Hogan v Employment National - [2002] NSWIRComm 313 - NSWIRComm 2002 case summary — Zoe

NSWNSWIRComm

Hogan v Employment National

[2002] NSWIRComm 313

Industrial Relations Commission (NSW)|2002-07-01|Before: Haylen J, Gyles JJ, Fisher CJ, Hill JJ, Mr J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2002-07-01

Before

Haylen J, Gyles JJ, Fisher CJ, Hill JJ, Mr J

Source

Original judgment source is linked above.

Judgment (227 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Hogan v Employment National (Administration) Pty Ltd [2002] NSWIRComm 313 APPLICANT: Michael John Hogan PARTIES : RESPONDENT: Employment National (Administration) Pty Ltd FILE NUMBER: IRC 5854 of of 1999 CORAM: Haylen J CATCHWORDS : Unfair contract - s 106 Industrial Relations Act - probationary employment - termination during probationary period - failure to properly investigate office tensions - pressure on applicant to make claims for unauthorised payments in favour of respondent - contract and Australian Workplace Agreement (AWA) both operative - terms of contract and AWA in substantially standard form - unequal bargaining strength of parties - probation not part of requirements of AWA - period of probation required unfair - conduct permitted by respondent rendered contract unfair during its currency - AWA not incorporated into contract of employment - inconsistency under s 109, Constitution rejected - s 109A of Act inapplicable - contract unfair at inception and by reason of conduct of respondent - orders made varying contract - money order made under s 106(5) Constitution s 109 Industrial Relations Act 1996 s 106 s 106(5) s 109A LEGISLATION CITED : Workplace Relations Act 1996 s 152 s 170C(1)(b) 170VF(1) s 170LZ 170VR(1) Workplace Relations Act 1996 Regulation 30B(1)(c) sub-divisions B C D E and F Division 3 of Part VIA

[11]

5 The applicant said that he had initially applied for employment with the respondent in December 1998 but had failed in that application. He was then contacted in May 1999 in relation to employment with the respondent and agreed to take up employment as a Client Service Consultant. Mr Hogan was provided with a detailed written offer of appointment by way of letter dated 11 May 1999. A detailed job description covering the position was attached to the letter and he was told that his position was currently located within the Windsor Business Centre. An initial salary for the position was set at $35,894 per annum. The letter of offer then contained the following: It is a condition of this offer of ongoing employment that you and the company enter into two agreements: firstly, an Employment Relationship Agreement which is an Australian Workplace Agreement (AWA) made under the provisions of the Workplace Relations Act 1996 and secondly, an agreement to terminate that AWA when a Certified Agreement is made and certified by the Australian Industrial Relations Commission. Copies of both Agreements are included in the information kit that accompanies this letter. The letter said that enclosed with the offer was a further letter from the respondent which explained the effect of the proposed AWA. He was told to read and consider the second letter after the AWA package and prior to signing the AWA. If he had any questions relating to the proposed AWA, the letter explaining its effect, the information kit or any other relevant letter, he was told to contact the General Manager of Human Resources Strategy and given a phone number and an email address as a contact point. He was invited, if he wished, to appoint a bargaining agent in relation to the making of the proposed AWA. He was also advised that if he decided to sign the AWA he should do so and date it in the space provided and that his signature should be witnessed. The letter then continued: As has already been explained, the AWA is accompanied by an Agreement that allows the termination of the AWA in certain circumstances. It is a condition of your employment that you enter into this Agreement. The Agreement allowing for termination of the AWA is designed to bring an end to the AWA so as to permit effect to be given to a collective certified agreement between Employment National (Administration) Pty Ltd and its operational and support staff when such an agreement is made. In addition to the AWA, the company has a Personnel Policy Procedures Manual which sets down other matters relating to the regulation of your employment with the Company. A copy of the manual is included in the Information Kit. You will be required to comply with the policies and procedures contained in this Manual. One of the important matters referred to in the Manual relates to a probationary period of employment. You will be on probation for the first three months of your employment and during this period your technical ability to do the job, your ability to work effectively in a team and your performance generally will be monitored and assessed. Your manager will outline any specific requirements relating to this condition of employment. You can be dismissed for any reason during this period by the Company giving you one week's notice or one week's pay in lieu of notice. Your employment with the Company as a Client Service Consultant will be full-time and ongoing. It can be terminated by you or the Company giving a minimum of one month's notice. If the Company is required by legislation to give more than the notice specified above, additional notice will be given by it or it will make payment to you of a corresponding amount of salary in lieu of the additional notice. Should your employment be terminated for any reason other than serious misconduct, the Company's redundancy arrangements, if applicable, will apply … . At the bottom on this letter of offer there was a space for Mr Hogan to accept the offer and the conditions outlined in it, which he did on 12 May 1999.

[29]

22 The applicant received a reply from the Minister for Employment Services dated 4 December 2000 which gave details of the investigation of the allegations that had been made by him in a letter forwarded to the Minister and others immediately after his dismissal. In part, that letter stated: The Department investigates all allegations of fraud received and, in addition, any potentially fraudulent matters arising from the Department's assurance reviews and routine contract management of service providers. Investigations are undertaken by accredited departmental investigators. Investigations are subject to periodic quality assurance review by the AFP. The investigation that followed receipt of Mr Hogan's allegations initially disclosed, after an examination of every Job Matching claim from the Windsor Office and after contact with job seekers and employers to check the validity of suspect claims, that 37 claims for job management fees had been made but were not payable. The consequent overpayment of $5,364 has been recovered from EN. In relation to those claims that were not payable, the investigation was directed to ascertain whether there was any evidence sufficient to establish the commission of any offence (for example, false pretences under Section 29A of the Crimes Act, imposition under Section 29B of the Act, or fraud under Section 29D of the Act) by any of the EN staff accused by Mr Hogan. Accredited departmental investigators interviewed, formally, Mr Hogan, the EN staff accused by Mr Hogan and other individuals who it was considered may have had relevant information … The records of the interviews, and other information gathered during the investigation, were presented to the Director of Public Prosecutions (DPP) for advice. The advice received from the DPP, after their consideration of the information provided, confirmed the view of the Department, that there was no evidence sufficient to establish the commission of any other offences under consideration. In summary, no fraudulent intent could be established on the part of any of those accused by Mr Hogan, and each denied any such intent, and each proffered an innocent explanation for the making of the claims - for example, an explanation that their intention was not to claim Job Matching payments that were not payable but rather to record an employment outcome that 'does create the opportunity for the job network member to claim 13 and 26 week outcomes against EN. (as Mr Hogan deduced in his letter of 12 August 1999). It was on this basis - that no fraudulent intent could be established - the decision not to proceed further with the investigation was made. The Australian Federal Police (AFP) was not directly involved in the investigation, although the Department conducted its own review. In the course of this investigation its findings were discussed with the Client Services Team of the AFP. The comments provided by the AFP were taken into account in the Department's decision not to proceed further with the investigation.

[58]

52 Later in cross-examination, Ms Delf returned to the occasion when she felt Mr Hogan breathing on her legs as she passed by him to leave the office. She said that circumstances had arisen where she was called home to tend to her sick child and where there had been numerous health problems to cope with. She was very upset at the time. She recalled being so upset that she called Mr Williams and told him that she wished to resign after many years of employment but she regarded herself as being at fault - "I thought I was the sore thumb in the situation". She may have said to Mr Williams at this point, she realised that the problem was her and not Mr Hogan but she agreed that the surrounding circumstances were that her grandfather had recently died, her daughter was ill, and she had had two miscarriages within a six month period. When she was being interviewed the next day by Mr Hall and Mr Williams, she was bursting into tears regularly. It was after this incident of walking past Mr Hogan that she had spoken to Mr Williams and Mr Hall and tendered her resignation. She was satisfied that personal issues had been resolved with Mr Hogan but came to realise that if she could not cope with her personal issues then she should "get out of the kitchen". She made the decision to resign because of other influencing factors within her own life including a sick child. She thought that if she was not able to give Mr Hogan the benefit of the doubt and put these matters behind her then she should get out. She regarded it as a "one on one thing" between Mr Hogan and herself - that was her perception of it. The argument was a contributing factor and, although she was satisfied it was resolved, it accumulated with her life outside work - where she was heading personally, her health, the health of her child and she came to feel that she could not cope with these things at that time. It did not occur to her that, when she was tendering her resignation to Mr Williams she was putting him in the position of choosing between her and Mr Hogan. After making that call to Mr Williams, she met with Mr Williams and Mr Hall the next day. She was given the opportunity of making a sexual harassment complaint but chose not to do so because she accepted Mr Hogan's word that his actions were unintentional. She continued to believe that things were resolved between them but there were other things happening in her life and she came to the conclusion that she could have been the problem. She told Mr Williams and Mr Hall that she was not there to lodge a sexual harassment case. Although Ms Delf did not remember the words precisely, she may have said to Mr Williams and Mr Hall that she was "hormonal" and, with all the other things she had mentioned, she just wanted to go and leave it all behind her. She told Mr Williams and Mr Hall that Mr Hogan's actions might not have been deliberate but unconscious actions. She did not envisage there would be any repercussions over her resignation. While Ms Delf regarded herself as at fault, she said there were situations in the office that she perceived to be inappropriate behaviour between a female and a male employee and she believed that, on 11 August 1999, Mr Hogan had sexually harassed her but she did not wish to make a complaint. She had formed that view even though she also thought that the fault was hers and that the overall circumstances of her life were getting her down. Ms Delf did not proceed with her resignation but in December 1999 was transferred to another office.

[62]

56 Ms Delf indicated that she knew little about placement fees being claimed in relation to people who had found their own employment, even when interviewed by the investigators. She said that she was not aware that any claims had been made. When it was pointed out to her that matter was the subject of the argument between Mr Hampton and Mr Hogan in which she intervened, she stated that she was not involved "in that side of the dispute". She had intervened and told them that they were both right and that the outcome was the same, although she could not remember precisely what words she had used. She thought that neither of them had the process correct and that after she had intervened "it was over and we were going to take that up with Steve and find out the way Steve wanted that pursued". Ms Delf said she was unable to resolve the argument by reference to an instruction because she felt the work manuals were not up to date. Her own knowledge and procedure was obtained though trial and error. Ms Delf could not explain why she did not check with either the on-line copy of the manual or the hard copy of the manual - the thought never crossed her mind. She ultimately raised the issue with Mr Williams and explained the way she was doing it and he showed her the way it was to be done but noted that there was no different result in any event. She said that the applications that went through where a fee was wrongly claimed, in her case, was the result of "sheer human error", being her own error. Ms Delf accepted, ultimately, that Mr Hogan was saying that the claims were being processed wrongly and the office was obtaining a fee for which it was not entitled. Ms Delf then said that she felt the argument was about expecting the employer to confirm an interview had taken place with the client - the argument was really about one job seeker and reporting, it was not about fees being improperly sought because "the first I heard about that was when it was in the newspaper". Somewhat confusingly, Ms Delf also accepted that part of the discussion was about processing the FOE. Although Ms Delf said she had told them that they were both right and were both wrong, she could not recall Mr Hampton doing anything wrong. Ms Delf explained her indecision in the following way: I am only remembering now from notes but at the time from what I remember at the time is that only Mick believed that he had the current procedure for the placement, but he did not believe that it was our business to pursue the placement. So I guess from my perspective there seemed to be a void in the actual understanding of the system which in the first three months of employment I would not expect one to because it certainly took myself a long time and I had come from a CES background where it had been used for a long time.

[67]

61 A further complication and confusion then arose. Ms Delf accepted that about a week after this heated argument and her discussion with Mr Hogan where the issues, in her firm view, were resolved with Mr Hogan, Ms Delf had a conversation with Mr Williams saying that Mr Hogan was making no real attempt to fit into the office. When questioned how she came to be making that statement to Mr Williams only a week after she had resolved her differences with Mr Hogan, Ms Delf said there were two different things being talked about. She accepted that they had resolved the issues that arose in the argument: she was happy with his explanations about the argument but there were still difficulties in the "bigger context". While she had finalised those issues arising from the argument with Mr Hogan, the things that she raised with Mr Williams on 6 August 1999 arose in the context of a regular meeting she held with him as a senior officer meeting the manager and discussing a number of issues including staffing. In her view, Mr Hogan should not have resigned over the argument but if he had to resign it should have been over the entire issue not just over the argument that had taken place. She did not know whether she had told Mr Hogan this or not. She thought he was struggling to fit into the office but it was not worth resigning over the argument because that was "trivial". When asked why she did not explain to Mr Hogan why he should resign when he had raised the subject of his resignation, she said that it did not arise in "the context the way the conversation flowed" - she would have seen no cause to raise the wider issue with him. She saw some issues as being personality faults which could be dealt with in a bigger office but they did not have a bigger office. She did not know whether Mr Hogan could change but it was not her "call". She was responding to a question from Mr Williams as to whether Mr Hogan was fitting in or not. That was the context in which she made her adverse comments about Mr Hogan. However, she did not tell Mr Williams that she thought Mr Hogan was looking at her bustline but she did raise that issue a few days later when she tendered her resignation and met with Mr Hall and Mr Williams. She had never raised that issue with Mr Hogan, not even in their meeting to sort things out, which was held the day after the heated argument. She accepted that when she met Mr Hall and Mr Williams she was constantly in tears. She told them that after the heated argument there had been a general clearing of the air, the dispute had been resolved in a meeting the next day which had been conducted in a calm and professional manner and she had been pleased with the way it went. Ms Delf said she also felt that a barrier had grown between herself and Mr Williams in the office because she had not told him immediately about the argument with Mr Hogan. She thought there was pressure building in the office and that Mr Williams thought that he should have been told about the issue. She did not tell Mr Williams that Mr Hogan had been thinking of resigning because she thought that was an issue between Mr Hogan and Mr Williams.

[96]

94 During the course of the meeting with Mr Williams and Mr Hall, Ms Delf said that she generally found Mr Hogan to be inappropriately curious about her health problems and specifically about her recent miscarriage. She also raised her feelings that she was being sexually harassed by Mr Hogan but in the end did not want to raise the issue directly with him. She told them she felt that she could continue to work with the applicant "in the short term". The meeting lasted for approximately two hours. 95 Mr Williams then records that a meeting was convened later that day at the Windsor office with Mr Hogan with the purpose of speaking to him in relation to the prospects of his probationary employment being made permanent. Mr Hall was present at this meeting. At the meeting Mr Williams raised the fact that Mr Hogan had told him that he was seeking a reference to look for new employment and that Mr Hogan had told him that he did not see a future working long term at Windsor or for the respondent. Mr Hogan told them that he was only seeking other work because of an issue that had arisen between himself and Ms Delf. Mr Hall told Mr Hogan that, as he was looking for other work and that his probationary employment was coming to an end, it was a good opportunity to have a discussion about his future with the respondent. Mr Williams said that Mr Hogan was very curious about what Ms Delf had told them but he was informed that this was the opportunity for him to deal with his own situation. Mr Williams raised his feeling that there was an "atmosphere" in the office and that no one had brought any issue to him but that some complaints about other staff were now being made in the process of his enquiries. Mr Hogan told them that he was feeling alienated within the office although he got along reasonably well with Mr Hampton - nevertheless, he felt that Mr Hampton and Ms Delf were very close and thus he was alienated. Mr Hogan said there was a problem with Ms Delf although he was not sure what it was and he had even made enquiries of her. He again enquired as to what Ms Delf had said and continued that he would be able to work in the short term with Ms Delf as his supervisor but that on a long term basis it was not going to work.

[144]

144 Mr Foster had asked what was the nature of the allegation of fraud made by Mr Hogan and, on being informed that it related to placement fees, he directed a review of computer entries in the office after being told that Mr Hogan had produced, as evidence, one irregular entry. He did not consider the one entry as evidence of fraud because there were many incidences of incorrect processing. He gave no consideration to moving Mr Hogan from that office to another office while he investigated the allegations of fraud. He did not take this approach because it was early days in the company's processing and there were considerable error rates being experienced and one incorrect entry did not appear to be significant. In addition: … quite clearly in my mind this was during Mr Hogan's probationary period and quite clearly the period for me to act then was within that period and it was only a matter of days before that was to conclude. I considered it more appropriate to terminate Mr Hogan. I did not believe that there was a connection and I did not believe that there was any significant fraud. Another reason for not moving Mr Hogan to another office as an option was Mr Foster's view that there was "very clear evidence of disharmony in the office, quite strong and clearly emanating from a whole group of people in the office". This had been told to him by Mr Hall and Mr Williams, both senior managers whom he respected. Mr Foster had satisfied himself that there was no fraud because there was no individual benefit to the operators. He accepted that there was a capacity for a 5 per cent bonus payable on performance but that was a separate matter. Before authorising the termination of Mr Hogan, Mr Foster did not interview Ms Delf or Mr Hampton or make arrangements for them to be interviewed about the allegations of fraud. Mr Foster was unaware that the audit report found evidence to support the allegations but insufficient evidence to recommend charges being referred to the Director of Public Prosecutions. Mr Foster said he had sufficient evidence in terms of the disharmony, "the arguments that were occurring, the arguments, the upsets that were going on", to justify the decision to terminate.

[156]

156 On 12 August 1999, the day following his termination, Mr Hogan wrote to the General Manager of the respondent and sent copies to the Opposition Leader, the Employment Services Minister, the Shadow Minister for Employment, Training and Population, his local Member, the Member for Greenway and to the Prime Minister. In this letter, he advised of the circumstances of the Windsor office of the respondent where he alleged fraudulent activities had been undertaken. He explained the claiming of placement fees for FOE and noted that those fees were currently $180 plus a $100 bonus for each placed client. In the course of explaining circumstances of this alleged fraud and the termination of his employment, Mr Hogan stated in the letter as follows: I was advised by staff members, that this was how we needed to operate to obtain the necessary placement statistics and obtain the required Government revenue. The senior employment consultant stated that this was a widespread practice across Employment National offices (no proof). I objected to this activity, both morally and professionally, as both the Employment National Manual and the Member Information Guide (MIG) for job network members state, that in the circumstances of a candidate (in an activity agreement receiving intensive assistance - Flex 3) obtaining employment through their own effort, a vacancy should be raised as a FOE placement, which does not create a placement statistic and no claim for a Government placement fee, but does create the opportunity for the job network member to claim 13 and 26 week outcomes against the candidate. I informed my Business Centre Manager (Steve Williams) and the Regional Manager (Bob Hall) on Wednesday, August 11, 1999 of these activities. They requested proof. I provided three examples (hard copies) and advised them there was a number more. This action took place between 10.30 am and 12.00 noon. At 4.45 pm I was advised by my Business Centre Manager (Steve Williams) that my services would not be required after Friday, August 13, 1998. I intend to seek legal advice with regards to my dismissal, but more importantly I believe my accusations regarding the fraudulent activities taking place need to be aired and investigated in a public arena.

[157]

DELIBERATION 157 I have spent considerable time canvassing the detail of the evidence because, in relation to what appears to be a simple issue, much evidence was called and the cross-examination was extensive. To a significant degree, the capacity of the applicant to succeed in this case, not surprisingly, turns upon the accuracy of the account he gives of the various discussions and exchanges and, in my view, not the least in relation to exchanges and conversations with Ms Delf. Judging the evidence overall, the general nature of matters raised by the applicant as occurring do not appear to be called into question, and, putting aside the inability of any witness to be absolutely precise about all the occurrences (including dates), by and large the totality of the evidence supports what the applicant stated in his affidavit evidence and in his oral evidence. The one issue of critical importance is the subject matter of the argument which took place on 28 July 1999. Mr Hogan's version is that this argument developed because he felt he was being pressured into making claims for placement fees in relation to persons who had found their own employment (FOE) when the respondent's arrangement with the Federal Government was that such fees could not be claimed. The applicant said that he could not professionally nor morally make such claims, and that led him to discuss his situation with his wife on the night that the argument took place and, with her assistance, resolving that the best course for him was to look for other employment and to stay on with the respondent only for so long as it took him to find other employment. The only part of this account not unequivocally embraced by Ms Delf is the applicant's contention that the argument blew up over claiming placement fees for FOE. In my view, Ms Delf's evidence on this matter was both confusing and contradictory. On the analysis of that evidence which follows and considering the demeanour of the witnesses whilst giving their evidence, I have come to the view that I should accept the applicant's evidence on this matter where it conflicts with that of Ms Delf.

[158]

158 Before entering upon the analysis of the evidence, particularly relating to the extent to which placement fees for FOE formed part of the heated dispute which took place on 28 July 1999, it is appropriate to pose this question: What occurred in the last three weeks of the applicant's employment which resulted in him being found not suited for the employment and not a team player suitable for a small office such as the Windsor office of the respondent when, on 21 July 1999, the Office Manager had assessed him as fulfilling the requirements of the position in every way, including inter-personal and team skills? It seems inconceivable that in a small office - the confines of which featured in just about every witness' evidence - Mr Williams, as Office Manager, over a period of more than two months managed to miss the following matters: the fact that the applicant intimidated office staff by invading their personal space, making them feel uncomfortable; that the applicant made frequent, inappropriate sexual references; that the applicant, apparently while invading the personal space and intimidating Ms Delf, constantly stared at her bustline and made her feel uncomfortable; the applicant adopted personal behaviour, including the use of the office toilet, which was offensive to the staff. The further question might be asked: How did this experienced Office Manager miss these occurrences which had to be so obvious and which had to occur under his very nose? After analysing all of the evidence there is no creditable answer to these questions which is supportive of the respondent's case. 159 Ms Delf told the investigators that she had made placement claims for FOE before 1 January 1999 (when the system was changed so that such claims could no longer be made) - but had made no such claims after that date. When it was brought to her attention that she had made placement claims after that date, including placement claims made in August, which was shortly after the heated discussion with Mr Hogan, she suggested that those claims were made as a result of human error on her behalf.

[163]

164 Ms Delf said the procedure that she and Mr Hampton used was different in recording placement fees for FOE but, in fact, achieved the same result as the approved practice. She said that she was aware that the procedures for FOE had changed. When asked in cross-examination why she had not resolved the argument with Mr Hogan by immediately checking the manuals or the intranet for the correct method, Ms Delf stated that the manuals were not up to date and it had not otherwise occurred to her. In another part of her cross-examination, Ms Delf said that Mr Williams had told her how to process the FOE after the heated argument and stated that the way they were to be done had apparently not filtered down to her yet. That statement contradicts what she had told the investigators - namely, that she knew the system had changed in January 1999 and she had not claimed placement fees for FOE since that date. The company secretary, Ms Lever, said that policies were distributed amongst the respondent's offices by use of an intranet site and that information could be obtained from senior management. The change to claiming fees for FOE became operative in January 1999 and people were trained in that new system through information on the intranet. There were also regular Regional Manager meetings, regular Business Centre meetings and the Operational General Manager sent emails on any change of policy. Changes in policy were distributed to the staff who had to implement those policies. The Employment National Manual and Member Information Guide for network members contained this information and KPMG, as part of the internal auditing procedures, attended at various sites to ensure that policies were being implemented. This evidence was called on behalf of the respondent and it is difficult in those circumstances to accept, quite apart from Ms Delf's own evidence as to the state of her knowledge, that at the time of the heated argument with Mr Hogan in July 1999, she did not know and understand the change in policy and the prohibition on claiming placement fees for FOE. It also casts doubt on the acceptability of her evidence on this matter that she has seen fit to give a number of versions of not only the content of the debate but the state of her knowledge about the correct policy for placement fees. It is also significant that neither Ms Delf nor Mr Williams contradicted or questioned Mr Hogan's affidavit evidence that: (a) he was initially shown the method of claiming placement fees for FOE by Ms Delf in early July; (b) on or about 26 July 1999, Mr Hogan told Mr Williams that he was going to claim a placement fee for an FOE (as shown to him by Ms Delf) and was instructed by Mr Williams that the fee was not available and was shown the proper way to process the FOE information. In terms, this evidence was not denied. Further, Mr Hogan said that he checked the instruction given by Mr Williams against the Respondents' computer manual and satisfied himself that the process was correct. Mr Williams' evidence was that this process was frequently discussed in staff meetings. Ms Delf's suggestion that the manual and intranet information on FOE was out of date at the time is simply insupportable. When confronted with the essence of this information in cross-examination, Ms Delf withdrew to the position that during the heated argument she was "just guessing" about the process because the system was so difficult to operate.

[164]

165 Another contradiction in Ms Delf's evidence is that, while on the one hand she claimed that the heated dispute was not, or was not essentially about claiming placement fees for FOE, she also gave evidence that she agreed with Mr Hogan at the end of the debate that she would confirm with Mr Williams what was the proper procedure for FOE. Again, if this was not an issue, there was no reason for the FOE procedure to be checked by Ms Delf. Importantly, Mr Williams in his evidence did not confirm that this matter was clarified or in any way raised with him by Ms Delf. In her evidence, Ms Delf could not say precisely when she did clarify the FOE procedure with Mr Williams. In cross-examination, Ms Delf said she raised the proper procedure with Mr Williams the next day and he explained the way in which FOE were to be processed. If it was not raised the following day, she raised it at a regular lunch meeting but at the time she did not mention it was the subject of a heated dispute or row in the office. All she did was to get the information from Mr Williams. It is apparent from this answer that Ms Delf was unlikely to be raising issues of privacy and approaching clients who had found their own employment and it again tends to confirm that the issue was whether or not the placement fee was claimable. Further, besides Mr Williams not mentioning this clarification being sought by Ms Delf anywhere in his evidence, he confirmed that when Ms Delf was called to the meeting with himself and Mr Hall on 10 August 1999, Ms Delf spoke of the heated argument but at no stage disclosed the specifics of that argument. In fact, Mr Williams denied that Ms Delf had ever raised with him anything about a row concerning FOE claims: he confirmed in his evidence how these matters were to be handled and that it had been talked about in the office frequently. Apart from repeating, during her cross-examination, that she was unable to recall the words she used when she says she checked the process for FOE with Mr Williams, Ms Delf later in cross-examination again asserted that she raised the issue of placement fees with Mr Williams and confirmed that he wanted them recorded the way he had told Mr Hogan to record them. That answer appears to be consistent with Mr Hogan's version of the dispute being one concerned with placement fees not being claimable in relation to FOE.

[165]

166 Ms Delf stated that, when Mr Hogan met with her the day after the heated dispute in the office, she accepted his explanations and they agreed to try to let things work themselves out. Specifically, they agreed that the dispute was over and she asked Mr Hogan not to seek a reference from Mr Williams but to see how things developed over the next few weeks. She sought Mr Hogan's agreement that Mr Williams not be told about the argument. This seems to be a strange request from the second most senior person in the office considering the nature and intensity of the discussion during the argument. There does not seem to be any appropriate reason why Ms Delf should not have informed Mr Williams of the incident even if she had satisfied herself that the matter had been resolved - the resolution of the matter to her satisfaction may have provided an even stronger reason for informing Mr Williams about what had occurred. Perhaps more importantly, in cross-examination, Ms Delf accepted that she said to Mr Hogan words to the effect that if Mr Hogan sought a reference from Mr Williams, Mr Williams could become quite "suspicious". Ms Delf was not able to explain what she meant by the use of the word "suspicious" but suggested another context which made no sense at all. The use of the word "suspicious" and the subject of the dispute as identified by Mr Hogan suggests that Ms Delf did not want Mr Williams to know that there was a dispute within the office about claiming placement fees for FOE. The likelihood of this context is again confirmed by the fact that Mr Williams denied that he was told anything about a row over FOE and FOE procedures. Even on Ms Delf's account of her conversation with Mr Williams (which he does not confirm), she asked for a clarification of the procedure but did not tell him that there was an office row over it. Nor did she inform Mr Williams that Mr Hogan was considering resignation - she thought this was a matter between Mr Hogan and Mr Williams, but Mr Williams was blissfully unaware of it. Ms Delf's inability to adequately explain why she did not raise these matters with Mr Williams provides a further reason for treating contested aspects of her evidence with extreme caution.

[171]

172 When Ms Delf met with Mr Williams and Mr Hogan on 10 August 1999, the meeting lasted for approximately two hours. The first thing that appears to have been raised by her was the heated argument rather than the occurrences of sexual harassment. Mr Hall recalls that matter in terms of Ms Delf "also" raising her feelings about being sexually harassed by Mr Hogan: but the allegation of sexual harassment was said to be the only purpose of the meeting. There are other matters that place the sexual harassment complaint in context. Ms Delf stated that, by the time this meeting took place, she felt that the pressure was getting to her. She felt that a barrier was developing between herself and Mr Williams because she had not immediately consulted him about the workplace row, although Mr Williams never mentioned this in his evidence. Ms Delf regarded herself as being at fault when ringing Mr Williams and tendering her resignation. She explained that this action was the result of an accumulation of personal factors. She said that, in that discussion or in the discussion with Mr Williams and Mr Hall, she may have referred to herself as being hormonal but she just wanted to get out of the office. On the one hand, she believed that she was being sexually harassed by Mr Hogan. On the other hand, she thought it was her problem - it was her perception. That became evident to her when she raised with Mr Hogan his attitude and regarded his response as being one of surprise. He seemed genuine and did not know what she was talking about. It was at this point that Ms Delf said she realised that the problem was with her and not elsewhere - she was the "sore thumb". In her earlier evidence, she accepted that nothing much had happened in terms of the relationship with Mr Hogan until the heated argument on 28 July 1999. Ms Delf also accepted that a consideration of the first 13 pages of the interview with investigators revealed her only complaint about Mr Hogan to that point was about his propensity to invade a person's personal space.

[173]

174 The level of investigation and the appreciation of the issue generally appeared to exhibit deficiencies. Mr Foster thought that Mr Hogan was not meeting accepted performance levels including team performance. He thought that, although there had been a performance assessment of Mr Hogan, it had not considered the question of the team dynamics within the office. He was unaware that Mr Williams had rated Mr Hogan as performing to the required level in team work and interpersonal aspects of the position he occupied. He was unaware of Mr Williams' note, sent only a few weeks earlier, complimenting him upon his work and the fact that they were all working in well together. He made no mention, and therefore would appear to be unaware, of Ms Delf's view that Mr Hogan possessed quite good IT skills and would volunteer to do work in that area which was appreciated and accepted. Mr Foster thought there had been considerable disharmony in recent times: evidence he described as being very clear and quite strong and "clearly emanating from a whole group of people in the office". He appears not to have been informed by Mr Williams and Mr Hall that no one else other than Ms Delf within the office had been consulted on the existence of such clear and disruptive disharmony. Indeed, so subtle was this disharmony that Mr Hall recalls Mr Williams telling him that he felt that there was something wrong but he could not quite put his finger on it. Mr Hall, while aware of the performance appraisal in late July 1999, had not seen the results of the appraisal. He understood the appraisal was in respect of Mr Hogan's technical expertise and skills on the job and not his teamwork. Mr Hall was not aware of Mr Williams' note and the view expressed that they were all working in well. In the end, Mr Hall was acting upon the view of senior managers which presumably included the views of Ms Delf. None of those involved in the assessment of Mr Hogan's probationary period seemed to have been aware that: (a) Ms Delf was of the view that nothing much had occurred involving Mr Hogan before the argument late in July 1999; (b) Ms Delf thought Mr Hogan's IT skills were good and that he would co-operate in this area by volunteering to do work when others were in difficulty; (c) Mr Hampton thought that there was no real problem with Mr Hogan, that there was a fair working relationship between them and that they got on quite well; (d) Ms Edwards had little in the way of relevant information apart from some things told to her by others in the office, mainly from her "good friend", Ms Delf. Ms Edwards had left work on maternity leave on 5 July 1999, more than two weeks before Mr Williams' laudatory appraisal of Mr Hogan.

[174]

175 Mr Hall went to some lengths to emphasise that the sexual harassment complaints by Ms Delf were not considered in coming to the view that Mr Hogan's employment should be terminated. In the interview with Mr Williams and Mr Hall, Ms Delf informed them of the row which took place on 28 July 1999 but also told them that the issue had been satisfactorily resolved to the extent that it was unnecessary to raise the matter with Mr Williams. The question then arises: What was the reason for the dismissal if these matters played no role? What was it that demonstrated Mr Hogan's lack of flexibility and inability to fit in and be a team player? Mr Williams' concern appears to be that on one day Mr Hogan took leave which potentially left the office short handed. He went as far as to say in evidence that it amounted to deceitful conduct but did not explain why it was so. Mr Hogan explained that he had made the arrangement with Ms Delf as time in lieu and it was recorded in the interview book as being the most appropriate way of indicating that he would not be in the office. There is no evidence that Mr Williams checked Mr Hogan's story with Ms Delf and Ms Delf makes no mention of it in her evidence. Considering that every aspect of Mr Hogan's service which could generate a complaint was searched for and aired in the proceedings, it is extraordinary, to say the least, that his explanation was not challenged. On that basis, there can be no deceit and, at worst, there may have been a failure of communication with the office manager by both Ms Delf and Mr Hogan. As a one off event, where an explanation was proferred which was not challenged, it could hardly have justified the decision to terminate. The complaints about long cigarette breaks, the time when lunch breaks were taken and the use of the office toilet appear to have been treated, appropriately, as minor issues by Mr Williams. If they were of any importance at all, Mr Hogan was entitled to expect that they would be raised with him in his performance appraisal in late July 1999 - they were not. The conclusion available is that, despite Ms Delf informing Mr Williams and Mr Hall that the argument on 28 July 1999 had been resolved, it was that event which was the catalyst for their consideration and became the basis of their conclusion that Mr Hogan was not a team player. Indeed, Mr Williams was concerned that Ms Delf was upset and wished to resign. This conclusion raises directly an issue pleaded by the applicant, namely, that the arrangement was unfair because it required him to make claims for placement fees which were not justified. That is the issue which led to the row, it is the row that seems to have so badly affected Ms Delf and it is Ms Delf's reaction which appears to have so affected and influenced Mr Williams and Mr Hall.

[188]

188 In this case, the fundamental complaint by the applicant is the way the contract operated and permitted pressure to be applied to him to make claims which were not justified under the arrangements between the respondent and the Federal Government. The bulk of the applicant's evidence and the evidence called by the respondent was directed to this issue. A variety of questions were raised: Was there in fact such pressure?; Were there in fact such claims?; Were these claims the real reason for the heated dispute which took place on 28 July 1999?; Was this conduct an operative factor in the treatment of the applicant by the respondent's representatives? Mr Hogan took his complaint about the manipulation of the system of placement fees to the General Manager of the respondent, the Prime Minister, the responsible Minister, the Opposition spokesman and his local Member. He was clearly offended by the proposition that such claims should be made in order to facilitate the respondent's business, including that of its Windsor office. Just as clearly, those involved in the heated dispute and in handling its aftermath were openly hostile to the allegations made by Mr Hogan. In a personal sense, some of the witnesses were clearly taking the opportunity during their evidence to establish that they had been guilty of no wrong doing, while others were at pains to demonstrate that they had not failed, in any sense, in applying proper business procedures in the operation of the Windsor office. This was the essential focus of the case. 189 That central focus was a reflection of the claims in the Summons for Relief. An order was sought varying the contract or arrangement between the applicant and the respondent so as to include a variety of terms, all aimed at removing as a requirement of his employment the making of claims which were either dishonest, unprofessional or unjustified. An order was sought that the contract be varied by reducing the period of probation. Variations were also sought so as to prohibit dismissal because of any failure by the applicant to engage in practices which were attacked as being dishonest or unprofessional. The fact that the pleadings referred to dismissal could not be determinative of the issues, just as the termination giving rise to the claim for a higher redundancy pay was not determinative in either of the issues in Beahan. In addition, the grounds included a complaint that the applicant was in an unequal and inferior bargaining position in his dealings with the respondent. These elements are classic examples of situations where s 106 may operate.

[197]

198 Reference was made to Australian Broadcasting Commission v Industrial Court of South Australia and amor (1976-1977) 138 CLR at 399 where Commonwealth legislation exclusively occupied the field such that there was no room for the operation of State law. Reference was also made to McGowan v Australian Broadcasting Corporation (2001) 104 IR 244 where the Australian Broadcasting Corporation Act covered the field of the employment of its employees to the exclusion of the operation of s 106 of the New South Wales Act. Attention was drawn to the decision in Hudson v Qantas Airways Ltd (1985) 10 IR 331 and the consequences of a Federal award being silent on certain issues and whether, in such circumstances, inconsistency under s 109 of the Constitution arose. The respondent further relied on the judgment in Burgess and ors v Mount Thorley Operations Pty Ltd [2002] NSWIRComm 106, noting that s 170VR of the Workplace Relations Act dealing with the effect of AWA's on other laws was in similar terms to s 170LZ dealing with certified agreements and s 152 of the Workplace Relations Act 1996 dealing with awards prevailing over State laws. Reliance was placed on the decision in Barry v Australian Broadcasting Corporation (2002) 112 IR 33 and the approach in Moore v Newcastle City Council; re Civic Theatre, Newcastle (1997) 77 IR 210. 199 In substance, the respondent's submissions quoted the approach adopted in the various cases cited but made little or not attempt to indicate the relevance of the approach for the purposes of the present matter. In many respects the argument proceeded on the basis that the mere existence of a Federal award and an AWA meant, at least in relation to probation and probably in relation to termination, that there was no room for the operation of s 106 of the New South Wales Act. The parties' attention was drawn to the recent judgments in Thornthwaite v Australian National Credit Union Ltd [2002] NSWIRComm 240 and Scott v Picone and ors [2002] NSWIRComm 239. Both parties were given leave, and indeed took the opportunity, to file further written submissions in relation to these judgments. 200 The respondent's further submission noted that in Thornthwaite's case the Federal instrument involved was a certified agreement and a Federal award, while in Scott's case the matter revolved around the provisions of a Federal award. It was submitted to be significant that the applicant's case raised the issue of an AWA and the personal nature of the AWA applying to the specific individual. Mr Hogan signed the AWA. It was never explained how the so called personal nature of the AWA affected the application of established principles in dealing with alleged section 109 inconsistency. If anything turns on the point, it appears to be incorrect in any event. The evidence was that the terms of the AWA were basically common to the respondent's operation. Further, the Workplace Relations Act 1996 permitted an AWA to be collectively negotiated but required it to be signed by each individual. On the evidence, there does not seem to be anything of a particular nature referrable to Mr Hogan contained within the AWA except the relevant part of the general wage rates applied to persons who performed his class of work. There was nothing in the evidence to support a conclusion that any particular part of the agreement was personal to the needs and requirements of Mr Hogan. While the AWA is approved by the Employment Advocate in most cases rather than the Commission, it is still required to meet a no disadvantage test, meaning that it must not disadvantage the employer in relation to that person's terms and conditions of employment, which usually requires a comparison with a designated or relevant award, here apparently the Employment National (Administration) Award 1999. Just like certified agreements, whilst it remains in operation, the AWA overrides any inconsistent Commonwealth award (except for a specially arbitrated award under s 170MX), as well as overriding any inconsistent certified agreement made before the AWA, where the nominal expiry date has passed. Under s 170VQ(4), during its period of operation, an AWA operates to the exclusion of any State award or State agreement that would otherwise apply to the employee's employment.

[202]

205 In the present circumstances, particular reference may be made to the decision of the full Industrial Court in ICI Australia Operations Pty Ltd (t/as Dulux Australia) v Hutton (1993) 47 IR 288. There the issue was said to be inconsistency between an order made under s 88F of the State Act and the provisions of the Federal award governing the employment. The Full Court noted that clauses of the agreement were similar to those found in Ansett Transport Industries (Operations) Pty Ltd v Wardley (1978-1979) 142 CLR 237. In the course of rejecting the submission that there was s 109 inconsistency, the Full Court stated: Section 88F gave power to the Commission to avoid or vary contracts or arrangements including contracts and/or arrangements of employment and was restricted to the circumstance of the particular contract or arrangement involved. Section 88F did not provide a vehicle for general changes to employment conditions. The legislation considered in Wardley was characterised as dealing with social questions in contrast to 'being narrowly confined to employment relationships determined in the settlement of an industrial dispute' …; the same might be said about legislation such as 88F which deals with the unfairness, harshness and unconscionability of a particular contract or arrangement. On the approach adopted in Thornthwaite and Scott , s 106 of the New South Wales Act may be said to deal with contractual unconscionability while awards and certified agreements (and I would include AWA's) deal with a distinctly different subject matter. That is why, generally speaking, there is unlikely to be found inconsistency between s 106 of the Act and these Federal instruments. Without repeating them, I adhere to the approach set out in Thornthwaite and in particular the summary of considerations set out in paragraph [77] and those mattes dealt with in sub-paragraphs (d)(h)(j) and (n) as particularly relevant to the present case, and also the contents of paragraph [81].

[203]

206 Before applying these principles to the facts of this particular case, it is appropriate to consider the issue of whether or not the terms of the AWA were incorporated in Mr Hogan's contract of employment. The respondent made reference to the majority judgment in Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193. The majority held that a written contract of employment which stated that the employer agreed to abide by all company policies and practices currently in place, any alterations made to them and any new ones introduced, became a contractual term which obliged the employer to pay redundancy payments set out in its Policy Manual. In BHP Iron Ore Pty Ltd v The AWU (2000) 102 FCR 97, a Full Court of the Federal Court considered the principles applicable in deciding whether an award had been incorporated into a contract of employment. In that case, new employees were given a document which contained the following clause: The terms and conditions of employment which include, but are not limited to those set out herein. In general, the terms and conditions of employment are as prescribed in the Iron Ore Production and Processing (BHP Iron Ore Limited) Award No A29 of 1984 and the BHP Iron Ore Enterprise Bargaining Agreement 1993 (EBA) and the Stage I and II Award Restructuring Agreement. Where any inconsistencies exist, the conditions as set out in the EBA shall prevail. Employment with BHP Iron Ore Pty Ltd is dependent upon acceptance of all the items and conditions of employment. At first instance it was decided that it was seriously arguable that this document served to incorporate the terms of the award into each contract of employment. In relation to this approach the Full Court stated: [81] We have been persuaded that His Honour's approach to this issue was not correct. In the first place, it is now authoritatively established that if an award is to be incorporated into a contract of employment, express provision to that effect is required (see Byrne v Australian Airlines Ltd (1895) 185 CLR 410. In Byrne it was held that the obligation to observe an award arose by force of statute, not because the award was imported into a contract of employment independently of the parties' intentions; and that the provisions of the award were not an implied term of the contracts of employment, because the implication was not necessary for their reasonable and efficient operation in all the circumstances. [82] Secondly, we have difficulty in accepting that the document relied on by his Honour was intended to have the contractual force suggested. The document is entitled 'Information for New Employees at Newman'. In our view, that is an appropriate description of its character. In its form and in its substance it is not, and does not purport to be, an independent contract of employment, or a document recording or evidencing such a contract. On the contrary, the document makes it plain that the employment relationship is governed, not by any free-standing contract, but by the award. [83] The document commences with the statement which we have set out above, under the heading 'Conditions of Employment'. As has been seen, it is there stated that the conditions of employment are: '[i]n general … as prescribed in the … Award … and the [EBA]' and that '[w]here any inconsistencies exist, the conditions as set out in the EBA shall prevail'. This makes it plain, in our view, that the relationship is governed by the award and the EBA to the exclusion of any independent contractual arrangement. … [85] In our opinion, when the document is read as a whole, it is clear that it was not intended that the terms of the award were to be picked up as a free-standing contract of employment (see Secretary of State for Employment v Associated Society of Locomotive Engineers and Firemen (No 2) [1972] 2 QB 455 at 490).

[204]

207 The respondent's letter to Mr Hogan required him to accept the offer of employment detailed in the letter of appointment on the conditions outlined therein. That letter contained the following paragraphs: It is a condition of this offer of ongoing employment that you and the company enter into two agreements: firstly, an employment relationship agreement which is an Australian Workplace Agreement (AWA) made under the provisions of the Workplace Relations Act 1996 and secondly, an agreement to terminate that AWA when a certified agreement is made and certified by the Australian Industrial Relations Commission. Copies of both agreements are included in the Information Kit that accompanies this letter … As has already been explained, the AWA is accompanied by an agreement that allows the termination of the AWA in certain circumstances. It is a condition of your employment that you enter into this agreement. The agreement allowing for termination of the AWA is designed to bring to an end the AWA so as to permit effect to be given to a collective certified agreement between Employment National (Administration) Pty Ltd and its operational and support staff when such an agreement is made. In addition to the AWA, the company has a Personnel Policies and Procedures Manual which sets down other matters relating to the regulation of your employment within the company. A copy of the Manual is included in the Information Kit. You will be required to comply with the policies and procedures contained in this Manual. One of the important matters referred to in the Manual relates to a probationary period of employment. You will be on probation for the first three months of your employment and during this period your technical ability to do the job, your ability to work effectively in a team and your performance generally will be monitored and assessed. Your manager will outline any specific requirements relating to this condition of employment. You can be dismissed for any reason during this period by the company giving you one week's notice or one week's pay in lieu of notice. Employment with the company as Client Service Consultant will be full-time and ongoing. It can be terminated by you or the company giving a minimum of one months notice. If the company is required by legislation to give more than the notice specified above, additional notice will be given by it or it will make payment to you of a corresponding amount of salary in lieu of the additional notice. Should your employment be terminated for any reason other than serious misconduct, the company's redundancy arrangements, if applicable, will apply .

[207]

210 The only clause of the AWA of relevance, in light of what is known of the Manual, was clause 5 which was headed "Policies and Procedures" and was in the following terms: Company Policies and Procedures Support Agreement This Agreement is supported by policies and procedures determined by the company from time to time. These policies and procedures will not reduce your substantive entitlements as set out in this agreement, but provide guidelines for the fair and efficient administration of the employment relationship. You and the company must comply with these polices and procedures. A nice question arises as to what flows from these terms of the AWA in relation to probation. It appears that the letter of offer which constitutes the contract of employment, did not independently require a probation period of three months. The letter of offer required the policies and procedures contained in the Manual to be complied with and noted that an important matter was the probationary period of employment. It may well be that the contract of employment, by reference to the terms of the Manual, required a probation period of three months. But what is the effect of the provisions of the AWA? The AWA itself required no period of probation. It was to operate regardless of any award covering the employment. In making no provision in relation to probation, which from a new employee's view is a benefit of some significance, the AWA then, in several places, confirms ongoing, full-time employment subject only to redundancy arrangements when they arise. Ongoing employment was offered in the letter of appointment and in the AWA"… it is a condition of this offer of ongoing employment …", "… employment with the company as a Client Service Consultant will be full time and ongoing …"; employment would be ongoing under the AWA, except for redundancy. Clause 25 also referred to ongoing employment. These references confirm that no other matter in the AWA conditioned employment to a period of probation. The only way the AWA could make a period of three months' probation applicable to the signatory is by operation of Clause 5. It is clear, however, from the terms of Clause 5 that the policies and procedures in the Manual were not to reduce "your substantive entitlements as set out" in the AWA. The next thing to note about Clause 5 is that the AWA is "supported by" the policies and procedures of the company and that they "provided guidelines". This is not the language of incorporation. The language suggests that the clause is no more than a note of the role otherwise played by the company's policies and procedures, and acknowledges that they were to be complied with in accordance with their own terms. It is also to be noted that in the letter of offer the respondent stated that "… in addition to the AWA, the company has a Personnel Policies and Procedure Manual …". (emphasis added). It seems the clear intention that, to the extent of any inconsistency, the terms of the AWA would prevail over the company's policies and procedures. Such a provision preserving the terms of the substantive agreement is of significance considering that these arrangements are frequently entered into with individuals who may be expected not to have the same access to advice and resources as a corporation or even perhaps a union member. In all the circumstances, I am unable to accept that the AWA specified, by incorporating the terms of the company Manual, a period of probation. In those circumstances, the probationary period (if it exists) is contractual and is not imposed by the terms of the AWA. This position is confirmed by the letter of termination which stated that the respondent was acting on the terms of the Manual and makes not mention of the AWA. No issue of inconsistency under s 109 of the Constitution therefore arises. There is also force in the applicant's submissions that the terms of the Workplace Relations Act 1996 and the AWA leave unimpeded the application of the general law and provisions of the general law such as s 106 of the New South Wales Act.

[211]

213 Having considered these various matters in relation to the respondent's s 109 inconsistency argument, that argument needs to be briefly analysed for the purpose of applying the principles which I have indicated I propose to adhere to as set out in Thornthwaite and Scott. In the respondent's written outline of submission it was stated that four terms were sought to be inserted in the contract of employment by way of variation but there is no suggestion in the written submission that those variations (which were otherwise opposed) raised issues of s 109 inconsistency. The written submission proceeded substantially, if not totally, upon the basis that the period of probation imposed by the AWA could not be altered by order of this Court under s 106 of the Act because of s 109 inconsistency. I have earlier analysed the terms of the letter of appointment and the AWA and concluded that the period of probation formed no part of the AWA and, in particular, did not become part of the AWA by incorporation of the Personnel Manual. This fundamental part of the respondent's s 109 inconsistency argument therefore fails. Although not put in terms, it may be possible to regard the respondent's inconsistency argument to raise two further questions: (a) That termination of the applicant was covered by the AWA; (b) the AWA covered the field of employment provisions leaving no room for the operation of s 106 of the Act. These arguments can be quickly disposed of. The question of termination, whether or not covered by the AWA, simply does not arise because in terms there is no order sought and none proposed to be made which seeks to overturn the termination of the applicant. In relation to the AWA covering the field, there was no analysis by the respondent to make out such an argument and in any event, the detailed terms of the letter of appointment indicate that the employment would be governed by terms contained in that letter, the Manual, as well as terms contained in the AWA or the certified agreement which would replace it. That conclusion would be, in addition, supported by an application of the matters referred to in paragraph [52] in Scott. The s 109 case for the respondent, of course, leaves untouched the variations to the contracts sought by the applicant arising from the conduct of the respondent: those orders are primarily opposed on the basis of merit considerations.

[214]

216 The respondent also raises the applicant's behaviour. In essence, the argument is that once having formed the view that there was a fraudulent practice in dealing with FOE the applicant was under an obligation to immediately raise the matter with the respondent and put the respondent on notice. It was submitted that apart from failing to take such prompt action, the applicant, in essence, kept this information secret to himself so he could use it to his own advantage at a later time. The first thing to note about this submission is that it does not accord with the facts I have found. It appears that when the applicant discovered the practice in relation to FOE's, late in his period of probation, he raised it in a heated argument with Ms Delf who was the second in charge of the office and his immediate superior. He appears to have been so disillusioned by her response, supported by Mr Hampton, that, after discussing the situation with his wife, he determined that the better course for him was to leave his employment in circumstances where he had been out of work for a considerable period and obviously was in need of the job. Far from keeping the procedure secret he exposed it and when confronted by the continuing attitude of defiance by those in charge and those with whom he worked, he chose to give up his job which must have been a very difficult and serious decision for him to make. Further, there is no suggestion that in the three weeks that he was aware of the inappropriate procedure in relation to FOE's that he was under any investigation or other detriment that might suggest to him that he could keep the information secret to ward off the effect of an impending adverse decision about his employment. In fact, he had just been given a glowing appraisal by the officer in charge and there was no evidence to suggest that before 10 August 1999, he had any reason to doubt that his employment was in danger. It is also understandable that in the circumstances of being confronted by two senior officers and being informed that he was not a team player, Mr Hogan proffered a reason why there was no team spirit, namely the disagreement about the procedure in relation to FOE's. Mr Hogan appears also to have been influenced by his view of what happens to "whistleblowers" - namely that they become the victims. He was frank in stating that in effect he was not courageous enough to become a whistleblower, especially in circumstances where he did not believe he had support from two of the three other people similarly employed in the office. This view was expressed from the time of the heated argument. It was not a case of Mr Hogan keeping this information to himself in order to advantage his position - it was a reaction to a workplace philosophy with which he could not agree and where he and his wife determined he was better off to resign.