18 These features were:
i. At the time of conciliation of these matters the respondent was faced not only with the application filed by the two applicants but also with a further seven applications from other dismissed security officers whose employment had been terminated in similar circumstances to those that led to the termination of the applicants' employment. It was clear at the outset that any consideration of settlement offers, had they been made, would necessarily involve consideration of the facts and circumstances arising in each of the nine applications.
ii. Six of the nine applications had been filed out of time and were therefore, prima facie, incapable of being heard and determined by the Commission unless the Commission was persuaded to, in the circumstances of each such application, in effect, waive the 21 day time limitation for the filing of applications pursuant to Section 84 (Section 85).
iii. In addition, three of the applications which were filed out of time involved applicants who had resigned their employment. Therefore, at the time of conciliation and throughout the hearing of the applications, there was no certainty that, in relation to at least six of them, that the Commission would accept the applications out of time and, in relation to three of them, rule that the resignations did not preclude the Commission dealing with them as dismissals by the employer. Had these rulings been made in favour of the respondent in relation to those six applications then there would have been no need to deal with any of them on the merits. In this regard it should be noted that the respondent proposed that the jurisdictional matters be determined on a preliminary basis, but this proposal did not find favour with the Commission.
iv. As was the case in Youssef , even though reinstatement of the two applicants was ultimately ordered, the Commission was not entirely uncritical if the conduct of the two applicants. In relation to Mr Tupene, the Commission noted that he agreed in the proceedings that he had been evasive with Mr Brown during Mr Brown's investigation of the allegations (para 119). He also conceded that at no time in the process did he admit to the employer that he often picked up a meal while on patrol (para120). In relation to Mr Starr (sic), the Commission noted that he believed that he didn't have to answer the allegations because management had got the name of the hospital wrong (para 105). In his letter to Mr Brown he did not explain whether he was off the campus (para107). He said he was confused during the interview and refused to answer Mr Brown's questions, although he accepted that the employer was entitled to ask questions about what he was doing and that he was obliged to answer (para 110).
v. Had these two applicants (and the other applicants) been more cooperative with their employer at the investigation stage of these allegations it may well have been the case that these matters could have been resolved without the necessity for unfair dismissal applications to be filed and heard.
vi. The Commission noted that as the chain of events unfolded the applicants became their own worst enemies and it would appear that they may well have panicked and decided, either collectively or independently, to frustrate the disciplinary process. The Commission also noted that this behaviour by the applicants understandably antagonised the respondent and that by not cooperating the applicants may well have contributed to the employer's belief that there was a serious and wilful breach of policy (para 441).
vii. The Commissioner (sic) also noted that the "Yes we were off site - getting a meal" defence only came much later in the investigation. Had this been explained from the outset the respondent might well have reacted very differently. (para 443).
viii. The Commission also noted that by compounding the problem and refusing to cooperate with the investigation, the applicants opened themselves up to serious disciplinary action (para 444). Ultimately, the relief ordered by the Commission in relation to both applicants was a less favourable outcome then that which had been pursued on their behalf from the very outset, in that neither of them was awarded full back pay.
ix. Both the applicants were members of the Health and Research Employees Association and, as such, could have been represented in the proceedings by Mr Ravlich, as were the other seven applicants. Had this been done no legal costs would have been incurred by them.
x. ...
xi. The respondent's case suffered badly as a result of its inability to call Mr Colgan to give evidence. This was something over which it had no control and could not have foreseen at the conciliation stage of the proceedings, or even well into the arbitration stage.