Equal Opportunity Tribunal of New South Wales CITATION: Khoury - V - A C & E Pty Limited (No.1) [1997] NSWEOT COMPLAINANT: Robert Khoury RESPONDENT: A C & E Pty Limited NUMBER: 128 of 1996 TRIBUNAL: Ms P Goode ( Judicial Member ) GROUNDS OF COMPLAINT: Physical impairment DATES OF HEARING: 09/17/1997 DATE OF JUDGMENT: 10/08/1997 Complainant: Ms S Winters (Counsel) LEGAL REPRESENTATIVES: Respondent: Ms Katriina Tahka JUDGMENT IN FAVOUR OF: Complainant On 17 September 1997, the Respondent formally sought leave to re-open the current inquiry on the basis that fresh evidence had emerged relating, inter alia , to the veracity of two references purportedly from Borundi Electronics Pty Ltd ("Borundi") which were tendered in the Complainant's case on 20 January 1997. The Complainant opposed the application. After hearing submissions from both parties, I adjourned the matter for seven days in order to give detailed consideration to the many matters raised by both Ms Winters, counsel for the Complainant, and Ms Tahka, solicitor for the Respondent. On 24 September 1997, the parties were formally notified that I had declined the Respondent's application. My reasons for doing so are set out below, together with a brief history of the matter. Background This matter came before the Tribunal for final hearing on Monday, 20 January 1997 and Tuesday, 21 January 1997. At the conclusion of the evidence, Ms Winters made oral submissions urging the Tribunal to find in favour of the Complainant. Since there was insufficient time for the Respondent's counsel, Mr Sweeney S.C., to make any oral submissions, I directed that the Respondent file written submissions by 7 February 1997 and that the Complainant file written submissions in reply by 21 February 1997. After the Respondent's submissions were received by the Tribunal on 12 February 1997, fresh evidence came to the Respondent's attention. Accordingly, on 25 February 1997, the Respondent's solicitors wrote to Ms Winters advising her of the new development. This was followed by a letter dated 17 March 1997, setting out the fresh evidence in detail to enable Ms Winters to seek instructions from the Complainant. On 22 June 1997, Ms Winters wrote to the Respondent's solicitors advising them that she opposed any application to re-open the inquiry on the ground that the circumstances did not justify it. Thereafter, the Respondent's solicitors wrote to the Registrar of the Tribunal formally seeking leave to re-open the inquiry. For various reasons, including Ms Winters' unavailability, the application could not be heard until 17 September 1997. In summary, the fresh evidence which the Respondent seeks to lead relates to four primary issues. They are: 1. the Complainant's relationship with a former employee of Borundi, Ms Karen Chan; 2. the Complainant's position and responsibilities whilst employed at Borundi Electronics from 2 November 1994 until 30 October 1996; 3. the veracity of two references, purportedly from Borundi; and 4. the Complainant's work performance whilst at Borundi. The issue of the Complainant's employment whilst at Borundi was raised by the Complainant in his Supplementary Statement dated 17 January 1997. In paragraph 6 of that statement the Complainant relevantly states: "... I started work with Borundi Electronics Pty Ltd at Caringbah, as a Material Manager... In that position I helped in every aspect of the Company's operations, including answering phones and dealing with customers. I never had any complaints about my work during my employment at Borundi Electronics. I was provided with a reference dated 15 February 1996 because I informed my employer that I wanted to obtain a position at a higher salary. When I left I was given a further reference dated 30 October 1996. Copies of both references are attached." Both references are on Borundi letterhead, addressed "To Whom It May Concern" and signed by Mr Eitan Madar, Financial Controller. The first reference, dated 15 February 1996, relevantly states: "This is to certify that Mr Robert Khoury joined our organisation ... in the capacity of a Material Manager. Robert was responsible to secure supply of the company's needs of various materials as requested for the production and manufacture of our alarm systems... Robert carried his tasks efficiently... Robert proved to me that he is passionate with what he does. He was well liked by everyone who knew him. In short, he was a team player and he led by example. It is unfortunate that Robert's aspirations are well beyond our company's structure... I know that he would be sorely missed when he decides to seek to advance his career elsewhere." The second reference, dated 30 October 1996, relevantly states: "This is to certify that Mr Robert Khoury joined our company on 02 November, 1994 in the capacity of Supply Manager. Robert displayed a pleasant and efficient disposition. He showed responsibility and professionalism in everything he undertook. He left us on 30 October, 1996 of his own accord..." When Ms Winters tendered the Complainant's Supplementary Statement, together with the annexed references from Borundi, Mr Sweeney S.C. objected to the tender of the references on the basis that they were not relevant to the matters in issue. At the time, he did not challenge their veracity. Ms Winters pressed the tender of the documents on the basis that they related to the Complainant's work performance which, she submitted, had been specifically put in issue by the Respondent in respect of the Complainant's employment with A.C. & E. Pty Ltd. Although I admitted the documents into evidence, I expressed the view that, in the absence of the author, Mr Madar, being available for cross-examination, they were of little weight. Following the hearing, the Respondent's solicitors made inquiries of Mr Madar and, on 12 March 1997, they received a letter from him stating the following: "I have no specific recollection of signing either of these references, although the signature on each appears to be mine . I may well have signed them without giving them proper consideration . However they do not reflect my opinion of Mr Khoury's work performance. I certainly did not compose either of these letters. I can find no record of either of these references on Mr Khoury's personal file. ( EMPHASIS ADDED )" Further, the Respondent's solicitors received a letter, also dated 12 March 1997, from Mr Veal, Managing Director of Borundi, stating the following: "Robert Khoury was employed by Borundi Electronics Pty Ltd from 2 Nov 94 to 30 Oct 96 inclusive. The position he held with the Company during this period was Purchasing Clerk. At the time of commencing employment he completed a Personal Details form that nominated Karen Chan as his Fiancee and Next of kin. ...[H]ad he not resigned his employment would have been terminated. I discussed termination with his supervisor, Eitan Madar, during August and had tasked him with preparing the first formal letter of warning, when Mr Khoury advised Eitan Madar that he would be resigning shortly. ... There is no record of either of these documents in the Company's records... Had I been aware of either of these documents at the time I would have objected strongly to them being issued on Company letterhead as they certainly do not reflect sentiments that I would have supported... [T]he Company has never had a position carrying the title Materials Manager. Mr Khoury spoke with me on a number of occasions with the view to having his job title changed, together with an increase in salary, and on each occasion I rejected his proposal. He was very adept at distorting anything that I said to him in order to further his own aims. ... As far as the style of the two references is concerned I am positive that neither was composed by Eitan Madar. The language and structure used are unlike anything I have ever seen written by him; they are consistent with the style of Mr Khoury. However, the signatures appear to be Mr Madar's ... ( EMPHASIS ADDED )" On the basis of the letters received from Mr Madar and Mr Veal, Ms Tahka submits that the two references, purportedly signed by Mr Madar, are first, not a true and genuine reflection of the Complainant's employment with Borundi, and secondly, to the extent that they appear to have been composed by the Complainant rather than Mr Madar, they appear to have been falsified. Ms Tahka further submits that the proposed evidence relating to the four primary issues previously mentioned is credible and, because it goes to the heart of the Complainant's credibility as a witness and involves an allegation that he has knowingly or recklessly made a false representation while under an obligation to tell the truth, it will probably have an important influence on the outcome of the case. Finally, on the balance of prejudices, she submits that it is the Respondent who stands to suffer most if the inquiry is not re-opened. Ms Winters, on the other hand, submits that there is nothing in the proposed evidence to justify re-opening the inquiry and that, taking all the circumstances into account, great injustice would be done to the Complainant if the Respondent's application were to be granted. I discuss below the four primary issues in respect of which the Respondent seeks to lead fresh evidence for the purpose of impugning the Complainant's credit. 1. The Complainant's Relationship with Ms Karen Chan The Personal Details form completed by the Complainant at the time he commenced employment with Borundi in February 1994 shows that he nominated Ms Karen Chan as his next of kin and described her as his fiancee. Ms Tahka submits that when questioned about his relationship with Ms Chan by Mr Sweeney S.C. on 20 January 1997, he concealed the true nature of the relationship. The relevant passages appear at pp. 19 and 20 of the transcript of 20 January 1997. In my view, the answers given by the Complainant do not demonstrate that he was endeavouring to conceal the true nature of his relationship with Ms Chan. Admittedly, when he was asked by Mr Sweeney S.C., "Is there any other relationship between you and her?", he replied, "We went out together" ( EMPHASIS ADDED ). The answer he gave was not strictly responsive to the question he was asked because he answered it in the past tense. However, in the context of being questioned about his past employment with the Respondent company and giving his answers in the past tense, I see nothing untoward in his reply. Moreover, at p.75 of the transcript of 20 January 1997, he volunteered the information in re-examination that he "did have the habit" of telling Ms Chan everything that happened to him. The closeness of their relationship is also alluded to in his statement dated 17 January 1997 where he states: "Mrs Carmen Martens of the accounting department repeatedly told her colleague Ms Karen Chan that she hated my guts and she could not stand for the only ( sic ) fact that I am of a lebanese background." I note that Ms Chan was not called to give evidence. However, taking into account all the circumstances, I do not accept that the nature of the Complainant's relationship with her affects the credibility of either the above evidence or the Complainant's evidence generally. 2. The Complainant's Position and Responsibilities at Borundi Ms Tahka submits that the fresh evidence from Borundi shows first, that the Complainant was at all times employed by Borundi as a Purchasing Clerk, not a Material Manager, a Supply Manager or a Purchasing Manager, and secondly, that although there was no such position at Borundi as a Material Manager, the Complainant was actively campaigning to be given this title. If established, Ms Tahka submits that this evidence demonstrates that the two purported references must have been composed by the Complainant and that the Complainant has deliberately inflated his seniority within the Company. For the purposes of the present application, Ms Winters tendered a selection of documents bearing the Complainant's signature which, she submitted, show that Borundi wanted the Complainant to promote himself to persons trading with the Company as a Material Manager, a Supply Manager or a Purchasing Manager. I accept this submission and, accordingly, I do not find that the description of the Complainant as a Material Manager and a Supply Manager, respectively, in the two purported references from Borundi, demonstrates, of itself, that the references were composed by the Complainant. The two "Component Approval" forms which were tendered by Ms Winters bear the Complainant's signature alongside the signature of Mr Veal. Significantly, the documents were clearly not composed by the Complainant and were signed by him under the pre-typed heading "Mat'l Mngr". Notwithstanding Ms Tahka's assertion that these forms were adopted from another company, there is nothing before me to suggest that Borundi did not want the Complainant to hold himself out to persons trading with the Company that he was a Material Manager. Accordingly, I am not prepared to draw an inference, adverse to the Complainant, from his subsequent use of the title "Material Manager". Further, there is nothing before me to suggest that Borundi did not want the Complainant to sign the balance of the documents tendered by Ms Winters in his capacity as either a Purchasing Manager or a Supply Manager. This finding is consistent with Ms Winter's assertion that the Complainant was instructed to describe himself as such because Borundi had experienced financial difficulties and orders placed by the Complainant as a Purchasing Manager or a Supply Manager were more likely to be satisfied than if he signed as a Purchasing Clerk. In circumstances where the Company had allowed the Complainant to execute documents in these capacities, I am not prepared to draw an inference, adverse to the Complainant, from his subsequent use of the title "Supply Manager". 3. The Veracity of the Two Purported References from Borundi and 4. The Complainant's Work Performance Whilst at Borundi It is convenient to discuss these two matters together. Ms Tahka submits that the fresh evidence suggests that the two purported references from Borundi have been falsified by the Complainant and that they are not a true and genuine reflection of the Complainant's employment history with Borundi. She submits that the evidence strikes at the heart of the Complainant's credibility as a witness and, therefore, that it is critical to the Respondent's case. She contends that in due course the evidence could establish: (a) that the contents of the references are false and the signatures were forged; or (b) that the contents of the references are false and the signatures, whilst genuine, were fraudulently obtained; or (c) that the contents of the references are false and the signatures are genuine. Ms Winters submits that the proposed evidence is not "sufficiently significant" to justify re-opening the inquiry and that, at its highest, the evidence shows only that the Complainant drafted the references and that Mr Madar signed them without being aware of exactly what he was signing. I do not accept that the proposed evidence, in its present form, is capable of establishing Ms Tahka's first proposition. Significantly, in their letter to Ms Winters dated 17 March 1997, the Respondent's solicitors advised: "... Eitan Madar the Financial Controller of the Company admits that the signature which appears on both references ... is his signature ..." Mr Madar informed the Respondent's solicitors, in his letter dated 12 March 1997, that the signatures appeared to be his and that he may well have signed them without giving them proper consideration. Similarly, Mr Veal said in his letter, also dated 12 March 1997, that the signatures appeared to be Mr Madar's. Nor do I accept that the proposed evidence, in its present form, is capable of establishing that Mr Madar's signature was fraudulently obtained in the sense that the Complainant used deceptive means to obtain it, such as getting Mr Madar to sign a blank piece of paper on Borundi letterhead, or photocopying Mr Madar's signature onto the references. Whilst it is regrettable that only photocopies of the references are before us, I accept Ms Winter's explanation that the originals were in her possession at the time they were tendered but were returned to the Complainant to enable him to pursue other employment applications. In addition to the matters which I have already dealt with under the heading, "The Complainant's Position and Responsibilities at Borundi", Ms Tahka relies on a number of matters in support of the proposition that the references were falsified by the Complainant. The more significant matters include the following: 1. Mr Madar's denial that he composed the references. 2. Mr Veal's view that the language and structure of the references are unlike anything he has ever seen written by Mr Madar. 3. Mr Veal's assertion that, had the Complainant not resigned, his employment would have been terminated. 4. Borundi has no record of either of the Complainant's references on its files, which is inconsistent with the Company's policy regarding retention of official documents. 5. The Complainant was not "well liked by everyone who knew him", as evidenced by: (a) his letter to Mr Madar dated 27 July 1995 wherein he complains of being verbally abused by one of the Respondent's managers; (b) Mr Veal's file note dated 9 August 1995 wherein he states that it was "unacceptable" for the Complainant to have taken the complaint referred to above to the Company Directors; (c) the Complainant's letter to Mr Madar dated 3 April 1996 wherein he complains that the staff did not contribute to buy a cake for his birthday; and (d) the above letter to Mr Madar wherein he complains about his deteriorating work conditions and his struggle to gain appraisal and recognition by his superiors. Ms Winters' response to Ms Tahka's submissions is that, if the Complainant had fabricated the references, he was running a great risk because the final sentence of each reference states that confirmation of the contents can be obtained from the author. She further submitted that it is not unknown either for employers to write glowing references in respect of employees they want to get rid of, or for employees to compose their own references which their immediate supervisor is happy to sign. In relation to the Complainant's work performance at Borundi, Ms Winters points to the fact that he was employed there for two years without receiving any formal warnings about his work performance and without there being any documentary evidence about his alleged unsatisfactory work performance. As to whether the Complainant was well liked, Ms Winters submits that he may be able to bring evidence to show that he was. Having carefully considered all the matters raised by both Ms Tahka and Ms Winters, I do not find that the proposed fresh evidence can establish that the Complainant falsified the references. Rather, I find that the evidence can go no further than establishing that the references were composed by the Complainant and signed by Mr Madar (for reasons best known to him) without being in agreement as to the accuracy of the contents or, alternatively, without being fully aware of the contents. This finding is consistent with Mr Madar's letter of 12 March 1997 wherein he states that he may well have signed the references without giving them proper consideration. Should the inquiry be re-opened in these circumstances? It is not in dispute that s.108(1) of the Anti-Discrimination Act 1977 (the "Act") confers upon the Tribunal wide-ranging and flexible powers in respect of the procedure which it may adopt and the evidence it may receive in the course of conducting an inquiry. Ms Winters submits that the essential principle which should apply in relation to the present application is that the Tribunal should do justice as between the parties. Ms Tahka submits that I should be guided by the following general principles for the reception of fresh evidence laid down by Denning LJ in Ladd v Marshall [1954] 1 WLR 1489 at p. 1491: "To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible though it need not be incontravertible." See also Snowy Mountains Hydro-Electric Authority v Cicic [1964] 81 W.N. (Pt. 1) (NSW) 232; and Ventura v Sustek [1976] 14 SASR 395. However, Ms Tahka further submits that, because the present matter has not yet been finally determined, the general principles laid down by Denning LJ should not be applied so stringently when deciding the present application. I accept this submission. Accordingly, if one or more of the conditions is not fulfilled it does not necessarily mean that the Respondent's application is bound to fail. Applying the general principles laid down by Denning LJ, I discuss first whether the evidence could have been obtained with reasonable diligence for use during the hearing. It is common ground that the Complainant's Supplementary Statement dated 17 January 1997, together with the annexed references from Borundi, was not provided to the Respondent's solicitors until late on Friday afternoon. In these circumstances, Ms Tahka submits that the Respondent could not reasonably have obtained the fresh evidence between Friday evening and Monday morning. Whilst I accept this submission, no adequate reasons were advanced to explain why inquiries were not made during the course of the hearing or, at the very least, why the Tribunal and the Complainant were not put on notice that the Respondent's solicitors wished to make further inquiries concerning the references from Borundi. Had such notice been given, it could well have minimised any prejudice to the Complainant, particularly in circumstances where he was scheduled to return to the United States shortly after the hearing concluded. It appears that the first recorded entry of any inquiries being made of Borundi by the Respondent's solicitors is 31 January 1997, although the veracity of the references from Borundi appears to have been raised in a conference held in Mr Sweeney S.C.'s chambers during the course of the hearing. In these circumstances, it is surprising that the Complainant was not cross-examined about the contents of the references or how they came to be in existence. Taking all the circumstances into account, I find that a broad outline of the proposed evidence could have been obtained with reasonable diligence prior to the conclusion of the hearing. I further find that, as a minimum, notification of the proposed inquiries should have been given to the Tribunal and the Complainant before the matter concluded. The next issue to determine is whether the proposed evidence would probably have an important influence on the result of the case. Given my finding that the evidence can go no further than establishing that the references were composed by the Complainant and signed by Mr Madar, I am not satisfied that the proposed evidence would have this effect (however, see the conclusion of this decision). Finally, is the evidence apparently credible? I am persuaded that the evidence fulfils this condition. Ms Winters submits that, when exercising any discretion under s.108(1) of the Act, the issue of costs is an important consideration. She highlights two concerns. First, given that the Complainant is now residing in the United States with his wife, it will be costly for him to return to Australia. Secondly, in order to test properly the matters raised by the proposed evidence, it will be necessary to subpoena a large number of documents, which will cause further delay as well as costs. Taking all the competing matters into consideration, pursuant to s.108(1), I decline the Respondent's application. One final matter needs to be addressed and that is the weight which the Tribunal should now attach to the two purported references from Borundi. Although neither party addressed this issue, given the comment made by Mr Madar in his letter of 12 March 1997 that the references do not reflect his opinion of the Complainant's work performance, I am of the view that the references can now have no weight. Indeed, as mentioned previously, at the time they were initially received into evidence I expressed the view that, in the absence of Mr Madar being available for cross-examination, they were of little weight. Accordingly, pursuant to s.108(1), the Tribunal proposes to attach no weight to them when preparing its final decision. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.