Attorney General's Department of NSW v Lupcho Dafkovski - [2007] NSWIRComm 94 - NSWIRComm 2007 case summary — Zoe

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Attorney General's Department of NSW v Lupcho Dafkovski

[2007] NSWIRComm 94

Industrial Relations Commission (NSW)|2007-07-01|Before: Walton J, Harrison DP, Boland J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2007-07-01

Before

Walton J, Harrison DP, Boland J

Source

Original judgment source is linked above.

Judgment (85 paragraphs)

[1]

Background 3 The respondent was employed by the appellant in the position of Deputy Registrar, Downing Centre Local Court (Clerk Grade 9/10). The respondent commenced employment with the appellant on 6 April 1987 and was dismissed for misconduct on 22 December 2005. 4 The notice of termination detailed the allegations set out below and referred to the investigations that had been undertaken and conclusions formed on the basis of the misconduct found. The letter also contained the following observations: There is no information contained in Mr Dafkovski's personnel file that would indicate previous incidents or concerns in regard to his performance, conduct or behaviour. Mr Dafkovski through the investigation denies the allegations. This, in my experience, is quite typical of those charged with sexual harassment or harassment. Officers the subject of breaches of discipline involving harassment generally see nothing wrong with the way they treat others. What disturbs me about this matter is the way that Mr Dafkovski attempts to put the blame on the two complainants and the officer who undertook the disciplinary investigation. I am of the view that the conduct demonstrated by Mr Dafkovski does constitute sexual harassment and harassment and his conduct has been such that it brings upon himself the consequences of disciplinary action. … A reasonable person would concur that the conduct of the type engaged by Mr Dafkovski is inappropriate to the workplace. The conduct of Mr Dafkovski is unacceptable and will not be tolerated. As Director General, it is my responsibility to protect staff from such behaviour. Mr Dafkovski's misconduct is so serious it is not appropriate for him to remain in the public service and dismissal is the appropriate course of action.

[2]

[5]

(c) whether the applicant [Mr Dafkovski] was dismissed unfairly within the meaning of Pt 6 of Ch 2 of the Act. 7 As to the first two issues, Grayson DP found that Mr Dafkovski was not precluded by the GREAT Act from commencing proceedings for unfair dismissal and exercised his discretion to accept the application out of time. In relation to the application of the GREAT Act, Grayson DP held (at [14]): Having considered the competing contentions and having regard in particular to the statutory objective of avoiding duality of proceedings, I am persuaded that the construction for which Mr Hatcher contends is the proper one in the circumstances. This is not a case where appeal rights have been substantively exercised under the GREAT Act. Rather there has been an express written election by the applicant to forego those rights and as may be apparent, I do not accept the respondent's argument that the procedural stop of filing a notice of appeal under the GREAT Act amounts to a substantive exercise of the right of appeal as contemplated by the opening words of s 25(3). 8 It is not necessary for the purpose of the present proceedings to examine his Honour's decision to allow the application out of time, as the appellant has not challenged his Honour's decision in this regard on appeal. 9 As to the third issue, namely, whether Mr Dafkovski's dismissal was harsh, his Honour observed that the appellant Department bore the onus of proving to the requisite standard the allegations of misconduct itemised in the appellant's notice of termination. Grayson DP summarised these as (at [19]): 1. During the period April 2004 and May 2005 the applicant sexually harassed or harassed Ms Mary Odichou and Ms Samar Khazma. His actions are said to be in breach of the Department's Code of Conduct and Ethics and the Harassment Prevention Policy. The details are: a) During the period April 2004 to January 2005 he sent text messages and/or made comments to Ms Odichou which contained sexual connotations including "I love you", "miss you", "it's me" or words to that effect;

[16]

(d) As to whether the respondent's misconduct justified dismissal, Grayson DP found (at [77]-[78]): Having so concluded, however, the matter has a substantial way to travel before it can be said that the applicant's conduct amounted to misconduct justifying dismissal particularly after Ms Khazma's allegations have been rejected. For a start and as Mr Hatcher submitted with some persuasive force, the allegations that the applicant intimidated the complainants; made them apprehensive about his intentions when he asked them into his office; left them powerless and (by slamming the door of Ms Saliba's car) brought the Department into disrepute are to put it as neutrally as I can, lacking in evidentiary foundation again particularly after Ms Khazma's allegations have been rejected. The remaining allegations insofar as they relate to Ms Odichou involve firstly, sending text messages and making comments containing sexual connotations; secondly, making annoying phone calls on 9 July 2004 and thirdly, touching her and attempting to kiss her. As I have already indicated I accept Ms Odichou's evidence that these things occurred and I accept that on the occasions and in the circumstances they occurred, she was made to feel uncomfortable. Her discomfort was elevated to the level of annoyance and anger on occasions and emotional distress on other occasions and it cannot be said in my opinion that because these things occurred outside the workplace, the respondent has no relevant legitimate interest in them. To the contrary, it must be accepted that the applicant's out of hours conduct towards Ms Odichou had a direct and adverse impact on workplace relations. It is not conduct, however, and paying due regard as I must to the principles contained in the Anti Discrimination Act 1977, which warranted the termination of an eighteen year otherwise unblemished career in the respondent's employ and as much was impliedly recognised in early 2005 when Ms Odichou's complaints or at least some of them, were initially dealt with at the local level. I am of the view and find accordingly, that the applicant's dismissal was harsh.

[17]

(e) As to the question of remedy, Grayson DP undertook the following analysis (at [79]-[83]): 79 Turning then to the question of remedy, it is submitted by Mr Benson in the event the dismissal is found to be unfair that the relief provided ought be tempered by the evidence overall. The respondent further submits that if reinstatement is contemplated, it ought be on conditions involving formal warnings and counselling and no back pay ought be awarded. 80 As to the former of those propositions, Mr Hatcher submitted that the applicant sees practical merit in the conditions proposed. As to the latter, Mr Benson submitted that the applicant's statement that he remained unemployed since his dismissal was misleading and deceptive given the evidence later obtained (and relied upon) by the respondent that the applicant and his wife were at all material times the legal and beneficial owners of a company that in November 2005 purchased a bistro and retail tobacconist in Wollongong. Further and as video surveillance conducted by the respondent's investigator revealed, the applicant worked in the bistro carrying out a range of duties normally associated with restaurant employees. 81 When taken in cross-examination to this aspect of his evidence the applicant (by then aware of the respondent's knowledge of his business activities) sought to explain his non-disclosure by saying among other things, that neither he nor his wife drew a wage from the business and he therefore thought of himself as technically unemployed. Mr Benson submitted that the Commission would regard that as a matter of choice on the applicant's part and would consider the value of his work contribution to the business by reference to the rates prescribed by the Restaurant Employees (State) Award . The Commission would also infer that any effort made by the applicant to mitigate his loss by seeking employment was artificially limited by his efforts in seeking to establish the commercial viability of his business venture. In that regard, the applicant said his attempts to find work were concentrated in the Illawarra region where jobs were in short supply. He did not explain, thus leaving open the above inference, why he imposed such a limitation given that his employment with the respondent was for many years in the heart of Sydney. 82 Having regard to those things and to the fact of the applicant's misconduct and the nature of it, I agree with Mr Benson that an order for back pay ought not be made. 83 The respondent is therefore ordered to reinstate the applicant in his former position on terms not less favourable to him than those that would have been applicable had he not been dismissed. I make no order as to lost remuneration and I make no order as to continuity of employment. 84 I further order that the applicant's reinstatement be on the following conditions: 1. That he be formally warned that he will be accountable for any future conduct involving his interaction with subordinate staff (whether at or outside work) which impacts adversely on workplace relations; 2. That he be formally counselled on the obligations of a supervisor under both the respondent's Code of Conduct and the Harassment Prevention Policy; and 3. That he be formally warned that encouragement of or acquiescence in the circulation at work of emails or other communications containing sexually explicit or other offensive material will ground serious disciplinary charges. Appeal and cross-appeal 11 The appellant's appeal was narrowed during the course of proceedings from an appeal against the whole of the decision and orders of Grayson DP to relate only to the following two grounds:

[43]

(i) the fact that the appellant's approach to the construction of s25(3) of the GREAT Act leads to inconsistency with s90 of the Act is another reason why that approach is demonstrably incorrect. The approach taken by Grayson DP does not lead to any such inconsistency, but rather allows the two provisions to operate harmoniously with each other. Consideration: Jurisdiction 24 This jurisdictional aspect of the appeal involves a question of statutory interpretation and, specifically, the proper interpretation of s25(3) of the GREAT Act. In the context of the present proceedings, this question may be further narrowed to a question as to the proper meaning of the phrase, "appeals to the Tribunal under section 24" at the commencement of s25(3). In other words, what actions of an employee will constitute an appeal to the Tribunal for the purposes of the subsection so as to bring into operation the statutory bar? 25 The parties diverge as to what actions may satisfy this phrase. In essence, the appellant contended that an employee appeals to GREAT by the mere filing a notice of appeal whereas the respondent contended that the phrase should be interpreted as referring to the exercise of the substantive right to have the appeal heard and determined by GREAT so that it does not operate where an appeal is discontinued prior to that time. 26 The context of the phrase is that where an employee has appealed to GREAT under s24, a statutory bar comes into operation under s25(3) to the effect that the employee may not thereafter, in respect of the decision the subject of the appeal, appeal or institute other proceedings. A consideration of this issue arises in the present proceedings given that the respondent initially filed a notice of appeal with GREAT and shortly afterwards (before any conciliation or other proceedings had commenced) brought unfair dismissal proceedings before this Commission and discontinued the appeal before GREAT. 27 We reject the appellant's contention as to the construction of s25(3) and the circumstances in which the statutory bar operates for the reasons that follow. 28 We agree with the respondent's submissions that the following principles of statutory interpretation should guide our approach to s25(3):

[50]

(d) the phrase "appeals to the Tribunal" is used in s25(3) whereas the expression is not used in Division 3, "Procedure relating to the making of appeals". Division 3 sets out some of the procedural aspects as to filing an appeal and does not use the phrase "appeals to the Tribunal". Instead, s28 refers to "an employee may make an appeal by lodging … a notice of appeal in the approved form"; s31 refers to "notice of appeal being lodged" and "hearing of the appeal". Further, s31 permits determinations to be made "in relation to an appeal" as to who shall preside as chairperson at the sitting of the Tribunal "for the purpose of hearing the appeal". We agree with the respondent that an inference can be drawn that when the legislature dealt with the discrete aspects for initiating an appeal, it used different language and that if it had intended that the reference in s25(3) related only to filing a notice of appeal, it would have specifically referred to that filing, just as it had done in Division 3. 30 The appellant contended that the phrase "where an employee appeals to the Tribunal under Section 24" means an appeal "subject to and in accordance with" Pt 3 of the GREAT Act as this is the language used in s24. The appellant then submitted that the right to appeal is thus made "in accordance with" Pt 3 when the employee makes an appeal by lodging with the Registrar a Notice of Appeal in the approved form (see s28) and within the mandatory time limit of 28 days after being notified of the decision (s 29). We reject this contention as it, in effect, reads the phrase "appeals to this Tribunal" as making an appeal to this Tribunal. As already pointed out, there is a clear distinction between the use of these phrases as is evident from a comparison between ss 25 and 26. 31 Further, we reject the appellant's contention as to the role played by the word "thereafter" in ss 25(2) and (3). In effect, the appellant submitted that ss 25(2) and (3) operated such that an employee needed to take one of the actions referred to in ss25(2)(a) or (b) prior to commencing an appeal before GREAT. We do not accept that the word "thereafter" in s25(2) has this effect and instead consider that it simply means that upon the happening of an event specified in ss25(2)(a) or (b), the consequences set out in s25(2) will follow. 32 For these reasons, we are satisfied that the phrase "appeals to the Tribunal" should not be interpreted as being satisfied or activated by the mere filing of a notice to appeal and certainly does not operate in relation to an appeal which has been discontinued as in the present circumstances. 33 We observe that this interpretation achieves the legislative intention of s25. In this regard, counsel for the respondent referred us to the Full Bench's decision in Boda. The factual background in Boda is relevantly identical to the present situation, however, the challenge to the Commission's jurisdiction was made based on the operation of s90 rather than s25(3). Whilst we accept the appellant's submission that the appellant's contention in these proceedings was not dealt with in Boda, we do not accept the appellant's submission that, on this basis, Boda is irrelevant to the present question. 34 Instead, we accept the respondent's submission that Boda makes some important observations which are relevant to purpose and how s25 should be construed. The issue in Boda was whether s90(a) of the Act applied to preclude Ms Boda from continuing unfair dismissal proceedings before the Commission (on the basis that she had commenced proceedings before GREAT which were discontinued). The Full Bench found that the purpose of s90 was "the avoidance of the possibility of two (or more) courses being available to access a remedy in relation to the same event - in short, the prevention of duality of proceedings" (at [29]). As to the approach to be taken in interpreting s90, the Full Bench commented (at [33]): …The appellant conceded in written submissions that in determining the proper construction of the Act a purposive approach should be adopted, and acknowledged Commissioner Ritchie's observation (with which we agree) that the mischief sought to be remedied is the duplication of proceedings. Here, there is no prospect of dual proceedings, and the Commission now represents the only opportunity for the respondent to have the circumstances of her dismissal reviewed. As Schmidt J tacitly observed in Owens v NSW Police Service , one of the objects of the Act is to provide a framework for the conduct of industrial relations which is fair and just. We do not consider that it would be fair or just for the respondent to be denied this opportunity, and nor do we accept the appellant's submission that sub-section (b) should be read literally, without reference to temporal considerations, in order to produce such a result. To accept Ms Anderson's submission that the mere initiation of alternative proceedings (regardless of their status) deprives the Commission of jurisdiction would be to accept an interpretation prone to arbitrary and inequitable results, as this case illustrates. Although we acknowledge Ms Anderson's submissions that the appellant expended time, costs and resources in the original proceedings before GREAT, we do not accept that the legislature intended these matters to prevail, unequivocally, over the policy considerations discussed above. This view is reinforced by the undisputed fact that the Act tolerates duplication of proceedings at least until immediately before an arbitration commences. 35 We agree with the observations of the Full Bench in Boda and consider that the purpose of s25(3) of the GREAT Act is similarly to avoid a duality of proceedings seeking a remedy in respect of the same decision. This can be readily discerned from the following extract from the second reading speech of the then Premier Mr N K Wran QC when introducing the bill which became the GREAT Act (Legislative Assembly, 20 February 1980):

[51]

As to the problem of dual access, the Government has decided that there should be an option in disciplinary cases so that a person may elect to forego a right of appeal to GREAT and let his union pursue the matter on his behalf through the Industrial Commission of New South Wales. 36 Turning back to the terms of s25(3), we consider that the reference to "appeals to the Tribunal" is not satisfied by the mere commencement of an appeal to GREAT which are subsequently discontinued. To interpret the phrase in this limited way could, as the present case illustrates, lead to a result where an employee is left with no avenue to pursue. This goes well beyond the legislative purpose of avoiding duality of proceedings, particularly where the employee is simultaneously barred by s25(2) from recommencing proceedings before GREAT. 37 Counsel for the appellant made a number of submissions relating to the legislative history of s25, including referring us to the NSW Court of Appeal decision in Clarence and sought to draw support for his interpretation of the section by reference to this history. We do not consider that it is necessary to undertake this review to resolve the question as to the proper interpretation of s25(3) for the reasons already given. We also do not consider that Clarence in any way assists the appellant's contentions and, indeed, consider the following comment by Kirby P (at 6) to be consistent with our approach to the provision: When this history of legislation is remembered it reinforces the conclusion that, whilst an alternative track for the resolution of reinstatement and, other employment disputes through the Industrial Commission was envisaged, the employee affected should only be deprived of his or her valued privilege under the GREAT Act by a clear decision "made by the individuals involved". 38 The appellant had sought to draw support for their interpretation from Kirby P's description of the right of appeal to GREAT as a very valuable privilege (at 5). However, we consider the following observations of Kirby P to be also consistent with our approach to the provision: The provisions of the GREAT Act should so far as possible be construed, in the event of ambiguity, to preserve those special features and not to deprive an employee such as the appellant of such privileges, except by clear legal provision. 39 In the present context, therefore, we do not consider that the respondent's actions in filing a notice of appeal and shortly afterwards withdrawing the notice of appeal to GREAT brought into operation the statutory bar in s25(3). 40 Before turning to the other aspects of this appeal arising for consideration, we observe that in finding that the phrase "appeals to the Tribunal" is not satisfied by the mere commencement of an appeal to GREAT, the question may arise as to what does constitute "appeals to the Tribunal". Does the phrase require a full hearing and determination or something less? The respondent contended that an appeal is a substantive matter and the phrase connotes the hearing and determination of the matter. In disagreeing with this contention, the appellant submitted that this could lead to the perverse result that following a full hearing of an appeal but before the determination of the appeal, an employee could withdraw their appeal and would not be barred by s25(3) from commencing fresh proceedings in another jurisdiction or jurisdictions. Given the facts before, we do not need to resolve this question as the respondent filed a notice of discontinuance before the hearing of his appeal had commenced.

[55]

(c) in finding that the dismissal was harsh his Honour appears to have found that the penalty of dismissal was disproportionate to the gravity of the misconduct in respect of which the appellant acted. In carrying out such an evaluation upon proper principle there needed to be a consideration of the significance of the respondent breaching the appellant's Code of Conduct and Ethics and the Policy on Ensuring a Harassment Free Workplace. His Honour had noted that the starting point of the appellant's case before him was that the charges of harassment or sexual harassment against the respondent involved breaches of those policies. His Honour noted that these policies were designed to ensure an harassment free workplace and expressly proscribed such conduct and warned that it would not be tolerated in any form. Furthermore, his Honour noted that the applicant accepted that he was at all material times aware of the code and the policy; that he was aware of their objectives in seeking to promote harmony within the workplace; and, that he was aware he would be held accountable for any transgression. Given that the foundation for these policies was statutory obligations arising under the Anti-Discrimination Act 1977 and, indeed, the right of employees to "quiet enjoyment" in their employment, the failure of his Honour to have regard to such material evidence caused the weighing process to miscarry; (d) Grayson DP failed to take a number of matters relating to the nature of the harassment into consideration in his assessment as to whether the dismissal was "harsh". It was fundamental to the appellant's approach below that the sexual harassment and/or harassment of Ms Odichou had to be seen in the context of the appellant's policies to ensure a harmonious workplace and to comply with its statutory obligations. To the extent that the appellant relied under those policies upon supervisory staff (including the respondent) to meet its statutory obligations then, the breach of such policies by a senior supervisor who was aware of his responsibilities and chose to ignore them demonstrated a disregard of an essential condition of the respondent's employment. His Honour failed to make such a finding, thus diluting the true gravity of the respondent's misconduct, and causing the exercise of jurisdiction to miscarry; and (e) on the evidence and upon the application of proper principle, the Commission ought to have found that the decision of the appellant to dismiss the respondent was not "harsh" in the circumstances. 43 In reply, the respondent made the following submissions relating to this aspect of the appeal:

[64]

(i) the judgment under appeal was an exercise in discretionary decision-making. The whole process of discretionary decision-making is one in which no one consideration and no combination of considerations is necessarily determinative of the result, so that the decision-maker is allowed some latitude as to the choice of decision to be made: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and others (2000) 203 CLR 194 at 205 per Gleeson CJ, Gaudron and Hayne JJ. Error in the exercise of his Honour's discretion is not demonstrated by the appellant contending, as it effectively does, that certain considerations ought to have been given greater weight than his Honour chose to give them, or that his Honour should not have given as much weight to other considerations in the way that he did. 44 In the alternative, the respondent brought a notice of contention to the effect that if the Commission was to find that his Honour erred in concluding that the dismissal was harsh, then the respondent disputed some of the factual findings against the respondent to the extent he referred to sexual gratification or sexual connotations. Consideration 45 Despite the parties' lengthy submissions on this aspect of the appeal, we consider that the issue can be resolved in short order. As the Full Bench recently confirmed in NSW Attorney General's Department v Miller [2007] NSWIRComm 33 (at [32]), in an appeal involving a mixed question of fact and law, an appellate court will substitute its own judgments only if the trial judge has fallen into error of law or has made a finding of fact that is clearly wrong or is not reasonably open on the evidence. Otherwise, the appellate court or tribunal should not intervene. 46 We consider that the appellant's objections to Grayson DP's decision effectively amount to a contention that Grayson DP should have placed greater weight on certain considerations and less weight on other considerations without demonstrating any error of law or fact. 47 Further, the appellant has appealed the finding that the dismissal was harsh in circumstances where:

[69]

(e) Ms Odichou raised her complaints again only after she was informed that similar complaints had also been made by another woman, however, those complaints were subsequently found by Grayson DP to be without foundation. 48 In these circumstances, we consider that there was a compelling basis for Grayson DP to find that the appellant's dismissal of the respondent was harsh, notwithstanding that the complaints related to sexual harassment. In this regard, we agree with the respondent that there is a reasonable inference to be drawn that had Ms Khazma not made the complaints (which were rejected), the complaints against the respondent would have been completely resolved by the "no contact" undertaking given in January 2005. The appellant did not challenge the proposition that Ms Odichou had no complaints about the respondent for anything that occurred after the January 2005 meeting at which the "no contact" undertaking was given. In our view, this was a relevant matter which his Honour did, and quite appropriately could, take into account in finding that the dismissal was harsh. 49 The appellant also contended that his Honour gave insufficient weight to the relevant requirements of the Anti-Discrimination Act and the appellant's harassment policy. We agree with the respondent that Grayson DP recited the requirements of the policy, including that conduct outside the workplace may still constitute harassment if it impacts on workplace relations (at [23]). Further, in his ultimate findings, his Honour expressly refers to the principles contained in the Anti-Discrimination Act (at [78]). We further agree with the respondent that the conditions attaching to the reinstatement order (at [84]) are illustrative of Grayson DP taking those requirements into account. Accordingly, we reject the appellant's submission in this regard. 50 This finding should not, however, be taken to belie the importance of adherence to the appellant's policies on sexual harassment. Regard to policies against sexual harassment is critically important and those policies must be given full force and effect. However, in the present case, Ms Odichou's complaints were resolved under the appellant's policy to everyone's satisfaction and it was only on the basis of the subsequent allegations by Ms Khazma, which were later found to be false, that Ms Odichou's complaints were reconsidered. Viewed in this light, we are satisfied that Grayson DP properly had regard to the appellant's policies. 51 The appellant also challenged Grayson DP's finding that the respondent had an unblemished 18-year record of service. We consider that it was open to Grayson DP to make that finding and do not consider that it was excluded by virtue of the agreement between the parties as to the calling of certain evidence. That agreement was confined to the limited terms in which it arose. We agree with the respondent's submission that the appellant's notice of termination itself supported the notion that his record of service was unblemished by containing the following: There is no information contained in Mr Dafkovski's personnel file that would indicate previous incidents or concerns in regard to his performance, conduct or behaviour. 52 When this record is taken into account, it was completely open to Grayson DP to find that the dismissal was harsh and we find there was no error in the Deputy President's decision in this regard, whether in law, principle or fact. 53 We observe that the appellant had raised that the seniority of the respondent's position needed to be taken into account and that, when properly considered, it should have tended against a finding that his dismissal was harsh. This was on the basis that the respondent held a senior position and had a number of junior staff, including women, under this supervision. 54 We are satisfied that Grayson DP had regard to the respondent's position in his consideration of the various factors to be taken into account. The seniority of the respondent's position was plainly a factor to be taken into account, particularly given that the alleged misconduct was sexual harassment. It may be that in some circumstances, the seniority of the employee's position would play a more prominent role in supporting a finding that the dismissal was not harsh, however, given the other factors present in this case, particularly those factors we have earlier referred to, we consider that Grayson DP did not err in this regard. 55 On this basis, therefore, we dismiss the appellant's appeal against Grayson DP's finding that the dismissal was harsh. 56 We note finally that given this conclusion it is strictly unnecessary for us to resolve the respondent's notice of contention as it was put in the alternative. However, given the respondent's cross-appeal, we propose to briefly consider the respondent's notice of contention. 57 In effect, the respondent disputed some of the factual findings against the respondent to the extent he referred to sexual gratification or sexual connotations on the basis that there was no evidence to support this. The respondent referred us to the email communications between Ms Odichou and the respondent as supporting the notion that it was not appropriate to characterise the respondent as a sexual predator. The respondent also sought to base this contention on the fact that evidence was accepted that Ms Odichou did not regard the respondent's harassment of her as sexual harassment. 58 As to the respondent's notice of contention, the appellant submitted that a finding of sexual harassment was not contingent upon there being a finding of sexual propositions or that the individual involved characterised the harassment as sexual harassment. The respondent also referred us to aspects of Ms Odichou's evidence which was accepted by Grayson DP, including that the respondent said to her "inappropriate things" such as "I love you" and would touch her in ways that made her feel uncomfortable (at [29]). 59 Whilst we agree with the respondent that the emails clearly indicate some mutuality in communications between the respondent and Ms Odichou at a professional and collegiate level over some of the complaint period, we do not think the respondent has established that a negative finding was not available to Grayson DP. 60 In the circumstances, it is unnecessary for us to resolve the respondent's notice of contention, however, we observe that we have concerns as to the merits of the contention. The respondent's cross-appeal