George Maitland v Royal Blind Society of New South Wales

Industrial Relations Commission (NSW)|2004-11-24|Before: Boland J, Backman J, Commissioner J

CITATION : George Maitland v Royal Blind Society of New South Wales [2004] NSWIRComm 368 APPELLANT George Ross Maitland PARTIES : RESPONDENT Royal Blind Society of New South Wales FILE NUMBER: IRC 4472 of 2004 CORAM: Boland J; Backman J; Macdonald C Appeal - Application for leave to appeal and appeal - Unfair dismissal - Appellant dismissed for misconduct involving harassment of fellow employee - Dismissal found not to be harsh, unreasonable or unjust at first instance - Whether error of fact or law - Whether Commissioner properly exercised her discretion - Credibility of witnesses - Conflict of evidence - Whether appellant accorded procedural fairness - Whether reason given for dismissal - Whether Commissioner took into account appellant's personal and economic situation in finding dismissal not harsh - Whether reinstatement or re-employment impracticable - Leave to appeal granted - Appeal upheld - Orders that appellant be re-employed on condition CATCHWORDS : Unfair dismissal - Appeal - Application for leave to appeal and appeal - Appellant dismissed for misconduct involving harassment of fellow employee - Dismissal found not to be harsh, unreasonable or unjust at first instance - Whether error of fact or law - Whether Commissioner properly exercised her discretion - Credibility of witnesses - Conflict of evidence - Whether appellant accorded procedural fairness - Whether reason given for dismissal - Whether Commissioner took into account appellant's personal and economic situation in finding dismissal not harsh - Whether reinstatement or re-employment impracticable - Leave to appeal granted - Appeal upheld - Orders that appellant be re-employed on condition LEGISLATION CITED : Industrial Relations Act 1996 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Devries v Australian National Railways Commission (1993) 177 CLR 472 CASES CITED : Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 Franklins Ltd v Webb (1996) 72 IR 257 Outboard World Pty Ltd t/a Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 Wilson v Department of Education and Training (2000) 100 IR 1 HEARING DATES: 11/24/2004 DATE OF JUDGMENT: 12/08/2004

APPELLANT Mr G R Maitland in Person

LEGAL REPRESENTATIVES: RESPONDENT Agent: Mr D R Graham Ms K Purcell Royal Blind Society

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: BOLAND J BACKMAN J MACDONALD C Wednesday 8 December 2004

GEORGE ROSS MAITLAND v ROYAL BLIND SOCIETY OF NEW SOUTH WALES

Application by George Ross Maitland for leave to appeal and appeal against a decision of Commissioner McLeay given on 9 July 2004 in matter no. IRC 6469 of 2003 DECISION OF THE COMMISSION [2004] NSWIRComm 368

1 George Ross Maitland was dismissed from his employment with the Royal Blind Society of New South Wales ("RBS") on 28 October 2003 for reasons relating to the alleged sexual harassment of a fellow employee, Ms Stephanie Kain. Mr Maitland applied for relief pursuant to s 84 of the Industrial Relations Act 1996 in relation to an alleged unfair dismissal. Conciliation of the claim was unsuccessful and following arbitration proceedings before Commissioner J McLeay, the Commissioner found that the dismissal was not harsh, unreasonable or unjust. In a decision given on 9 July 2004 McLeay C dismissed Mr Maitland's application.

2 Mr Maitland, a self-represented litigant, has applied for leave to appeal and, if leave is granted, appeals against the Commissioner's decision. It was not immediately evident from the application but it became apparent from reading Mr Maitland's submissions on the appeal that the grounds upon which Mr Maitland appeals are that: (1) He was denied procedural fairness. (2) The Commissioner did not give sufficient weight to the effect of the termination on the appellant. (3) The Commissioner erred in finding that the appellant had been requested to give a commitment to stay away from Ms Kain and in any event the appellant had given this commitment.

3 The appellant had been employed with RBS since May 1998. He had engaged in a sexual relationship with Ms Kain for some period of time. On 30 June 2003 Ms Kain indicated to Mr Maitland she wished to terminate the relationship. On being told, Mr Maitland exhibited conduct that gave rise to a concern by his employer that he may have been in a suicidal state of mind. The employer sought to render appropriate assistance.

4 Despite Ms Kain's request to end the relationship, it was asserted that Mr Maitland continued with his attention toward her and his behaviour was disruptive to the working environment. Mr Maitland contended the continuing attention was not unwelcome and that on a number of occasions subsequent to 30 June he and Ms Kain were "intimate". Ms Kain, nonetheless, sought confidential counselling with Ms Katherine Purcell, Director, Corporate Services for the respondent. On 23 July 2003 Ms Kain met with Ms Purcell and Ms Anna McCauley, Team Leader, Children's Services and expressed concern at the continued unwelcome attention from Mr Maitland. Ms Kain was advised that Mr Maitland's behaviour could be regarded as harassment and that she should consider making a formal complaint. Ms Kain indicated she would prefer to handle the situation herself.

5 Ms Kain met again with Ms Purcell on 3 September 2003 to "discuss the ongoing situation with Maitland". Ms Purcell recommended to Ms Kain that she should put in writing to Mr Maitland that his attention was unwelcome.

6 Mr Maitland gave evidence to the effect that on 3 September 2003 he visited Ms Kain's office and renewed a request he made earlier in the year that she pay back money he alleged she had taken from the employer by way of misuse of travel expenses (This allegation was later investigated and Ms Kain was found to have breached the employer's travel policy. She was disciplined and required to repay $147.40 to RBS). Mr Maitland said in his evidence that Ms Kain had threatened that if he were to report her for the misuse of funds she would say he had sexually harassed her. He also stated that Ms Kain had said to him it would be in his best interests if he were to leave the workplace. Shortly after this conversation Ms Kain emailed Mr Maitland and stated "It is in our best interests to not have contact so please do not call me, email me or come to my office." Mr Maitland asserted that on the same day he replied to Ms Kain's email in the following terms: I agree with your email and I expect the same from you and for you not to say anything that is not true about me as I will do the same for you and please do not contact my girlfriend tracy. I am not going to Carol about anything as I know you only did them for love.

7 Ms Kain said in her evidence before McLeay C that she did not recall seeing Mr Maitland's reply and objection was taken to its tender in the proceedings. Mr Maitland's representative did not press the tender and it did not find its way into evidence. The email was, nevertheless, part of the appeal book.

8 On 16 September 2003 Mr Maitland approached Ms Stephanie Peebles, the respondent's Human Resources Manager, concerning the misuse of funds allegation as well as an allegation against Ms Kain of workplace harassment involving "repeated unwelcome and solicited behaviour". The allegations referred to a sexual relationship between Mr Maitland and Ms Kain that had been continuing, Mr Maitland said, for a period of two years.

9 On 19 September 2003 Ms Peebles advised Ms Purcell of Mr Maitland's allegations regarding Ms Kain's misuse of funds and that she, Ms Peebles, was advising the respondent's Chief Executive Officer, Mr John Landau, and relevant directors. Ms Purcell subsequently spoke to Mr Landau and advised him that she had been confidentially counselling Ms Kain regarding her concerns with Mr Maitland's continued unwelcome attention. The investigation referred to earlier into the misuse of funds was undertaken by the respondent's operations director, Ms Carol Ireland. On 23 September 2003 Mr Landau met with Mr Maitland. There were no other persons present at the meeting.

10 Based on information he said he had been provided with by Ms Ireland, Ms Purcell and Ms Peebles and his own observations, Mr Landau said to Mr Maitland that he understood that Ms Kain had told Mr Maitland she no longer wanted any contact with him. Mr Landau claimed he said to the appellant as Chief Executive Officer he had an obligation to ensure Ms Kain enjoyed a safe workplace free of harassment. Mr Landau said he requested that Mr Maitland give an undertaking that he would not contact or attempt to contact Ms Kain at the workplace. Mr Landau said Mr Maitland declined to do so on the ground that he was not harassing Ms Kain and, indeed, that the opposite was true - that Ms Kain was harassing Mr Maitland. Mr Landau asked Mr Maitland to consider his position overnight and to inform Mr Landau the following day whether he was willing to give the undertaking. He said he told Mr Maitland he was strongly of the view that he "could not tolerate a situation continuing where one employee felt they were being approached or attempted to be contacted by another … and those approaches were unwanted or unnecessary in the course of business". 11 Mr Landau said he did not accuse Mr Maitland of harassment and merely sought the undertaking referred to above. Mr Maitland said that in the meeting Mr Landau was aggressive, accused Mr Maitland of being litigious and pressured him to resign.

12 Mr Landau met again with Mr Maitland on 24 September 2003 with no other persons present. Mr Landau said Mr Maitland maintained his position that he had done nothing wrong and refused to give the undertaking sought by Mr Landau. Mr Maitland said in his evidence that he was asked to resign "or be fired for my reporting of Ms Kain's misuse of funds". Later that day Mr Maitland was given a letter relevantly in the following terms: I refer to our discussion yesterday on the disclosures you have made about Stephanie Kain. The disclosures you have made about the relationship since it was broken off by Stephanie, in the relatively public arena of the RBS workplace, have been of great concern to all who have been informed. I have seen a copy of the confidential memorandum provided to you by Stephanie Peebles on 23 September 2003, which sets out some of the details of the relationship. I am also concerned that you are, by your own admission, obsessed with Miss Kain to the point that your behaviour of informing other employees of the relationship constitutes sexual harassment. Further, I understand that your behaviour outside the workplace towards Ms Kain may be defined as "stalking" and may lead to criminal charges if continued. As Ms Peebles has informed you, your allegations of inappropriate funds usage by Ms Kain is under investigation and any action considered necessary will be addressed with Ms Kain, in accordance with the RBS Counselling, Warning and Dismissal Procedure. With no guarantee from you that you will cease your retaliatory behaviour towards Ms Kain, a matter that I find unacceptable, I am proposing to end your employment. I have therefore directed that you be stood down on full pay immediately, for the reason of your harassment of Ms Kain. You are, of course able to provide reasons to me as to why you should not be dismissed. If you wish to respond, your response must be in writing and delivered to me by 4.00pm on 26 September 2003. My decision on the proposal will be made after 4.00pm on 26 September and will be based upon all available information that I have before me, whether or not you provide a response.

13 As it may be seen, the letter states, "With no guarantee from you that you will cease your retaliatory behaviour towards Ms Kain … I am proposing to end your employment". Mr Landau said in his evidence the reference to "retaliatory behaviour" was a reference to Mr Maitland's "unwillingness to provide an undertaking not to approach Ms Cain in the workplace or to contact her".

14 On 26 September 2003 Mr Maitland's solicitor wrote to the respondent stating:

· The appellant denied being obsessed with Ms Kain and asserted the opposite was true. · The appellant denied any acts of sexual harassment and denied stalking Ms Kain. · The appellant denied any conduct justifying the termination of his employment.

15 After a series of correspondence between the applicant's solicitor and the respondent's adviser and the applicant's union and the respondent's adviser, on 29 October 2003 Mr Landau wrote to Mr Maitland in the following terms: I refer to my letter to you dated 24 September 2003 and the proposal to end your employment with Royal Blind Society. You were given an opportunity to respond to the proposition and those acting on your behalf have sought extensions to respond, to the point that it is now more than a month after the original time for responding. No information has been provided to me to convince me to alter my intention. Enclosed is a copy of a facsimile sent to the United Services Union yesterday which is self explanatory and which was authorised yesterday. As that communication states, I am ending your employment effective from 28 October 2003 on the grounds of misconduct over your unwanted attention directed at Ms Kain.

16 Following a comprehensive review of the evidence the Commissioner made a number of relevant findings in her decision of 9 July 2004 that may be summarised as follows: (a) Mr Maitland and Ms Kain had been engaged in a sexual relationship for an indeterminate period. (b) Mr Maitland's behaviour towards Ms Kain was "obsessive". (c) Ms Kain had raised the problem of Mr Maitland's unwanted attention with Ms Purcell and had asked that the discussions between the two remain confidential. (d) Ms Peebles had been unaware of the relationship between Mr Maitland and Ms Kain until she was told by Mr Maitland on 16 September 2003. (e) Mr Maitland's behaviour on 30 June 2003 was consistent with a suicide threat. Mr Maitland was in a serious emotional state. (f) Ms Kain met with Mr Maitland on 23 July; it was a consensual meeting. They met again on 11 August but it was uncertain whether this had been arranged or was by chance. Mr Maitland's claim in a letter of 20 October that he and Ms Kain were "still intimately involved" between 30 June and 23 July was never substantiated. (g) There were sound reasons for the employer to believe Ms Kain and not Mr Maitland. Ms Kain's concerns could be accepted at face value. (h) Mr Maitland acted inappropriately, to the extent it could be construed as harassment, in informing persons in the workplace about his relationship with Ms Kain. (i) Mr Maitland failed to respond to the request by Mr Landau that he commit to staying away from Ms Kain at the workplace. The request was appropriate given the employer's obligation to provide a safe workplace free of harassment. (j) The request by the respondent that Mr Maitland give a commitment to stay away from Ms Kain at the workplace was a lawful and reasonable direction. Mr Maitland's disregard for the direction was wilful. (k) The stand down period that followed the meetings on 23 and 24 September 2003 allowed Mr Maitland to consider his options and to seek advice. Mr Maitland had ample opportunity to agree to act in accordance with the employer's requirement to give an undertaking not to approach Ms Kain at work without admitting any fault. (l) The evidence that Ms Kain did not want contact with Mr Maitland was clear and unambiguous. (m) There was no evidence to support a finding that Mr Maitland had been harassed and threatened by Ms Kain. It was reasonable that the employer did not follow up Mr Maitland's complaints of harassment to the same extent it did in respect of Ms Kain's complaints. (n) Mr Maitland was aware that he had a right to have a witness present at the meetings with Mr Landau. (o) Mr Landau was entitled to rely on reports of his senior staff and it was not necessary for him to personally investigate the matter. (q) The reference to retaliatory behaviour in the letter of 24 September 2003 was in respect of Mr Maitland sending flowers and similar conduct in response to Ms Kain breaking off the relationship rather than any inference about Mr Maitland making a formal complaint about the alleged misuse of funds by Ms Kain. (r) Mr Maitland's complaint against Ms Kain and her misuse of funds was dealt with appropriately by the employer. (s) There was no procedural unfairness in respect of the employer's treatment of Mr Maitland. (t) The dismissal of Mr Maitland was not harsh, unreasonable or unjust.

17 Mr D Graham for the respondent opposed the granting of leave to appeal. He submitted the appeal did not raise matters of general significance or matters that are "substantial and important". Mr Graham contended there was no denial of procedural fairness, no error of fact or law and no failure on the Commissioner's part to properly exercise her discretion. Mr Graham submitted that a finding of fact by the Commissioner must stand unless it can be shown that the Commissioner failed to use or had palpably misused her advantage in assessing the credibility of witnesses or had acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Wilson v Department of Education and Training (2000) 100 IR 1 at 11, 12.

18 The appellant contended he was not accorded procedural fairness. In one of the grounds of appeal the appellant asserted that, contrary to the Commissioner's finding at first instance, he was not asked for a commitment that would have saved his employment if he had given it. The appellant was dismissed, according to the Commissioner, because he failed or refused to give a commitment to stay away from a fellow employee at the work place against the background of allegations of sexual harassment. That the appellant contended he had not been asked for the commitment and was dismissed in any event, raises serious issues for consideration on appeal.

19 In Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [5] the Full Bench observed: We were reminded of, and accept as supportive (but not determinative) of leave to appeal, the general industrial principle, as repeated by Dey J in Re Crown Employees (Teachers, Locality Allowance, &c) Award [1981] AR (NSW) 1017 at p 1049, "that the interests of employees are an important aspect of public interest". The same point was stated in this way, and with which we agree, by Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) [1990] 35 IR 70 at p 84: As was the case in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355, the position here is that the company has made an allegation of misconduct in summarily dismissing Mr Parsonage which could well, if left unproven, nevertheless be a stigma on Mr Parsonage which may well have implications for his future employment prospects. If misconduct indeed not be made out, then, on the approach I take, a very serious allegation against Mr Parsonage has been found to have no substance; if that be the result, then, in my view, that finding should be clearly made and published. So too, it will represent a very compelling consideration for restoring the employment relationship otherwise unlawfully severed.

20 If it be the case here that the appellant was dismissed either because he would not give a commitment to stay away from a fellow employee who it was alleged the appellant was harassing or a commitment was not sought from the appellant and he was dismissed because of the alleged harassment, such allegations being found to have no substance, then like the case in PastryCooks, if that dismissal is left to stand, the appellant will be stigmatised and a serious allegation without substance would go unchallenged.

21 Moreover, we consider that notwithstanding a thorough consideration of the matters in issue, McLeay C fell into error as to the facts and the exercise of discretion as to the credibility of witnesses. We consider the matter is of such importance that, in the public interest, leave should be granted.

Procedural fairness - whether appellant asked to give commitment not to harass

22 The first ground on which the appellant appeals is that he was denied procedural fairness in that he was not advised that "all that was required from me not to be dismissed was a commitment not to approach Ms Kain" and that he was not given the reason for his dismissal. In Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 the Full Bench considered the obligation on parties to ensure procedural fairness. At [118] the Full Bench stated: 118 This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious. We consider those observations in Humphries are apposite.

23 As to the first proposition that the appellant was denied procedural fairness in that he was not advised that "all that was required from me not to be dismissed was a commitment not to approach Ms Kain", McLeay C found that Mr Maitland was asked for a commitment that he stay away from Ms Kain at the workplace and that Mr Maitland did not respond to what was a lawful and reasonable direction. Further, that Mr Maitland was given ample time to consider his position in relation to the requested undertaking.

24 In making this finding, the Commissioner obviously preferred the evidence of Mr Landau to that of Mr Maitland and what apparently the Commissioner considered to be the corroborative evidence of Ms Purcell, Ms Peebles, Ms Kain and Ms McCauley. We consider, however, that McLeay C placed too much weight on Mr Landau's evidence and did not give sufficient consideration to other contemporaneous evidence and the inferences that could be drawn from it.

25 The Commissioner found that Mr Maitland failed to respond to a request on 23 September 2003 by Mr Landau that he commit to staying away from Ms Kain at the workplace and that he had been dismissed because of that failure. At [56] of her decision McLeay C stated: In Mr Maitland's case, the respondent was not so much warning him against repeating behaviour as seeking a commitment that he would not behave in a certain way. According to Mr Landau, there was no finding that Mr Maitland had acted inappropriately in the past. He was simply asked to stay away from Ms Kain in the workplace. Considering the respondent's legal obligations to provide a safe workplace, free of harassment, it was appropriate to seek such a commitment.

26 We do not accept the issue was simply that Mr Maitland refused to give such a commitment that he stay away from Ms Kain at the workplace and that his refusal to do so was the sole reason for his dismissal.

27 We note, firstly, that contrary to the respondent's own policy there were no witnesses present at the meetings between Mr Landau and Mr Maitland on 23 and 24 September 2003 and there were no notes taken by Mr Landau of the meeting in evidence. This is notwithstanding that after the first meeting Mr Landau had decided to take the serious step that if Mr Maitland did not give him the commitment he said he was seeking, he intended to stand him down and that he was to provide reasons why he should not be dismissed. Moreover, we note Ms Purcell's evidence that even before Mr Landau met with Mr Maitland on 23 September Mr Landau had formed an intention to stand down Mr Maitland "depending on how the conversation of the meeting went." 28 Mr Landau said in his oral evidence that "the basis on which Mr Maitland was subsequently dismissed was not on actions he had undertaken or alleged to have undertaken in the past but rather on a failure to provide a commitment as to actions he would not undertake in the future." The contemporaneous evidence, however, supports the conclusion that Mr Landau had formed the view that Mr Maitland was guilty of sexual harassment. Mr Landau's letter of 24 September 2004 referred to: Mr Maitland's behaviour of " informing other employees of the relationship constitutes sexual harassment . Further, I understand that your behaviour outside the workplace towards Ms Kain may be defined as "stalking" and may lead to criminal charges if continued" (our emphasis).

29 The letter also directed that Mr Maitland "be stood down on full pay immediately, for the reason of your harassment of Ms Kain" (our emphasis).

30 In its reply to the applicant's application for relief filed with the Industrial Registry the respondent stated: The difficulty confronting the respondent was the unrepentant nature of the applicant once the respondent intervened in the obvious harassment of Ms Kain by the Applicant (our emphasis) .

31 In a letter dated 28 October 2003 from the respondent's agent to the General Secretary of the United Services Union, which was representing Mr Maitland at the time and in answer to a request from the General Secretary as to why Mr Maitland had been stood down, it was stated: Your member has not demonstrated any remorse for his unwelcome attention of, and behaviour towards, Ms Kain and for that reason his employment has been ended with effect from today on the ground of misconduct (our emphasis). 32 The letter from Mr Landau dismissing Mr Maitland dated 29 October 2003 stated: I am ending your employment effective from 28 October 2003 on the grounds of misconduct over your unwanted attention directed at Ms Kain (our emphasis).

33 Mr Len Norton, the respondent's finance manager, stated in his witness statement that: Subsequently, during late September, the staff were advised that George Maitland had been dismissed for sexual harassment of Stephanie Kain (our emphasis). Mr Norton was not asked any questions about this statement and did not contradict it in giving his oral evidence.

34 The contemporaneous evidence strongly supports a conclusion that the reason why the respondent stood down Mr Maitland on 24 September 2003 and subsequently dismissed him for misconduct was because it believed Mr Maitland was either guilty of sexual harassment of Ms Kain or, at the very least, was continuing to direct "unwelcome attention" towards Ms Kain after she had asked him to desist.

35 The letter of 24 September 2003 from Mr Landau to Mr Maitland, as we have already observed, stated: With no guarantee from you that you will cease your retaliatory behaviour towards Ms Kain, a matter that I find acceptable, I am proposing to end your employment.

36 It was contended by the respondent that this was to be interpreted as meaning that Mr Landau had asked for a commitment from Mr Maitland to stay away from Ms Kain but that Mr Maitland had refused. Mr Maitland maintained no such commitment was sought. The Commissioner said that she was: [S]atisfied on the evidence that the reference to retaliatory behaviour was in regard to Mr Maitland's sending of flowers and similar conduct in response to Ms Kain breaking off the relationship, rather than any inference about Mr Maitland's making a formal complaint about Mrs Kain's alleged misuse of funds.

37 Given we consider that in standing down Mr Maitland the respondent believed he was guilty of harassment and that Mr Maitland denied that was the case, the reference in the letter to no guarantee being given that Mr Maitland would cease his retaliatory behaviour towards Ms Kain was not, in our opinion, a reference to a request that had been refused by Mr Maitland that he give an undertaking to stay away from Ms Kain. Rather, we consider it was a reference to Mr Maitland denying any wrongdoing and refusing, therefore, to accept there was any need to cease "retaliatory behaviour" towards Ms Kain. We are strengthened in this view by the fact that in none of the lengthy correspondence between the respondent's representative and those of the appellant following the stand down letter of 24 September 2003 was there any reference whatsoever to a request for Mr Maitland to give a commitment to stay away from Ms Kain and, indeed, apart from Mr Landau's oral evidence given on 5 May 2004 based on his affidavit of 8 March 2004, there is no record of the commitment ever having been sought.

38 Furthermore, the evidence of Mr Landau to the effect that all he required of Mr Maitland was the commitment and that Mr Maitland was stood down because he would not give the commitment, is quite inconsistent with the statement in the letter of 24 September 2003 that Mr Maitland was stood down "for the reason of your harassment of Ms Kain" and the consequential invitation in that letter that Mr Maitland could provide reasons as to why he should not be dismissed.

39 We consider that in light of the contemporaneous evidence the Commissioner erred in accepting Mr Landau's evidence that the respondent was, in effect, not interested in or concerned about Mr Maitland's past behaviour towards Ms Kain and simply asked for a commitment from Mr Maitland not to approach Ms Kain because that was what Ms Kain had asked for in an email to Mr Maitland on 3 September 2003. We do not consider the weight of the evidence supports a conclusion that Mr Maitland was asked to give a commitment to stay away from Ms Kain at the workplace and that this was the reason for standing down Mr Maitland and subsequently dismissing him from his employment.

Procedural fairness - whether grounds existed to stand down appellant

40 This leads to another area of procedural unfairness, in our opinion. The respondent had clearly formed the view that Mr Maitland had conducted himself improperly towards Ms Kain and accepted that Ms Kain had proper grounds to request that Mr Maitland stay away from her at the workplace. In order to form this view the respondent had to have a proper foundation on which to do so, otherwise it would have been procedurally unfair to stand down Mr Maitland for the reason he was harassing Ms Kain. But even if it be accepted that all Mr Landau did on 23 and 24 September 2003 was ask for a commitment from Mr Maitland to stay away from Ms Kain without forming any view about his past conduct, it would have been procedurally unfair to stand down Mr Maitland and subsequently dismiss him from his employment because he refused to give the commitment sought, unless the employer satisfied itself there was a proper basis to ask for the commitment.

41 As the Full Bench in Franklins Ltd v Webb (1996) 72 IR 257 at 261 reminded employers, they "must be fully satisfied after proper investigation that the employee has committed the conduct to support the dismissal". In the absence of the employer satisfying itself there was substance to a complaint from an employee that he or she was being harassed by another employee, it would be highly prejudicial, indeed potentially devastating, to an employee in a workplace to ask that employee for a commitment to stay away from the complainant simply because the employer had become aware of a complaint of sexual harassment. To then proceed, without any further investigation being conducted, to dismiss the employee for misconduct because the employee against whom the harassment claim had been directed refused to give the commitment sought because he or she denied the allegation, would in our view be unreasonable and unjust.

42 Mr Landau said in his evidence that the basis upon which he decided to stand down Mr Maitland on 24 September 2003 was information he received from Ms Peebles, Ms Purcell, Ms Ireland and his own observations. It is clear that Mr Landau did not conduct his own investigation into Ms Kain's allegations of unwelcome attention from Mr Maitland and by his own admission at no stage did he interview Ms Kain about those allegations either before he approached Mr Maitland on 23 September or at any time after.

43 The information provided by Ms Peebles to Mr Landau related to a complaint by Mr Maitland he had lodged with Ms Peebles regarding Ms Kain's misuse of funds and Ms Kain's harassment of Mr Maitland. Ms Peebles said in her evidence she had no knowledge of the relationship between Mr Maitland and Ms Kain prior to being told by Mr Maitland on 16 September 2003 and no knowledge of any allegations by Ms Kain of harassment by Mr Maitland. Between 17 September and 23 September Ms Kain was in Tasmania so it is difficult to accept that there was any harassment occurring in that period at the workplace that Ms Peebles could have become aware of and conveyed to Mr Landau. Further, Ms Peebles at no stage interviewed Ms Kain, either regarding Mr Maitland's allegations of harassment or about Ms Kain's concern at Mr Maitland's unwelcome attention. Thus, nothing Ms Peebles could have said to Mr Landau prior to 23 September 2003 could have assisted Mr Landau form the view that Mr Maitland had been harassing Ms Kain or provided a basis upon which Mr Landau could have properly asked for a commitment that Mr Maitland stay away from Ms Kain. On the contrary, Ms Peebles information should have prompted an investigation into not only the misuse of funds allegation but also Mr Maitland's complaint of harassment but the need for an investigation into the latter issue seems not to have been taken seriously by the respondent.

44 Ms Purcell, who had been advised by Ms Kain that she was receiving unwanted attention from Mr Maitland as early as July 2003 but who had asked Ms Purcell to keep the matter confidential, said in her evidence that after being told by Ms Peebles of Mr Maitland's complaint she advised Mr Landau that "I had been confidentially counselling Ms Kain on dealing with unwanted attention." It would appear, then, that Ms Purcell was Mr Landau's main source of information regarding Mr Maitland's conduct towards Ms Kain and it would also appear that Ms Purcell took Ms Kain's complaints at face value because at no stage did she seek to interview Mr Maitland in regard to them.

45 Ms Purcell said that during the period between 30 June and early September two of her managers had expressed concern to her that "Maitland was constantly visiting staff within the Metro area wanting to talk to them about his relationship with Kain." The managers were Ms Anna McCauley and Ms Sue Small. Ms McCauley gave evidence. She said that Mr Maitland "continued to visit the Children's Services area [where Ms Kain was located] for reasons that I considered trivial". She also said that Mr Maitland attempted on one occasion to engage her in a conversation regarding Ms Kain but that she said to Mr Maitland "his behaviour was inappropriate" and that he should talk to his team leader. Ms McCauley was aware of the relationship between Mr Maitland and Ms Kain and was present at a counselling session at which Ms Purcell and Ms Kain were also present. Ms McCauley had said in her evidence that Ms Kain said to her that Mr Maitland was "stalking" her, a term that was used by Mr Landau in his letter of 24 September 2003 to Mr Maitland. Ms Kain said in her evidence in cross-examination that she did not represent to her colleagues that Mr Maitland was stalking her.

46 It would appear from Ms McCauley's evidence that whilst she considered that Mr Maitland visited the Children's Services Area for reasons she thought were trivial, she did not actually inquire of Mr Maitland why he was in the area and it was only one occasion that Mr Maitland sought to discuss Ms Kain with her but she told him to take up the matter with his supervisor. Ms McCauley made no inquiries of Mr Maitland as to the allegations by Ms Kain of unwelcome attention. Any information that Ms McCauley may have conveyed to Ms Purcell who in turn passed it on to Mr Landau regarding Mr Maitland's visits to Ms Kain's work area, and conversations regarding Ms Kain, provide no basis for a conclusion that Mr Maitland was engaged in the harassment of Ms Kain nor did it provide any foundation for Ms Purcell's view that she apparently passed on to Mr Landau that Mr Maitland was disrupting the workplace. As for the "stalking" allegation, which Mr Landau considered might "lead to criminal charges if continued", Ms Kain said she made no such representation.

47 Ms McCauley was also present for part of the time at what she described was, a heated conversation between Ms Kain and Mr Maitland in the office on 23 July 2003. Apparently, Ms Kain and Mr Maitland were discussing the future of their relationship and Ms McCauley was concerned that "Kain was not safe and did not want to leave her alone with Maitland". Ms Kain appeared to Ms McCauley to be "upset". We note, from the evidence, however, that Ms Kain requested Ms McCauley that, for at least part of the time, she leave Mr Maitland and herself alone to have a private conversation. 48 If Mr Landau was advised of this meeting between Mr Kain and Mr Maitland by Ms McCauley via Ms Purcell, it would not have been reasonably open to him to assume that Mr Maitland's conduct at the meeting constituted harassment, especially as he would also have known by this time that Ms Kain and Mr Maitland had, up until very recently, been involved in a romantic relationship and where Ms Kain had chosen to speak with Mr Maitland in private. For Mr Landau to conclude that the meeting between Ms Kain and Mr Maitland constituted harassment or unwelcome attention towards Ms Kain he would have needed to satisfy himself that, indeed, was the case, and that would have involved interviews with at least Ms McCauley, Ms Natalie Kaine, another employee of the respondent who apparently was also present, and Mr Maitland. None of that occurred.

49 Sue Small was the respondent's Area Manager, Metropolitan. Ms Small did not give evidence in the proceedings before McLeay C. Whilst Ms Purcell claimed that Ms Small complained, along with Ms McCauley, of Mr Maitland "constantly visiting staff within the Metro area wanting to talk to them about his relationship with Kain" it is apparent that Ms Small made no written complaint in this respect and made no complaint to Ms Peebles about Mr Maitland's conduct towards Ms Kain despite having a meeting with Ms Peebles on or about 18 September regarding Mr Maitland's "productivity performance". If Ms Small was concerned about Mr Maitland disrupting the work area, or about unwelcome attention being directed to Ms Kain, it is remarkable that she would not have raised that issue with Ms Peebles at the meeting in September.

50 In evidence was a draft letter by Ms Small (unsigned) to Mr Maitland dated 23 September 2003 counselling him as to his unsatisfactory work performance. Nowhere in that draft is any concern expressed about Mr Maitland's conduct towards Ms Kain or about him being disruptive in the workplace by gossiping about his relationship with Ms Kain.

51 Ms Ireland also did not give evidence before the Commissioner and we are not satisfied that Ms Ireland had any knowledge about Mr Maitland's conduct towards Ms Kain other than what she had been told by Ms Peebles following Ms Peebles' meeting with Mr Maitland on 16 September. Ms Ireland's involvement seems to have been limited to an investigation of the alleged misuse of funds by Ms Kain. In the course of that investigation Ms Ireland apparently did interview Ms Kain but Ms Kain said nothing about her concern that Mr Maitland was harassing her notwithstanding that Ms Ireland asked her about Mr Maitland's allegations that she was harassing Mr Maitland.

52 Mr Landau said he had observed Mr Maitland on the third floor on which Mr Landau and Ms Kain worked and he did not consider Mr Maitland had any business being there. However, Mr Landau conceded in cross-examination he did not make any inquiry of Mr Maitland as to the reason for his presence on the third floor. In our opinion, Mr Landau jumped to the conclusion that Mr Maitland's presence on the third floor meant that he was somehow harassing Ms Kain or directing unwelcome attention towards Ms Kain but made no attempt to inquire as to the real position.

53 We do not consider that on 23 and 24 September Mr Landau had a proper basis for coming to a view that Mr Maitland had been engaged in harassing Ms Kain. The only basis for arriving at that view was second hand information provided to him by Ms Purcell who, on her own admission, accepted at face value what Ms Kain had told her and who did not undertake a proper investigation of the matter. Such an investigation would necessarily have involved putting Ms Kain's complaints to Mr Maitland, interviewing Mr Maitland regarding those complaints and interviewing other persons who may have had relevant information about the matter. Under the respondent's policy Mr Maitland would have been entitled to have a witness present.

54 There was no basis for either Ms Purcell or Mr Landau to accept Ms Kain's word at face value without giving Mr Maitland the opportunity to answer allegations. Nor was there any basis upon which the respondent was entitled to require a commitment from Mr Maitland to stay away from Ms Kain because she had complained about unwelcome attention without a full and proper investigation. Mr Maitland was not accorded procedural fairness.

55 Whilst we can understand Mr Landau's concern at the prospect one of the employees might be subject to harassment and that he needed to move quickly to deal with any such allegations, an employer is not entitled to take at face value an accusation of harassment by one employee against another without undertaking some process of verification. And it is not reasonable to expect an employee to give a commitment to stay away from the employee making the complaint on the basis that to do so would not be taken as an admission of guilt. Inevitably, the employee against whom the complaint is made will suffer damage to his or her reputation on the basis of a complaint that might be completely without foundation.

56 At [46] of her decision the Commissioner expressed the view that the respondent was entitled to accept Ms Kain at face value: That the employer chose to believe Ms Kain and not Mr Maitland is not a matter of discrimination, as there were sound reasons to believe Ms Kain rather than Mr Maitland. Mr Maitland had left the office on 30 June in a state that required assistance (as set out above); Ms Kain had complained about unwanted attention; Mr Maitland had sent her flowers three times in one day; various staff had expressed concern about Mr Maitland telling them details of his relationship with Ms Kain; Mr Maitland's complaint against Ms Kain arose after she had complained about his behaviour; and finally, Mr Maitland had refused to commit to staying away from Ms Kain during working hours. Ms Kain on the other hand had made a complaint, had tried to handle it confidentially, and had sought assistance from others in dealing with unwanted calls and visits from Mr Maitland. When the complaint against her was investigated, Ms Kain accepted the disciplinary action. As to work performance generally, Ms Kain was subject to a recent promotion, while Mr Maitland's supervisors had been discussing performance issues with him. All these factors together gave cause to accept Ms Kain's expressed concerns on face value.

57 It is necessary to consider each of the factors referred to by the Commissioner. Firstly, that Mr Maitland had left the office on 30 June in a state that required assistance. It may have been the case that Mr Maitland was very upset and in an emotional frame of mind on 30 June on being advised that Ms Kain no longer wished to maintain the relationship. It does not seem to us, however, that this fact affected his credibility; there was no reliable evidence that Mr Maitland was mentally unstable or suicidal to the extent that what he said could not be believed.

58 Secondly, that Ms Kain complained of unwelcome attention. It seems to us that Ms Kain's conduct after 30 June was somewhat equivocal regarding Mr Maitland's attention towards her. Ms Kain met with Mr Maitland on a number of occasions after 30 June and maintained email contact with him, asking him in one email dated 21 August to "take care" and another email on 17 July 2003 which cryptically asked "did you eat a banana today?" In any event, the fact that Ms Kain complained of unwelcome attention is no basis to accept that complaint at face value without a full and proper investigation.

59 Thirdly, that Mr Maitland had sent Ms Kain flowers on three occasions on one day. The Commissioner considered this to be "obsessive". The flowers were apparently sent on 23 July and according to Mr Maitland followed a discussion he had had with Ms Kain the previous night. It is apparent that Mr Maitland was trying to re-establish the relationship and Ms Kain said she was upset at receiving the flowers. She informed Ms Purcell about the flowers but indicated she did not want to lodge a formal complaint. If Ms Kain had reiterated to Mr Maitland prior to 23 July that she did not wish to maintain the relationship, the sending of flowers to Ms Kain's workplace could be construed as inappropriate and a manifestation of unwelcome attention. But it certainly would not have been apparent to Mr Landau on 23 September 2003, in the absence of a proper investigation into all of the surrounding circumstances whether the sending of flowers on 23 July 2003 constituted a basis for believing Mr Maitland was guilty of harassment and provided no basis to consider that Ms Kain's version of events should be taken at face value.

60 The fourth factor was that various staff had expressed concern about Mr Maitland telling them details of his relationship with Ms Kain. It would appear that Mr Maitland did discuss his relationship with Ms Kain with other staff. But the evidence about this is quite vague as to timing and the content of the discussions. As to staff expressing concern, we have dealt with the evidence of Ms Purcell regarding alleged complaints by Ms McCauley and Ms Small and find little substance in it.

61 The fifth factor referred to by McLeay C was that Mr Maitland's complaint against Ms Kain arose after she had complained about his behaviour. Mr Maitland was not aware of Ms Kain's complaint until Mr Landau confronted him with this information on 23 September 2004. The sixth factor was that Mr Maitland had refused to commit to staying away from Ms Kain during working hours. We have already dealt with this issue and found that it was not made out on the evidence that Mr Maitland was even asked to give such a commitment.

62 The Commissioner also referred to Ms Kain having sought to handle her complaint confidentially and had sought the assistance of others; that she accepted the disciplinary action for her breach of the travel policy; and, that she was subject to a recent promotion whilst Mr Maitland's performance had been recently questioned. None of this is a determinant of credibility or veracity. Indeed, the breach of the policy by Ms Kain points in the opposite direction, given the circumstances involved in the breach. We do not consider the Commissioner was sufficiently even handed in assessing the respective credibility of Mr Maitland and Ms Kain and erred in finding that Ms Kain's evidence could be accepted at face value and finding that Mr Maitland was not to be believed.

Procedural fairness - whether appellant given reason for dismissal

63 The appellant contended he was not given the reason for his dismissal from employment and that this also amounted to procedural unfairness. Section 88 of the Industrial Relations Act provides: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant.

64 As we have stated, the respondent maintains that the reason for the dismissal was Mr Maitland's failure or refusal to provide a commitment to stay away from Ms Kain at the workplace. We consider the real reason for the dismissal was the respondent's unsubstantiated belief that Mr Maitland was guilty of harassing Ms Kain. This is particularly evident from the letter of 28 October 2003, quoted earlier, from the respondent's agent to the General Secretary of the United Services Union and the termination letter sent to the appellant the following day, which respectively stated: Your member has not demonstrated any remorse for his unwelcome attention of, and behaviour towards, Ms Kain and for that reason his employment has been ended with effect from today on the ground of misconduct (our emphasis).

I am ending your employment effective from 28 October 2003 on the grounds of misconduct over your unwanted attention directed at Ms Kain (our emphasis).

65 We note also that two witnesses, Mr Norton and Ms Lloyd, said in their evidence that following Mr Maitland's dismissal they were informed that he had been dismissed for sexual harassment. And finally, in this respect Mr Landau's letter of 24 September 2003 to Mr Maitland is replete with indicia that Mr Landau had taken the view that Mr Maitland was guilty of harassment.

66 As we earlier found, we consider the Commissioner erred in accepting the evidence of Mr Landau that the reason why Mr Maitland's employment was terminated was his refusal to provide a commitment to stay away from Ms Kain at the workplace. That evidence is inconsistent with the contemporaneous evidence we have referred to.

67 Mr Maitland was given a reason for his dismissal from employment but the reason was not sufficiently supported by fact and did not provide a proper basis upon which to proceed to dismiss Mr Maitland for misconduct.

68 The respondent contended, however, that from 24 September 2003 until the date of his dismissal on 29 October, during which time Mr Maitland was stood down on full pay (or took annual leave), the appellant had a more than adequate opportunity to explain himself. What occurred after 24 September 2003 was as follows: 1 The appellant, through his solicitor wrote, to the respondent on 26 September 2003 denying the allegations in Mr Landau's letter of 24 September 2003. There was a reply from the respondent's agent dated 2 October 2003 whereby the agent set out a series of allegations against Mr Maitland justifying the action taken by the respondent. 2 On 14 October Mr Maitland's union wrote to the respondent's agent contending that no complaint had been made by Ms Kain regarding sexual harassment and that as no complaint had been made against Mr Maitland he should be allowed to return to work. 3 On 15 October the respondent's agent replied to the union, indicating that Ms Kain had complained informally to Ms Purcell and that by virtue of the letter of 24 September Mr Maitland had been accorded procedural fairness. 4 Mr Maitland's union responded in writing on the same day stating that the appellant "was still not aware of what behaviour he participated in to cause him to be stood down and have his employment placed in jeopardy". The letter indicated that between 30 June and 23 July 2003 Mr Maitland and Ms Kain were still "intimately involved". The letter requested that "the reasons for George Maitland being stood down be made clear, including what if any allegations have been made against him, who has made the allegations, and when they were made." 5 The respondent's agent replied on 28 October citing the letter of 24 September from Mr Landau to Mr Maitland as the "behaviour of which RBS complains" and indicating that Mr Maitland's employment was terminated.

69 The process engaged in by both parties after 24 September 2003 of a stream of arms length correspondence that never seemed to connect as to what needed to be done to resolve the dispute was quite unsatisfactory given Mr Maitland's employment and reputation was at stake. After the letter of 2 October 2003 from the respondent's agent identifying some of the allegations against Mr Maitland, rather than relying on some notion that Ms Kain had not made a formal complaint (therefore, there was no case to answer), a meeting should have been arranged and the allegations dealt with one by one. Regardless of the absence of a formal complaint, by this stage the employer was making certain specific allegations of harassment about which it had a duty to make inquiries. The response to the respondent's allegations in the letter of 2 October was obfuscatory and unhelpful; it passed up an appropriate opportunity to address the issues at the heart of the dispute.

70 In any event, notwithstanding the failure of Mr Maitland and his representatives to properly come to terms with the allegations made in the respondent's letter of 2 October and either respond with some specificity to the allegations or instigate a meeting to deal with them, it remains the case, in our opinion, that there were not sufficient grounds for the respondent to dismiss the appellant because of his conduct towards Ms Kain. Indeed, Mr Landau seems to have recognised this because he said in his evidence before McLeay C he was content to accept an undertaking from Mr Maitland that he would stay away from Ms Kain at the work place.

71 We should make it clear, however, we do not find that the appellant was a model of innocence and propriety. His allegations against Ms Kain of harassment do not appear to us to have had any real substance and his reporting of Ms Kain's breach of the travel policy does not strike us as having been done for altruistic reasons, leaving us with the opinion that some of appellant's conduct throughout the whole sorry episode leaves something to be desired. We also do not believe parts of Mr Maitland's evidence; for example, that he was told by Mr Landau that he should resign "or be fired for my reporting of Ms Kain's misuse of funds". Moreover, once the respondent had begun to specify allegations against him in the letter from the respondent's agent of 2 October 2003 Mr Maitland failed to respond adequately to those allegations. Nonetheless, we consider there were insufficient grounds to justify his dismissal for misconduct.

72 The second appeal ground was that the Commissioner did not give sufficient weight to the effect of the termination on the appellant. The appellant was engaged in a specialist occupation. His dismissal left him unemployed and because of the nature of his specialist skills, employment would have been hard to find, especially when he carried the stigma of being dismissed for what was in reality a belief on the part of his employer that Mr Maitland was guilty of sexual harassment. In Byrne v Australian Airlines Ltd (1995) 185 CLR 410 McHugh and Gummow JJ observed at 465: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. See also Outboard World Pty Ltd t/a Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183.

73 The Commissioner found that the dismissal of Mr Maitland was not harsh, unreasonable or unjust. Notwithstanding submissions by the appellant before McLeay C regarding the effect of the dismissal on his personal and economic situation and the Commissioner's finding that the dismissal was not harsh (or unreasonable or unjust) it is not evident that the Commissioner in fact considered the personal and economic consequences for the appellant of the dismissal. Where an employee who has been dismissed from his or her employment and particularly where the employee pleads harshness as to the consequences of the dismissal for his or her personal and economic situation as was the case here, it is important that due regard is given and is seen to be given to those matters. We consider the Commissioner erred in this respect to the extent that dismissal from employment was wholly disproportionate to the seriousness of the appellant's conduct.

Whether appellant was requested to stay away from Ms Kain

74 The third ground of appeal was that the Commissioner erred in finding that the appellant had been requested to give a commitment to stay away from Ms Kain and in any event the appellant had given this commitment. This has essentially been dealt with under the first ground of appeal and in light of our findings in that respect we do not find it necessary to address the fourth ground of appeal.

75 We find the dismissal of Mr Maitland for misconduct was harsh, unreasonable and unjust. We are left with the question of what form of relief should be granted in this case. As we understand it, the appellant seeks either reinstatement or re-employment. The alternative remedy is compensation if the Commission thinks reinstatement or re-employment is impracticable: s 89(5) of the Act.

76 There are grounds to consider that Mr Maitland should not be reinstated or re-employed because of the circumstances that led to Mr Maitland's dismissal and the undoubtedly strained relationships that would exist between Mr Maitland and other employees of the respondent if we were to order reinstatement or re-employment. Nevertheless, the specialised skills Mr Maitland possesses and his inability since being dismissed to find other employment lead us to question whether compensation is the appropriate remedy in this case.

77 We do not consider the remedy should be reinstatement from the date of dismissal. Mr Maitland must bear some of the responsibility for avoiding the opportunity of dealing with the respondent's allegations in the letter of 2 October 2003. We consider Mr Maitland should be re-employed in his previous position from 9 July 2004, the date of McLeay C's decision. Mr Maitland shall not be entitled to any wages for the period between 28 October 2003 and 9 July 2004 but his employment shall not be regarded as broken by the dismissal for other purposes.

78 We are of the opinion that there were insufficient grounds to dismiss Mr Maitland for harassing Ms Kain any time after 30 June 2003. However, we consider that it would be in the interests of Mr Maitland, the respondent and the respondent's employees, and in the interests of minimising any adverse consequences in the workplace, that pursuant to s 89(8) of the Act, we make it a condition of re-employment that Mr Maitland will have no contact with Ms Stephanie Kain at their place of employment other than contact that is necessary in the course of their employment. If it is practicable, the respondent should arrange matters so that no contact is necessary between the two employees. Any breach of this condition by Mr Maitland may constitute grounds for dismissal.

79 We make the following orders: 1 Leave to appeal is granted. 2 The appeal is upheld. 3 The decision and order of McLeay C in matter No IRC 6469 of 2003 is set aside. 4 The appellant, George Ross Maitland, is to be re-employed by the respondent in his previous position from 9 July 2004. 5 It is a condition of re-employment that Mr Maitland will have no contact with Ms Stephanie Kain at their place of employment other than contact that is necessary in the course of their employment. If it is practicable, the respondent should arrange matters so that no contact is necessary between the two employees. Any breach of this condition by Mr Maitland may constitute grounds for dismissal. ________________________

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