Crozier v Palazzo Corporation Pty Ltd, 98 IR 137

APPLICANT Mr W Herbert, unrepresented LEGAL REPRESENTATIVES: RESPONDENT Ms A McManus, Employers' First

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

Application by Bill Arthur Herbert re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 These proceedings arise from an application filed, pursuant to s84 of the Industrial Relations Act 1996 ("the Act"), by Mr William Arthur Herbert ("the applicant") in which he seeks reinstatement to his former position as a residential care worker employed by Warrah Ltd ("the respondent"). 2 The applicant was dismissed for alleged misconduct on 16 October 2000. He had been employed by the respondent since 1990, although a period of permanent employment was interrupted in 1993, when he took unpaid leave. He returned to work as a casual employee and has been employed by the respondent as a casual ever since. His group certificates disclose regular and consistent employment in 1999-2000 ($38,505 per annum) and 1998-1999 ($29,393); whereas for 1997-1998 his gross income was $4,933. There is no dispute that his average weekly salary in the six months prior to dismissal was $665.77 per week. 3 The termination of employment arose following a decision by the respondent not to offer Mr Herbert any further shifts. As there was no jurisdictional challenge to the applicant's casual status, I am satisfied that the respondent's decision can be appropriately characterised as a dismissal for the purposes of Pt 6 ch 2 of the Act.

4 At directions and conciliation proceedings on 29 November 2000, the applicant represented himself and Ms A McManus appeared for the respondent.

Following preliminary submissions, the Commission chaired private conferences with the parties with a view to concluding a settlement. No settlement was able to be reached and, pursuant to s87 of the Act, the Commission set the matter for arbitration and issued directions for the filing and service of evidentiary material. 5 At the hearing, the applicant continued to represent himself and gave evidence on his own behalf. Ms McManus called evidence from: Mr Patrick McDonald CEO Warrah Ltd Ms Christel Nathan Residential House Co-ordinator Ms Karen Gall House Manager Mr Delqui Bustos Residential Care Worker

Evidence, by way of telephone conference, was given by Ms Sharon Ridyard, a "community visitor" who attended a meeting with the Management Committee on 16 October 2000, convened to discuss the applicant's conduct.

THE EVIDENCE 6 Little of the factual background or circumstances leading up to, and after, the dismissal is in dispute. The Commission has extracted from the evidence an abridged chronology of the key events. 7 Sometime in 1997, the respondent's then Residential Services Manager, Wendy Newman, was made aware of a number of photos that had been taken of a resident of Bush Rose Cottage, Mr Robert Tay. Mr Tay is thirty-one years of age and has a severe intellectual disability. The applicant was one of the employees who was caring for him and had taken the photos. Mr Tay was naked in the photos and a young woman, in a bikini, appeared to be leading him in, and around, a swimming pool. Other photos were said to be of unknown women and children in various states of undress. 8 Ms Newman discussed the matter with the residential house co-ordinator, Ms Nathan, and in her presence, telephoned the applicant. He did not deny taking the photos. Ms Newman told him that she would not dismiss him provided all the photos and negatives were destroyed. Ms Newman made no notes, or file record of the incident. There appeared to be no follow up of the incident and there the matter remained dormant for about two years. Ms Newman has since retired and lives in North Queensland. 9 On Friday, 13 October 2000, the photos were discovered again by a staff member in an unmarked cardboard box found in a cupboard in a common staff room. The cupboard was used for general storage and for storing the staff's regular belongings during sleepover shifts. It was able to be accessed by all of Warrah's employees. 10 Warrah's CEO, Patrick McDonald, called a meeting on the same day involving himself, Toni Russell, Residential Services Manager (Cluster Houses); Karen Gall, Bush Rose House Co-ordinator; Del Bustos, Residential Care Worker; Joan van den Burg, Day Services Manager and Milan Telford, Administrative Services Manager. 11 The meeting decided to refer the photos to the Police (which Mr McDonald did that day), suspend the applicant and convene a further meeting on Monday, 16 October, involving the applicant, the Management Committee, and two outside persons known as "community visitors". The role and functions of "community visitors" is determined by the Community Services (Complaints, Appeals and Monitoring) Act 1993 and is detailed in para 23 of this decision.

12 The applicant had contacted Mr McDonald on 13 October to complain about his suspension, and insisting he had done nothing wrong. Mr McDonald explained that an investigation was to take place as the photos may constitute a violation of the Disability Services Act. 13 The applicant phoned Mr McDonald again on Saturday, 14 October, complaining that his possessions (the photos) had been taken from him. Mr McDonald invited him to the meeting on Monday. The applicant contended that the photographs had been investigated two years ago by Wendy Newman and the matter had been resolved. He insisted the matter should not be re-opened. 14 Over the weekend, the applicant retrieved his photos from the Police; the police being satisfied that they were not pornographic or in breach of any Child Protection legislation.

15 The applicant was phoned again on Monday morning and invited to attend the meeting; he declined to do so. The meeting involved the same persons as the meeting on 13 October, except for Milan Telford, and also involved two community visitors, Sharon Ridyard and Kathy Ponting. The meeting unanimously decided to dismiss the applicant for breaches of the Disability Services Act and Warrah's Residential Services Policy and Procedure Manual. 16 The applicant was advised of the decision by phone and letter. He arrived at Mr McDonald's office on 17 October maintaining the view that he had done nothing wrong and Mr McDonald had no right to dismiss him. 17 Mr McDonald met Mr Tay's father on 17 October and informed him of the matter. Mr Tay's father was not happy that such photos of his son had been taken without permission. 18 The applicant met (as arranged) with Mr McDonald on 24 October 2000. The applicant again protested his dismissal and cited the fact the matter had been dealt with, and resolved, two years ago. However, he could not explain why the photos had not been destroyed; suggesting that there were possibly two sets of photos. 19 Mr McDonald reaffirmed the reasons for dismissal and advised the applicant he could appeal to the Warrah Board and the Industrial Relations Commission.

The applicant wrote to the Board, which met on 25 October. He provided no new information. 20 At the Board meeting, Mr McDonald described two mitigating circumstances; namely the applicant's admissions to have taken the photographs and the applicant's belief that the matter had been dealt with and resolved two years ago.

21 Nevertheless, the Board unanimously resolved to confirm the decision to dismiss the applicant and he was informed of this decision on 31 October. 22 When this chronology is juxtaposed with the evidence, two matters of evidentiary conflict emerge. Firstly, the applicant claims that he was not told by Ms Newman to destroy the photos in 1997. Secondly, he complained that he was only told of the disciplinary meeting to discuss the matter on the morning it was to occur, namely 16 October 2000. I shall return to these matters later. 23 In considering this case, three documents, admitted into evidence, are of particular significance and relevance. I quote from them: 1) NEW SOUTH WALES DISABILITY SERVICE STANDARDS ... STANDARD 4 - PRIVACY, DIGNITY AND CONFIDENTIALITY

PURPOSE To ensure that each consumer has the same level of privacy, dignity and confidentiality as is expected by the rest of the community. KEY CONCEPTS Respecting the worth of each individual as a member of Australian society. The origin, nature, type, degree or effects of a particular disability do not affect a person's rights as a member of society. People with a disability are supported to pursue goals and enjoy lifestyles which are valued by the community. Service staff respect consumers' choices and decisions, their privacy and dignity. Confidentiality of records and personal information is not compromised. ... STANDARD 10 - PROTECTION OF HUMAN RIGHTS AND FREEDOM FROM ABUSE

To ensure that each person with a disability receives services in an environment free of any type of abuse, including sexual, physical and emotional abuse. To ensure that each consumer has the same legal and human rights as those expected by the rest of the community. KEY CONCEPTS Respecting the worth of each individual as a member of Australian society. Ensuring the origin, nature, type, or effects of a particular disability does not affect a person's rights as a member of society. People with a disability are supported to pursue goals and enjoy lifestyles which are free from any form of abuse. Service staff respect consumers' choices and decisions, their privacy and their dignity. 2) WARRAH RESIDENTIAL SERVICES POLICY & PROCEDURE MANUAL ... PRIVACY SAFEGUARDS POLICY A. Relevant Principles and Objectives of the Disability Services Act (1993) "That services for people with disabilities should respect an individual's rights of privacy and confidentiality". B. Warrah's Interpretation Each resident's right to dignity and privacy is to be respected and protected in relation to personal activities, family, including personal and professional relationships, own finance, mail, phone use and hygiene care. Residents are to be informed of the types of personal information which is kept by Warrah and other service providers and to give the reasons for this. Residents have the right to access their records and must be asked for consent before information is released to others.

3. COMMUNITY SERVICES (COMPLAINTS, APPEALS AND MONITORING) ACT 1993 PART 2 COMMUNITY VISITORS 7 APPOINTMENT OF COMMUNITY VISITORS 1. The Minister for Community Services may, after consultation with the Review Council, appoint an eligible person to be a Community Visitor for the purpose of this Act. 2. An eligible person is one who, in the opinion of the Minister for Community Services: a) has appropriate knowledge and expertise in the matters relating to community services in which the person be most involved as a Community Visitor; and b) has a commitment to the objectives of the community welfare legislation, and c) has skills in the solving of problems about access to, and the use of community services; and d) is not employed in the Department of Community Services, or the Ageing and Disability Department, as an officer or temporary employee within the meaning of the Public Sector Management Act 1998. 3. A Community Visitor holds office for such period not exceeding 3 years as is specified in his or her instrument of appointment but, if qualified, is eligible for consecutive terms of office totalling not more than 6 years. 4. Part 2 of the Public Sector Management Act 1998 does not apply to or in respect of the Community Visitors and a Community Visitor is not subject to that part.

8.(1) A Community Visitor may: a) at any reasonable time, enter and inspect a place at which a visitable service is provided; and b) confer alone with any person who is resident or employed at such a place; and c) inspect any document held at such place with relates to the operation of a visitable service; and d) provide the Minister for Community Services and the Commission with advice or reports on any matters relating to the conduct of such a place; and e) exercise such other functions as may be prescribed by the regulations for the purpose of this section.

(2) Before inspecting a document as referred to in subsection (1) the Community Visitor must take all reasonable steps to ascertain, and must have regard to (but is not bound by) the wishes of any person to whom the document relates and for whom a service is provided at that place. (3) A Community Visitor must, in exercising a function under this section, act in such a manner as preserves, as far as possible, the privacy of each person resident at that visitable service. (3A) On receiving a copy of any advice or report under subsection (1)(d), the Minister for Community Services must send a copy of the advice or report to: a) the Minister for Aged Services, if the visitable service in relation to which the advice or report was given was provided by a person or organisation authorised or funded by the Minister for Aged Services to provide a service, or b) the Minister for Disability Services, if the visitable service in relation to which the advice or report was given was provided by a person or organisation authorised or funded by the Minister of Disability Services to provide a service. 4. In this section "visitable service" means: a) an accommodation service provided by the Department of Community Services, or the Ageing and Disability Department, or by a funded agency where a person using the service is in the full-time care of the service provider; or b) a service prescribed by the regulations as a visitable service. ...

COMMUNITY SERVICES (COMPLAINTS, APPEALS AND MONITORING) REGULATIONS 1996

FUNCTIONS OF A COMMUNITY VISITOR: For the purpose of section 8 of the Act, the following are prescribed as functions that a Community Visitor may exercise: a. to inform the Minister and the Commissioner on matters affecting the welfare, interests and conditions of persons using visitable services; b. to encourage the promotion of legal and human rights of persons using visitable services, including the right to privacy, confidentiality, adequate information and consultation in relation to those services and the right to complain; c. to consider matters raised by persons using visitable services, staff of providers of visitable services and people having a genuine concern for the welfare, interests and conditions of persons using visitable services; d. to provide information to persons using visitable services as to the advocacy services available to help them in the presentation of any grievance or matter of concern and, in appropriate cases, to assist such persons to obtain such services. e. to facilitate, wherever it is reasonable and practicable to do so, the early and speedy resolution of grievances or matters of concern effecting persons using visitable services by referring those grievances or matters to the providers of the relevant services or to other appropriate bodies.

24 Three sets of photographs were tendered in the proceedings and marked Exhibits "B", "C" and "D'. For present purposes, Ex"D" is the relevant set. It contains fifty-five photographs; thirty-one of which are of persons unknown and are not relevant. Twenty-four of the photos feature Mr Tay - in and around a swimming pool with a bikini clad young woman; five are so dark as to be unclear as to whether Mr Tay is clothed or not; nineteen are clear and in focus; eleven plainly show Mr Tay to be completely naked; five of these show his genitals.

SUBMISSIONS 25 Mr Herbert submitted as follows:

1. Ms Nathan's evidence of what Ms Newman had told him in 1997 was difficult to believe, as no record was kept. He claimed he had never been told to destroy the photos. In any event, he said if it was so serious, why wasn't action taken two years ago? Indeed, parents weren't informed at the time, in breach of Warrah's own policies.

2. The photos were selectively chosen from hundreds of others, involving different subjects and themes.

3. He had taken no photos of any resident since Ms Newman had raised the matter with him in 1997.

4. The applicant claimed to work increasingly long hours; the work was demanding and stressful. This explains why the photos had not been removed from the employer's premises.

5. There were two sets of the photos, one of which was not destroyed. 6) The employer had breached its policy on procedures for summary dismissal, as no meeting was held with him. He did not receive a written invitation to a meeting until a day after he was dismissed. 7) The applicant was never given an opportunity to explain what happened, or organise a witness for support. He had received no warning letter.

8. The employer had provided no training to him as to the standards under the Disability Services Act.

9. Co-workers and others had attested to his integrity and honour.

26 Ms McManus, for the respondent, said that there were eleven reasons advanced by the applicant as to why his dismissal was unfair. She responded to each reason as follows:

1. The applicant's conduct of taking naked photos of a severely handicapped person in his care, was deliberate and wilful misconduct, justifying dismissal. The applicant violated Mr Tay's privacy and right to dignity. The applicant breached his duty of care of Mr Tay, breached the Disability Services Standards and Warrah's own policies.

2. Destroying the photos in 1997 was a condition of his continued employment. He failed to do so. The matter had not been resolved because the applicant had not met the conditions imposed by Ms Newman. In failing to take the earlier warning seriously, he demonstrated a lack of understanding as to the severity of his actions.

3. The applicant was fully aware, at all times, of the allegations against him. His own letters to the respondent make it clear he was aware of the allegations.

4. The applicant was invited, on no less than four occasions, to a meeting on 16 October 2000. He declined to attend. In any event, the applicant took the opportunity to defend himself in meetings with Mr McDonald and letters to him and the Board. He was given a right of appeal to the Board.

His defence was that he had done nothing wrong, the police had determined the photos were not pornographic, the respondent had no right to remove his personal belongings and the issue had been dealt with in 1997 and shouldn't be raised again. The respondent gave these reasons due consideration.

5. The standard procedures for summary dismissal were followed. There was an investigation, the applicant was advised and suspended. He was invited to a meeting to discuss the issue. He was told of the decision and given a right of appeal.

6. The problem solving approach was applied to the process.

7. The applicant's length of service and record of employment were taken into account. However, the matter was so serious that it outweighed other factors.

8. The applicant claimed his privacy and right to confidentiality was breached. The applicant himself had left the photos in an unlocked, unmarked box in an open-designated area.

9. Despite the police decision on the photos, they were offensive and totally inappropriate. The photos constituted a violation of Mr Tay's rights, acknowledged by the applicant as a breach of the Disability Services Standards.

10. The applicant complained of receiving no support from management. However, he was at all times able to communicate with the CEO and he did so. He was advised of his rights to appeal his dismissal and did so.

11. The applicant's casual employment had nothing to do with his dismissal, nor did it deny him of any industrial rights. This case fairly demonstrates that he was denied no rights.

27 Ms McManus cited two authorities for her primary submission that the dismissal of the applicant was not unfair - Crozier v Palazzo Corporation Pty Ltd, 98 IR 137 and Thornton v Happy Hours Pre School Kindergarten (unreported) Sams DP, Matter IRC5333 of 1998, 29 July 1999. 28 Should the Commission find an element of unfairness, she submitted reinstatement, or re-employment, in the circumstances would be impractical. The applicant could not be trusted by the respondent. If compensation was considered appropriate, it should be at the lower end of the scale. General Principles 29 It appears unarguable that the applicant's termination of employment can be characterised as a summary dismissal for misconduct. In most cases of summary dismissal, the employee will contest the allegations made by the employer. Contested allegations immediately invoke the well held principles that the employer is required to prove the allegations and the Commission must be satisfied, on the balance of probabilities, that the alleged misconduct occurred.

There is a plethora of cases which have discussed these principles. See Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3 , 35 IR 70; Franklins v Webb 72 IR 257; Shop Distributive & Allied Employees' Association v Jewel Food Stores , 22 IR 2 ; Bigg and Anor v New South Wales Police Service , 80 IR 434; Federated Municipal and Shire Council Employees Union of Australia, New South Wales Division, on behalf of Stephen Wardle, and Blue Mountains Council (unreported) Sams DP, IRC4727 of 1998, 21 May 1999; Taggart and Bell Sports Australia (unreported) Sams DP, IRC5224 of 1998, 10 September 1999 and Thornton and Happy Hours Pre School Kindergarten . 30 In less common cases, the employee will admit to the misconduct, but argue that the penalty of dismissal was too harsh or mitigating factors, were not considered, or given appropriate weight. See Electricity Commission of New South Wales T/as Pacific Power v Crump, 48 IR 296 and Busways v Johnson, 55 IR 255.

31 However, in this case, a curious line of reasoning had been advanced by the applicant. He admits to the allegations and acknowledges his conduct was in breach of the Disability Services Guidelines and the employer's policies. However, he emphatically insists he has done nothing wrong. As a secondary submission, he claimed procedural unfairness. I shall deal with this submission later in this decision. 32 In view of the applicant's admissions, it is unnecessary for the Commission to make any findings as to whether the employer has proven the allegations. It is admitted that the conduct resulting in dismissal did occur. It falls therefore for the Commission to determine whether such conduct justified dismissal and/or whether mitigating factors were such as to warrant the Commission's intervention in the employer's decision to dismiss the applicant. 33 There are a number of inescapable conclusions that can be drawn from the evidence:

1. The applicant took at least twenty photographs of Mr Robert Tay, a profoundly disabled resident under his care. Mr Tay is completely naked in these photos. Five of the photos are full frontal of Mr Tay.

2. Mr Tay neither gave, nor would he be capable of giving, his permission to be photographed.

3. Mr Tay's parents did not consent to their son being photographed and were not aware of the existence of the photographs.

4. The applicant acknowledged that it was wrong to have taken the photos.

5. The applicant conceded that by taking the photos he had breached the Disability Services guidelines and Warrah's Policy and Procedures.

What might one draw from these conclusions? 34 Firstly, the Commission has found this case to be most distressing and distasteful. 35 Secondly, the Commission makes no judgement as to the applicant's preferred lifestyle. I am reminded of what the Commission said in Hollingsworth v Commissioner of Police (No 2), 88 IR 282. This Commission is not a court of morals. What individuals do in their own time, how they conduct their lives, and what lifestyle they prefer, is as much an issue of human rights and respect for individual liberty as protecting the rights and dignity of the intellectually handicapped. 36 However, it is an entirely different proposition when an employee imports his/her preferred lifestyle into the workplace and imposes it upon a helpless and utterly vulnerable person under his care. Put another way, a person's right to subscribe to a particular lifestyle must never compromise an employee's obligation to discharge his/her duties in accordance with appropriate standards and commonly accepted principles of behaviour. 37 True it is that the applicant's conduct did not constitute an act which was wrong in law. However, it is my sincere opinion that the applicant's conduct must be regarded as mala in se. 38 Thirdly, the applicant conceded that taking photos of a naked intellectually disabled person, without the consent of his parents, constituted a breach of both the Disability Services Standards and Warrah's own policies and procedures. Of this, there can be no doubt. I refer to the relevant extracts as recorded in para 23 of this decision.

39 Both these standards and the policies appear to have their origin in, and are modelled on, two United Nations Declarations to which Australia is a signatory. I quote the relevant clauses from the Declarations:

DECLARATION ON THE RIGHTS OF DISABLED PERSONS … 3. Disabled persons have the inherent right to respect for their human dignity. Disabled persons, whatever the origin, nature and seriousness of their handicaps and disabilities, have the same fundamental rights as their fellow-citizens of the same age, which implies first and foremost the right to enjoy a decent life, as normal and full as possible. … 9. Disabled persons have the right to live with their families or with foster parents and to participate in all social, creative or recreational activities. No disabled person shall be subjected, as far as his or her residence is concerned, to differential treatment other than that required by his or her condition or by the improvement which he or she may derive therefrom. If the stay of a disabled person in a specialized establishment is indispensable, the environment and living conditions therein shall be as close as possible to those of the normal life of a person of his or her age. 10. Disabled persons shall be protected against all exploitation, all regulations and all treatment of a discriminatory, abusive or degrading nature. DECLARATION ON THE RIGHTS OF MENTALLY RETARDED PERSONS … 4. Whenever possible, the mentally retarded person should live with his own family or with foster parents and participate in different forms of community life. The family with which he lies should receive assistance. If care in an institution becomes necessary, it should be provided in surroundings and other circumstances as close as possible to those of normal life. 5. The mentally retarded person has a right to a qualified guardian when this is required to protect his personal well-being and interests. 6. The mentally retarded person has a right to protection from exploitation, abuse and degrading treatment. If prosected for any offence, he shall have a right to due process of law with full recognition being given to his degree of mental responsibility. 40 In my opinion, the applicant's conduct was a grievous and fundamental breach of an employee's duty of care to protect a completely vulnerable person and ensure Mr Tay was not dispossessed of his right to privacy and dignity. Not only was this a breach of the employee's duty of care, but was, in my estimation, a violation of Mr Tay's basic human rights to be treated with dignity and respect. It exceeded all bounds of common decency.

41 Fourthly, there is no more important and profound duty on a civilised society than its obligation to protect its weak and vulnerable members. Ms McManus helpfully referred me to my own comments in Thornton v Happy Hours Pre School Kindergarten. They are worth repeating: There could hardly be a more important responsibility of a child care worker than ensuring the safety and security of the children under his or her care. Such a responsibility is paramount - it far outweighs any other duty, task or responsibility. It is a duty that doesn't need to be spelt out in black and white. It is just plain commonsense. ... These comments are a fortiori when applied to society's duty to protect its intellectually handicapped members. 42 The Commission does not underestimate the difficulties these obligations place on the carers of intellectually handicapped persons; that their job is hard and stressful is self evident. However, there is a special responsibility on such carers that requires them to be ultra careful in their dealings with those under their care. Something perfectly innocent can be totally misconstrued. Although I hasten to add, this was not the case here.

THE EVIDENCE 43 There were many contradictions in the applicant's evidence. For example, he said that Mr Tay's smiling face was an indication that he consented to being photographed "I think it was his expression he very much did give his consent" (T.p10). He then said that he was really taking photos of his co-worker and Mr Tay just happened to be in the pictures "he was in the picture unintentionally" (T.p10). 44 This evidence was utterly unconvincing. I ask, rhetorically, how is it unintentional to take at least twenty photos of Mr Tay, completely naked; five showing his genitals? 45 Similarly, it is totally implausible that Mr Tay's smiling face in some way signalled his consent to being photographed.

Mr Tay's disabilities are profound, he can neither verbally communicate, or understand what is happening around him. To suggest that smiling is a sign of consent is errant nonsense. Ms Ridyard's evidence, which I prefer, is that individuals with Mr Tay's severity of handicap can be smiling when they are behaving violently or reacting to violence. Smiling may have nothing to do with happiness. 46 The main area of evidentiary conflict was whether the applicant was told to destroy all the photos and negatives in 1997 when the photos were brought to the attention of Ms Wendy Newman, the applicant's then supervisor. 47 Ms Nathan gave evidence that she witnessed the phone call by Ms Newman to the applicant when he was told to destroy the photos. Ms Newman told the applicant that destroying the photos was a condition to keeping his job. 48 The applicant conceded that he had a meeting with Ms Newman where the photos were discussed and he was warned about them. He strenuously denied being told to destroy them. This evidence is curious when taken in the context of his other submission that there were two sets of photos. 49 It is troubling that there are no notes, file record, indeed, any record at all of this meeting or what happened in 1997. Ms Newman is an elderly lady, now retired and living in North Queensland. She did not give evidence. Perhaps even more surprising is that there is no evidence of any follow up by Ms Newman, or anyone else, as to whether the photos had been destroyed. Perhaps this can be explained by Mr McDonald's recollections of Ms Newman's management style. Mr McDonald's evidence was that Ms Newman was a person who didn't keep written records, preferring instead to deal with people face to face. She was an "old style" employer who found paperwork tedious. 50 The best evidence on this matter is that of Ms Nathan. In my opinion, Ms Nathan was a witness of considerable presence and credit. Despite saying she never had a problem with the applicant, she regarded this incident as highly improper. I accept her evidence as to Ms Newman's instruction to destroy the photos and negatives. 51 I am fortified in this conclusion by the unlikelihood that Ms Newman simply had a "chat" with the applicant and took no further action. This was a very serious matter. It would be inexplicable if she had not taken some steps to remove the offending photos; indeed insisting that the applicant's job was at risk, if he didn't destroy them. It seems completely plausible in the circumstances. 52 Why is there no written record of any of this? It also seems logical, having regard for Ms Newman's management style, that she may well have wished to give the applicant the benefit of the doubt by not blemishing his record with any reference to this incident. 53 If this be so, then it displays, I should say, a very sympathetic and sensitive approach to the matter. Had the applicant taken her warning and instruction seriously, he may well be still employed by Warrah. 54 Despite this explanation, the applicant's claim to have not been told to destroy the photos is completely shot to pieces by what he wrote in his originating application dated 3 November 2000. At p3 of his chronology he says: I agreed at the meeting I was willing to destroy the photographs of any residents and I also agreed to sign a statutory declaration confirming that I do not have the negatives in my possession. This disclosure proves the applicant did not tell the truth in the later proceedings before the Commission. 55 In view of my findings in this case, it is unnecessary to take into account the other photos tendered in evidence, of the applicant and unknown persons, including children. In many of these photos the subjects are completely naked. Nevertheless, it is sufficient to observe that it was totally inappropriate to keep such photos, unsecured, in the workplace. The photos were found in an unmarked cardboard box in an area frequented by other employees and accessible to other residents. Anyone could have found them. While the photos might be innocent enough, they would obviously be offensive to many people.

56 The detailed and comprehensive case presented by the applicant was predicated on one simple proposition; he had done nothing wrong. He submitted that none of the hundreds of photos were pornographic. This view was shared by the Police and the Department of Community Services, which had taken no action against him. The photos were his personal, private property that had been kept in a box and selectively used against him.

The offending photos were no more than a record of his co-worker and a resident. He was studying photography and the photos were taken out of the context of the many subjects and themes he had photographed over the years.

He had taken no other photos of co-workers, or residents, since the offending photos were first brought to his attention by Ms Newman in 1997. 57 He believed that the process of investigation and his opportunity to defend himself were flawed, thereby giving rise to procedural unfairness. He claimed to have not been trained as to the Disability Services Standards. The applicant relied on a number of character references and his good record of employment over nine years at Warrah. 58 The most compelling aspect of the applicant's defence was his acknowledgment that what he had done was wrong and in breach of his duty of care. Clearly, however, he had little option. Who took the photographs, and who owned them, was not in issue. 59 The Commission accepts the applicant's admissions and his regret at what had occurred. However, this does not outweigh the gravity of the matter. Moreover, the Commission is troubled by a number of issues which I pose as questions:

a) Why would the applicant not destroy the photographs in 1997, or at least remove them from the employer's premises?

b) Why would the applicant risk the photos being found again by keeping them in an unsealed, unmarked box on the employer's premises?

c) Why are there at least twenty photos involving Mr Tay if the only purpose was to have a record of the applicant's co-worker?

d) How could it be "unintentional" that Mr Tay was in at least twenty photos?

1. The applicant's complaint of lack of training is absurd. No training would be necessary for any reasonable person to know what he did was wrong and in breach of his duty of care.

2. The applicant gave evidence that he spoke to Mr Tay's father and he did not "have anything against" the photographs taken of his son. The applicant says Mr Tay's father was too busy to put this in writing. I am astounded that no attempt was made to have Mr Tay's father either, confirm this phone call, or give evidence in the proceedings. On the contrary, Mr McDonald's evidence was that when he spoke to Mr Tay's father, he told him that he was not happy that the photos were taken without permission (para 42 of Ex'H'). It is incomprehensible that any parent would be ambivalent to this incident, let alone be happy with it. I reject the applicant's evidence in this regard. 3) The Commission notes that not one of the character witnesses mentioned by the applicant were called to give evidence.

Procedural Fairness 61 The following is a short summary of the investigative process:

62 The employer's investigation of the matter commenced on Friday, 13 October, soon after the photos were found by Delqui Bustos, another residential care worker at Bush Rose Cottage. A meeting involving Mr McDonald, Ms Nathan and four others was held that afternoon. The meeting decided to refer the photos to the Police (Mr McDonald took them to Castle Hill Police Station that day) and suspend the applicant immediately. 63 A further meeting was arranged for Monday, 16 October, involving two Community Visitors. The applicant was invited by Ms Nathan to attend, but he declined to do so without a witness. He was told he could bring somebody, but then changed his mind. He was told about the photos and he commented that the matter had been dealt with two years ago and resolved. He was also invited to contact Mr McDonald. When he did so, he asked Mr McDonald why he was suspended and why his photos had been removed.

Mr McDonald invited him to attend the Monday meeting and give his side of the situation. The applicant told Mr McDonald he would think about it and call him back. 64 The next morning, the applicant called back and complained about his photos being removed. He told Mr McDonald the matter was dealt with two years ago.

Having been to the Police himself, the applicant called Mr McDonald on Monday morning expressing concern that his private property had been seized and emphasising that nothing was found to be pornographic. Ms Nathan again invited the applicant to the meeting, but he refused. 65 The meeting on Monday, 16 October, decided that the applicant should not be offered any more shifts and he could not enter Warrah property. Ms Nathan rang the applicant and advised him of the decision and invited him to contact Mr McDonald who would explain the reasons for the decision. 66 The applicant visited Mr McDonald on two subsequent occasions, 17 and 24 October. On both visits, he protested his dismissal, claiming he had done nothing wrong and the matter had been dealt with, and resolved two years ago. 67 The applicant complained that he was given no details of the misconduct alleged against him, nor given any opportunity to explain his actions. He was neither warned, nor given any proof of the allegations. 68 In my view, the applicant's complaints of being unfairly treated do not sit comfortably with the short chronology of events just described. 69 It is unclear why the applicant chose not to attend the meeting of 16 October. He was invited to do so on at least four occasions. He had an obligation to do so. It is ludicrous to now claim that a decision made without his input, is unfair. The applicant, for whatever reason, denied himself the opportunity to defend his position and explain his actions. He can hardly blame the employer. 70 Notwithstanding the applicant's complaint, the evidence discloses that he spoke to Mr McDonald on at least two occasions between 13 and 16 October. He gave an explanation for his actions and defended his position. Indeed, he spelt out why he believed he had done nothing wrong. 71 This was an opportunity to state his position and defend himself, which he initiated himself. Viewed in this context, I am at a loss to understand how his complaint of being given no opportunity to defend himself could have any basis.

72 Moreover, I note his rather strange contradictory submission at p66 of transcript that he was never offered an opportunity to explain what had happened, and in the very next sentence, said the employer did not give "proper consideration to my excuse prior to dismissal". 73 The Commission does not accept that the applicant was unaware of the actual misconduct with which he was charged. Not only does all the evidence point to the alternative conclusion, but he defended the allegation by claiming it had already been dealt with, and resolved two years earlier. If he didn't know what was alleged, how could he possibly claim it had already been dealt with? Such a submission doesn't make a scrap of sense.

74 To claim that the matter was dealt with and resolved two years ago ignores the fact that he was told to destroy the photos and he didn't do so. This was in flagrant breach of the employer's direction and his agreement that he would destroy the photos. There is no logical explanation to the contrary. 75 Nevertheless, even if he wasn't told to destroy the photos, he knew perfectly well that he had been warned about them. By keeping them on the employer's premises, he ensured that if they were found again, the whole matter would be reactivated. In my view, he could not have been under any illusion of what might happen if they were discovered for a second time. Foolishly, he took the risk and paid for it with his job. 76 The Commission accepts that the process was not without blemish. However, little turns on any faults in the process when balanced against the seriousness of the misconduct; conduct which was not only proven, but acknowledged by the applicant. 77 In this regard, I refer to what I said in Foster and Woolworths Limited (unreported) Matter IRC6385 of 1999, 27 October 2000: It is now well settled law that proven deficiencies in the process are not necessarily fatal to an employer's decision to summarily dismiss an employee. It is the seriousness of the allegations, if proven, which, in my view, will be decisive in establishing whether the employer's decision to dismiss the employee was reasonably open to it.

78 The settled law referred to can be identified in a number of Full Bench decisions including Wang v Crestell Industries, 73 IR 454; Rapp v Wauchope RSL Club Limited (1995) 81 IR 116, Bigg & Anor v New South Wales Police Service, 80 IR 434; Burke v McGirr (1995) 87 IR 54; Busways v Johnson, 55 IR255 and Antanakopoulos v State Bank of New South Wales (1999) 91 IR 385.

THE UNREPRESENTED LITIGANT 79 Unfortunately, these proceedings demonstrate, yet again, the difficulties which confront an unrepresented applicant in presenting, and arguing a case, where allegations of serious misconduct are involved. The Commission considered these difficulties and the principles to be applied in respect to unrepresented litigants in Nicholls and Central Sydney Area Health Service (unreported) Sams DP, Matter IRC4131 of 1999, 25 August 2000. 80 It is appropriate that I refer extensively to the discussion therein: Sadly, this case starkly demonstrated one of the major problems with cases involving unrepresented parties; namely, that such parties are usually so emotionally and subjectively involved that a rational and dispassionate approach to preparing for, and conducting a proper case, is all but a forlorn hope.

.... In view of these circumstances, it is appropriate that I should refer to the principles that the Commission should adopt in litigation involving an unrepresented party. The guiding principle is a simple one: " to ensure all parties are afforded the benefits of the rules of natural justice ". For a helpful discussion of the term 'natural justice' in the context of an unrepresented litigant see Davidson v Aboriginal & Islander Child Care Agency ( Ross VP, Watson SDP and Eames C) Print Q0784, 12 May 1998. While the principle of natural justice might seem simple enough, its application in an intensely emotional and difficult litigation is not always so. It is often a delicate balance involving a number of sensitive issues such as ensuring an unrepresented litigant is aware of his or her rights, ensuring the trial judge does not become an adviser or advocate and ensuring an orderly and sensible conduct of the proceedings. Two authorities are apposite. In Regina v Gidley , 3 NSWLR 68, the Court of Criminal Appeal said: The duty of a trial judge to ensure that every accused has a fair trial thus obliges him to give an accused who is unrepresented such information and advice concerning his rights as is necessary to put him in a position where he can make an effective choice whether he should exercise those rights, but the trial judge must make it clear that he is not advising the accused either that he should extend those rights or how he should conduct his case.

In Regina v Zorad , 19 NSWLR 91, the New South Wales Court of Appeal held that: 1. An accused who elects to be unrepresented is not entitled because of that election to be given any advantage not enjoyed by a represented person. 2. The duty of a trial judge to give an unrepresented accused such information and advice as is necessary to ensure that he has a fair trial: a) would include, if it became necessary, an explanation as to the form in which questions should be asked, but it is not to put the question in that form for the accused. b) would include the giving of advice that, notwithstanding a ruling on the voir dire as to the voluntariness of admissions, the accused is permitted to raise the same factual matters before the jury: such advice is necessary to ensure that the unrepresented accused is put in a position where he can make an effective choice as to the exercise of his rights but does not extend to advising him how this may be done. c) would include, where comment was going to be made in relation to the accused's failure to comply with the rule in Browne v Dunn , advice of the existence to that rule.

81 The Commission is satisfied that the applicant was well aware of his rights and obligations under the Act. I am also satisfied that he put before the Commission all of the material he desired in support of his case. Despite the dubious relevance of some of the material, and its inability to be tested by Ms McManus, nothing was excluded. At his own request, he was provided with a German interpreter. In my view, the applicant received more than a fair go.

82 It would be remiss of the Commission not to note the professionalism of Ms McManus. She conducted the case with tolerance, sensitivity and sympathy for the applicant's position.

Despite the numerous opportunities she had to object to evidence and the applicant's conduct of the proceedings, she refrained from doing so. The Commission is grateful for this tolerance as it significantly shortened what would have been an otherwise lengthy case.

83 Unfortunately, I feel bound to say that, as the evidence emerged, the applicant was either badly advised, or made his own unfortunate decision, to retain self representation. This is best illustrated by offers of settlement he received and rejected prior to the arbitration. Ordinarily the Commission would not comment on offers of settlement. However, the applicant filed the offers and counter offers as part of his evidentiary case. The material was tendered without objection. Thus I do not feel constrained from referring to it. It demonstrates the unreality of the applicant's expectations. 84 By letter of 16 November 2000, the applicant was offered one month's salary and a deed of release acknowledging neither party was at fault. His response, dated 19 November, was to put two options with a host of attached conditions; either, full reinstatement without loss of earnings or three months' salary. The conditions were a glowing written reference, a farewell party, written advice to all parents that his name had been cleared, removal from his file of all reference to the incident and the right to visit Warrah premises to maintain contact with colleagues and friends.

85 Taking into account all of the circumstances, these conditions were utterly unreasonable. It is inconceivable the employer could have ever agreed to them. It seems to me that had the applicant obtained proper advice, the offers of settlement proposed by the respondent would have been most likely to have been recommended to him. 86 It saddens me to say that he squandered an opportunity to achieve an honourable and reasonable settlement. 87 Even though the applicant may have firmly believed his conduct was unintentional, I am convinced that it struck at the very heart of the employment relationship, such as to irreparably and irrevocably destroy it. In my view, it was impossible for his employment to continue at Warrah. It follows, therefore, that it cannot be restored.

88 Earlier, the Commission observed that the process leading to dismissal was less than perfect. However, I can find no basis for a finding of procedural unfairness. Moreover, the seriousness of the allegations were such as to clearly outweigh any procedural defects. 89 Accordingly, I decline to interfere in the respondent's decision not to offer any shifts to the applicant, the consequence of which was to effectively dismiss him. The dismissal of the applicant was soundly based and warranted in the circumstances. The application for reinstatement relief is refused and matter IRC00/5355 is dismissed.

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