Cascio v The Trustee for the Elsa Trust

Anti-Discrimination Act 1977 LEGISLATION CITED: Evidence Act 1995 Industrial Relations Act 1996 Sex Discrimination Act 1984 (Cth)

Boyle v Ishan Ozden & Ors (1986) EOC 92-165 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Four Sons v Sakchai Limsiripothong (2000) 98 IR 1 CASES CITED: House v The King (1936) 55 CLR 499 Johanson v Michael Blackledge Meats (2001)163 FLR 58 O'Callaghan v Loder & Anor (No 2) (1983) 3 NSWLR 89 Ramus Pty Ltd & Ors v Australian Workers Union, NSW Branch (1986) 19 IR 324 Webb v Newcastle Hire Cars Pty Ltd [2004] NSWADT 142

Appellant in person LEGAL REPRESENTATIVES: Mr Patrick Managreve, General Manager The Trustee for the Elsa Trust

CORAM: WALTON J, Acting President GRAYSON DP RITCHIE C

Application by Domenico Cascio for leave to appeal and appeal against a decision of Commissioner Bishop given on 18 December 2009 in Matter No IRC 996 of 2009

1 In this matter Mr Cascio ("the appellant") seeks leave to appeal and, if leave is granted, to appeal against a decision of Bishop C dismissing his unfair dismissal application. The remedy sought by Mr Cascio in that application was monetary compensation. 2 By way of background, the appellant was employed by The Trustee for the Elsa Trust, then trading as Anyware Computer Accessories, ("the respondent") as a storeman and packer from 15 November 2008 to the date of his dismissal on 25 June 2009. In the seven month period of his employment, the appellant made complaints about standards of workplace safety and about his perception of management's failure to act on those complaints, in particular complaints about the warehouse manager, Mr Elaro, and fellow employee, Mr Chau. Tensions developed and the atmosphere in the warehouse soured. The appellant alleged that management conspired to make his time with them very difficult because in their eyes he "knew too much, caused too much trouble, disturbed their calm waters and was a bad influence to other employees". 3 On the day before his dismissal, the appellant's father had been telephoned at his place of business by a person who did not identify himself. The caller told Mr Cascio senior that his son, the appellant, was going to lose his job, that he was talking too much and was accusing Mr Elaro of theft. The phone call caused Mr Cascio senior to angrily remonstrate with his son and, in turn, caused the appellant to feel threatened and intimidated. The appellant assumed that the call to his father had been made by Mr Elaro. 4 Upon his arrival at work the next morning, the appellant approached the respondent's general manager, Mr Managreve, and voiced his strong concerns about the phone call to his father and about Mr Elaro's failure, as warehouse manager, to take appropriate action in relation to the matters complained about. 5 Mr Managreve went downstairs with the appellant and convened a meeting of the warehouse staff. He directed them to resolve their differences and warned them that their continuing failure to do so would result in his formal intervention in the matter. He foreshadowed, as a possible outcome of such intervention, that he may have no alternative but to recruit additional warehouse staff in order to permit more flexible rostering arrangements. This would have the effect of not rostering disputing employees on the same shifts but it would also mean a per capita reduction in the weekly hours worked by employees. 6 Whilst this meeting was in progress the appellant intimated that it was Mr Elaro who made the phone call to his father the previous day. This was denied by Mr Elaro and an argument broke out between the two men, that is, the appellant and Mr Elaro. Mr Managreve directed that the argument cease. He then concluded the meeting and went back upstairs to his office. 7 Not long afterwards, he heard the raised voices of the same two men, again involved in heated argument. The argument began when Mr Elaro, as warehouse manager, discovered for the second time in as many days that signage he had placed on certain storage cabinets within the warehouse had been torn down. The signage had the effect of limiting access to the cabinets to Mr Elaro and one other person, Mr Chau. The appellant took issue with this arrangement which had been in place for six years prior to the commencement of his employment with the respondent. Mr Elaro accused the appellant of taking down the signage and gave sworn evidence, which the Commissioner accepted, that the appellant admitted doing so. For his part, the appellant denied doing so, although he acknowledged that he had challenged the appropriateness of Mr Chau having access to the cabinet when others, such as himself, did not. 8 Mr Managreve, upon hearing the heated argument, went back downstairs to deal with the problem. He directed the appellant to go home for the rest of the day, "cool off" and return to work the next day. The direction was ignored by the appellant who became more hostile and argumentative towards Mr Elaro. Mr Managreve repeated the direction a number of times, continuing to raise his voice as he did so. The directions did not have the desired effect and fearing the continuing argument would escalate to violence, Mr Managreve summarily dismissed the appellant. The Proceedings at First Instance 9 Failing successful conciliation before another member of the Commission on 4 August 2009, the matter proceeded to hearing before Bishop C on 20 November 2009, at which the appellant appeared as a litigant in person and Mr Managreve represented the respondent. Both also gave evidence in the proceedings as did the following persons: · Mr Christopher Caracoglia - former employee; · Mr Thomas Chau - Storeman and Packer and Assistant to Warehouse Manager; · Mr Bob Elaro - Warehouse Manager. 10 It was the appellant's intention to adduce and rely upon evidence from Mr Fadi Sabsabi who was in attendance at the hearing on 20 November 2009, as were each of the other witnesses, in response to a Summons to Give Evidence. Mr Sabsabi had prepared a written statement which was filed in the Commission's registry on 6 October 2009. Two days later, he sent a message to the Registrar by facsimile transmission seeking to withdraw his statement and take no further part in the proceedings. He was advised by the Registrar that such an application should be made to and would be dealt with by the Commissioner when the matter came on for hearing. 11 In the event, Mr Sabsabi renewed his application before Bishop C on 20 November 2009, giving as his reasons for so doing that he had been placed under a lot of stress and pressure, was not sleeping well and had begun having suicidal thoughts. Those reasons were set out in a facsimile message to the Registrar which had been forwarded to Bishop C. 12 The transcript of proceedings on 20 November 2009 indicated that the Commissioner dealt with the matter this way: COMMISSIONER: We have a number of persons in the room, some of whom are witnesses and some of whom have been summonsed to appear and we'll deal with you in a moment, Mr Sabsabi. Just general instructions for witnesses. Firstly, when witnesses come into the witness box, they may either take an oath on the bible or make an affirmation. If anyone is of the Muslim faith, we do have a Koran here and appropriate time can be allowed to you to withdraw and make your appropriate preparations. When you are in the witness box and you are a witness, listen to the question, answer the question. You do not enter into any debate with the person asking you, you do not backchat. I have two rules in my courtroom, you do not interrupt each other, gentlemen, at the bar table, and you never interrupt me. We need to deal with the request from Mr Sabsabi. If you could come forward to the bar table just so that you can be picked up on the record with the microphone, if you can just sit there please, sir. You have filed a witness statement and you have sent a facsimile to the Registrar and rightly, the registry once witness statements have been filed or once persons have been summonsed to appear before the Commission, only the member of the Commission can grant leave to that person to withdraw their statement or to depart the court, and I certainly have the ability to do that. I have your request dated 8 October, which is basically on medical grounds. Mr Cascio, I am always sympathetic to persons who have medical problems. And unfortunately I was not made aware of it, it's buried in the file and I had not realised there was a phone message to my assistant, who is off this week, about someone calling, but if I am able to find out about these matters before a hearing, then I usually arrange for communication to the person concerned and then say that if you provide a medical certifcate beforehand, I will release you before the day. So I apologise Mr Sabsabi that you were required to come here today. But providing there is no objection by either side, I would certainly allow Mr Sabsabi to withdraw. You have no objection? I certainly don't want to see Mr Sabsabi under stress. APPLICANT: Of course, no one wants to see that. But he is relevant to the claim, very relevant. COMMISSIONER: I appreciate that, but he is in some difficulty. Mr Sabsabi, you may withdraw. SABSABI: This whole month I've been stressed out. COMMISSIONER: Yes, I understand, Mr Sabsabi, you may withdraw your witness statement and you may depart the court, you may leave. I will treat the witness statement from Mr Sabsabi as not being tendered, it will therefore simply be placed in the file. 13 As is apparent from the above extract of transcript, the written statement of Mr Sabsabi was then placed on the court file with no discussion between the Commissioner and the parties as to whether it ought properly, even in Mr Sabsabi's absence, have been available to the appellant to tender and rely upon. We will return to that matter later in this decision. 14 The Commissioner thereafter proceeded to take the evidence of the remaining witnesses which was then set out in detail in the decision she published on 18 December 2009. In that decision, the Commissioner summarised the competing arguments this way: Submissions 136 Mr Cascio said that basically everything he wanted to say he had put in his statements. He felt disadvantaged that his witness had not given evidence. Mr Cascio's three statements dealt extensively with various issues, both general and specific, that he had with OH&S issues, the WorkCover Inspection following his dismissal, complaints about Mr Chau and Mr Elaro both as to his management and allegations about particular work issues. He essentially considered that he had been dismissed because of the issues he had been raising. He also considered that he had been treated differently to other employees and had been treated unfairly by being dismissed. 137 His main issues were the safety of himself and other employees. He saw wrong and incorrect things and things that were just dangerous. There were also pressures put on them in the workplace and bullying and behind the scenes tactics. He didn't agree with that and stood firm on those issues he had brought up in the past. 138 He believed the situation couldn't be judged just on what happened that day and just because he said "I'm going to rip you apart". It was all in his statements. 139 Mr Managreve reiterated the retention rate in the company that he had referred to in his statement. More than three-quarters of the staff had been there over 2 years including Mr Elaro, Mr Chau and Mr Sabsabi. Whilst it wasn't a perfect workplace it was "bearable". He tried to run the business "on a good heart" and ensure workplace policies that were fair and reasonable. They tried to run the business so that people looked forward to coming to work. 140 It was unfortunate that the situation with Mr Cascio developed. He used common sense in dealing with the situation on the day and asked him several times to go home. He pointed out that it could be witnessed from the proceedings that he was strong-minded and had interrupted the Commission several times. "When he latches onto something he's not going to let go and just keeps hammering on the point". 141 Mr Managreve stood by his decision. He confirmed that prior to that day there was no thought in his mind in any way of terminating Mr Cascio. He was a hard worker and he was intelligent. They had no reason to terminate him. Mr Elaro had never come to him and said he couldn't work with him. 142 He acknowledged that there were conflicts in the workplace and tensions, which he considered were personality clashes. The situation seemed to deteriorate after the first meeting. They were personality issues, not performance issues. Performance issues he could fix, he couldn't fix personality issues. 143 He confirmed that Mr Elaro had not raised OH&S issues with him, not specifically. 144 The only reason he had terminated Mr Cascio on that day was because of the aggression he had shown. He didn't believe that team members should be out under that sort of aggression. While he may have seen it as unfair that he took the side of Mr Elaro, but as one of his managers and one who had been there for close to 7 years, that was who he supported. But most important was the aggression he displayed and that the fact that it could have turned violent. 145 The issue of questioning management's authority came up after he had terminated him and he refused to go. 15 The Commissioner then went on to consider, in all the circumstances, whether there was unfairness in the decision to dismiss. In so doing, she made the following observations: 146 I have very carefully considered all of the evidence including the documents tendered as exhibits and the transcript in this matter. Whilst it was not considered relevant to refer to all of the issues raised by Mr Cascio in his documentation, nevertheless they have all been carefully considered. 147 As I indicated to Mr Cascio on more than one occasion during proceedings, those issues only became relevant if the raising of those issues, as he says he did, were the reason in any way for or contributed to, Mr Managreve's decision on the 25 June to terminate Mr Cascio, or alternatively it was in some way a retaliation for Mr Cascio being perceived as a troublemaker or a maker of complaints. 148 Having carefully considered the evidence and having had the opportunity of hearing Mr Cascio give evidence, I am satisfied that Mr Managreve did not have any premeditated plan to dismiss Mr Cascio, the dismissal only arose as a consequence of Mr Cascio's aggression in the altercation with Mr Elaro and in particular the threat he issued when he said "I'll rip you apart". Words that Mr Cascio fully acknowledges that he said. 149 However I also acknowledge, again as I indicated to Mr Cascio during proceedings, that the issues he was raising and his belief that nothing was being done and his clear and apparent frustration with that, together with the phone call to his father the day before and what had resulted, obviously contributed to his state of mind and in turn how he reacted that morning. 150 Having said that, the issue then becomes firstly whether that leads to there being any justification for how Mr Cascio conducted himself that morning in the altercation with Mr Elaro and the threat he made and secondly did what occurred warrant dismissal and was that dismissal harsh and/or unjust and/or unreasonable and sufficiently so as to warrant the intervention of the Commission? 151 At the outset I indicate that I consider that a threat was made to Mr Elaro and clearly made in an angry and aggressive manner. 152 It was reasonably obvious to me that Mr Cascio is a very well intentioned and intelligent man. However it is also equally obvious that he can also become very intense and focused and indeed single minded on an issue or issues. It takes very little imagination to see how very wound up and angry he could become in a situation, particularly if he felt he was under pressure or his concerns were not being addressed. 153 I also get the impression of a fairly easy going, informal workplace without a strict adherence to rules and regulations until Mr Cascio came on the scene. 154 Mr Cascio may well have been quite right about the OH&S issues he was raising. Some of the management issues may also have had some substance. I do not know. However I have no doubt that a very new employee coming along and complaining about management issues and criticising managers about how they do their job as well as raising all manner of other issues, some of which were fairly technical, was bound to be a recipe for disharmony and tension in that workplace. It would probably not have gone down well in any workplace given the manner in which I imagine Mr Cascio may have raised matters. He did not strike me as an easygoing person but someone who frankly could be prickly and difficult to deal with. 155 It is also obvious that there were tensions amongst certain employees in the workplace which included Mr Cascio. 156 I state quite plainly that Mr Elaro did have the right, as Warehouse Manager, to place a sign on the cabinets indicating who was authorised to open them. If Mr Cascio had a problem with that he should have taken that up directly with Mr Elaro and if not satisfied with the response with Mr Managreve, but in a respectful and appropriate way. Unfortunately Mr Cascio does not seem to have acknowledged Mr Elaro's rights as a manager. 157 Similarly it is clear that he had little respect for, and did not like, Mr Chau. Whether that was warranted I do not know, however this also could not have made things easy in a small workplace. 158 It is clear from all the evidence that on the morning of the 25 June, both men ended up yelling at each other and were essentially "in each other's faces" in that confrontation. Mr Elaro certainly contributed to the heat in the exchange and was obviously angry about what had happened. However the difference between the two men is the lack of control displayed by Mr Cascio as evidenced firstly by his total inability to hear and take in Mr Managreve's attempts to tell him to calm down, go home and come back tomorrow, and secondly, his escalation of the aggression to the threat that he made to Mr Elaro. 159 All witnesses, including Mr Caracoglia, heard Mr Managreve attempt to send him home to calm down. That this just did not register with Mr Cascio indicates the intensity of his reaction and outburst and the potential seriousness of the outcome of the altercation.

160 Mr Cascio has complained that Mr Managreve was also shouting and angry. I imagine that he would have had to shout just to make himself heard and to register with either of the two men, but particularly with Mr Cascio and I'm not surprised that he was angry after he had just had a meeting and essentially told employees to sort out their differences and work together or he would take steps to sort them out and now there was another clash between employees. 161 Mr Cascio has also complained that Mr Managreve did not do more to control or contain the situation. I really don't know what else Mr Managreve could have done at that point. Mr Cascio would not listen to him. What else was he supposed to do, attempt to physically grab hold of Mr Cascio and/or Mr Elaro and drag them away from each other? That would have been the worst thing he could have done and would undoubtedly have escalated the situation into an actual physical confrontation and violence that would quite probably have involved Mr Managreve as well. 162 The threat Mr Cascio uttered to Mr Elaro, even if it was said in the heat of the moment, was totally inappropriate and unwarranted. What Mr Cascio overlooks is that Mr Elaro had every right to raise with him the issue of the torn down signs. According to the evidence of Mr Elaro, which I accept although it was refuted by Mr Cascio, he had admitted to taking the signs down and essentially challenged Mr Elaro's right to put them up. It is of course extremely unfortunate that this occurred so soon after the earlier meeting. 163 Mr Cascio was also upset at the outcome of his complaint to Mr Managreve about the phone call, but Mr Managreve was correct in that he couldn't accuse any particular individual without proof even if Mr Cascio had every right to raise what happened with Mr Managreve. It is totally inappropriate for employees to contact another employee's family member and gossip in such a malicious way. 164 Mr Elaro made a valid point and one which I endorse, and that is that employees should go to work to work, not to gossip about each other. Unfortunately in my experience such gossip happens all too frequently in workplaces and is often the cause of disharmony, erodes teamwork and indeed, in extreme cases, causes absolute dysfunction. 165 The unresolved issues that Mr Cascio had and his dissatisfaction with what had occurred in the meeting earlier that day however does not excuse Mr Cascio or justify his action in issuing a threat of physical violence towards his supervisor. Particularly after Mr Elaro had told him specifically not to "touch" him. Whilst Mr Cascio has said in his evidence that Mr Elaro touched him first and then he touched him back, there was no clear evidence as to what exactly was meant by touching or how this occurred. However it is clear from Mr Cascio's own evidence that Mr Elaro, his supervisor, told him not to touch him, to which Mr Cascio replied "I won't touch you. I'll rip you apart". In uttering this threat to his supervisor, Mr Cascio stepped way over the line. That resulted directly in the decision of Mr Managreve to terminate him. 166 Mr Managreve made it clear that if Mr Cascio had responded to his direction to calm down and go home and had returned the next day, then he would not have been terminated. I imagine that he may well have been issued with some sort of warning, but he would have kept his job. 167 It was also made clear that Mr Cascio was considered a hard worker. It is unfortunate that his inability to control his temper on that day led to his termination. 168 I do not consider that the termination can in any way have arisen as any kind of pay back for the issues he was raising. It was the tearing down of the signs that caused Mr Elaro to confront Mr Cascio. Although I also acknowledge that Mr Elaro's obvious anger and reaction fuelled the situation. The reality is that Mr Cascio was essentially a fuse waiting to be lit. He cannot shove all the blame onto management and must accept responsibility for his actions. 169 Notwithstanding what I have indicated above, if he was not responsible for tearing down the signs, he had the opportunity to simply say so, keep his cool (to put it colloquially) and turn away or seek the intervention of Mr Managreve if he thought it was warranted rather than becoming as aggressive as he did which was quite out of proportion to the incident. 170 Mr Cascio was also an employee of very short duration, just some seven months. It may have been a different situation, and Mr Managreve may have exercised his judgement differently, if Mr Cascio had been a longer term employee, where as a long serving employee, if it was considered that it was a one off, out of character incident, that may have resulted in a different disciplinary outcome. 16 The Commissioner then went on to discuss various authorities relevant to the question to be determined and, having done so, concluded that there was no proper basis for the Commission's intervention. The appellant's application for relief was dismissed accordingly. Application to call Fresh Evidence and the Evidence of Mr Sabsabi 17 Before the Full Bench, the appellant sought and was refused leave to bring fresh evidence from five witnesses. One of those witnesses was Mr Fadi Sabsabi who, it will be recalled, was excused on the grounds of ill health from the proceedings at first instance. The Full Bench's ruling on the fresh evidence application was contained in a lengthy passage of transcript which need not be repeated here, save for that part of it applying to Mr Sabsabi which appears below: WALTON, A-P: That leaves the issue of the evidence of Mr Sabsabi which is a more complicated consideration. A statement of evidence was produced, it would appear through the applicant, for Mr Sabsabi to give evidence in the proceedings before Commissioner Bishop. At the commencement of the proceedings on 20 November 2009 the Commissioner indicated that a communication had been received from Mr Sabsabi indicating that he was unwilling to give evidence on medical grounds. That communication resulted in the Commissioner, in an exchange with Mr Sabsabi, forming a view she would not require him to give evidence in the proceedings. And he was thereby excused from giving evidence. During the course of the ruling that the Commissioner made in that respect, she also formed the view that the statement of evidence of Mr Sabsabi would not be introduced in the proceedings. Upon review of her decision it is not clear why she made a ruling that the statement of evidence of Mr Sabsabi would not be introduced in the proceedings, even though it was abundantly clear why she excused Mr Sabsabi from giving evidence. In terms of the motion we have before us which is to have essentially Mr Sabsabi called to give evidence by summons before us, we do not think there is a proper basis established for the grant of the motion in that respect, because it would principally involve us in overruling the decision made by the Commissioner that Mr Sabsabi should be excused on medical grounds from the giving of evidence. There is nothing before us, either in the record of the proceedings before the Commissioner or what has further been referred to today in submissions by the parties which would indicate that Mr Sabsabi is in any different position in relation to the giving of evidence today than at the time the Commissioner made her ruling in that respect. It follows that it would be inappropriate, let alone satisfying the requirements for special grounds under s 191(2) for Mr Sabsabi to be required to attend for the giving of evidence for the purposes of cross-examination or otherwise. It follows then that the motion should be dismissed in that respect, but we had wished to make one further observation about Mr Sabsabi's evidence before we come to the appeal. We would not wish to be taken, in dismissing the notice of motion we have, particularly concerning Mr Sabsabi's evidence, to be taken as making any ruling whatsoever upon the appropriateness or otherwise of the Commissioner refusing to receive Mr Sabsabi's statement of evidence. In our view there were two rulings which the Commissioner was required to make on the morning of 20 November 2009. One was whether Mr Sabsabi was required to present himself under the summons. And so far as we have made observations in relation to the motion, it may be taken at least for present purposes that the Commissioner's decision appears to be regular in that she excused the witness on medical grounds. As to the statement not being admitted, that is another matter altogether and involved a separate exercise of discretion by the Commissioner which, as we have indicated, is not immediately apparent to us on the face of her decision or on the record of proceedings. In other words, it is not clear to us on what basis the Commissioner refused to admit the evidence of Mr Sabsabi, unless it is taken as being a refusal to be admitted on the basis of Mr Sabsabi being excused to give evidence on medical grounds. The net result of what we have said is this. The notice of motion is refused. We will now hear from the parties in relation to the appeal proper by which we mean the application for leave to appeal and appeal. And we have put both parties on notice that we have a concern in relation to the proceedings at first instance as to the refusal by the Commissioner to admit the statement of evidence of Mr Sabsabi in the proceedings. 18 There was, in our view, a proper legal basis for Bishop C to excuse Mr Sabsabi from being called to give evidence on medical grounds. However, the Commissioner was, nonetheless, required to consider whether, in those circumstances, the statement of evidence of Mr Sabsabi which was before her should have been admitted into evidence. This did not occur. The failure to do so represented an error of the kind identified in House v The King (1936) 55 CLR 499. That error warrants the grant of leave to appeal because the identification of that error will give general guidance in practice and procedure in this area of the Commission's jurisdiction.

19 Even though the appellant did not make a separate and discrete application before the Commissioner to admit Mr Sabsabi's statement of evidence, he did make it abundantly clear that he sought to have Mr Sabsabi's evidence before the Commission which included Mr Sabsabi's statement of evidence. The appellant also made it clear that the evidence was central to his case. We consider it was incumbent upon the Commissioner, in those circumstances, to determine whether or not Mr Sabsabi's statement of evidence should have been received, even if Mr Sabsabi was not available. The Commissioner had two self-represented litigants before her and was required to give guidance to the parties about the possible receipt of Mr Sabsabi's evidence (even in his absence). The Commissioner was not bound by the rules of evidence (s 163(1)(b)) but, even under them, the statement may have been admitted (see Evidence Act 1995, s 63). 20 We have had the benefit of reading Mr Sabsabi's written statement which is contained in the material before us and it speaks favourably about the appellant's genuine motives for pursuing his concerns about workplace matters which he viewed as unsatisfactory. We consider there was a proper basis for the statement to come into evidence as it was relevant to the question of mitigation. An entirely different issue was what weight should be given to the evidence.

21 Any discussion as to whether the appeal should be upheld or, if upheld, what orders should be made in the disposition of the appeal due to this error, is a matter that should await our discussion of the balance of the merit issues in the appeal. We should note, however, that the witness statement did not call into question the specific incident giving rise to the appellant's dismissal on 25 June 2009. To the contrary, it supports other versions of the incident which were in evidence before Bishop C and it speaks in some detail about disharmony in the workplace in the months leading up to the appellant's dismissal and, in particular, about earlier confrontational encounters between the appellant, Mr Elaro and Mr Chau.

Failure to Have Regard to Relevant Considerations 22 Much of the appellant's case at first instance sought to establish that certain complaints about workplace practices and cultures, which he had made during the course of his employment, were valid and, presumably, might explain or excuse his conduct at or immediately before his date of dismissal. In part, this approach was misconceived. The proceedings before the Commissioner were not the occasion for a roving inquiry into standards applying at the respondent's workplace. Some of the matters raised by the appellant were, however, relevant in that they had the potential to explain, or partially explain or excuse his misconduct. 23 Whilst, it was open for the Commissioner to conclude that most of these matters did not constitute mitigation warranting a finding that the dismissal of the appellant was harsh because they were either not proven and could not sustain such a conclusion, in one important respect (concerning sexual harassment) the issue was undoubtedly applicable to the question of mitigation, and therefore, whether the dismissal was harsh for the purposes of s 84 of the Industrial Relations Act 1996 ('the Act'). The failure to deal with that matter represented a further error of the kind described in House v The King. Leave to appeal should be granted in this respect so as to further identify principles to be applied in circumstances where issues relating to sex discrimination or sexual harassment arise in the course of unfair dismissal proceedings.

24 The error arises in this case because of the Commissioner's failure to consider the issues raised by the appellant vis a vis Mr Elaro. During the course of cross-examination by the appellant, Mr Elaro was taken to various workplace matters of concern. Those matters included allegations of operating a forklift at excessive speed; requiring the appellant (and perhaps others) to unsafely get on top of the forklift to access stock on elevated shelves; knowingly permitting or doing nothing to prevent work being carried by an employee affected by alcohol; underpayment of wages; theft of company property and sexual harassment. 25 In the case of all but the last allegation, the evidence before the Commissioner was plainly not such as to permit a positive finding of wrongful, unlawful or inappropriate acts by the employer and was not applicable to the questions to be considered under s 84 in the present case, except to the extent it demonstrated a certain attitude held by the appellant with respect to the management of the workplace (at the end of the day, these matters were more adverse to his application than in favour of it). 26 To the contrary, however, and as the following extract of transcript reveals, the allegation of sexual harassment was, arguably, one of considerable substance: Q. Okay. Can I ask this, have you ever made sexual advances or touched inappropriately an employee? A. Yes, we always do that, we always muck around in the warehouse, so what. Q. Has anyone ever told you to stop or not do it? A. No one tells me to stop. It's not like I do it intentionally, it's called mucking around, it's a guy thing. A guy upstairs touches my arse, so what, I don't go and abuse him. It's just a muck around thing, big deal, what's that supposed to mean. Q. Inappropriate areas. I'm talking about a backside. A. No, everyone grabs my backside on my-- Q. No, another place I'm talking about. A. They can grab me anywhere they want, who cares. It's guys mucking around, it's not sexual harassment. If someone said stop it, obviously you'll stop it. Q. But in your opinion, what about the person's opinion, the other employee's opinion? A. They muck around because they laugh. Q. They laugh? A. Yes. Q. They haven't told you to stop? A. If they tell me to stop, you'd stop obviously. Q. Or don't do it anymore, Bob? A. You'll stop, but no one's ever said anything, because it's just a guy thing, mucking around. Q. And you're not aware of any of these employees complaining to Pat? A. No. Q. Bringing up this matter with Pat? A. No. We do it all the time, muck around, it's a guy thing. I don't see how that's sexual. 27 With that passage goes the appellant's unchallenged evidence as follows: Bob (Mr Elaro) also had a bad habit of touching his workers, by this I mean he would continually touch Fadi (Mr Sabsabi) and I in the private areas, which I found very distressing. I found it personally humiliating and offensive, this to me is sexual harassment.

28 Mr Elaro was the warehouse manager. He was in a position of responsibility and supervised the appellant. The fact that the conduct was engaged in by a male person against another male person makes no difference as to the issues raised. The appellant was plainly distressed and angered by the advances made by Mr Elaro. The Commissioner was required to give consideration to this issue because it went to the question as to whether there may have been any explanation or excuse for the appellant's conduct such as may attract a finding that his dismissal was harsh, unreasonable or unjust. 29 This assessment was required for two reasons. First, it was necessary to consider whether Mr Elaro's conduct may have in some way affected the appellant's judgment or demeanour in such a way as may have constituted a proper excuse or mitigated his misconduct. 30 Secondly, it was necessary to consider, in the context of the s 84 proceedings, whether Mr Elaro's conduct (or, for that matter, the respondent's conduct in the sense of any vicarious liability) may have constituted sexual harassment (and, thereby, contributed an explanation for his apparent misconduct). This consideration would have also contributed to an understanding of whether there was any explanation or excuse available to the appellant and, in any event, was required by, in our view, the provisions of s 169(1) of the Act. That section provides as follows: 169 Anti-discrimination matters (1) The Commission must, in the exercise of its functions, take into account the principles contained in the Anti-Discrimination Act 1977 . 31 Whilst, it was not necessary for the Commissioner to determine whether or not the respondent had infringed the Anti-Discrimination Act 1977, per se, (see the discussion by Watson J in Ramus Pty Ltd & Ors v Australian Workers Union, NSW Branch (1986) 19 IR 324 at 335) it was necessary to evaluate whether the dismissal of the appellant was harsh, unjust, or unreasonable in the light of any such proven conduct, which may constitute sexual harassment. This was because the relevant principles contained in the Anti Discrimination Act should be taken as including the elimination of sexual harassment from the workplace. 32 A brief reference to the provisions of the Anti-Discrimination Act will elucidate this conclusion and assist in the assessment of the conduct of Mr Elaro and, ultimately, the respondent. 33 The relevant provisions of the Anti-Discrimination Act, for present purposes, are ss 22A, 22B(2) and 55(1) and (3), which are in the following terms: 22A Meaning of "sexual harassment" For the purposes 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.

22B Harassment of employees, commission agents, contract workers, partners etc (1) ... (2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer. 53 Liability of principals and employers (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

34 Hence, sexual harassment is unlawful conduct under s 22B of the Anti-Discrimination Act. The test as to whether a person has sexually harassed another is objective in nature, and requires an assessment as to whether a reasonable person would have anticipated that a complainant would have been offended, humiliated or intimidated: Johanson v Michael Blackledge Meats (2001) 163 FLR 58 at [85]-[86] ("Johanson") and Webb v Newcastle Hire Cars Pty Ltd & Ors [2004] NSWADT 142 at [122]. 35 Conduct can amount to unlawful sexual harassment, even where the person who commits the conduct at issue did not intend to sexually harass. In Johanson at [84], Driver FM found: The test here is objective and it does not matter whether the perpetrator intended to act in a sexual way or, indeed, was aware that he or she was acting in a sexual way.

36 The terms "sexual advance", "request for sexual favours" or "conduct of a sexual nature" are not defined in the Anti-Discrimination Act. The terms are intended to cover a broad range of behaviours. As Mathews DCJ stated in O'Callaghan v Loder (1983) 3 NSWLR 89 at [103]: The sexual conduct of the employer can vary, on the one hand from attempts at sexual intercourse or some other over explicit connection, through the whole range of sexual contact including kissing, touching, pinching, and can include purely verbal approaches such as sexual propositions or gender based insults or taunting. It would be wrong for this tribunal to attempt an exhaustive list, as human inventiveness would almost certainly find other activities or approaches, equally unwelcome and unpleasant, which might then be denied the label of harassment.

37 In all of these circumstances, Mr Elaro's conduct and its impact on the appellant was relevant to the consideration of the appellant's s 84 application. The failure to consider this issue meant that the Commission did not have regard to a relevant consideration. As we have mentioned, this constituted an error of the kind discussed in House v The King.

38 It does not necessarily follow, however, that the appropriate order in the disposition of the appeal is that the appeal would be upheld and/or the Commissioner's decision quashed or set aside and orders made in favour of the appellant. 39 The evaluation which was required at first instance in this case was the weighing of the gravity of the misconduct in which the appellant engaged on 25 June 2009 against any mitigation by way of excuse or justification which may have arisen from the appellant's experiences at the hand of Mr Elaro or, perhaps, even his misconception of other deficiencies in the workplace operated by the respondent at the time of his dismissal: see Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [27]. 40 This raises some difficult questions. 41 The Commissioner was entitled, in our view, to conclude that the appellant's conduct on 25 June 2009 was of sufficient gravity that it constituted misconduct (having regard to the conduct on that day and the appellant's history at the workplace) and, absent any other factor, would not justify a conclusion that the termination was harsh, unjust or unreasonable, let alone a remedy being granted under s 89 of the Act. 42 The questions are whether the conduct of Mr Elaro constituted mitigation and, if so, how it might be weighed against the gravity of that misconduct. 43 In that regard, we would observe that Mr Elaro's understanding of what may or may not constitute sexual harassment is plainly at odds with the Anti-Discrimination Act and the relevant authorities bearing upon the application of that Act.

44 By virtue of s 53(1) of the Anti-Discrimination Act, that conduct had implications for the respondent. It would have been vicariously liable for the acts of Mr Elaro unless it satisfied the conditions of s 53(3). 45 Similar provisions to ss 22A, 22B and 53(3) of the Anti-Discrimination Act were found under the Sex Discrimination Act 1984 (Cth). In Boyle v Ishan Ozden & Ors (1986) EOC 92-165, the Commonwealth Human Rights Commission (in a judgment delivered by Dame Roma Mitchell) explained the operation of the vicarious liability provision of the Sex Discrimination Act 1984 (Cth) in the context of a sexual harassment case as follows (at 76,614): ...Div. 3 of Pt II, the statute applies in relation to that person as if that person had also done the act; in other words, it establishes vicarious liability on the part of the employer. Subsection (2) provides, however, that subsec. (1) does not apply in relation to the act if it is established that the employer took all reasonable steps to prevent the employee from doing acts of the kind referred to in that paragraph. There was no evidence that any steps had been taken by the second or the third respondent to prevent the commission of acts such as those complained of by the complainant. In saying that I do not criticise them. It would be difficult to envisage a situation in which they would have given such instructions. But the fact is that sec. 106 attaches vicarious liability to them unless they have done something active to prevent the acts complained of. So that if we find that the acts complained of were done and that the complainant's case is correct, then clearly not only the first respondent but the second and third respondents are also liable. 46 In the proceedings at first instance, the evidence bearing upon vicarious liability was limited and in a less than ideal form. It does not permit (even if it were desirable to do so) a firm conclusion as to whether the respondent may have been liable for the acts of Mr Elaro (we reiterate that it is unnecessary for us to reach any final conclusion as to Mr Elaro's liability under the Anti-Discrimination Act). 47 However, there is evidence which would tend to the view that the respondent would not be so implicated. Although, as we have said, the appellant was aggrieved by Mr Elaro's conduct, the evidence was not such as to permit a finding that the respondent's General Manager, Mr Managreve, knew about or condoned such conduct. To the contrary, the unchallenged evidence of Mr Managreve was to the effect that he made all reasonable attempts, by the implementation of policies and other means, to ensure that the workplace was safe, healthy and free from harassment and discrimination. 48 We accept that the harassment of the appellant by Mr Elaro does offer some explanation for his outburst on 25 June 2009, or, at least, the intensity of the aggression exhibited by the appellant in his encounter on that day. Nonetheless, that conclusion required the drawing of inferences. The appellant made no complaint at any time to Mr Managreve in that respect. Nor did he formally complain to Mr Elaro. Nevertheless, it does seem reasonably open given the proximity in time of Mr Elaro's conduct towards the appellant and, further, given that that issue remained wholly unresolved on 25 June 2009 that the appellant's conduct may be somewhat related to this issue. This does represent some limited explanation for the misconduct. 49 However, the harassment by Mr Elaro by no means wholly explained the appellant's conduct. He was principally motivated on 25 June 2009 by his assumption (for which there was no evidence) that the communication received by his father was from Mr Elaro and his debate with Mr Elaro over signage (about which he had no proper cause for complaint). 50 The appellant's conduct on that day was also consistent with the pattern of agitation by him over his short employment and the conflict he engendered at the workplace. The appellant had a history of conflict with Mr Chau. Ultimately, Mr Managreve had provided an opportunity for the appellant to adjust himself or reconsider his approach, which he refused to accept. 51 As to the respondent and its General Manager, Mr Managreve, we do not consider that a finding may be made on the evidence before us that they had engaged in legally or morally reprehensible conduct. That conclusion does not necessarily preclude a finding that the dismissal of the appellant was harsh, unreasonable or unjust, as that question must be viewed objectively: Four Sons v Sakchai Limsiripothong (2000) 98 IR 1 (at 8). However, in this case such an objective assessment does not warrant a different conclusion. We consider that the harassment received by the appellant from Mr Elaro does not substantially account for his behaviour on 25 June (or over the course of his employment), and that the countervailing considerations brought by it do not outweigh or sufficiently explain the appellant's misconduct. In the final analysis, there was no proper basis for the Commission to intervene in this dismissal. 52 Having regard to the errors to first instance, we may have, on the basis of this conclusion, upheld the appeal and substituted our own view of the appellant's s 84 application by dismissing it. We think the better course, however, is to confirm the judgment at first instance, albeit for different reasons. The appeal shall, therefore, be dismissed.

53 The orders of the Full Bench are: 1. Leave to appeal is granted. 2. The appeal is dismissed.

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