Four Sons Pty Ltd v Lamsiripothong

APPLICANT Mr S Corry, Solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr M Davidson Retail Traders' Association of New South Wales with Mr C Pollington, Employee Relations Manager, Woolworths

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

Application by Gregory James Foster re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 Pursuant to s84 of the Industrial Relations Act 1996 ("the Act"), an application was filed on 19 November 1999, by Gregory James Foster ("the applicant") seeking relief in respect to his alleged unfair dismissal by Woolworths Limited on 29 October 1999. 2 The applicant was summarily dismissed for misconduct following an investigation into allegations of inappropriate behaviour of a sexual nature. He had over twenty years of service with Woolworths, commencing as an eighteen year old shop assistant in March 1979. At the time of dismissal he had been Liquor Manager for eight years, first at St Clair, then at Westfield, Parramatta for the five months prior to dismissal, earning $39,200 per annum. 3 At directions and conciliation proceedings on 8 December 1999, Mr S Corry (Solicitor) represented the applicant and Mr M Davidson (Retail Traders' Association of New South Wales) represented the respondent, accompanied by Mr Pollington from Woolworths.

4 After directing the parties to confer I adjourned the matter for private conciliation on 18 February 2000. During these conferences certain offers of settlement were put and Mr Corry requested further information from the respondent. 5 At a report back on 7 March the matter remained unresolved. Pursuant to s87 of the Act, I set the matter for hearing and issued directions for the filing and service of affidavit material.

6 The applicant's first affidavit (Ex'2') can be usefully described as falling into four parts. Part 1 deals with his employment history and is uncontested. Part 2 describes the disciplinary meeting on 29 October 1999. Part 3 provides his explanation of his behaviour. Part 4 details the applicant's attempts at securing alternative employment. 7 Attached to his affidavit was the company's incentive bonus plan, his earnings from May 1999 and a record of employee interview.

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).

19 Mr Pollington's oral evidence was that he first became aware of the incidents of 19, 20 and 26 October on the morning of the 29 October meeting. He denied Ms Salkeld's recollection of discussing the matter with her a week earlier. 20 Mr Pollington had received the complainant's written statements by facsimile from Parramatta in the morning. He and Ms Salkeld went together, by car, to Parramatta and discussed the seriousness of the allegations on the way. 21 Prior to the interview, the three of them (Pollington, Cunningham and Salkeld) read over the statements. Mr Pollington said he could not recall the substance of any conversation between them. Ms Salkeld recalled aspects of the conversation including her own amazement at the allegations and her view that if the allegations were true, the applicant should be terminated (para 2 of Ex'H').

22 Mr Pollington said it was not deemed necessary to interview the two persons making the allegations - despite such an instruction being in the Woolworths' policy guidelines. Ms Myers had not provided a written statement. Ms Tooley and the security guard had. Mr Pollington acknowledged that there was no impediment to his interviewing the witnesses. His decision was based on preferring the statements to what the applicant had said. He acknowledged that in the April incident there had been an initial interview, a suspension and a further interview. Mr Pollington did not consider it appropriate to follow a similar procedure. 23 Mr Pollington was shown the Woolworths counselling document, particularly where it recommended full notes should be taken. He said that such instructions were guidelines for inexperienced managers. He did not regard himself as inexperienced.

The guidelines also state that the record of interview should not be prepared in advance. However, Mr Pollington said it was best to put down the allegations, so the investigation can proceed. He said he had not pre-judged the matter by doing so.

The policy also requires allegations to be dealt with within two working days. Mr Pollington agreed that the first incidents of 19 and 20 October were not dealt with for eight or nine working days. 24 When shown Ms Myers' statement (para 6 - Ex'F') - where she cast some doubt on the applicant's intentional action - Mr Pollington did not consider it necessary to speak to her about it. She also referred to a "glimpse", but had said she saw his zipper undone and his penis outside his pants. 25 Mr Pollington was asked about Ms Tooley's affidavit in which she does not say his penis was outside his pants. Her evidence was that his penis was exposed. Mr Pollington said it could not be exposed unless it was outside his pants and so there was no inconsistency. He added if your penis is exposed you would know about it. The applicant had claimed he had a problem with his zipper and his pants were examined after dismissal. Mr Pollington said he could not say whether such information, known at the time of the dismissal, would have influenced, or altered, his decision. 26 Mr Pollington was asked a series of questions concerning the conflict of his evidence with that of the applicant in respect to the interview. He disagreed with the applicant's version of events.

27 Ms Deborah Salkeld's evidence dealt primarily with her involvement in the disciplinary process. In oral evidence, she confirmed that Mr Pollington had approached her about the applicant's counselling about a week prior to 29 October. He had not disclosed the details of the counselling and between that day and 29 October, she had not seen any statements. Her role was that of the company witness; she had no input in the decision making. 28 She could not recall if Mr Cunningham, or Mr Pollington, had expressed a view about the allegations prior to meeting the applicant; but she did not believe the applicant's denials. Ms Salkeld could not remember if the complainants' statements were read to him. 29 The other company representative at the meeting was Mr Cunningham. He was unavailable to give oral evidence and consequently in respect to the disciplinary meeting I rely on the evidence only of the applicant, Mr Pollington and Ms Salkeld.

The Incidents 30 Four persons gave evidence as to the allegations against the applicant:

Ms Kim Myers - Customer Ms Alina Tooley - Woolworths Employee Ms Cheryl Davidson - Woolworths Employee Ms Roshani Payne - Relief Supervisor 31 All except Ms Payne gave oral testimony. Ms Payne's affidavit was admitted without objection. 32 I shall now deal with the complainants' evidence and the applicant's evidence in response.

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.

Ms Myers said she had not been told that the applicant disputed the incidents. She knew that he was claiming to be unfairly dismissed. She had not spoken to anyone about her statement. 38 Immediately after Ms Myers' evidence, Mr Corry made application to adduce further evidence concerning the use of surveillance cameras in the liquor store. Surveillance film is destroyed after seven days. In any event, I ruled as follows: The whole purpose of filing material is so parties are not caught by surprise and that there is an opportunity to carefully consider what is put to this Commission. Cases cannot be run simply by thinking up something during the course of it and seeking to explore it. If that was the case, we would be sitting here interminably and wasting everybody's time. It seems to me that nothing that was put in evidence by Ms Myers would have prompted any view that the video surveillance in the store was something that was now so critical to the case. In any event, the applicant having worked there for some time, would have been well aware of it and if that was to be used as a basis for a defence, it should have been brought at the appropriate time and not injected midway through the evidence of the respondent. I will not allow such evidence to be brought. I reject your application Mr Corry. (T.p105)

39 In response to Ms Myers' evidence, the applicant gave evidence that his penis was never outside his trousers and he would have known if it was. Ms Myers was wrong, he said.

40 Ms Alina Tooley was employed by Woolworths at the relevant time - October 1999. On 19 October, her flatmate (Ms Martin) returned home and told her that an employee in Mac's Liquor store was serving her with one foot on a milk crate with his genitals exposed. Ms Tooley rang her own manager, Corey Case and told him of the incident. She did not know if Mr Case did anything about the complaint. 41 The following day, both Ms Tooley and Ms Martin went back to the store to purchase alcohol. At the time, she saw the applicant stacking shelves and she made a point of checking if his fly was undone - it wasn't. Between five and ten minutes later the applicant was waiting to serve them. He had his foot on a milk crate, his fly down, with his genitals exposed inside his pants. Ms Tooley felt embarrassed and flustered and almost forgot to pay for her purchases. She said Ms Martin also noticed what she saw. 42 The next day she approached her manager and said it has happened again and she had witnessed it. Mr Case said "he's strange, he's sick". 43 Her best recollection of when Mr Cunningham first asked her for a report was on 28 October. She told him about the incident. On 29 October she made a statement, as Mr Pollington and Ms Salkeld were attending the store that day. Ex'J' is her handwritten statement. 44 In cross examination, Ms Tooley said the applicant did not say, or do anything, to draw attention to his zipper being down. She said he had a smirk on his face when he called her back to pay for her purchases. 45 The applicant's reply to Ms Tooley's statement was that he could not confirm, or deny, what she had put in evidence. He did say, however, there is no milk crate in the liquor shop. There may have been a stool or stepladder behind the counter and it would be normal to serve a customer by putting his foot on it.

46 Ms Cheryl Davidson is a relief operator at Woolworths and recalls a day in October 1999 when she relieved at the register during the applicant's lunch break. She recalled he returned from lunch and sat on the counter with his legs dangling. She completed the time sheet and handed it to him, she noticed his fly was undone and she could see his penis, as he appeared not to be wearing underwear. 47 She joked and said "Have you been wanking yourself again?" He replied "Yes, now you know my secret". She told him to do his fly up - which he did. She said he didn't seem embarrassed and she thought he may have come from the toilet and forgotten to zip up. She did not tell anyone at the time. She thought it may have been a mistake and hoped it wasn't intentional (T.p84B). 48 She said about two or three weeks later, a customer Christine (Jacques) had told her that the liquor store manager had exposed himself to her. 49 After the applicant's dismissal she informed management, Mr Cunningham, of what she had experienced. She made a statement on 23 February 2000. 50 Ms Davidson said that the applicant had a "flick book" (men's magazine) and he had invited her to have look, if she was interested. He did not force her to look, but she thought he was wanting to see her reaction to the magazine's nude photos. The applicant's version of this conversation is not materially different.

51 Ms Roshini Payne's affidavit evidence confirmed being asked by the security guard to talk to Ms Myers. Ms Payne said she queried if the applicant had simply gone to the toilet and his zipper was down. Ms Myers said "no, he had 'it' out". Ms Payne apologised to her, but did not take a statement, as the security guard had already done so. She reported the incident to Mr Cunningham by telling him a customer had reported the applicant had exposed himself. Ms Payne did not know whether it was accidental, or on purpose. Mr Cunningham said "okay, I will handle it". 52 The applicant's reply to Ms Payne's affidavit was that he did not know, and could not admit to the matters contained therein.

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".

He gave evidence that he did not take action to keep his zipper up, such as with a safety pin or having the pants repaired. 59 In cross examination, he denied deliberately or recklessly approaching any woman with his fly undone, in such a manner as to expose himself (T.p26). 60 He did not consider continuing to wear faulty trousers, with no underwear, as reckless.

61 Professor Michael Pailthorpe is Head of the Department of Textile Technology, University of New South Wales. He is the author of a number forensic science publications and has given expert evidence in numerous criminal trials over the last ten years. 62 He was provided with the offending pair of trousers on 12 April and prepared a report dated 1 May 2000 (Ex'7'). 63 He examined the state of the trousers, and in particular, gave his professional opinion on the state of the zipper after viewing it under a microscope: The zipper has a metal runner/clasp and plastic (presumed to be nylon) teeth. The fabric tape, which holds the teeth, appears to be in good condition. The metal clasp does not lock the zipper in the closed position and the zipper opens easily under gentle force/pressure. Even with the waistband clasped and buttoned, only very slight force/pressure is required to cause the zipper to "run" and open. Thus, in my opinion, activities such as bending, expansion of the lower abdomen, etc could easily cause the zipper to open when dressed in the pants.

64 In oral evidence Professor Pailthorpe said that there was nothing to suggest that the zipper had been interfered with - the locking device was missing, possibly it had just fallen out with wear and tear. He could not say how long the locking device had been missing. It required only slight pressure for the zipper to come undone.

65 Mr Corry, for the applicant, submitted as follows:

1. the onus is on the employer to prove misconduct; that the incidents occurred and that they were intentional;

2. it would be open to conclude that the incidents did occur;

3. as to intent, the evidence is that Ms Myers conceded the applicant might not have been aware his zipper was undone. None of the woman witnesses said the applicant did, or said anything to draw attention to his zipper being undone. The applicant was making pleasant conversation with the women at the time;

4. the applicant acknowledged he may not have pulled his zipper right up - but he wasn't aware there was a problem with the zipper. A customer had also told him about it. He was frank and open about these instances. If it was intentional why would he mention these matters? The applicant should be presumed to be innocent.

5. the testimony of Ms Myers is the only evidence to suggest the applicant's penis was outside his pants. She describes it as a " glimpse ". The Commission need not prefer her evidence over the applicants;

6. the Commission does not need to make findings of witness credit, if there is insufficient evidence to do so.

7. the evidence of Ms Tooley and Professor Pailthorpe is consistent with the zipper coming down accidentally;

8. if the incidents were intentional, then the company took a long time (over a week) to take action;

9. the applicant was denied procedural fairness: i) Mr Pollington had made up his mind the incidents were intentional based on his own personal views; ii) the guidelines for counselling were not followed. The applicant had no time to prepare a response. Mr Pollington did not interview the complainants. An innocent explanation was available, if Mr Pollington allowed more time for the applicant to respond. 66 Mr Davidson's submissions may be summarised as follows:

1. the evidence is that Mr Pollington had not made up his mind before the dismissal. In any event, it was Mr Cunningham who rang Head Office and initiated the disciplinary proceedings;

2. the applicant's evidence was completely at odds with Ms Myers. There was no common ground. Her evidence should be preferred;

3. if the applicant is to be believed then the evidence of Ms Myers, Ms Tooley and Ms Davidson must be disregarded. This cannot be right. The three women came forward with " no axe to grind ", and put themselves through a frightening experience;

4. the applicant says he noticed a problem with his pants a week prior to dismissal. He did nothing about it. This was in itself reckless. He had a responsibility to dress appropriately and avoid the risk of offending customers or damaging the company's reputation;

5. not one of the persons who noticed the faulty pants was a male;

6. his visit on the day of dismissal to a friend, Mr Parton, was first mentioned in his second affidavit. No evidence was led from Mr Parton. The visit and Mr Parton's explanation never happened. He expects the Commission to believe that, armed with this information, he does nothing and hangs the trousers up for six months until Mr Corry asks for them. He had twenty years' service. Mr Cunningham had shown some sympathy for him. Why wouldn't he take the pants to Mr Cunningham?

7. evidence of him only going to the toilet after meal breaks and reference to security cameras demonstrates that the applicant is " making up his story as he goes along ";

8. it is not good enough to use as an excuse, the fact of not wearing underwear;

9. the evidence of Ms Tooley, Ms Davidson and Ms Myers all demonstrate a deliberate intention to expose himself and is gross misconduct;

10. Mr Pollington's decision to dismiss the applicant was plainly open to him;

1. it does not make sense that the applicant would deliberately risk his job and possible criminal charges;

2. Ms Davidson conceded that he may have forgotten to do up his zipper. She did not complain until after the dismissal;

3. Mr Pollington's evidence concerning the applicant's body language demonstrates that he had made up his mind and prejudged the applicant;

4. there can be no criticism of the late forensic examination of the trousers, as it was consistent with what the applicant had always maintained;

5. an argument as to reckless behaviour is not available, as this was never the reason advanced by the employer at the time of dismissal. It can't be put as some form of secondary alternate submission so late in the proceedings.

68 In determining a claim under Pt 6 ch 2 of the Act, the Commission may make findings of fact based on the civil standard of proof; that is, on the balance of probabilities. 69 The civil standard is, of course, to be distinguished from the higher standard of proof in criminal proceedings; being beyond reasonable doubt. 70 In Four Sons Pty Ltd v Lamsiripothong (unreported) Wright P, Hungerford J, Cambridge C, IRC6337 of 1999, 20 March 2000, a Full Bench of the Commission, on appeal, considered the civil standard in the context of unfair dismissal proceedings and said at paras 10-15: In Briginshaw v Briginshaw (1938) 60 CLR 336, the High Court affirmed the principle that there is only one standard of proof applicable in civil matters, namely, on the balance of probabilities. However, it was held that the strength of the evidence necessary to establish a matter on the balance of probabilities may vary according to the nature or gravity of the fact to be proved. Dixon J stated (at 362): The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

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)

The Briginshaw v Briginshaw principle is now embodied in s 140 of the Evidence Act 1995. That section provides: 140. Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

The principle in Briginshaw v Briginshaw has been applied by the Commission in unfair dismissal cases when considering allegations against an employee of serious misconduct involving allegations of criminal activity. For example, in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463 - 464, the Full Bench said: 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.

Nevertheless, the Full Bench made it clear 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.

See also Coles Myer Ltd v Shop, Distributive and Allied Employees Association (1989) 27 IR 299 at 304 and Bigg v NSW Police Service (1998) 80 IR 434 at 456.

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.

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.

My reasoning and conclusions in Ueckert will be referred to later in the context of my findings in this decision. 77 Finally, I would reaffirm a secondary, but no less significant, consideration which flows from findings of serious misconduct. This relates to the impact such a finding has on the employee, not only financially, but in terms of other concerns such as reputation, self esteem, job prospects, health and family pressures.

Short passages from two of my decisions relevantly make the point. In Standley v Electronics Boutique Australia Pty Ltd (unreported) IRC4516 of 1998, 18 March 1999, I said: It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee. It can, not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee's future employment prospects.

A finding by this Commission that a summary dismissal was justified, is a most serious matter which may unhappily burden and grievously harm an employee for years into the future.

78 Hill v Department of Juvenile Justice (unreported) IRC6474 of 1999, 27 July 2000, was a case where allegations of supplying drugs to juvenile detainees were made against a youth worker in a detention centre. I said at para 63: The serious unproven allegations made against the applicant have gravely impugned his reputation. Left to stand unchallenged, these allegations would seriously hamper his future employment prospects, damage his reputation and more than likely, deleteriously effect his well being and that of his family. It is the Commission's duty - indeed, its obligation - to correct the injustices the applicant has so plainly suffered. I unreservedly intend to do so.

79 For completeness, I cite the following passage from Franklins v Webb: We consider that the significance of decisions by employers to dismiss employees in circumstances such as occurred here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account. It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employers of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal. (p.261)

80 The correctness of the approach is a fortiori where the allegations are of a sexual nature and where such allegations, left unproven, will have enormous personal and financial ramifications for an employee.

Sexual Harassment in the Workplace 81 There are some eerie and uncanny similarities between the facts and circumstances of this case and those discussed in Ueckert - another dismissal based on allegations of misconduct of a sexual nature. 82 In both cases:

1. the applicants were young men with long service with a single employer;

2. the allegations concerned the applicants exposing themselves to female employees;

4. the applicants offered the same explanations - the incidents had been purely accidental and unintentional;

5. the allegations were made by a number of young female employees;

6. the applicants described the women witnesses as not telling the truth;

7. the applicants' claims of unfair dismissal were largely based on alleged procedural unfairness.

83 In Ueckert I addressed the issue of sexual harassment in the workplace in this way: It is trite for the Commission to observe that there is absolutely no place, or reason for, the harassment of one employee by another employee, be it sexual or otherwise, in, or outside the workplace. Indeed, such behaviour is unlawful. Where proven, it will, in my view, be a sound basis for disciplinary action and, if the behaviour continues, or is of a serious nature, it may constitute grounds for summary dismissal. I have no doubt that, if the employer's particular allegations are proven, the applicant would have little cause for complaint. The employer would have had no choice but to dismiss him. Indeed, it would have been obliged to do so, in order to protect its other employees. Employers must act to ensure a safe workplace - free of intimidation and harassment. A failure to do so might well be held to be in breach of the Occupational Health & Safety Act for which there are substantial penalties. See discussion in Labour Law , Creighton & Stewart ch 10.23.

......... I will refer shortly to the definition contained in the Anti Discrimination Act 1977 . However, it is helpful, in my opinion, to refer to two contemporary views of what constitutes sexual harassment. In Pezzimenti v Seamer , MC922854, 30 September 1994, Judge Ostrowski of the County Court of Victoria said at p9 of his unreported judgment: To 'harass' is not an unusual verb either. It connotes the worrying or troubling of someone by repeated unwelcome behaviour. The essential element behind the verb to 'harass' seems to be the repetition of the troubling behaviour. In the words complained of, the two verbs intimidated and harassed are used in conjunction with the word 'female'.

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.

In Jones v Armas Nominees Pty Ltd , 59 IR 61, Judicial Registrar Millane , after discussing the Federal and State definitions, gave this neat summation: In summary 'sexual harassment' is both sexual and unwelcome, may be constituted by many or a single act and, broadly speaking, the intention of the harasser is not relevant.

s169(1) of the Industrial Relations Act 1996 is in the following terms: Anti-discrimination matters

(1) The Commission must, in the exercise of its functions, take into account the principles contained in the Anti-Discrimination Act 1977. This is not a discretionary instruction, but mandates the Commission to take into account these principles in all aspects of its jurisdiction, including proceedings under Pt 6, ch 2 - Unfair Dismissals. It is convenient at this point to refer to Pt 2A - Prohibition of Sexual Harassment in the Anti Discrimination Act 1977. s22A of Pt 2A defines sexual harassment as: Meaning of "sexual harassment"

For the purposes of this Part, a person sexually harasses another person if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated. s22B(6) makes it unlawful for one employee to sexually harass another in the workplace: (6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons. "Workplace participant" is defined in s22B(9) as "(a) an employer or employee ."

84 Shortly stated, the respondent alleges that the applicant deliberately exposed himself to at least two female Woolworths employees and at least one female customer. 85 The applicant maintains that he does not wear underpants on certain days of the week, the zipper in his pants is faulty and the women may have accidentally seen his penis. 86 Do I accept the evidence of three witnesses - two customers and an employee - or, do I believe the applicant's denials of any intentional wrong doing?

This question might be answered in the context of the following circumstances and observations:

1. there was no motivation, actual or inferred, for any of the women witnesses to make up their stories;

2. it would require a concerted conspiracy for no apparent reason, between the women to do harm to the applicant;

3. the women had to endure an unbearable ordeal of embarrassment and distress in reporting the incidents, making statements and giving evidence before this Commission. 87 Set against this matrix is the rather extraordinary explanation by the applicant - that he didn't wear underwear and the women may have accidentally seen his penis. 88 Even if I was to accept the implausible explanation of the applicant, I am at a complete loss to understand why an employee of twenty years standing would compromise himself to such an extent so as to place his career, his family and himself at such enormous risk. His failure to take the simplest of precautions, or remedial action, in respect to his faulty trousers is beyond comprehension. 89 To my mind, it leads unfortunately to a presumption - which I accept on the balance of probabilities - that these explanations were nothing more than contrived and desperate excuses for his deliberate and perverted behaviour. 90 What I find even more staggering was that the applicant would engage in such behaviour in front of complete strangers, ie the customers. It strikes me as completely bizarre and irrational.

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. ..

104 A recent Full Bench decision of this Commission placed the principle in the context of the unfair dismissal provisions of the 1996 Act.

In Bankstown City Council v Paris (1999) 93 IR 209, the Full Bench said: This Commission and its predecessors have never accepted the proposition that an employer dismissing an employee is confined necessarily to the reasons advanced to the employee at the time of dismissal. If relevant circumstances existed at the time of dismissal of which the employer was not aware but which would either themselves or in concert with the reasons advanced, support dismissal, they may be relied upon. Byrne v Australian Airlines Ltd ((1995) 185 CLR 410 at 467) is a relatively recent recognition by the High Court of a parallel approach which has been extant in the common law for a much longer period. For example, in Shepherd v Felt and Textiles of Australia Ltd ((1931) 45 CLR 359 at p373) Starke J said: The first that the appellant's misconduct was unknown to the respondent at the time of the termination of the agreement is quite immaterial. If there were, in fact, any circumstances in existence at the time of the termination of the agreement which could have justified the respondent in so terminating it, then it may justify the termination by subsequent proof of those circumstances ( Smith's Law of Master and Servant , 5th Ed p107; Taylor v Oakes Roncroni & Co ((1922) 27 Com Cas 261 at 266); Swale v Ipswich Tannery Ltd (1906) 11 Com Cas 88 at 98).

105 Thus it is open to the employer to rely on Ms Davidson's evidence and, I, likewise do so. 106 In my opinion, all three women gave honest and credible evidence. They had made statements shortly after the incidents and despite the passage of time and vagaries of recollection, they remain unswayed from what they say they witnessed and the circumstances in which they did so. 107 There is no evidence that the three women had met together, swapped stories, or even knew each other. However, their first statements and subsequent evidence have a prophetic degree of consistency. All three could not be wrong about what they saw and in what circumstances. 108 I accept their combined evidence unreservedly. 109 Finally, I feel bound to comment that Ms Myers, Ms Davidson and Ms Tooley are to be commended for their willingness to put themselves through a most distressing, humiliating and repulsive experience. To give such ugly evidence in a public court is to be respected and appreciated by the community. It is to their credit that they were prepared to do so.

110 Of some considerable interest was the expert evidence of Professor Michael Pailthorp. 111 His findings upon examining Ex'4', the applicant's pants, was said to corroborate the applicant's claim of a faulty zipper. I have no reason to doubt the Professor's professionalism or forensic analysis. However, it only goes part of the way to answering the allegations against the applicant. 112 Assuming the zipper was faulty, how does it explain the following matters:

1. Why would the applicant continue to wear pants with a faulty zipper and no underpants, where there was a potential for embarrassment to himself, other employees or customers? As a matter of personal integrity one would have had the zipper repaired, or used a safety pin to keep it up.

2. Ms Myers' evidence was that the applicant's penis was outside his pants. At its highest, the Professor's evidence might corroborate for the occasional inadvertent event of the fly being open. If Ms Myers is to be believed, it could not possibly account for his penis being outside his pants.

3. The applicant claims he didn't wear underpants on Tuesdays and Wednesdays because these were days of bulk deliveries and he sweated profusely. I find such a claim to be utterly preposterous. Does the applicant truly expect me to believe that he didn't wear underwear because he sweated profusely? As a matter of common sense and hygiene, one would be expected to wear underwear to control the very problem about which he complained.

4. 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.

118 Mr Corry made a fervent effort to impugn the process of the investigation. He forcefully submitted that the applicant had been denied procedural fairness. Examples he cited included:

2. the interview was exceedingly short - fifteen minutes - after which a decision was made almost immediately;

3. the applicant was denied an opportunity to prepare his defence;

4. contrary to the guidelines for counselling, Mr Pollington did not interview the complainants;

5. contrary to the guidelines for counselling, the employer waited nine to ten days after the incident before raising it with the applicant;

6. contrary to the guidelines for counselling, Mr Pollington did not take full notes of the meeting. 7) Reference to the earlier disciplinary incident was recorded on the record of interview, but not raised during the interview. It was therefore improperly relied upon.

8. Mr Pollington failed to take account of the applicant's denials; 119 Mr Corry made much of the alleged breaches of the company's own policies and guidelines. I should say that I do not regard Mr Pollington's actions as being inconsistent with the policies. Mr Pollington was an experienced manager - he had the written statements of the complainants. 120 As to the reliance placed on the April disciplinary action, such matter is, in my opinion, irrelevant. The gravity of the instant allegations if proven, would have been sufficient grounds to warrant summary dismissal. I have not relied at all on this incident for my findings as to the fairness of the dismissal. 121 Even if there is some merit to Mr Corry's criticism applying to the procedures stricto sensu, the guidelines for counselling are exactly that - guidelines. They use non mandatory expressions such as:

i) The interview should take place within two days (4.1). ii) The disciplinary procedure should be applied as necessary, promptly and equitably to all employees of the company (4.2).

iii) Full notes of the session should be taken by the manager at the time of the interview.

122 I have reviewed the entire document (Ex'D') and am comfortable that it represents a thorough and comprehensive set of practices and procedures which, if applied consistently and exhaustively, would meet the employer's obligations, functus officio. 123 However, any internal disciplinary procedure or policy must also be able to withstand the rigours of this Commission's tests, from both a statutory viewpoint, and the guidance from relevant authorities. 124 Section 88 of the Act is obviously the section directed towards matters pertinent to procedural fairness: 88 In determining the applicant's claim, the Commission may, if appropriate take into account:

a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and

b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and c) whether the warning of unsatisfactory performance was given before the dismissal, and

d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and

e) whether or not the applicant requested reinstatement or re-employment with the employer, and

f) such other matters as the Commission considers relevant.

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.

See also Burke v McGirr (1995) 87 IR 54 at 55-56; Oswald v New South Wales Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta , 87 IR 57 at 64; Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 and my discussion of the principle in Myers v New South Wales Police Service , 93 IR 123; National Union of Workers, New South Wales Branch, on behalf of Phillip Charles Mumby, and Davids Distribution Pty Ltd (unreported) IRC2056 of 1999, 9 February 2000; Herson and One.Tel Ltd (unreported) IRC5181 of 1998, 18 February 2000 and Yopp v Advanx (Gosford) Motor Services Pty Ltd (unreported) IRC4592 of 1998, 7th May 1999. The principle has been recently reaffirmed in Antanakopoulos v State Bank of New South Wales (1999) 91 IR 385 where the Full Bench said at p389: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.

and later, at page 390: While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust .

126 In cases of summary dismissal for misconduct, s88 of the Act, read conjunctively with the aforementioned authorities, places particular emphasis on three matters:

iii) Was the applicant given an opportunity to make out a defence, or give an explanation for his behaviour? 127 In respect of the first two questions, I am well satisfied that the answers are both in the affirmative. However, on its face, the quick decision to dismiss the applicant, after a fifteen minute interview, might well give rise to a presumption that he was not given a reasonable opportunity to make out his defence. 128 Notwithstanding this observation, I reject this presumption taking into account the following:

1. I have no doubt that the applicant was well aware of the nature of the allegations and could therefore not be said to have been "ambushed" by the specifics.

2. The applicant's rather strange behaviour and inconsistent response during the interview in refusing to accept a witness being present on his behalf. This seems strange in the context of the disciplinary procedure he had experienced only a few months earlier.

3. He was an employee of many years standing, well versed in company policy and procedure. He did not ask for an adjournment of the meeting, or time to prepare a response.

4. The applicant said he spoke to a friend, Mr Parton, on the same day. Mr Parton is said to have told him that his pants might have been a problem. The first mention of this mystery friend was eight months after the event. Strangely, again, he made no follow up attempt to contact the employer and offer such a reason for his behaviour. The pants were hung up in his cupboard and there they stayed until Mr Corry asked to see them some months later. Even more curious was Mr Parton not being called to give evidence.

5. 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.

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".

1. The applicant knowingly and intentionally exposed himself in the workplace to female employees and customers.

2. The evidence of Ms Myers and Ms Tooley is to be preferred over that of the applicant.

3. The applicant's behaviour constituted sexual harassment, such as to warrant summary dismissal for gross misconduct;

4. The applicant was aware of the nature of the allegations and was provided a reasonable opportunity to offer an explanation and defence of his actions.

5. His explanation for the behaviour is totally implausible.

6. The employer's process of investigation was appropriate and thorough. There was no denial of procedural fairness.

7. The employer has discharged the onus of proving the allegations of misconduct.

8. The employer had no other option but to dismiss the applicant for gross misconduct.

9. There is no basis which would warrant the Commission's intervention in respect to the dismissal.

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