Kathryn Jean Anne Stewart, clerk; employed by AGC since 1992.
(affidavit evidence only; accepted over objection; medical grounds for non-attendance).
Submissions - Applicant
12 Mr P Newall of counsel for the applicant, stated that, shortly put, it is a case in which an employee Mr Gary Murphy, who was employed for some 24 years by the respondent, rising up through the ranks to a managerial position, was dismissed by the company; and when dismissed was paid four weeks pay in lieu of notice. That was not even the minimum amount required under its own termination policy. That is the first principle of unfairness and the contract which allowed it was unfair.
13 The unfairness is compounded by the fact that the matter for which Mr Murphy lost his job, and indeed his continuous career, was simply a vague and unspecified allegation of victimisation made by Ms Power, a person known to be antagonistic to Mr Murphy in work and which allegation Mr Murphy rebutted thoroughly in writing.
14 The bulk of the allegations relied on Ms Power's word against Mr Murphy's, and on that basis a large number of them were found proven, although those making the decision to terminate Mr Murphy's services each said that the respondent could not accept any allegations Ms Power made just because Ms Power said so.
15 Ms Power was demonstrably not a person of reliability. All three decision makers recognised that allegation 3 was untrue and was nevertheless advanced deliberately by Ms Power as an untruthful allegation. Nevertheless, that fact did not cause any of them to question any of the other allegations.
16 It is clear from the evidence that Mr Murphy's employment was only terminated by reason of the allegations made by Ann Power, and the view taken by AGC that those allegations constituted proven victimisation of Miss Power by Mr Murphy, for the reason that Ms Power was involved in earlier claims of harassment against Mr Murphy. That is the reason AGC gave for the termination of his employment. It is the respondent's unequivocal position but for the Power allegations Mr Murphy would have remained in employment as a senior manager. On any view of the evidence, however, there are a number of fundamental problems with terminating Mr Murphy for that reason.
17 Firstly, the victimisation allegation could not be made out in the fact. That is quite clear from the complete confusion into which the three decision makers fell when actually asked about the evidence supporting the individual allegations.
18 Secondly, leaving aside whether the allegations can be proved as a matter of fact or not, not a shred of evidence connected Mr Murphy's alleged behaviour to Ms Power to any involvement by her in sexual allegations brought against Mr Murphy. Neither Mr Street, Mr Georgiou, nor Miss Dunn could point to any evidence that there was any connection. They each assumed a connection. There is no such evidence and that means that the reason given for the termination is a complete farce.
19 When they were asked about the connection between Mr Murphy's alleged conduct towards Ms Power and her involvement in the allegations, Mr Georgiou said, "I assumed it". Mr Street also said that he assumed it but he also conceded there was not a shred of evidence to make such a connection. Mr Street then went on to say that he did not see any need to establish such a link. Ms Dunn said she assumed it because of the time of the events that Ms Power complained of but she had not bothered to ask Ms Power when the bulk of them occurred.
20 There was no link. They did not look for a link. Both their failure to look of itself and the absence of a link are completely fatal to the proposition that Mr Murphy victimised Ms Power. It can not be made out and it was not and for that reason a termination on the basis of victimisation was and remains fundamentally and completely unfair.
21 In the termination process Mr Murphy was denied procedural fairness. On 1 December 1997 Mr Murphy was invited whilst in a meeting to attend another meeting with some executives of the respondent. He was not told what it was about. When he got there he was given a letter that set out some allegations against him which related to these victimisation allegations. He was given 24 hours to go away and prepare his defence. He was denied a support person. Mr Murphy's evidence is he wanted an extension of time and he was not granted it so he could get some advice.
22 The allegations were vague and duplicitous and incapable of being understood even by the people putting them as became clear from the evidence, let alone by Mr Murphy, although he made a good effort to respond to them in his written answers. The fact that the allegations were ridiculously imprecise was a very important matter. No one in the serious position in which Mr Murphy found himself, having to write an answer overnight to defend his career and job, should be faced with allegations as vague, imprecise and repetitive as the ones with which Mr Murphy was faced.
23 It is absolutely inexcusable for anybody who was even pretending to investigate and decide on this Murphy matter, not to ask Ms Power or cause her to be asked the obvious questions as to when, where, who was there, in relation to her allegations.
24 There is another procedural fairness issue which comes from this and that is it only arises if Mr Georgiou's evidence on his oath is to be believed. That evidence is unconfirmed by Ms Dunn and Mr Street. It is probably the case that Mr Georgiou, on that point, ought not be believed but if the applicant is wrong about that, then what he says is quite significant. In relation to the fourth allegation, Mr Georgiou said he had heard Ms Power make specific reference to a Credit Line meeting but the respondent had omitted to tell Mr Murphy of that detail. If he is telling untruths, then one must wonder about his credit in the whole proceedings. [That last proposition was Mr Newall's final position on the point.].
25 There was further unfairness because while Mr Murphy rebutted the allegation of victimisation in writing, and in doing so, provided the respondent with the names of a number of witnesses to events that were said to be against him and documents which would make it clear that the allegations could not be substantiated, the respondent in coming to its decision, neither spoke to any of those witnesses, nor looked at any of those documents. The respondent took just one hour from the time that Mr Murphy on the following day provided them with ten pages of a typed rebuttal of the allegations to hand him the termination letter.
26 The unfairness does not end there because 6 months prior to his termination Mr Murphy was given a written warning on the basis of some other allegations of a different kind which were equally unsubstantiated. Apparently the contract allowed that to happen as well and for that reason too the contract was unfair.
27 In truth, the fact of the previous warning, and indeed whether or not the previous conduct that Mr Murphy was accused of in 1996 and 1997 occurred, is not a relevant consideration for the Commission's assessment of the fairness or unfairness of his contract. That conduct was not what he was dismissed for. He was dismissed solely for the Power allegation.
28 It is clear Mr Murphy used some inappropriate language to Ms Campbell at one time. Mr Murphy says so. He told AGC that at the beginning. Indeed he volunteered that information in the beginning. That is not in contest.
29 There are some other matters which are highly relevant, for instance Ms Stewart, whose affidavit is before the Court, has not been able to be cross-examined. She made a number of assertions which would have been tested in cross-examination. The Court could, at best, give negligible weight to anything Ms Stewart says in her affidavit which has not been tested.
30 The evidence makes it apparent how unfair AGC has been to Mr Murphy.
31 The evidence the decision makers had was that which Ms Power had said to two of them in a meeting of two and a half hours, all the important parts of which produced a half a page of file notes. They had the 10 page response Mr Murphy gave them where he makes some admissions. He said he took Ms Power off the surrogacy list. That 10 page document set out both his own evidence and the names of a number of witnesses. After one hour's consideration the three decision makers found 9 out of 10 matters separately proven against Mr Murphy. They each said it was on the basis of those specific factual findings on 9 out of 10 allegations that Mr Murphy was dismissed.
32 Yet when the three decision makers were actually asked about each of allegations, it becomes entirely clear that the allegations are not factually proven, and it also becomes clear that a very small amount of thought would have made that very clear to the three of them. That raises the question, why didn't they think about it. The answer the applicant says is they did not wish to, because it might have interfered with the course they wanted to take. Ms Dunn, for instance, seized so eagerly on the Power allegations because she wished Mr Murphy to be dismissed, having said to Ms Stewart back in August "if we receive one more complaint his services will be terminated."
33 Ms Dunn and Mr Street had preconceived the issue and that Mr Murphy had no chance of coming out of it successfully. It had been decided in advance to dismiss Mr Murphy. That is the only sensible explanation of why such senior people acted in such a careless, haphazard and apparently biased way. The Court does not need to find there was a conspiracy. There is plenty of unfairness without that. The fact is the dismissal was unfair.
34 The applicant needs to deal with the actual allegations put to Mr Murphy, and the fact that they were not made out, because it is important to show that they were without substance. [I have not referred to all of Mr Newall's submissions in relation to each of the 10 allegations.]
35 The first allegation was essentially that Mr Murphy slammed the door in Miss Power's face. Mr Murphy denied that. More, he gave a very detailed account of the circumstances to which he thought Miss Power was referring, and when one looks at the dates and Mr Murphy as having been sent off from work to consider his defence, it could only have been that one occasion. That was found factually proven by AGC and contributed to Mr Murphy's termination.
36 Allegation 2 is the surrogacy status. It is now clear that did not have the effect of excluding Ms Power from the work information link. It just stopped her having access to Mr Murphy's own files. That is not victimisation. It was entirely justifiable that Mr Murphy take that action to prevent Ms Power accessing his own files in circumstances where Ms Power had actively spread false rumours about Mr Murphy's private life.
37 Allegation 4 is that Mr Murphy excluded Ms Power from meetings with her direct supervisors [sic] that he conducted. This allegation, Ms Dunn says, is the same as 6 and 9. Ms Dunn could not specify any particular meetings to which this or number 6 or number 9 referred. She could not say how it came to be that she did not think to ask Ms Power when the allegations were made.
38 Allegation 5 comes down to an allegation that Mr Murphy did not send out an inclusive e-mail about Ms Power. Even if it were true, that is not a sacking offence. This whole issue about the e-mail to Ms Power was a matter which had been the subject of discussion between AGC management and Mr Murphy back in October 1997. Back in October it was a matter of feedback, not even discipline. In December, the offence had not been repeated; the e-mail was sent out; it becomes a sacking offence.
39 Allegation 8 is that Mr Murphy did not debrief Ms Power when she returned from sick leave and he told her there was nothing she needed to know. Mr Murphy's written account, confirmed in his oral evidence, is quite clear that he did not say that. Mr Street accepted that Mr Murphy did arrange to debrief Ms Power on that day. Mr Street had known all about this matter since October, when he was told about it by the applicant. By Mr Murphy's evidence, if Mr Street has the grace to agree that Mr Murphy had raised the matter with him in October, and no disciplinary sanction was taken at that time, it would be unfair to dismiss him for it in December, but that of course is exactly what has occurred.
40 Allegation number 10 has every appearance of being a fabrication by Ms Power or someone. Not one of the decision makers could properly identify when Ms Power conveyed it to them until Ms Dunn told the Commission on the last day of her evidence, which evidence also concluded the respondent's case, that it was in the meeting of the 28 November. Ms Dunn did not ask Ms Power for any details as to time or place. Nevertheless it was accepted as a proven example of victimisation of Ms Power by Mr Murphy after August 1997, despite the fact that the decision makers say that they have no idea when it was said and it could have been any time within a number of years, leaving aside there is not a shred of proof it was actually said. Mr Murphy denied it absolutely.
41 Having somehow found nine of these 10 allegations, each of them separately factually proven either with scant evidence, or without evidence for some of them, the respondent then went on to dismiss Mr Murphy for victimisation. Victimising Ms Power was constituted by acting to her detriment or differently towards her because of her involvement in the sexual harassment allegations. It had to be conduct that happened after 22 August or it could not be victimisation by reason of Ms Power's involvement because Mr Murphy did not know before that date that she was involved.
42 There was not a connection between Mr Murphy's alleged conduct, such of it as did occur, and Ms Power's participation in the sexual harassment allegations. Even if the allegations had been made out, there is a fundamental responsibility on AGC if they are going to find the man guilty of victimisation to establish that there was a link, on the one hand, between Ms Power's involvement in those allegations which Mr Murphy found out about on 22 August, and on the other, his conduct towards her. The three decision makers had not even realised that it was an absolutely necessary part of the victimisation allegation against Mr Murphy that they demonstrate a connection between Ms Power's involvement and his conduct, yet that was what the termination was for.
43 Under the contract that Mr Murphy found himself under, AGC did not have to establish, in order to dismiss him for victimisation, that there was any connection between his actions and Ms Power's involvement in the August allegations. AGC did not have to look for it and did not have to prove it. That was how unfair the contract was.
44 The contract which allowed his termination to occur was unfair, because AGC's own termination policy was that it afford Mr Murphy procedural fairness and it did not do that. Mr Georgiou, the chief human resources manager firstly denied the existence of an AGC policy on aspects of dismissal. When shown it, he admitted that he was unaware of it when he decided to dismiss Mr Murphy.
45 This firm is a particularly big firm and because it might be named in Parliament, seemed to be sensitive to questions of harassment and discrimination.
46 It is very clear from Ms Dunn's affidavit that the major concern was the possibly of AGC being exposed to some sort of claim by Ms Power. That has been AGC's driving rationale through this whole process. AGC's whole conduct should be seen in the light of the comment by Mr Thomas when Mr Thomas talked about shooting some leading bull. It seems that Mr Murphy was selected as a victim and terminated to show AGC's concern about harassment. That will not do. That makes the contract unfair. (The reference to "shooting the leading bulls to shake the rest of the herd up" goes to a statement the applicant says was made by the respondent's Managing Director, Mr Thomas, in mid 1997 as to changing the company's directions. That statement was taken by the applicant to mean that a shake out of long term employees could be expected.)
47 The applicant's proposition that this matter was predecided was confirmed by the indecent haste that it would be decided in an hour, not just the fact that it was decided before Mr Murphy's response was received. When one looks at the termination letter which was obviously thrown together, but signed off by Ms Dunn and Mr Street, it is only a few lines long, but on Ms Dunn's evidence it contains a number of substantial errors, e.g. the proposition that Mr Murphy had received a formal counselling session is manifestly wrong on the evidence of both of them.
48 All of that unfairness means that the contract which manifestly fails to make any provision protecting Mr Murphy against unfair dismissal was unfair.
49 The Commission cannot re-establish the employment relationship. However, it is clearly a matter for the Commission to consider in addressing a remedy for unfairness suffered by Mr Murphy and finding that the respondent had no reason at all to terminate his employment and his career, and that it did so and was able to do so, without offering any kind of procedural or substantive fairness.
50 The way in which the termination was done, and the complete baselessness of the allegations made would further weigh in the Commission's discretion as to the sum that ought to be given to Mr Murphy in that a respondent should not be allowed to avoid the consequences of its behaviour (see Day v Lumley Life Limited [(1999) 90 IR 70 at 93] ).
51 Each case should be made on its own merits and relevant matters as to what ought to be a proper period of notice or payment in lieu thereof, include age, seniority, length of service, status and salary (see decisions such as Quinn v Jack Chia (1992 VR 567 at 579), Payne v Foxboro [(1998) 81 IR 404 at 407-8], Barry v Incitec [(1992) 45 IR 148], Gala v State Bank of NSW [(1998) 84 IR 216] and Newton v Goodman Fielder Mills [(1998) 81 IR 227].
52 The applicant sought that the Commission remedy the unfairness shown to Mr Murphy by at least varying the contract so that it did not allow the respondent to terminate a man in a senior position with 24 years service on the basis of a completely inadequate 4 weeks payout in lieu of notice, but rather with a greater sum as set out in the pleadings.
53 If the Court is against the applicant on the two years sought, 18 months would be comparable to relief offered in this jurisdiction and would be the minimum entitlement. Any relief by way of compensation should be upon the whole of his remuneration and not just the salary, together with interest and costs.
54 In view of all the circumstances, the Court should not exercise its discretion to reduce the effect of any order for payments to Mr Murphy by having regard to earnings since termination.
Submissions - Respondent
55 Mr B Hodgkinson of counsel on behalf of the respondent advanced four basic propositions: Mr Murphy was undoubtedly guilty of sexual harassment. Mr Murphy lied to AGC about it. Further, when faced with the facts, he was unrepentant, both in this Court and when AGC had brought the facts to him. As a consequence of his engagement in harassment he was given a final warning which he understood with clarity. That is, he understood that any single action which could be said to be in breach of the harassment policy, including victimisation, had the real and substantial potential of leading to his dismissal and he was aware of that for a good period of time. He ultimately, when faced with the facts admitted that he did victimise Ann Power.
56 The complaints about vagueness, complaints about procedural fairness, are not borne out in Mr Murphy's evidence.
57 What is being dealt with is a recognised difficulty in employment circumstances. As was accepted by Mr Murphy, a lot of times when issues of harassment, including victimisation, arise, they arise out of one on one circumstances. It is only the fool or extrovert who behaves so badly in front of others as to have witnesses to his indiscretions or worse.
58 What the applicant has put forward is a variation of a smoking gun defence. That is Mr Murphy advances a case based upon this proposition: AGC did not find him with the smoking gun in his hand, AGC is therefore required to accept his denials because there are no witnesses; because AGC has only got a person making allegations and AGC has not caught him doing it. Now, that defence often works in the criminal law system because of the standard of proof required. It is even a defence that has found some success when the civil standard in courts are applied to evidence. However, neither of those standards apply to the application of management in an employment circumstance. It has been accepted in many cases that an employer can proceed upon a well founded suspicion. It does not have to be established to the extent that would be required in an administrative tribunal. It is merely to say that in the circumstances the opportunity to be heard must be provided and the accuser must provide a direction in which the person alleged to have committed whatever it is that is alleged, may direct the mind. Really it amounts to no more than that.
59 Mr Murphy's evidence was evasive, both in his affidavits and in his oral evidence. Mr Murphy's position was that of a senior management member of staff. He had the responsibility for a significant number of staff members, approximately 60 and the majority of those people were female. He was responsible for the implementation of the harassment policy about which he was aware.
60 AGC as an employer is entitled to rely upon the integrity of its senior management staff, the more so when they are long term employees, and it is entitled to expect from those staff a very high standard of behaviour in areas where they have published policies and trained the members of the staff in the implementation of those policies and placed within the purview of that person's responsibilities the very implementation of those policies. The fact that Mr Murphy had 24 years service weighs heavily against him in that he was found to have breached those policies. He did not care whether it was breach of the policy because it was his management style, it had always been his management style and he was going to stay with that management style. The fact that it was not acceptable to the community generally, or the fact that it was not acceptable to his employer specifically, or the fact that it was an affront to those people that worked for him, who had a right to expect a workplace free of harassment, was irrelevant to him.
61 When faced by AGC with the harassment allegations, he misled AGC in his responses, for instance, by asserting, in relation to the baseball game incident that he occupied a position in the stands, that by inference, asserted he physically could not have carried out the action alleged.
62 In these proceedings, cross examination of the employees making the allegations (other than Ms Stewart who was not available for medical reasons), did not change these original contentions.
63 The employer's responsibility in the anti-discrimination legislation is to prevent. The employer does not let a matter get to legally defined harassment before the employer has responsibility.
64 Far from being the conspirators against the applicant, as had been submitted, Ms Dunn and Mr Street had in September tried to counsel the applicant against his old ways and offered support in any problems he might have in direct dealings with staff in the aftermath of the final warning. The applicant never took up those offers. Indeed, before resuming work he reiterated that he had done nothing wrong and had no reason to feel guilty.
65 The applicant's response at the meeting on 2 October, in relation to the allegations by Ms Power that she was being excluded from the team because of her earlier involvement in the harassment complaints, showed that he refused to heed warnings or understood that people were trying to show him that his own actions were putting his employment at risk. The restructuring relied upon by the applicant to say his actions did not constitute victimisation, did not justify his action as to the e-mail.
66 To say without the Power allegation, there would have been no termination is correct, but to leave it at that point is to leave out the very important steps that had led up to this position that Mr Murphy found himself in. The proposition, although it is right, cannot just be looked at it in isolation because that is not how the three investigators were dealing with it. They were dealing with a man on a final warning about harassment which included victimisation and they were dealing with the allegations made by one of the participants in the earlier process who was complaining as at October. He put himself into that position as a consequence of his own actions. Mr Murphy had an opportunity to do what he was advised would be wise, that was to actively include Anne Power but he did not do it.
67 The respondent accepted that the applicant had been able to cut away the December allegations and had got concessions from Ms Power, Mr Georgiou, Mr Street and Mr Dunn, for instance, that allegations 4, 6 and 9 are the same. Whether they are the same allegation or not, they were still not satisfactorily answered and nothing more has been put to the Court than was put to AGC, "I deny it". From his earlier written responses, it can be seen the credit that can be attached to those. This is the man who accepts that deletion from the e-mail list was victimisation, so there was evidence of victimisation. There was just his denial in the one on one situations. The fact is that the applicant asks the Court to make a decision in his favour, accepting that he has had every opportunity to put everything he wanted to, yet does not disprove the allegations, he just denies them. That is not good enough to ask this Court on that basis to make any orders in his favour.
68 Ms Power's real fault in all of this is that she did her job. She had young females coming to her saying they are being intimidated or victimised or harassed by their boss. What do they do? She stepped into the breach for them, she looked after them, she did what a good manager would do. She did not mind that he was her boss as well. She took the appropriate steps.
69 Because of the equitable nature of s 106 proceedings and the remedies available, the standards even appropriate to reinstatement cases are higher than those here required, and the concept that Mr Murphy comes to this Court with proven breaches of policies and standards in circumstances where he not only knew better but had been trained in those standards, is sufficient to exclude the exercise of discretion in his favour.
70 In the cases relied upon by the applicant, and for a moment excluding Newton v Goodman Fielder, the applicants in those cases referred to under the s 106 provisions were not terminated on the basis that there was fault on their part. This Court exercising its jurisdiction under s 106 has only come to the assistance of applicants who have been able to demonstrate an unfairness, not simply that under all circumstances the notice provision of one month's payment would be inadequate. Newton v Goodman Fielder can be distinguished because even though there was a suggestion that there was cause in that case, there were other factors that Hill J found in that case which outweighed that point. It is a very different case when it stands on its own facts.
71 In none of the cases under s 106 or its predecessors of this kind has there been established by an employer against whom an award has been made of cause for a dismissal, but here it is clearly established. The jurisdiction of this Commission and its predecessors, not only under s 106 matters but in its general industrial functions, has always been predicated on fairness. There are bases upon which the Commission would first have to determine in exercising its s 106 jurisdiction before it will contemplate intervention.
72 One of those bases is was there cause? If cause is established then there is something much stronger than mere reluctance to intervene and it ought properly be so. If there is cause, then a fair go all around is to simply leave what happened. If there are common law rights, there are common law rights because they exist as a consequence not of the redefining of the relationship but of the relationship that existed.
73 Section 106 is a very special and powerful weapon and its very wide discretionary powers would not be exercised if there is established cause. In the circumstances shown in this case no intervention is warranted, the matter will just stand.
74 The consequence of that would be the dismissal of these proceedings and a further consequence would be consideration in relation to costs. If the Court does not find favour with those submissions and finds in whole or in part in favour of the applicant, the question of costs ought to be reserved.
75 In relation to the alternative proposition put by the applicant that 18 months notice or pay in lieu would be a fair result, the respondent contended, very much in the alternative that, if one does an assessment of the cases and knowing that each case turns on its own facts, and there are many circumstances individual to each which impact on the ultimate decision the Court makes, 12 months would be a more reflective payment of a person who was not dismissed for cause, who had about 24 years service with the same employer. One could even say it was a little lower than that, nine months even (see Gala v State Bank).
76 The respondent pressed very strongly in this case that the application be dismissed.
Submissions - Applicant - In Reply
77 The respondent suggested that the Commission ought not intervene if there was an employment contract ended for cause. There is nothing in the Act or the jurisprudence of this Commission to suggest there is a distinction drawn in a jurisdictional sense, which is the way it has been advanced, between employment contracts, based upon the nature of their termination. There was no proper cause for the termination because it was wrongfully and unfairly done, but even if that were not so, that does not mean that there is some jurisdictional bar to the Commission making orders remedying an inadequate notice period with consequent orders for payment of money.
78 In relation to the door slamming allegation, the respondent said Ms Power came here to the Commission and said this was done and the applicant did not answer it. Each of the three decision makers who dismissed Mr Murphy said on their oath that they had no evidence for that matter and they could not substantiate it. It is not necessary in those circumstances for the applicant to come along and bring witnesses to say, "well, it did not happen when I was there". The respondent could not find any evidence for this at all and also, of course, told the Commission that one could not just rely on Ms Power's unsupported statement.
79 This is a circumstance where an employer has elected to terminate a very long serving employee. It did so on the grounds of proven misconduct in an area which is a serious area, victimisation. That being so, there is an onus on the employer within its own investigations to satisfy itself at a high level of proof that they actually occurred. The test in Briginshaw v Briginshaw [(1938) 60 CLR 336] is the test i.e. less than the criminal standard but well higher than the civil standard of the balance of probabilities. Yet the decision makers have come here and told the Court they had no proof of and could not find made out almost all of the allegations. That does not pass the Briginshaw test. So of course the termination was unfair.
80 Mr Murphy said that his emotions got the better of him when he took Ms Power off the e-mail. The respondent says that must be the emotion of his response to her being involved in his harassment complaints. There is no basis at all to advance that kind of proposition, particularly when it is known on the evidence that what Ms Power had been doing to Mr Murphy's certain knowledge was spreading all sorts of rumours about Mr Murphy, his private sexual life, his wife and the latter's views about her sexual life. If his emotions did get the better of him, that might well have been the reason. There is no basis to say that the Court can safely conclude that that was because of his emotional response to her involvement in these allegations, keeping in mind of course that Mr Murphy had known about Ms Power being a witness to the allegations for quite some time. It is not said that she was taken off the system then, but it does coincide with approximately the time that Mr Murphy goes to Mr Street and says Ms Power is saying these things about him and his wife.
81 It is said of the case advanced in support of Mr Murphy that it is a lawyer's argument about procedural unfairness, and in support of that some cross-examination of Mr Murphy was gone to about the time he had to respond and Mr Murphy concedes in cross-examination that on the allegations as they were presented to him, there is nothing else he could have said if he had more time. The respondent says for that reason, well, clearly then there was no procedural unfairness.
82 If one looks at Mr Murphy's written response to the allegations it can be seen that in response to allegation 2, in response to number 3, he says "as best I can recall" and in response to 8 words to similar effect, "if this is what I think it is, my answer is this". There is a piece of gross procedural unfairness. Certainly Mr Street and Mr Georgiou conceded that it would have been better had Mr Murphy been provided with detail of when these were meant to be.
83 There is very substantial procedural unfairness. The lack of knowledge of when things are meant to have occurred is a very large part of it. There could be no victimisation except in things that occurred after 22 August 1997 and after the warning yet, with respect to some of the allegations at least, the respondent was quite unable to say, even here and now, when it was that they were meant to have occurred. Something which happened before 22 August 1997 cannot be victimisation and cannot be manufactured by a warning. Apart from a couple of allegations which are pinned down in time, the respondent did not know when these occurred.
84 Any suggestion that there was no procedural unfairness to Mr Murphy cannot be made out.
85 Mr Murphy was hard pressed in cross-examination, very properly, about this question of victimisation to the point where he said "I victimised Ms Power". It does not mean that that absolves AGC of a responsibility to find, in order to dismiss Mr Murphy for victimisation that as a matter of fact themselves. The company, to sack the man has to, that is the point of the Briginshaw test, be well satisfied that as a matter of fact this victimisation occurred remembering, Mr Murphy was not answering those questions at large. They were questions only about the e-mail surrogacy matter. It is significant that when Ms Power was asked about that in cross-examination she had no idea when she had been put back on the system. The real suspicion arises that she did not make use of it any way. If that were so and she was not using the surrogacy system, that is not victimising her, keeping her out of the loop or anything else. Remembering of course that because Ms Power, on the evidence, remained on the network rather than on the surrogacy system, she got all the information any other subordinate of Mr Murphy's got at the same time. She was not therefore treated differently to anybody else in that respect.
86 Much was made, indeed, the bulk of the respondent's submissions went to the issues that went to the counselling in December 1996 which Mr Street says, quite frankly, was not counselling when it was done but which he decided to call counselling later, and the material that went to the first and final warning as it was clearly expressed in August 1997. It is true of course that Mr Murphy was given a first and final warning in August 1997 about these kinds of matters. At that point those matters are all dealt with and they are dealt with and subsumed in the giving of the first and final warning. He cannot be punished for those matters again because the first and final warning encompasses AGC's response to all of those matters. The warning was spelt out in express terms to Mr Murphy, as Mr Hodgkinson has pointed out, that he must not transgress by harassing anybody again.
87 In the termination letter the company misrepresents and add some words to the words in the September warning letter. It is certainly clear he was told if he harassed anybody again he would be dismissed. However, there is nothing to say when one looks at this as a matter of fact that after receiving that warning in August 1997 Mr Murphy transgressed again. The 10 allegations either were not proven or were found proven in the same manner as was allegation number 10, that it is said to Ms Power, "I'll get you out of this organisation and deny it if you raise this". That is the quality of material on which Mr Murphy has been sacked.
88 Each of the three decision makers quite unequivocally said to this Court that, but for the Power allegations Mr Murphy would be still working at AGC. That is not something to be glossed over because that supports the allegation the applicant makes. Having had his first and final warning, those matters were dealt with. He then proceeded with a clean sheet, clean in the sense that he has not had the baggage of what he might have been alleged to have done or found to have done before hanging around his neck as matter of fact. True it is, of course, that in the event of any future misconduct that warning could be referred to. That cannot be disputed.
89 To do something that warrants termination, indeed as was said by Ms Dunn that he committed misconduct serious enough to warrant summary termination, that misconduct has to stand alone. The company, and now, because it is before this tribunal, the Commission would have to be satisfied, to come to a view that the termination was fair, that Mr Murphy had done something after the warning which was of a serious enough nature to warrant him being terminated after his 24 years employment and that simply has not been shown.
Consideration - Allegations
90 The applicant said that not only was the decision making process in relation to the December 1997 allegations flawed, but so had been the process in relation to earlier allegations, which formed a foundation for the December 1997 decision by the respondent.
91 It is necessary to examine the background to the termination in some detail. That is because the respondent contended that the employer can proceed on a well founded suspicion, while the applicant contended that the process to which the applicant was subject did not show that the employer's action was well founded.
92 At the outset, I should say that in relation to sexual harassment complaints that led to the final warning in September 1997 and to those other complaints I later refer to as the September 1997 complaints, I am concerned with them only as to the process adopted by the respondent in its response to those complaints and to the extent the December complaint of victimisation was based on their existence. I do not see it necessary for me to consider the veracity or otherwise of those complaints, which complaints were repeated in these proceedings.
93 In relation to those August complaints, I accept that even on the basis of the words the applicant accepted he did use, in the "headlights"/nipples episode, and the "bikie's chick/bikie's moll" comments, strong censure was well justified.
94 However, the earlier allegations in August 1997 were not the bases of the applicant's termination. In September 1997 he was given a final warning in respect of those harassment allegations.
95 He was terminated in December 1997 on the basis of alleged victimisation of Ms Power, his second in charge, who had supported the junior staff's allegations in August 1997.
December 1996
96 In December 1996 the applicant was aware that an employee, Ms Bills, had taken exception to comments he had made. He had apologised but also advised his supervisor Mr Street about both incidents in case they went further. A meeting was held on 23 December 1996 with Mr Street and Ms McKee of Human Resources to discuss two allegations by Ms Bills that Human Resources had decided should be pursued. Notes of the meeting were taken by Ms McKee. Those notes show that it was said to Mr Murphy that "I (presumably Ms McKee) stressed that at this point it was a discussion only whereby I would be taking notes to be used in a file note". In a note attached to the relevant file note, the applicant refuted the allegations saying that the staff member in question had apparently mistaken the management and personnel style he had used effectively for over 20 years in the company.
97 On 3 February 1997 Mr Street had discussed with the applicant (after they had returned from holidays) the correct protocol when talking to or managing staff, to ensure there were no sexual harassment implications. That seems to have been the last action taken by the respondent in relation to those complaints.
August 1997 Allegations
98 The basis of the final warning given to the applicant on 2 September 1997 referred back to allegations set out in a letter dated 27 August, 1997. Two of the six allegations there contained related to inappropriate touching (one at an out of hours non-company occasion, a baseball game, late in 1996) and the others set out offensive comments of a sexual nature to employees.
99 The applicant categorically denied making some of the comments. In other cases, he accepted making comments, but not in the terms claimed.
100 Ms Dunn described the procedure she and Ms Alison Lowth had adopted in August 1997 to investigate sexual harassment allegations against the applicant made by Ms Liz Campbell and Ms Kathy Stewart on 20 August 1997. On 21 August 1997 Ms Dunn and Ms Lowth met the two complainants and explained the process that would apply to the investigation of their complaints. In the course of that discussion, Ms Dunn advised them that:
If the complaints are proven it is more likely to result in a first and final warning. What this means is that it would be explained to Gary that if any victimisation of staff occurs or another complaint is received , then his services would be terminated. (my emphasis).
101 After that meeting, Ms Dunn and Ms Lowth met G. Street, Senior Manager Creditline, the applicant's supervisor, to advise him of the investigation process. On that same day, Ms Dunn, Ms Lowth, and Mr Street met the complainants, the purpose of the meeting being for Mr Street to reassure the complainants that their allegations were being taken seriously.
102 On 22 August, there was a meeting attended by Ms Dunn, Mr Street and the applicant. Steve Close, Area Manager, Sales Consumer was also present at the invitation of the applicant to act as the latter's observer. At that meeting, the applicant was advised of the complaints and asked if he wanted to respond. He did so. At the conclusion of that meeting Ms Dunn said:
AGC is now compelled to investigate the complaints. The findings of the investigation will be provided to you when the investigation is finalised.
103 On 25 August, Ms Dunn and Ms Lowth met the complainants to advise them of developments, including the applicant's responses to their allegations.
104 The applicant took special leave from 25 August 1997 to 29 August 1997 so that AGC could investigate the matter fully. This period of special leave was negotiated with the applicant so that he could consult his solicitor.
105 The further progress of the investigation can be seen from the following extracts from Ms Dunn's affidavit:
Alison and I commenced investigating Liz's and Kathy's complaints against Gary by interviewing other staff on or about 25 August 1997 and 26 August 1997.
In relation to each of the staff members Alison and I interviewed in the course of our investigation into the complaints against Gary, we proceeded by interviewing each staff member in person and taking handwritten notes of the conversations. Following the interview, we prepared a typed record of the discussion that took place at each interview and proceeded to have the various typed file notes signed by Alison, myself and the relevant interviewee.
We interviewed 11 other staff members in relation to the complaints that had been made against Gary, each of them on Gary's request. Annexed to this Affidavit at annexures "B" to "L" inclusive are the typed file notes of our various conversations. In each case, that part of the file note that records the discussion that occurred is a true and accurate record of the discussion.;
…
Not all of the interview discussions provided us with further evidence either in support of, or against, the claims that have been made against Gary. However, Ann Power made comments confirming that Liz had made a complaint to her in relation to Gary's behaviour and that Liz had subsequently confronted Gary about his behaviour with Ann as a witness. Megan Clark also confirmed the "baseball incident"* where Gary was alleged to have been playing with Kathy's hair, which was in a pony tail at the time.
On or about 27 August 1997 another meeting was held between myself, Gary and Steve Close (as an observer). A formal letter containing Liz and Kathy's allegations was given to Gary. … Gary told me that he required additional time to speak to his solicitor before responding to the matters put in the letter. I agreed and asked Gary to ring me from home with a suitable time frame.
On or about Friday, 29 August 1997 Gary telephoned me …;
…
On Tuesday, 2 September 1997 a meeting was held to discuss Gary's response to the various allegations. In attendance were myself, Geoff Street, Gary Murphy, and Steve Close (again, as an observer). Gary handed to Geoff and I a letter dated 1 September 1997, which contained his responses.
…
Geoff and I asked Gary and Steve to leave us alone for 1 hour so that we could read through the letter then discuss the matter fully and reach a decision. Gary and Steve then left us alone.
After Gary and Steve had left us alone Geoff and I held a conference telephone call with Chris Georgiou and Trish Richards from AGC's Sydney office. We discussed the allegations that had been raised against Gary and his various responses to them. We also took into account the following factors: …
…
After taking all of the above matters into account, we decided that on balance, the evidence supported Liz and Kathy's claims that Gary had breached AGC's sexual harassment policy.
Because of the serious nature of our finding and Gary's then role as a manager of a large number of staff (approximately 50-60 at the time), we were of the view that Gary should be censured for his conduct. However, we also took into account Gary's long period of service at AGC. Ultimately, we decided that a "final" warning would be appropriate.
As a result of our decision, Geoff Street and I prepared a letter to Gary. When Gary returned to my office we handed it to him. …
…
I recall that on or about 17 September 1997 we met with Gary in my office again to discuss his return to the Creditline department (amongst other things). …
106 * The "baseball incident " was alleged to have taken place late in 1996 out of work hours and at a non-AGC event. Ms Dunn said "we" assumed it was something to do with work. It had been investigated in 1997, although it was alleged to have occurred in 1996.
107 While the procedures set out above would, on the face of it, present a model approach to the investigation of complaints, examination of how they were actually implemented showed up serious flaws.
108 In relation to the August complaints, Ms Dunn said she, indeed later she said "we", had formed the view that the complaints were legitimate even before she had received the applicant's response. She had advised the complainants of that belief before receiving the response and before seeing the file notes of the interviews between Ms Lowth and the various supervisors.
109 Despite saying that she had taken into account a possible "tit for tat" situation by the complainants and the statements made by supervisors, Ms Dunn said "we did not believe" the supervisor who said Ms Stewart told lies because "it was not consistent feedback". "We believed it was fact [from that supervisor] but not in this instance" [i.e. in relation to Ms Stewart's complaint against the applicant]. As to Ms Campbell, "we had nothing to substantiate" that she had been warned for work performance shortly before the allegations were made "other than she had been spoken to in her appraisal and she was given a comment … We knew she had been spoken to" about work performance.
110 On 21 August 1997, even before the applicant had been invited to respond to allegations by Ms Campbell and Ms Stewart, Mr Street had, in a meeting with them, advised them that he was behind them 100 per cent, also commenting that they would not be transferred, but "Gary will be the one who goes."
111 One of the factors taken into account by Mr Street in issuing the final warning to the applicant on 2 September 1997, had been the negative comments the applicant had made against the credibility of Ms Campbell and Ms Stewart after they had made their complaints. The negative comments Mr Street pointed to as substantiating his claim that the applicant had attacked the credibility of the two complainants in August 1997 went to work related issues, not credibility, and were only made in relation to Ms Campbell. Examination of the file notes attached to Ms Dunn's affidavit showed negative comments had been made about the complainants by some of the eleven employees, including supervisors, interviewed in relation to the complaints. Mr Street said he had not seen the documents recording those interviews.
112 Taken to the above statements of interview, Mr Street said that such matters, other than the accusations of lying, (not against the applicant) even if he had known of them, would not really have been relevant to his consideration as to the final warning of 2 September 1997. Despite being strongly pressed by Mr Newall, Mr Street did not concede that he had formed the view as to the applicant's conduct warranting a final warning without being in possession of all the relevant information.
113 Another factor taken into account by Mr Street in issuing the 2 September letter was Ms Dunn's report of a "Strip Tease" picture of Demi Moore and comments made by the applicant to her about it. The decision makers were confused. The formal allegations did not refer to that picture or to its use by the applicant. It was not dealt with by the applicant in his written reply. The actual allegations went to a comment as to a strip tease said to have been made by the applicant to Ms Campbell.
114 Mr Street denied that, in relation to the claims of sexual harassment against the applicant, bad publicity for the company had been a consideration with him.
115 The letter handed to the applicant on 2 September 1997 advised him that:
1. We have determined that your actions are a breach of
Australian Guarantee Corporation (AGC) Code of Conduct and the Harassment Policy.
2. Any repeat of this type of action or similar action will result in
instant dismissal.
116 Ms Dunn, Mr Georgiou and Mr Street were involved in the drafting of the letter of 27 August 1997 setting out the allegations that eventually led to the above final warning. Reference was made by Ms Dunn in that letter to "the formal counselling session that took place on 23 December 1996." In these proceedings, Ms Dunn accepted that she was not aware of a formal counselling session on 23 December 1996. In making that reference she had taken a meeting between the applicant and Mr Street on 23 December 1996 as being a formal counselling session and acted on that basis in August 1997. Upon examination of Ms McKee's file note it is clear that the meeting on 23 December 1996 was not a formal counselling session.
September 1997 complaints
(1) Complaints by Ms Power
117 Ms Dunn had had a meeting with Ms Power around 30 September 1997. Ms Power had said she had no work to do, and that the centralising of the administrative and training functions had impacted on her role. She said that the applicant was treating her differently since she had been involved in the investigation of the complaints by Ms Stewart and Ms Campbell. Ms Power perceived that she was being excluded from various meetings the applicant was having with employees subordinate to Ms Power.
118 Ms Dunn had known of the decision to centralise functions after discussion with Mr Street in August, 1997. Advising Ms Power of the effects on her job of that decision would normally be advised to her by Mr Street or the applicant, but Ms Dunn did not know if that had been done between August and the 1 October meeting.
119 There was a meeting with the applicant on 1 October. At that meeting the applicant advised Ms Dunn and Mr Zogbi (attending instead of Mr Street) that he was dealing with employees who would normally report to Ms Power because of her absences due to illness and also, because, as manager of the department, he would always speak to his staff supervisors when they wished or when needed. On 2 October, in response to a request by Ms Dunn, the applicant sent out an e-mail, previously vetted by Ms Dunn, to all supervisors dealing with role responsibilities within his department. The essence of the message in that e-mail was in the final paragraphs:
In effect, ALL operational issues for the department (including the After Hours operation,) need to be directed through Anne.
In Anne's absence then obviously these will come to me. My responsibilities encompass the overall management of the New Business operation, plus a direct hand in the National Card Processing Centre.
Please refer ALL day to day issues outside your own authority to Anne for clarification and when appropriate, a decision.
Please discuss if further clarification required.
120 That e-mail appeared to be regarded as resolving the problems Ms Power saw to exist.
121 No disciplinary action was attached to that meeting or its outcome.
(2) Rumours conveyed to Mr Georgiou by August complainants
122 One matter particularly dealt with by Mr Georgiou in his affidavit related to counselling he had given to the applicant in September 1997 as to rumours conveyed to Mr Georgiou that the applicant had bragged of "beating the system". The rumours came from Ms Campbell and Ms Stewart who said that they had heard them from other sources within the department. Mr Georgiou could not recall enquiring as to whom those sources might be. He accepted that the comments had been made by the applicant although the applicant had told him that he had heard the rumours and they were not true.
123 The applicant accepted that at a meeting on 17 September 1997, Mr Georgiou had reinforced the warning of 2 September 1997 as being a final warning to be taken seriously.
28 November 1997 Allegations
124 On 28 November 1997 Ms Power requested another meeting to discuss her employment relationship with the applicant. Present at that meeting at the respondent's office in Phillip Street, Sydney were Ms Dunn, Ms Power and Mr Georgiou. Ms Dunn said that that meeting, out of which the 1 December allegations emerged, lasted for two or two and one half hours. Ms Power said it was "brief". Mr Georgiou said one hour. Ms Dunn's file note of the meeting took up a little over half a page.
125 All Mr Georgiou's evidence as to his attendance at the meeting on 28 November with Ms Power and Ms Dunn was given orally. There was no mention of it in his affidavit filed in advance of the proceedings.
Events: 1 December 1997
126 Ms Dunn said she had a discussion about the allegations with Mr Street when she returned to Parramatta the following Monday.
127 The oral allegations made by Ms Power against the applicant were reduced to writing by Ms Dunn in a letter dated 1 December 1997 (the 1 December letter):
We refer to your recent final warning issued in relation to sexual harassment of certain staff members.
In this process you were advised that if there was any further incident of either harassment or victimisation of staff your services with AGC would be terminated.
Further information has now been received. AGC is presently considering the circumstances in relation to these incidents and is now in a position to provide you with a right of reply.
In order you give you the opportunity to respond and advise your position, the following is an outline of the allegations.
Allegations
That you have victimised Ann Power, Manager, New Business since her involvement as a witness in the claim of harassment against you. This alleged victimisation has taken the following form:
[1] During the investigation of the harassment allegations, Ann
asked to speak with you and you aggressively advised her that she could not and proceeded to slam you office door in Ann's face;
[2] You changed your OA mail account so that Ann, who was your
second in charge and had "surrogate status", was unable to access your Emails in your absence and this surrogacy was given to two staff one of whom was a subordinate of Ann's.
[3] That although Ann had advised that she was not interested in
being seconded to another team that you approached your peers in Consumer Collections and requested that Ann be considered for secondment out of your department;
[4] That you have excluded Ann from meetings with her direct
supervisors [sic] that you held;
[5] That Robyn Dunn met with you to discuss the fact that since the
investigation, Ann's direct reports were bypassing her and reporting to you and she was being excluded from processes as a result. It was only on Robyn's insistence that you sent out an Email reinforcing that all Supervisors were to report to Ann;
[6] That having sent out this Email, you continued to meet with
Ann's staff without her involvement;
[7] That you excluded Ann from an opportunity to give feedback in
the recent LSI process and it was only after Robyn Dunn's intervention that you requested Ann's feedback;
[8] After her return from illness you did not give Ann a debrief
although the new creditline product and process was being introduced that day, but in fact told her there was nothing she needed to know;
[9] That you continued to meet with her staff with the door shut
without Ann being included;
[10] That you have told Ann that you will get her out of the
organisation and you would deny this if she raised it.
In order for you to submit your response would you kindly report to:
Geoff Street and Robyn Dunn
Level 12, 32 Phillip Street
Parramatta
At 12.00am on 2 December 1997.
128 [The allegations were numbered during the course of the proceedings for ease of reference.]
129 Mr Street announced Ms Power had been made redundant to a meeting of supervisors at about 11.30 am on 1 December 1997. At the conclusion of that meeting Mr Street asked the applicant to come with him to Ms Dunn's office. When the applicant arrived at that office he was handed the 1 December letter.
130 The applicant was released from work to go home to consider his reply. His wife, who also worked for AGC, was also allowed to go home.
Events: 2 December 1997
131 At this meeting the applicant did have Mr Close present as an observer. (Mr Close had acted as his observer on the previous occasions.)
132 The applicant advised Ms Dunn and Mr Street that he had been unable to talk to his solicitor because the latter had been in court the previous day. At noon, he gave them a 10 page letter in response to those allegations.
Noon- 1pm
133 A number of events occurred in the period between noon and 1pm.
134 The applicant handed his 10 page letter in reply to Ms Dunn and Mr Street at noon on 2 December 1997. They had taken 5 to 10 minutes to read it.
135 A copy of the applicant's response was faxed to Mr Georgiou, who already had a copy of the allegations.
136 A conference call, set up the previous afternoon, between Mr Georgiou, Ms Dunn and Mr Street, took place from about 12.15pm. Mr Street said that call took in the vicinity of half an hour. During that conference call, it was said that each point was gone through. They looked at the previous allegations, the confirmations. (It was not clear if "confirmations" were of the previous allegations, or the acceptance by the applicant in his response that certain things had occurred e.g. removal of Ms Power from the E-mail list)
137 Ms Dunn said that at the conclusion of the conference hook up, it had been agreed that all the allegations had been made out, but that was subject to the third allegation being checked further. At the conclusion of the conference hook up it had, in any event, been decided to dismiss the applicant.
138 Ms Dunn had checked with Howard Mathews, the manager mentioned in the applicant's response as to the third allegation, and spoke to him for about five minutes. He had confirmed the applicant's version of events. Ms Dunn had then telephoned Mr Georgiou to advise him that the third allegation was being withdrawn.
139 Mr Georgiou recalled that in the discussion on 2 December 1997, decisions as to the majority of the allegations:
boiled down to a determination of believability of one person versus another … and that it was necessary for us to form a view either on the basis of who we can believe and what was more likely or not to have happened … and we proceeded to have a general discussion around those … when the view was formed that weighing up all the information, it appears that more likely than not some of those things would have happened and a decision was taken at that point in time.
140 The conclusion then put by Ms Georgiou to Ms Dunn and Mr Street, and agreed to by them, was that "in this case we have no other option than to dismiss".
141 At about 12.45 pm Ms Dunn said she had dictated the dismissal letter. When typed that was read and signed by Mr Street and Ms Dunn. In another answer, Ms Dunn said she typed the letter of termination herself and showed it to Mr Street.
142 That letter was in the following terms:
In relation to your response to our letter of allegation of 1 December, 97. We have now had an opportunity to review our initial allegations and your reply.
We wish to now withdraw allegation 3, however all other allegations remain and the claim of victimisation stands.
In reference to previous warnings and formal counselling we find your behaviour inappropriate and you have left us no other option then to terminate your employment effective immediately with a payment of four weeks in lieu of notice.
Any entitlement will be processed by AGC into your bank account.
143 The contrast with the processes adopted by AGC in relation to the August complaints and with those adopted in relation to the December (Power) complaints could not be more stark.
144 I had thought to set out in detail only two or three of the allegations in order to demonstrate the approach of the three decision makers to their investigation. However, that proposed methodology was not possible in view of the way they went about their task.
First Allegation
[1] During the investigation of the harassment allegations, Ann
asked to speak with you and you aggressively advised her that she could not and proceeded to slam you office door in Ann's face;
145 The applicant refuted this allegation completely, describing "the only incident I recall", citing a witness to it "if this is the incident in question" and concluding that he recalled no further incidents.
146 Ms Dunn said they found the first allegation proved. They had looked at all the allegations and the pattern of behaviour. Ms Dunn said there was no evidence for the door slamming (the first allegation) but she found it proven because of a pattern of behaviour. Taking Ms Power off his e-mail list (the second allegation) had suggested a pattern of behaviour. That was the only evidence they had to find the applicant guilty of that first allegation. Ms Dunn could not recall why they did not speak to Mr Close, the witness put forward by the applicant.
147 Ms Dunn said she and Mr Georgiou had decided that there was a pattern of behaviour. It did not mean that particular allegation (in this case the first) had been proven but the victimisation behaviour had been proven overall.
148 In relation to the first allegation, Mr Georgiou said "we weren't certain about that one". He said that "there was a question as to whether or not the incident in question, the allegations put forward was exactly the same as the date that was made there by Mr Murphy". He later accepted that, on that one, there was no basis on which they could find it proved. However, when one looks to the letter of dismissal handed to the applicant on 2 December 1997 it said that the third allegation was withdrawn, "however all other allegations remain and the claim of victimisation stands".
149 Taken to the first allegation, and the applicant's response to it, Mr Street said "That wasn't the one that concerned us. We suspected it was another time." (my emphasis) He later said he "just suspected it was" but had no information to lead him to that suspicion. Mr Street said he personally did not find that allegation proven, and in his opinion, it formed no part of his decision to dismiss the applicant.
150 Mr Street said he did not have an opinion on the first allegation. Because of other matters he believed there was a pattern of behaviour that was inappropriate. He later said he did find all allegations, except one (that being the third one) substantiated. Specifically as to the first, in the course of cross examination, he said he was relying on Ms Dunn and he did not "know the detail that went on between Ms Dunn and Miss Power in discussing that comment". He did not believe that Mr Georgiou knew something that he did not, but he believed that Ms Dunn did. Ms Dunn had not shared that knowledge with either of them.
151 Mr Georgiou said that the three decision makers were unclear in their minds as to the incident in the first allegation "because of the sequence of the events and it was basically a sequence of events that we had relied on and as a result we moved on from that allegation to the next one".
152 The problem with that approach was that the sequence of allegations was one drawn up by Ms Dunn in consultation with Mr Georgiou. Ms Power said she had not written her concerns down nor had she given notes of them to Ms Dunn. They did not go back to Ms Power to seek further details.
Second Allegation
[2] You changed your OA mail account so that Ann, who was your
second in charge and had "surrogate status", was unable to access your Emails in your absence and this surrogacy was given to two staff one of whom was a subordinate of Ann's.
153 Surrogacy is a system whereby one person can allow another person access his/her E-mail files including all personal files. The applicant said that other surrogates had been made prior to that time, not instead of Ms Power. He said that Ms Power also had a poor grasp of email usage and he referred to specific persons and also "the IT people" who could confirm what he said.
154 In relation to the second allegation the applicant accepted that he did remove Ms Power as a surrogate from his E-mail. He provided a number of reasons, and the sources amongst staff who could verify some of them. The main reason given was that in his opinion, Ms Power, his second in charge was undermining his authority as Manager at every opportunity. On 24 October 1997, the applicant had had a luncheon meeting with Mr Street in order to discuss the difficulties the applicant was having with Ms Power. Those concerns included things being said in the workplace by Ms Power as to the private life of the applicant and his wife, who is also employed by the respondent. The applicant raised with Mr Street, the course of approaching the HR team in order for Ms Power to be counselled. The applicant and Mr Street disagreed as to the exact words used by Mr Street to the applicant at that meeting in relation to a restructure proposal already put by Mr Street to AGC that would have the effect of making Ms Power's position redundant. However, on Mr Street's evidence, he advised the applicant to "hang in there" until the restructure was approved in a couple of weeks.
155 On the basis of the observations made by Mr Street, the applicant did not approach the HR team. Ms Power was made redundant some five of so weeks later.
156 Mr Street said that the applicant had asked him to keep the matters discussed by them as to Ms Power at the October luncheon confidential and do nothing about them. Nothing further had been said up until the December events.
157 Mr Street said that the allegation so far as it went to Mr Murphy giving surrogacy to others at least, was not substantiated. He later accepted that there was not a shred of evidence to connect the removal of Ms Power as a surrogate from the applicant's E-mail with her involvement in the August harassment allegations. There also seemed to be some incomplete proposition by Mr Street that there had been victimisation by the applicant "not informing her by knocking on her door"(presumably a reference to the meeting not attended by Ms Power, the fourth allegation).
158 Ms Dunn said she had it in mind on 2 December that the applicant's wife had raised concerns with Ms Lowth in October 1997 as to gossip spread by Ms Power at that time. She did not recall Mr Street telling her that the applicant had raised that same concern with Mr Street in October 1997.
159 Ms Dunn said she did not accept the applicant's response as to Ms Power's limited ability to use E-mail, but did not check that with the IT people as suggested by the applicant.
160 In relation to the second allegation, Mr Georgiou said they accepted that the applicant had admitted the allegation. He could not recall Mr Street advising him that the applicant had earlier discussed his concerns with him as to the undermining of his authority by Ms Power. They had not gone back to check with Ms Power or with the IT people (as suggested by the applicant), as to the extent of her expertise with E-mail. The critical point in Mr Georgiou's view was that the applicant had acted to remove her from the surrogacy status.
161 Ms Dunn said the decision makers had moved only on the basis that Ms Power had been removed as a surrogate, although not from the E-mail network as such. Ms Dunn said it was not just that the applicant had removed Ms Power from her E-mail surrogacy. "There was a pattern of behaviour of treating her differently after the original allegations". That pattern of behaviour had been established by the matters set out in the ten allegations.
162 AGC has no policy whereby it is compulsory for a manager to have a surrogate. Ms Power remained on the e-mail network so the information she needed to know would flow to her. All she could not do was to delve into all of Mr Murphy's files.
163 Mr Hodgkinson submitted, with reference to lengthy extracts from the transcript, that the only reason left for the applicant to remove Ms Power from his email surrogacy was to pay her back because of her involvement in the earlier harassment allegations. It was his emotional reaction to her involvement.
164 I do not accept that submission that it was the "only reason" left. Contrary to the respondent's submission there was, other than Ms Power's involvement in the harassment allegations, another, and a very understandable reason, why the applicant may have removed Ms Power as a surrogate from his e-mail.
165 In October 1997 the applicant's wife had raised concerns with Ms Lowth from the HR department as to gossip being spread about her by Ms Power at that time. On 24 October 1997 the applicant had raised with Mr Street comments made to other staff by Ms Power that troubled him: the applicant's wife had told Ms Power she was fed up with the applicant having affairs and would like to go and have one of her own; the applicant had affairs with female participants when running training residentials and Megan Clark had been intimidated sexually by him at a training event in Melbourne.
166 In relation to those alleged comments by Ms Power, Mr Georgiou said "I accept that comments may have been made", "we expected that she may have said them" "but we didn't make any judgment about the accuracy or otherwise of those".
167 The three decision makers were not required to make any judgment about the accuracy of those statements made about the applicant. They were, however, required to take the fact that they accepted that such statements had been made by Ms Power into account in their consideration as to reasons advanced by the applicant as to why he removed Ms Power as an e-mail surrogate.
168 The applicant, taken in detailed cross examination to the surrogacy incident, agreed that to treat Ms Power differently was victimisation. The applicant accepted that by taking Ms Power off his surrogacy list he had treated her differently and, though he did not feel it at the time, by so treating her differently was victimising her. "My emotions dictated my actions, I believe." That however was not an admission that he had treated Ms Power differently because of her involvement in the sexual harassment allegations.
169 There seems to have been no understanding evinced by any of the decision makers that the fact that the applicant removed Ms Power from his e-mail surrogacy was, of itself, insufficient to prove victimisation, nor was the fact that he had admitted doing so an admission by him of victimisation.
170 The general allegation against the applicant was one of victimisation as specified in ten separate allegations. In taking the applicant's acceptance that he had removed Ms Power from his computer surrogacy list, for reasons which he set out, the decision makers took a huge leap in logic (or illogic) to decide that (a) the removal was an act of victimisation and (b) the applicant had admitted victimisation.
Third Allegation
[3] That although Ann had advised that she was not interested in
being seconded to another team that you approached your peers in Consumer Collections and requested that Ann be considered for secondment out of your department;
171 This allegation was withdrawn after Mr Mathews, a witness nominated by the applicant, was contacted by Ms Dunn and confirmed the applicant's response.
Fourth, Sixth and Ninth Allegations
172 I deal with the fourth, sixth and ninth allegations seriatim because Ms Dunn eventually conceded that they were one and the same allegation.
Fourth Allegation
[4] That you have excluded Ann from meetings with her direct
supervisors [sic] that you held.
173 The applicant refuted this allegation in detail. He mentioned two possible meetings, the first of which Ms Power had declined to attend on the basis of a prior engagement, and a second one which she also declined to attend because she did not want to cancel a luncheon appointment.
174 He advised that the supervisors who attended the meetings could confirm what he said. Mr Street and others could confirm that Ms Power was regularly engaged in closed door discussions with staff. In such cases, where action was needed immediately on an issue, supervisors would come to the applicant for direction. In the period May to November 1997 Ms Power had been absent on some 51 working days, (i.e. in excess of 65% of the available working days), and supervisors during that time and on continuing matters would come to the applicant. He said he had always briefed Ms Power on those issues as they happened.
175 Ms Dunn said that the fourth allegation referred to the period August 1997 until 1 December. Ms Power did not identify particular meetings, but the implication was that it was more than one. Ms Dunn said it had not occurred to her to seek more details. She said "it was more than - it was examples of consistent meetings that were happening. It was a pattern of behaviour, being excluded from any meeting he was having".
176 Ms Dunn accepted that Ms Power had been absent on many days and that at such times, and for a period soon after, supervisors would have needed to talk to the applicant. She accepted that would not be victimisation.
177 Ms Dunn said she accepted as true the applicant's response to the first meeting he detailed.
178 Ms Dunn said she found against the applicant as to the second meeting he described. She accepted Ms Power had not specified any meeting but "we also took into account conversations which I had with Gary where he made it clear he didn't have to involve Ann if he didn't want to". "We found it proven as a balance of behaviour overall" to Ann Power. Ms Dunn agreed that the evidence on which she found this allegation proven was Ms Power's statement and Ms Dunn's earlier conversation in October with the applicant.
179 Mr Georgiou said what the applicant said about the second meeting relating to the new Creditline products was not accepted, because "this was specifically a meeting that Ms Power had referred to" in her verbal allegations made to the Department. Mr Georgiou had heard her make them. "It appears to be an omission on our part" that the applicant was not advised of those particulars. (That claim of a specifically identified meeting was raised for the first time on 19 November 1999, the second and last day on which Mr Georgiou had been giving oral evidence).
180 It was in relation to that particular piece of evidence that Mr Newall had submitted that that evidence had all the hallmarks of being made up on the run and if Mr Georgiou was to be believed, it meant that AGC knew some details about the allegations which Mr Georgiou said were overlooked. Either they knew or the only other alternative was that they did not know it. Mr Georgiou was either mistaken or he tried to make that claim up. If that was so, of course, then Mr Georgiou's evidence was not to be believed.
181 The specifics of that meeting had not been referred to in the 1 December allegations nor in Mr Georgiou's affidavit. They were not referred to in Ms Dunn's file note of the meeting and the evidence is contrary to that of Ms Dunn who said that Ms Power had not specified any meeting.
182 I do not accept Mr Georgiou's evidence on that point. It is quite contrary to the evidence just mentioned.
183 In the same way as had Mr Street, Mr Georgiou also accepted propositions that if he did not check with a named witness, he had accepted what the applicant said as true e.g. the details of Ms Lovett's advice at 11.05 am to the applicant as to the conference being arranged at 11.30 am to discuss Creditline. However, as to that same incident (the fourth allegation) he did not believe the applicant when he said that Ms Power had refused to attend because she had a luncheon appointment at 11.30 am. Mr Georgiou said that what added a degree of non-believability to the applicant's response was that the applicant, as Ms Power's manager, had not told Ms Power to cancel her luncheon engagement and attend the meeting. (One can only speculate as to how the allegation of victimisation would have read, if the applicant had insisted Ms Power cancel that engagement at such short notice). Mr Georgiou did not go back to Ms Power to recheck details with her.
184 Mr Georgiou said the applicant had been found untrue on that point:
"there was a question of weighing up facts again .. This was a question with certain allegations here believing one word verses (sic) the other."
185 In the course of cross examination as to the sixth allegation (exclusion of Ms Power from meetings), Mr Georgiou agreed that he should not have any regard to meetings after 2 October in considering the fourth allegation. He could not point to any meetings before 2 October from which Ms Power was excluded by the applicant. He was not aware of specific meetings. "There were suggestions of meetings that Ms Power was excluded [from]". Asked as to what were the meetings from which the applicant had excluded Ms Power, Mr Georgiou said he was not privy to the detail of the information. In the course of discussions "we" formed a view on the basis of information that they [Ms Dunn and Mr Street] provided". Ms Dunn would have details of exact dates.
186 On that last point of Mr Georgiou's, it must be remembered that Mr Street was not present at the meeting of 28 November, and his knowledge as to what had occurred came as a result of a briefing by Ms Dunn on the following Monday. Mr Georgiou had been present.
187 In relation to the fourth allegation Mr Georgiou at first said that "we didn't make a judgment on allegation 4 on the basis of facts provided by Mr Murphy as such". They were unsure about whether the allegation was the case or not. He did not know why the decision makers had not checked with the supervisor whom the applicant said could confirm his response. It was "absolutely incorrect" of counsel for the applicant to suggest that they had not checked because even before they received the applicant's response they had decided that he would be dismissed no matter what he said.
188 He explained that they had not checked with the supervisor on this point because:
A. We made a judgment on the basis of weighing up information available to us right throughout the course of the investigations with the harassment and subsequent victimisation allegations. And we came down to a situation in some situations where we had in one case an allegation admitted, in another case Miss Dunn was present and was able to verify it and confirm. In another case it was withdrawn and in another lot where we had essentially his word against hers and we were of the view that there was pockets of staff in one camp, pockets of staff in another camp in that department. So it was a question of how much are we going to be able to obtain by continuing to talk to the people down there because we did talk to individuals as part of the initial investigation, not this investigation here, so it was a weighing up of the information provided and making a judgment on balancing as to which view would be believed.
189 Mr Georgiou said that the fourth allegation was one that he found substantiated. He accepted that it was one of the allegations that had led to the applicant losing his job but "we made a judgment on balance" "that that allegation was proven".
190 In considering the fourth allegation Mr Street did not, in relation to the exclusion from meetings issue, take into account the large number of days Ms Power had been absent. Mr Street said that they had taken into account the days Ms Power was present, because she was the direct report to the applicant and controlled the credit line area. Cutting her out of E-mail cut her out of the communication channels to inform herself of what had happened when she had been away.
191 As to that second meeting, Mr Street said the applicant had excluded Ms Power because although the applicant had first become aware at 11.05 am that a meeting was to be held at 11.30 am, he had not told her of it until 11.15 am or 11.20 am. (The applicant said she was having closed door discussions). Mr Street found that allegation proven because if Ms Power had known of the meeting earlier, she might have rearranged her engagement.
192 The conversations relied upon by Ms Dunn to find against the applicant as to the second meeting he put forward as a possible one to be the subject of allegations by Ms Power, had taken place in October 1997, when he had said he did not need to include Ms Power in every meeting he had. After further discussion with Ms Dunn at that time, the applicant had agreed to include her. The three decision makers were unable to provide specifics of any meeting Ms Power had said she was excluded from after that time.
Sixth Allegation
[6] That having sent out this Email, you continued to meet with
Ann's staff without her involvement;
193 The E-mail, which is the reference point for this allegation, was that stated in the fifth allegation to have been sent to all supervisors on 2 October 1997.
194 The applicant refuted this allegation, referring to Ms Power's absence for more than 63% of the available working days, a statement accepted by Ms Dunn.
195 Ms Dunn acknowledged that the sixth allegation was the same as the fourth allegation. She had drafted the allegations. The fact that the sixth allegation duplicated the fourth had been missed. She found the sixth allegation proven on the same basis as she had found the fourth allegation proven.
196 As already mentioned, Mr Georgiou relied upon the sequence of events, a sequence in fact decided by Ms Dunn and himself, to determine their responses to the applicant's replies to the 1 December letter.
197 The problem with that approach was further demonstrated by Mr Georgiou's evidence in relation to the sixth and ninth allegations. Taken to the sixth and ninth allegations, Mr Georgiou said they were two separate allegations. He could not say whether they referred to two different sets of meetings. He did not "believe the allegations were imprecise in totality". He admitted, in relation to those allegations, that "it cannot be necessarily understood they are two different meetings". However, "I would not have put separate allegations in one matter to Mr Murphy". They must be different sets of meetings. They followed a sequence in the allegations. Mr Georgiou finally agreed that "not specifically on their own", was there anything in the sixth and ninth allegations to indicate they referred to separate meetings.
198 Mr Georgiou accepted that the sixth allegation could only refer to meetings which occurred after 5 October 1997. After being taken to both the fourth and the ninth allegations, he also accepted that the sixth allegation dealt with the period between 2 October 1997 and Ms Power's absence on sick leave. He could not specifically advise of a single meeting from which Ms Power was excluded in that period. He could not recall either Mr Street of Ms Dunn telling him on 2 December of any meeting they knew of. He found the allegation proven.
199 Mr Georgiou at first explained why he had found the sixth allegation proven:
A. The allegation was not in relation to meetings that were held whilst she was away from leave. The allegations were necessary [sic] for having returned from leave a pattern of being excluded from meetings that was advised. So again it came down to a question of believability of one side verses [sic] the other and things taken into consideration would have been, for example, a person was absent for that period of time and needed work done in her absence then there would be an expectation of more regular meetings to bring her up to speed and take on some of the work that was done in her absence.