[2] The respondent dismissed the applicant for misconduct occasioned by his alleged inappropriate dealings with an employee subject to his supervision at the workplace.

[3] Without going into all the sordid matters raised by both sides during the hearing of this matter, the inappropriate behaviour was that the applicant went to a secluded part of the workplace, accompanied by a female employee, (Janet Furneaux).

[4] The secluded area is described as the, "junk room" and is off the area called the, "archival room" . Unlike the rest of the workplace, there are no security cameras in this area; something known to both the applicant and Ms Furneaux.

[5] The Commission clearly states at this juncture, that Ms Furneaux's evidence that she was not aware of the absence of cameras in this area, is not accepted, and is put to the lie by other witnesses of the respondent.

[6] The inappropriate action was a request by the applicant to see Ms Furneaux's breasts and touch same.

[7] It is also alleged that the applicant asked if he could, "kiss the breasts".

[8] The compounding of the impropriety was the allegation by Ms Furneaux that the applicant lured her to the area in question, by telling her, as her supervisor, that he needed her assistance to perform some work functions.

[9] The applicant does not deny that he went to the secluded work area with Ms Furneaux and that he touched her breasts. (The interests of Ms Furneaux's breasts were occasioned by discussions about cosmetic surgery and her admitted exposing herself to other employees of Securency at a function outside of work, a function not organised by the respondent).

[10] Ms Furneaux also said in evidence that she had exposed her vaginal area to another female employee, so as to show her how to use, "sticky tape" to remove unwanted hair from that area.

[11] The earlier incident of Ms Furneaux exposing her breasts took place in a city hotel, and involved Ms Ferrante, a fellow employee, and Ms Ferrante's partner; who filmed the breasts, with Ms Furneaux's consent, on a mobile phone camera.

[12] Ms Ferrante was at a later stage dismissed from her employment at Securency.

[13] This dismissal is not before the Commission, so it is not subject to any further comment.

[14] The respondent called Mr Zoran Kostovski as a witness on its behalf. Mr Kostovski admitted, in cross-examination by Mr Millar of Counsel, that he had gone to the archive area, (already referred to), with Ms Furneaux, and that Ms Furneaux had fully exposed her breasts to him and that it was general knowledge among employees that anything that took place in the area was not subject to camera surveillance.

[15] Mr Kostovski reported Mr Hands conduct, but strangely, did not report his own earlier inappropriate conduct. His is also a supervisory position.

[16] The Commission has taken the time to outlay the evidence and admissions about Ms Furneaux's conduct, because it is used as an excuse by the applicant for his admitted behaviour, which led to his dismissal.

[17] The behaviour of the applicant, Ms Furneaux and Mr Kostovski points to a pattern of inappropriateness by all three and is inexcusable.

[18] The applicant's attempts to justify his behaviour by attacking Ms Furneaux's contributing behaviour do him no credit in the opinion of the Commission.

[19] The applicants admitted behaviour is such that on the respondent's submission, the Commission would be remiss if the applicant was to be reinstated in his employment at Securency.

[20] The evidence put before the Commission by both sides enunciates a disparate approach to dealing with the behaviour of those involved in this matter, by the management of the respondent, especially by those persons who comprised the investigation team.

[21] This disparity is manifested in the different punishment meted out as a result of the investigation; ie: Peter Hands is dismissed for misconduct, Zoran Kostovski is counselled, remains in employment and in the same job, Janet Furneaux is treated in the same fashion as Kostovski and Aphrodite Ferrante is dismissed for misconduct.

[22] In all a disparity of treatment which is clearly unreasonable and harsh in its application.

[23] Is this differing treatment an attempt by the respondent to limit its exposure to other action or simply giving people, (the investigating team), a task beyond their abilities?

[24] A close examination of the evidence leads the Commission to the decision that the applicant was treated so differently to the others involved, that he was treated unreasonably and the penalty applied was harsh.

[25] No employee, male or female, whatever their own questionable conduct is; can be treated as an object, especially by a person in a position of power, as the applicant was.

[26] The Commission finds that reinstatement is not a proper remedy; especially given the applicant's evidence the Ms Furneaux's own behaviour justified his totally inappropriate actions.

[27] In arriving at this decision, the Commission has had the opportunity to assess the credit of witnesses during examination in chief, cross examination and the reading of witness statements tendered.

[28] This opportunity to assess credibility has been of great assistance. It has also allowed the following opinion to be formed.

[29] "The only witnesses who gave credible, unbiased evidence, were Mr Brasher, Mr Ousmand and Mr Curtis and Ms Burggraaf".

[30] The evidence of the other witnesses was tainted to some degree, in some instances worse than others.

[31] The evidence of Ms Taylor and Mr Panke clearly showed that the investigation team had made up its mind about the applicants dismissal prior to giving him a proper chance to reply to the allegations against him.

[32] The evidence of Ms Burggraaf, the other member of the investigation team supports this finding; as does the evidence about other matters, show that Ms Furneaux's supposed lack of knowledge about harassment in the workplace and who to approach with a complaint, show that Ms Furneaux was, "gilding the lily".

[33] Having set out reasons for the decision not to reinstate, but to consider whether or not another remedy should be granted and what that remedy should be, if any, the Commission has decided that monetary compensation should be granted to the applicant as a remedy for being harshly and unreasonably dismissed from the respondent's employment.

[34] s.654 Remedies on Arbitration of the Workplace Relations Act, says at s.654(1)

"That the Commission may make an order if it has determined that the termination was harsh, unjust or unreasonable".

[35] The Commission has found in this matter that the termination was harsh and unreasonable.

[36] s.654(2) provides for certain conditions under which an order for remedy must be made. These are set out in s.652(2)(a) to (e) inclusive.

[37] s.654(3) does not apply as no order to reinstate is made, nor does s.654(4).

[38] s.654(5) does not apply.

[39] s.654(6) does not apply.

[40] The Commission, having decided that reinstatement is inappropriate, makes an order that the respondent pay the applicant the amount set out herein in lieu of reinstatement.

[41] In calculating the amount of the payment as remedy, the Commission says that there is no viable effect on the employer caused by the order as contained in s.654(8)(a).

[42] The employee's service was taken into account, 13 September 1999 to 13 April 2006, (6 years and 6 months), as required in s.654(8)(b).

[43] The Commission has assessed, in respect to s.654(8)(c), that the employment with the employer would have continued for a least another 12 months. The period of 12 months is the maximum which should be considered.

[44] The employee did make some efforts to mitigate his loss, as contained in s.654(8)(d), however, by his own admission he made no attempts for the period immediately after his dismissal.

[45] The amount earned in mitigation on the information provided to the Commission is $1750.54.

[46] It would have been reasonable to expect that earnings in mitigation would have been at least 50% greater than, at least $2,626.81.

[47] Before reaching any decision about any monetary amount awarded as compensation, the Commission must, as a final step, assess any misconduct by the employee which contributed to the employers decision to terminate the employment, (s.654(8)(e)).

[48] It is the Commissions assessment or apportioning of contribution because of the applicant's misconduct, is that 90% of the decision to terminate Peter Hands' employment was occasioned by his totally inappropriate behaviour.

[49] Accordingly, remedy is assessed in the following terms.

[50] Mr Hands earned $1,750.54 in mitigation of his loss. Because he made limited attempts to mitigate his loss, (his own evidence), 30% is added to $1,750.50 which means that, $2,277.16 is deducted as earnings in mitigation of loss.

[51] Mr Hands assessed earnings for 12 months, based on current salary is $86,346.00, however, the allowable cap for compensation in remedy is 26 weeks, which is $43,173.00, less, $2626.81, which is $40,546.19.

[52] The Commission has decided, after hearing evidence and weighing responsibility about action which caused termination, that the applicant's weight of responsibility is 90%.

[53] Accordingly, the applicant is awarded $4,094.84, as compensation in remedy for harsh and unreasonable termination.

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