" and he submitted that the RTA staff had "...closed ranks..." behind Ms Brown as Mr Apps was perceived to be "...a Johnny-come-lately..." as far as the RTA Goulburn regional office was concerned. I do not believe that to have been the position. I am satisfied that Mr Apps' conduct provides what I regard as a textbook case of sexual harassment in the workplace. To be sure, some of his conduct, looked at in isolation - visiting her in hospital, giving her gifts and picking up the works keys from Ms Brown's parents - may be perfectly innocent acts and no more than a friendly gesture to Ms Brown on Mr Apps' part, as he asserted in his evidence. But in combination with the other incidents referred to me in the hearing, those seemingly innocent acts take on a much more sinister connotation. It was Mr Newall's view that Mr Apps was, in fact, stalking Ms Brown.

33 In any event, it should have been clear to Mr Apps, as it has been to Mr Butt and Mr Bill, and to me in this hearing, that Ms Brown regarded his advances to her as unwelcome. He also appears to have been jealous of anyone else - Mr Fitzpatrick or the police office - with whom Ms Brown was apparently on friendlier terms. His obsessive conduct persisted up to the time that Ms Brown found it necessary to make the formal complaint against him, at which time he seems to have gone out of his way to make Ms Brown's working life as difficult as he could. This is not conduct which is acceptable in any modern employment environment.

34 To my mind, in the transcript of his record of interview with Ms Klaasen on Monday, 3 April, 2006 Mr Bill accurately described Mr Apps' conduct with Ms Brown when he said:

"...He has to my thinking been obsessed with Ms Brown... Its like the old saying - '...It's a lover spurned...'. I think that's his biggest problem. She wanted to be friends and he wanted to go further and she wouldn't and he just persisted... The interaction has been sometimes hostile, sometimes friendly. One makes a move to be friends, the other sort of rejects that and they come back as, what you call it, little picking things at each other all the time. Then the next hour they're friends again and it's back on again in the afternoon..."

Clearly, that was not a situation which the RTA could allow to continue.

35 The procedure which Ms Cvetkovic outlined in her evidence was very comprehensive and, I believe, fair to Mr Apps. But I am obliged to form my own independent opinions concerning the allegations made against Mr Apps based on the evidence before me and not on what the RTA management came to believe was the correct position. The test from the authorities such as the decision of the Full Bench of the South Australian Industrial Commission (Stanley P, Cawthorne CP and Stevens C) in Bi Lo Pty Limited v. Hooper (1992) 53 IR 224 which emphasises the results of any internal investigations rather than an independent view by the member of the tribunal hearing the matter, does not apply in Part 6 proceedings - see, for instance, the so far unreported decision of the Full Bench of the Commission (Sams DP, Boland J and Grayson DP) on Thursday, 19 April, 2007 in Rudder v. Booroongen Djugun Aboriginal Corporation [Matter No. IRC 2539 of 2006 at pp.8 and 11].

36 In Part 6 proceedings I am not confined to consider matters of this nature in the narrower sexual discrimination context alone, as was the case in O'Callaghan v. Loder. My task in this hearing falls essentially under two headings, viz:

(i) to determine whether or not, using the language of S.84(1), the dismissal was "harsh", "unreasonable" or "unjust" [ Busways v. Johnson (1994) 55 IR 255 at p.261]; and (ii) if so, to determine whether reinstatement, re-employment or monetary compensation is the appropriate remedy, with preference being given to reinstatement and re-employment over monetary compensation [ Burge v. BHP Steel Pty Limited (2001) 105 IR 325 at pp.345 and 346 and Plummer v. Stannard Brothers Launch Service (2005) 145 IR 111 at p.115].

37 Since Mr Apps has denied many of the allegations made against him in this hearing, the onus of proof to establish his misconduct, on the civil standard of the balance of probability, rests with Mr Newall. As the Full Bench of the Commission (Cahill J - Vice President, Hill J and French C) indicated in Wang v. Crestell Industries Pty Limited (1997) 73 IR 454 at pp.463 and 464, viz:

"…The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v. M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p.362..."

38 I am satisfied that, whilst Ms Brown may not necessarily have been totally innocent in creating the unsatisfactory relationship she ultimately had with Mr Apps, his conduct on many occasions and over a lengthy period of time was most improper. He should not have sat and stared at her in the rehearsals for the stage show she was involved in; he should have avoided touching her unnecessarily; he certainly should have resisted giving her the box of condoms and brochures on pubic hair shavers; he should have avoided the very offensive comments he chose to make about her sexual relations with other persons; he should not have responded vindictively to her complaints by making frivolous complaints of his own against her. The fact that Mr Apps burned compact discs for Ms Brown or that she forwarded personal e-mails to him, among other staff members, does not mean that Mr Apps was entitled to deduce that Ms Brown was giving him an impression that she was wishing to restore a personal relationship with him, as Mr Niven appears to be submitting in this hearing. 39 As the Full Bench of the Commission (Wright J - President, Harrison DP and Boland J) in Attorney-General's Department v. Miller (2007) 160 IR 185 observed (at p.209):

"...the test is an objective one that requires the finder of fact to ask whether a reasonable person would consider that the conduct in question would be likely to offend, humiliate or intimidate..." The Full Bench adopted the following principle (at p.209):

"...Where a person has made known that the conduct is unwelcome, it can be generally concluded that the conduct is such that a reasonable person would have anticipated that the other person would be offended..."

As Mr Newall submitted, Mr Apps' conduct with Ms Brown was inappropriate and offensive and, I believe, that any reasonable person would regard it as such. Certainly, Ms Brown did. He had targeted her for unwanted attention, despite her making it clear that she was not interested in a personal relationship with him. Mr Newall recorded in written submissions that he provided to me that: "...what matters is that Mr Apps committed a number of acts of harassment. Of course, he was told, as he admits, by peers and supervisors to stop in his attentions to Ms Brown. He persisted even after that..."

40 Initially, Mr Apps had originally proposed that, in settlement of his Part 6 application, he would be prepared to accept re-employment (and demotion) in terms of S.89(2) as a bridge and wharf carpenter attached to the RTA Dubbo office where he was originally employed, viz:

"…to re-employ the applicant, on terms and conditions determined by the Commission, in another position that the employer has available and that, in the Commission's opinion, is suitable…"

41 There are two requirements with S.89(2): (i) that the former employer has another position available and (ii) that, in the opinion of the member of the Commission hearing the matter, the applicant is suitable for that position. In that respect, in Riley v. WorkCover Authority of New South Wales (2006) 151 IR 396 at p.420 the Full Bench (Wright J - President, Boland J and Connor C) confirmed that, before a finding can be made as to whether the dismissal was harsh, unreasonable or unjust, there has to be a full and transparent consideration by the Commission as to whether there was a position available that was suitable for the employee for if such suitable position was available a finding that the dismissal was not harsh, unreasonable or unjust may not be open. Whether there was a position actually available does not mean that the position has to be vacant but whether there was a position "...capable of being used by, or at the disposal or within the reach of the employer - whether or not it was vacant at the time...". 42 Nevertheless, in this hearing it has been Mr Niven's primary submission that Mr Apps be reinstated in employment as a works supervisor in terms of S.89(1). Mr Niven accepts that it would be impracticable for Mr Apps to again return to work at the RTA Goulburn works office but he has proposed that he be transferred to some other area of RTA operations and has suggested either Dubbo or Bellambi in that respect. I consider that the RTA was a large enough organisation to accommodate such a transfer. Although there has been no evidence led concerning what work as a works supervisor or bridge and wharf carpenter may be available to Mr Apps in the RTA outside the Goulburn area, ie in Dubbo or Bellambi, I believe that I may confidently accept that some such work would be available.

43 Mr Apps' lengthy period of employment with the RTA had apparently been without incident prior to the issues involving Ms Brown. Away from the Goulburn office and depot, and Ms Brown, there may be no further unfavourable issues raised against him. There have not been any problems of that nature in the past. But, in my view, that is a case of putting the cart before the horse. Before I should consider any remedy for Mr Apps, it must be established that his dismissal was unfair in the first place. Mr Apps' misconduct was in clear breach of the RTA Code of Conduct and Ethics, and contrary to acceptable conduct in any workplace, I would think. But does it justify his dismissal when there is a prospect of transfer to another area?

44 In many cases, issues involving sexual harassment in the workplace may be resolved simply by counselling the offending employee. The termination of an employee's services is at the extreme end of the range of disciplinary measures available to an employer in such a case - "...the ultimate sanction...", to use the words of the Full Bench of the Commission (Fisher J - President, Hungerford J and Connor CC) in Pacific Power v. Crump (1993) 48 IR 296 at p.302. 45 I note in that respect the decision of the Full Bench of the Commission (Boland and Blackman JJ and Macdonald C) in Maitland v. Royal Blind Society of New South Wales (2004) 138 IR 75 where the dismissal of an employee accused of sexually harassing a fellow employee was considered to be harsh, unreasonable or unjust for the purposes of S.84(1) because there remained some doubts concerning the evidence and, among other things, the Full Bench believed that the personal and economic consequences for the dismissed employee was disproportionate to the seriousness of his conduct. Because of the specialised skills possessed by the dismissed employee, monetary compensation under S.89(5) was not considered an appropriate remedy and the employee was reinstated in employment. 46 The Full Bench in Maitland v. Royal Blind Society of New South Wales had this to say (at p.92): "...The appellant was engaged in a specialist occupation. His dismissal left him unemployed and because of the nature of his specialist skills, employment would have been hard to find, especially when he carried the stigma of being dismissed for what was in reality a belief on the part of the employer that (the appellant) was guilty of sexual harassment.... The Commissioner found that the dismissal of (the appellant) was not harsh, unreasonable or unjust....(but) it is not evident that the Commissioner considered the personal and economic consequences for the appellant of the dismissal. Where an employee who has been dismissed from his or her employment, and particularly where the employee pleads harshness as to the consequences of the dismissal for his or her personal and economic situation, as was the case here, it is important that due regard is given and is seen to be given to those matters. We consider the Commissioner erred in this respect to the extent that dismissal from employment was wholly disproportionate to the seriousness of the appellant's conduct..." 47 I do not consider that in Maitland v. Royal Blind Society of New South Wales the Full Bench is in anyway contemplating that, where an employee is guilty of serious sexual misconduct directed against a fellow employee, the economic circumstances of the guilty employee or the difficulties he may experience in obtaining alternate employment should prevent the employer from fairly exercising its right to terminate his employment. It is simply highlighting the need to take such matters into consideration. I believe that the RTA has done so but rejected the transfer of Mr Apps to another regional office. It does not alter the fact that Mr Apps' conduct was such as to suggest that, in all the circumstances, his dismissal by the RTA was in any way harsh, unreasonable or unjust for the purposes of S.84(1). I do not believe that it was.

48 Whilst Mr Apps may have had a lengthy and otherwise unblemished employment record with the RTA, in my opinion, his conduct and his failure to appreciate that his actions were inappropriate and wrong (up to and including when he was giving evidence in this hearing, it would appear to me), in my opinion, has really left the RTA with no other choice but to bring his employment with it to an end. Mr Newall submitted in the hearing that the RTA's opposition to Mr Apps returning to work with it was "robust" and that Mr Apps had neither shown any contrition for his conduct or shown any indication that his conduct was wrong. I believe that, in those circumstances, Mr Apps' misconduct warranted his dismissal. Current community standards on codes of conduct in the workplace involving allegations of harassment, sexual or otherwise, demand that all employers treat such cases very seriously when they do occur. The RTA has certain obligations for its staff in that respect which simply transferring the problem to another region will not necessarily overcome.

49 I see no grounds for my intervention in support of Mr Apps. I dismiss his Part 6 application.

Apps, Nigel applicant Bill, Robert administrative services officer Brown, Donna wages clerk Butt, Stephen manager Cvetkovic, Emilia manager of workplace conduct Tout, Rod director of corporate services and reform

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