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[2003] NSWIRComm 181
respondent. Application dismissed; the Commission found the disciplinary findings established on the civil standard (with appropriate caution) and that dismissal was not harsh, unreasonable or unjust (see...
Sergeant Jason Coughran was dismissed after a Director General determination that he committed multiple acts of sexual harassment and two incidents of 'disgraceful conduct' toward a junior officer between 1998 and 2000. Criminal charges were brought; one conviction at Local Court was later quashed on appeal. The Department then conducted a comprehensive internal disciplinary inquiry (Tim McGrath), amended charges, allowed representations, and the Director General dismissed Coughran in June 2002. Coughran applied to the Industrial Relations Commission for relief under the Industrial Relations Act. The Commission (Boland J) reviewed the criminal transcripts, the investigator's reports, witness evidence and credibility, applied the civil standard of proof with the heightened caution appropriate for serious allegations (following Zheng), and found that on the balance of probabilities the misconduct and disgraceful conduct had been established. The Commission further found the disciplinary process afforded procedural fairness. The application for relief was dismissed.
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This judgment is an unfair dismissal application by Sergeant Jason William Coughran against his employer, the Public Employment Office / Attorney General's Department, heard by Boland J in the Industrial Relations Commission of New South Wales (Matter IRC 3808 of 2002). The essential factual matrix is:
Key procedural steps are: initial complaint (29 March 2000), police investigation and Local Court/District Court proceedings (2000–2001), departmental investigation and reports (2001), Director General determination and dismissal (2002), and Commission hearing (2003) ([4], [7]-[15], [16], [17]).
Three linked strands drive the Commission’s decision.
Standard and onus: the Commission applied the established principle (as set out in Zheng Wen Wang v Crestell Industries Pty Ltd and quoted at length) that in reinstatement cases alleging serious misconduct, particularly conduct that could be criminal, the employer bears the onus of proof and must satisfy the Commission on the civil standard, but with a degree of satisfaction proportionate to the gravity of the allegation (the Briginshaw principle). The judgment explicitly quotes the passage in Zheng that the civil standard is required but tempered by seriousness and consequences ([102]).
Evidentiary assessment and credibility: Boland J carefully reviewed the Local Court proceedings (Magistrate Dillon's transcript), the District Court appellate remarks (Judge Shadbolt’s reasons), and Mr McGrath’s extensive primary and supplementary reports. The Commission had the advantage of hearing witnesses in person, including Mr Coughran, Ms Flanagan and Ms Nicholls, and inspected the physical layout of the Café Downing and the sheriff's office ([72]-[81]). On a holistic assessment, the Commission preferred the account of Ms Flanagan and the corroboration provided by Ms Nicholls and other material (including McGrath’s enquiries about CCTV footage and witness interviews). Importantly, where the Local Court had doubts under a criminal standard, McGrath’s further investigation and the Commission’s balance-of-probabilities assessment led to different conclusions on key incidents (jumper, café and shirt incidents) ([74]-[76], [78], [81], [92]-[96]).
Procedural fairness: the Commission accepted that the Department followed the statutory disciplinary process (appointments under the Regulation, opportunities to make written and oral representations, amendment of charges and further enquiries after the District Court appeal). Boland J concluded the inquiry was 'very carefully and comprehensively carried out and fair' and that procedural fairness requirements had been met ([10], [13], [79], [82], [45]).
Combining these strands, the Commission found the Department had discharged the requisite onus to the level required by the seriousness of the allegations and that dismissal was an appropriate outcome given proven misconduct and disgraceful conduct. Hence the application for relief failed ([102], [105]).
Before this decision the applicable legal landscape for disciplinary/reinstatement matters included:
After this decision, the practical legal position confirmed by Boland J is:
This decision thus reaffirms established principles rather than changing law: it applies Zheng (followed) and applies Wilson on procedural fairness (applied at [45]), illustrating how those principles operate in a public sector sexual harassment dismissal context.
[65]: Magistrate Dillon's remark about workplace culture: "this is a case about a culture as much as about an individual..." Translation: the Local Court saw the problems not just in one person’s conduct but in an entrenched sexualised workplace culture; this background matters for assessing both blame and remedial duties ([65]).
[12] / [77]: Judge Shadbolt (District Court) on the criminal appeal: "I am not... dealing with possibilities... I cannot be convinced on the evidence before me." Translation: on the criminal standard (beyond reasonable doubt) the judge was not satisfied the offence had been proven; however, he expressly noted events might be possible or probable, this highlights why a civil disciplinary finding can differ from a criminal outcome ([12], [77]).
[78]-[81]: Mr McGrath’s summary of inquiry sources and supplemental enquiries. Translation: the investigator compiled and weighed a wide range of primary documents, transcripts and interviews and re-interviewed witnesses when new questions arose; the report underpins the Department’s disciplinary decision.
[102]: The Zheng quotation about onus and standard: "the employer must establish, to the reasonable satisfaction of the Commission... the standard is... civil... but... have regard to the seriousness..." Translation: in disciplinary dismissal cases, the Commission applies the balance of probabilities but must be sufficiently persuaded given the seriousness and consequences, an intermediate standard of 'reasonable satisfaction' appropriate to the gravity of the allegation.
[92]-[97]: The Commission's findings on individual incidents (jumper, café, shirt, propositioning). Translation: the judge assessed each alleged episode, noting some doubts but concluding, on the totality of evidence and corroboration, that the incidents were sufficiently proved on the balance of probabilities.
This judgment is triggered where:
If those elements are present, this judgment illustrates the Commission’s willingness to find misconduct on the balance of probabilities even where a criminal tribunal was not satisfied beyond reasonable doubt, provided the employer’s inquiry is thorough and fair and the Commission itself is persuaded on credibility and corroboration.
The judgment itself does not record later appellate treatment. The decision cites and applies established authority (Zheng, Wilson) and the Briginshaw principle. Practitioners should note:
Because this judgment is an application of established principles to a detailed factual matrix rather than a decision that alters legal principle, its real utility is as a demonstration of how thorough investigative reports (and corroborative enquiries) and careful credibility assessments can sustain disciplinary decisions post-criminal proceedings.
If you need to know whether later cases have cited or modified aspects of this decision you would need a targeted citator search (e.g., via AustLII, LawCite, or other legal research platforms). The judgment itself does not provide post-decision treatment.
From the judgment’s reasoning and the institutional context, some issues remain open for litigation and employer practice:
Extent of corroboration required: the judgment accepted McGrath’s findings including interviews and CCTV enquiries. But how much independent corroboration is necessary in borderline cases where the only witnesses are the complainant and one corroborator who has an adversarial relationship with the respondent? The Commission here accepted corroboration (see [28]-[31], [81], [92]); in other facts, the line could be finer.
Weight of a criminal acquittal: the decision clarifies that an acquittal is not determinative, but it leaves open the precise circumstances in which an acquittal will decisively undermine a disciplinary finding on the balance of probabilities. The District Court’s comments were persuasive but not determinative because of differing standards ([12], [77], [81], [95]).
Procedural fairness thresholds in public-sector inquiries: Boland J accepted the internal process as fair when the investigator re-opened enquiries after the appellate outcome and allowed further representations ([13], [79], [82]). That suggests robust follow-up after new material is advisable, but the precise minimum steps required in closer cases remain fact-dependent.
Remedies scope where workplace culture is systemic: Boland J criticised the Downing Centre culture and remarked earlier intervention might have prevented the harm ([65]-[71], [103]-[104]). The judgment does not, however, elaborate on remedial obligations or systemic employer liability beyond disciplinary outcomes for individuals. The extent to which systemic remediation or broader organisational orders might be fashioned in future industrial applications remains an open practical question.
Role of late complaint: the judgment accepts late complaint explanations in this context ([98]-[100]). However, across different factual matrices, late reporting may carry greater or lesser weight depending on corroboration and the alleged perpetrator's rank. The judgment shows explanations can be persuasive, but it does not give a formulaic test.
This decision demonstrates a practical template: where an employer conducts a comprehensive, properly authorised disciplinary inquiry, gives opportunities to respond, and produces credible corroboration, the Commission will apply the Briginshaw-informed civil standard and may uphold dismissal even if criminal courts did not convict. It also underscores the importance of employer attention to workplace culture as both a background factor and a potential mitigation route.
Disclaimer: This is a source-grounded analysis of Coughran v Public Employment Office/Attorney General's Department [2003] NSWIRComm 181 based solely on the judgment text supplied. It is legal information, not legal advice. I can make mistakes. Before you act on, rely on, or use any part of this analysis or any draft based on it, get a qualified Australian lawyer to check it.
CITATION : Coughran v Public Employment Office/Attorney General's Department [2003] NSWIRComm 181 APPLICANT Jason Coughran PARTIES : RESPONDENT Public Employment Office/Attorney General's Department FILE NUMBER: IRC 3808 of 2002 CORAM: Boland J CATCHWORDS : Unfair Dismissal - Applicant charged with breach of discipline under s 66(1)(b) and s 66(1)(f) of the Public Sector Management Act 1988 - Sexual harassment - Criminal proceedings in Local Court and District Court - Disciplinary inquiry under Public Sector Management (General) Regulation 1996 - Applicant denied all charges - Application dismissed Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Industrial Relations Act 1996 Public Sector Management Act 1988 Public Sector Management (General) Regulation 1996 CASES CITED : Wilson v Department of Education and Training (2000) 100 IR 1 Zheng Wen Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 HEARING DATES: 04/08/2003 DATE OF JUDGMENT: 06/10/2003
APPLICANT Mr K White acting as agent
LEGAL REPRESENTATIVES: RESPONDENT Ms E Brus of counsel with Mr G Ball of Crown Solicitors Office
Coughran v Public Employment Office/Attorney General's Department
Application by Jason Coughran re: unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 JUDGMENT [2003] NSWIRComm 181 1 This matter concerns an application by Jason William Coughran for relief under s 84 of the Industrial Relations Act 1996 in relation to his alleged unfair dismissal. Mr Coughran was employed as a sheriff's officer (with the rank of sergeant) in the Sheriff's Office of New South Wales. The Awards covering his employment were the Crown Employees' (Public Service Conditions of Employment) Award 1997 and the Crown Employees' (Public Sector - Salaries - January 2002) Award.
2 Mr Coughran commenced his employment as a sheriff's officer on 3 July 1989 and continued in that employment until his dismissal on 11 June 2002. Mr Coughran was dismissed following a determination by Laurie Glanfield, Director General of the New South Wales Attorney General's Department, that Mr Coughran committed breaches of discipline within the meaning of s 66 of the Public Sector Management Act 1988. Mr Coughran was notified of the Director General's determination in a letter of 12 April 2002. The breaches of discipline were identified in the letter as follows: Section 66(1)(b) of the Public Sector Management Act 1988, namely misconduct. 1. Since about 14 September 1998 and until 28 March 2000, you behaved in a sexually harassing manner, including unwanted physical contact, repeated innuendo and propositioning for sex, towards Ms Peta Danielle Flanagan (formerly McKelvey), Sheriff's Officer, Campbelltown, in contravention of the Department's Code of Conduct and Harassment Prevention Policy. The particulars are that: 1. Between 1 October and 30 November 1998, you asked Ms Flanagan to assist you in the Sydney City Field Office attached to the Downing Centre. She agreed and accompanied you into the office to fold jumpers. After a short time you said words to the effect "Oh, you've got stuff all over you", and you then, without reasonable cause, proceeded to move your open hand in a brushing manner across Ms Flanagan's breasts and buttocks.
3 Mr Coughran denied the charges with the exception of the incident that occurred on 28 March 2000 where Ms Flanagan was berated by Mr Coughran in front of her colleagues and customers. Mr Coughran said, however, that he later apologised to Ms Flanagan in relation to the incident. In relation to the charge of disgraceful conduct Mr Coughran denied that the incidents described in the particulars to the charge ever happened. He also denied he, at any time, propositioned Ms Flanagan for sex, denied touching Ms Flanagan's breasts and buttocks and denied that he threatened, bullied, embarrassed, humiliated or belittled Ms Flanagan other than the occasion of 28 March 2000 for which he apologised.
4 The events which culminated in Mr Coughran's dismissal commenced with a complaint to the Acting Sheriff of New South Wales, Bruce Kelly by Ms Peta Danielle Flanagan on 29 March 2000. Ms Flanagan (nee McKelvey) had been a sheriff's officer since 1998. During her interview with Mr Kelly, Ms Flanagan said she wished to make a complaint of sexual harassment against Sergeant Jason Coughran who, at the time, was second in charge at the Sydney City Sheriff's Office. She indicated that Sergeant Coughran's behaviour towards her had been unacceptable since the first week she commenced duties and until the date of complaining to the Sheriff she had been too intimidated by his rank to complain.
5 Ms Flanagan's concerns, as they were expressed to Mr Kelly on 29 March 2000, were as follows:
· She alleged that shortly after her commencement as a Probationary Sheriff's Officer, Sergeant Coughran had brushed his hands over her breasts and bottom whilst she was alone with him in a room folding pullovers. · That in the ensuing months, Sergeant Coughran had propositioned her for sex which included unwanted physical contact including the stroking of her forearms. · That Sergeant Coughran had continued to either directly proposition her for sex or through his conduct and conversations with her inferred that he wanted to have sex with her. · That in approximately September 1999 and sometime between 3.30-4.00pm and in the presence of Sheriff's Officer Belinda Nicholls, Sergeant Coughran had approached Officer Flanagan in the Café Downing, grabbed her with both hands under the thighs, forced her back against the counter and thrust himself between her legs. Sheriff's Officer Nicholls intervened, pulled Sergeant Coughran away and told him to "back off". · That Sergeant Coughran had a habit of touching her by rubbing her forearm when they were in conversation; in addition when in the Downing Centre lift alone, Sergeant Coughran had propositioned Officer Flanagan for sex again. · That Sergeant Coughran had made unwelcome comments about her appearance, suggesting that officer Flanagan had put on weight and had pinched her stomach and buttocks. · That Sergeant Coughran suggested to Officer Flanagan that she wear a smaller size shirt; that the uniform that she was wearing did not gape as much and at the same time he pulled at the buttons on her uniform shirt and exposed her breasts and brassiere. · That Sergeant Coughran had asked Officer Roxanne Falconer to start a rumour that both he and Officer Flanagan were having an affair. · That on 28 March 2000, Sergeant Coughran had belittled and embarrassed Officer Flanagan by intervening in a telephone enquiry and alleging to officer Flanagan that if she could not take a phone call then there was something wrong with her intelligence; and · Finally, Sergeant Coughran had by his remarks, inferred that he was protected from any adverse management action concerning his behaviour towards Officer Flanagan because of his good standing with senior officers.
6 Consequently, Ms Anita Anderson, Director, Local Courts, was appointed by the Director General to conduct a preliminary inquiry into the matters outlined in a report by Mr Kelly following his interview with Ms Flanagan. Ms Anderson formed the belief that a criminal offence had been committed by Mr Coughran in that on or about September or October 1999, Mr Coughran indecently assaulted Officer Flanagan at the Downing Centre Café.
7 Ms Anderson's inquiry was, in effect, overtaken by the fact that in light of the potential criminality involved, the matter was put in the hands of the police. Following a police investigation, which included interviews of Ms Flanagan and Mr Coughran, Mr Coughran was charged by police with four counts of assault with act of indecency. Those charges related to: a) An incident between 1 October and 31 October 1998 in the Sydney City Sheriff's Office at the Downing Centre in which it was alleged that Sergeant Coughran touched Officer Flanagan's breasts. b) An incident at the same time and place in which it was alleged that Sergeant Coughran touched Officer Flanagan's buttocks. c) An incident between 1 September and 31 October 1999 in the Café Downing at the Downing Centre in which it was alleged that Sergeant Coughran took hold of Officer Flanagan's thighs and buttocks and thrust himself toward her on the outside of her clothing; and d) An incident between 1 February and 28 February 2000 in the Sydney Sheriff's Office at the Downing Centre in which it was alleged that Sergeant Coughran pulled at Officer Flanagan's blouse revealing her breasts and brassiere.
8 Mr Coughran appeared before the North Sydney Local Court on 29 August 2000 and entered pleas of not guilty to all charges. The matters were subsequently heard before Magistrate H Dillon on 15, 16 February and 22, 27 March 2001. On 27 March 2001 Magistrate Dillon dismissed three of the charges but found proven the charge relating to the indecent assault where Ms Flanagan's breasts and brassiere were exposed.
9 The Magistrate made the following orders under s 10 of the Crimes (Sentencing Procedure) Act 1999: I find the offence proven, I release you upon you entering a bond to be of good behaviour, upon your undertaking to be of good behaviour for four years; and court costs at the sum of $56 I will allow 28 days to pay.
10 On 17 April 2001 the Director General wrote to Mr Coughran and advised him that the disciplinary inquiry, suspended in June 2000 pending the outcome of criminal proceedings against him, was to recommence. The inquiry was conducted by Mr Tim McGrath who at the time was Principal Courts Administrator with the Attorney General's Department. He was appointed pursuant to clause 21 of the Public Sector Management (General) Regulation 1996 by the Director General to conduct a preliminary inquiry into the allegations against Mr Coughran. As a consequence of the inquiry, Mr Coughran was suspended from duty with full pay from 17 April 2001.
11 Mr McGrath conducted an extensive inquiry and reported to the Director General on 28 September 2001. In a 131 page report, whilst recommending amendment to the original charges brought against Mr Coughran, Mr McGrath confirmed the validity of the substance of the original charges. Mr McGrath made the following recommendations: 1. I RECOMMEND the continuation of disciplinary proceedings against Jason William COUGHRAN pursuant to section 66 of the Public Sector Management Act 1998. 2. I RECOMMEND the existing charge be amended to read that Jason William COUGHRAN has committed a breach of discipline within the meaning of section 66(1)(b) of the Public Sector Management Act 1998 namely misconduct. The breach of discipline is set out as follows: (a) Since about 14 September 1998 and until 28 March 2000, Jason William COUGHRAN behaved in a sexually harassing manner including unwanted physical contact, repeated innuendo and propositioning for sex, towards Ms Peta Danielle FLANAGAN (formerly McKelvey) Sheriff's Officer, Campbelltown. 3. I RECOMMEND that Jason William COUGHRAN be charged with having committed a further breach of discipline within the meaning of section 66(1)(b) of the Public Sector Management Act 1998, namely misconduct. The breach of discipline is set out as follows: (a) Between 14 September 1998 and until 28 March 2000, Jason William COUGHRAN behaved in a threatening, bullying, embarrassing, humiliating and belittling manner towards Peta Danielle Flanagan (formerly McKelvey) Sheriff's Officer, Campbelltown. 4. I RECOMMEND that Jason William COUGHRAN be charged with a breach of discipline within the meaning of section 66(1)(f) of the Public Sector Management Act 1988, namely disgraceful conduct. The breach of discipline is set out as follows: (a) Between September 1998 and until March 2000, Jason William COUGHRAN, on two occasions, engaged in disgraceful or dishonourable behaviour towards Peta Danielle FLANAGAN (formerly McKelvey) Sheriff's Officer, Campbelltown. 5. I RECOMMEND, in relation to the amended charge of misconduct that the date be amended to specify that the offence occurred between 14 September 1998 and 28 March 2000. This is more precise than the date stated in the letter of charge, i.e. 31 August 1998. 6. I RECOMMEND, in relation to Item 2 of the particulars stated in the letter of charge dated 17 April 2001, that the date be altered to read 'Between September 1998 and 28 March 2000' in lieu of 'August 1998 and April 2000'. 7. I RECOMMEND in relation to Item 7 in the particulars contained in the letter of charge that the particulars be amended and restyled to read 'Between 1 January 1999 and 28 March 2000, you made unwelcome comments about Ms Flanagan's appearance, including poking your finger in her stomach, making comments such as "You're getting tubby around here" or "You're putting on weight" or words to that effect. You also, from time to time, patted Ms Flanagan's bottom saying, "Your bum's got big" or words to that effect. 8. I RECOMMEND in relation to Item 3 contained in the letter of charge that the period be amended to read 'Between April 1999 and June 1999' in lieu of the expression 'During 1999'. 9. I RECOMMEND in relation to Item 4 of the particulars contained in the letter of charge that the expression 'on one occasion between April and June 1999' in lieu of the expression 'during 1999'. 10. I RECOMMEND in relation to the second charge of misconduct the following particulars accompany the charge: (a) During 1999 in the Downing Centre elevators or at the scanners when you propositioned Ms Flanagan for sex, including unwanted innuendo, and she said "No" you said words to the effect of, "You're not going to get real far in this job McKelvey" or you would shake your head dismissively and laugh at her before walking away. Ms Flanagan felt humiliated and belittled by your actions. (b) Between 14 September 1998 and 28 March 2000, you made remarks to Ms Flanagan such as, "See, you've got a problem there, I'm liked around here" or words to that effect which you intended to mean that you were protected against any management action concerning your behaviour towards her. Ms Flanagan was intimidated and frightened of you as a result of your repeated statements to her. (c) On 28 March 2000 Ms Flanagan was assisting at the Downing Centre scanners and answered a telephone call from a person seeking information about work experience in the Office of the Sheriff. During the course of the enquiry, you intervened saying, "Why do you keep running to the Sheriff. I've spoken to Bruce about this and he is sick of problems being sorted out down here", or words to that effect. You also said, "If you can't take a phone call, there's something wrong with you 'up here'", or words to that effect, indicating towards your head. You refused to speak to the caller directly. Ms Flanagan said, "Don't speak to me like that in front of other Sheriffs. If you've got a problem with me you pull me aside and you tell me." Ms Flanagan felt humiliated and belittled by your behaviour in front of her colleagues and customers. 11. I RECOMMEND , in relation to the charge of disgraceful conduct that the following particulars accompany the charge: (a) Between 1 September and 30 November 1998, on one occasion at about 3.30 to 4.00pm at the Café Downing, 141-143 Liverpool Street, Sydney, you did intentionally and without reasonable cause placed your hands under Ms Flanagan's thighs, lifted her onto the tray slide and forced her legs apart. You then thrust yourself up between her legs and pressed up against her pelvic region. At the same time you said, "You want this don't you ?" or words to that effect. (b) Between 20 March and 27 March 2000, on one occasion, at about 12.30 to 1.30pm in the foyer of the Downing Centre, 141-143 Liverpool Street, Sydney, you intentionally and without reasonable cause pulled at the button on Ms Flanagan's uniform and exposed her breasts and brassiere. At the time you said, "You don't gape anymore, we can't see anything anymore", or words to that effect. As you walked away Ms Flanagan said, "You are disgusting, you make me sick", or words to that effect. 12 In the meantime, Mr Coughran appealed against the decision by Magistrate Dillon where the Magistrate found one of the charges of indecent assault proven. The appeal was heard in the District Court and on 4 October 2001 Judge Shadbolt upheld the appeal and the conviction was quashed. In his judgment Judge Shadbolt said: I am not, here, dealing with possibilities, though it might be quite possible that these events, as told by Ms Flanagan occurred. Nor am I dealing with probabilities, although I might form the view that in all probability it did occur in the manner described. What I have to consider is proof beyond reasonable doubt and of this I cannot be convinced on the evidence before me.
13 On 24 October 2001 Mr Glanfield wrote to Mr McGrath and advised him that he had considered his report and recommendations. The Director General said that given Mr Coughran's appeal and the dismissal of the charge that he wished to consider issues raised in the appeal proceedings before deciding whether to proceed with disciplinary action against Mr Coughran. Accordingly, under cl 25(4) of the Public Sector Management (General) Regulation 1996 the Director General directed Mr McGrath, pursuant to cl 22 of the Regulation, to: 1. Review the decision in the Local and District Courts; 2. Allow Mr Coughran a further opportunity to make written and oral representations concerning the subject of the inquiry.
14 Mr McGrath submitted a 31 page supplementary report to the Director General on 30 November 2001. In his report Mr McGrath stated: [I] am satisfied that no new information has come to my attention which would cause me to reconsider my earlier conclusions. Consequently, I recommend the disciplinary proceedings continue and I do not resile from any of my earlier recommendations.
15 In accordance with Mr McGrath's recommendations, the Director General provided Mr Coughran with an amended letter of charge on 17 December 2001 and invited him to make further written representations in relation to the amended charges by 4 January 2002. The charge was further amended in March 2002 and Mr Coughran was invited to respond by 8 April 2002. As I earlier noted, on 12 April 2002 the Director General again wrote to Mr Coughran giving him notice of a determination that Mr Coughran did commit breaches of discipline under s 66 of the Public Sector Management Act. Mr Coughran responded to the notice of determination on 26 April 2002. Mr Coughran was subsequently dismissed pursuant to s 75(1)(d) of the Public Sector Management Act effective from 11 June 2002.
16 The evidence in the proceedings before me consisted of the following: · An affidavit by the applicant which included part of the transcript of proceedings before Magistrate Dillon , the transcript of the judgment of Judge Shadbolt given on 4 October 2001 and Mr Coughran's 16-page reply to the Director General's amended letter of charge of 17 December 2001. Statements attached to the affidavit by Jenny Chong, sandwich hand at the Café Downing dated 16 January 2001, Loch Diep, restaurant manager at the Café Downing dated 16 January 2001 and Lucy Azer, sandwich hand at the Café Downing dated 16 January 2001 were ruled inadmissible.
· An affidavit, sworn on 24 February 2003, of Milena Kaye Tindale who had been employed as a sheriff's officer from 4 March 2002 to late October 2002.
· An affidavit of John William Reginald Kruit, Regional Manager, Sheriff's Office, North Region, sworn on 15 February 2003.
· Three colour photographs showing the layout of the Café Downing. · Payslips relating to Mr Coughran's employment for three pay periods between 8 March 2003 and 28 March 2003.
· The Report of Preliminary Inquiry into alleged breaches of discipline by Jason William Coughran by Tim McGrath, Principal Courts Administrator, dated 28 September 2001.
· Supplementary Report of preliminary inquiry into alleged breaches of discipline by Jason William Coughran by Tim McGrath, Principal Courts Administrator, dated 30 November 2001.
· Affidavit of Bruce Michael Kelly, sworn on 7 April 2003 which included as an attachment a copy of the record of interview conducted with Mr Kelly by Mr McGrath on 16 May 2001 and a copy of the transcript of evidence given by Mr Kelly in the Local Court proceedings on 16 February 2001.
· Affidavit of Peta Danielle Flanagan, sheriff's officer, sworn on 7 April 2003 which included as an attachment a copy of the record of interview conducted with Ms Flanagan by Mr McGrath on 16 May 2001 and a copy of the transcript of evidence given by Ms Flanagan in the Local Court proceedings on 15 February 2001. · Affidavit of Belinda Nicholls, sheriff's officer, sworn on 7 April 2003 which included as an attachment a copy of the record of interview conducted with Ms Nicholls by Mr McGrath on 31 May 2001 and a copy of the transcript of evidence given by Ms Nicholls in the Local Court proceedings on 15 and 16 February 2001.
· Letter of charge and suspension from duty - 17 April 2001.
· Notice of determination of charge - 12 April 2002.
· Mr Coughran's response to determination of charge - 26 April 2002.
· Notice by Director General of decision as to punishment (undated).
· Two black and white and one colour photograph of the counter at the Sydney Sheriff's Office.
· Affidavit of Anne Bryce, Employee Relations Manager, Attorney General's Department sworn on 16 April 2003. 17 Mr Coughran, Ms Tindale, Mr Kruit, Ms Flanagan and Ms Nicholls were required for cross examination. Additionally, the Commission carried out an inspection of the sheriff's office and the Café Downing at the Downing Centre, Liverpool Street, Sydney.
18 Mr K White appeared for the applicant as agent. Mr White indicated that the applicant was seeking reinstatement or, in the alternative, re-employment or, in the further alternative, an order for compensation to the maximum allowable.
19 It was Mr White's contention that none of the allegations made against the applicant in the letter of charge had any foundation in fact except the incident where Mr Coughran publicly berated Ms Flanagan. It was submitted, however, in relation to that incident the applicant later apologised and, therefore, it did not provide grounds for dismissal. Mr White submitted that the lack of any factual foundation to the allegations was supported by the distinct lack of precision in the charges. For example, there was no precision as to when these offences were alleged to have occurred except that they occurred within periods as lengthy as September 1998 to March 2000.
20 Relying on the applicant's evidence Mr White submitted that Ms Flanagan was motivated to make the false accusations against the applicant because he had "repeatedly reported her for, and remonstrated with her for, overtime fraud against the Government of New South Wales." Further, that Ms Nicholls provided false evidence against the applicant in the Local Court proceedings and in these proceedings because he had previously "curtailed a brief sexual relationship with her."
21 Mr White referred to the "café incident". This was one of the incidents that gave rise to the charge under s 66(1)(f) of the Public Sector Management Act of disgraceful conduct in that : Between 1 September 1998 and 28 March 2000, on one occasion at about 3.30 pm - 4.00 pm at the Café Downing, 141-143 Liverpool Street, Sydney, you did intentionally and without reasonable cause place your hands under Ms Flanagan's thighs, lifted her onto the tray slide and forced her legs apart. You then thrust yourself between her legs and pressed against her pelvic region.
22 The applicant denied the café incident occurred and Mr White contended that the incident could not have occurred as Ms Flanagan described it because:
· Ms Flanagan said in her evidence that at the time of the incident she was "on the bend in the counter" and was "facing Liverpool Street." This could not have been the case because the bend in the counter faced the corner of Liverpool and Elizabeth Streets.
· Ms Flanagan said in her evidence she was "Maybe arm's length" from the coffee machine but the evidence showed that the coffee machine was 6.5 metres from the bend in the counter where Ms Flanagan said she was standing.
· Ms Flanagan said in her evidence that the applicant lifted her onto the tray slide by placing his hands under her thighs. Mr White said "the thighs of any person … are on the front of their legs and the back of their legs is termed the hamstring muscle".
· Ms Nicholls said in her evidence in the Local Court proceedings that the café incident took place at a point some distance from where Ms Flanagan said it took place. Consequently, there was a significant difference in the evidence of Ms Flanagan and Ms Nicholls on this issue and one which caused Magistrate Dillon to conclude there was reasonable doubt regarding the café incident such as to cause him to dismiss the charge.
· Ms Flanagan said she was not hysterical but Ms Nicholls said she was, thereby giving rise to another inconsistency in the evidence of these two witnesses.
23 The other incident that led to the charge of disgraceful conduct was the "shirt incident" where it was alleged in the charge that: Between 20 March and 27 March 2000, on one occasion, at about 12.30 - 1.30 pm in the foyer of the Downing Centre, 141-143 Liverpool Street, Sydney, you intentionally and without reasonable cause pulled at the buttons on Ms Flanagan's uniform and exposed her breasts and brassiere. At the time you said, "You don't gape anymore, we can't see anything anymore" or words to that effect. As you walked away Ms Flanagan said, "You are disgusting, you make me sick" or words to that effect.
24 Apart from the applicant's denial that the incident took place, Mr White submitted that it was a physical impossibility for Ms Flanagan's shirt to have opened up to expose her breasts and brassiere in the manner she described. Mr White had the applicant don a shirt that was part of the sheriff's officer uniform in order to demonstrate that the shirt front could not be opened (other than pulling the buttons off, which was not the evidence of Ms Flanagan) merely by someone inserting two fingers between the buttons of the shirt.
25 Mr Coughran was also charged with misconduct under s 66(b) of the Public Sector Management Act. One of the incidents referred to in the charge was that: Between 1 October and 30 November 1998, you asked Ms Flanagan to assist you in the Sydney City Field Office attached to the Downing Centre. She agreed and accompanied you into the office to fold jumpers. After a short time you said words to the effect "Oh, you've got stuff all over you", and you then, without reasonable cause, proceeded to move your open hand in a brushing manner across Ms Flanagan's breasts and buttocks.
26 The applicant denied this incident. Mr White referred to the evidence of Ms Nicholls in the Local Court proceedings who said that she witnessed the incident on a closed circuit television monitor. Magistrate Dillon expressed some doubt about Ms Nicholls' evidence as to the length of time involved in the brushing incident and the inconsistencies on this issue between the statement she made to the police and the version she gave to the Local Court as well as the inconsistency with Ms Flanagan's evidence as to the duration of the brushing incident. Ms Flanagan seemed to indicate the brushing took place over two to three seconds. The Magistrate also referred to the evidence of a Sergeant Vaughan to the effect that Ms Nicholls could not have seen the brushing incident on the CCTV monitor because the camera in the Field Office only gave a view of the doorway and not of the Office itself. Mr Vaughan said in his evidence that it was impossible to see the counter where the applicant and Ms Flanagan were allegedly folding jumpers when the incident occurred. The Magistrate also referred to what he described as a "poisonous" relationship between Ms Nicholls and Mr Coughran.
27 Subsequent to the outcome of proceedings in the Local Court, Mr Tim McGrath, who conducted the inquiry into the applicant's alleged breaches of the Public Sector Management Act, discovered that in fact Sergeant Vaughan was wrong in his evidence that the Field Office counter was not being monitored by CCTV. His investigations found that video tapes existed for October 1998 (about the time of the alleged jumper incident) which showed "the counter of Sydney office, the first two work stations, probably a third of the office to the filing cabinets." This information was provided to Mr McGrath by Inspector Michael Lukic of the Sheriff's Office who also said in his record of interview with Mr McGrath: This image [of the counter] and the office area [behind the counter] is pretty well the same image we've had at the counter since the inception of the Downing Centre. My understanding of the security specifications were wherever there was cash handled the cameras are to look at the counter.
28 When asked about the evidence given by Sergeant Vaughan in the Local Court proceedings, Inspector Lukic said he disagreed with that evidence. He said: …I have no doubt, no hesitation, in saying that wherever there's a counter where there's cash, the camera's look at that counter, that has always been the policy. So I just don't know where Ray's [Sergeant Vaughan] getting that information from. Ray hasn't worked in the Control Room for many years, so I can't really say where he's got his information from …
29 Inspector Lukic could not find any tape showing the jumper incident but noted that the recording he had found was dated 12 October 1998 which was during the period in which the breach allegedly occurred, namely, between 1 October and 30 November 1998. Inspector Lukic also expressed the opinion that if two officers were standing behind the counter, someone monitoring the scene over the CCTV could see the jumper incident as described by Ms Nicholls, saying "You would be able to see both parties quite clearly from the waist up."
30 Mr McGrath subsequently interviewed Sergeant Vaughan. It is apparent from that interview that Mr Vaughan's evidence regarding what could be seen through the camera related to a period during the Olympic Games in 2000 and that Mr Vaughan assumed that the same fixed camera was in use two years previously. Mr Vaughan said that if he had seen the video tape for October 1998 before giving evidence before the Local Court "… I would have definitely seen that you can see more than what I'd said", and that "If I'd been shown that [tape] prior to going to court, then I would have agreed with that tape .. if I'd seen that [tape] prior to giving that evidence then I would have given different evidence to (sic) I've given there."
31 Mr White sought to deal with Mr McGrath's findings regarding the camera by submitting that even if the image of two officers behind the counter was visible to someone monitoring the scene they would not have been able to see what was alleged, namely, the applicant stroking Ms Flanagan's buttocks. Mr White also submitted Ms Nicholls could not have seen Mr Coughran brushing Ms Flanagan's breasts because the cameras at the time of the alleged incident were in black and white and were on a five second cycle. Mr Coughran submitted that it "beggared belief" that Ms Nicholls stood and watched what was allegedly occurring for a period of between 10 and 30 seconds as she said in her evidence.
32 As to the "poisonous" relationship between Ms Nicholls and Mr Coughran, Mr White submitted the Magistrate was correct and that this arose, at least to some extent, out of Mr Coughran's curtailment of a brief sexual relationship in 1995.
33 The next allegation of misconduct against the applicant in respect of Ms Flanagan was that: Between September 1998 and 28 March 2000, you propositioned Ms Flanagan for sex on a number of occasions, saying on one occasion at the scanners at the entrance to the Downing Centre "So are you going to fuck me or not?", or words to that effect. You also demonstrated unwanted physical contact, such as stroking her forearms and placing your arm around her.
34 The incident was alleged to have occurred whilst Ms Flanagan was performing scanning duties and was within six to seven metres of another officer. If that was so, it was submitted, it was highly likely that the other officer would have witnessed what had occurred or Ms Flanagan would have reacted in some way and drawn attention to the incident. However, notwithstanding that Ms Flanagan said she was shocked by the incident and that she remembered it clearly, it was submitted Ms Flanagan could not remember who else was on duty that day and no evidence was called to corroborate Ms Flanagan's version of events. Mr White also pointed out what he said was an inconsistency in Ms Flanagan's evidence that adversely affected her credit and that was she said in proceedings in the Local Court that the "are you going to fuck me or not?" comment was made in the scanner area but told the Sheriff in the interview in March 2000 that it was made in a lift in the Downing Centre. 35 Mr White also submitted, based on the evidence of Mr Kruit, that during their initial training, all officers are instructed on what to do if they encounter sexual harassment. Ms Flanagan was also advised by Mr Ken Holdgate (Ms Flanagan's regional manager) to report any incidents of sexual harassment. However, Ms Flanagan took no steps to lodge a complaint about the incident at the scanner or the shirt incident for at least six months when she reported Mr Coughran's conduct to the Sheriff in March 2000. This was despite the fact that although the applicant was senior in rank to Ms Flanagan, he did not have any direct supervisory responsibility for her.
36 A further allegation against the applicant was that: On one occasion between April and June 1999, Ms Flanagan was at the top of the vehicle ramp at the security entrance to the Downing Centre in Castlereagh Street, when you were exiting the building in a departmental vehicle. You stopped the car and said to her, "jump in, we'll go for a drive, no one will know. I'll say that you have been assisting me in the field" or words to that effect. She took this to mean you were again propositioning her for sex. She declined your offer and entered the building via the security door.
37 There was evidence of the applicant's diary entries for the period April to June 1999 and it was submitted that on the basis of those entries Mr Coughran was never engaged in field duties during the period it was alleged he propositioned Ms Flanagan for sex at the top of the vehicle ramp. The diary does show, however, that the applicant did use a departmental vehicle on quite a few occasions during the relevant period.
38 It was alleged that: During the week of 20 March 2000, as Ms Flanagan was walking towards the Café Downing, you [the applicant] approached her from within the security area in the Downing Centre and, at the time, turned to Probationary Sheriff's Officer, Roxanne Falconer and called to her and said "Start a rumour that we are having an affair", or words to that effect. Ms Flanagan said "No, don't, why, we are not and never will" or words to that effect, your behaviour embarrassed and humiliated Ms Flanagan.
39 Mr White said that based on the applicant's evidence the applicant was saying that Ms Falconer should start a rumour about himself and her, not Ms Flanagan. He said: These comments were made in a jocular manner towards Ms Falconer due to the continued innuendo I received from other staff, relating to my sexuality and apparent (sic) other affairs I was having with other staff members that were not true. I think this conversation took place in front of other staff at the scanner area in the Downing Centre. I recall Michael Hayes and Sgt McAuley being present at the time. 40 Mr Hayes and Sergeant McAuley were not called by the applicant to corroborate his version of events. Neither was Ms Falconer called.
41 Mr Coughran denied the allegation that he propositioned Ms Flanagan for sex in a lift in the Downing Centre or that he said to her "you will not get real far in your job". He also denied the allegation that he ever said to Ms Flanagan that he was well liked by the hierarchy in the Sheriff's Office or that he was "protected". Mr White referred to a meeting of officers on 24 September 1999 - a meeting that Ms Flanagan attended - where it was made clear to them by the Sheriff and Mr Holdgate that sexual harassment would not be tolerated by anyone. Mr White said that this "would have put paid in anybody's mind to any proposition that Mr Coughran was a protected species."
42 It was further alleged that Mr Coughran made some unwelcome comments about Ms Flanagan's appearance -"your bum's got big" or words to that effect and that he poked his finger in her stomach saying "you're getting tubby around here". The applicant said that this related to an incident that occurred when a number of officers were making harmless fun of each other and that the applicant himself was the object of some of the fun. The applicant denied poking Ms Flanagan in the stomach. Mr White submitted that there was a "risqué environment" in the Sheriff's Office and this was supported by the evidence of Ms Tindale. The effect of Mr White's submission was that Mr Coughran should not be singled out when the fact was that many officers engaged in "ribald" exchanges.
43 Mr White submitted that Mr Coughran was not afforded procedural fairness in the disciplinary process because he did not "have any opportunity to cross-examine, or even examine the evidence alleged against him." 44 Mr White submitted that the applicant had sought to mitigate his losses.
45 Ms E Brus of counsel appeared for the respondent. Ms Brus submitted that in pursuing disciplinary proceedings against the applicant the respondent followed to the letter the requirements of the Public Sector Management Act and the Regulation. In this respect Ms Brus referred to Wilson v Department of Education and Training (2000) 100 IR 1 at 14. Ms Brus submitted that Mr Coughran had been provided with every opportunity to answer the charges against him.
46 As to the lack of precision contained in the charges, particularly in relation to dates, Mr Coughran denied, in any event, that most of the incidents occurred and that, therefore, it was irrelevant to speak of when an incident occurred. In answer to a question in cross-examination that even if there was a lack of specificity in the charges in relation to dates that would not have caused Mr Coughran any difficulty, he replied "No, not really." Ms Brus also submitted that the incidents referred to in the charges occurred mainly in 1998 and 1999 and it was understandable that Ms Flanagan could not remember precise dates.
47 It was submitted that the applicant's attack on the McGrath reports as being selective in their interpretation of the Local Court decision has to be weighed up against what was a detailed analysis of all of the material in the Local Court and District Court proceedings and the independent investigation by Mr McGrath. The reports, it was submitted, are comprehensive, fair and balanced.
48 Ms Brus submitted there is no dispute that what was alleged in the charges against the applicant was sexual harassment which is unlawful both under Commonwealth and State legislation. The applicant agreed that sexual harassment was "a most serious thing to do." The former Sheriff, Mr Kelly, gave evidence that sexual harassment was viewed most seriously within the Sheriff's Office and that this was made abundantly clear to officers.
49 It was submitted that what occurred was classic sexual harassment. The applicant was a senior person in the Sheriff's Office. Ms Flanagan was a junior officer, 19 years old, naïve, who left school at 17 and worked as a shop assistant until she became a sheriff's officer. She was unsure where she fitted into the structure of the Sheriff's Office but she was well aware she was a probationary officer and the applicant had three stripes on his shoulder, he was second in charge of the Sydney Office as well as being protocol officer - a very important person in the eyes of a probationer.
50 The credit of the witnesses in this case, it was submitted, was of particular importance. The evidence of Ms Flanagan and Ms Nicholls was to be preferred over that of Mr Coughran. Neither Ms Flanagan nor Ms Nicholls had reason to make false allegations; the allegations have the ring of truth about them because they have remained consistent despite being comprehensively tested in the Local Court proceedings and in these proceedings.
51 As to the café incident, Mr Brus submitted that whilst Ms Flanagan may not have recalled precisely the position where she was standing she did recall that she was at the counter; the coffee machine was to her left; she was leaning on the tray slide; she was facing Ms Nicholls who was to her left. Ms Nicholls agreed with this evidence and it has been consistent. Both witnesses also agreed on what occurred when Mr Coughran lifted Ms Flanagan onto the tray slide. The only difference between the evidence of the two witnesses was the precise location Ms Flanagan was standing at the counter. The difference can be explained by the fact that Ms Flanagan was facing away from the counter, whereas Ms Nicholls was facing the counter and that Ms Flanagan was traumatised by the incident.
52 The evidence of Ms Tindale was that the Downing Centre was a fearful environment when she worked there (March to July 2002) and she experienced highly sexually charged conversations and constant sexual innuendo. Ms Tindale felt that if she complained she would suffer retribution. If the Commission accepts Ms Tindale's evidence that she found the culture intimidating and fearful it must be reasonable to accept the same for Ms Flanagan.
53 Ms Tindale gave evidence that she was subject to age discrimination and harassment by Ms Nicholls and she was offended by her "lewd and inappropriate behaviour" whilst she was at the Downing Centre for two days in late March 2002. Ms Brus noted firstly that Ms Nicholls denied such conduct and said that in late March 2002 she was located in the Field Office on a different floor to where Ms Tindale was situated. Ms Nicholls was not tested on her denial as to alleged lewd and inappropriate behaviour. Ms Tindale was friendly with Mr Coughran and the only purpose of her evidence was to besmirch the character of Ms Nicholls.
54 Mr Kruit gave evidence for the applicant. He had provided a character reference for the applicant in relation to the disciplinary proceedings. He said in his affidavit that he had not been aware of any of the incidents in respect of which the applicant had been accused. Mr Kruit was not a witness of any fact in the matter and neither Ms Flanagan nor Mr Coughran came under his immediate or even distant supervision. Mr Kruit did give evidence of Mr Coughran's larrikin personality and the fact that he annoyed people. He confirmed that Mr Coughran was in some sort of special relationship with senior officers in the Sheriff's Office.
55 Mr Kruit also confirmed that material (notebooks and logbooks) originally sought under summons by the applicant but later not pressed, would not have been in possession of either Ms Flanagan or Ms Nicholls and that, therefore, the summons was unnecessary. However, Mr Coughran served the summons personally on Ms Flanagan and Ms Nicholls and his only purpose in doing so was to seek to intimidate them.
56 The applicant gave evidence that Ms Nicholls was motivated to provide false evidence against him because he curtailed a brief sexual relationship with Ms Nicholls. Mr Coughran said the encounter involved oral sex performed by Ms Nicholls on him. Ms Nicholls said it was sexual intercourse. Ms Brus submitted that whatever the nature of the encounter, it was a one-off affair that occurred in 1995 or 1996 yet the applicant would have the Commission believe that Ms Nicholls harboured such feelings of resentment over the applicant's unwillingness to continue the affair over all this time that she colluded with Ms Flanagan to seek revenge on the applicant. The proposition, it was submitted, was an absurdity; Ms Nicholls, as Mr Coughran knows, had been in a lesbian relationship since 1996. Moreover, Ms Nicholls did not want to have anything more to do with Mr Coughran after their brief liaison and it was Mr Coughran who pursued Ms Nicholls, visiting her home on one occasion unannounced and uninvited on the pretext of sports committee business.
57 The applicant gave evidence that Ms Flanagan was motivated to provide false evidence against him because he repeatedly reported her and remonstrated with her for committing overtime fraud. The respondent submitted this was not the case. The evidence shows that in 1998 Ms Flanagan earned a total of $60.18 in overtime and from the period 15 April 1999 to 2 February 2000 - the only period she worked overtime - she worked a little over two days' overtime and received $435.72. Mr Coughran gave no evidence as to when it was he remonstrated with Ms Flanagan over the question of overtime fraud. The only occasions that he mentioned involved a Ms Muir and Ms Nicholls.
58 Ms Brus submitted the allegations relating to Ms Nicholls seeking revenge and Ms Flanagan engaging in overtime fraud were completely new. They were not raised in the Local Court proceedings; they were a complete fabrication designed to besmirch the character of Ms Nicholls and Ms Flanagan.
59 Whilst Magistrate Dillon had some difficulty with the evidence of Ms Nicholls in relation to the jumper incident (because of the contrary evidence of Sergeant Vaughan), Ms Brus submitted Ms Nicholls had been completely vindicated by the subsequent investigation of Mr McGrath. He discovered that in fact Ms Nicholls could have seen the applicant brushing Ms Flanagan's breasts and buttocks. Ms Nicholls' evidence before the Commission was completely consistent with the evidence she gave before the Local Court in relation to the jumper incident.
60 Ms Brus referred to the shirt incident. She said that whilst the applicant had made much of the difficulty of undoing buttons it should be ignored because there was no evidence that Mr White's demonstration was on the same shirt worn by Ms Flanagan and, further, that Ms Flanagan was obviously of a different shape and size to Mr Coughran on whom the demonstration was carried out. Moreover, Ms Flanagan's evidence about the shirt incident had been consistent throughout: there was a parting of the gap between two buttons, the shirt was opened and her breasts and brassiere were exposed.
61 Ms Brus submitted that regardless of whether the words "spread a rumour we are having an affair" were directed at Ms Flanagan or Ms Falconer they provide a foundation for the Commission to ask itself whether Mr Coughran went further than this in his conduct in relation to Ms Flanagan. The remark to Ms Falconer shows that Mr Coughran was quite capable of making inappropriate comments of a sexual nature.
62 It was submitted that there was evidence that Mr Coughran was a larrikin, a "touchy-feely" person. Ms Brus said that the applicant, however, did not know when to stop and that in his conduct towards Ms Flanagan he repeatedly overstepped the boundaries of proper conduct, especially for someone holding the rank of sergeant.
63 Ms Brus submitted that it was to be noted that if the standard of proof had been the balance of probabilities in the Local Court proceedings Magistrate Dillon would have been satisfied that all of the allegations against the applicant had been made out. Ms Brus submitted that the Commission should come to the same conclusion.
64 It was submitted that the penalty imposed on Mr Coughran, namely, dismissal, was appropriate given the seriousness of offences; that to do otherwise would be to send the wrong signal to other staff employed in the Sheriff's Office. Ms Brus submitted that Mr Coughran's behaviour was intolerable and that it cannot be allowed to go on in a workplace.
65 Before going to a consideration of the issues that are central to these proceedings I think it is important to make the observation that the work environment in the Downing Centre was sharply criticised by Magistrate Dillon. His Worship said: this is a case about a culture as much as about an individual I think and I think it is time that the Sheriff's Office and you [Coughran] in particular, that the Sheriff's Office from Mr Kelly downwards takes note of this. It is all very well to call a meeting and it is all very well even to investigate one or two people, but what is actually done to stop the behaviour at the workface I do not know, but nothing much it appears if you can go around doing this sort of thing.
66 The culture that Magistrate Dillon was referring to was one that seemed to have a pre-occupation with sex - ribald jokes, sexual innuendo, the sex lives of officers, inappropriate behaviour with sexual connotations and, of course, sexual harassment and discrimination. It was variously described as a "male culture" and a "blokey culture" but it seems to me, as the Magistrate observed, that female officers also participated in producing what must have been an unpleasant and probably intimidating environment at the Downing Centre, at least for new recruits.
67 I note from Mr McGrath's report that an effort has been made to combat this culture through training and education of officers. But if Ms Tindale's evidence is anything to go by, more needs to be done. The evidence given by Ms Tindale in her affidavit regarding the conduct of her Officer in Charge in 2002 demands to be investigated.
68 There is no doubt that the applicant was a part of the "blokey" culture to which I have referred. Mr Coughran had a poor management style, particularly, it appears, towards females. He had an authoritarian management style, he invaded peoples' personal space, he was a "touchy-feely" type of person, he tended to "trample on other people's sensitivities", he engaged in sexual banter and made sexual jokes. Mr Holdgate, Regional Manager and Officer in Charge of the Sydney South Region of the Sheriff's Office, said of Mr Coughran in his interview with Mr McGrath: He's the type of person who thinks respect comes with the rank, not by earning it through his day to day management with staff …
69 Mr Holdgate said he had spoken to the applicant on a number of occasions concerning his touching of people and generally invading their space but this did little to change his behaviour.
70 There was also evidence to the effect that Mr Coughran had gained for himself a position of favouritism with senior officers of the Sheriff's Office particularly through his positions as protocol officer, and membership of the sports committee. He was variously known as "the Sheriff's nephew" or "the Teflon kid".
71 I am sure that to some degree Mr Coughran was a product of his working environment, which is a poor reflection on those who were responsible for that environment. The question I have to answer, however, is whether the applicant's dismissal was harsh, unreasonable or unjust.
72 I have read carefully the transcript of proceedings before Magistrate Dillon in the Local Court proceedings, the decision of Judge Shadbolt in the appeal in the District Court, Mr McGrath's reports into the alleged breaches of discipline by the applicant and the other evidence in these proceedings. I have also had the opportunity of observing, in particular, the applicant, Ms Flanagan and Ms Nicholls in the witness box.
73 Mr Coughran was initially charged with four counts of indecent assault. The four counts related to: 1. The jumper incident where it was alleged the applicant touched Ms Flanagan's breasts. 2. The jumper incident where it was alleged the applicant touched Ms Flanagan's buttocks. 3. The Café Downing incident. 4. The shirt incident.
74 In relation to the first two counts the Magistrate dismissed the charges. He found there was reasonable doubt because of:
· The inconsistencies in Ms Nicholl's evidence regarding timing;
· Mr Vaughan's evidence that Mr Coughran had a habit of brushing people down, removing hairs, lint and thread, uninvited;
· Mr Vaughan's evidence that Ms Nicholls could not have seen the jumper incident because the camera did not show the counter area of the Office;
· The relationship between the applicant and Ms Nicholls was a poisonous one; Ms Nicholls regarded the applicant as a sleaze and was therefore prejudiced against him;
· There was reasonable doubt that the applicant brushed Ms Flanagan for sexual gratification and that he was merely removing lint or threads.
75 In relation to the Café Downing incident the Magistrate dismissed the charge because of the reasonable doubt created by the inconsistencies in the evidence of Ms Flanagan and Ms Nicholls as to where Ms Flanagan was standing when the alleged assault took place and because of the unreliability of Ms Nicholls' evidence as a whole derived from the jumper incident. Nevertheless, the Magistrate found Ms Flanagan to be a plausible witness who did her best to tell the truth. His Worship expressed the opinion that if the Café Downing incident were to be decided on the balance of probabilities he would have found in favour of the prosecution. Indeed, he said this in relation to the jumper incident as well.
76 In relation to the shirt incident the Magistrate was satisfied beyond reasonable doubt that the assault had taken place and found the offence proved.
77 The applicant appealed in relation to the shirt offence and, as I have already noted, Judge Shadbolt upheld the appeal. His Honour observed that both Ms Flanagan and Mr Coughran were people of good character, something that had to be borne in mind when assessing their evidence. He also observed there were no witnesses to the incident, no physical evidence was available that might support or corroborate the prosecution case and no admission by Mr Coughran. Whilst his Honour found Ms Flanagan a credible witness he was not satisfied beyond a reasonable doubt that the assault occurred. Judge Shadbolt did say, however, as I have already noted: I am not, here, dealing with possibilities, though it might be quite possible that these events, as told by Ms Flanagan occurred. Nor am I dealing with probabilities, although I might form the view that in all probability it did occur in the manner described.
78 I have already referred to Mr McGrath's reports and I regard them as reflecting a comprehensive and thorough inquiry into the alleged breaches of discipline by the applicant. Mr McGrath described the conduct of his inquiry as follows: In the course of this inquiry, I have been assisted by the availability of a considerable amount of material which has obviated the need to interview a number of people. I have relied on statements made to police or evidence given to the local court hearing at North Sydney, reports prepared following notification of the allegations by Officer Flanagan and transcripts of earlier interviews between Ms. Anderson and Officer Flanagan and others. I sought to interview only two people who had not previously given evidence or made statements in relation to these matters, and that was Sheriff's Officer, Inspector Michael Lukic, who is located at the Control Room at the Downing Centre and Mr. Ken Holdgate, Regional Manager.
In relation to the matters under inquiry, I have relied on the following reports or interviews: 1. Report of Mr Kelly to the Director General dated 29 March 2000 and signed by him on 4 April 2000; 2. Record of Interview conducted by Ms Anderson on 18 April 2000 with Peta Flanagan; 3. Record of Interview conducted by Ms Anderson on 18 April 2000 with Belinda Frances Nicholls; 4. Report prepared by Ms Anderson dated 28 April 2000; 5. As a conglomerate, the transcript of proceedings held at North Sydney before Magistrate Dillon on 15 February; 16 February; 22 March and 27 March 2001; and statements and exhibits incorporated into those proceedings; and 6. Report prepared by Mr Kelly dated 10 April 2001.
In addition to these sources, I also conducted interviews with the following people: · On 16 May 2001, I interviewed Peta Danielle Flanagan; Warren Kenneth Flanagan; Kenneth Holdgate; Bruce Michael Kelly; and Raymond Paul Vaughan. · On 31 May 2001, I interviewed Bryan David Alexander Murray; and, Belinda Frances Nicholls; and · On 31 May 2001, I conducted a brief interview with Jason William Coughran. 79 In his supplementary report Mr McGrath recorded that he provided Mr Coughran with an opportunity make written representations in relation to the matters under inquiry. Mr McGrath met with Mr Coughran on 20 November 2001. Mr Coughran was accompanied by Mr Stephen Spencer from the Public Service Association of New South Wales. Mr Coughran effectively denied the allegations against him.
80 As a consequence of the meeting with Mr Coughran, Mr McGrath reinterviewed Mr. K. Holdgate and interviewed Officer J. Palces. In his report Mr McGrath reviewed the Local Court and District Court proceedings and assessed Mr Coughran's statements made to him in the meeting on 20 November 2001 and referred to a letter from Mr Coughran dated 20 November 2001 in the following terms: Dear Mr. T McGrath, I am writing to you as requested, and wish to inform you that I am innocent of the alleged breaches of misconduct as outlined, and will vigorously fight and defend these allegations.
I also write to you regarding the Director General's (Laurie Glanfield's) letter to the NSW Police Service, addressed to Detective Shaw of the Sydney Central Police Station (Referral of criminal offences), May 2000. I request the department to reimburse legal defence costs in the sum of $18,500 and others, as a total acquittal was effected by the Courts.
Both my family and I have been put through grave stress and anxiety over the past 2 years of these allegations, and we don't feel we should also bear the financial burden, after having to sell our personal home and soak up our savings to defend the matters, especially after the allegations have been dismissed.
In conclusion, I am, and have always told the truth, and have assisted all departments to the best of my ability. My family and I would like closure in the outstanding matters, so we can get on with our lives.
Yours faithfully, Jason W. Coughran Sgt. Sheriff's Officer 81 In concluding his supplementary report Mr McGrath stated: Nothing in my further inquiries has caused me to depart from my initial conclusions. In some respects I have had them reinforced.
Mr. Coughran's denials are consistent with his position since Ms. Flanagan made her initial complaint to Mr. Kelly in March 2000. As I have already concluded in my initial report, however, there is a constant thread in relation to these matters. Mr. Coughran's initial denial of the jumper incident to the police, for example, is amended to him conceding in evidence at the local court hearing that Ms. Flanagan assisted in the folding of the jumpers. When he made his oral representations to me he again said the only time Ms. Flanagan was in the Field Office was when her husband accompanied her. I am more than comfortably satisfied that Ms. Flanagan has truthfully described this incident. I am equally satisfied on the balance of probabilities that Ms. Nicholls witnessed the incident.
I do not share Magistrate Dillon's concern in relation to the animosity which existed between Ms. Nicholls and Mr. Coughran to the extent that it impugns her integrity, reliability and credibility as a witness. I am sufficiently satisfied that the relationship between Mr. Coughran and Ms. Nicholls was poor. I do not accept that it was as poisonous as that portrayed in the local court proceedings. As I have concluded earlier, Ms. Nicholls is a strong person, confident and capable of not being intimidated by Mr. Coughran. Mr. Coughran, so enmeshed in his belief that rank gives him power and authority, would have had great difficulty accepting that a junior officer would vociferously and doggedly oppose him or stand up to him. I dare to say the fact that it was a woman, I believe, simply made this situation worse. But as Mr. Murray said in the local court proceedings, on other occasions when they weren't in disagreement, Ms. Nicholls and Mr. Coughran got on well.
The claim that Ms. Nicholls and Ms. Flanagan colluded in relation to the complaint is, in many respects, fanciful. By contrast, Mr. Coughran corroborates the allegations. He admits, for example, the telephone incident at the scanners but denies he humiliated or belittled Ms. Flanagan. That claim stands starkly against his assertion to me that, whether the Department likes it or not, there is a rank system in place in the Office of the Sheriff and as a Sergeant he holds authority over a two striper or a one striper. It also flies in the face of Mr. Holdgate's evidence to me on two occasions concerning Mr. Coughran's authoritarian management style. There is also the admission by Mr. Coughran during his interview with Detective James that rumours abounded concerning him being protected by senior management. When he met with me he denied that allegation, suggesting instead that his very presence before me nullified any claim that he was protected from adverse management action. Again, there is too much evidence available which either directly or indirectly corroborates Ms. Flanagan's allegation.
Mr. Coughran has not put any information to me which would persuade me to withdraw my initial conclusions in relation to the allegation concerning the propositioning for sex or the Café Downing incident. Indeed, I can only speculate as to what Magistrate Dillon's finding might have been in relation to this latter incident if he were aware, today, that Mr. Vaughan's evidence before him was so manifestly incorrect to the extent that it was misleading. The Magistrate, when considering this incident, used the term "sliver of reasonable doubt". More importantly, he remarked that if he were deciding the matter on the balance of probabilities he would have found the offence proven. In my initial report I have arrived at the same decision independently of the Magistrate's comments.
Finally, the remarks by Judge Shadbolt, in upholding Mr. Coughran's "not guilty" appeal do little to assist Mr. Coughran in relation to this inquiry. His Honour did not have the benefit of seeing Ms. Flanagan give evidence; he could not, as a matter of law, consider the evidence given in relation to the other (dismissed) charges; and, to be fair, he did not have the benefit of seeing Mr. Coughran give evidence. On balance, he was faced with evaluating the evidence of two persons of good character and, given the criminal onus of proof borne by the prosecution, was not satisfied on the evidence before him that the offence occurred. Once again, however, the judge remarked that if he were deciding the matter on the balance of probabilities he might well have found in favour of the prosecution.
If one is to chronicle each allegation, affirmative or corroborative information is available in the following way: 1. The "jumper incident" Ms Flanagan is corroborated by Ms Nicholls. Mr Coughran admits he asked Ms Flanagan to assist in folding the jumpers. 2. The propositioning for sex stands on accepting word against word. On the balance of probabilities Ms Flanagan is plausible and credible. She gains greater standing than Mr Coughran through the corroboration provided by Ms Nicholls and Ms Falconner (sic) in relation to other matters. Mr Coughran's denials are tempered with concessions he may have been in elevators or in a vehicle at the exit ramp but nothing untoward occurred. 3. Ms Flanagan is corroborated by Ms Nicholls in relation to the café incident. Even here Mr Coughran concedes he may have been in the café but he did not thrust himself between Ms Flanagan's legs. 4. In relation to the comments concerning weight, Mr Coughran corroborates the complaint. He refers, however, to only one incident. 5. In relation to the "shirt" incident, Ms Falconner (sic) is a compelling corroborative witness. Mr Coughran places himself in the incident but denies Ms Flanagan's allegation. 6. The telephone incident is admitted with the suggestion by Mr Coughran that this was the impetus for Ms Flanagan to lodge her complaint. He has not pursued that angle since his police interview but rather suggests, now, that he apologised and it was all a misunderstanding by Ms Flanagan. At the same time he does not demur from his stand in relation to comments concerning his authoritarian management style; and 7. A number of witnesses - and Mr Coughran himself - spoke of his belief (perhaps illusion) that he was well liked and protected. Given his current circumstance Mr Coughran considers he now has enemies who have colluded against him. Accordingly, I am satisfied that no new information has come to my attention which would cause me to reconsider my earlier conclusions. Consequently, I recommend the disciplinary proceedings continue and I do not resile from any of my earlier recommendations.
82 In relation to the conduct of Mr McGrath's inquiry and the issue of procedural fairness, nothing was put to me by the applicant that would convince me that the inquiry was other than very carefully and comprehensively carried out and fair. I do not consider there was any question that the respondent followed its disciplinary procedures and provided Mr Coughran with the opportunity to respond to the charges against him.
83 As to the allegation by the applicant that Mr McGrath was selective in his interpretation of the Local Court proceedings, I do not consider such an allegation can be sustained. As Ms Brus submitted, the reports were "comprehensive, fair and balanced".
84 The applicant in these proceedings had the opportunity of showing that Mr McGrath was wrong in the conclusions he reached and the recommendations he made in relation to disciplinary proceedings. In doing so he asked me to accept that Ms Flanagan and Ms Nicholls made it all up. That is, that Ms Flanagan and Ms Nicholls made up the Café Downing and jumper incidents and Ms Flanagan made up the shirt incident and four allegations of propositioning by the applicant for sex.
85 There are a number of difficulties with accepting Mr Coughran's proposition that none of these incidents occurred and that Ms Flanagan and Ms Nicholls made it up. Firstly, it seems a somewhat elaborate plot for two people to go to the trouble to manufacture in order to take revenge on the applicant; it has so many elements to it extending over such a long period of time one would have thought the plotters would have been concerned that they might be caught out relating inconsistent versions. I make this observation almost in passing.
86 Secondly, there is the credibility of the applicant's evidence that Ms Flanagan and Ms Nicholls had good reason to make up the allegations and give false evidence against him. As to Ms Flanagan, Mr Coughran swore that she was motivated to do so because he had "repeatedly reported her for, and remonstrated with her for, overtime fraud". There is simply no evidence whatsoever that Ms Flanagan was engaged in defrauding her employer by falsely claiming overtime. Mr Coughran said he reported her for the fraud but it appears no one took his complaint seriously because no action was taken in respect of it. I can understand why. Apart from the alleged motive relating to overtime fraud the applicant produced no other plausible reason why Ms Flanagan, a 19 year old probationary officer, would set up an elaborate plot with Ms Nicholls in order to have him charged with sexual harassment.
87 In relation to Ms Nicholls the applicant alleged that she was motivated to provide false evidence against him because he curtailed a brief sexual relationship with her. I must agree with counsel for the respondent in this respect. I think the proposition that Ms Nicholls plotted and schemed with Ms Flanagan to take revenge on Mr Coughran because he would not continue a sexual relationship is absurd. The evidence simply does not support such a proposition.
88 Thirdly, there is the credibility of the main protagonists, namely, Mr Coughran, Ms Flanagan and Ms Nicholls. Magistrate Dillon, Judge Shadbolt and Mr McGrath were all satisfied as to Ms Flanagan's credibility as a witness of truth. I am of the same opinion. Magistrate Dillon, however, had reservations about Ms Nicholls mainly because of the contrary evidence of Sergeant Vaughan that Ms Nicholls could not have seen the jumper incident due to the fact that the camera did not provide a view of the counter area. Mr McGrath's subsequent investigation has satisfied me that on the balance of probabilities Ms. Nicholls witnessed the jumper incident and I consider this largely cancels out the negative view of her credibility taken by Magistrate Dillon. I consider that the relationship between Ms Nicholls and Mr Coughran was poor but like Mr McGrath I put this down to a clash of the two personalities and not some fanciful notion that Ms Nicholls had a long-held grudge against Mr Coughran because he allegedly broke off a sexual relationship.
89 As for Mr Coughran, I consider his credibility as a truthful witness is seriously undermined by his denial that any of the incidents occurred and that they were all manufactured by Ms Flanagan and Ms Nicholls for alleged reasons that have no substance whatsoever. Mr Coughran also had a strong motivation for his denial and that was he obviously wanted desperately to remain as a sheriff's officer. On the other hand, the applicant has produced no credible evidence as to why Ms Flanagan and Ms Nicholls would go to the trouble of setting up such an elaborate network of lies in order to have him charged with serious breaches of discipline and ultimately dismissed from his employment.
90 Judge Shadbolt described Mr Coughran as a person of good character. In this respect, however, I concur with what Mr McGrath said in his supplementary report, namely: His Honour did not have the benefit of seeing Ms. Flanagan give evidence; he could not, as a matter of law, consider the evidence given in relation to the other (dismissed) charges; and, to be fair, he did not have the benefit of seeing Mr. Coughran give evidence. On balance, he was faced with evaluating the evidence of two persons of good character and, given the criminal onus of proof borne by the prosecution, was not satisfied on the evidence before him that the offence occurred. Once again, however, the judge remarked that if he were deciding the matter on the balance of probabilities he might well have found in favour of the prosecution. 91 Fourthly, there was the café incident that Mr Coughran swore did not occur. Mr White's attempts to show that the incident did not occur relied to a significant degree on the case presented in the Local Court. In this respect, however, I observe that despite the inconsistencies in the evidence of Ms Nicholls and Ms Flanagan in relation to this incident in the Local Court proceedings, Magistrate Dillon remarked that if he were deciding the matter on the balance of probabilities he would have found the offence proven. Mr McGrath arrived at the same decision. There was no evidence in these proceedings that would convince me to arrive at a different conclusion in relation to the café incident than that arrived at by Mr McGrath.
92 Fifthly, there was the jumper incident. Again, Mr White relied to an extent on the case presented in the Local Court proceedings and contended that even if the camera was focused on the counter area any person viewing the scene could not have witnessed Mr Coughran rubbing or brushing Ms Flanagan's buttocks. I must admit to having had some reservations about this incident. As Magistrate Dillon said Mr Coughran's actions in brushing down Ms Flanagan might have been quite innocent. But one cannot view the jumper incident in isolation. If one accepts the truth of the other allegations regarding the applicant's misconduct of a sexual nature it is difficult to believe that in relation to the jumper incident his motives were entirely innocent. Then there is the evidence of Ms Nicholls - evidence that I accept - that she saw the incident. I find that on the balance of probabilities the charge relating to the jumper incident has been proven.
93 Sixthly, there was the shirt incident. In this respect, Magistrate Dillon said: [I]n relation to the blouse, he [the applicant] has followed Ms Flanagan, he has made the joke about starting a rumour, having an affair and then there's some sort of conversation about a baton and changing things and he has said "While you're at it get a new shirt, this one doesn't gape anymore" and just poked his finger in and had a peep. It seems to me that that is utterly consistent that sort of behaviour is utterly consistent with what he and virtually everybody else says about him, that he is prone to inappropriate sort of behaviour.
In this circumstance I don't have any problem whatsoever believing Ms Flanagan. I think that is precisely what happened. He denies it of course but it fits with everything else, if one accepts her version that he is prone to this sort of sexual talk and one rejects his evidence that he has never said any of these things ever, ever, ever. Well I don't accept his evidence in that way.
94 Magistrate Dillon considered that the evidence was that Mr Coughran "just poked his finger in and had a peep". The evidence before the Magistrate was that in fact Mr Coughran pulled the shirt open so that Ms Flanagan's breasts and brassiere could be seen. This was consistent with the evidence before me. Mr White sought to demonstrate that using one hand it was a physical impossibility for Mr Coughran to pull open the shirt to the extent Ms Flanagan claimed. But it seems to me that, even if as the Magistrate said, Mr Coughran "just poked his finger in and had a peep" that was sufficient to underpin a charge of disgraceful conduct. In any event, for Mr White to have been able to convince me that it was a physical impossibility to open the shirt in the way claimed, it would have to have been a proper re-enactment of the incident, involving Ms Flanagan and at least the same type of shirt she was wearing at the time of the incident.
95 Of course, in relation to the shirt incident it was a matter of Mr Coughran's word against that of Ms Flanagan. Moreover, I note Judge Shadbolt's finding that both person's were of good character. But unlike the onus of proof his Honour was required to consider, I am required to determine on the balance of probabilities whether the offence occurred. Moreover, as I have said, I have had the advantage of hearing the evidence relating to all of the alleged misconduct and of seeing Mr Coughran and Ms Flanagan in the witness box. I am satisfied for reasons similar to those expressed by Magistrate Dillon, that the charge relating to the shirt incident was made out.
96 As to the four allegations of propositioning by the applicant of Ms Flanagan for sex, I find on the balance of probabilities those allegations were made out. As Magistrate Dillon found, Mr Coughran was prone to making inappropriate remarks of a sexual nature and his propositioning was entirely consistent with that type of behaviour. Further, I consider Ms Flanagan was a credible witness and I prefer her evidence to that of Mr Coughran.
97 This propositioning apparently took place over an extended period of time and the issue arose as to why Ms Flanagan had not reported Mr Coughran for sexual harassment earlier than she did. It was contended that Ms Flanagan had received training in relation to such harassment and it had been made clear to her and others in the Sheriff's Office that such conduct would not be tolerated regardless of who the perpetrator might be. It was further contended that Ms Flanagan's failure to report any of the incidents earlier than she did carried with it the inference that the incidents did not occur.
98 This issue of late complaint was also an issue in the Local Court and District Court proceedings. Judge Shadbolt observed that Ms Flanagan's evidence revealed that she was reluctant to make a complaint because: (a) Mr. Coughran was her superior; (b) She was scared; (c) She thought she might be laughed at; and (d) She felt that she might jeopardise her husband's position.
99 As to these reasons, His Honour said: I find the reasons advanced for late complaint be in part persuasive. I find her reluctance to do anything to jeopardise her husband's position persuasive, but less persuasive is her apprehension that she would not be listened to and she was scared because the appellant was her superior…(H)owever, I do see her complaint set against a background of embarrassment in disclosing these alleged incidents to her husband and the perceived jeopardy in which her complaint might place him. Late complaint, therefore, having regard to her situation, can be understood and does not, in my view, cast any shadow across her credit.
100 I take the same view as Judge Shadbolt. I do not consider that Ms Flanagan's credibility is materially adversely affected by her late complaint.
101 I have given consideration to the possibility that because of the animosity between Ms Nicholls and Mr Coughran that Ms Nicholls recruited Ms Flanagan to engage in a conspiracy to get rid of Mr Coughran by accusing him of sexual harassment and that minor incidents were made to look far more serious than what they in fact were. However, this was not the nature of the case put by the applicant and in any event, the evidence simply does not support such a conspiracy theory.
102 I find that the termination of Mr Coughran's employment was not harsh, unreasonable or unjust. In making that finding in relation to the charges of misconduct and disgraceful conduct I have taken the approach in relation to onus and standard of proof as laid down by the Full Bench in Zheng Wen Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463 -464 where the Commission observed: The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M -v- M (1988) 63 ALJR 108 and by Dixon J in Briginshaw -v- Briginshaw (1938) 60 CLR 336 at 362. See also Shop, Distributive and Allied Employees' Association, New South Wales Branch -v- Jewel Food Stores (1987) 22 IR 1 and Coles Myer Ltd -v- Shop, Distributive & Allied Employees Association (NSW) (1989) 27 IR 299. We should further observe that the evidence in a reinstatement case involving criminal activity may well establish that the employee was guilty of conduct which, whilst falling short of criminal conduct, nevertheless constitutes serious and wilful misconduct justifying dismissal and refusal of reinstatement. 103 Finally, I consider it a matter of serious concern that the culture I have described in the Downing Centre was allowed to develop and flourish in the way it did. If it had been dealt with much earlier it is possible that Ms Flanagan would not have been subjected to the dreadful treatment she suffered between 1998 and 2000. No one should have to put up with that behaviour. It may also have been the case, if earlier remedial steps had been taken, that Mr Coughran's propensity to harass his co-workers would have come to the relevant senior person's attention and he could have been counselled about the inappropriateness of his conduct. If so, he may have still been in his employment as a sheriff's officer today.
104 It might be pleaded in defence that "We were ignorant of Ms Flanagan's complaints, otherwise we would have dealt with them earlier in the way we did." It is not sufficient in my view, for employers to simply have a meeting of employees to explain their rights and obligations regarding sexual harassment on an ad hoc basis or whenever an issue surfaces in the workplace. Ms Flanagan's experience demonstrates how young women, in particular, find it so difficult to deal with sexual harassment especially when it is being committed by a person in authority.
105 Mr Coughran's application is dismissed and I so order.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Coughran
Public Employment Office/Attorney General's Department
(2000) 100 IR 1
(1997) 73 IR 454
(1988) 63 ALJR 108
(1938) 60 CLR 336
(1987) 22 IR 1
(1989) 27 IR 299
Application dismissed; the Commission found the disciplinary findings established on the civil standard (with appropriate caution) and that dismissal was not harsh, unreasonable or unjust (see [102], [105]).