G v H

• offensive, humiliating, upsetting or intimidating;

• based on one or more of the grounds listed in s.4.6.1 above (which includes the ground of "sex" ). 11 Paragraph 4.6.3 also contains examples of "Types of Harassment". In particular, it specifies that some forms of verbal harassment may include:- "• sexual or suggestive remarks;

• … • repeated questions about an individuals personal life; • the use of language that is not suitable or acceptable in the workplace." 12 The provision also deals with certain forms of physical harassment, and these may include:- "Unnecessary physical contact (eg., pinching, brushing up against a person, touching, kissing, hugging a person against their will) …" 13 The hearing of the proceedings before the Transport Appeal Board commenced on 4 May 2004 and continued on 11 May 2004. On the first of those days, evidence was taken from the following:-

(b) Mr. Lloyd Jamsek, Area Manager at Blacktown Station and subsequently Customer Service Division employee;

(c) Ms. Marie Worsley, Harris Park Station employee;

(d) Ms. Michelle Morgan, Grade 1 Signaller employed by RailCorp;

(e) Jodie Lee Bains, employee (CSA 1) employed by RailCorp. 14 The plaintiff gave evidence on the second day of the hearing and the decision of the Board was, as earlier indicated, made on 26 May 2004.

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.

Plaintiff's contentions 20 In the plaintiff's written contentions, it is observed (paragraph 5) that the "Decision" included two key findings:- "(a) the Board was satisfied that the investigation followed due process and was carried out in a professional and fair manner." 21 The plaintiff's counsel states that there is no challenge made by the plaintiff to that finding:- "(b) the Board finds that, on the balance of probability, the events of 13 October 2003, as alleged by Ms. Jodie Bains, did occur …" 22 The plaintiff contends that this latter finding involved an error of law on the face of the record and further, that the finding was so unreasonable that it offended against the "irrationality" ground of review: Associated Provincial Picture Houses Limited v. Wendsbury Corporation (1948) 1 KB 223. 23 The plaintiff further contends that the alleged erroneous finding of fact meant that the ultimate determination of the first defendant to disallow the appeal must be set aside. 24 In addition to the above contentions, the plaintiff further asserts that "the decision" involved a jurisdictional error by reason of the fact that the first defendant asked itself the wrong question, and failed to have regard to relevant matters. Each of these conditions are considered below.

The complainant 25 Ms. Bains commenced employment with State Rail/RailCorp on 8 September 2003. She undertook a four week training course after which she commenced duties at Clyde Station as a Customer Service Attendant (CSA) on 13 October 2003. On that date, she commenced duties at 2.00 pm and took a meal break at 6.10 pm. She claimed that she had little contact with the plaintiff until 5.00 pm. She had not previously worked with him. 26 On Monday 13 October 2003, Ms. Bains was rostered to work, the shift commencing at 2.00 pm and concluding at 10.00 pm at Clyde Station to replace another CSA who was on sick leave. The plaintiff was the Duty Manager that afternoon. He was rostered to work a 1.30 pm to 9.30 pm shift. 27 On 14 October 2003, Ms. Bains contacted Mr. Lloyd Jamsek, Area Manager, West Stations regarding an alleged incident involving sexual harassment by the plaintiff, said to have occurred on 13 October 2003.

The complaint 28 On 15 October 2003, Ms. Bains wrote to Mr. Jamsek and Ms. Helen Dalton, HR Manager for Stations, setting out a half page account of the alleged harassment. According to a hand written note, that document was received by the employer on 16 October 2003 at 10.30 am. It concludes by stating that the details of individual statements allegedly made by the plaintiff would be supplied in an interview.

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.

Proceedings before the Transport Appeal Board 38 Clause 4 of the State Owned Corporations Regulation 2003 authorises a transport corporation to impose one or other of the punishments in disciplinary proceedings therein set out and which includes (e) dismissal. Clause 9 of the Regulation deals with disciplinary appeals and provides that a transport corporation officer as defined may appeal to a Transport Appeal Board against a decision of the Transport Corporation to impose a punishment referred to in Clause 4(1)(b) to (e) and provides in Clause 9(2) that the Transport Appeal Boards Act 1980 applies to an appeal under that clause in the same way that it applies to a disciplinary appeal under the Transport Administration (Staff) Regulation 2000. 39 Accordingly, the statutory authority for the decision by (then) RailCorp (as distinct from State Rail) dismissing the plaintiff is to be found in the State Owned Corporations Regulation 2003 which regulation commenced on 1 January 2004.

The decision of RailCorp to dismiss 40 The final decision of RailCorp was, as earlier noted, conveyed by letter dated 20 February 2004 written by the General Manager Stations on behalf of the Authority. It confirmed the particulars of breach in terms recorded in paragraph 7 above and contended there had been a breach of the Code in respect of the requirements to:-

• observe legislation and policies, in particular the Anti-Discrimination and Harassment Policy ; and

• act in the best interests of State Rail and its customers . 41 The letter went on to state that, given the seriousness of the incidents, that a decision was made to dismiss the plaintiff effective from 20 February 2004. 42 The letter advised the plaintiff of his rights of appeal to a Transport Appeal Board pursuant to the Transport Administration (Staff) Regulation 2000. 43 The constitution and functions of Transport Appeal Boards are governed by the Transport Appeal Boards Act 1980. Specifically, a Board, the Chairperson, a Vice-Chairperson and the members shall have and may exercise the functions conferred upon it or them by or under that Act, the Transport Administration Act 1988 or any other Act: s.8. Part 3 of the Transport Appeal Boards Act, entitled "appeals" prescribes procedural matters for the conduct of disciplinary appeals. Section 16(2) of the Act provides that nothing in s.16(1) removes from an appellant or any other person the onus of proving any ground on which the appellant or person relies. 44 Section 23, decisions on appeals, provides in s.23(1) that a Board may, in relation to an appeal, decide to allow or disallow the appeal or make such other decision with respect to the appeal, as it thinks fit. 45 The State Owned Corporations Regulation 2003 made pursuant to the State Owned Corporations Act 1989, authorises an appeal to a Transport Appeal Board constituted under the Transport Appeal Boards Act 1980: clause 9(2) of that Regulation. A transport corporation is defined as including RailCorp: clause 3(1).

The decision of the Board 46 The Board was comprised of a Chairman and two Board members. The decision given on 26 May 2004 recounts the history of the matter and summarised the evidence given before it. In particular, the evidence of Ms. Bains is traversed in the decision and particular observations made in relation to the following matters which went to corroboration of Ms. Bains' complaint:-

• The delay of one day in reporting the matter to her husband and the explanation given for the delay.

• The inquiry made by Ms. Bains on 14 October 2003 of Ms. Morgan as to the procedure for making a complaint.

• The complaint of sexual harassment made to Mr. Jamsek on 14 October 2003.

• The alleged reporting of the sexual harassment to a friend, Ricky, who was not called to give evidence. 47 The Board also referred to evidence as to any motive or possible involvement which the complainant could have had associated in some way with certain workplace difficulties in evaluating the genuineness of her complaint. It concluded that there was no such motive or involvement. 48 Given the nature of the conduct alleged and the absence of any third party witness, the Board was, of course, correct in focusing attention on the question of corroboration. It was additionally of importance for it in evaluating Ms. Bains' evidence to have regard to the fact that she had worked at Clyde Station on the day in question when the alleged harassment occurred, a fact relevant to her credibility together with the absence of any apparent motive in falsely promoting allegations of such a serious character.

Grounds for declaration and other relief 49 Mr. P. Moorehouse of counsel who appeared on behalf of the plaintiff contended that the Board erred in law in making a finding that "… on the balance of probability, the events of 13 October 2003, as alleged by Ms. Jodie Bains, did occur …". 50 The argument presented on behalf of the plaintiff in this respect may be summarised in the following terms:-

• Given the serious nature of the allegations against the plaintiff and the serious consequences that would flow from any decision adverse to him, the Board was required to be comfortably satisfied by clear and cogent evidence that the conduct alleged actually occurred. The Board in deciding the issue, it was contended, was required to apply the standard enunciated by the High Court in Briginshaw v. Briginshaw (1938) 60 CLR 336.

• The plaintiff contends that the Board failed to apply this standard and that it accordingly committed an error of law in arriving at the conclusion that it did. 51 The second ground argued on behalf of the plaintiff was that the Board posed for itself a wrong question and failed to have regard to relevant matters. In developing this ground, it was contended that:-

• A disciplinary appeal before the Board was "protective" .

• The question for it to pose in its consideration of the appeal was whether it was in the public interest for the plaintiff to be allowed to continue as an employee of the second defendant.

• The first defendant was not required to consider whether the dismissal was unjust or unreasonable. 52 In support of this second ground, the plaintiff contended that, by analogy with the disciplinary appeal function of the Government and Related Employees Appeal Tribunal, the correct question was not whether the dismissal was just or unreasonable, but as set out above. 53 The plaintiff contended that, by reason of the protective nature of the jurisdiction, the Board should have had regard to whether he was able to render valuable service to the second defendant in the future, the likelihood of similar conduct and whether, in light of the finding as to his conduct, he was a fit and proper person to continue in that employment. In this respect, amongst other matters, the plaintiff's 20 year employment and previous record were said to be significant matters that had to be brought into account. 54 In summary, the plaintiff contended that the Board did not have regard to the protective nature of its jurisdiction or consider the matters referred to in the preceding paragraph which were relevant to the exercise of the jurisdiction in its evaluation.

The first ground of challenge: the Briginshaw standard not applied and unreasonableness 55 In the plaintiff's written submissions, it is pointed out that there is no statement by the Board in its decision of any actual belief of the occurrence of the alleged sexual harassment, but rather what was contended a mechanical weighing of the probabilities. It is said that the approach of the Board evidences a failure to apply the Briginshaw standard. 56 The plaintiff additionally contends that the finding that the events as alleged by Ms. Bains did occur were so unreasonable that it cannot stand, having regard in particular to a number of factual matters to which I have already adverted and to which I will make further reference later in this judgment. 57 The Board's conclusions are expressed in the following terms (p.12):- "The Board concluded that the most credible version of the events of 13 October 2003 was that put by Ms. Bains. The Board considered Ms. Bains had no reasonable motivation to concoct the episode. She was a new employee on her first day at Clyde. She had no prior knowledge or contact with the staff at Clyde and had no involvement in the pre-existing staff disputes. Her demeanour while giving oral evidence fortifies the Board's view that it is not credible to contend she fabricated the whole scenario. The Board finds that, on the balance of probability, the events of 13 October 2003, as alleged by Ms. Jodie Bains, did occur and that State Rail's decision to dismiss Mr. Duhbihur was not unjust or unreasonable." 58 On that basis, the Board disallowed the appeal.

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:-

(b) corroboration of the complaint of sexual harassment;

(c) consistency and lack of consistency in evidence;

(d) an evaluation of delay in reporting the harassment to the complainant's husband;

(e) the basis or lack of basis for the plaintiff's perception of a conspiracy against him;

(f) the investigatory process employed and the need for due process. 72 Whilst clearly it is preferable for a tribunal of fact to state the basis of its approach to fact-finding where allegations of illegality or serious impropriety are involved, it is also evident from the Board's decision that it was mindful of the fact that it was required to closely evaluate the conduct, including any possible reasons and motivation for concoction by the complainant, Ms. Bains. The Board identified relevant factors which told against motivation to mislead or deceive and its emphasis upon the lack of evidence to support a contention of fabrication by her makes it apparent that the Board was conscious of the proposition that serious allegations are often easy to make but can be difficult to refute. I accordingly reject the submission made on behalf of the plaintiff that the Board adopted a mechanical approach to fact-finding but rather I consider its members demonstrated an appreciation that cogent proof in line with what has been termed the Briginshaw test was required before a decision could be reached and proceeded accordingly.

Contention as to unreasonableness 73 The plaintiff contends that the finding that events as alleged by Ms. Bains did occur was so unreasonable that it cannot not stand. In support of this contention, seven specific matters were identified. These included:-

(a) Ms. Bains oral evidence of the alleged harassment was given before the Board by her simply reading her previous statement.

(b) Inconsistency as to precisely when the alleged statements were made (ie., during the meal break or after it or from the meal break until she left work).

(c) The failure of the employer to obtain a statement from "Ricky" and the adequacy of the explanation for him failing to give evidence.

(d) The train driver's observation (Mr. Canning) that he did not detect any animosity, tension or hear any conversation of a sexual nature.

(e) An inconsistency in relation to evidence as to whether Ms. Bains smoked or did not smoke.

(f) The likelihood of Ms. Bains remaining in the meal room with repeated statements being made, as alleged.

(g) The need for cogent evidence to comfortably satisfy the Board as to the truth of Ms. Bains' allegations. 74 I have examined the transcript of evidence in order to evaluate the significance or otherwise to be attached to each of these matters taken both individually and collectively. I consider that of the above matters, the following require specific comment:-

• The manner in which Ms. Bains' evidence was given before the Board.

• The absence of a statement or evidence from Ms. Bains' friend "Ricky" .

• the likelihood of Ms. Bains remaining at work and in the meal room with the plaintiff repeatedly making the comments alleged.

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.

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.

The likelihood of Ms. Bains remaining whilst repeated offensive statements were made 82 The question of the likelihood of Ms. Bains remaining at work and in the meal room whilst comments of an offensive nature persisted for some time does raise a question as to why Ms. Bains would have continued to endure such offensive conduct. However, the fact remains that this was the complainant's first day at work after her training period and she did express concern that her job may be at risk. She was specifically asked why she felt that she may lose her job, to which she replied, "if I walk off the premises", she though she may lose her job. 83 In conclusion on this aspect of the matter, I do not consider that the finding by the Board adverse to the plaintiff was so unreasonable that it establishes the "irrationality" ground of review asserted.

The second ground of challenge: whether the Tribunal posed for itself the wrong question: failure to have regard to relevant matters 84 The plaintiff's submission on this point was founded, in particular, upon the decision of the New South Wales Court of Appeal in Commissioner of Police v. Donlan (unreported, 8 August 1995), a decision applied by a Full Bench of the Australian Federal Court in Duckworth v. State Rail Authority of NSW (2002) 119 IR 360. 85 The plaintiff's attack is directed to the concluding paragraphs of the Board's decision as follows:- "The Board finds, that, on the balance of probability, the events of 13 October 2003, as alleged by Ms. Jodie Bains, did occur and that State Rail's decision to dismiss Mr. Duhbihur was not unjust or unreasonable. The Board allows the appeal." 86 The essential steps in the plaintiff's argument are as follows:-

• The Board's jurisdiction in hearing a disciplinary appeal is, as a matter of law, a protective one in nature (see below).

• By reason of that fact, the correct question for the Board to pose was not whether the employer's decision was just and reasonable , but whether it was in the public interest for the plaintiff to be allowed to continue as an employee of the second defendant .

• In the exercise of its protective jurisdiction, the Board should have had regard to whether the plaintiff was able to render valuable service to the second defendant in the future, the likelihood of similar conduct and whether in light of the finding as to his conduct he was a fit and proper person to continue in that employment.

• There is no indication in the decision of the Board that it had regard to the protective nature of its jurisdiction or considered matters relevant to the question that was required to be considered by it.

• The Board's decision demonstrates that it 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.

• The failure of the Board to ask itself the correct question amounted to jurisdictional error: Minister for Immigration and Multicultural Affairs v. Yusuf (2001) 206 CLR 323, 351.

• Failure to have regard to matters relevant to what is contended was the correct or proper question amounted to a failure by the Board to have regard to relevant matters which in itself constituted jurisdictional error: Yusuf (supra) at 351. 87 The alternative argument of the plaintiff was that, if the Court did not accept that the Board's functions in hearing the plaintiff's appeal was essentially protective, then it was submitted that matters such as the plaintiff's previous record, his progress and promotion in employment, the opinion of others, the absence of previous complaints and the references tendered were relevant to the decision required to be made by the Board. The failure to have regard to such matters, it is contended, constituted jurisdictional error

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:-

(a) First, the basis for determining when a disciplinary jurisdiction is a jurisdiction of a protective nature.

(b) Second, the precise nature of the disciplinary proceedings arising under the Transport Administration (Staff) Regulation 2000 (NSW) . 93 In relation to the first of the two issues, it is necessary to identify and have regard to the basis upon which a disciplinary jurisdiction was determined to exist in cases such as Evatt (supra), Hardcastle (supra) and Donlan (supra). I will examine each in turn:-

(i) New South Wales Bar Association v. Evatt 94 The Full Court of the High Court determined that the proved facts established misconduct of such gravity as demonstrated unfitness of the respondent to be a member of the Bar. The Court referred to the nature of the jurisdiction exercised by the Supreme Court, in particular, by reference to what was stated in Clyne v. New South Wales Bar Association (1960) 104 CLR 186 where, at 202, the High Court made it clear that the jurisdiction was protective in the sense that an order is made "… from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege". 95 It is plain that in both Evatt and Clyne the High Court was concerned, in the interests of barristers' clients, with professional standards and the privileges held by members of the Bar and that these were central to the jurisdiction which was designed and intended both to safeguard the public interest and to maintain the standards of the profession as a whole.

(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:-

• To appoint persons to vacant positions or appoint by way of transfer etc. (clauses 5 and 7).

• To impose any one or more of the punishments in disciplinary proceedings against an SRA officer (clause 13 and clause 17(a) "a decision of the SRA to impose a punishment" ).

• To suspend an officer. 106 There is, as earlier stated, in the case of the SRA, a statutory warrant to impose disciplinary action which is characterised as punishment. That chosen term, according to the Shorter Oxford English Dictionary imports the notion of suffering for an offence, the infliction of penalty as a retribution or caution against further misconduct. There is not to be found either within the last mentioned Regulation or the Transport Appeal Boards Act 1980 in their application to the plaintiff as a railway station duty manager, a basis for importing a protective jurisdiction of the kind and for the public purpose that existed in the cases of Evatt, Clyne, Hardcastle or Donlan. That is not to say that there could not exist a protective jurisdiction that is exercisable by the Board with respect to a limited class of employees to whom the Transport Administration (Staff) Regulation 2000 applies (eg., officeholders who are subject to fiduciary-like obligations). 107 It follows that the jurisdiction of the Board is not, at least with respect to the plaintiff and a large range of other employees, a protective one. The conclusion in that respect means that the test or question for the Board in this matter was not whether it was in the public interest for the plaintiff to be allowed to continue as an employee of the SRA as claimed. There remains, however, two remaining issues:-

(a) the first is whether the finding expressed by the Board that the events as alleged by Ms. Bains did in fact occur and its conclusion that State Rail's decision to dismiss the plaintiff "was not unjust or unreasonable" , were in accordance with the findings/conclusions it was required, by law, to make;

(b) whether, as contended by the plaintiff, the matters of the plaintiff's previous record, his progress and promotion in employment and the opinion of others, the absence of complaints and the references tendered were relevant and required to be taken into account by the Board in making its decision. 108 As to (a), the Board was required to form its own conclusion on whether the allegations of Ms. Bains were substantiated by the evidence before it. The evidence enabled the Board to reach the conclusion that it did in that respect. There is, for reasons expressed earlier, no basis for the submission that either jurisdictional or legal error affected that finding. 109 I have earlier analysed the plaintiff's contentions as to "irrationality" or Wendsbury unreasonableness in relation to the Board's finding and decision in holding the allegations to have been substantiated and there is, accordingly, no need to deal further with that issue. 110 The more significant issue was whether the Board was correct in expressing the conclusion that the decision to dismiss the plaintiff was "not unjust or unreasonable". 111 The penultimate paragraph of the Board's decision essentially expresses a finding reached by the Board, on the balance of probability, that the events as alleged in fact occurred and a conclusion that the decision to dismiss was not unjust or unreasonable. In relation to the latter conclusion, the essential question, as Hislop, J. stated in State Rail Authority of NSW v. Transport Appeal Board & Anor (supra) was whether the degree of misconduct justified dismissal and that, as the High Court in Blythe Chemicals Limited v. Bushnell (1933) 49 CLR 66 at 72 observed (per Starke and Evatt, JJ.) was essentially a question of fact. That question is to be determined by reference to:-

• The conduct of the employee established on the evidence.

• The extent to which such conduct was incompatible with the plaintiff's duties or obligations as a duty manager.

• 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:-

(a) the content of the plaintiff's offending statements;

(b) the persistent nature of his conduct on the day in question;

(c) the relative vulnerability of the complainant having regard to the employment position occupied by the plaintiff;

(d) the absence of mitigating circumstances attending the plaintiff's conduct as found by the Board;

(e) the responsibility of the employer to provide a work environment free from sexual harassment in accordance with its Code of Workplace Standards. 125 It was open to the employer and to the Board on appeal to determine that these matters were sufficient to justify the decision to dismiss the plaintiff from his employment. I do not consider that jurisdictional or legal error has been established in any failure by the Board to consider particular factual matters which it was submitted the Board was required to evaluate. In any event, even if such matters were to be taken into account, there remained a valid basis upon which both the employer and the Board could have, according to law, arrived at the decision that they respectively made. 126 I am accordingly of the opinion that the application must be dismissed. 127 I will provide the parties with the opportunity to be heard on any question as to costs. I accordingly grant leave to apply with respect to costs. **********

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