Nicholson v Heaven and Earth Gallery Pty Ltd

HEARING DATES: 02/03/2000; 02/04/2000; 03/15/2000; 04/13/2000; 04/14/2000; 05/01/2000 DATE OF JUDGMENT: 07/25/2000

APPLICANT Mr A Anderson, Australian Services Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Mr J Murphy of Counsel with Mr D Fitzgerald, Australian Water Technologies Pty Ltd

JUDGMENT:

• 34 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

AUSTRALIAN SERVICES UNION OF NEW SOUTH WALES, ON BEHALF OF IAN UECKERT, AND AUSTRALIAN WATER TECHNOLOGIES PTY LTD Application by Australian Services Union of New South Wales, on behalf of Ian Ueckert, re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 These proceedings arise from an application pursuant to s84 of the Industrial Relations Act 1996 ("the Act"), filed by the Australian Services Union of New South Wales ("the ASU"), on behalf of Mr Ian Ueckert ("the applicant") in which reinstatement relief is sought from alleged unfair dismissal. The twenty-seven year old applicant was employed by Australian Water Technologies Pty Ltd ("AWT") - or its predecessors - for a period of ten and a half years, until he was dismissed on 30 September 1999 for alleged serious misconduct. 2 The matter was listed for conciliation and directions on 28 October 1999, when Mr A Anderson appeared for, and with the applicant, and Mr D Fitzgerald, with Ms T Maher, represented the respondent employer. 3 Following preliminary submissions, the Commission chaired private conferences with the parties following which I formed the opinion, pursuant to s87 of the Act, that all reasonable attempts had been made to settle the claim by conciliation, but had proved unsuccessful. 4 I thereupon issued directions for the filing and service of affidavit material and set the matter for arbitration over four days (later requiring two additional days). Mr J Murphy of Counsel now appeared for the respondent. 5 Oral and affidavit evidence was adduced from:

Mr Ian Ueckert (Applicant) Mr Craig Wright (Counsellor) Mr Lothar Ueckert (Applicant's Father) Ms Sharon Emr (Employee of AWT) Mr Gary Emr (Husband of Ms Sharon Emr) Ms Lisa Cook (Employee of Sydney Water) Mr Daniel (Danny) Fitzgerald (Senior Human Resource Management Consultant)

Mr David Mizon (Manager - AWT) Mr Graham Latta (Manager - AWT) Mr Greg Heath (Analyst - AWT) Ms Karen Potter (Employee of Sydney Water) Mr Michael O'Hehir (Director, Price Waterhouse Coopers)

6 Mr Anderson also sought to rely on various character references on behalf of the applicant. However, the character witnesses were not available to attest to their statements or be subject to cross examination.

Reason for Dismissal 7 It is necessary to quote in full the termination of employment letter dated 30 September 1999: Dear Mr Ueckert I refer to your attendance at the meeting with the Disciplinary Committee on 22 September 1999 convened to inquire into the following allegations that: 1. You have committed sexual harassment in that you engaged in unwelcome conduct of a sexual nature in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that another person would be offended, humiliated or intimidated. 2. The sexual harassment you have committed includes but is not necessarily limited to: a) Exposing your penis to female members of staff; and b) Exposing pornographic material in the presence of a female member of staff

3. It is alleged that your actions in committing sexual harassment have been in breach of: a) Clauses 2, Principles of Conduct, 3, Guidelines for Behaviour and 4, Use of Official Resources and Information, of the Code of Business Ethics; and b) Sub Clause 4(d), Responsibility of Employees regarding Harassment, of the Equity and Diversity Policy; and c) Clauses B, Access and C, Email, of the Internet Policy The Disciplinary Committee have provided me with their report. I accept the findings of the Disciplinary Committee that the allegations are proven, constitute serious misconduct and that you be dismissed without notice. Therefore, I have determined that you be dismissed from employment with AWT for serious misconduct immediately.

Your entitlements will be paid into your nominated bank account.

You are required to deliver immediately to Mr Dave Mizon all AWT property in your care.

Attached is a copy of the Disciplinary Committee Report

Yours sincerely (sgd) Maria Zannetides General Manager ICS 8 The conclusions of the Disciplinary Committee were as follows: The disciplinary committee have considered the statements of Sharon Emr, Lisa Cook, Craig O'Brien, Karon(sic) Potter and Dave Mizon. The committee has also taken into account the interviews with these employees. The committee has considered the interview with Ian Ueckert. The committee has taken into account the fact that Mr Ueckert during the interview admitted to his penis being exposed on two occasions to Sharon Emr and on one occasion to Lisa Cook. We also note that Mr Ueckert has admitted to having a pornographic Tetris game on his computer. We accept the statement of Ms Emr that on one occasion Mr Ueckert's penis was aroused and the statement of Ms Cook that on one occasion Mr Ueckert's penis was erect. During the interview Mr Ueckert was less than forthcoming in his response to the questions put to him by the committee. The committee have formed the view that Mr Ueckert purposely failed to answer or lied in response to a number of questions asked by the committee. Mr Ueckert made no admissions that he had exposed his penis rather that his penis was exposed. He made no admission that his penis was either aroused on one occasion or erect on another. The Disciplinary Committee accepts Ms Emr and Ms Cook's version of events over Mr Ueckert's.

The Applicant's Evidence 9 The applicant, Mr Ian Ueckert, was employed as a Computing Support Specialist, based at the Coniston office of Australian Water Technologies. 10 The applicant gave evidence (Ex'1') that his manager, Dave Mizon, had visited the Coniston office on 20 July 1999. The purpose was to discuss tension between the applicant and another employee, Ms Sharon Emr. The applicant informed Mr Mizon that it was his fault and that Ms Emr had seen him, with his fly undone, tucking his shirt in. The applicant had accepted that this was inappropriate behaviour and he should have adjusted his clothing in the men's room. He had left a note for Ms Emr apologising for the behaviour, saying it wouldn't happen again and that if they couldn't talk any more, perhaps he should ask Mr Mizon for a transfer. Mr Mizon had suggested the applicant talk to Ms Emr to sort out their problems. 11 A few days later, Mr Mizon inquired of the applicant, by email, as to how things were going. The applicant said that all was fine; Mr Mizon said it would take more time for Ms Emr's trust in him to be regained. 12 On 27 July, Mr Mizon had another meeting with the applicant following a complaint by Karen Potter after the cleaners had complained to her about being followed by the applicant late in the day. The applicant said it was his practice to wander through the building after 4.00pm or 4.30pm to see if anyone needed assistance with their equipment. 13 In view of the circumstances, Mr Mizon proposed that the applicant be rotated to Head Office for a month. When the applicant informed Ms Emr of the transfer, she asked "why, and looked upset". 14 Mr Greg Heath was rotated from Head Office to Coniston. Both the applicant and Ms Emr tried to convince Mr Heath that the reason for the transfer was a problem with Ms Emr. 15 The applicant offered to have a day off on Ms Emr's birthday and visit Coniston. He said she had agreed, but it didn't eventuate. 16 The applicant described his last day working with Ms Emr as "traumatic" and "emotionally difficult". He left her the following message: I'm sorry Sharon. I don't want to go. I'll miss you. I wanted to say goodbye, and I didn't think that I could without breaking into tears. That's why I setup the PC in the dungeon (our storeroom). I really want to work things out, but I don't know how when I'm going so far away. Maybe the time apart will help? (Attachment B to Ex'B') 17 The applicant dropped into the Coniston office on his rostered day off - 2 August. 18 Mr Mizon asked him on the first day in Sydney, August 3, if he knew why he had been transferred. He said because of the shirt tucking incident and the complaint from the cleaners. Mr Mizon assured him that the reason for the transfer was confidential and known only to Ms Emr and Mr Craig O'Brien. 19 Subsequently, however, a Mr Darouti had referred to him as "that bad man from Coniston". The month at Head Office was uneventful and about 26 August, the applicant asked Mr Mizon when he could return to Coniston. Mr Mizon said he had had no complaints about his behaviour, or work performance, but Ms Emr wasn't yet ready for his return. 20 The applicant made phone contact with Ms Emr the following weekend after observing her at a shopping centre at Warrawong. They spoke for twenty to thirty minutes, got on well and discussed how the breach of confidentiality might have occurred. 21 The applicant asked for, and was granted, holidays for one week from 6 September as he was unhappy with the work atmosphere, and the breaches of confidentiality. 22 He returned to work on 13 September and asked for a transfer to Head Office. Mr Mizon had told him the incident with Ms Emr was to be taken further and he was not to go in, or near, the Coniston office and not make contact with anyone there. He could not get an explanation and was shocked and bewildered. He met with a social worker, Ms Kate Marr, and a counsellor, Mr Craig Wright, during which he was crying and upset. He began to feel physically sick and Mr Wright advised him to consult his doctor. He did so on 17 September. He was prescribed Xanex and given a week off. 23 On 20 September (while on sick leave) Mr Graham Latta phoned the applicant to require his attendance at a Disciplinary Committee meeting on 22 September. At 7.00pm that day, documents arrived at his home setting out the allegations against him. He had already phoned Mr Wright who had agreed to accompany him to the meeting. Mr Wright also informed him that his father, Mr Lothar Ueckert, had visited Ms Emr's husband the previous Friday. He told his father he shouldn't have done so. 24 On reading the allegations he said he felt sick and confused. Nevertheless, he attended the Disciplinary Committee meeting at which Mr Danny Fitzgerald (Human Resources Manager) and Mr Latta were in attendance. 25 Mr Fitzgerald asked to tape the meeting - the applicant refused, as he really did not know what was going on, or what his rights were. The meeting lasted four hours and was not taped. He said he was confronted with a series of allegations, some of which were unknown to him. He was not given an opportunity to respond. The applicant was not shown statements from Ms Sharon Emr, Ms Lisa Cook, Ms Karen Potter, Mr Craig O'Brien and Mr Dave Mizon. 26 In response to the allegations of Ms Emr, the applicant said she had seen him on two occasions, after 26 May 1999, with his fly undone and she probably had seen his penis. Both occasions were accidental, as Ms Emr walked in on him tucking his shirt in. He had apologised to her. 27 Ms Cook had also probably seen his penis on one occasion, before 11 May; again accidentally, when she walked in on him tucking his shirt in. He deeply regretted the incident, apologised to her and acknowledged it was inappropriate behaviour. He denied standing behind her with his fly undone. He also denied Ms Cook saw him with his fly undone, with an erection. 28 He said the Committee had asked him whether Ms Emr or Ms Cook had any reason to lie and he replied "no". 29 The applicant was informed at the Disciplinary Committee meeting that Ms Emr alleged he had exposed himself to her, three or four times a day, over two weeks, after he returned from sick leave in late May. He was further informed that Ms Emr had observed him moving his hands (alleged to be masturbating) under his shirt; which he denied. 30 He was further asked about receiving pornographic material on the computer and said that, on occasions he had received such material, but he deleted it immediately when he realised what it was. 31 The applicant said his relationship with Ms Emr was more than just a working relationship. He had lent her money to buy lunch. They exchanged birthday presents, shopped together and he had lent her, over time, approximately $4,000; which he made no claim on. She let him touch her on the legs and backside and she regularly put her hand in his pocket. 32 At the conclusion of the meeting he was asked if he had anything to add and he said he was sorry, he had apologised, it had not happened since, nor would it happen again. 33 He asked to see the notes of the meeting - this was refused. 34 On 27 September, the applicant returned to work and on 28 September, Mr Mizon directed him to see the Corporate Doctor to verify his previous week's sickness. He did so, and the sick leave was approved. 35 On 30 September, he attended a meeting with Mr Wright at which Mr Fitzgerald and Ms Maria Zannetides were present. He was given the report of the Disciplinary Committee and advised of his immediate dismissal. 36 In oral evidence, the applicant described his work history with the Water Board, later Sydney Water, and then Australian Water Technologies at Coniston. As a computer support specialist he had frequent contact with other employees and customers. He had never been disciplined for behaviour or work performance (as this was not disputed by the employer, I do not recount in detail Mr Anderson's traversing of this evidence). 37 The applicant gave detailed evidence of his relationship with Ms Emr. They had known each other for about four years and gradually became closer, although he did not see her outside work hours. He said they would:

i) talk about matters not normally talked about in the workplace, such as family matters, the underwear she wore and the injections she was having;

iii) go shopping together for clothes and jewellery;

vi) shop for household items together, such as cutlery, dishes, pots etc.

He would also look for Cherished Teddies (porcelain bears) for her and purchased pieces in Queensland and Canberra - even making a special trip to Thredbo. He also had his parents purchase a particular piece when they were on holiday, overseas. He had bought for her, or gave her, about fifty Cherished Teddies.

He said that he would lend money to Ms Emr and she probably owed him around $4,000. One Christmas, he had forgiven an accumulated debt of $3,500. He had carefully documented his financial arrangements on his home computer.

He said while they were very close and had no secrets between each other, he didn't have any expectations that the relationship would go further. He said he " wouldn't break up her marriage just so we could be together. It wouldn't be fair on Sharon and it wouldn't be fair on her son " (T.p17). 38 The applicant described returning earlier from sick leave than he should have after having bronchial pneumonia. He had been on sick leave from 11 May to 26 May. Upon his return, he thought everything was fine between himself and Ms Emr. 39 The applicant denied he had exposed himself to Ms Emr three or four times a day and described in detail the two incidents in which she had witnessed him tucking in his shirt. He explained this through a floor plan of the Coniston office (Ex'4'). He reiterated that he regretted the incidents and had apologised to Ms Emr. 40 He also described the two incidents with Ms Cook and said that in the second incident she may have noticed that he wasn't wearing underpants. He said that he wasn't aware of the first incident and that Ms Cook had not sought to avoid him by leaving the long way out of the office. 41 The applicant gave evidence of an incident involving Karen Potter, concerning a problem with the set up of a new Canon colour photocopier. He didn't know how it worked, and told Ms Potter that Canon had set it up. She had replied "look, if you don't want to fix the problem, just piss off". He said she had not raised with him any issue concerning the cleaners being followed. 42 The applicant gave details of the meeting with Mr Mizon on 20 July. In addition to his affidavit evidence, he said Mr Mizon raised the matter of staring at Ms Emr. There was no reference made to undoing his pants three or four times a day. The meeting was like a normal discussion, it was a bit uncomfortable and everybody was "sort of jumping around the questions". He said that Mr Mizon did not say how many times he was alleged to have exposed himself and he (Mr Ueckert) had not mentioned the earlier incident involving Ms Cook. Mr Mizon had said if the behaviour didn't improve, he might have to move him. The applicant subsequently left the following message for Ms Emr offering to transfer: I'm sorry for what I've been doing, that's why I said sorry to you on Thursday. I won't do it again. But if we're not going to talk anymore, maybe I should ask Dave for a transfer somewhere else. What do you think? (Attachment A to Ex'B')

43 The applicant believed everything had been resolved after this meeting and a couple of days later Mr Mizon left a message asking how things were going. The applicant went to Ms Emr who said that everything was good between them. 44 Mr Mizon returned on 27 July and raised Ms Potter's allegations with him. The applicant explained to Mr Mizon that he often wandered around the office after 4.30pm, offering to help with any problems. He said he had no reason to follow the cleaners, particularly as he was allergic to dust. Mr Mizon also raised Ms Potter's complaint concerning the photocopier. 45 Mr Mizon proposed, and the applicant had no objection to, a transfer to Head Office for one month. The reasons, Mr Mizon said, would be kept confidential. The day before transferring to Sydney, he visited Coniston and spoke to Greg Heath and Ms Emr. He said the atmosphere seemed okay. 46 On arriving at Head Office, Mr Mizon met with the applicant, asked him if he knew why he had been moved and Mr Mizon said only Craig O'Brien, Ms Emr and he knew of the real reason. The applicant related a conversation with Mr George Darouti in which Mr Darouti seemed to know why he had been transferred. The applicant was upset by this and asked Mr Mizon about it. He also felt that other employees stopped talking when he walked past. He went on holidays from 5 September to 10 September, because he was upset that people knew about the incidents and confidentiality had been breached. 47 Upon his return, he asked about going back to Coniston but was told further information had come to hand. Mr Mizon would not elaborate. He was upset and shocked by this, believing that everything was fine. He then went to see Sydney Water Counsellors, Kate Marr and Craig Wright, and later his own doctor. The doctor gave him a week off and prescribed medication for anxiety. 48 When he received the written allegations of sexual harassment he was confused because he didn't know exactly what he was accused of, who was involved, or where it was alleged to have occurred. He thought the matter with Ms Emr had been resolved by the transfer to Head Office. He had not previously been aware of the allegations of accessing pornographic material. 49 He recounted his written evidence of the Disciplinary Committee meeting and added that he did not protest about attending the meeting while on sick leave because he thought he had no choice. He reaffirmed his admissions and explanations for his behaviour. He admitted playing the Tetris game - a computer game involving images of naked men and women - and Ms Emr could possibly hear it being played. 50 He felt that the Committee thought he was lying. He believed he was not afforded natural justice because:

5. the Committee knew he was on sick leave, but didn't seem to care. 51 In cross examination, the applicant said at no time did he seek a deferral of the Disciplinary Committee meeting because he was sick, nor had Mr Wright proposed a deferral on his behalf. 52 While denying he had exposed his penis to female employees, he regarded such behaviour, if it occurred, as "entirely inappropriate and unacceptable and perhaps threatening". He also denied accessing pornographic material but accepted that, too, would be inappropriate behaviour. He said the material sent to him only lasted on the screen for ten seconds or so. 53 The applicant said that he didn't tell the Disciplinary Committee that he sometimes didn't wear underpants. He denied the alleged incident of standing behind Ms Cook, with his fly undone, so that when she turned around she would see his penis. He also denied another incident, where he stood up behind his desk, his pants undone and with an erection, so that Ms Cook would see him. He conceded if this was true, it could not be accidental. He said Ms Cook was lying; but knew of no reason why she would. He said he was tucking his shirt in when Ms Cook came in to ask him something. He later apologised to her, as it was an unintentional accident. He deeply regretted it. The two subsequent incidents involving Ms Emr were also accidental. 54 Mr Murphy put to the applicant that he had a fixation with Ms Emr, and in his mind, there was more to their relationship than merely working together. He denied these suggestions. He also denied giving his father the impression they were involved in a relationship. He denied "making up" the matter of Ms Emr letting him touch her and her putting her hand in his pockets. He denied thinking that their relationship allowed him to touch her and expose himself to her. 55 He said Ms Emr was lying if she said he exposed himself to her on more than two occasions, or that he had accessed and displayed pornographic material in her presence. He could not offer any explanation why she would lie. 56 He denied intending to intimidate Ms Emr by staring at her because he was hurt she thought his behaviour was inappropriate. Ms Potter was also lying if she claimed that she observed him staring at Ms Emr. He denied an incident in June, where it was alleged he was masturbating in sight of Ms Emr. 57 The applicant was asked about his apologies to Ms Emr and Ms Cook. He denied that his apologies were entirely consistent with deliberately exposing himself, rather than merely being an accident. He denied the apologies to Ms Emr were also about the accessing of pornographic material and for staring at her. 58 He was asked about the message he sent to Ms Emr offering to transfer. Mr Murphy asked why he would do so if it was simply one accidental incident. The applicant said it was his way of apologising. He denied this message was entirely consistent with Ms Emr's version of events, and could not be consistent with two accidental incidents, between two people, who had no problem with their relationship. 59 He denied continuing to stare at Ms Emr, with a view to intimidating her, when he returned from holidays. 60 In further cross examination, the applicant agreed that Mr Mizon would only visit Coniston for important matters. He denied, in the meeting of 20 July, Mr Mizon had raised the issue of pornographic material on the computer and denied Mr Mizon had said that if the behaviour didn't stop, it could lead to disciplinary action. 61 Mr Murphy suggested if the applicant's version of events was to be accepted it was "the greatest storm in a tea cup of all time". Unyet, he had reacted by expressing deep regret, apologising and offering to transfer. The applicant's response was "I would do anything to help the people". 62 He was then asked if soon after Mr Mizon's visit, he had offered Ms Emr $50 for her lay by. He agreed he had, and it was common for him to buy her gifts. Mr Murphy put it to him that the money and gifts were a complete fabrication. He denied this suggestion. He further denied that allegedly giving Ms Emr $3,500 was because he had a fixation with her. 63 In the second visit by Mr Mizon, the applicant denied that he had raised the issue of Ms Potter observing him staring at Ms Emr. 64 The applicant was queried as to why he didn't protest what appeared to be a vendetta over two innocent incidents. Mr Murphy put it to him that he didn't overreact because he knew he wasn't blameless and accepted how serious the matters were. The applicant rejected this suggestion. He accepted it was a natural process for Mr Mizon to transfer him, and express in clear terms the reasons for doing so, including the likelihood of disciplinary action. 65 Despite this he made no approach to the Union. He sent a message to Ms Emr saying he would miss her, that he didn't want to go to Sydney and he was close to tears. Mr Murphy suggested such a reaction was ridiculous if it arose from only two accidental incidents. The applicant replied it was reasonable, because he and Ms Emr were so close. 66 The applicant was offered assistance from counsellors or social workers on three occasions; he declined each time. 67 On 1 September he called Ms Emr and said Ms Emr called him back. This later call was not mentioned in his affidavit although he conceded that it was an important matter. He rejected a suggestion by Mr Murphy that Ms Emr had not called him about this time. The applicant said his phone call to her was about twenty to thirty minutes and she had said she was sorry she didn't see him in the shopping mall. 68 He denied Mr Murphy's suggestion that Ms Emr had rejected talking to him about their problems because he was the cause of them. He said they were getting on well. He phoned Ms Emr again on 2 September and asked to see her. She refused. 69 In respect to the letter alleging sexual misconduct, the applicant was asked, if he was in any doubt as to whether it concerned the matters raised by Mr Mizon and the earlier incident involving Ms Cook. He said he was in some doubt because he believed the matter had been dealt with by the transfer, and he had no particularities as to dates, places or persons making the allegations. He had not changed his position that the three incidents were accidental. 70 In respect to the allegation of accessing pornographic material, Mr Murphy suggested that he knew the substance of this allegation because he played the Tetris game on a number of occasions. The applicant denied knowing what was alleged until it was put to him in the meeting. He accepted signing the company's internet policy. 71 The applicant accepted that he understood he would be asked questions about the allegations, that he could have a witness or representative attend; which he did. He conceded that he had every opportunity to say what he wished, was not cut short or prevented from doing so, and could say anything else at the end of the interview. 72 The applicant was asked if there was anything written in his statement, Ex'1', or said in the proceedings which he did not tell the Disciplinary Committee. He replied "I don't think so, no" (T.p97). He agreed that he was provided with all the written witness statements not provided to him in the Disciplinary Committee meeting and had an opportunity to respond to the employer's case. He had declined to do so. 73 He said he expanded on the statement in the witness box but accepted that the substance of "the story is the same here as it was before the Disciplinary Committee" (T.p106). 74 Finally, the applicant was asked if he did all that Ms Cook and Ms Emr said he did, would he deserve to be sacked? He replied "If I did, yes, but I didn't do it" (T.p111). 75 In re-examination, the applicant reaffirmed that his apologies to Ms Emr were for the two accidental incidents. He was never queried by Mr Mizon on 20 July and 27 July as to the many times Ms Emr alleged he had exposed himself to her. 76 He said that he should have been provided in advance, with the questions to be asked by the Disciplinary Committee and that he should have been shown the witness statements. 77 The applicant said that he was devastated by his dismissal, having a previously unblemished ten and a half year employment record with Sydney Water. 78 Mr Craig Wright is a registered psychologist, employed as a counsellor, by Sydney Water. He had a consultation with the applicant on 14 September, and on two other occasions, prior to accompanying him to the Disciplinary interview on 22 September. 79 In his affidavit, Ex.7, Mr Wright asserts that the applicant was not afforded procedural fairness and was denied natural justice. He identified the basis on which he held this view as:

1. There is no reference to a Disciplinary Committee in the Human Resource Manual. Consequently, the applicant was not counselled that such a Committee was to be formed, who would be its members, what its terms of reference would be, or how it would operate.

2. The applicant was denied specifics as to the allegations against him. The allegations were unclear.

3. He was not told who made the allegations, nor when he asked, was he provided with witness statements.

4. He was not told the correct process by which he would be best able to answer the allegations.

5. He was not given the opportunity to respond fully to the allegations.

6. The disciplinary meeting was inquisitorial and adversarial. He was treated in a polite, but hostile fashion.

7. He was told he could not have a copy of the employer's notes.

9. He was given only one day to prepare for the interview and offered no assistance. The other witnesses were provided assistance in preparing formal statements.

10. When given an opportunity to rectify his behaviour, he did so, and despite no further transgressions, he was dismissed.

11. He was unfairly accused of abusing sick leave and directed to attend a medical appointment.

12. He had been compromised by breaches of assured confidentiality.

13. The applicant had not violated the internet policy. 80 Mr Wright acknowledged that the applicant had breached the employer's harassment policy. However, he said the employer did not follow its own procedures in dealing with the breach. His inappropriate behaviour was being addressed and had been handled adequately. 81 Mr Wright rejected the Committee's view that the applicant was less than forthcoming in his responses to questions put to him. 82 Mr Wright elaborated on his affidavit evidence in the witness box. He said that the applicant wished him to adopt more of an advocacy role, than a counsellor. 83 Mr Wright said it was the first time he had been in a disciplinary interview and although taping it "made sense", the applicant had no idea of what was going to be said, or alleged. After three adjournments, Mr Fitzgerald agreed not to tape the meeting. 84 Mr Wright said that while the applicant wasn't rushed to answer questions, the question and answer format was very specific and questions were taken out of context. 85 When he first saw him, Mr Wright said the applicant was in a state of high anxiety, crying and had no idea what was going on. He suggested he see his own doctor, who subsequently prescribed medication. 86 In cross examination, Mr Wright said that he had not known the detail of the allegations prior to the Disciplinary Committee meeting and that the issue, as told to him by the applicant, concerned tucking his shirt in when not wearing underpants so that Ms Emr may have accidentally seen his penis. Mr Wright accepted that on 20 September he knew the allegations were related to the applicant exposing himself to Ms Emr. 87 Mr Wright acknowledged that management had an obligation to protect its employees, particularly female employees, from potential intimidation. Mr Wright was aware that the issue concerned a matter involving the applicant and Ms Emr and that the applicant's father had made an unsolicited visit to Ms Emr's husband. When he found out he put his "head in his hands" and recommended to the applicant that he and his father make no contact with anyone at Coniston as it would only complicate matters. He accepted that there was a concern, based on protecting the women and their families, although this wasn't communicated to the applicant. 88 Mr Wright acknowledged that Disciplinary Committees were not a new concept (T.p142) - they had been formed and had conducted investigations during the time he had worked for Sydney Water. He added that the Australian Services Union was active within the Corporation. 89 Mr Wright was asked - if he really thought the process was so tainted by lack of information, why he didn't ask for an adjournment? He answered that this was his first Disciplinary Committee meeting, he was naive and in hindsight, should have requested it. 90 Mr Wright agreed that the applicant was asked at the end of the interview if there was anything further he wished to put. In a question from the Bench, Mr Wright said he didn't protest to management about the alleged unfairness of the process either at the interview, subsequently, or at the time of dismissal. He said he didn't see any particular value in doing so. 91 Mr Lothar Ueckert is the father of the applicant. He provided a witness statement, Ex'8', in which he described how he noticed a change in his son's place of work and questioned him why he was transferred. His son told him that a work problem at Coniston had arisen between himself and Ms Emr. 92 Mr Ueckert decided to investigate the matter by approaching Ms Emr's husband at his place of work on 17 September 1999. They agreed to speak privately in the car sales yard where Mr Emr worked. Mr Ueckert introduced himself and told him that he had an impression his son and Ms Emr were "more than workmates". Mr Ueckert was concerned his son was having a relationship with a married woman with a child. Mr Ueckert told Mr Emr the situation was having a bad effect on everyone, including his son, and Mr Emr's marriage. He asked him if his wife may have been angered or disturbed that his son may have called the whole thing off and whether this might be the reason she was making accusations against him. Mr Emr had replied that Mr Ueckert was "having himself on". 93 Mr Emr had mentioned that Mr Ueckert had retired from the steel works with a redundancy package and had said that "20,000" (presumably dollars) could "keep Ian out of trouble". He then said three persons were involved and mentioned "30,000". Mr Ueckert said he was shocked and left the car yard and later contacted a lawyer (a Mr Sergeant). 94 He did not discuss this meeting with his son and on 20 September found out for the first time the extent of his son's employment difficulties. His son assured him that the matter was being handled internally; inferring that he should leave it alone. Mr Ueckert met with Mr Sergeant on 23 September and left with an understanding he would wait until the matter was finalised by AWT. He had a further meeting with Mr Sergeant on 4 November. 95 In oral evidence, Mr Ueckert said that from September 1998 he and his wife noticed that their son was constantly talking about, and doing things with, Sharon (Ms Emr). On a trip to Europe, the applicant gave him a list of retired Cherished Teddies and asked if he could look for them and purchase them overseas for Ms Emr. Ms Emr had given Mrs Ueckert a present for doing so. On another occasion, he went with his son to Thredbo, to find another retired piece for Sharon. 96 Mr Ueckert said he noticed his son was behaving differently and seemed upset in August 1999 when he was moved to Sydney. The applicant told him the transfer was only for a month. 97 Mr Ueckert said he was concerned that something "fishy" was going on because his son (who owned a villa and an apartment) was buying various expensive household items - pots, pans and cutlery, and storing them at the family home. He said he was concerned "something was going on" between his son and a married woman. 98 Mr Ueckert elaborated on the conversation with Mr Emr. He told him he was pretty lucky to be still married; that he thought his son was having an affair with his wife. Mr Emr then raised the $20,000. Mr Ueckert was asked if he regretted confronting Mr Emr. He said he was not sorry, why should he not protect his son when "society is falling apart because nobody cares about nobody" (T.p156). When asked in cross examination if he was very protective of his son, Mr Ueckert said "no, not if he is wrong". Mr Ueckert declined to answer if he would be protective of his son, if the allegations against him were true. He denied the purpose of his visit was to have Mr Emr drop the allegations or he would expose his wife's affair. 99 Mr Ueckert was asked about the Cherished Teddies his son bought for Ms Emr. He didn't know if Ms Emr paid for them. He said that when his son was accumulating household items, he thought he may be thinking of moving out and living with Ms Emr. He said he was suspicious, but his son didn't say he was moving out and he didn't know if they were having an affair. He said he didn't suspect there was a sexual relationship, but maybe, by his son's move to Sydney, Ms Emr "got the shits" because "she lost her meal ticket" (T.p162). 100 Mr Murphy put it to Mr Ueckert that the mention of 20,000 to call it off was a complete fabrication and the mention of the steelworks and redundancy was that Mr Ueckert told Mr Emr he had plenty of money and would "fight this until he had nothing left". Mr Ueckert denied this version of the conversation. 101 After his son's dismissal, Mr Ueckert wrote to state Minister, Kim Yeadon, pleading for his son's job back. He said it wasn't fair that his son thought his job was safe by moving to Sydney. Mr Ueckert said again he was not sorry he went to see Mr Emr - he "would do it all again if I had to" (T.p167). 102 At the end of the Union's evidentiary case, Mr Anderson tendered "without objection" a will of Ian Ueckert (Ex'9') dated 15 November 1998 and witnessed by his mother and father. The will discloses that the applicant bequeathed his entire estate, including two residential properties, to Ms Emr (except for a Swarovski glass collection).

The Respondent's Evidence 103 Ms Sharon Emr provided oral and written evidence (Ex'B' and Ex'C'). In her affidavit evidence, Ms Emr said she had been employed by Sydney Water and Australian Water Technologies Pty Ltd since April 1983; the last four years at the AWT office in Coniston. There are about sixty employees at the Coniston office, situated on two floors. She met the applicant about three years ago and their work stations were next to each other. 104 Ms Emr said that prior to May 1999 she had a reasonable working relationship with the applicant, although he did some "weird things to her and other female employees" 105 After the applicant's return to work from sick leave in May 1999, Ms Emr attests the applicant's behaviour toward her changed. When she passed his work station, he would be tucking his shirt in, with his trousers completely open. She could see his penis as he wasn't wearing underpants. This would happen one or two times a day - sometimes three or four times. 106 She said that the applicant would receive pornographic material and turn up the volume so she was forced to hear it. On one occasion, after watching pornographic material, the applicant's fly was undone and she could see his penis was aroused. 107 Ms Emr said when she protested this behaviour, the applicant promised not to do it again; but he did it again the next day. 108 At this time, the applicant was also staring at her, sometimes for up to an hour or he would rest his head on her work station. She told him this made her uncomfortable and she asked him to stop; but he continued to do it. 109 The last straw was a meeting with the applicant on 10 June. Sitting across from each other, Ms Emr noticed that the applicant appeared to be masturbating under the table. She said "that's it, I've had enough and I am not putting up with this crap any more". She went home. 110 The next day, she asked her manager, Dave Mizon to come to Coniston to tell him what was going on. The applicant went on holidays on the following Monday, leaving a note of apology to her before doing so. Mr Mizon met with Ms Emr on 18 June. She was embarrassed and said she may not have fully explained what had been happening. She told Mr Mizon she saw the applicant tucking his shirt in and had seen "skin". 111 Mr Mizon visited Coniston again on 20 July and spoke to the applicant. After Mr Mizon left, Ms Emr said the applicant asked her why she had gone to Mr Mizon. She told him she wasn't going to "put up with this crap" any more. The same afternoon, the applicant offered her $50 for layby's. She refused. 112 The next morning, the applicant spoke to Ms Emr again. He said that because Ms Emr had changed her hours to suit her son's child care arrangements, he blamed her for his behaviour (in cross examination it was revealed that her hours had, in fact, changed in February). 113 He asked how Mr Mizon got hold of his apology note. In cross examination, Ms Emr said he saw it when he was using her computer for an unrelated matter. 114 The next day Mr Mizon sent a message to the applicant indicating Ms Emr had lost trust in him. She said he went into a sulk as he thought everything between them was now alright. Mr Mizon visited Coniston on 27 July and arrangements were made for the applicant to transfer to Sydney. 115 She had no further contact with the applicant until 31 August, when he rang and asked why they didn't discuss their problems without involving other people. She said that the applicant was "paranoid" that people knew why he was moved to Sydney. He called again the next day and on 3 September. He said he was taking a week off, because he couldn't handle everyone knowing what had happened. He asked to see her; but she refused. There was no further contact with him. 116 On 7 September, during a conversation with Lisa Cook, Ms Cook told her that the applicant had exposed himself to her. She agreed that Ms Emr could tell Mr Mizon about it. 117 Ms Emr said that the thought of the applicant coming back to Coniston made her physically sick, nervous and jumpy. She was angry and upset that she let the applicant intimidate her and that she didn't tell someone earlier. 118 Ms Emr attested to reading Mr Mizon's notes and generally supported their accuracy. 119 In Ex'C', a response to the applicant's statement, Ms Emr rejected much of the applicant's evidence as misleading or untrue. She did not consider his behaviour an accident and no matter how many times he had said "it won't happen again", it did. 120 In respect to the claim that she owed the applicant $4,000, she said this was untrue. Like normal working relationships, they had exchanged inexpensive Easter or birthday presents. On one occasion, the applicant had lent her $25 as the EFTPOS was faulty. She had paid him back. 121 Ms Emr said that she had never asked the applicant, or his parents, to look for, and buy Cherished Teddies in Europe. She couldn't afford them and didn't want them. The applicant said he would pay for them and she could pay him back. The value was no more than $200 and the debt was repaid. 122 Ms Emr said that she did not let the applicant touch her on any occasion and had never put her hand in his pocket. 123 In oral evidence, Ms Emr described in detail the nature of the relationship between herself and the applicant. It included having lunch together in the office, shopping for household items which the applicant said he needed as he was moving out of home, visits with others to a gym run by Integral Energy, borrowing small sums for lunches which were paid back, exchanging Easter, Christmas and birthday presents. 124 As to the Cherished Teddies she had never asked him to buy any, although he did on a few occasions; which she paid for. 125 She never socialised with him in the evening or on weekends. She had never been to his home or him to hers. She in "no way" did anything to suggest to him that they were more than friends. Sometimes she rang him at home to discuss work matters. 126 Ms Emr elaborated on what she saw when the applicant had his fly undone and was tucking his shirt in and on the occasions he was staring at her. 127 She re-affirmed the material in her written statement, including what Ms Cook had described to her as having been done to her by the applicant. 128 She said the applicant's phone call to her on 30 August was no more than five minutes, not twenty to thirty minutes (T.p200). He had accused her of discussing the matter with others and said he had seen her at the shopping centre on the weekend, but didn't know whether to approach her. She had replied "I'm glad you didn't" (T.p180). 129 A month after the transfer, she had phoned the applicant to ask for the key to a cabinet which was needed to be opened. The cabinet had been in the locked room known as the "dungeon" but had been moved out (T.p199). He denied having the key and said as far as he was concerned he wouldn't be coming back (to Coniston). He had shredded his paper work and destroyed his computer disks. 130 In respect to being named in the applicant's will, Ms Emr said she had no idea of this until told by Mr Fitzgerald a few days earlier. However, she did recall the applicant telling her, over two years ago, that he was going to give his two home units to each of his nieces and if she was "really nice to him" he might put her in the will. She took this to be a joke and heard no more about it. 131 In cross examination, Ms Emr described the applicant as awkward and he didn't relate to people. She said he wanted to project shyness so people would feel sorry for him. She was not aware the applicant had some affection for her - all they did was work together. They have never discussed intimate matters. They had never bought clothes together. 132 Ms Emr gave evidence of an earlier incident, two years ago, of the applicant tucking in his shirt; he had apologised the next day for embarrassing her and said it wouldn't happen again. 133 Ms Emr described the layout of the office and their work stations. She said that the applicant could see her when sitting at his desk. 134 When the incidents started to happen in May, she did not report it straight away because she wanted to give him the benefit of the doubt . She hoped it wouldn't happen again; but it did. She described the incident when he was sitting playing the computer game and stood up with his penis aroused. 135 Ms Emr also said that the applicant was moody and didn't want to do certain jobs. 136 Ms Emr gave reasons for not expressly telling Mr Mizon on the phone, or in person, the precise nature of the complaint. She said she was questioning herself, she was embarrassed, questioning why, after working together for three years, he would suddenly start behaving as he did. It was hard talking to a man about it, and it wasn't until Ms Cook had told of her experiences, that she felt more comfortable. 137 She confirmed in cross examination that the behaviour had occurred on more than two occasions over a two week period. 138 Ms Emr was asked what she thought the applicant was apologising for in his note of 20 July. She said it was when she had said she had had enough, after he appeared to be masturbating under the desk in front of her. 139 Ms Emr attested there was never anything said by Mr Mizon, Mr O'Brien or anyone else about confidentiality. She had merely said to Greg Heath (who replaced the applicant at Coniston) that the transfer had nothing to do with him, but was about the applicant "playing some sick mind games". She did not go into specifics. 140 As to the encounter with Ms Cook, Ms Emr said Ms Cook asked where the applicant was. She said that he was playing some sick mind games and had been transferred. Ms Cook said that something like that had happened to her. 141 Ms Emr said it was her understanding that the applicant was not to visit the Coniston office, or have any contact with persons employed there. 142 Mr Gary Emr, Ms Emr's husband, gave oral and written evidence (Ex'E'). He gave evidence that he had read the statement of the applicant's father and found it deliberately vague, false in some areas and missing pertinent points of his conversation on 17 September with Mr Ueckert (senior). 143 When approached by Mr Ueckert, Mr Emr assumed it was a customer wishing to speak to him. He said that Mr Ueckert said:

(1) His wife and his son were having difficulties and asked if he was aware? Mr Emr said yes and proceeded to inform Mr Ueckert of some of the acts his son had performed. Mr Ueckert then became agitated.

(2) Either his wife was lying or bitter with the relationship (Mr Emr said " you must be having yourself on ").

(4) He believed his son was moving out of home with Ms Emr. 144 Mr Emr told him about the pornography on the computer and Mr Ueckert said everyone has it. 145 Mr Ueckert said it would be in Mr Emr's best interest for his wife to drop the charges or he would expose their affair. Mr Emr took this as a threat. Becoming impatient, Mr Emr asked him if he knew his son had exposed himself to another woman at work (Ms Cook). Mr Ueckert appeared shocked, became upset and said she was also lying. Having had enough, Mr Emr said he thought his son had a mental problem and needed help. Mr Ueckert became hostile and said that if anything happened to his son he "had plenty of money and would fight this until he had nothing left". The conversation ended. 146 Mr Emr immediately phoned his wife and told her of Mr Ueckert's visit. She became upset that allegations were being made that were completely false. They both contacted Mr Mizon and told him of Mr Ueckert's visit and the threats. 147 Mr Emr said that it was a complete lie that he had sought money from Mr Ueckert to drop the charges. He didn't know where Mr Ueckert had worked, or that he was retired. 148 Mr Emr gave short corroborative oral evidence. 149 Ms Karen Potter has been employed by Sydney Water at Coniston for twenty-two years. She gave evidence that shortly before 11 June 1999, Ms Emr told her of the problems she was having with the applicant, including tucking himself in when not wearing underpants and staring at her. Ms Emr sought her advice. She told her to document the incidents, and report them to her manager. 150 One afternoon, shortly thereafter, Ms Potter observed the applicant sitting at the end of Ms Emr's desk staring at her. She had her back to him. When Ms Potter approached, the applicant jumped up and returned to his work station. Ms Emr said "he does that to me all the time". Ms Potter said it looked as if the applicant was trying to intimidate her. Ms Potter told Mr Mizon of this on 27 July. 151 In cross examination, Ms Potter said she found the applicant very hard to communicate with. He would not include himself in work social functions. 152 Ms Potter was asked about the incident over the Canon printer. She had asked the applicant to help and he had said it wasn't his problem, so she told him to "piss off". She said this was the only problem she had with the applicant and she had never discussed it with anyone else. 153 She was asked if it was possible the applicant was helping Ms Emr when she said he was staring. Ms Potter said "no, it was not like that". 154 Mr Greg Heath is the employee who rotated with the applicant from Head Office to Coniston. In Ex'G', his witness statement, Mr Heath said he was concerned as to why he was being moved and asked the applicant if he knew why. He said it was because of a problem with a secretary (Ms Potter) over a printer. At this stage, Ms Emr did not tell him anything of the reasons. 155 On 2 August (Mr Heath's first day at Coniston) the applicant had turned up and attempted to have a conversation with Ms Emr. She was giving one word answers and was avoiding eye contact. The conversation lasted about five minutes, after which Mr Heath noticed Ms Emr was red in the face and upset. During the period he worked at Coniston, Mr Heath noticed that Ms Emr would break down and cry on many occasions and sometimes became physically ill. The worry and stress were affecting her, and her family, and although she told him it was as a result of incidents involving the applicant, she did not discuss the specific details. He felt the working relationship between Ms Emr and the applicant was "strained and extremely tense". 156 Mr Heath recalled a phone conversation when the applicant called Ms Emr on 2 September. She was concerned that she may be being stalked and held a genuine fear for her own safety and that of her family. 157 On 17 September, Mr Heath arrived at Coniston to find Ms Emr in a state of shock - shaking and crying hysterically. He had one of the other women take her to the rest room to calm her down. After about fifteen minutes, Ms Emr returned and told him that the applicant's father had gone to her husband's workplace and told him that his son was having an affair with her and she was going to leave her husband. Mr Ueckert told her husband that if the AWT inquiry did not stop, he would drag it through the courts as he had buckets of money, having just retired from BHP. 158 In cross examination, Mr Heath said in twenty-four years with Sydney Water he had been associated with the applicant on many occasions and regarded him as a fine man and very intelligent person (T.p214). 159 Mr Heath said that he spoke to both the applicant, and Ms Emr, before transferring to Coniston, and formed the view that it was just a normal staff rotation. 160 Over time, he became aware of problems between Ms Emr and the applicant; but not the specifics. However, he gained the impression from conversations he overheard in the office, that it was something "untoward". 161 Mr David Mizon provided four statements (Exhibits 'H', 'I', 'J' and 'K') and gave oral evidence. Attached to his statements were comprehensive and detailed file notes of conversations, meetings, interviews and phone calls, related to the complaints and investigation of the allegations against the applicant. 162 In Ex'H', he identified the matters Ms Emr informed him of when he visited her on 18 June: 3.1 Customers at Coniston had noticed that there was tension between herself and Mr Ian Ueckert ("Ian")' 3.2 Ian who works closely with her had been behaving inappropriately and causing her to feel uneasy, uncomfortable and intimidated; 3.3 The nature of Ian's behaviour included him constantly starring(sic) at Sharon without explanation and without talking; 3.4 Ian had also on a number of occasions unzipped his pants in order to tuck his shirt back into his trousers in full view of Sharon and others in the office; 3.5 Ian had also played with pornographic Email attachments whilst in the office; 3.6 Sharon had confronted Ian about this behaviour and made it clear that he was making her feel uncomfortable; 3.7 Ian had left Sharon an electronic message apologising for his inappropriate behaviour and seeking Sharon's opinion on whether he should ask me for a transfer to another work location. A copy of a printout of that message is attached to this statement at "Attachment "A". 163 Mr Mizon emailed Ms Emr and told her they had both "done all the right things in regard to this situation". He advised her that if she was unhappy with the way the matter was being handled, she could take it further. 164 Mr Mizon's notes disclose that Ms Emr complained to Craig O'Brien on 12 July that the applicant was constantly staring at her and she had noticed him buttoning up his trousers. He and Mr O'Brien agreed the meeting with the applicant should go ahead on 20 July. 165 At this meeting, Mr Mizon told the applicant he was aware of tensions between Ms Emr and him and he knew why. The applicant said it was his fault and that Ms Emr may have seen him "tucking himself in". Mr Mizon said this was inappropriate and would not be tolerated. Mr Mizon also raised the applicant's staring and said that it made people feel uncomfortable. He asked the applicant if he knew the definition of harassment and how serious it was. He emphasised that if the behaviour didn't stop, more serious "ugly" steps might have to be taken. 166 Mr Mizon asked him about his recent illness and whether he was seeing a doctor. He offered the services of a counsellor; but the applicant refused. The applicant was insistent that he did not want help from anyone. 167 Mr Mizon told the applicant if his behaviour didn't improve he might have to be moved from Coniston. The applicant complained about extra travelling. 168 Mr Mizon spoke privately to Ms Emr who expressed the hope that the behaviour would change. She said she was happy the way the matter was being handled. 169 On 21 July, Mr Mizon phoned Ms Emr to see how things had gone. She replied "not too bad". He emailed the applicant who replied "we spoke after you left and sorted everything out. We're happy little ICS employees again". 170 On 23 July, Ms Emr told Mr Mizon that Ms Karen Potter had mentioned that a female cleaner had complained about being followed by the applicant. Mr Mizon visited Coniston again on 27 July, accompanied by Mr O'Brien. The matters raised were: i) One of the cleaning women has mentioned to Karen that she feels as though Ian "follows her around" the building late in the day (approx. 5pm).

ii) Karen had noticed tension between Ian and Sharon.

iii) Karen has witnessed Ian staring at Sharon once or twice, and thought this was strange behaviour. iv) She has noticed that Ian tends to "hang around" after he has resolved a problem, as though he has time to waste and wants to chat. v) Ian has been less than helpful lately - she told us about an episode last Friday (the day that Sharon was at home) where she had asked Ian for help with a Canon printer, and Ian claimed not to know anything about it, and that Canon had set it up. Karen admitted to having "enough of his attitude' and telling him to "piss off then". 171 After this meeting, Mr Mizon and Mr O'Brien agreed that the applicant should be relocated away from Coniston. This decision was conveyed to the applicant on 27 July. Mr Mizon explained the concerns, said his behaviour could be misinterpreted and asked if there was any underlying problem causing his behaviour. He had replied that everything was now okay. Mr Mizon then told him he was to be moved to Head Office, both to help him and the other people involved. 172 Initially the move was for a month and involved rotation with Mr Greg Heath. The arrangements were confirmed by email on 28 July clearly spelling out the reasons why he was being transferred: I have made you aware of the behaviours(sic) you are displaying, and the effect these are having on people, and hopefully made it crystal clear that they are NOT appropriate, nor tolerated in a work environment. Putting it simply, they must stop, or this becomes a disciplinary matter (and we are very close to that now). I am pleased that you recognise that there is a problem, and that yourself and Sharon have talked through a few issues, but, as I mentioned, behaviour like you have been displaying is a concern and leads me to believe that there could be an underlying problem. I have twice offerred(sic) assistance in terms of arranging doctors Appointments, social or counsellors etc, but you have declined both times. The offer is still open - I want to do all that I can to make 100% sure that this situation improves, for your sake, for Sharon's sake, for everyone's sake. (Attachment I to Ex'H')

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:

i) there could be no doubt the applicant knew the nature of the allegations against him;

ii) the applicant was entitled to have a witness, or a representative, at the Disciplinary Committee;

iii) the 20 September letter to the applicant invited him to contact Mr Fitzgerald if he had any questions. He did not do so.

iv) the applicant was given every opportunity to defend, or give an explanation, in respect of the allegations;

v) neither the applicant, or Mr Wright, indicated they did not understand the allegations;

vi) Mr Wright did not raise any issue of procedural fairness in the meetings of 22 and 30 September;

vii) while there is no specific reference to a Disciplinary Committee in the AWT Policies and Procedures, it had adopted the usual practice of its parent body, Sydney Water;

viii) the Union was fully aware of the practice of establishing a Disciplinary Committee to inquire into serious allegations and had often attended such meetings on behalf of its members;

ix) the applicant was not treated in a hostile fashion;

x) the applicant made no complaint at the lack of time to prepare for the interview;

xi) there were advantages to the applicant in recording the interview and he would have been provided with a copy of the tape and transcript;

xii) the applicant being directed to attend a medical appointment did not form part of the disciplinary process. It was unrelated to the interview, or the decision to terminate his employment. 232 In oral evidence, Mr Fitzgerald said that Ex'Q', the list of questions were core questions and not all of them had been asked. 233 Mr Fitzgerald was asked if, having heard all of the applicant's evidence, was there anything that was not put to the Disciplinary Committee, or was there anything that was put by the applicant, or on his behalf, that would have altered his recommendation to dismiss the applicant. Mr Fitzgerald responded in the negative. 234 Mr Fitzgerald was asked if he was satisfied that the applicant was given every opportunity to respond to the allegations. He said there was no doubt that he had. He was also told he could put anything else he wished after the interview and before the decision - he didn't do so. 235 Mr Fitzgerald's evidence was interrupted by a request to admit new evidence prepared, on instructions, by Price Waterhouse of a report entitled "Review of Specific Internet Usage" (Ex'R'). In ruling the report admissible, I accepted that it would be prejudicial to the applicant's case, if an appropriate adjournment was not granted to allow time for the applicant to consider the report, prepare questions for its author, Mr Michael O'Hehir, and consider alternative evidence in reply. I shall shortly deal with this evidence. 236 In cross examination, Mr Fitzgerald was asked about the decision to establish a Disciplinary Committee and the initial suggestion that it be independently chaired. This was rejected on advice. Mr Fitzgerald accepted that the letter to the applicant of 20 September did not mention the meeting was to be taped. He agreed that the Union had, on other occasions, objected to such meetings being taped. 237 He also said it was never the practice to reveal the names of persons making the allegations in the original letter advising of a Disciplinary Committee. Even so, the applicant would have been well aware of the persons involved from the history so far. Not providing the names also arose out of concern for the employees, having regard for the "visit" of the applicant's father to Mr Emr. 238 While it was a fine balance, Mr Fitzgerald said the applicant received all the statements for the Commission proceedings and it didn't affect what he had told the Commission. 239 Mr Fitzgerald was asked to comment on Mr Wright's evidence. He said that although it was a four hour interview there were a number of breaks, some in fact initiated by himself. While he accepted that the applicant was distressed, he could understand why, having regard to the seriousness of the allegations. He didn't know of an easier way to deal with these issues. Mr Fitzgerald was aware the applicant was on sick leave at the time, but was also aware that the applicant was available and wanted the matter dealt with quickly. 240 In re-examination, Mr Fitzgerald said that although accompanied by a psychologist, no one had suggested the applicant was not fit for interview and if they had, the interview would have been postponed. The applicant had provided no medical defence for his behaviour and had admitted one incident of his penis being exposed to Ms Cook and two incidents to Ms Emr. He had apologised and said he was sorry it had happened. 241 Mr Michael O'Hehir is a director of Price Waterhouse Coopers and was commissioned by Australian Water Technologies to conduct a review of the applicant's internet usage. He said that he had computer experience and was familiar with AWT's computer system.

Mr O'Hehir was provided with the applicant's user ID code (see T.p282, corrected by T.p317) and then selected a number of key filter words which were known pornographic key words. This list is at Appendix A of the report, and may not have been all the sites accessed. Mr O'Hehir said many pornographic sites are disguised. 242 Mr O'Hehir said it was possible that another person using the applicant's password could have accessed his computer and that the nature of the material would not always be immediately evident to the recipient. 243 The report was able to be compiled from what is known as a "firewall log" - another central computer which records all details of information accessed and is designed to protect the corporation's data and information. This log would not be available to employees and is highly secure. 244 Mr O'Hehir gave examples of access to material which was downloaded to hard copy and cross referenced as to start time and duration. One example, on 6 May, beginning with 'Slut of the Day' and ending with 'Virgin Sluts' lasted for approximately seventeen minutes (p11 of Ex'R'). This indicated that the user had remained on this site for that period of time. If it was to be shut down, the user simply closes off the power. This example was not consistent with the user immediately shutting down the system. 245 The hard copy material discloses these sites to be pornographic. 246 Page 13 of the report reveals that nineteen sexually related sites were visited on forty-three occasions between 4 May and 17 September and one site, "www.augustlive.com" was visited on nineteen different days. This period covered the applicant's time at Coniston and Head Office, where his access codes were "IHU.coniston.ult.ill.city.sw" and "IHU.ics.awt.ho.city.sw" respectively. 247 Mr O'Hehir also gave evidence as to "carousel behaviour", a computer process where one internet site will automatically trigger access to other sites. An experienced operator would only need a few seconds to get out of a pornographic site if it was accidentally accessed. 248 From pages 15-35 are graphical representations of "requests" - each activity performed on the internet - on a daily and monthly basis. For May, there are some 240 requests and about 350 for July. There are no requests in August. 249 Mr O'Hehir's professional judgement was that the report disclosed above average access to pornographic internet sites and the duration of some sessions indicates further activity by the user (T.p292). 250 Mr O'Hehir said the use of "firewall logs" is common practice for corporations. There is no clue to the individual operator that the material which might be deleted has been logged elsewhere. 251 Mr O'Hehir's cross examination was postponed until 1 May. With leave of the Commission, he was questioned directly by the applicant. Mr O'Hehir agreed that it was possible that:

ii) although the password changed every thirty days, someone else had accessed the applicant's password;

iii) the downloaded pictures were not the same pictures on the original day of access. 252 Mr O'Hehir agreed that pictures could not be loaded in a few seconds. He also could not explain a six minute discrepancy between two reports for the same day - 6 May. Another entry for 1 June had no end time. 253 Mr O'Hehir was asked about a firewall filter system which could have blocked access to pornographic sites. However, this firewall was not in place until October 1999, after the period of the report (May - September). 254 Mr O'Hehir clarified the graphs showing the number of requests each day. He said it represented the number of pornographic sites visited based on the selected key filter words and may include other sites which sit behind primary sites. 255 In re-examination, Mr O'Hehir said for someone to have altered the information, would have required a deliberate act to do so. He was confident as to the integrity of the process and that the data was sound. 256 Mr O'Hehir said that it was his understanding that each computer operator chooses their own password and it is not known to anyone else unless a person chooses to disclose it. The password changes every thirty days - so for someone to access the applicant's password over four or five months would require knowledge of four or five password changes. 257 Mr Mizon was re-called to give further evidence of the applicant's user ID code. The applicant had commenced working at Head Office on 3 August, but his ID code continued to show Coniston up to 3 September. Mr Mizon said it was common practice for the user ID to remain the same where employees were transferred, or relocated, on a temporary basis (less than three months). On 3 August, Mr Mizon had understood the applicant's transfer was temporary and thus his user ID was not transferred. 258 The applicant's user ID was subsequently cancelled - although Mr Mizon could not be precise as to the date. It was around 13 September when the applicant was required to remain at Head Office. The 17 September discloses conclusively that at this date the Head Office designation was in place. 259 Mr Mizon confirmed that this code did not ordinarily change, but the password did every thirty days. The system prompts the change and forces the change after a few days beyond thirty. Each employee is obliged to keep this password, like a PIN number, completely secret. There is no way access can be made by another person and the only way someone's password could be known, is if the person disclosed it.

SUBMISSIONS 260 For the applicant, Mr Anderson submitted the following:

A) the applicant had a ten year unblemished record with the employer up to May, 1999;

B) he is twenty-seven years old and has spent virtually his whole working life with the one employer;

C) it is unclear as to what caused the working relationship with Ms Emr to change dramatically. No one could be precise as to the events. The relationship between them was open to interpretation;

D) the applicant freely admits that both Ms Cook and Ms Emr may have seen his penis while he was adjusting his shirt and trousers. He said the incidents were accidental, he attempted to apologise because he genuinely regretted the embarrassment caused;

E) the issue of staring had been misinterpreted by Ms Emr;

F) Ms Emr's version of events, up to May and June is similar to the applicant's, but changed markedly in September. Mr Mizon acted according to the grievance procedures based on their similar versions of events;

G) it was unnecessary for the disciplinary procedures to overtake the grievance procedures which were working;

H) matters changed after 20 July and the meeting between Mr Mizon and Ms Potter;

I) even though the applicant complied completely with what was asked of him, confidentiality as to the reason for the transfer was breached;

J) it was unfair not to provide to the applicant, either before, or during, the interview, all the material from his accusers;

K) Mr Wright, a trained psychologist and counsellor, did not believe the process was fair, although acknowledging like the ASU, that his behaviour was inappropriate;

L) the applicant is an idealist, a competent but naive young man, who can learn from his mistakes;

M) the solution would be for the applicant to be reinstated with full rights restored, but not at the Coniston workplace; 261 Mr Murphy's submissions may be summarised as follows:

A) the Commission must accept the evidence of either the applicant, or the combined evidence of Ms Emr, Ms Cook and Ms Potter. There is no middle ground. The applicant denied exposing himself on more than three occasions. He refused to acknowledge he had a problem;

B) to accept the applicant's version of events means that three other employees lied to their employer and the Commission;

C) there can be no misinterpretation of what the applicant did. He exposed his penis in various states of arousal. It could not have been accidental. It occurred several times a day over a period of time;

D) Ms Potter witnessed the staring and intimidation;

E) the applicant accepted that if the behaviour alleged against him was correct, then it was totally unacceptable, and his dismissal would be justified;

F) there was no reason at all why Ms Emr would lie on oath about the incidents. The willingness of the applicant to buy Cherished Teddies for Ms Emr should have been little more than harmless involvement in a work colleague's hobby. When he started to take the liberties he did, Ms Emr was entitled to react accordingly;

G) the Occupational Health and Safety Act imposes strict liability on employers to provide a safe workplace. It is entirely inconsistent with this obligation for a male employee to expose himself to female employees, late in the afternoon, when no one else is around. The employer had a statutory and moral obligation to address the problem.

H) It is unfair to criticise Ms Emr for not fully explaining her story in detail to Mr Mizon. She was acutely embarrassed, her predicament could be readily appreciated when reporting such behaviour. It is a serious charge to make that she changed her story and sought to embellish the events to the applicant's detriment;

I) Ms Cook, however, did not change her story. There is no reason why she would make up something as grotesque as this;

J) both women were credible witnesses who experienced very difficult and trying circumstances;

K) the applicant is not credible. He lied on oath as to whether he intentionally accessed pornographic material. Ex'R' is conclusive as to his lack of credit;

L) it was a " bizarre proposition " that some unnamed person in AWT, deliberately constructed the report of the applicant's internet usage to make it look like the applicant had accessed the material. Such a theory would be to set him up and to grossly mislead the Commission;

M) the Commission can safely accept the evidence of all the witnesses whose testimony conflicts with that of the applicant's;

N) there is no evidence that the applicant told anyone of his password. That someone else knew his password on four or five occasions and then accessed the material is incredible;

O) the applicant deliberately accessed pornography over a long period of time; such behaviour is entirely unacceptable and inappropriate;

P) there is nothing exceptional about the procedure. It may be argued that in hindsight the process might have been done differently. There was a very good and valid reason for not providing the witness statements to the applicant - the father's "visit" to Mr Emr and the need to protect the other employees and their families; little turns on this anyway, as the applicant put nothing to the Commission (having had the statements) which he did not put to the Disciplinary Committee;

Q) the applicant had full particulars of the allegations against him and was given a full opportunity to deal with the allegations. It would be an incredible result if the Commission intervened in the applicant's dismissal, having found that the applicant exposed himself to two female employees;

R) there is no particular form or formality to how the opportunity to respond to the application is conducted. (See Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 57 IR 50).

S) the applicant's denials of the allegations should not be accepted and his application for reinstatement should be dismissed.

Relevant Principles 262 This is a case which involves the application of the Commission's conventional principles when considering summary dismissal for alleged misconduct. However, the factual circumstances surrounding the applicant's dismissal are anything but conventional. I shall deal with these factual circumstances shortly. 263 The relevant Commission principles include:

a) where allegations of misconduct are made, the onus rests with the employer to, not only allege the misconduct, but prove it. I refer here to the oft quoted authority in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70, where Hungerford J said at p83: It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street (1947) AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) (1949) AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 at 279 and Homebush Abattoir (1966) AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson (1957) AR (NSW) 547 at 552, 553; North v Television Corporation Ltd (1976) 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr Newall submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) CLR 635 at 643, and in that passage from his Honour's judgment which said at 644: Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principle to regard fault as a particular exception defeating the right only when alleged and proved.

The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it. In support of his submission on onus, Mr Walton referred to the judgment of Dey , J. in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355, in which his Honour clearly held that the necessity for proving misconduct lay upon the party setting it up, namely the employer, and even though the union had the responsibility for establishing a proper case for reinstatement. I respectfully agree with his Honour's conclusion, it being entirely consistent with well established authority". See also Franklins v Webb 72 IR 257; Shop Distributive & Allied Employees' Association v Jewel Food Stores , 22 IR 2; Bigg and Anor v New South Wales Police Service , 80 IR 434; Federated Municipal and Shire Council Employees Union of Australia, New South Wales Division, on behalf of Stephen Wardle, and Blue Mountains Council IRC4727 of 1998, 21 May 1999; Taggart and Bell Sports Australia IRC5224 of 1998, 10 September 1999 and Thornton and HappyHours Pre School Kindergarten IRC5333 of 1998, 29 July 1999.

b) The standard of proof is the civil standard based on the balance of probabilities. Reference is made to this principle in Wang v Crestell Industries Pty Ltd 73 IR 454, where a Full Commission said at p463-464: The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M & M (1988) 63 AJLR 108 and by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. See also Shop Distributive & Allied Employees Association (NSW) 1989 27 IR 299.

We should further observe that the evidence in a reinstatement case involving criminal activity may well establish that the employee was guilty of conduct which, whilst falling short of criminal conduct, nevertheless constitutes serious and wilful misconduct justifying dismissal and refusal of reinstatement. For a helpful contemporary discussion of this principle, and other relevant authorities, I refer to paras10-18 of Four Sons Pty Ltd v Limsiripothong , Full Bench Appeal, 20 March 2000, Matter IRC6337 of 1999.

c) Summary dismissal for misconduct is a most serious matter requiring careful consideration and assessment. A finding of serious misconduct can have a long term, devastating impact on the employee. I discussed this impact in Standley v Electronics Boutique Australia Pty Ltd IRC4516 of 1998, 18 March 1999: It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee. It can, not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee's future employment prospects.

A finding by this Commission that a summary dismissal was justified, is a most serious matter which may unhappily burden and grievously harm an employee for years into the future. See also Thornton and Happy Hours Pre School Kindergarten and Taggart and Bell Sports Australia. 264 The principle here discussed is a fortiori, where the allegations made constitute sexual harassment of a most grievous kind. It will, of course, be necessary to closely, and carefully, test the evidence and in the final analysis, where conflicting evidence is disclosed, to prefer, on the balance of probabilities, one side's version of events over the other.

Sexual Harassment in the Workplace 265 It is trite for the Commission to observe that there is absolutely no place, or reason for, the harassment of one employee by another employee, be it sexual or otherwise, in, or outside the workplace. Indeed, such behaviour is unlawful. Where proven, it will, in my view, be a sound basis for disciplinary action and, if the behaviour continues, or is of a serious nature, it may constitute grounds for summary dismissal. 266 I have no doubt that, if the employer's particular allegations are proven, the applicant would have little cause for complaint. The employer would have had no choice but to dismiss him. Indeed, it would have been obliged to do so, in order to protect its other employees. Employers must act to ensure a safe workplace - free of intimidation and harassment. A failure to do so might well be held to be in breach of the Occupational Health & Safety Act for which there are substantial penalties. See discussion in Labour Law, Creighton & Stewart ch 10.23. 267 I note the applicant himself acknowledged that if he had done what was alleged, he deserved to be sacked. 268 For very good reason, the Commission was not addressed by either party as to the definition of what constitutes sexual harassment and whether the applicant's behaviour fitted such definition. This was so, because if the allegations against the applicant were proven, such behaviour could only be defined as "gross sexual harassment"; indeed harassment of sickening proportions.

269 With this conclusion, I agree. If the allegations are correct, there is no room for doubt - it was not a case of misinterpreting a lewd remark or sexual gesture. 270 I will refer shortly to the definition contained in the Anti Discrimination Act 1977. However, it is helpful, in my opinion, to refer to two contemporary views of what constitutes sexual harassment.

In Pezzimenti v Seamer , MC922854, 30 September 1994, Judge Ostrowski of the County Court of Victoria said at p9 of his unreported judgment: To 'harass' is not an unusual verb either. It connotes the worrying or troubling of someone by repeated unwelcome behaviour. The essential element behind the verb to 'harass' seems to be the repetition of the troubling behaviour. In the words complained of, the two verbs intimidated and harassed are used in conjunction with the word 'female'. As I understand the use of language by the Victorian community generally, I believe that the use of the word 'harassed' in conjunction with the word 'female' draws the listener's or reader's attention to a specific area of behaviour which has been gaining prominence as a social evil over the past 20 years or so, In 1984 the Equal Opportunity Act 1977 (Cth) was repealed by the Equal Opportunity Act 1984 (Cth). The latter Act contained a heading to its Division 2 of Part III (being Sections 19 and 20): 'Sexual Harassment'. That phrase was not defined in the Act but Section 20, in making unlawful the behaviour therein described, made it moderately clear what Parliament considered sexual harassment. It spoke of a person being put into the situation in which that person was induced to 'accept ... sexual advances ... tolerate persistent sexual suggestions or innuendo ...'. The Act being an Equal Opportunity Act, spoke of persons. However I have little doubt in my mind that the evil at which the Act was aimed with respect to its sections 19 and 20 was an evil which was seen to have been suffered for a very long time by women. The social evil called harassment, which was a type of behaviour of men towards women was well understood by 1991, not only in Victoria but in England (see Khorasandjian v Bush [1993] 3 All ER 699). In the January 1993 edition of the 'Harvard Law Review' (Vol 106, p517) professor Cynthia Bowman, in an article entitled 'Street Harassment and the Informal Ghettoization of Women', says: 'until relatively recently, for example, no term even existed to describe what it now universally called sexual harassment although the phenomenon itself was well to women' (p518). However, later in the article she points out that in 1981 an anthropologist had offered a working definition of street harassment: 'Through looks, words, or gestures, the man asserts his right to introduce on the woman's attention, defining her as a sexual object, and forcing her to interact with him' (p524). The definition is of 'Street Harassment' ie activity in public places. I consider however, that that part of the definition which I have quoted is a good working definition of what the average Victorian understands harassment to be, though he may have difficulty in verbalising it. It will be noted that in that definition nothing is said about repeated activity.

In Jones v Armas Nominees Pty Ltd , 59 IR 61, Judicial Registrar Millane , after discussing the Federal and State definitions, gave this neat summation: In summary 'sexual harassment' is both sexual and unwelcome, may be constituted by many or a single act and, broadly speaking, the intention of the harasser is not relevant.

271 s169(1) of the Industrial Relations Act 1996 is in the following terms: Anti-discrimination matters (1) The Commission must, in the exercise of its functions, take into account the principles contained in the Anti-Discrimination Act 1977. 272 This is not a discretionary instruction, but mandates the Commission to take into account these principles in all aspects of its jurisdiction, including proceedings under Pt 6, ch 2 - Unfair Dismissals. 273 It is convenient at this point to refer to Pt 2A - Prohibition of Sexual Harassment in the Anti Discrimination Act 1977. s22A of Pt 2A defines sexual harassment as: Meaning of "sexual harassment" For the purposes of this Part, a person sexually harasses another person if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated. 274 s22B(6) makes it unlawful for one employee to sexually harass another in the workplace: (6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons. 275 "Workplace participant" is defined in s22B(9) as "(a) an employer or employee."

The Conduct of the Applicant 276 Mr Anderson, for the applicant, invites the Commission to find that a naive young man was guilty, of no more than three incidents of inappropriate behaviour, which were accidental and unintentional. The applicant had apologised and expressed regret for the embarrassment caused. The corollary of this submission is that three women, with absolutely no motivation for doing so, lied to their employer and lied on oath to this Commission. It further follows, if Mr Anderson's submission is correct, that they had conspired to destroy the career and reputation of a work colleague, and feigned distress, embarrassment and fear of intimidation. I find, from the evidence and the witnesses' demeanours, that Mr Anderson's submission (while well intentioned) to be utterly unsustainable. It is comprehensively rejected. 277 I have no doubt that it was the applicant who was not telling the truth. He lied to his employer. He lied on oath to this Commission. He lied in respect to all of the serious allegations made against him. I shall deal with each matter in turn.

The allegations in respect to Ms Emr 278 It was plainly obvious, during the course of the proceedings, that the applicant was obsessed with Ms Emr and interpreted her workplace friendship as demonstrating some mutual romantic attachment. Ms Emr's evidence - which I accept unreservedly - is that she did nothing to promote his illusions or encourage his behaviour. Moreover, she pleaded with him to stop. The applicant's obsession with her can be seen by the following comments on the evidence:

a) there was no contact between the applicant and Ms Emr outside working hours. It would make no sense that such a relationship - as contended for by the applicant - would be restricted to working hours only;

b) The email messages sent by the applicant to Ms Emr (Attachments A and B to Ex'B') are couched in language which is more than just friendly or matter of fact, eg " I'm sorry Sharon, I don't want to go. I'll miss you ..." . There is no evidence that Ms Emr even responded to these messages, let alone in language and tone of the kind expressed by the applicant;

c) the applicant claims Ms Emr owed him about $4,000. He makes no claim on this money or any of the gifts he bought her. While I do not believe the applicant's evidence on this matter, to forgo a debt of this amount of someone only perceived to be a friend, is either extraordinarily generous, or a sign of a much deeper, one sided affection;

d) the applicant's father was in no doubt that he was having an affair with Ms Emr. He told her husband of his belief;

e) without being asked, the applicant would go out of his way to purchase Cherished Teddies to add to Ms Emr's collection, including making special trips and asking his parents to find examples overseas;

f) on p112 of the transcript the applicant used the expression " maybe the time apart would help us clear the air and we could get back together again ". The words " get back together again " imply that there was something more in his mind than just being good friends;

g) the applicant had been acquiring various household items, such as pots and cutlery, storing them at the family home. His father had no doubt it was to stock a future joint domicile with Ms Emr;

h) the most bizarre example of the applicant's obsession with Ms Emr was the revelation, during the proceedings, that Ms Emr was named as the major beneficiary in the applicant's will. It was even more extraordinary that Ms Emr had absolutely no idea of this until told about it a few days earlier, on 10 March 2000;

i) there is evidence from Ms Emr, and corroborated by Ms Potter, that the applicant persistently and strangely stared at Ms Emr;

j) the applicant claims Ms Emr allowed him to touch her legs and buttocks and she often put her hand in his pockets. Ms Emr strenuously denied these claims. I am satisfied that these claims were a manifestation of the applicant's fantasies and have no basis in truth. 279 I find that the evidence points overwhelmingly to a conclusion that Ms Emr's version of events is to be believed. The corollary of such a finding is that the applicant deliberately and intentionally exposed himself to Ms Emr, on more than two occasions, and such behaviour was gross sexual harassment. 280 These were no isolated, innocent or accidental incidents for which the applicant had a plausible explanation. 281 The applicant apparently believed his bizarre sexual advances were quite normal and acceptable for two people who were so close. Such advances would have no place in the workforce, irrespective of the relationship between two people. However, the fact that there was no relationship, initially beyond work friendship, makes these advances in the workplace utterly abhorrent and completely unacceptable. 282 I also find that the applicant's behaviour, post the incidents, and after Ms Emr had complained, entirely consistent with someone who knew exactly how appalling his behaviour was, despite pretending otherwise. It seems strange, if he was only guilty of two innocent and isolated incidents, that he would:

i) offer frequent and profound expressions of regret and contrition to Mr Mizon, Ms Emr and Ms Cook;

ii) offer himself a transfer involving long distances to travel to work and extra costs;

iii) hardly react at all to emails from Mr Mizon, which described his behaviour as being inappropriate and would not be tolerated and could lead to disciplinary action;

iv) not seek any assistance from his union until after dismissal;

vi) offer to be apart from someone who he professes to be so close to.

283 Indeed, it was curious that he would offer Ms Emr $50 for layby's the day after Mr Mizon had first broached the subject of his inappropriate behaviour. Was it a paltry attempt to buy Ms Emr's silence? 284 I find the evidence of Ms Emr to be completely believable. In my view, she displayed great courage in the face of a humiliating and embarrassing experience. I have no doubt that this harrowing episode has left her deeply anguished and emotionally scarred. 285 The following claims, by the applicant, are flatly rejected by Ms Emr:

2. The phone call on 1 September lasted 20-25 minutes;

3. He, and Ms Emr, often purchased clothes together.

I accept her evidence over the applicant. 286 The Commission accepts that it is to her great credit that Ms Emr displayed no hostility to the applicant and didn't harbour any ill will towards him. It is in this context, when the unwanted behaviour started occurring, that she allowed him the benefit of the doubt. She accepted his apologies and assurances that the behaviour would stop. The behaviour continued. In desperation, she had no other choice but to contact Mr Mizon. 287 There was not an inkling or suggestion that any of the women witnesses had some ulterior motive. Nor was there a shred of evidence of a conspiracy to do harm to the applicant. In any event, it would be preposterous to believe that Ms Emr and Ms Cook would subject themselves to these highly embarrassing and distressing proceedings simply because they "had it in" for the applicant. The fact that they both displayed courage and bravery in putting themselves through it, only compels me to a clear finding of credit in their favour. 288 There was an implied criticism of Ms Emr for not initially telling Mr Mizon the full extent of her allegations. This led him to believe that the applicant's behaviour may have been simply tucking in his shirt and Ms Emr saw "skin". This would explain perfectly Mr Mizon's sympathetic and sensitive handling of the matter in the early stages. When it became clear that the behaviour was exposing himself and masturbating in front of two female employees, the seriousness with which the employer regarded the matter and the steps taken to investigate the allegations, were not only reasonable, but absolutely necessary and appropriate. 289 The point was that Mr Mizon was initially unaware of the full extent and gravity of the applicant's behaviour. I do not in the least criticise Ms Emr for this. Her cryptic words of "seeing skin" were perfectly understandable. Ms Emr was upset and nervous. Of course, she would be reluctant to discuss such embarrassing and sensitive matters with anyone - let alone her male manager. In any event, she bore no ill will to the applicant. She merely wanted the behaviour to stop.

Allegations of Ms Lisa Cook 290 Subsequent to the concerns expressed to Mr Mizon by Ms Emr, Ms Lisa Cook recounted her earlier experiences. She gave evidence that the applicant exposed himself to her on two occasions. The applicant said that on both occasions it was unintentional and Ms Cook simply saw him tucking his shirt in. 291 It was no coincidence that:

1. The applicant claimed not to have worn underpants.

2. That the incidents occurred late in the day, when few other people were around in the workplace.

3. The applicant knew Ms Cook would walk past him to go to, and from, the coffee machine. 292 Taken as indicative of the applicant's other behaviour, I am satisfied that these incidents occurred according to Ms Cook's recollection. This was gross misconduct of a most disgusting kind. Each of the incidents would have been sufficient grounds for instant dismissal. 293 The applicant's advocate sought to impugn Ms Cook's allegations, primarily as Ms Cook only recounted her experiences some months after the event, when prompted by Ms Emr and after Ms Emr had complained to Mr Mizon. 294 Ms Cook gave evidence that she didn't tell anyone about the incident. She said that she was new to Coniston and didn't want to cause any trouble. She gave the applicant the benefit of the doubt and hoped it would go away. Rather than criticising her, I am of the view that her actions were entirely reasonable and bring much credit to her. 295 Like Ms Emr, Ms Cook could have no motivation for wanting to harm the applicant's employment. On the contrary, she had much to lose by corroborating Ms Emr's experience, not least of all, being the distress and anguish of giving frank and embarrassing evidence to her employer and this Commission. 296 I am satisfied that these allegations have been proven.

Accessing Pornographic Material 297 During the proceedings, the respondent produced Ex'R' - a detailed and comprehensive investigation of the applicant's access to certain pornographic material on his personal office computer. 298 The following conclusions can be deduced from Ex'R' and the evidence of Mr O'Hehir and Mr Mizon:

1. the starting point for the report was the applicant's personal user ID code at both Coniston and Head Office;

2. key filter words were selected which triggered access to various pornographic sites;

3. the key words were not an exhaustive list. Rather, they provided a snapshot of user access. Other words could have been added and some pornographic sites could be overlooked where they were deliberately disguised to mask their real character;

4. the downloaded sites were included as hard copy in the report. Even permitting a most liberal assessment of this material, most of it could only be described as pornographic;

5. the record of visits to these sites was frequent and regular. Mr O'Hehir described it as " well above generally accepted standards of usage ";

6. duration of access to a number of sites was for many minutes. The user, had he chosen to do so, could have immediately shut down the material upon its receipt. The shutdown was a simple process of a few seconds;

7. personal password access changes every thirty days. The password is known only to the user and is not to be disclosed to anyone. The system does not allow other persons access to the password;

8. access to the chosen sites was nil on days the applicant was not at work. 299 Ex'R' was a damning and incontrovertible indictment of the applicant's regular and systematic access of pornographic material; not only for his own pleasure, but as a means of intimidating Ms Emr. 300 The applicant gave evidence that, apart from occasionally playing the Tetris game, he didn't access pornographic material. The report makes a mockery of this claim. It completely refutes his further claim that, while he sometimes received unsolicited pornographic material, he immediately deleted it. 301 Ex'R' discloses that the applicant deliberately and knowingly perjured himself. The applicant was taken completely by surprise by Ex'R'. He had systematically cleansed his computer of all offending material. However, he had no idea that all material he accessed, whether erased or not, was logged through the "firewall" process and was able to be retrieved. 302 In the face of this evidence the applicant offered two excuses. He said that someone else may have accessed his password and ID number. The only way another person would know his password would be if the applicant disclosed it - and not only once, but several times. He produced not one jot of evidence that someone else knew his password. At no time did he admit disclosing it to anyone. I am satisfied this excuse is nonsense.

The second excuse was even more absurd. He said he had been " set up " by management and the information had been altered. This would require a deliberate act by someone, with extraordinary knowledge, to conspire to mislead this Commission. Such a claim is manifestly ridiculous. Not a scrap of evidence was brought to give even a whiff of such a conspiracy. In any event, the report was prepared in the face of his repeated denials of accessing pornographic material. Armed with a capacity to prove him to be a liar, the employer was perfectly entitled to commission the report. I note that Mr Anderson wisely eschewed both these preposterous theories in submissions.

Moreover, there was no real necessity for the employer to rely on this information to justify the applicant's dismissal. It had more than enough evidence to ground its decision. The incidents involving Ms Emr and Ms Cook, collectively and individually, would have been sufficient to warrant instant dismissal.

Far from being set up by Management, the applicant had unwittingly set himself up. 303 I cannot imagine a more definitive and conclusive finding, on any test, that the applicant accessed pornographic material with monotonous and repugnant regularity.

Procedural Fairness 304 As much of the applicant's case was directed to pleadings of procedural unfairness, it is pertinent to examine the legislative basis for findings on procedural fairness, and the relevant authorities which have considered the matter. 305 Procedural fairness is not a concept identified, or defined, in the statute. Nevertheless, the matters the Commission may take into account in determining a claim under Pt 6 ch 2 of the Act are specified in s88 which I now recite. 88 In determining the applicant's claim, the Commission may, if appropriate take into account:

a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and

b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and c) whether the warning of unsatisfactory performance was given before the dismissal, and

d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and

e) whether or not the applicant requested reinstatement or re-employment with the employer, and

f) such other matters as the Commission considers relevant. 306 There are a number of observations to be made about s88:

2. The Commission is not limited to the matters identified in the section.

3. The factors which may be taken into account are both particular, eg whether warnings were given, and general - sub para (f).

4. s88 applies in respect to dismissals relating to performance and summary dismissal for misconduct (behaviour).

5. These matters relate to procedure, and thus, are matters which can broadly be defined as directed towards procedural fairness. 307 It is now well established that a finding of "harsh, unreasonable or unjust" can apply to both the substance of the dismissal, and/or the procedure leading to the dismissal. 308 The oft quoted authority for this proposition is Byrne & Anor v Australian Airlines (1995) 185 CLR 410 at p465:

It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was from the material before the employer, and may be harsh in its consequence for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

The distinction between procedure and substance is elusive. This is so even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights, and the Statute of Frauds, where it has an entrenched operation (217). In our view, it is unhelpful and contrary to the tenor of the Award to introduce it into cl.11(a). That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable (218).

But the question under cl.11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking at the first issue before there is seen to be any need to enter upon the second . 309 See also Bigg v New South Wales Police Service, 80 IR 434, where a Full Bench said at p454: As the Full Commission made plain in Busways, an employee is entitled to know prior to dismissal the nature of and, as necessary, the detail of the material known to the employer which is against the employee's interests. The employee is also entitled to an opportunity to respond to that material. If an employer fails to give an employee such an opportunity before dismissal, that is a matter which the Commission may take into account in proceedings brought under s.246 in determining whether the dismissal was harsh, unreasonable or unjust. 310 See also Burke v McGirr (1995) 87 IR 54 at 55-56; Oswald v New South Wales Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta, 87 IR 57 at 64; Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 and my discussion of the principle in Myers v New South Wales Police Service, 93 IR 123; National Union of Workers, New South Wales Branch, on behalf of Phillip Charles Mumby, and Davids Distribution Pty Ltd (unreported) IRC2056 of 1999, 9 February 2000; Herson and One.Tel Ltd (unreported) IRC5181 of 1998, 18 February 2000 and Yopp v Advanx (Gosford) Motor Services Pty Ltd (unreported) IRC4592 OF 1998, 7th May 1999. 311 The principle has been recently reaffirmed in Antanakopoulos v State Bank of New South Wales (1999) 91 IR 385 where the Full Bench said at p389: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.

and later, at page 390: While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust . 312 I propose to examine in some detail the procedures leading to dismissal, in particular the crucial interview of 22 September 1999. 313 As I apprehend the applicant's complaints as to process, they fall into the following categories:

1. The full extent of the allegations identifying names, places, dates and times and nature of the alleged sexual harassment were not told to the applicant before the interview of 22 September.

2. The applicant was unaware of any allegation involving accessing pornographic material on his computer until the letter of 20 September.

3. The applicant was concerned that confidentiality had been breached as to the reason for his move from Coniston to Head Office.

4. Unfairness with the disciplinary meeting went to:

i. the employer wished the meeting to be taped; ii. the meeting lasted four hours; iii. the employer knew the applicant was on sick leave at the time; iv. the applicant was not provided with the list of questions to be asked; v. the applicant was not given copies of witness statements either prior to, or during, the interview; vi. the applicant was not asked to respond to the allegations in writing; g. the applicant was refused a copy of the employer's notes of the meeting. 314 I turn then to consider these complaints. 315 I, of course, acknowledge that the allegations contained in Ex'6' are not specific as to dates, time, place or precise complaint. If the allegations had never been raised before, or the applicant was totally ignorant of the nature of the allegations, then considerations of unfairness may well have arisen. However, this is not a complaint which could possibly be sustained in this case. 316 The applicant gave evidence that he had no idea of what the allegations were about. This is ridiculous - there had been a series of discussions and incidents commencing three months earlier. Mr Mizon had met with him on a number of occasions and had formalised the complaints which had been made. The applicant had met with Mr Wright in a distressed and emotional state. He had sought medical advice as to his anxiety. It is extraordinary that he would seriously claim to have no idea of what the allegations were about prior to the 22 September meeting. 317 To get to a point of inherent unfairness, it is necessary to ask what aspects of the allegations were unknown to the applicant before attending the interview. I can find none of any significance. 318 I reaffirm my opinion, that the applicant was under no illusion of what he was to be questioned about. It would have been unnecessary to particularise each of the incidents of exposure when it was such a consistent pattern of behaviour.

The Disciplinary Committee Meeting 319 This meeting, on 22 September 1999, involved the applicant, his witness, Mr Wright, Mr Fitzgerald and Mr Latta. In my opinion, this interview was conducted fairly and according to reasonable procedure. I am convinced of this view by taking into account the following:

1. At no time did the applicant seek to have the meeting postponed because of his illness; he made no request to adjourn during the meeting, nor did Mr Wright, on his behalf. In fact, it was the applicant who said he wished the matter to be expedited and hoped this meeting would end it.

2. The applicant acknowledged that the meeting was his opportunity to be heard and put his side of the allegations.

3. The applicant was offered any witness, or representative, he wished to attend with him. A Sydney Water counsellor, Mr Wright, agreed to do so.

4. The applicant acknowledged he was given every opportunity to respond and put whatever he wished in his defence.

5. At the conclusion of the meeting he was asked if he wished to add anything further. He declined.

6. The applicant did not request an opportunity to respond in writing.

7. Taping the meeting was an opportunity to ensure an accurate account of the meeting. By refusing to accept the taping he forfeited any right to have the notes of others who participated.

8. In the circumstances, it was reasonable that the applicant not be given the witness statements at the interview. The employer was aware the applicant's father had visited Ms Emr's husband and had made certain outrageous accusations and threats. The employer had a legitimate fear that other persons involved might be harassed or threatened; including its own employees for whom it had a responsibility to protect. Mr Wright also acknowledged this concern. 320 It was particularly significant that the applicant was asked, on more than one occasion, whether there was anything in the evidence filed, or which emerged during the proceedings, which was different to what he had told the Disciplinary Committee meeting. He said there was none. 321 There was no new evidence, no mitigating factors, no affidavits were filed in reply to the respondent's case, no surprise defence emerged in the proceedings. There was no substantive difference, merely elaboration of what he told the Disciplinary Committee concerning each of the allegations identified in Ex'6'. 322 Assuming the Disciplinary Committee's findings were reasonably open to it, how could I possibly find fault with it in such circumstances? 323 I note that proceedings under Pt 6 ch 2 occasionally become a de novo inquiry of the employer's process of investigation leading to dismissal. The Commission's replacement inquiry often uncovers failings or deficiencies in the originating process for which relief might be warranted. However, even if there are identified failings or deficiencies subsequently discovered, it might not, as a corollary, invalidate the employer's earlier inquiry or result in a finding that the process was unfair. 324 I hasten to add that I regard the process of investigation and decision making to be scrupulously fair and reasonable. 325 To associate these observations with the discretionary matters in s88 of the Act, I find as follows:

b) the reasons for dismissal had a sound basis in fact (s88(b));

c) the applicant was given an opportunity to make out a defence and give an explanation for his behaviour (s88(b). 326 I cannot leave consideration of procedural fairness without commenting on the evidence of Mr Wright. The applicant had been counselled by Mr Wright. He had proclaimed innocence and protested injustice. He was distressed and crying. I accept that Mr Wright displayed compassion and sympathy for the applicant. He was no doubt concerned with the applicant's emotional well being. In the absence of evidence to the contrary (which was not available to Mr Wright until the interview), it was perfectly understandable that he would feel some empathy for the applicant. 327 I note Mr Wright gave evidence that the meeting was partial and unfair. He also gave evidence that this was the first Disciplinary Committee he had attended. It was certainly one charged with emotion and involved grievous allegations. It was distressing for all involved. Despite the circumstances, Mr Wright did not seek to have it adjourned; did not claim unfairness during it and did not complain of its findings when the applicant was ultimately dismissed. I note also that Mr Wright said the applicant appeared not to have known what some of the allegations were about. As earlier discussed, I have no doubt the applicant was aware of the allegations against him. 328 In view of what we now know, I'm not so sure Mr Wright's sympathy and defence of the applicant would be as steadfast.

The Father's Evidence 329 In my experience, the evidence of a parent in favour of his/her progeny must be treated with some caution. The likelihood that a parent will bring an objective assessment to such evidence is not great. I referred to this difficulty in Myers and Police Service of New South Wales, where at p148 I said: It is very rare for a parent to have a completely unbiased and objective view of his/her progeny. The potential for bias and subjectivity is even more likely when the behaviour, attitude or performance of a son or daughter is under scrutiny or challenge by persons in authority. While Mrs Myers' defence of her son is admirable and natural, it does not, in my opinion, prove a very reliable source of objective assistance in this case. I find her evidence to be coloured by a mother's natural protective instincts and bias. Consequently, such evidence is of little practical value.

It is predictable, as night follows day, that a father would defend his son against serious sexual allegations which the son vigorously and unrelentingly asserts are untrue. There is however, a point which must be reached where absolute and dogged confidence in a son's denials, must fall away in the face of overwhelming and incontrovertible evidence to the contrary. Mr Ueckert was unable, or unwilling, to recognise that his son's denials were baseless and his defence, pure fantasy. 330 Mr Ueckert's protection of his son is extraordinary. I am satisfied that Mr Ueckert would say, or do, almost anything to find excuses for his son's behaviour. His threatening visit to Mr Emr is indicative of the depths to which he would descend to protect his son. I accept Mr Emr's recollection of this most unfortunate visit.

331 Mr Ueckert gave evidence that he consulted a solicitor, Mr Sergeant, immediately after this visit and subsequently to seek advice as to what he should do. Presumably, he told Mr Sergeant of the conversation with Mr Emr. Mr Sergeant, I note, was not called to give evidence to corroborate what Mr Ueckert had told him. 332 Mr Ueckert's evidence was peppered with references to society's loss of traditional values - in parents not protecting their kids - in families not sticking together. While this evidence was not particularly relevant, I note it does sit somewhat hypocritically with Mr Ueckert's unswerving defence of his son's perverted behaviour towards fellow women employees. If there is any value which our civilised community must uphold, it surely is to protect individuals, but particularly women, from unwarranted and unwelcome sexual advances or sexual intimidation. Such behaviour is indefensible. It can not be tolerated or excused. 333 In the face of what has emerged during this case, Mr Ueckert's position is completely untenable. He is a witness of little credit.

Mitigation 334 In my view, little turns on whether confidentiality had been breached as to the reason for the applicant's move from Coniston to Head Office. Mr Mizon doubts there was any such breach. The applicant said that at least one employee described him as "that bad man from Coniston" and that employees stopped talking when he walked by. It seems odd the applicant would worry about confidentiality when he consistently maintained his innocence and claims he had no reason to feel guilty. Even if people were aware something was amiss, the evidence the applicant points to, does not corroborate a view that other employees knew the precise reasons for the transfer.

335 There is no medical evidence that would mitigate, or excuse, Mr Ueckert's behaviour, nor was any effort made to procure such evidence. The doctor's certificate (Ex'3') for the two weeks in May 1999, discloses the ailment as "complications of a respiratory infection". It would not take a medical expert to completely dismiss a link between a respiratory infection and the applicant's obscene behaviour. It is not open for the applicant to contend that his sickness was the catalyst for, or in any way related to, his behaviour. No other medical defence was raised. 336 In my view, his outburst of tears, distress and remorse in the weeks before dismissal and during this case, are not the reactions of someone who is innocent and has nothing to fear from a thorough and fair inquiry. It convinced me, that from the outset of being confronted by Mr Mizon, he knew the seriousness of the allegations, that the net was closing in and the consequences were likely to be very serious. 337 Set against the factual matrix of this case, I find the untested character references from several of his colleagues to be of little significance. While I am not critical of their motivation or convictions, had they observed the six days of proceedings, I doubt whether their views of the applicant would be the same. 338 The Commission has not a skerrick of sympathy for the applicant. He lied many times on oath to the Commission; he lied to his employer. Two innocent young women were victims of his sexual perversion; he put many good and decent people through a disgraceful ordeal - all in a vain attempt to save his own bacon. 339 By his own blatant, deliberate behaviour the applicant guaranteed his dismissal. In the face of overwhelming evidence, he should have had the courage and strength of character to admit the truth and accept the consequences. He was dishonest with everyone but, most tragically, he was dishonest with himself.

The allegations in totality 340 The applicant expressed warm personal feelings for Ms Emr. For someone who professes to care for someone else - even in the face of non reciprocation - it is appalling that he would put her through this hurtful and disgusting experience. He caused her to be physically sick, nervous and distressed. He could have destroyed her marriage and her family. He should be absolutely ashamed of himself. 341 The regularity of the applicant's recourse to pornographic material, his obscene behaviour of exposing himself to two female employees and his obsession with Ms Emr is sick and perverse. If the applicant believes he doesn't have a problem, then he is kidding no one but himself. 342 The applicant should consider himself very lucky that he has not faced criminal charges in respect to his behaviour. 343 I am surprised that this case was not abandoned at various times during the evidence. It is a disgrace the applicant allowed the case to continue in the face of the incontrovertible evidence against him. In saying this, I make no criticism of the Union, or Mr Anderson's prosecution of his member's case. Apart from a few aberrant moments, Mr Anderson displayed sensitivity and decency in handling what was a very difficult situation, and as the case progressed, a highly problematic outcome. Mr Murphy helpfully did not seek to take technical objections when he might have otherwise been inclined to do so. The case was traumatic for all concerned. I am grateful to both Mr Anderson and Mr Murphy for their professionalism and sympathetic approach to the witnesses and the sensitivity with which they dealt with the difficult issues confronted in the case.

1. The applicant deliberately and intentionally exposed himself to Ms Sharon Emr on more than two occasions.

2. The applicant deliberately and intentionally exposed himself to Ms Lisa Cook on at least two occasions.

3. The applicant frequently conducted himself in a manner which was deliberately intended to intimidate Ms Sharon Emr.

4. On numerous occasions, the applicant accessed pornographic material, on his computer, for personal pleasure and to intimidate Ms Emr.

5. The applicant's conduct constituted sexual harassment. The nature of this harassment was insidious in the extreme.

6. The respondent's investigation of the allegations was thorough and exhaustive.

7. The applicant was afforded all reasonable opportunity to defend himself against the allegations and respond in any way he chose.

8. The decision to dismiss the applicant was, not only reasonably open to the respondent, but on the evidence available to it, the only realistic course open to it.

9. The respondent has discharged the onus of proving the allegations against the applicant.

10. The Commission can find no grounds to intervene in the dismissal of the applicant by Australian Water Technologies Pty Ltd.

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