AWU, NSW (on behalf of Grahovac) v BlueScope Steel

Industrial Relations Commission (NSW)|2009-03-20|Before: Grayson DP

CITATION: AWU, NSW (on behalf of Grahovac) v BlueScope Steel [2009] NSWIRComm 86 This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES: Australian Workers' Union, NSW Branch (on behalf of Mr Vasilije Grahovac) BlueScope Steel

Anti-Discrimination Act 1977 LEGISLATION CITED: Occupational Health and Safety Act 1983 Industrial Relations Act 1996

Australian Iron & Steel Pty Ltd v Najdovska and ors (1988) 12 NSWLR 587 Briginshaw v Briginshaw (1938) 60 CLR 336 CASES CITED: Jones v Dunkel (1959) 101 CLR 298 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White [No 3] (1990) 35 IR 70 Ueckert v Australian Water Technologies Pty Ltd [2000] NSWIRComm 123

TEXTS CITED: Creighton, W. B. and Stewart, A. - Labour Law : An Introduction, Federation Press, Annandale, NSW, 1990

HEARING DATES: 20 March 2009, 23 April 2009, 24 April 2009, 1 May 2009

Mr A Gorman, Organiser LEGAL REPRESENTATIVES: Australian Workers' Union, NSW Branch for Applicant

Duncan Cotterill Lawyers (Mr K Brotherson) for BlueScope Steel

1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Notification under section 130 by The Australian Workers' Union, New South Wales of a dispute with BlueScope Steel re alleged unfair dismissal for sexual harassment

The Australian Workers' Union, New South Wales (on behalf of Vasilije Grahovac) and BlueScope Steel

Application by The Australian Workers' Union, New South Wales on behalf of its member Vasilije Grahovac re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 The applicant, Vasilije (Bill) Grahovac, commenced employment with the respondent or its corporate predecessor on 28 May 1974 and was summarily dismissed on 16 March 2009. 2 The respondent's decision to dismiss the applicant was made in circumstances where, following exhaustive internal investigation, it was satisfied that the applicant had sexually harassed a fellow employee who by agreement between the parties, will be referred to by the pseudonym TD. For his part the applicant, who is more than twice TD's age, vigorously denies the allegation that he sexually harassed TD and for her part TD maintains that her version of events is truthful and accurate. Apart from the applicant and TD, there were no other witnesses to the events of 4 March 2009, the day on which the harassment allegedly occurred. 3 Failing successful conciliation on 20 March 2009, the matter proceeded to hearing as an unfair dismissal application on 23 April 2009, 24 April 2009 and 1 May 2009. The applicant was the sole witness in his own case and the Company, in addition to photographs and other documentary material relied upon, called evidence from the following persons: · TD · Hagen KRUESSER, Technical Coordinator, Basic Oxygen Steelmaking (BOS) Department, Port Kembla Steelworks · Daniel HANSEN, Chemical Engineer, BOS Department, Port Kembla Steelworks · Brendan MANNIX, Senior HR Advisor, Iron and Slab, Port Kembla Steelworks

· Daryl KILBY, Equal Employment Opportunity (EEO) Specialist, Port Kembla Steelworks · Christopher PAGE, Furnaces Manager, BOS Department, Port Kembla Steelworks

4 Included in the documentary material relied upon by the Company are its EEO/Anti-Discrimination policy and its EEO/Anti-Discrimination standard guidelines and in addition, a series of overheads encapsulating the formal training each steelworks employee, including the applicant, is required to undertake. In particular, the material makes reference to what constitutes sexual harassment (i.e. any unwelcome sexual advance; conduct of a sexual nature that is offensive or embarrassing, intimidating or humiliating; a single incident or series of incidents and so on) and it expressly states that employees found to have misconducted themselves in that regard may face dismissal. 5 The Company also relies upon those provisions in the Anti - Discrimination Act 1977 (NSW) which make sexual harassment unlawful particularly, in the context of these proceedings, sexual harassment of one employee by another employee within a shared workplace setting (s 22B(2) and s 22B(6) of the Anti - Discrimination Act) and it relies on the provisions of the Industrial Relations Act 1996 (NSW) which oblige the Commission, in the exercise of its functions, to take into account the principles contained in the Anti - Discrimination Act. 6 The applicant was employed as a Pumphouse Attendant in the Water Treatment Plant which services the BOS Department. There are four such attendants employed by the Company working under a continuous shift arrangement with only one attendant rostered on for each shift. When not out on the plant, the on-duty attendant is based in the Pumphouse Attendant's Shed (the Shed). 7 The Shed is a small single storey building comprising two rooms. The first room, the main room, comprises the entrance door and the second room is accessed via a doorway in the internal dividing wall. The main room contains a work desk and chair, a filing cabinet and some lockers and the back room contains a meal table and chairs, a television and a sink. TD went to the Shed on most days to visit the Pumphouse Attendant and discuss operational issues regarding the Water Treatment Plant. 8 On Wednesday 4 March 2009, TD became aware that there had been an overflow of cooling tower water. She went to the BOS Control Rooms to investigate the problem. After leaving the Control Rooms she went to the Shed to speak to the on-duty Pumphouse Attendant (the applicant) in order to ascertain whether any flooding or other water problems had been experienced during the day. She entered the Shed and found the applicant in the back room speaking with Mr Andrew Swanston, Maintenance Strategist for BOS Water Treatment. 9 TD described what then happened in the following way: Mr Grahovac was not in the main room of the Shed. I moved through the main room and entered the back room. I saw Mr Grahovac speaking with Mr Andrew Swanston, Maintenance Strategist for BOS Water Treatment Plant. Mr Grahovac was seated next to the table which was pushed against the side wall of the back room. Mr Swanston was seated to the right of Mr Grahovac with his back towards the sink.

I removed my safety glasses and hat and placed these on the table next to where Mr Grahovac was sitting. The table is located just inside the doorway to the back room. I returned to the main room of the Shed to get a chair. I took the chair to the back room to join Mr Grahovac and Mr Swanston. I placed my chair just inside the doorway to the back room. Mr Grahovac, Mr Swanston and I started to discuss the overflowing of the cooling tower water, and whether Mr Grahovac had seen any flooding occurring. Unrelated to the work issues we were discussing, Mr Swanston said to me words to the effect of: "Did you see that tool bag Bill [Mr Grahovac] bought from Bunnings? You should get one for your boyfriend or your father. It was cheap, only $11." Mr Swanston was pointing to a bright blue fabric bag on the table. I said: "Stuff the boyfriend, I'll get one for myself." Mr Grahovac said something which I did not understand. I said: "Sorry, what was that Bill?" Mr Grahovac then said: "It's International Women's Day next week. I'll get one for you." I said: "No thanks, that's ok" Mr Grahovac, Mr Swanston and I resumed discussing the overflowing of the cooling tower water. I said to Mr Grahovac words to the effect of: "Bill, do you ever adjust the flows to the cooling tower?" Mr Grahovac said: "Not my job. This is a process job." Mr Swanston said: "It's a process engineering job." Mr Swanston and Mr Grahovac laughed at this point. I said words to the effect of: "Yeah. Righto." I did not continue with asking Mr Grahovac about adjusting the flows to the cooling tower. I am aware that this job has been done by process engineering in the past. I thought it was easier to just agree with Mr Grahovac considering I had to work with him and other Pumphouse Attendants on a daily basis. I also accept that historically this has been a process engineering job, and it is not my job to push such matters. I was certainly not annoyed by Mr Grahovac's position. We continued to discuss other operational issues, including the surge capacity available in No.3 Thickener. The meeting ended at approximately 4.50pm. Mr Swanston and I got up from our chairs at the same time. Mr Swanston said good-bye. He walked through the main room and closed the door of the Shed behind him. Whilst Mr Swanston was leaving, I placed my chair back in the main room. I returned to the back room to collect my safety glasses and hat. Mr Grahovac was standing next to his chair and the table. I walked approximately 1.5 metres inside the back room, next to where Mr Grahovac was standing, and touched the tool bag that Mr Swanston had referred to. I thought a bag like that may have been useful for holding some of my tools that I have at home. Mr Grahovac said to me words to the effect of: "I'll get you one." I replied: "No thanks. Don't worry about it." I walked back to the end of the table, just inside the doorway that separated the back room from the main room and put on my safety glasses and hat. Mr Grahovac moved closer to me and said words to the effect of: "This one dickhead." I took it that Mr Grahovac was referring to Mr Swanston. I was aware from past conversations with Mr Grahovac that he and Mr Swanston did not get along very well. I placed my left hand on Mr Grahavac's right shoulder. We were standing approximately ½ metre apart at this stage. I wanted to reassure Mr Grahovac to not let Mr Swanston worry him.

Before I had a chance to say anything to Mr Grahovac, he stepped closer to me and hugged me. Mr Grahovac's right hand was resting on my upper back and Mr Grahovac's left hand was placed on my lower back. Mr Grahovac's body was against mine. There was no distance between Mr Grahovac and me. My left hand was still placed on Mr Grahovac's right shoulder. Totally surprised and not fully understanding what was happening, I patted him on the back of the right shoulder. I was still thinking in terms of reassuring Mr Grahovac about Mr Swanston. Mr Grahovac's head was to the left of my head. Mr Grahovac kissed the left side of my neck. I could feel his open mouth kiss me on the neck as it was warm and moist. I pulled my head back from Mr Grahovac so he would stop kissing me. Mr Grahovac continued to hug me. Mr Grahovac kissed me again, this time on the exposed side of my right neck. I could again feel Mr Grahovac's open mouth as it was warm and moist. I felt my neck stiffen. I pushed Mr Grahovac away from me with both arms. I said to Mr Grahovac firmly in words to the effect of: "No!" I moved away from Mr Grahovac. My back was now much closer to the common wall which separated the two rooms of the Shed. I moved very quickly out of the back room and through the main room towards the entrance of the Shed. As I opened the door of the Shed Mr Grahovac said something to me. I paused briefly. I saw that Mr Grahovac had followed me out to the main room. He was standing in front of the window next to the entrance, looking out at the yard. However, as I was walking out of the Shed, I did not hear what he said. I was completely shocked by what had happened. I had been very surprised by the hug from Mr Grahovac, but in total disbelief that Mr Grahovac had kissed me. I walked back to the Process Engineering Office. I was in a state of disbelief. I could not fathom what Mr Grahovac was thinking in hugging and kissing me. I was trying to register in my mind the events. I kept saying to myself: "He kissed me, he actually kissed me." I arrived at the Process Engineering Office at approximately 5.00pm. I saw that Mr Joe Skinner, Slabmaking Process Engineer, and Mr Hansen were at their desks. Mr Skinner was at that time also acting in Mr Brell's role whilst Mr Brell was on annual leave, I said hello to Mr Skinner as I sat down at my desk. Mr Skinner's desk and my desk are positioned so that when we are both sitting at our desks our backs face each other. I did not want to speak to Mr Skinner as I was still in a state of shock and was not sure what to do.

Mr Hansen's desk is further away and I did not speak to him. At my desk I took off my safety glasses and hat. I sat and looked at my computer screen, still trying to register the events that had just taken place. After a few minutes I put on some other less restrictive safety glasses in order to go to the female toilets which are located outside the building. At the female toilet I went to the mirror to look at my neck where Mr Grahovac had kissed me. I did not see any marks on my skin. I took a paper towel, wet it, put soap on it and washed my neck. I put water on another paper towel and continued to wash my neck. I put water on my face to cool myself down. I waited a while to calm my nerves before returning to the office as I was quite shaken.

and later: I left the office at approximately 5:40pm on the evening of 4 march 2009, and went home to my flat. That evening I continued to run the events through my mind over and over again. I did not understand why Mr Grahovac had hugged and kissed me. I was continually thinking about what I should do. I knew that I had a meeting at 10:00am the next day that Mr Kreusser would be at. I decided that as Mr Kreusser was Mr Grahovac's manager, I would tell Mr Kreusser about the incident. I have known Mr Kreusser since I commenced my role of Slabmaking Process Engineer. We have a good working relationship. I also knew that due to the shift pattern, Mr Grahovac would be on nightshift on 5 March 2009, and that I would not have to see him before talking with Mr Kreusser. When I arrived at work at about 7.45am on 5 March 2009, I contacted Mr Kreusser by telephone and confirmed that he would be attending a 10.00am meeting with the Hatch Contractors. I attended a meeting at 8.00am regarding the oxygen system. I returned to the Process Engineering Office after this meeting and went through the BOS, and not through the BOS Water Treatment Plant. At 10.00am, I attended the meeting with the Hatch contractors in the Hatch meeting room. This is next to the Slab Making Training Centre. Mr Kreusser was at the meeting. At approximately 10.45am the meeting with Hatch concluded. I walked with Mr Kreusser back to his office located at the Lime Kiln. I suggested that we have a cup of tea in his office.

Sitting in Mr Kreusser's office I told him that Mr Grahovac had hugged me and kissed my neck in the back room of the Shed the previous day. I also told Mr Kreusser that he was the first person I had told. I explained to Mr Kreusser that I did not know who to tell the day before. I told Mr Kreusser that I wanted him to speak to Mr Grahovac about the incident. Mr Kreusser said to me words to the effect of: "This is very serious. I'll speak with Bill [Mr Grahovac] tonight when he starts work." Mr Page is Mr Kreusser's direct manager. Mr Kreusser and I discussed reporting the incident to Mr Page. I was aware that in reporting the incident Mr Grahovac may be subject to disciplinary action. At this time I did not want that. My concern was that Mr Grahovac be aware I was upset and that I didn't want it to happen again. I made this clear to Mr Kreusser. I left Mr Kreusser's office and returned to my usual duties. I felt relieved that I had spoken with Mr Kreusser about the incident, and that Mr Kreusser would speak with Mr Grahovac and Mr Page.

10 Later that day TD was invited to accompany Mr Kreusser to Mr Page's office to discuss the matter. Mr Page then asked senior HR advisor Brendan Mannix to be involved. TD was asked to prepare a statement setting out what occurred. She did so overnight and handed it to Mr Page the next morning. 11 The applicant was interviewed the same day and stood down on full pay pending further investigation. Mr Kreusser helped him prepare a statement detailing his version of events which, as earlier observed, squarely denies the allegation against him. The applicant's statement further attempts to portray TD as being angry with him for refusing to carry out certain work which was outside his job description thus imputing to TD a motive to invent a complaint of sexual harassment for the purpose of causing him harm. 12 It is alleged by the applicant in that regard that he was told on 4 March 2009 by a colleague of TD's that she was angry with him. Evidence was given by TD's colleague Mr Daniel Hansen that he said no such thing to the applicant on 4 March 2009 or at any other time. Mr Hansen was not required for cross - examination and the person said by the applicant to have overheard that conversation, Mr Darren Fletcher, was not called to corroborate the applicant's version. I draw the usual inference from the applicant's failure to call Darren Fletcher (Jones v Dunkel (1959) 101 CLR 298). 13 It is unnecessary in my view to recite for the purpose of these reasons, the detailed evidence as to the sequence of steps taken by the Company in conducting its investigation into the complaint made by TD, and it was not suggested on the applicant's behalf that the Company was anything but scrupulously fair in that regard. Indeed, not one but two formal investigation reports were produced the second being in the nature of a review of the first ensuring at a more senior level that all appropriate steps were taken and due consideration given before any final decision was made. That final decision was not made by Mr Page until the matter had been thoroughly analysed and discussed with his peers and in turn, tested at the most senior levels of the Port Kembla management hierarchy. The evidence before me made it clear that the Company took both its obligations under and commitment to the EEO policy and its duty to afford procedural fairness most seriously. 14 The first investigation report by Senior HR Advisor Brendan Mannix concluded as follows: Conclusion On completion of the investigations I have concluded the following: · Mr GRAHOVAC has breached the BlueScope Steel Equal Employment Opportunity Policy; · Mr GRAHOVAC's behaviour did occur as reported by TD. The behaviour involved uninvited conduct of a sexual nature, which would cause a reasonable person to feel offended, therefore Mr GRAHOVAC sexually harassed TD; and · Mr GRAHOVAC's actions were also in breach of the Anti - Discrimination Act NSW 1977

15 The second or review report, which was produced by the Company's EEO Specialist Daryl Kilby after conducting further interviews with those affected, reached the following conclusions: Conclusions Having reviewed the information from both the interviews conducted by myself and Brendan Mannix, I conclude:

Although there is no evidence provided by witnesses that can corroborate her allegations, on the balance of probability it is more likely that Bill Grahovac did both hug and kiss TD on 4 March 2009 as alleged. This supports the findings of the investigation by Brendan Mannix. It is not unusual in situations such as this that no corroborate evidence as to the actual incident can be found, as sexual harassment usually occurs out of the sight of witnesses.
There is no evidence that TD raised this complaint out of malice or vindictively or that she has done so in the past, either in relation to Bill Grahovac or another employee.
Bill Grahovac's behaviour was unwelcome and unwanted by TD
There is evidence that Bill Grahovac has previously received EEO and Harassment training, last completed in 2007. Notwithstanding this, behaviour such as that which is subject to the complaint is known to be unacceptable within the general community.
The behaviour complained about is sexual harassment as defined and prohibited under the Anti - Discrimination Act 1977.
Bill Grahovac's behaviour towards TD in this incident is, in my view, serious misconduct. 16 Self evidently both reports arrived at the above conclusions on the basis of accepting TD's version of events to the exclusion of the applicant's and I must say after careful consideration, that I am inclined to do likewise. 17 TD's evidence was given candidly and forthrightly and there was nothing about that evidence, as I am disposed, to suggest that she was other than a witness of truth. I am comfortably satisfied, as she said, that she was both shocked and distressed by the events of 4 March 2009. I am reinforced in that view by the evidence of others, including Mr Mannix who is a qualified psychologist and experienced counsellor, that her presentation and demeanour when spoken to the next day, was consistent with someone who had undergone a traumatic experience and was in stark contrast to the easy-going and upbeat personality she normally displayed in the workplace. 18 I do not accept as was alleged against her, that she was motivated by malice to invent the complaint against the applicant and I do not accept that she felt anger towards the applicant such as may cause her to behave maliciously. To the contrary, the evidence overwhelmingly indicates that her dealings with the applicant were at all times prior to 4 March 2009 both courteous and friendly. She said and I accept that she regarded any previous physical contact made with male employees in the form of a pat on the head or shoulder, which often happened, as part of the bond between colleagues and that she regarded the applicant's familiarity with her the day before the alleged incident namely, patting her on the knee with an open hand, as being paternal in nature and not sexual. She said that this occurred during some friendly banter between them and she thought nothing more about it until asked by Mr Kilby whether there had been any incidents with the applicant other than on 4 March 2009. 19 Furthermore, I do not accept as was submitted on the applicant's behalf, that an inference adverse to TD should be drawn from the fact that she did not report the incident until the day after its occurrence. 20 Her evidence indicates in that regard, that the incident occurred at almost 5 pm on 4 March 2009; that TD remained in the workplace for less than an hour afterwards before knocking off to go home; that she made two unsuccessful attempts before knocking off to speak privately with colleagues for the purpose of confiding in them (Mr Skinner and Ms Turner); that she went home that evening in a shaken and distressed state undecided about what to do and that her ultimate decision to approach the applicant's boss, Mr Kreusser, the next morning was for the express purpose of having Mr Kreusser speak directly to the applicant to prevent a recurrence. At that time, TD did not wish to see the applicant subjected to disciplinary action although her motivation in that regard somewhat understandably changed after the applicant's denial of the allegation and in consequence, the portrayal of TD as a malicious liar. 21 Regardless of TD's initial wish to avoid placing the applicant in a position of jeopardy, I am of the view that Mr Kreusser's decision, having been told of it, to treat the matter as serious and to take it to a formal reporting level, was the perfectly proper one in the circumstances and it cannot be accepted in the modern workplace, as was submitted on the applicant's behalf, that the Company was somehow at fault in taking the matter beyond the level of informal discussion between the applicant and his direct line supervisor. To do so would be tantamount to ignoring its own corporate objective of creating and maintaining a workplace which is free from discrimination and harassment.

22 In contrast to the evidence given by TD and as I have said, the demonstrable lack of any motive on her part to invent her testimony, there were elements of the applicant's evidence which in my mind, cast significant doubts over its reliability. For example, when taken in cross-examination to past occasions where he was disciplined or counselled for one form of misconduct or another, he was readily able to recall the detail of such incidents with one in particular dating back to a car park altercation with another employee in 1989. 23 Similarly, he was able to recall seeing the Company's EEO policy document displayed on the Shed door but as the following extract of transcript reveals, he was decidedly equivocal when taken to the formal training in the EEO policy which he received as recently as December 2007:

Q. You of course accept that the equal employment opportunity policy says, among other things that nobody is to be unlawfully harassed? A. Yeah. Q. And you've actually received training in respect to the equal employment opportunity policy haven't you Mr Grahovac? A. Yeah.

Q. And you've received such training a number of times over your years of service with the company haven't you? A. Not many times. Q. More than once though? A. Maybe, yes. Q. Do you recall attending a training sessions in December 2007 on the equal employment opportunity policy ? A. I don't know, maybe. Q. If the company records show that you did attend such a policy you wouldn't argue against it though would you? A. No. Q. Can I show you a document please. Mr Grahovac do you recall attending a session conducted by somebody from the human resources area where a presentation was made that showed these types of things as either a slide show or as a Power Point presentation. Could I ask you to just look through the document and confirm? A. Maybe it happened. I can't say. Q. Do these slides or pages of this document look at all familiar to you Mr Grahovac? A. Every time we go for training they always present some documents and slides. Maybe this was included there. I can't say it wasn't.

Q. Can we deal with it this way. Do you recall when you did that equal employment opportunity training being told by the presenter that there were various laws relating to discrimination and harassment in the workplace? A. Maybe. I can't say it didn't happen. Q. Can I ask you this question. You can't say it didn't happen. How then do you know that there are things as equal employment opportunity laws? A. I don't know, about 20 years ago some women tried to get to work in the steelworks. They were rejected. They sued the steelworks and they actually won because they asked for equal employment opportunities.

Q. Do you recall though that when you've attended these training sessions people have spoken to you about what might sexual harassment be? A. Maybe. I can't remember.

Q. Do you know that sexual harassment is unlawful? A. Yes, of course. Q. And you know that because the company has told you that? A. No. No, that's, in the outside as well, in outside of work you're not allowed to do anything to anyone or anybody. Q. Can I put to you that I find it extraordinary Mr Grahovac that you can't recall the company also explaining to you that sexual harassment is unlawful and contrary to its policies? A. No. I don't know, I don't remember, I don't remember anyone.

and later Q. Mr Grahovac can I put to you that I think you are quite deliberately failing to acknowledge what the Company has taught you about sexual harassment? A. No. Q. Your very comment that nobody cares what's said and we rush through these meetings, can I suggest to you is your way of trying to say it's a policy that no one really worries about? A. Sorry, can you repeat your last question? Q. Yes. Can I suggest that your comments that nobody cares about these trainings and we rushed to finish them is simply you, Mr Grahovac, telling more lies in order to suggest the Company doesn't care about equal employment opportunity. A. I can say that I spoke with John Jurak. He's a superintendent. When I was sent for all this training and I, we had a pumphouse meeting and I pointed to his attention, that we are wasting a lot of time and safety in relation to pumphouse issues to go for these trainings and he said "Just go there because of the money". I told him that we are losing about three to four hours of work and they... (not transcribable) ... our attention from the issues related to pumphouse matters.

24 In a further attempt to distance himself from the awareness of the Company's EEO policy, the applicant was again evasive when shown a document dealing with sexually explicit material which had been found in the workplace in May 2007. Although the applicant admitted being shown the document by his supervisor, Mr Kreusser, he initially denied but when pressed, conceded that the supervisor did considerably more than just leaving the document on a table and asking for signatures from the applicant and other employees. The applicant eventually conceded that Mr Kreusser explained that such material could not be kept in the workplace; that it was inappropriate in terms of the EEO policy and that people could face disciplinary sanction including dismissal if more material was found lying around.

25 Curiously and although he displayed ambivalence towards the EEO policy, he did not deny knowing that sexual harassment was wrong and that it was not permissible in the workplace and he volunteered his knowledge of a high profile anti-discrimination case brought against the Company by a group of women in the late 1980s (Australian Iron & Steel Pty Ltd v Najdovska and ors (1988) 12 NSWLR 587). 26 There was also an inherent inconsistency in the applicant's evidence that he offered to buy TD a gift not because of any wish to ingratiate himself or become more familiar with her (as was put to him) but because of a feast day called International Women's Day which is celebrated in his home country Yugoslavia in March each year. The applicant conceded when pressed in cross-examination, that apart from his wife for whom he bought flowers, TD was the only other woman to whom he offered a gift for International Women's Day. This evidence was not plausible when one considers that the applicant has a daughter and conceded that he did not arrange a gift for her in recognition of the feast day. His explanation for not doing so namely, that his daughter is unmarried, does not sit comfortably with his evidence that he knew TD had a boyfriend. After giving that evidence he was then asked again did he know whether TD was married or not and answered "I don't know". As earlier observed his evidence in this regard was unconvincing and in my opinion was intended to deflect attention from the obvious implausibility of the proposition that he was offering TD a gift in recognition of the feast day. I am unable to accept his stated motive for offering TD a gift and I consider it more likely on balance, as was submitted for the Company, that he was seeking to thereby ingratiate himself or become more familiar with her. 27 There were other elements of the applicant's evidence such as his attempts to portray TD as being hostile towards him when in fact the contrary was true (at least prior to 4 March 2009) which lead me to believe that his version of events should be treated with considerable caution. I have formed the view that the applicant was an unreliable witness in his own cause and where his evidence is in conflict with TD's evidence, the latter should be preferred. 28 I consider the Company to have discharged its onus (Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White [No 3] (1990) 35 IR 70) and I am satisfied it has done so in this case to the prerequisite standard (Briginshaw v Briginshaw (1938) 60 CLR 336). 29 Having reached that conclusion and taking into account the serious nature of the sexual harassment committed by the applicant upon TD I do not consider the sanction of summary dismissal to be harsh, unreasonable or unjust and in that regard I respectfully adopt the observations of Sams DP in Ueckert v Australian Water Technologies Pty Ltd [2000] NSWIRComm 123 at [265] - [266]:

265 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. Where 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. 266 I have no doubt that, if the employer's particular allegations are proven, the applicant would have little cause for complaint. The employer would have had no choice but to dismiss him. Indeed, it would have been obliged to do so, in order to protect its other employees. Employers must act to ensure a safe workplace - free of intimidation and harassment. A failure to do so might well be held to be in breach of the Occupational Health & Safety Act for which there are substantial penalties. See discussion in Labour Law , Creighton & Stewart ch 10.23. 30 In the circumstances I find no warrant for the Commission's intervention. The application is dismissed accordingly and the proceedings concluded.

AMENDMENTS HISTORY: 09/06/2009 - Typographical errors - Paragraph(s) 3 & 19

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Discrimination Act 1977(NSW)

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