113 Mr Benson submitted the dismissal of Mr Miller was not harsh, unreasonable or unjust. Counsel submitted that in weighing up the relevant considerations the Commission should have regard to the following:
(1) The seriousness of the misconduct found established against the respondent;
(2) The duty to take into account s 169 of the Industrial Relations Act consistent with the principles set out in Re Nursing Homes and Nurses (State) Award (2001) 110 IR 433 at 438-9;
(3) The fact that the respondent's duties involved supervising the court office staff at Manly;
(4) The fact that the respondent acknowledged that he held a senior position within the department;
(5) The fact that the respondent was aware of departmental policies covering harassment and sexual harassment as well as the Code of Conduct;
(6) The fact that the respondent accepted that it was part of his duties to enforce those policies;
(7) The fact that on 4 September 2000 the respondent had been issued with a warning letter from the Director General that should he in future breach the Code of Conduct or other policies covering behaviour expected of staff then disciplinary action would be taken which might result in the termination of his employment;
(8) The importance to the appellant that it be able to rely upon the conduct of supervisors such as the respondent to meet its legal obligations under the Anti-Discrimination Act and be able to hold accountable supervisors who harass and/or sexually harass subordinate staff;
(9) The right of all staff to have the right to "quiet enjoyment" to discharge their functions free from harassment or sexual harassment;
(10) The blurring of social and work interaction was not a mitigating factor for the respondent as he, as the supervisor, had the responsibility to ensure the workplace was free from harassment or the consequences of harassment.
114 These are powerful considerations in support of the appellant's position that the Commission should find the dismissal of Mr Miller was not harsh, unreasonable or unjust. There are, however, a number of other matters that we need to consider in weighing up the gravity of Mr Miller's misconduct and whether the dismissal of Mr Miller was harsh, unreasonable or unjust.
115 First, we do not consider the harassment of Ms Bewley was of such gravity or importance as to indicate an objection to or a repudiation of the employment contract by Mr Miller. We take the same view about the harassment of Ms Rowan by the leaving of notes about her work. The sexual harassment of Ms Rowan, however, was more serious although we are also satisfied the second and third incidents of sexual harassment of Ms Rowan would not have occurred if appropriate action had been taken by the relevant manager or supervisor after the Ivanhoe Hotel incident. Nevertheless, none of the harassment should have occurred in the first place.
116 Secondly, there was no evidence of Ms Rowan suffering any ill effects from the harassment, other than the initial feelings of being offended.
117 Thirdly, as the Director General noted in his Notice of Decision, Mr Miller and the complainants were:
[I]nfluenced by the drinking culture pervading Manly Local Court, which led to significant blurring of professional and personal behaviour amongst those officers involved in the events leading to the allegations being made.
118 The Director General acknowledged that Mr Miller's judgment was affected when he was under the influence of alcohol. On that basis the Director General directed Mr Miller to resign rather than take the decision to dismiss. Whilst Mr Miller did not resign and dismissal followed, we agree with the Director General that a mitigating factor was alcohol, not only affecting Mr Miller but also some of those who made the allegations against him.
119 Fourthly, whilst the intention of the harasser is irrelevant as to whether sexual harassment occurred, it is apparent that Mr Miller did not intend to harass and did not understand his conduct might amount to harassment.
120 Fifthly, there was a significant amount of evidence from persons who knew Mr Miller that he was a person of good character. Except for the regrettable flaw that is evident in his dealings with women who are his subordinates at work, we are prepared to accept that Mr Miller is otherwise a person of good character.
121 Sixthly, we accept that Mr Miller was a conscientious, competent employee, strongly dedicated to his work. Almost the whole of his working life has been with the Department in the court system. His dismissal has caused a major upheaval to his personal life and the stigma of the dismissal would make it very difficult for him to obtain alternative employment at a similar level to that of Assistant Registrar either in the public or private sector. There will be some level of stigma remaining after this decision.
122 We have decided, not without hesitation, that Mr Miller's dismissal was, in the circumstances, harsh because it was disproportionate to the gravity of the misconduct and because of the consequences for the personal and economic situation of Mr Miller: see Byrne v Australian Airlines Ltd, Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ. Part of our hesitation stems from a concern that a finding that the dismissal was harsh might be seen as condoning Mr Miller's conduct and thereby undermining the appellant's obvious entitlement to rely on supervisors to conduct themselves properly in the workplace and to ensure others did so in accordance with the Department's policies.
123 We should make it perfectly clear in that regard that for a person in the relatively senior position of Assistant Registrar, who prided himself on his work achievements and his ability to manage people and deliver "great results", we have been left with the distinct impression on the evidence that Mr Miller's attitude to those women in respect of whom he held a supervisory responsibility at Manly was boorish, insensitive, inconsistent with the position he held and constituted unacceptable behaviour. It is only by the narrowest of margins that we have found the dismissal harsh. No employee who engages in harassment of any kind could take any comfort from our decision.
Form of relief
124 We turn to the question of relief. Grayson DP reinstated Mr Miller to his former position on terms not less favourable to him than those that would have been applicable if he had not been dismissed. Given our findings on appeal it would be most inappropriate to reinstate Mr Miller to his former position at the Manly Local Court. All that we would be achieving in doing so is perpetuating a hostile working environment. This is especially so given the bitterness that obviously exists at least between some the employees involved. Accordingly, reinstatement is impracticable.
125 We have decided that Mr Miller shall be re-employed by the Department in another position that it has available subject to conditions we intend to impose pursuant to s 89(8) of the Act (as to whether a position is available see Riley v Workcover Authority (NSW) 151 IR and Carlton and United Beverages Limited and Philip Brunt [2006] NSWIRComm 98). Those conditions will be as follows:
(1) Mr Miller will be re-employed from the date of this decision in a senior position commensurate with his experience at one level below the level of his position at Manly Local Court and paid as such for a period of 12 months, but if such a position is not available and he has to work in a position at the same grade as his previous position at Manly, he shall be paid at one level below the salary level of that position for 12 months.
(2) Re-employment shall not be at the Manly Local Court.
(3) Mr Miller shall not be eligible for promotion for a minimum period of 12 months from the date of his re-employment. After that time Mr Miller will return to his current level in a position commensurate therewith but not at Manly Local Court.
(4) Mr Miller shall immediately provide written apologies to Ms Rowan, Ms Bewley and to the Director General of the Department for the harassment we have found in this decision to have occurred.
126 We intend to further order that Mr Miller's period of employment with the Department is to be taken as not having been broken by the dismissal provided that Mr Miller shall not be entitled to the payment of any salary for the period since his dismissal up to the date of the Reinstatement Decision. From the date of that Decision to the date of his re-employment Mr Miller shall be paid an amount of remuneration commensurate with the grade at which he is re-employed.
127 In light of our findings and decision in the substantive appeal it would be inappropriate to grant leave to appeal in respect of the cross-appeal relating to costs. Therefore, leave to appeal is refused and that appeal is dismissed.
Orders