DECISION NO:126/97 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - valid reason for termination - employee not given full opportunity to respond to allegations of sexual harassment - compensation therefor CONTRACT - alleged breach of express term - no point of principle s170DC Industrial Relations Act 1988 (Cth) Briginshaw v Briginshaw (1938) 60 CLR 336 Burazin v The Blacktown City Guardian Pty Ltd (1996) 142 ALR 14 PAUL GERARD NORRIS and COLES SUPERMARKETS AUSTRALIA PTY LTD NI 95/3651R CORAM: MADGWICK J PLACE: SYDNEY DATE: 14 APRIL 1997 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NI 3651R of 1995 BETWEEN PAUL GERARD NORRIS Applicant AND COLES SUPERMARKETS AUSTRALIA PTY LTD Respondent CORAM: MADGWICK J PLACE: SYDNEY DATE: 14 APRIL 1997 MINUTES OF ORDER THE COURT ORDERS THAT: 1. By consent, the order of the Judicial Registrar not to reinstate the applicant is confirmed. 2. The respondent is to pay the applicant the sum of $500.00 within 14 days. 3. The application is otherwise dismissed. IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. 3651R of 1995 BETWEEN PAUL GERARD NORRIS Applicant AND COLES SUPERMARKETS AUSTRALIA PTY LTD Respondent CORAM: MADGWICK J PLACE: SYDNEY DATE: 14 APRIL 1997 EX TEMPORE REASONS FOR JUDGMENT (Revised from transcript) HIS HONOUR: This is an application for review of a Judicial Registrar's decision which in substance upheld the respondent employer's actions in dismissing the applicant. The applicant has also brought a claim for damages for breach of an alleged express obligation to treat him fairly. The Judicial Registrar, as I understand it, also rejected that claim. The applicant commenced employment at the respondent's supermarket at West Pennant Hills in February of 1992 as a part-time duty manager. Ms Carly Patrick commenced work at the supermarket as a shop assistant on her 15th birthday, 24 August 1995. Part of the applicant's work was to "clear the cash registers" operated by attendants such as Ms Patrick. Ms Patrick alleged that, while the applicant was present near her for the purpose of conducting the clearance of her register, he firmly squeezed her right buttock. In a very upset state she spoke to another store employee, Mr Banner, who informed the applicant of her complaint. The complaint was made known to Mr Hutchen, the store manager, who asked both Ms Patrick and the applicant to write out statements about the matter. Mr Hutchen called Mr Osborne, the area manager, and Ms Henry, the then New South Wales personnel manager, who then conducted an investigation. During the course of the investigation another employee, Ms Macovaz, came forward alleging that a few months previously the applicant had also touched her on the bottom whilst attending at her check-out station. Ms Macovaz at first wanted her name withheld, but after talking to her parents furnished a short statement to Ms Henry. She expanded and elaborated on this in her evidence in the proceedings. Also in the course of the investigation Mr Hutchen discovered a document known as a "discussion plan" in the respondent's personnel file held on the applicant. This dealt with an incident where in September 1993 a person identified as a "casual check-out operator", who Mr Hutchen later ascertained was Ms Ross, had "made the store manager aware that she feels [the applicant] is getting too close". It seems that Mr Cusak, the store manager at the time, did not take this complaint all that seriously, because he concluded that the applicant was quite possibly being friendly and that this had been taken as being "suggestive". Nevertheless, he raised the matter with the applicant and told him that behaviour which he might consider friendly could be considered offensive by the other party, and that situations such as that complained of could lead to claims of sexual harassment. On 7 September the applicant was interviewed by Mr Osborne, Mr Hutchen and Ms Henry. Ms Patrick's complaint was put to him (although he was not given a copy of her statement) and he denied any wrongdoing. He was then asked whether anybody had made a similar complaint against him before and he said, "Not that I'm aware of". It was indicated to him that further inquiries would be carried out. At some stage before Mr Hutchen spoke to Mr Norris again on the 12th, Ms Henry says the following occurred: Once the statements [that is of Ms Macovaz and Ms Ross] had been received, Mr Hutchen rang me and we discussed the matter. During the course of that conversation I suggested Mr Hutchen speak to Mr Norris again in the presence of a witness and inform him of the statements and to ask him whether or not he had any response to make. It was agreed between Mr Hutchen and I that if Paul did not have a satisfactory explanation Mr Norris' employment should be terminated. Mr Hutchen then interviewed Mr Norris and was offered to have a witness present. He asked for Mrs Djukic, another store employee, and her attendance was secured. Mr Hutchen then said: We have conducted a full investigation of the complaint made against you by Carly Patrick. We understand that it is your position the incident never occurred and that you denied that you touched or pinched Carly Patrick. As you are aware Carly has been very distressed by the matter. There is also evidence that this is not the only incident in which you have engaged in this sort of conduct. This is a very serious matter. We cannot allow managerial staff who have a responsibility for looking after the business and looking after young staff members to be involved in this sort of conduct - this has not been a 5 minutes decision and the matter is not being treated lightly. In all the circumstances, unless the situation changes I have got no alternative but to dismiss you. The applicant responded to the following effect: It is not right - I didn't do it - I want to speak to someone about this. Mr Hutchen said: If you want to speak to somebody speak to Ms Marian Henry in the personnel Department - I'll give you her phone number. It will be seen that Mr Norris' memory was not jogged about the incident involving Mr Cusak and the discussion plan, and he was not made aware of what had been said by Ms Macovaz and Ms Ross. It was inconceivable that Mr Hutchen's and Ms Henry's minds could not have been affected by those matters and Mr Hutchen, in his affidavit and in his evidence, readily enough acknowledged this. Fairness required that Mr Norris should have been apprised of those matters. Allowing for reasonable latitude and that an employee cannot expect to be given all the protections and rights of an accused person in a criminal trial, nevertheless, in my view it could not be said that Mr Norris was "given the opportunity to defend himself" within the meaning of section 170DC of the Industrial Relations Act 1988 (Cth) against the allegation of Ms Patrick, if that was all that was finally being held against him, or as I think is more likely, against the combined effect of all of the allegations. It is trite that section 170DC speaks of the substance of matters in the rough and tumble of everyday life. It is nevertheless relevant that the respondent is a large employer with a distinct personnel department with ready access to competent legal and industrial relations advice. Thus I think Mr Norris was not accorded his legal rights. However, the matter does not end there. Both Ms Macovaz and Ms Ross gave evidence in the proceedings before the court, and every opportunity was accorded to the applicant to test their claims. Their claims were refined and spelled out properly, and every item that the respondent might possibly hold against Mr Norris was particularised and likewise an opportunity given for examination of the complaints against him. In the result Mr Norris has been accused of touching Miss Patrick, of making sexual advances towards Miss Ross, including standing close behind her so that his genital region would have made contact with her backside, and of having made inappropriate sexual advances towards Miss Macovaz. The touching incidents are perhaps particularly serious because they involve allegations that actual criminal offences, though quite minor as crimes go, were committed. However, the whole set of allegations are serious; because if they are upheld it is inevitable that in some quarters at least the applicant would acquire the reputation of being a sexual harasser of young women. In the modern employment market, the acquisition of that reputation would be likely to affect his future employment prospects. Quite apart from those matters of reputation and employability, a man verging on middle age stands accused of disgraceful behaviour in relation to young girls who were entitled to look to him for support in their work, not to be made objects of his desires. Ms Macovaz was I think 16 at the time of the relevant events and Ms Ross I think was the same age. In accordance with well known legal principles established in Briginshaw v Briginshaw (1938) 60 CLR 336, I take the seriousness of the allegations into account and have required that the proof of them should be more clear and cogent than if they were less serious. I had the advantage of seeing each of the complainants being cross-examined. It is fair to say that each in her own way was an impressive witness. On the other hand, it is fair to record that the applicant himself was impressive in his demeanour. He is a man of intelligence who is subjectively quite convinced of his own innocence. He made no bones about agreeing that, if he had done what he is accused of doing, then it would be disgraceful behaviour deserving of dismissal. He had gone to the trouble of erecting a helpful mock-up to exact dimensions of the apparatus and spaces involved in a typical check-out station arrangement at the Pennant Hills store. In the end I have concluded that each of the young women should be believed for the following reasons. (1) Insofar as the applicant would explain the possible touching of two of them by accident, or involuntary propulsion, by means of a customer or a shopping trolley pushing through behind him after a customer had concluded business at an adjacent check out area, one would expect a person of gentle demeanour and ordinary good manners such as the appellant that he would apologise to the girls or remark to them upon the rudeness of customers or some such thing. But there was no conciliatory remark made to either young woman. This is, in my view, a small objective pointer as to what really happened. (2) None of the young women had any reason to lie. They were not friends. I had no reason to feel that they were prone to attention or over-reaction in the support of their fellow employees. (3) Although the applicant made the point that he was able to produce impressive testimonials as to his behaviour from other people (including store employees), and there is no reason to feel that he was in general an uncontrolled lecher in relation to young women, nevertheless, there does seem to have been something of a pattern exhibited in relation to young women who took his fancy. Both touching incidents occurred at work, in the check-out area and under cover of his performing a legitimate work operation; two of the young women complained of his deliberate and blatant ogling of parts of their bodies apt to give rise to an erotic charge in men. (4) The applicant in my view has persuaded himself of his innocence but that does not mean that that is the case. I think that in the cold light of day he is probably appalled to think that he might have done such a thing and has so successfully shut his mind to the possibility that he will never accept that he did it. (5) Each young women was impressive and, added together, their evidence certainly has great cumulative weight. Not overlooking the seriousness of the matters, I think that the applicant did most of what each young woman complains of. As he himself recognised, it is quite unacceptable in modern times that a male supervisor should so behave towards young women. Any employer or authorised representative of an employer who failed to move him from that employment would be failing in his or her duty to the other employees. In the case of a company that so heavily looks to junior labour, it would also be failing its duty to the parents of the other young employees. My findings include the finding that the applicant deliberately squeezed the buttock of 15 year old Carly Patrick, and accordingly the employer had a valid reason for terminating his services, as it did. I need not, therefor, consider whether the employer's acquired knowledge in relation to Ms Macovaz and Ms Ross should be taken into consideration now, directly on the question of whether the employer had such a valid reason. Because of the discretions which attend the award of any remedy in this court it may ultimately in any case have been unnecessary to consider that matter. Such questions can await another case in which they inescapably arise. The applicant's proven misconduct in relation to the three young women furnishes a strong discretionary reason why he should have no or at least reduced compensation in respect of the employer's breach of section 170DC of the Act. However, section 170DC embodies an important legal right, which I have no doubt reflects the conception of an overwhelming majority of Australian citizens that employees are entitled to a "fair go" in the manner of their dismissal. The section gives employees a right which is prima facie to be vindicated if it is not to be merely hollow in practice. The compensatory provisions of the Act are not of course intended to be punitive to employers and it would be unfortunate if any such misconception should arise. However, I would not wish lightly to embark upon a course that might have the result of encouraging any employer to think that if an employee is not given a fair opportunity to defend herself or himself, that failure might not carry with it an economic result. The maximum amount of compensation that could be awarded to the applicant under the Act is approximately $3,000. In a difficult balancing matter, I think that justice would be done if I awarded compensation for the breach of section 170DC in the sum of $500, a sum which I consider as being both significant but modest in all the circumstances of the case. At the very least, had the applicant been treated fairly, it is likely that his employment would have endured a little longer than it did, while matters were properly handled. I make it clear, if I have not already done so, that I have moderated that amount because of the substantial validity of the employer's actual reasons at the time for terminating the applicant's services, and because of the fact that the other incidents of which the employer later acquired knowledge would themselves have well justified an employer in dismissing the applicant. I turn to the claim of alleged breach of contract. The applicant showed that the respondent told its employees the following: The Company's commitment to you. As a Company, we recognise that our success is largely dependent upon the skill and ability of our employees. As such, the Company makes the following undertakings to all employees in order to provide a rewarding and satisfying working environment. ........... * To create an environment in which employees are treated with respect and courtesy. * To be fair and reasonable in dealing with employee concerns or issues. I deal with this statement on the basis that it was making express that which would be implied in an employment contract (see Burazin v The Blacktown City Guardian Pty Ltd (1996) 142 ALR 14). However, in the circumstances of this case the content of the contractual right does not exceed the content of the statutory right under section 170DC, and in all the circumstances of the case to which I have referred above, I am not persuaded that damages should be awarded for breach of the contractual right which would exceed the $500 which I have otherwise ordered. Accordingly, I make the following orders. The order of the Judicial Registrar not to reinstate the applicant is by consent confirmed. The respondent should pay the applicant $500 by way of compensation within 14 days. The application for review and the initial application for relief from the court are each otherwise dismissed. I certify that this and the preceding 9 pages are a true copy of the Ex Tempore Reasons for Judgment of His Honour Justice Madgwick. Associate: Dated: APPEARANCES For the Applicant: Self-Represented Solicitor for the Respondent: M. Davis Date of hearing: 18 March and 14 April 1997