G v H

[2005] NSWSC 811

Supreme Court of NSW|2005-05-12|Before: Hall J

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Source facts

Court

Supreme Court of NSW

Decision date

2005-05-12

Before

Hall J

Source

Original judgment source is linked above.

Judgment (76 paragraphs)

[1]

Background 3 The decision of the Transport Appeal Board records the events that led to the decision by his employer, the State Rail Authority, to dismiss him from his employment. 4 The plaintiff was initially employed by the Authority from 9 July 1984 and, following the formation of RailCorp, by that entity, until he was dismissed. 5 The plaintiff's employment background included a period in which he served as a Station Assistant until 28 July 1996 and subsequently he became a train guard. On 28 August 2004, he commenced employment as Acting Duty Manager at Clyde Station. He was provisionally appointed to the position Duty Manager, Level 1 General Relief. 6 The basis of the decision to dismiss the plaintiff was that he had breached the Code of Workplace Standards ("the Code"). 7 The particulars of breach alleged against the plaintiff were in the following terms:- "The alleged breach occurred on Monday 13 October 2003 whilst (the plaintiff) was on duty as Duty Manager at Clyde Railway Station and relate particularly to State Rail's Anti-Discrimination and Harassment Policy. The particulars of the alleged breach are that, between 1900 and 2115, (the plaintiff) made sexually suggestive comments to, requests for sex to, offers of sex to and asked personal questions of Ms. Jodie Bains, a Customer Service Attendant on duty with (the plaintiff)." 8 The Code contains provisions concerning the conduct of employees under the heading "Acceptable standards of behaviour". The Code provides under the heading, "Discrimination and harassment" the following requirement. "We should avoid acting in such a way that could be seen as unreasonable or could be construed as unlawful discrimination. This could include harassment or discrimination against other staff or members of the public on the grounds of:- • sex …" 9 The Code also provides for a range of disciplinary action under the heading "Breach of the Code of workplace standards", in particular, "caution, reprimand, suspension, regression or dismissal …". 10 The Anti-Discrimination and Harassment Policy contains, in paragraph 4.6.3, a definition of "harassment " as including any behaviour or comment that is:-

[9]

Jurisdiction in this case 15 The plaintiff contends that the Supreme Court has jurisdiction to review the decision of the Transport Appeal Board: Ford v. Transport Appeal Board (NSW) (1987) 18 IR 163 and State Rail Authority of New South Wales v. Transport Appeal Board & Anor [2004] NSWSC 962. 16 Sections 65 to 69 of the Supreme Court Act 1970 provide power to this Court to make orders in the nature sought in the amended summons. Section 69(3) of the Supreme Court Act 1970 provides:- "(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes a jurisdiction to quash the ultimate determination of a Court or Tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the fact of the record of the proceedings." 17 In determining what is the "record", s.69(4) specifically states that it includes the reasons expressed by the Court or Tribunal for its ultimate determination. This provision overcomes the effect of Craig v. South Australia (1995) 184 CLR 163. 18 It is important to observe that these proceedings are not in the nature of an appeal and accordingly the Court is not involved in a review of the merits underpinning either the decision of the State Rail Authority or of the Transport Appeal Board. 19 In relation to the jurisdiction which the plaintiff seeks this Court to exercise, I refer to the observations of Rogers, J. in Ford (supra) at 164 to the following effect:- "It is, of course, clear that there is no appeal to this Court from the decision of either the Transport Appeal Board or the State Rail Authority of NSW. It is equally clear that the Supreme Court has a long standing jurisdiction and indeed obligation to exercise supervisory jurisdiction over the acts of administrative and specialist inferior Tribunals. In exercising this power, the Court will be anxious to ensure that it does not trespass into areas of jurisdiction committed to specialist inferior Tribunals; at the same time, the Court must be anxious to safeguard the rights of the subject and to ensure that inferior Tribunals are kept within the bounds of their jurisdiction and do provide procedural fairness in the exercise of their jurisdiction.

[13]

The investigation 29 On 20 October 2003, Ms. Elizabeth Coombs, Acting General Manager, Human Resources, wrote to Ms. Joy Woodhouse of Joy Woodhouse Consultancy Service to undertake an investigation into the matter. Ms. Woodhouse subsequently compiled a report dated 18 December 2003. 30 The investigation formally commenced on 20 October 2003. Records in relation to the allegations were examined by Ms. Woodhouse and Ms. Bains was interviewed on 21 October 2003 and again on 30 October 2003. 31 Initially Ms. Bains supplied a list of alleged statements (36 dot points), which she attributed to the plaintiff. The last dot point stated "there is plenty more of what he said, but this is just a few of the important things as I am starting to get a headache from the stress". During the interview on 30 October 2003, Ms. Bains undertook to provide a more complete set of statements allegedly made by the plaintiff. A revised list totalling 45 dot points was received by Ms. Woodhouse on 20 November 2003 (attachment 6 to her report). 32 The plaintiff had responded to the allegation by letter of 20 October 2003. He additionally responded to Ms. Woodhouse's facsimile sent on 7 November 2003. She invited him to attend an interview as part of the disciplinary investigation process. In due course, he signed a statement prepared at an interview held on 12 December 2003. He essentially again denied the allegations and made a number of points including a statement that Ms. Bains had been flirtatious with him. 33 On 30 January 2004, a Disciplinary Panel considered Ms. Woodhouse's report. The Panel's report is dated the same date. It agreed with her findings, noting that the complaint arose from events on the complainant's very first day at Clyde Station and it appeared that she had nothing to gain from making the complaint. It also contended that Ms. Bains had provided some corroborative evidence. 34 The Disciplinary Panel ultimately concluded that, notwithstanding the plaintiff's lengthy period of service and lack of disciplinary record, the seriousness of the misconduct warranted dismissal. 35 On 3 February 2004, RailCorp wrote to the plaintiff advising him that the allegations were found to be substantiated. It provided him with seven days in which to provide comments on the proposed penalty of dismissal. 36 On 7 February 2004, the plaintiff wrote to RailCorp advising that he had nothing to add to his previous letters and contended that Ms. Woodhouse had advised him that in her opinion the process would not lead to dismissal. 37 On 17 February 2004, the Disciplinary Panel recommended that the appellant be dismissed.

[30]

The Briginshaw standard 59 There are only two standards of proof in legal proceedings, the criminal standard of proof beyond reasonable doubt and the civil standard of proof on the balance of probabilities. There is no third standard. However, in civil proceedings where allegations of fraud or serious impropriety are made, it has been said that courts should proceed in accordance with the observations of Dixon, J. in Briginshaw (supra) wherein it was 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 effect the answer to the question whether the issue has been proved." 60 In Briginshaw, Dixon, J. (at 361-362) stated:- "… when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality … It is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind which is attained or established independently of the nature and consequence of the fact or facts to be proved. 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." 61 The Evidence Act 1995 (NSW) now enshrines in s.140 the standard of proof on the balance of probabilities in a civil case and further provides:- "(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:- … (c) the gravity of the matters alleged." 62 That section does not strictly apply to proceedings before Transport Appeal Boards but it does in part constitute statutory recognition of the Briginshaw test. 63 On this approach, the standard of proof, or more particularly, its application varies according to the seriousness of the matter in question. It has been said in relation to findings of criminal conduct the subject of civil proceedings that findings in relation thereto must be based on evidence that is strong and cogent. This merely reflects the principle that the nature of the issue necessarily affects the process by which "reasonable satisfaction" is attained: see Briginshaw (at 363). However, the need for clear or cogent proof is not directed to the standard of proof but rather should be understood as reflecting the perception that members of society do not ordinarily engage in fraudulent or criminal conduct and it is appropriate to be guided by the judicial approach that a finding that a party to civil litigation has been guilty of such conduct should not be made lightly: Neat Holdings Pty. Limited v. Karajan Holdings Pty. Limited (1992) 67 ALJR 170. 64 In Victoria v. Macedonian Teachers' Association of Victoria Inc. (1999) FCA 1287, a case involving a question of racial discrimination under the Racial Discrimination Act 1975 (Cth), s.9(1), it was held that the Briginshaw standard did not apply. In that case, however, it was not necessary for a finding of "deliberate" discrimination against one section of the community in order to favour another section to be made. The mere finding that a government had contravened the provision of an anti-discrimination statute without considering the circumstances in which the contravention occurred was not, sufficient to attract a Briginshaw test. The court there stated that, there being no issue of fraud or impropriety, the Briginshaw principle was not operative. 65 In G v. H (1994) 124 ALR 353 at 362, Deane, Dawson and Gaudron, JJ. stated that there was a need to proceed with caution in a civil case where there is an allegation of fraud or an allegation of criminal or moral wrong-doing as in Briginshaw where the allegation was adultery by a married woman, an allegation involving serious legal consequences when that case was decided. In G v. H, the issue was paternity, which was a serious matter but nonetheless it was not clear that the question should be approached on the basis that it involved a grave or serious allegation in the Briginshaw sense when what was in issue was the maintenance of a child. 66 An allegation of sexual harassment plainly involves a serious allegation and the consequences of an adverse finding against an employee in disciplinary proceedings are potentially grave indeed. Such a finding impugns the integrity and reputation of a person subject to such a finding. Sexual harassment under State legislation is unlawful: Anti-Discrimination Act 1977 (NSW), ss.22A and 22B(6). It is plain that in proceedings such as here in question where allegations of sexual harassment made by one employee against another is in issue, the Briginshaw standard applies. As to a recent example of the application of the test, see Re Marshall & Discrimination Commissioner; Australian Capital Territory (1998) 52 ALD 361 at [35]-[36]. 67 Accordingly, the question then becomes whether or not the Board failed to apply the appropriate standard or failed to properly apply the relevant standard of proof. 68 The plaintiff points to the fact that the Board did not refer to the Briginshaw standard nor to its application. Counsel for the plaintiff accepted that an error of law is not made out merely by a failure by a tribunal to expressly refer to the Briginshaw standard. The submission proceeded:- "… however, the plaintiff submits there was error because the court is able to find that the Board did not in fact apply that correct test as a standard of proof." (p.5) 69 The plaintiff contended that the lack of any expressed satisfaction or belief by the Board that the alleged conduct had occurred were consistent with the fact that the Board applied what was described in submissions as "the mechanical probabilities". The plaintiff also relied upon the sparsity of reasons given by the Board. It was submitted that the Board's finding as to whether the alleged acts occurred or not was limited to one paragraph on the final page. There is nowhere here to be found, it was observed, any express statement of belief that the events occurred but "largely the finding that because of the absence of a negative, that is the absence of any belief that she concocted the events, concocted the allegations …". 70 Counsel for the plaintiff conceded that the Briginshaw test was not raised by the union official who represented the plaintiff before the Board, but submitted that nonetheless an error or law of this kind represents a constructive failure of the Board to exercise its jurisdiction. Accordingly, the fact that this issue was not raised before the Board does not prevent the point now being taken. I accept, in principle, the force of that submission. 71 A reading of the Board's decision does not, however, leave one with the impression that there was a mere mechanical weighing of the probabilities as submitted by the plaintiff's counsel. The decision itself does evidence and reflect an appreciation by the Board of the seriousness of the allegations and the need to consider, in particular, issues such as the following:-

[47]

The manner in which Ms. Bains' evidence was given before the Board 75 When Ms. Bains was called to give evidence on 5 May 2004, she was asked to recall the actual words constituting the offensive comments attributed to the plaintiff. She stated that she did not remember the order in which the comments were made and then asked, "Do I really have to say them?" and when told that she did replied, "They're really rude". Ms. Bains then (t.66) commenced to give evidence as to some of the offensive questions she claimed were posed by the plaintiff when she was interrupted by the Chairman who commented that it was difficult for Ms. Bains but she was to take her time, but that the Board needed to have the matters on the record as the allegations were "quite serious" (a statement incidentally which is consistent with an appreciation by him of the need for cogent evidence - see discussion above). 76 At that point, the representative for RailCorp asked whether it would be in order for Ms. Bains to read from her handwritten statement, to which the representative for the plaintiff stated, "I don't have objections, Mr. Chairman". The Chairman then gave permission and Ms. Bains then simply read from her prepared statement. 77 The procedure that was followed whereby the complainant read from her statement, I consider, to be quite inappropriate where a tribunal is required to assess the credibility and veracity of a complainant over the denials of the person the subject of such grave allegations. There is potentially disadvantage to the accused person in permitting a complainant simply to read from a prepared statement rather than for his or her evidence to be given from recollection, unaided by prepared statements and for such evidence to be then tested, as appropriate, by cross-examination. The procedure that was followed in the present matter also potentially disadvantages the tribunal from being in the best position to effectively and properly discharge its function of evaluating witnesses and ascertaining the facts of alleged events to which there is no third party witness. 78 However, having examined the transcript, Ms. Bains did give some independent recollection to some of the questions asked of her before the procedure was adopted of permitting her to read from her statement. Additionally, allowance must be given to the fact that the plaintiff's own representative acquiesced in the procedure that was followed in this case. Accordingly, I do not consider that this point carries the significance contended for by the plaintiff.

[48]

The absence of a statement or evidence from Ms. Bains' friend "Ricky" 79 The failure to obtain a statement from the person "Ricky" meant that a potentially important source of corroborative evidence was left unexplored. This is potentially a matter of significance where the investigation essentially involved one person's word against another. 80 Ms. Woodhouse stated in evidence that at an early point in her investigations she considered that she would need to interview Ricky but that she had been unable to locate him through Ms. Bains. She stated that she considered him "an important witness". In cross-examination, she stated that Ms. Bains was reluctant to give contact details, but Ms. Woodhouse did not know why. She pointed out to Ms. Bains that he was an important witness in terms of corroboration or otherwise of her account of events. She did not know what the relationship was between the two but understood Ms. Bains' reluctance was tied in with the fact that her husband was not aware that Ricky was her friend. She did not know whether that was because there was anything in the relationship or because her husband was "a bit possessive and didn't like her to have relationships with males outside of their marriage". Ultimately, Ms. Bains said she had a falling out with Ricky and they were not speaking. Ms. Woodhouse said her chance of obtaining evidence from Ricky "expired". Ms. Bains, in evidence, had said that she had spoken to Ricky on her way home from work on 13 October and told him "some of the things but I didn't tell him everything". 81 In evaluating the significance of this aspect of the matter, it is necessary to have regard to the fact that there was evidence of corroboration, in particular, by virtue of Ms. Bain's complaints (see paragraphs [27] and [28] in respect of reports made to Mr. Jamsek and Ms. Dalton). In these circumstances, the absence of any corroboration from Ricky, though material, does not carry the significance that it would have had had there been no other contemporaneous corroboration of her allegations. Accordingly, I do not consider that this matter, in itself or in combination with the other matters relied upon by the plaintiff , is sufficient to render the finding of the Board unreasonable, as contended by the plaintiff.

[58]

Analysis 88 It is fundamental to the primary contention on the "wrong question" issue that the Board's jurisdiction is, as a matter of law, protective in nature. Support for that contention was said to be found in the decision of the Court of Appeal concerning the Government and Related Employees Appeal Tribunal in Donlan (supra) followed and applied by the Australian Industrial Relations Commission in Duckworth (supra). 89 In support of the plaintiff's contention that the jurisdiction exercised by the Board was, as in Donlan concerning the Government and Related Employees Appeal Tribunal (GREAT), a disciplinary jurisdiction of a protective nature, reliance was placed upon the decision of the High Court in New South Wales Bar Association v. Evatt (1967) 117 CLR 177 at 183-184 and the subsequent application of that decision to the case of a Commonwealth policeman in Hardcastle v. Commissioner of Police (1984) 53 ALR 593 at 597. In the latter case, the Full Federal Court said:- "The object of disciplinary proceedings under the Discipline Regulations is to protect the public, to maintain proper standards of conduct by members of the Australian Federal Police and to protect the reputation of that body. The object of disciplinary proceedings is not to punish." 90 In Donlan (supra), Clarke, JA. gave the leading judgment (Handley, JA. agreeing, Powell, JA. dissenting). Clarke, JA. considered that the characterisation of the proceedings under the Discipline Regulations considered in Hardcastle (supra) were "a concise and admiral description of the relevant principle" so far as the jurisdiction with which Donlan was concerned and which had been exercised by GREAT. 91 In Duckworth (supra), the Commission considered that there were similarities with disciplinary appeals arising under ss.23 and 24 of the Government & Related Employees Appeal Tribunal Act 1980 and the scheme under the Transport Appeal Boards Act 1980 (NSW), in particular, s.23 of the latter Act and clauses 13 and 17 of the Transport Administration (Staff) Regulation 2000. The Commission considered that there were similarities between the GREAT scheme and that under which the Transport Appeal Board operated and that the observations of the Court of Appeal in Donlan (supra) provided a guide to the nature of proceedings before the Transport Appeals Board. The Commission accepted the submission that the correct question at issue in the proceedings before the Board was whether it was in the public interest and in the interest of the appellant that the respondent should be allowed to continue in his employment as a Train Crew Assignment Officer. On that basis, the Commission concluded, the proceedings before the Board were not proceedings in which it could be alleged that a termination was harsh, unjust or unreasonable (however described). In so concluding, the Commission accepted the submission that proceedings before the Board involve the exercise of a protective or disciplinary jurisdiction in which issues of harshness, unjustness or unreasonableness are not relevant. 92 The plaintiff's contentions raises two issues:-

[62]

(ii) Hardcastle v. Commissioner of Police and Commissioner of Police v. Donlan 96 These two cases may be considered together. Hardcastle was an example of the application of a disciplinary jurisdiction of a protective nature in respect of a Commonwealth policeman. Donlan concerned the conduct of two New South Wales police officers who, when off duty, had assaulted a person and had been convicted of assault. The conviction was the basis of their proven misconduct. It was contended in Donlan that the test as stated in Hardcastle did not apply as the statutory provisions governing GREAT should be understood in the context of the Police Regulations (Appeals) Act 1923 which referred, in s.61, to the punishment of a member of the Police Force. Clarke, JA. stated that he did not consider that that Act was relevant to the problem under consideration in the case. The jurisdiction of the Tribunal was essentially protective and GREAT was not concerned with punishment. However, the majority judgment of the Court of Appeal in Donlan should not be taken as determinative of the nature of GREAT's jurisdiction (and of similar tribunals) at large or with respect to all public sector employees without limitation. The employees in question in Donlan (and Hardcastle) were as previously noted, police officers. As discussed below, special considerations apply to those public officers who are appointed to exercise special powers and functions in the public interest. The majority judgment in Donlan must, as indeed is the case with all judgments of superior courts, be read secundum subjectam materiam: Hughes & Vale Pty. Limited v. State of New South Wales (1952-1953) 87 CLR 49, 88 and Commonwealth v. Bank of New South Wales (1949) 79 CLR 497, 638. I will return to discuss Evatt, Clyne, and Donlan below. 97 An examination of the provisions of the Transport Administration (Staff) Regulation 2000 is of assistance in determining whether or not there is a specific and identifiable basis for holding that the Board's jurisdiction was, as in Hardcastle and Donlan, a disciplinary jurisdiction of a protective nature or not. 98 Whilst the Police Regulations (Appeals) Act, s.6(1), considered in Donlan provided the basis or warrant for a right of appeal in a member of the police force if dissatisfied with the decision of the Commissioner imposing a punishment where such punishment consisted, inter alia of dismissal, the approach adopted by Clarke, JA. was not to examine the jurisdiction of GREAT at large but to examine it in terms of "a disciplinary appeal such as this" (paragraph [27]) which, as earlier indicated, was an appeal against dismissal by police officers. Clarke, JA.'s statement in that respect was immediately followed by reference to the decisions in Evatt and Hardcastle, the former involving the need to protect clients and the profession from abuse of professional obligations, the latter involving the need to protect both the community and the police service as a whole from the unlawful conduct of persons who hold public office as police officers. In short, the Police Regulations (Appeals) Act 1923, s.6(1) did not determine the nature of the proceedings in Donlan. 99 In the present matter, it is necessary to examine the interaction between the Transport Administration (Staff) Regulation 2000 and the Transport Appeal Boards Act (1980). That Regulation applies to a disciplinary appeal which is defined as meaning an appeal under clause 17 or 33. Clause 13, in particular, entitled punishments in disciplinary proceedings provides that the "SRA may impose any one or more of the following punishments in disciplinary proceedings against an SRA officer …" (emphasis added) which includes a range of limited sanctions or penalties rising up to dismissal. Clause 13 accordingly authorises disciplinary action by the SRA styled or entitled punishments. 100 The Transport Appeal Boards Act 1980 under which the plaintiff's appeal was brought is linked back to the 2000 Regulation, for "disciplinary appeal" in that Act is defined as meaning a disciplinary appeal within the meaning of the Transport Administration (Staff) Regulation 2000, s.4(1). 101 Under the Transport Appeal Boards Act 1980, a Board is required to hear a disciplinary appeal, being an appeal against a decision to impose a punishment as specified in clause 17 of the Regulation, namely, one or other of the specified punishments set out in clause 13(1)(a) to (e) of that Regulation. 102 The intersection then of the provisions of the Transport Administration (Staff) Regulation 2000 and the Transport Appeal Boards Act supports the conclusion that the disciplinary jurisdiction of the Board is concerned with what might be described as decisions involving the imposition of punishment of specified kinds although, as discussed in paragraph [106], that does not preclude the possibility of a Board's jurisdiction being a protective one in certain limited cases. This is a statutory context of a different kind to that in Donlan, the appeal there concerning police officers, not involving the notion or concept of punishment, a point clearly expressed by Clarke, JA. at paragraph [25]. 103 Apart from the distinct statutory regime that governs and applies to appeals to the Board from decisions of the SRA to impose punishment, reference has been made to a further basis upon which such appeals may be distinguished from the proceedings which were considered in the High Court decisions of Evatt (supra), Clyne (supra) and in the decisions in relation to the appeal proceedings in Hardcastle (supra) and Donlan (supra). As earlier noted, the protective nature of the jurisdiction in relation to members of the Bar is directed towards protecting both members of the public who engage barristers to act for or represent them as well as the profession as a whole, in particular, by reason of the privileges that are conferred upon or which are exercisable by barristers. The disciplinary jurisdiction exercised by the Bar Association is therefore one designed and intended to offer protection for a class of persons (clients) for obvious and important reasons. 104 In the case of police officers, at common law, the office of constable or peace officer was regarded as a public office. The appointment to the office has, over the years, been made in various ways. In more recent times the mode of appointment came to be regulated for the most part by statute and the power of appointment has been vested in specified authorities. However, as has been stated, it seems never to have been thought that a change in the mode of appointment made any difference in the nature or duties of the office, except so far as might be enacted by a particular statute: Enever v. The King (1906) 3 CLR 969, 975. Authority cited by Griffith, CJ. in that case made plain that the duties to be performed by such officers are of a public nature (at 976). When so understood, it is readily apparent that (as in the case of barristers) there is a public interest to protect in disciplining police officers. The jurisdiction to do so is essentially protective in nature, amongst other things, to protect the reputation of the police service in question and to protect the standards of conduct that apply to police officers. 105 The jurisdiction of the SRA under the Transport Administration (Staff) Regulation 2000 is not confined or limited to a specific class or group of employees whose functions can and do impact in a public way through the exercise of special powers or privileges unlike cases involving the functions and powers of barristers or police officers. The Regulation, without any differentiation, applies to SRA/RailCorp employees who no doubt occupy a large range of employment classifications in a vast range of rail and other related operations. The SRA was empowered by that Regulation to make a range of decisions, in particular, decisions:-

[70]

• Whether the nature and characterisation of the plaintiff's conduct was such as to merit or warrant dismissal. 112 The power of the SRA to impose a punishment referred to in clause 13 of the 2000 Regulation is expressed in open-ended terms and is not subject to express terms as are sometimes to be found in industrial award provisions. An example of the latter was considered by the High Court in Byrne v. Australian Airlines Limited (1995) 131 ALR 422 wherein the relevant award contained "an unfair dismissal provision". That provision stated that the termination of employment by an employer "… shall not be harsh, unjust or unreasonable". 113 Although there is no comparable provision in the Regulation here in question, the observations of McHugh and Gummow, JJ. in Byrne reflect upon the nature of termination or dismissal action by an employer. Those observations reveal the sometimes elusive distinction between procedural and substantive unfairness in the context of a termination decision and that a decision which is the product of unfair procedures may, inter alia, be unreasonable. Similarly, it may be that a termination is harsh but not unjust or unreasonable, or unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts overlap. 114 The Board referred to both procedural and substantive issues in its decision. In particular it referred to the investigations undertaken by Ms. Woodhouse and concluded that State Rail's disciplinary process and procedures had been complied with and that any defects were minor and had no substantial effect on the findings (p.4). The Board, later in its judgment (p.11), again expressed satisfaction that the investigation had followed "due process and was carried out in a professional and fair manner. The appellant was given every opportunity to respond to the issues and to put his case". The Board went on to refer to the fact that the plaintiff had been clearly made aware of the allegations against him. 115 It is in the light of such findings that the Board's ultimate conclusion that State Rail's decision to dismiss was not unjust takes its meaning, that is to say, that the decision had been arrived at in a just manner, having regard to the Board's conclusions as to what was termed "due process" and to relevant procedural fairness issues. 116 The issue as to whether or not the Board's decision was proportionate or disproportionate to the gravity of the misconduct in respect of which the employer (SRA) acted is relevant to an assessment as to whether its decision was reasonable or, as it found "not … unreasonable". 117 The test of reasonableness applied by the Board was, in my opinion, an appropriate one to apply in evaluating State Rail's ultimate conclusion and decision. That test necessarily embraced consideration of concepts of validity or justification in SRA decision-making leading to dismissal. Neither the 2000 Regulation nor the Transport Appeal Boards Act precludes that as the appropriate test. The test of reasonableness represents a broad one, which enables employees to rely upon matters of either procedure and substance or both in challenging an employer's decision to terminate. 118 In approaching the issue as to whether the decision to dismiss was valid, or more particularly, reasonable or otherwise, the Board was required to consider the gravity of the misconduct in its evaluation of State Rail's decision. 119 Section 23(1) of the Transport Appeal Boards Act simply provides that the Board may decide to allow or disallow an appeal or make such other decision in respect of it as it thinks fit and does not prescribe or limit the basis upon which a Board may reach such a decision. 120 The plaintiff's contention was that the penultimate paragraph of the Board's decision demonstrated that the first defendant reasoned that once it had concluded that the events as alleged by Ms. Bains occurred, then it automatically followed that the plaintiff's dismissal was not unjust or unreasonable and the appeal should be disallowed. In this respect, it was contended that there was no indication that the first defendant had regard to the protective nature of its jurisdiction, or matters that were relevant to its exercise of that jurisdiction - the question of whether the dismissal was unjust or unreasonable was not the question which the first defendant was required to determine. 121 In light of my conclusion as to the nature of the disciplinary action taken by the SRA and the nature of the appeal process before the Board, it follows that I do not accept the contention that the Board was not entitled to consider whether the punishment of dismissal was just and reasonable. 122 In making a judgment as to that matter, the question then arose as to whether or not the Board erred in failing to consider matters such as the length of service, promotion, references and the other matters to which I have referred. The transcript of the appeal proceedings before the Board indicates that the matter of penalty was only addressed in the briefest of terms with State Rail submitting that dismissal was the appropriate penalty and that matters such as length of service, the absence of findings of serious misconduct in the past were not factors which, in any way, mitigated the seriousness of the allegations. Additionally, emphasis was placed upon the aggravating circumstances which were said to establish the gravity of the misconduct. 123 The extremely brief submission made on behalf of the plaintiff on the question of penalty was followed by the plaintiff's representative handing up a number of character references. There was no elaboration on the submission as to penalty. 124 In matters involving sexual harassment of the kind here in question, matters relevant to the inquiry as to whether termination was justified, appropriate or reasonable included:-