Four Sons Pty Ltd v Lamsiripothong - [2000] NSWIRComm 208 - NSWIRComm 2000 case summary — Zoe

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Four Sons Pty Ltd v Lamsiripothong

[2000] NSWIRComm 208

Industrial Relations Commission (NSW)|2000-03-20|Before: Sams DP, Wright P, Hungerford J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2000-03-20

Before

Sams DP, Wright P, Hungerford J

Catchwords

06/22/2000 DATE OF JUDGMENT: 10/27/2000

Source

Original judgment source is linked above.

Catchwords

06/22/2000 DATE OF JUDGMENT: 10/27/2000

Judgment (132 paragraphs)

[1]

CITATION : Foster and Woolworths Limited [2000] NSWIRComm 208 APPLICANT PARTIES : Gregory James Foster RESPONDENT Woolworths Limited FILE NUMBER: 6385 of 1999 CORAM: Sams DP Termination of employment - gross misconduct - sexual harassment of employees and customers - credibility of witnesses - whether dismissal "harsh, unreasonable or unjust" - procedural fairness - compensation sought. CATCHWORDS : Held, allegations of sexual misconduct proven - employer's onus discharged - applicant knowingly and intentionally exposed himself in the workplace - evidence of complainants preferred - explanations implausible - investigation appropriate and thorough - no denial of procedural fairness - Commission declines to intervene - application dismissed. LEGISLATION CITED : Industrial Relations Act 1996 Four Sons Pty Ltd v Lamsiripothong (unreported) Wright P, Hungerford J, Cambridge C, IRC6337 of 1999, 20 March 2000 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70 Shop Distributive & Allied Employees' Association v Jewel Food Stores, 22 IR 2 Franklins Limited v Webb, 72 IR 257 Bigg & Anor v New South Wales Police Service, 80 IR 434 Ueckert and Australian Water Technologies Pty Ltd (unreported) Matter IRC5553 of 1999, 25 July 2000 Standley v Electronics Boutique Australia Pty Ltd (unreported) IRC4516 of 1998, 18 March 1999 Hill v Department of Juvenile Justice (unreported) IRC6474 of 1999, 27 July 2000 CASES CITED : Byrne & Anor v Australian Airlines (1995) 185 CLR 410 Bankstown City Council v Paris (1999) 93 IR 209 National Unionof Workers, New South Wales Branch, on behalf of Phillip Charles Mumby, and Davids Distribution Pty Ltd (unreported) Matter IRC2056 of 1999, 9 February 2000 Wang v Crestell Industries Pty Ltd, 73 IR 454 Rapp v Wauchope RSL Club, 81 IR 116 Mason v Electricity Commission of New South Wales t/as Pacific Power (1995) 62 IR 436 Burke v McGirr (1995) 87 IR 54 Busways v Johnson, 55 IR 255 Antanakopoulos v State Bank of New South Wales (1999) 91 IR 385 HEARING DATES: 06/19/2000; 06/22/2000 DATE OF JUDGMENT: 10/27/2000

[8]

The Disciplinary Meeting 8 A meeting involving the applicant and three company representatives - Mr Jed Cunningham (Woolworths Store Manager), Mr Craig Pollington (Employee Relations Manager) and Ms Deborah Salkeld (Administration Manager) was held on 29 October 1999. It lasted fifteen minutes (see Ex'1'). 9 Mr Pollington conducted the meeting and initially advised the applicant it was convened to discuss serious allegations against him. He was asked if he wanted a witness. He said he didn't require one. Mr Pollington said he asked again after telling him that the allegations were of a sexual harassment nature and may lead to dismissal. The applicant denied being asked a second time. 10 Mr Pollington informed him that the company had received two separate complaints, from a customer (Ms Myers) and from an employee (Ms Tooley), both claiming they had witnessed his fly undone with his penis, either outside his pants, or exposed. 11 Mr Pollington gave evidence that he read from a record of interview form, and as he did so, the applicant was slumped and with his head bowed. The applicant said he replied "that is not true, it is not possible". 12 The applicant says Mr Pollington asked if there were occasions when his fly might have come undone. He agreed there had been. He said that Mr Cunningham had asked if he wore underwear and he had replied "not always". Mr Pollington said that he asked if he had exposed his genitals. 13 Mr Pollington gave evidence that he read the statements of the complainants to the applicant. The applicant denied that they were read to him. Ms Salkeld does not mention this in her affidavit. Mr Pollington said the applicant continued to say words to the effect of "sometimes my fly falls down" - he said he wouldn't do it deliberately - it was not worth his job. 14 Mr Pollington said he raised the applicant's previous instance of sexual harassment and the applicant acknowledged he had been retrained and counselled. The applicant strongly denied this matter was raised and Ms Salkeld does not mention it in her affidavit. 15 The applicant was asked to leave the room and Mr Pollington, Mr Cunningham and Ms Salkeld discussed his explanations. Ms Salkeld did not believe the applicant. Mr Pollington referred to the company's duty of care. The applicant was called back in and told by Mr Pollington that, despite his denials, the Company believed the allegations to be correct and the incidents to be intentional. He was dismissed immediately for serious misconduct. 16 Mr Pollington said he added that the earlier incident was taken into account; but the applicant did not reply. The applicant read the record of interview, signed it and shortly after composing himself was escorted from the premises. 17 In oral evidence, the applicant said he didn't need a witness in the interview, because he believed he had done nothing wrong. He denied not wanting a witness because he knew what the meeting was about and didn't want other people involved. 18 The applicant gave evidence of an earlier counselling on 29 April, in which he had been suspended and subsequently transferred from St Clair to Parramatta. He had a witness on that counselling occasion. (As I do not rely on this earlier incident, I intend to take this evidence no further).

[16]

33 Ms Kim Myers is a registered nurse at Westmead Hospital. She gave evidence that on a Tuesday in late October 1999 (26 October), she entered the Mac's Liquor Store, Parramatta to purchase a bottle of wine. The applicant had approached her from behind to attend to the cash register. As she was paying by credit card, she glimpsed down and saw the applicant's penis hanging outside his pants. She maintained eye contact and the applicant made idle conversation, giving no indication as to his state of undress - except for a smirk on his face. In oral evidence, Ms Myers said she remained in eye contact with the applicant and he appeared to be enjoying himself. Nothing was said about his penis being exposed. Ms Myers left the store, taking a minute or two to calm down. She felt angry. She approached the security guard and told him that the man in Mac's Liquor had just exposed himself to her. The security guard asked if it was a customer. She replied it was an employee. The guard also asked what he had exposed. She said his penis was hanging outside his pants. The security guard wrote a statement and Ms Myers said that, while she was willing to make a formal complaint, if the employee had just come back from the toilet, and not done up his fly, she was sorry for any embarrassment. However, if it happened again, then it must be on purpose. In cross examination she described this as giving him "the benefit of the doubt" (T.p101). 34 The security guard told her to tell another person and the Service Manager (Ms Roshani Payne) was called. Ms Myers pointed out the person as the applicant and repeated what she had told the security guard. Ms Payne told her the matter would be investigated. 35 The security guard's handwritten statement corroborated Ms Myers' account of the incident; in particular "the staff male had his front zip down of his pants and his penis out of his pants" (Ex'G'). 36 Ms Myers was contacted in December by Mr Pollington who told her there had been another incident. Her statement was sworn in April 2000. 37 In cross examination, Ms Myers was closely questioned in respect to the incident. She said that the applicant was not at the register when she was choosing her wine, but talking to a male customer. She waited a short time at the register before the applicant arrived. He made bright conversation and as she went to get her credit card from her purse on the counter, she glimpsed down and saw his penis hanging outside his pants. She looked quickly up and kept eye contact with him. He was facing her. Nothing was said which revealed he knew his penis was outside his pants. She said his fly was right down, all of his penis was hanging out and he wasn't wearing underpants. She said she was not mistaken.

[22]

53 In his explanation for all the incidents, the applicant said he wore two pairs of trousers; one, Monday to Wednesday and the other pair for the balance of the week (T.p14). One pair had a problem with the zipper, and on one occasion, it had been pointed out to him that it was not done up properly. He said on Tuesdays and Wednesdays he did not wear underwear, as these were days of large deliveries, and the physical activity would cause him to perspire profusely, making him damp and uncomfortable. He believed this would explain how it was possible to see his penis through his pants. 54 The offending trousers were tendered in evidence (Ex'4') and were subject to rigorous scientific scrutiny by Professor Pailthorpe. I shall discuss his evidence shortly. 55 The applicant denied his penis ever being outside his pants and said, if it had, he would have been aware of it. 56 He said there may have been occasions when he didn't pull the zipper right up and he didn't regard this as unusual. He gave evidence that he would go to the toilet after lunch, before resuming work (this would explain what Ms Davidson witnessed). He said this might have occurred once or twice. He didn't know how many times his zipper came down, or when it was that he first noticed it (T.p11-12) - it was possibly in October 1999. 57 The applicant said that prior to dismissal, he was not aware of any problem with his pants. On the day of dismissal he visited a friend, Andrew Parton, who told him to check his zipper. He went home, and did so, and found the zipper faulty. Mr Parton is first mentioned in the applicant's reply affidavit of 7 June. He didn't know why Mr Parton wasn't mentioned in his first affidavit. He gave the trousers to Mr Corry (his solicitor) in April after providing his first affidavit (T.p20A). 58 As to not wearing underwear, the applicant said it was his normal practice. He didn't see the need for changing underwear if it was uncomfortable. He continued not wearing underwear, after the incident with Ms Davidson, because it was a "one off".

[52]

Similarly statements are made in other cases such as M v M (1988) 63 ALJR 108 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449. In the last cited case, Mason CJ, Brennan , Deane and Gaudron JJ stated (at 449 - 450): The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud (See, eg, Hocking v Bell (1945) 71 CLR 430, at 500; Rejfek v McElroy (1965) 112 CLR 517, at 519 - 521). On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear ( Briginshaw v Briginshaw (1938) 60 CLR 336, at 362; Helton v Allen (1940) 63 CLR 691, at 701; Hocking v Bell (1944) 44 SR (NSW) 468, at 477 (affirmed in Hocking v Bell (1945) 71 CLR, at 464, 500); Rejfek v McElroy (1965) 112 CLR, at 521; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, at 539 or cogent ( Rejfek v McElroy (1965) 112 CLR, at 521) or strict ( Jonesco v Beard [1930] AC 298, at 300; Briginshaw v Briginshaw (1938) 60 CLR, at 362; Helton v Allen (1940) 63 CLR, at 711; Hocking v Bell (1944) 44 SR (NSW), at 478 (affirmed in Hocking v Bell (1945) 71 CLR, at 464, 500); Wentworth v Rogers (No 5) (1986) 6 NSWLR, at 538) proof is necessary "where so serious a matter as fraud is to be found" ( Rejfek v McElroy (1965) 112 CLR, at 521). Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct (See, eg, Motchall v Massoud [1926] VLR 273, at 276) and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (footnotes incorporated)

[60]

Ordinarily, the principle in Briginshaw v Briginshaw is applicable to findings of criminal conduct or fraud (see, for example, Neat Holdings ), however, the statements of principle may be applied to allegations of a broader nature. In all matters, it is necessary for a tribunal to consider the nature and seriousness of the allegation made before finding it proved at the requisite level. In this case, the finding made by the Commissioner was that "the termination of the [respondent's] employment was not unconnected with the raising of complaints by him about the alleged work-related harassment". 71 In the context of this matter, one further well established principle requires some elucidation: The dismissal of the applicant is said to be for serious misconduct. The onus in such matters is, not for the applicant to disprove the allegations, but rather the reverse. The employer must, not only make the allegations, but must prove such allegations to the requisite standard. 72 This principle is now well settled by a long line of authority, for which but a few references are necessary. 73 In Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70, his Honour, Hungerford J said: It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street (1947) AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) (1949) AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 at 279 and Homebush Abattoir (1966) AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson (1957) AR (NSW) 547 at 552, 553; North v Television Corporation Ltd (1976) 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr Newall submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) CLR 635 at 643, and in that passage from his Honour's judgment which said at 644: Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principle to regard fault as a particular exception defeating the right only when alleged and proved.

[61]

The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it. In support of his submission on onus, Mr Walton referred to the judgment of Dey , J. in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355, in which his Honour clearly held that the necessity for proving misconduct lay upon the party setting it up, namely the employer, and even though the union had the responsibility for establishing a proper case for reinstatement. I respectfully agree with his Honour's conclusion, it being entirely consistent with well established authority. In Shop Distributive & Allied Employees' Association v Jewel Food Stores , 22 IR 2, the former Industrial Commission in Court Session said: We consider in cases where dishonesty is alleged as the reason for summary dismissal, management should only summarily dismiss if it is fully satisfied after careful investigation that the accusation has been made out. In coming to such a conclusion, a prudent and fair employer will take into account, where relevant, as part of the circumstances of the case, an employee's youth or inexperience, the nature and effect of any interrogation and any admissions or denials made. We consider that this same standard should be applied by industrial tribunals when considering reinstatement. 74 In Franklins Limited v Webb, 72 IR 257, after discussing both these authorities, the Full Bench said at p261: Those authorities deal with different points but are nevertheless both applicable to circumstances where summary dismissal has occurred for alleged cause. In this case, the employee was dismissed by the payment of one week's wages in lieu of notice but obviously for cause. The reasoning of the Commission in Court Session in Jewel Food Stores , in our view, is directly apposite and we would apply to these circumstances the same consideration with respect to onus as was adverted to by Hungerford J in Gartrell White. 75 This matter, likewise, deals with a different point, but can be generically grouped as a summary dismissal for cause. See also Bigg & Anor v New South Wales Police Service, 80 IR 434. 76 A more analogous set of circumstances is my recent decision in Ueckert and Australian Water Technologies Pty Ltd (unreported), Matter IRC5553 of 1999, 25 July 2000. The allegations in that case concerned inappropriate behaviour of a sexual nature; not dissimilar to the allegations in this matter.

[77]

As I understand the use of language by the Victorian community generally, I believe that the use of the word 'harassed' in conjunction with the word 'female' draws the listener's or reader's attention to a specific area of behaviour which has been gaining prominence as a social evil over the past 20 years or so, In 1984 the Equal Opportunity Act 1977 (Cth) was repealed by the Equal Opportunity Act 1984 (Cth). The latter Act contained a heading to its Division 2 of Part III (being Sections 19 and 20): 'Sexual Harassment'. That phrase was not defined in the Act but Section 20, in making unlawful the behaviour therein described, made it moderately clear what Parliament considered sexual harassment. It spoke of a person being put into the situation in which that person was induced to 'accept ... sexual advances ... tolerate persistent sexual suggestions or innuendo ...'. The Act being an Equal Opportunity Act, spoke of persons. However I have little doubt in my mind that the evil at which the Act was aimed with respect to its sections 19 and 20 was an evil which was seen to have been suffered for a very long time by women. The social evil called harassment, which was a type of behaviour of men towards women was well understood by 1991, not only in Victoria but in England (see Khorasandjian v Bush [1993] 3 All ER 699). In the January 1993 edition of the 'Harvard Law Review' (Vol 106, p517) professor Cynthia Bowman, in an article entitled 'Street Harassment and the Informal Ghettoization of Women', says: 'until relatively recently, for example, no term even existed to describe what is now universally called sexual harassment although the phenomenon itself was well known to women' (p518). However, later in the article she points out that in 1981 an anthropologist had offered a working definition of street harassment: 'Through looks, words, or gestures, the man asserts his right to intrude on the woman's attention, defining her as a sexual object, and forcing her to interact with him' (p524). The definition is of 'Street Harassment' ie activity in public places. I consider however, that that part of the definition which I have quoted is a good working definition of what the average Victorian understands harassment to be, though he may have difficulty in verbalising it. It will be noted that in that definition nothing is said about repeated activity.

[88]

91 In my opinion, Ms Myers gave forthright and open evidence. She is a brave young woman, whose evidence I accept unreservedly. There could not possibly be any gain for her in making up these allegations to harm the applicant. There was no hint, or suggestion, made by the applicant in evidence, or Mr Corry in submissions, as to why she would do so. 92 Moreover, she was put through a most distressing and ugly ordeal, both at the time, when relating the incident to Woolworths management, and giving embarrassing evidence in open court. 93 Mr Corry closely cross examined Ms Myers, by minutely dissecting the incident. His attempts at impugning her evidence by complicated and tricky questions served no purpose; other than to reinforce my faith in Ms Myers' credibility. 94 Ms Tooley's evidence was that, when purchasing liquor from the applicant on 19 October, she saw his genitals inside his unzipped trousers. She told her manager the next day and provided a handwritten statement about a week later. Like Ms Myers, she recalled he had a smirk on his face. Ms Tooley did not see his penis outside his pants, but could see it as he had his leg on a crate which opened a gap in his trousers and he wasn't wearing underwear. The applicant could not confirm, or deny, what Ms Tooley put in evidence. 95 I am satisfied that the incident happened precisely as Ms Tooley described. I am also satisfied that the only explanation from when she saw his zipper up and later when it was down, is that the applicant deliberately, and intentionally, adjusted his clothing and stood in a stance such as to ensure his penis would be seen. 96 Certainly, both Ms Myers and Ms Tooley detected no words or actions which indicated the applicant was drawing attention to what he was doing. In my opinion, this was all part of his sick game. He obviously drew some vicarious, perverted pleasure in pretending nothing was happening, knowing full well the women were uncomfortable and embarrassed. 97 Ms Davidson's evidence was of a slightly different character. The incident she recalled was not known to Management at the time of dismissal. Mr Cunningham became aware of the incident after Ms Davidson approached him subsequent to the applicant's dismissal. 98 Ms Davidson saw the applicant's penis when he returned from his lunch break. He had sat on the counter so she could see he was not wearing underwear, and in such a way for her to notice his zipper down and his penis exposed. Ms Davidson made a joke of it at the time and didn't tell anyone. She said that two or three weeks later, a customer also told her that the applicant had exposed himself to her. 99 It is apparent from the fact that the applicant did not challenge Ms Davidson's version of the conversation that he regarded her as easy prey with whom he could take sexual liberties. She had joked about it, thinking it was a mistake, and said "have you been wanking yourself again?" 100 It is enlightening that the applicant did not dispute his response "Yes, now you know my secret" and did not appear, in any way, to be embarrassed. 101 On any view of it, this was hardly the response of someone whose zipper had accidentally and unintentionally slipped down. 102 Ms Davidson's willingness to make a statement after the dismissal confirms my view that she had absolutely nothing to gain from doing so. In any event, the incident was not denied by the applicant. Before leaving Ms Davidson's evidence, I refer to the authorities which make it pellucidly clear that conduct, subsequently brought to the employer's attention, but not known at the time of dismissal, may still serve as grounds to justify the dismissal. The only caveat over this evidence is that the unknown conduct had occurred before the dismissal. 103 For the authorities on this principle I cite again Byrne & Anor v Australian Airlines (1995) 185 CLR 410 at 430, where Brennan CJ, Dawson and Toohey JJ noted: .. And facts which existed at the time of dismissal, but which come to light only subsequently, might justify the dismissal when otherwise it would be harsh, unjust or unreasonable. ..

[96]

The offending trousers (Ex'4'), like most men's trousers, have the fly zipper covered by a flap of material. This means that, even if the zipper was down and the person was standing upright, it would be most unlikely anyone would notice the zipper being down. In my view, the only possible explanation for Ms Davidson and Ms Tooley to have seen inside the pants would have been if the applicant's leg had been perched in such a way as to ensure the fly was gaping open. It is inconceivable for the applicant to unwittingly stand in such a position, without realising the gaping opening of his undone zipper. 113 It follows from my findings of the evidence of the women witnesses that the applicant's evidence is not preferred. In my view, where there is a conflict between the women and the applicant, it is the former which is to be preferred. 114 Even without such a finding, it would be beyond belief that any reasonable person would accept the applicant's excuses as true. He was fooling no one but himself. His explanations are just so manifestly baseless and ridiculous as to be absurd. 115 Mr Corry, professionally and forensically, examined each minute example of inconsistent evidence which he hoped would be of assistance to his client. 116 However, I am bound to say that, running down every obscure rabbit hole, does not answer any of the fundamental issues in this case. Unless, such inconsistent evidence is so obviously relevant or materially raises questions of credit, not much is served by labouring upon these matters. 117 For example, Mr Corry was critical of the inconsistency in the evidence of when Mr Pollington first learnt of the incidents. Ms Salkeld said Mr Pollington told her a week before the 29 October disciplinary committee; Mr Pollington said he only knew of the incidents on the morning of 29 October. One of them must be mistaken. Even so, how does such an inconsistency advance the applicant's cause. Persons in management must have been aware of the incidents well prior to 29 October because they had been reported by the complainants and statements had been taken. Whether Mr Pollington knew one week before or on the day, is nihil ad rem to either, the investigative process, or its outcome.

[112]

125 In citing the relevant authorities on procedural fairness, I need only quote from my recent decision in Ueckert. At para 307: It is now well established that a finding of "harsh, unreasonable or unjust" can apply to both the substance of the dismissal, and/or the procedure leading to the dismissal. The oft quoted authority for this proposition is Byrne & Anor v Australian Airlines (1995) 185 CLR 410 at p465: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequence for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. The distinction between procedure and substance is elusive. This is so even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights, and the Statute of Frauds, where it has an entrenched operation (217). In our view, it is unhelpful and contrary to the tenor of the Award to introduce it into cl.11(a). That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable (218). But the question under cl.11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking at the first issue before there is seen to be any need to enter upon the second . See also Bigg v New South Wales Police Service, 80 IR 434, where a Full Bench said at p454: As the Full Commission made plain in Busways , an employee is entitled to know prior to dismissal the nature of and, as necessary, the detail of the material known to the employer which is against the employee's interests. The employee is also entitled to an opportunity to respond to that material. If an employer fails to give an employee such an opportunity before dismissal, that is a matter which the Commission may take into account in proceedings brought under s.246 in determining whether the dismissal was harsh, unreasonable or unjust.

[121]

There is no evidence that the applicant made any request for reinstatement or re-employment. Such a matter may be taken into account by the Commission (s88(e)) and I do so. 129 While the circumstances surrounding his dismissal might be criticised as being less than perfect, it is a rare case indeed which does not disclose at least some procedural deficiencies of a purely technical nature. When set against a background of very serious allegations and an embarrassing set of circumstances, it is perfectly understandable that some minor matters might be overlooked or hurried through. For these very good reasons, the mere fact that an employer could have handled a dismissal situation more compassionately, or strictly according to the book, does not in every case invalidate the decision to dismiss, or warrant a conclusion that such dismissal was "harsh, unreasonable or unjust". 130 Put another way, 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. 131 As I said in National Union of Workers, New South Wales Branch, on behalf of Phillip Charles Mumby and Davids Distribution Pty Ltd (unreported) Matter IRC2056 of 1999, 9 February 2000: In my view, fault, or deficiency, in the process might not necessarily render such dismissal unfair for the purpose of ch2 pt6 of the Act. It would be contrary to the principles established by this Commission for a technical deficiency in the process to somehow automatically render a dismissal "unfair". 132 In Wang v Crestell Industries Pty Ltd (73 IR 454), a Full Bench of the Commission on appeal said at p469: The commissioner, after a lengthy hearing of the applications, reserved his decision and subsequently issued a well-reasoned decision which carefully assessed the relevant evidence and material before him in the context of the matters in issue. The commissioner's firm conclusion was that the employer's belief that the appellants had been involved in the unauthorised removal of company material from its premises for use in the business which Mr Wang ran from his home was justified, that, in fact, the appellants had been so involved and that such action justified dismissal: the employer's peremptory dismissal action without extending to the employees considerations of "procedural fairness" did not, in all the circumstances, result in the dismissal being harsh, unreasonable or unjust. 133 Another appeal bench in Rapp v Wauchope RSL Club 81 IR 116 made these observations: The failure to provide procedural fairness has been substantial enough to visit injustice upon Mr Rapp. Nevertheless there has since been a full and detailed hearing of the matter before Conciliation Commissioner Buckley and a review of the matter on appeal before this Bench. While there can be no doubt that Mr Rapp was denied procedural fairness there can in equal measure be no doubt at all that on the evidence he was guilty of serious misconduct in the nature of harassment of female members of the staff and that the conclusions that the Commissioner came to which are cited earlier in this judgment are fully satisfied.

[122]

134 A decision of Hill J in Mason v Electricity Commission of New South Wales t/a Pacific Power (1995) 62 IR 436 eloquently describes the matters to be considered in circumstances where procedural fairness is in issue. At p442 his Honour said: In my opinion, it is relevant that proceedings under the Act enable the dismissal and all of its attendant features to be reviewed; although the matter is not an "appeal" against an employer's decision, the employee has an opportunity to present a full case going to the merits and/or lawfulness of the dismissal including the severity of the consequences. That in fact occurred in this case. The appellant was given more than ample opportunity to prepare and present his case, was well represented and was able to deal in detail with the specific allegations and evidence against him and to explain and justify his conduct. Even if the view were to be taken that in the circumstances of a particular case a denial of procedural fairness was such as to render the dismissal harsh, unreasonable or unjust yet the crucial question which still remains at that point is whether or not the Commission should reinstate or afford any alternative relief to the employee. It is not difficult to envisage a multitude of cases where it would be quite impracticable to expect an employer to conduct itself in conformity with procedures and rules designed primarily to govern judicial or quasi-judicial proceedings and other official inquiries or employers would have little, if any, experience, appreciation or knowledge. In the nature and gravity of the misconduct, the certainty or otherwise of its commission, the substance and extent of the prejudice, if any, to the employee as a result of the denial and other relevant considerations such as the size and experience of the employer, the relevant rules and procedures governing the matter and the nature of the employment involved. 135 See also Bigg & Anor v New South Wales Police Service, 80 IR 434, Burke v McGirr (1995) 87 IR 54, Busways v Johnson 55 IR 255 and Antanakopoulos v State Bank of New South Wales (1999) 91 IR 385. 136 Extrapolating the words of Hill J, I am satisfied in this case, that the applicant was given more than ample opportunity to prepare and present his case, was well represented and was able to deal, in detail, with the specific allegations and evidence against him and to explain and justify his conduct. 137 Having considered all the circumstances and the gravity of the misconduct, I am satisfied, on balance, that there are no procedural deficiencies of such substance, or weight, as to render the dismissal "harsh, unreasonable or unjust".

Four Sons Pty Ltd v Lamsiripothong

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