173 On his first day at Head Office, Mr Mizon asked the applicant if he knew why he was transferred. He said it was because of an altercation with Karen Potter. Mr Mizon quickly corrected him and referred to the 28 July email (see previous paragraph).
174 He inquired if he would be in Head Office longer than a month, Mr Mizon said it depended on his behaviour.
175 The month passed without incident and the applicant behaved well. Customer feedback was good and he got on well with the Head Office team.
176 On 23 August, Mr O'Brien received an email from Ms Emr expressing concern and distress at the thought of the applicant returning to Coniston. Mr Mizon and Mr O'Brien met with her the next day. Ms Emr said she was very nervous and jumpy, she felt physically sick, tired and irritable. Mr Heath had suggested some physical changes to the office to help her confidence and he had no problems staying at Coniston.
177 On 26 August, the applicant was advised that he would not yet be moving back to Coniston. When told of Ms Emr's concerns, he had replied "I am happy to stay in Head Office until Sharon is better and wants me back".
178 On 30 August the applicant told Mr Mizon there were "spies about who were telling people of what had gone on at Coniston". Ms Emr rang Mr Mizon the next day and said the applicant called her and accused her of starting rumours about him. Ms Emr denied this.
179 On 1 September the applicant asked for a week off to spend time with his sister on a farm near Canberra, believing it would do him good. Mr Mizon agreed.
180 Ms Emr called Mr Mizon on 2 September and said the applicant had asked to visit her at Coniston and she refused.
181 On 7 September an upset Ms Emr called Mr Mizon, explained that she had spoken to Ms Lisa Cook who had inquired about the applicant's whereabouts. It emerged that the applicant had exposed himself to Ms Cook, on at least two occasions.
182 Mr Mizon visited Coniston the next day and spoke to Ms Emr and Ms Cook. Ms Emr now disclosed to Mr Mizon that the applicant had exposed himself to her between ten and fifteen times and on another occasion she believed he was masturbating under the table whilst talking to her. Ms Cook described two incidents where the applicant had his fly undone while standing behind her and another occasion, when she had passed his office, she observed him exposing his erect penis.
183 The matter was referred to Mr Fitzgerald on 9 September, when it was agreed that it should be treated as a Disciplinary Committee matter. It was decided to formally raise the allegations with the applicant when he returned from leave; requesting his attendance at a Disciplinary Committee meeting. Mr Mizon and Mr O'Brien did not take part in the Disciplinary Committee.
184 Ex'I' details Mr Mizon's diary notes from 10 September onwards. Discussions were held with Sydney Water solicitors and counsellors in order to arrange for statements from Ms Emr, Ms Cook and Ms Potter.
185 On 13 September the applicant returned from leave and Mr Mizon advised him that further information had come to light which would require a more formal investigation through an independent committee. The applicant was told he would be contacted shortly and in the meantime he was to remain at Head Office, not contact anyone at Coniston or go anywhere near the Coniston office. He was offered assistance, but refused.
186 On 14 September statements were taken from Ms Emr, Ms Cook and Ms Potter in the presence of Kate Marr, a counsellor. Later that day, Ms Marr indicated to Mr Mizon that the applicant had been to see her. He had told her of a car accident he had some years earlier and appeared to be trying to gain her sympathy. She had advised the applicant to talk to a male counsellor, Craig Wright.
187 Mr Mizon met the applicant on 15 September and was told by him that he had seen Mr Wright and was to continue counselling.
188 On September 17, the applicant asked to see Mr Mizon urgently. Mr Mizon said he appeared pale and nervous and on Mr Wright's advice was intending to consult his doctor. He asked for, and was granted, a week off.
189 The same day, Mr Mizon received a distressed phone call from Ms Emr. She was crying and handed the phone to her husband. Mr Emr recounted a visit from the applicant's father earlier in the day. Mr Emr told him the following:
i) A heavily accented elderly man had fronted to Gary's workplace and asked to speak with Gary Emr in private;
ii) Gary thinking this person was an unhappy customer agreed to go outside and speak with this man;
iii) The man introduced himself as Ian Ueckert's father;
iv) Ian's father then explained that he had become aware that his son was 'in some sort of trouble at work';
v) Ian's father said that his son was a 'good boy';
vi) Ian's father told Gary that unless Gary 'called the dogs off' and get(sic) Ian out of trouble, that he would publish the true story that Sharon was going to leave Gary (ie. leave her husband), and move in with his son Ian;
vii) Ian's father stated that there was much more than a working relationship going on, and that Sharon and his son Ian were intimate;
viii) Gary said something to the order of 'you are having a lend of yourself' and told Ian's father that his son had played some sick games at work, and needed help;
ix) Gary also indicated that there were more women involved in the complaint against Ian - not just Sharon;
x) Ian's father said he would not accept any accusations like this about his son;
xi) Ian's father said that he had plenty of money from working at the Steel Works, and was prepared to use this money to fight any such accusation in Court;
xii) Ian's father left the premises;
xiii) Gary Emr got into his car and drove to Coniston where he met Sharon in the car park to discuss.
190 Mr Mizon assured him everything was being done to finalise the matter.
191 On 20 September, Mr Fitzgerald asked for a full search of the applicant's computer at Coniston. Mr Heath (at Coniston) sought to do so, but no files could be recorded as the computer had been re-imaged. All emails had been deleted.
192 The applicant returned to work on 27 September. The next day, Mr Fitzgerald advised Mr Mizon that the Committee had determined to dismiss the applicant. The decision could not be conveyed to him until 30 September (due to unrelated industrial action).
193 Ex'K' repeated the conversation Mr Emr had with Mr Mizon on 17 September which he said was in total contradiction to the statement of the applicant's father.
194 Ex'J' refutes the contents of the applicant's statement of 15 December. He describes as untrue or incorrect paragraphs 12, 21, 31, 43, 45, 59, 63 and 65. He quoted his diary notes from Ex'H' to support these conclusions.
195 Diary notes and oral evidence given by Mr Mizon of his discussions with psychologist John Kavanagh are not relied upon by the respondent. I therefore do not recount this evidence; nor do I take account of it.
196 In cross examination, Mr Mizon agreed that he first became aware of problems between Ms Emr and the applicant at a meeting on 18 June. The meeting had been requested by Ms Emr on 11 June to discuss a sensitive matter. She had described the tensions between them as the applicant unzipping his pants to tuck his shirt in, staring at her and playing pornographic material on his computer. He became aware of the apology the applicant had made before meeting him on 20 July.
197 At this meeting, the applicant at first denied any tension between himself and Ms Emr and then acknowledged that Ms Emr did not appreciate him tucking his shirt in. He admitted that his behaviour was causing concern and he wouldn't do it again. Mr Mizon said his behaviour was not acceptable and he should only tuck his shirt in, in the gent's rest room. He also suggested that the two of them discuss the problem and seek to resolve it. He said that what he was saying to the applicant was not sinking in.
198 Mr Mizon said that in talking to the applicant, he explained that his behaviour was inappropriate and if it continued, he might have to be moved. He did not know the full extent of the behaviour; that the applicant had been exposing himself. Ms Emr had been very nervous, felt intimidated and he thought she had only seen his skin accidentally.
199 Mr Mizon described his role as a manager in handling the matter. He accepted that he did not initially mention confidentiality to Ms Emr as she was most distressed and embarrassed. He didn't think she would further embarrass herself by discussing it with anyone.
200 Mr Mizon said that what Ms Emr had told him was "fairly well aligned" with what the applicant had told him and that while the applicant had been vague, it may have been as he was unprepared for Mr Mizon's visit.
201 He agreed that around 21 or 22 July, he was led to believe that the matter was very close to being resolved. After speaking to Ms Emr on 27 July, he was told of further matters involving Ms Potter. This prompted a further visit to Coniston. He reiterated the substance of his conversations with Ms Potter and the applicant on this day. He added that it was not usual for employees to roam around the building, seeking work or asking if people needed help.
202 It was at this time, he had made the decision to transfer the applicant to Head Office. He had discussed the matter with his own manager, Craig O'Brien.
203 Mr Mizon reaffirmed that there was no complaint with the applicant while he worked at Head Office.
204 After 30 August, Mr Mizon said the applicant complained to him that there were "spies" about and confidentiality had been breached. The next day, the applicant accused Ms Emr of giving information to Mr Heath who had told Mr George Darouti. Mr Mizon said that Mr Heath was not aware of the reasons for the rotation and was not a gossipmonger. He could not discount the view of the applicant that confidentiality had been breached - but he doubted it.
205 Mr Mizon reaffirmed the conversation with Ms Emr on 7 September and his visit to Coniston to talk to her and Ms Cook on 8 September. He said he had not realised during the earlier meetings, the extent, or frequency, of what Ms Emr had been subjected to.
206 Ms Lisa Cook has been employed for about a year and a half at Sydney Water's Coniston office. She said the applicant was the person who would fix her computer. She gave evidence in Ex'L' of two incidents in April or May 1999 involving the applicant.
207 The first was where the applicant was standing behind her giving instructions to her concerning her computer. When she swivelled around he was less than a metre away with his fly undone and not wearing underpants. While embarrassed, she did not say anything to him.
208 The second incident happened a couple of weeks later. Between 4.00 and 5.00pm, with few people left working, Ms Cook walked past the applicant's work station to make a cup of coffee. When she walked back, the applicant was standing in front of his work station with his trousers undone and open at hip level. He wasn't wearing underpants and she could see his erect penis.
209 She looked away, mumbled something and walked quickly away. From then on she would always walk the long way out to avoid walking past the applicant's work station.
210 Soon after this incident the applicant approached Ms Cook to say something but she cut him off, not knowing whether he was trying to explain or apologise for his behaviour. This occurred late in the day in the car park with no one else around. He had come up behind her and she didn't want to have a conversation with him.
211 Although finding these incidents upsetting, Ms Cook did not tell anyone about them. While his behaviour seemed bizarre, the applicant went on leave soon afterward.
212 Ms Cook also said that before these two incidents the applicant would watch when she was leaving work and deliberately leave at the same time. This was awkward because he wouldn't say much and she didn't know what to say to him.
213 After the applicant was transferred to Sydney, Ms Cook asked Ms Emr why he had been transferred. She said it was because he was playing weird little games. Ms Cook knew what she meant and told Ms Emr that the same thing had happened to her. She explained this as exposing himself. Ms Emr asked if she would talk to someone else. She agreed and gave details to Mr Mizon on 8 September.
214 Ms Emr seemed to be upset at first, but also relieved that someone else could back her up. In oral evidence, Ms Cook said she and Ms Emr were work colleagues and not good friends.
215 Ms Cook said she could not feel safe or comfortable working with the applicant again and was concerned at what he might do if he found out she had told Mr Mizon.
216 In oral evidence Ms Cook reaffirmed the details of both incidents. She said she was shocked, confused, felt threatened and intimidated.
217 Ms Cook elaborated on why she didn't tell anyone of the incidents. She said the applicant wasn't around much, that she was new to Coniston, had no female work friends yet and did not want to "cause any waves" (T.p267).
218 In cross examination, Ms Cook said the applicant may have assisted her, perhaps a dozen times, with her computer before the first incident.
219 She agreed that the best explanation for the first incident was that it was an accident. She gave him the benefit of the doubt.
220 As to the second incident, she said that irrespective of why he was doing it or who it was directed to, it was totally inappropriate. In hindsight, the applicant knew Ms Cook would walk back past him.
221 She said that after this incident she was nervous, didn't know who to tell or whether she would be believed.
222 Mr Graham Latta is the Manager, Application Services, Information and Communication Services for Australian Water Technologies Pty Ltd. He has been employed by Sydney Water since 1975 and was a member of the Disciplinary Committee inquiring into the allegations against the applicant. The Committee met with the applicant on 22 September and later met with Ms Emr, Ms Cook, Mr Mizon, Mr O'Brien and Ms Potter.
223 Attached to Mr Latta's affidavit (Ex'N') is the Disciplinary Committee's report. The conclusions of the report are reproduced at para 8.
224 Mr Daniel Fitzgerald is employed by Australian Water Technologies Pty Ltd as a Senior Human Resource Management Consultant. He first became aware of the allegations against the applicant on 9 September, when Mr Mizon and Mr O'Brien met with him. It was agreed, and subsequently approved by senior management, that a Disciplinary Committee be established. A letter dated 20 September setting out the allegations, and advising of the Committee's meeting on 22 September, was sent to the applicant. Also enclosed were copies of the Disciplinary Policy and Procedures, Code of Business Ethics, Equity and Diversity Policy and Internet Policy.
225 At the meeting, the applicant was accompanied by Mr Craig Wright. In order for the interview to proceed, Mr Fitzgerald said the Committee decided not to insist on taping it. The applicant was asked a number of questions, prepared in advance and tendered as Ex"Q" (list of 119 questions).
226 Mr Fitzgerald said that during the interview, the applicant made "admissions that on a number of occasions his penis had been exposed rather than he had exposed his penis" (para.11,Ex"O").
227 The Committee also met with Mr Mizon, Mr O'Brien, Ms Potter, Ms Emr and Ms Cook.
228 The Committee's report, dated 29 September, found the allegations proven and constituted serious misconduct. It recommended the applicant be dismissed taking into account his employment since 1989 and that he was generally a dependable and technically competent employee.
229 On 30 September, Mr Fitzgerald and the General Manager, Ms Zannetides, met with the applicant and advised him of his dismissal. He was provided with a copy of the report. The applicant, accompanied by Mr Wright, said nothing during this meeting.
230 On 14 October, Mr Fitzgerald, and Mr Brett Wright, Group General Manager Human Resources, met with the applicant and two Union officials, Mr John Tierney and Mr Alan Anderson. Mr Tierney indicated he had received a statement from Mr Craig Wright claiming the Disciplinary Committee denied the applicant natural justice, had been adversarial and placed the applicant under duress. Mr Tierney requested the applicant be reinstated. This request was rejected.
231 Mr Fitzgerald's second statement (Ex'P') was a detailed rebuttal of Mr Wright's opinion that the applicant was not afforded procedural fairness and was denied natural justice. He made the following points: