Industrial Relations Commission of New South Wales in Court Session CITATION : Murphy v Australian Guarantee Corporation Limited [2000] NSWIRComm 162 APPLICANT Gary Murphy PARTIES : RESPONDENT Australian Guarantee Corporation Limited FILE NUMBER: IRC 4979 of 1998 CORAM: Glynn J CATCHWORDS : Unfair contract - termination of employment on basis of allegedly proven misconduct - alleged victimisation of subordinate because of latter's involvement in sexual harassment claims against applicant - flawed investigation by respondent's officers - lack of procedural and substantive fairness - contract unfair - contract varied to provide twelve months' notice on termination or payment in lieu thereof - payment to be calculated by reference to applicant's total remuneration package. LEGISLATION CITED : Industrial Relations Act 1996 s 105 s 106 Barry v Incitec (1992) 45 IR 148 Beahan v Bush Boake Allen Australian Limited (1999) 93 IR 1 Briginshaw v Briginshaw (1938) 60 CLR 336 Day v Lumley Life Limited (1999) 90 IR 70 CASES CITED : Gala v State Bank of NSW (1998) 84 IR 216 Newton v Goodman Fielder Mills (1998) 81 IR 227 Payne v Foxboro (1998) 81 IR 404 Quinn v Jack Chia 1992 VR 567 Wilson and Department of Education and Training [2000] NSW IR Comm 20 HEARING DATES: 11/16/1999; 11/17/1999; 11/18/1999; 11/19/1999; 02/09/2000; 02/10/2000 DATE OF JUDGMENT: 08/24/2000 APPLICANT Mr P Newall of counsel SOLICITORS Ms P Costigan Haywards LEGAL REPRESENTATIVES: RESPONDENT Mr B Hodgkinson of counsel SOLICITORS Mr D Isaacs Clayton Utz JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: GLYNN J 24 AUGUST 2000 MATTER NO. IRC4979 OF 1998 GARY MURPHY v AUSTRALIAN GUARANTEE CORPORATION LIMITED Application under s 106 of the Industrial Relations Act 1996. JUDGMENT 1 Gary Murphy (the applicant) seeks orders pursuant to ss 105 and 106 of the Industrial Relations Act 1996 (the 1996 Act) avoiding, or varying, in whole or in part the contract of employment between the applicant and the Australian Guarantee Corporation Ltd (the respondent/AGC). 2 Specific terms the applicant seeks to have included in the contract sought to be avoided or varied are: (a) termination of employment shall not be harsh, unjust or unreasonable. For the purpose of this clause termination of employment shall include termination with or without notice; (b) upon termination of employment for any reason the Respondent shall give to the Applicant two years notice of termination or payment in lieu of such notice of termination. (c) for the purpose of (b) above payment in lieu of notice shall be calculated by reference to the total value of all benefits that the Applicant would have received during the notice period. 3 Particulars of the moneys claimed are: (a) payment in lieu of notice until the end of the notice period of 24 months being $150,000.00 (b) Superannuation 7 months @ 6% of $75,000 = $2625.00 12 months @ 7% of $75,000 = $7437.50 10,062.50 TOTAL: $160,062.50 4 In addition, orders for interest and costs are sought. 5 It is common ground that this application is not a matter which is affected by the amendments in late 1998 to the 1996 Act. 6 The applicant commenced employment with the respondent in 1973. He was promoted a number of times, his final promotion in February 1997 being to the position of Manager, New Business, NSW Consumer, located at Parramatta. In that position he was required to supervise approximately 60 employees, most of whom were female. 7 The applicant's employment was terminated without notice on 2 December 1997. He was paid four weeks salary upon termination. 8 The proximate cause of that termination was that the respondent had decided, following complaints made by Ms Ann Power on 28 November 1997, that the applicant had been guilty of serious misconduct in the workplace, i.e. victimisation of Ms Power by him because of her involvement in earlier complaints of sexual harassment made against him. Ms Power had been second in charge to the applicant. In August 1997, complaints of sexual harassment had been made to her, in her capacity as their supervisor, against the applicant by Ms Elizabeth Campbell and Ms Kathryn Stewart. Ms Power had taken up those complaints either with the applicant or in discussions with Human Resources. 9 The outcome of the respondent's investigation into those complaints was that the applicant had received a final warning in September 1997. 10 The applicant was the only witness called in his case. 11 The respondent called the following witnesses: Elizabeth (Liz) Ann Doran (nee Campbell), New Business officer; employed by AGC since 5 February 1996. Robyn Ann Dunn, Senior Manager, Human Resources, NSW; employed by AGC since 12 May 1997. Chris Georgiou, Chief Manager, Human Resources. Alison Lowth, Human Resources Advisor; employed by AGC since 11 March 1997. Geoffrey Street, Head of Business (as at 17 November 1999) employed by AGC since 12 November 1973. Patricia Ann Power, formerly employed as the New Business Manager, Parramatta AGC office; employed on a permanent basis by AGC since 1983. Made redundant as from 1 December 1997. Alison Louise Bills, employed during 1996 and 1997 in the Parramatta Credit Line Department of AGC. Now resident in Perth. Kathryn Jean Anne Stewart, clerk; employed by AGC since 1992. (affidavit evidence only; accepted over objection; medical grounds for non-attendance). Submissions - Applicant 12 Mr P Newall of counsel for the applicant, stated that, shortly put, it is a case in which an employee Mr Gary Murphy, who was employed for some 24 years by the respondent, rising up through the ranks to a managerial position, was dismissed by the company; and when dismissed was paid four weeks pay in lieu of notice. That was not even the minimum amount required under its own termination policy. That is the first principle of unfairness and the contract which allowed it was unfair. 13 The unfairness is compounded by the fact that the matter for which Mr Murphy lost his job, and indeed his continuous career, was simply a vague and unspecified allegation of victimisation made by Ms Power, a person known to be antagonistic to Mr Murphy in work and which allegation Mr Murphy rebutted thoroughly in writing. 14 The bulk of the allegations relied on Ms Power's word against Mr Murphy's, and on that basis a large number of them were found proven, although those making the decision to terminate Mr Murphy's services each said that the respondent could not accept any allegations Ms Power made just because Ms Power said so. 15 Ms Power was demonstrably not a person of reliability. All three decision makers recognised that allegation 3 was untrue and was nevertheless advanced deliberately by Ms Power as an untruthful allegation. Nevertheless, that fact did not cause any of them to question any of the other allegations. 16 It is clear from the evidence that Mr Murphy's employment was only terminated by reason of the allegations made by Ann Power, and the view taken by AGC that those allegations constituted proven victimisation of Miss Power by Mr Murphy, for the reason that Ms Power was involved in earlier claims of harassment against Mr Murphy. That is the reason AGC gave for the termination of his employment. It is the respondent's unequivocal position but for the Power allegations Mr Murphy would have remained in employment as a senior manager. On any view of the evidence, however, there are a number of fundamental problems with terminating Mr Murphy for that reason. 17 Firstly, the victimisation allegation could not be made out in the fact. That is quite clear from the complete confusion into which the three decision makers fell when actually asked about the evidence supporting the individual allegations. 18 Secondly, leaving aside whether the allegations can be proved as a matter of fact or not, not a shred of evidence connected Mr Murphy's alleged behaviour to Ms Power to any involvement by her in sexual allegations brought against Mr Murphy. Neither Mr Street, Mr Georgiou, nor Miss Dunn could point to any evidence that there was any connection. They each assumed a connection. There is no such evidence and that means that the reason given for the termination is a complete farce. 19 When they were asked about the connection between Mr Murphy's alleged conduct towards Ms Power and her involvement in the allegations, Mr Georgiou said, "I assumed it". Mr Street also said that he assumed it but he also conceded there was not a shred of evidence to make such a connection. Mr Street then went on to say that he did not see any need to establish such a link. Ms Dunn said she assumed it because of the time of the events that Ms Power complained of but she had not bothered to ask Ms Power when the bulk of them occurred. 20 There was no link. They did not look for a link. Both their failure to look of itself and the absence of a link are completely fatal to the proposition that Mr Murphy victimised Ms Power. It can not be made out and it was not and for that reason a termination on the basis of victimisation was and remains fundamentally and completely unfair. 21 In the termination process Mr Murphy was denied procedural fairness. On 1 December 1997 Mr Murphy was invited whilst in a meeting to attend another meeting with some executives of the respondent. He was not told what it was about. When he got there he was given a letter that set out some allegations against him which related to these victimisation allegations. He was given 24 hours to go away and prepare his defence. He was denied a support person. Mr Murphy's evidence is he wanted an extension of time and he was not granted it so he could get some advice. 22 The allegations were vague and duplicitous and incapable of being understood even by the people putting them as became clear from the evidence, let alone by Mr Murphy, although he made a good effort to respond to them in his written answers. The fact that the allegations were ridiculously imprecise was a very important matter. No one in the serious position in which Mr Murphy found himself, having to write an answer overnight to defend his career and job, should be faced with allegations as vague, imprecise and repetitive as the ones with which Mr Murphy was faced. 23 It is absolutely inexcusable for anybody who was even pretending to investigate and decide on this Murphy matter, not to ask Ms Power or cause her to be asked the obvious questions as to when, where, who was there, in relation to her allegations. 24 There is another procedural fairness issue which comes from this and that is it only arises if Mr Georgiou's evidence on his oath is to be believed. That evidence is unconfirmed by Ms Dunn and Mr Street. It is probably the case that Mr Georgiou, on that point, ought not be believed but if the applicant is wrong about that, then what he says is quite significant. In relation to the fourth allegation, Mr Georgiou said he had heard Ms Power make specific reference to a Credit Line meeting but the respondent had omitted to tell Mr Murphy of that detail. If he is telling untruths, then one must wonder about his credit in the whole proceedings. [That last proposition was Mr Newall's final position on the point.]. 25 There was further unfairness because while Mr Murphy rebutted the allegation of victimisation in writing, and in doing so, provided the respondent with the names of a number of witnesses to events that were said to be against him and documents which would make it clear that the allegations could not be substantiated, the respondent in coming to its decision, neither spoke to any of those witnesses, nor looked at any of those documents. The respondent took just one hour from the time that Mr Murphy on the following day provided them with ten pages of a typed rebuttal of the allegations to hand him the termination letter. 26 The unfairness does not end there because 6 months prior to his termination Mr Murphy was given a written warning on the basis of some other allegations of a different kind which were equally unsubstantiated. Apparently the contract allowed that to happen as well and for that reason too the contract was unfair. 27 In truth, the fact of the previous warning, and indeed whether or not the previous conduct that Mr Murphy was accused of in 1996 and 1997 occurred, is not a relevant consideration for the Commission's assessment of the fairness or unfairness of his contract. That conduct was not what he was dismissed for. He was dismissed solely for the Power allegation. 28 It is clear Mr Murphy used some inappropriate language to Ms Campbell at one time. Mr Murphy says so. He told AGC that at the beginning. Indeed he volunteered that information in the beginning. That is not in contest. 29 There are some other matters which are highly relevant, for instance Ms Stewart, whose affidavit is before the Court, has not been able to be cross-examined. She made a number of assertions which would have been tested in cross-examination. The Court could, at best, give negligible weight to anything Ms Stewart says in her affidavit which has not been tested. 30 The evidence makes it apparent how unfair AGC has been to Mr Murphy. 31 The evidence the decision makers had was that which Ms Power had said to two of them in a meeting of two and a half hours, all the important parts of which produced a half a page of file notes. They had the 10 page response Mr Murphy gave them where he makes some admissions. He said he took Ms Power off the surrogacy list. That 10 page document set out both his own evidence and the names of a number of witnesses. After one hour's consideration the three decision makers found 9 out of 10 matters separately proven against Mr Murphy. They each said it was on the basis of those specific factual findings on 9 out of 10 allegations that Mr Murphy was dismissed. 32 Yet when the three decision makers were actually asked about each of allegations, it becomes entirely clear that the allegations are not factually proven, and it also becomes clear that a very small amount of thought would have made that very clear to the three of them. That raises the question, why didn't they think about it. The answer the applicant says is they did not wish to, because it might have interfered with the course they wanted to take. Ms Dunn, for instance, seized so eagerly on the Power allegations because she wished Mr Murphy to be dismissed, having said to Ms Stewart back in August "if we receive one more complaint his services will be terminated." 33 Ms Dunn and Mr Street had preconceived the issue and that Mr Murphy had no chance of coming out of it successfully. It had been decided in advance to dismiss Mr Murphy. That is the only sensible explanation of why such senior people acted in such a careless, haphazard and apparently biased way. The Court does not need to find there was a conspiracy. There is plenty of unfairness without that. The fact is the dismissal was unfair. 34 The applicant needs to deal with the actual allegations put to Mr Murphy, and the fact that they were not made out, because it is important to show that they were without substance. [I have not referred to all of Mr Newall's submissions in relation to each of the 10 allegations.] 35 The first allegation was essentially that Mr Murphy slammed the door in Miss Power's face. Mr Murphy denied that. More, he gave a very detailed account of the circumstances to which he thought Miss Power was referring, and when one looks at the dates and Mr Murphy as having been sent off from work to consider his defence, it could only have been that one occasion. That was found factually proven by AGC and contributed to Mr Murphy's termination. 36 Allegation 2 is the surrogacy status. It is now clear that did not have the effect of excluding Ms Power from the work information link. It just stopped her having access to Mr Murphy's own files. That is not victimisation. It was entirely justifiable that Mr Murphy take that action to prevent Ms Power accessing his own files in circumstances where Ms Power had actively spread false rumours about Mr Murphy's private life. 37 Allegation 4 is that Mr Murphy excluded Ms Power from meetings with her direct supervisors [sic] that he conducted. This allegation, Ms Dunn says, is the same as 6 and 9. Ms Dunn could not specify any particular meetings to which this or number 6 or number 9 referred. She could not say how it came to be that she did not think to ask Ms Power when the allegations were made. 38 Allegation 5 comes down to an allegation that Mr Murphy did not send out an inclusive e-mail about Ms Power. Even if it were true, that is not a sacking offence. This whole issue about the e-mail to Ms Power was a matter which had been the subject of discussion between AGC management and Mr Murphy back in October 1997. Back in October it was a matter of feedback, not even discipline. In December, the offence had not been repeated; the e-mail was sent out; it becomes a sacking offence. 39 Allegation 8 is that Mr Murphy did not debrief Ms Power when she returned from sick leave and he told her there was nothing she needed to know. Mr Murphy's written account, confirmed in his oral evidence, is quite clear that he did not say that. Mr Street accepted that Mr Murphy did arrange to debrief Ms Power on that day. Mr Street had known all about this matter since October, when he was told about it by the applicant. By Mr Murphy's evidence, if Mr Street has the grace to agree that Mr Murphy had raised the matter with him in October, and no disciplinary sanction was taken at that time, it would be unfair to dismiss him for it in December, but that of course is exactly what has occurred. 40 Allegation number 10 has every appearance of being a fabrication by Ms Power or someone. Not one of the decision makers could properly identify when Ms Power conveyed it to them until Ms Dunn told the Commission on the last day of her evidence, which evidence also concluded the respondent's case, that it was in the meeting of the 28 November. Ms Dunn did not ask Ms Power for any details as to time or place. Nevertheless it was accepted as a proven example of victimisation of Ms Power by Mr Murphy after August 1997, despite the fact that the decision makers say that they have no idea when it was said and it could have been any time within a number of years, leaving aside there is not a shred of proof it was actually said. Mr Murphy denied it absolutely. 41 Having somehow found nine of these 10 allegations, each of them separately factually proven either with scant evidence, or without evidence for some of them, the respondent then went on to dismiss Mr Murphy for victimisation. Victimising Ms Power was constituted by acting to her detriment or differently towards her because of her involvement in the sexual harassment allegations. It had to be conduct that happened after 22 August or it could not be victimisation by reason of Ms Power's involvement because Mr Murphy did not know before that date that she was involved. 42 There was not a connection between Mr Murphy's alleged conduct, such of it as did occur, and Ms Power's participation in the sexual harassment allegations. Even if the allegations had been made out, there is a fundamental responsibility on AGC if they are going to find the man guilty of victimisation to establish that there was a link, on the one hand, between Ms Power's involvement in those allegations which Mr Murphy found out about on 22 August, and on the other, his conduct towards her. The three decision makers had not even realised that it was an absolutely necessary part of the victimisation allegation against Mr Murphy that they demonstrate a connection between Ms Power's involvement and his conduct, yet that was what the termination was for. 43 Under the contract that Mr Murphy found himself under, AGC did not have to establish, in order to dismiss him for victimisation, that there was any connection between his actions and Ms Power's involvement in the August allegations. AGC did not have to look for it and did not have to prove it. That was how unfair the contract was. 44 The contract which allowed his termination to occur was unfair, because AGC's own termination policy was that it afford Mr Murphy procedural fairness and it did not do that. Mr Georgiou, the chief human resources manager firstly denied the existence of an AGC policy on aspects of dismissal. When shown it, he admitted that he was unaware of it when he decided to dismiss Mr Murphy. 45 This firm is a particularly big firm and because it might be named in Parliament, seemed to be sensitive to questions of harassment and discrimination. 46 It is very clear from Ms Dunn's affidavit that the major concern was the possibly of AGC being exposed to some sort of claim by Ms Power. That has been AGC's driving rationale through this whole process. AGC's whole conduct should be seen in the light of the comment by Mr Thomas when Mr Thomas talked about shooting some leading bull. It seems that Mr Murphy was selected as a victim and terminated to show AGC's concern about harassment. That will not do. That makes the contract unfair. (The reference to "shooting the leading bulls to shake the rest of the herd up" goes to a statement the applicant says was made by the respondent's Managing Director, Mr Thomas, in mid 1997 as to changing the company's directions. That statement was taken by the applicant to mean that a shake out of long term employees could be expected.) 47 The applicant's proposition that this matter was predecided was confirmed by the indecent haste that it would be decided in an hour, not just the fact that it was decided before Mr Murphy's response was received. When one looks at the termination letter which was obviously thrown together, but signed off by Ms Dunn and Mr Street, it is only a few lines long, but on Ms Dunn's evidence it contains a number of substantial errors, e.g. the proposition that Mr Murphy had received a formal counselling session is manifestly wrong on the evidence of both of them. 48 All of that unfairness means that the contract which manifestly fails to make any provision protecting Mr Murphy against unfair dismissal was unfair. 49 The Commission cannot re-establish the employment relationship. However, it is clearly a matter for the Commission to consider in addressing a remedy for unfairness suffered by Mr Murphy and finding that the respondent had no reason at all to terminate his employment and his career, and that it did so and was able to do so, without offering any kind of procedural or substantive fairness. 50 The way in which the termination was done, and the complete baselessness of the allegations made would further weigh in the Commission's discretion as to the sum that ought to be given to Mr Murphy in that a respondent should not be allowed to avoid the consequences of its behaviour (see Day v Lumley Life Limited [(1999) 90 IR 70 at 93] ). 51 Each case should be made on its own merits and relevant matters as to what ought to be a proper period of notice or payment in lieu thereof, include age, seniority, length of service, status and salary (see decisions such as Quinn v Jack Chia (1992 VR 567 at 579), Payne v Foxboro [(1998) 81 IR 404 at 407-8], Barry v Incitec [(1992) 45 IR 148], Gala v State Bank of NSW [(1998) 84 IR 216] and Newton v Goodman Fielder Mills [(1998) 81 IR 227]. 52 The applicant sought that the Commission remedy the unfairness shown to Mr Murphy by at least varying the contract so that it did not allow the respondent to terminate a man in a senior position with 24 years service on the basis of a completely inadequate 4 weeks payout in lieu of notice, but rather with a greater sum as set out in the pleadings. 53 If the Court is against the applicant on the two years sought, 18 months would be comparable to relief offered in this jurisdiction and would be the minimum entitlement. Any relief by way of compensation should be upon the whole of his remuneration and not just the salary, together with interest and costs. 54 In view of all the circumstances, the Court should not exercise its discretion to reduce the effect of any order for payments to Mr Murphy by having regard to earnings since termination. Submissions - Respondent 55 Mr B Hodgkinson of counsel on behalf of the respondent advanced four basic propositions: Mr Murphy was undoubtedly guilty of sexual harassment. Mr Murphy lied to AGC about it. Further, when faced with the facts, he was unrepentant, both in this Court and when AGC had brought the facts to him. As a consequence of his engagement in harassment he was given a final warning which he understood with clarity. That is, he understood that any single action which could be said to be in breach of the harassment policy, including victimisation, had the real and substantial potential of leading to his dismissal and he was aware of that for a good period of time. He ultimately, when faced with the facts admitted that he did victimise Ann Power. 56 The complaints about vagueness, complaints about procedural fairness, are not borne out in Mr Murphy's evidence. 57 What is being dealt with is a recognised difficulty in employment circumstances. As was accepted by Mr Murphy, a lot of times when issues of harassment, including victimisation, arise, they arise out of one on one circumstances. It is only the fool or extrovert who behaves so badly in front of others as to have witnesses to his indiscretions or worse. 58 What the applicant has put forward is a variation of a smoking gun defence. That is Mr Murphy advances a case based upon this proposition: AGC did not find him with the smoking gun in his hand, AGC is therefore required to accept his denials because there are no witnesses; because AGC has only got a person making allegations and AGC has not caught him doing it. Now, that defence often works in the criminal law system because of the standard of proof required. It is even a defence that has found some success when the civil standard in courts are applied to evidence. However, neither of those standards apply to the application of management in an employment circumstance. It has been accepted in many cases that an employer can proceed upon a well founded suspicion. It does not have to be established to the extent that would be required in an administrative tribunal. It is merely to say that in the circumstances the opportunity to be heard must be provided and the accuser must provide a direction in which the person alleged to have committed whatever it is that is alleged, may direct the mind. Really it amounts to no more than that. 59 Mr Murphy's evidence was evasive, both in his affidavits and in his oral evidence. Mr Murphy's position was that of a senior management member of staff. He had the responsibility for a significant number of staff members, approximately 60 and the majority of those people were female. He was responsible for the implementation of the harassment policy about which he was aware. 60 AGC as an employer is entitled to rely upon the integrity of its senior management staff, the more so when they are long term employees, and it is entitled to expect from those staff a very high standard of behaviour in areas where they have published policies and trained the members of the staff in the implementation of those policies and placed within the purview of that person's responsibilities the very implementation of those policies. The fact that Mr Murphy had 24 years service weighs heavily against him in that he was found to have breached those policies. He did not care whether it was breach of the policy because it was his management style, it had always been his management style and he was going to stay with that management style. The fact that it was not acceptable to the community generally, or the fact that it was not acceptable to his employer specifically, or the fact that it was an affront to those people that worked for him, who had a right to expect a workplace free of harassment, was irrelevant to him. 61 When faced by AGC with the harassment allegations, he misled AGC in his responses, for instance, by asserting, in relation to the baseball game incident that he occupied a position in the stands, that by inference, asserted he physically could not have carried out the action alleged. 62 In these proceedings, cross examination of the employees making the allegations (other than Ms Stewart who was not available for medical reasons), did not change these original contentions. 63 The employer's responsibility in the anti-discrimination legislation is to prevent. The employer does not let a matter get to legally defined harassment before the employer has responsibility. 64 Far from being the conspirators against the applicant, as had been submitted, Ms Dunn and Mr Street had in September tried to counsel the applicant against his old ways and offered support in any problems he might have in direct dealings with staff in the aftermath of the final warning. The applicant never took up those offers. Indeed, before resuming work he reiterated that he had done nothing wrong and had no reason to feel guilty. 65 The applicant's response at the meeting on 2 October, in relation to the allegations by Ms Power that she was being excluded from the team because of her earlier involvement in the harassment complaints, showed that he refused to heed warnings or understood that people were trying to show him that his own actions were putting his employment at risk. The restructuring relied upon by the applicant to say his actions did not constitute victimisation, did not justify his action as to the e-mail. 66 To say without the Power allegation, there would have been no termination is correct, but to leave it at that point is to leave out the very important steps that had led up to this position that Mr Murphy found himself in. The proposition, although it is right, cannot just be looked at it in isolation because that is not how the three investigators were dealing with it. They were dealing with a man on a final warning about harassment which included victimisation and they were dealing with the allegations made by one of the participants in the earlier process who was complaining as at October. He put himself into that position as a consequence of his own actions. Mr Murphy had an opportunity to do what he was advised would be wise, that was to actively include Anne Power but he did not do it. 67 The respondent accepted that the applicant had been able to cut away the December allegations and had got concessions from Ms Power, Mr Georgiou, Mr Street and Mr Dunn, for instance, that allegations 4, 6 and 9 are the same. Whether they are the same allegation or not, they were still not satisfactorily answered and nothing more has been put to the Court than was put to AGC, "I deny it". From his earlier written responses, it can be seen the credit that can be attached to those. This is the man who accepts that deletion from the e-mail list was victimisation, so there was evidence of victimisation. There was just his denial in the one on one situations. The fact is that the applicant asks the Court to make a decision in his favour, accepting that he has had every opportunity to put everything he wanted to, yet does not disprove the allegations, he just denies them. That is not good enough to ask this Court on that basis to make any orders in his favour. 68 Ms Power's real fault in all of this is that she did her job. She had young females coming to her saying they are being intimidated or victimised or harassed by their boss. What do they do? She stepped into the breach for them, she looked after them, she did what a good manager would do. She did not mind that he was her boss as well. She took the appropriate steps. 69 Because of the equitable nature of s 106 proceedings and the remedies available, the standards even appropriate to reinstatement cases are higher than those here required, and the concept that Mr Murphy comes to this Court with proven breaches of policies and standards in circumstances where he not only knew better but had been trained in those standards, is sufficient to exclude the exercise of discretion in his favour. 70 In the cases relied upon by the applicant, and for a moment excluding Newton v Goodman Fielder, the applicants in those cases referred to under the s 106 provisions were not terminated on the basis that there was fault on their part. This Court exercising its jurisdiction under s 106 has only come to the assistance of applicants who have been able to demonstrate an unfairness, not simply that under all circumstances the notice provision of one month's payment would be inadequate. Newton v Goodman Fielder can be distinguished because even though there was a suggestion that there was cause in that case, there were other factors that Hill J found in that case which outweighed that point. It is a very different case when it stands on its own facts. 71 In none of the cases under s 106 or its predecessors of this kind has there been established by an employer against whom an award has been made of cause for a dismissal, but here it is clearly established. The jurisdiction of this Commission and its predecessors, not only under s 106 matters but in its general industrial functions, has always been predicated on fairness. There are bases upon which the Commission would first have to determine in exercising its s 106 jurisdiction before it will contemplate intervention. 72 One of those bases is was there cause? If cause is established then there is something much stronger than mere reluctance to intervene and it ought properly be so. If there is cause, then a fair go all around is to simply leave what happened. If there are common law rights, there are common law rights because they exist as a consequence not of the redefining of the relationship but of the relationship that existed. 73 Section 106 is a very special and powerful weapon and its very wide discretionary powers would not be exercised if there is established cause. In the circumstances shown in this case no intervention is warranted, the matter will just stand. 74 The consequence of that would be the dismissal of these proceedings and a further consequence would be consideration in relation to costs. If the Court does not find favour with those submissions and finds in whole or in part in favour of the applicant, the question of costs ought to be reserved. 75 In relation to the alternative proposition put by the applicant that 18 months notice or pay in lieu would be a fair result, the respondent contended, very much in the alternative that, if one does an assessment of the cases and knowing that each case turns on its own facts, and there are many circumstances individual to each which impact on the ultimate decision the Court makes, 12 months would be a more reflective payment of a person who was not dismissed for cause, who had about 24 years service with the same employer. One could even say it was a little lower than that, nine months even (see Gala v State Bank). 76 The respondent pressed very strongly in this case that the application be dismissed. Submissions - Applicant - In Reply 77 The respondent suggested that the Commission ought not intervene if there was an employment contract ended for cause. There is nothing in the Act or the jurisprudence of this Commission to suggest there is a distinction drawn in a jurisdictional sense, which is the way it has been advanced, between employment contracts, based upon the nature of their termination. There was no proper cause for the termination because it was wrongfully and unfairly done, but even if that were not so, that does not mean that there is some jurisdictional bar to the Commission making orders remedying an inadequate notice period with consequent orders for payment of money. 78 In relation to the door slamming allegation, the respondent said Ms Power came here to the Commission and said this was done and the applicant did not answer it. Each of the three decision makers who dismissed Mr Murphy said on their oath that they had no evidence for that matter and they could not substantiate it. It is not necessary in those circumstances for the applicant to come along and bring witnesses to say, "well, it did not happen when I was there". The respondent could not find any evidence for this at all and also, of course, told the Commission that one could not just rely on Ms Power's unsupported statement. 79 This is a circumstance where an employer has elected to terminate a very long serving employee. It did so on the grounds of proven misconduct in an area which is a serious area, victimisation. That being so, there is an onus on the employer within its own investigations to satisfy itself at a high level of proof that they actually occurred. The test in Briginshaw v Briginshaw [(1938) 60 CLR 336] is the test i.e. less than the criminal standard but well higher than the civil standard of the balance of probabilities. Yet the decision makers have come here and told the Court they had no proof of and could not find made out almost all of the allegations. That does not pass the Briginshaw test. So of course the termination was unfair. 80 Mr Murphy said that his emotions got the better of him when he took Ms Power off the e-mail. The respondent says that must be the emotion of his response to her being involved in his harassment complaints. There is no basis at all to advance that kind of proposition, particularly when it is known on the evidence that what Ms Power had been doing to Mr Murphy's certain knowledge was spreading all sorts of rumours about Mr Murphy, his private sexual life, his wife and the latter's views about her sexual life. If his emotions did get the better of him, that might well have been the reason. There is no basis to say that the Court can safely conclude that that was because of his emotional response to her involvement in these allegations, keeping in mind of course that Mr Murphy had known about Ms Power being a witness to the allegations for quite some time. It is not said that she was taken off the system then, but it does coincide with approximately the time that Mr Murphy goes to Mr Street and says Ms Power is saying these things about him and his wife. 81 It is said of the case advanced in support of Mr Murphy that it is a lawyer's argument about procedural unfairness, and in support of that some cross-examination of Mr Murphy was gone to about the time he had to respond and Mr Murphy concedes in cross-examination that on the allegations as they were presented to him, there is nothing else he could have said if he had more time. The respondent says for that reason, well, clearly then there was no procedural unfairness. 82 If one looks at Mr Murphy's written response to the allegations it can be seen that in response to allegation 2, in response to number 3, he says "as best I can recall" and in response to 8 words to similar effect, "if this is what I think it is, my answer is this". There is a piece of gross procedural unfairness. Certainly Mr Street and Mr Georgiou conceded that it would have been better had Mr Murphy been provided with detail of when these were meant to be. 83 There is very substantial procedural unfairness. The lack of knowledge of when things are meant to have occurred is a very large part of it. There could be no victimisation except in things that occurred after 22 August 1997 and after the warning yet, with respect to some of the allegations at least, the respondent was quite unable to say, even here and now, when it was that they were meant to have occurred. Something which happened before 22 August 1997 cannot be victimisation and cannot be manufactured by a warning. Apart from a couple of allegations which are pinned down in time, the respondent did not know when these occurred. 84 Any suggestion that there was no procedural unfairness to Mr Murphy cannot be made out. 85 Mr Murphy was hard pressed in cross-examination, very properly, about this question of victimisation to the point where he said "I victimised Ms Power". It does not mean that that absolves AGC of a responsibility to find, in order to dismiss Mr Murphy for victimisation that as a matter of fact themselves. The company, to sack the man has to, that is the point of the Briginshaw test, be well satisfied that as a matter of fact this victimisation occurred remembering, Mr Murphy was not answering those questions at large. They were questions only about the e-mail surrogacy matter. It is significant that when Ms Power was asked about that in cross-examination she had no idea when she had been put back on the system. The real suspicion arises that she did not make use of it any way. If that were so and she was not using the surrogacy system, that is not victimising her, keeping her out of the loop or anything else. Remembering of course that because Ms Power, on the evidence, remained on the network rather than on the surrogacy system, she got all the information any other subordinate of Mr Murphy's got at the same time. She was not therefore treated differently to anybody else in that respect. 86 Much was made, indeed, the bulk of the respondent's submissions went to the issues that went to the counselling in December 1996 which Mr Street says, quite frankly, was not counselling when it was done but which he decided to call counselling later, and the material that went to the first and final warning as it was clearly expressed in August 1997. It is true of course that Mr Murphy was given a first and final warning in August 1997 about these kinds of matters. At that point those matters are all dealt with and they are dealt with and subsumed in the giving of the first and final warning. He cannot be punished for those matters again because the first and final warning encompasses AGC's response to all of those matters. The warning was spelt out in express terms to Mr Murphy, as Mr Hodgkinson has pointed out, that he must not transgress by harassing anybody again. 87 In the termination letter the company misrepresents and add some words to the words in the September warning letter. It is certainly clear he was told if he harassed anybody again he would be dismissed. However, there is nothing to say when one looks at this as a matter of fact that after receiving that warning in August 1997 Mr Murphy transgressed again. The 10 allegations either were not proven or were found proven in the same manner as was allegation number 10, that it is said to Ms Power, "I'll get you out of this organisation and deny it if you raise this". That is the quality of material on which Mr Murphy has been sacked. 88 Each of the three decision makers quite unequivocally said to this Court that, but for the Power allegations Mr Murphy would be still working at AGC. That is not something to be glossed over because that supports the allegation the applicant makes. Having had his first and final warning, those matters were dealt with. He then proceeded with a clean sheet, clean in the sense that he has not had the baggage of what he might have been alleged to have done or found to have done before hanging around his neck as matter of fact. True it is, of course, that in the event of any future misconduct that warning could be referred to. That cannot be disputed. 89 To do something that warrants termination, indeed as was said by Ms Dunn that he committed misconduct serious enough to warrant summary termination, that misconduct has to stand alone. The company, and now, because it is before this tribunal, the Commission would have to be satisfied, to come to a view that the termination was fair, that Mr Murphy had done something after the warning which was of a serious enough nature to warrant him being terminated after his 24 years employment and that simply has not been shown. Consideration - Allegations 90 The applicant said that not only was the decision making process in relation to the December 1997 allegations flawed, but so had been the process in relation to earlier allegations, which formed a foundation for the December 1997 decision by the respondent. 91 It is necessary to examine the background to the termination in some detail. That is because the respondent contended that the employer can proceed on a well founded suspicion, while the applicant contended that the process to which the applicant was subject did not show that the employer's action was well founded. 92 At the outset, I should say that in relation to sexual harassment complaints that led to the final warning in September 1997 and to those other complaints I later refer to as the September 1997 complaints, I am concerned with them only as to the process adopted by the respondent in its response to those complaints and to the extent the December complaint of victimisation was based on their existence. I do not see it necessary for me to consider the veracity or otherwise of those complaints, which complaints were repeated in these proceedings. 93 In relation to those August complaints, I accept that even on the basis of the words the applicant accepted he did use, in the "headlights"/nipples episode, and the "bikie's chick/bikie's moll" comments, strong censure was well justified. 94 However, the earlier allegations in August 1997 were not the bases of the applicant's termination. In September 1997 he was given a final warning in respect of those harassment allegations. 95 He was terminated in December 1997 on the basis of alleged victimisation of Ms Power, his second in charge, who had supported the junior staff's allegations in August 1997. December 1996 96 In December 1996 the applicant was aware that an employee, Ms Bills, had taken exception to comments he had made. He had apologised but also advised his supervisor Mr Street about both incidents in case they went further. A meeting was held on 23 December 1996 with Mr Street and Ms McKee of Human Resources to discuss two allegations by Ms Bills that Human Resources had decided should be pursued. Notes of the meeting were taken by Ms McKee. Those notes show that it was said to Mr Murphy that "I (presumably Ms McKee) stressed that at this point it was a discussion only whereby I would be taking notes to be used in a file note". In a note attached to the relevant file note, the applicant refuted the allegations saying that the staff member in question had apparently mistaken the management and personnel style he had used effectively for over 20 years in the company. 97 On 3 February 1997 Mr Street had discussed with the applicant (after they had returned from holidays) the correct protocol when talking to or managing staff, to ensure there were no sexual harassment implications. That seems to have been the last action taken by the respondent in relation to those complaints. August 1997 Allegations 98 The basis of the final warning given to the applicant on 2 September 1997 referred back to allegations set out in a letter dated 27 August, 1997. Two of the six allegations there contained related to inappropriate touching (one at an out of hours non-company occasion, a baseball game, late in 1996) and the others set out offensive comments of a sexual nature to employees. 99 The applicant categorically denied making some of the comments. In other cases, he accepted making comments, but not in the terms claimed. 100 Ms Dunn described the procedure she and Ms Alison Lowth had adopted in August 1997 to investigate sexual harassment allegations against the applicant made by Ms Liz Campbell and Ms Kathy Stewart on 20 August 1997. On 21 August 1997 Ms Dunn and Ms Lowth met the two complainants and explained the process that would apply to the investigation of their complaints. In the course of that discussion, Ms Dunn advised them that: If the complaints are proven it is more likely to result in a first and final warning. What this means is that it would be explained to Gary that if any victimisation of staff occurs or another complaint is received , then his services would be terminated. (my emphasis). 101 After that meeting, Ms Dunn and Ms Lowth met G. Street, Senior Manager Creditline, the applicant's supervisor, to advise him of the investigation process. On that same day, Ms Dunn, Ms Lowth, and Mr Street met the complainants, the purpose of the meeting being for Mr Street to reassure the complainants that their allegations were being taken seriously. 102 On 22 August, there was a meeting attended by Ms Dunn, Mr Street and the applicant. Steve Close, Area Manager, Sales Consumer was also present at the invitation of the applicant to act as the latter's observer. At that meeting, the applicant was advised of the complaints and asked if he wanted to respond. He did so. At the conclusion of that meeting Ms Dunn said: AGC is now compelled to investigate the complaints. The findings of the investigation will be provided to you when the investigation is finalised. 103 On 25 August, Ms Dunn and Ms Lowth met the complainants to advise them of developments, including the applicant's responses to their allegations. 104 The applicant took special leave from 25 August 1997 to 29 August 1997 so that AGC could investigate the matter fully. This period of special leave was negotiated with the applicant so that he could consult his solicitor. 105 The further progress of the investigation can be seen from the following extracts from Ms Dunn's affidavit: Alison and I commenced investigating Liz's and Kathy's complaints against Gary by interviewing other staff on or about 25 August 1997 and 26 August 1997. In relation to each of the staff members Alison and I interviewed in the course of our investigation into the complaints against Gary, we proceeded by interviewing each staff member in person and taking handwritten notes of the conversations. Following the interview, we prepared a typed record of the discussion that took place at each interview and proceeded to have the various typed file notes signed by Alison, myself and the relevant interviewee. We interviewed 11 other staff members in relation to the complaints that had been made against Gary, each of them on Gary's request. Annexed to this Affidavit at annexures "B" to "L" inclusive are the typed file notes of our various conversations. In each case, that part of the file note that records the discussion that occurred is a true and accurate record of the discussion.; … Not all of the interview discussions provided us with further evidence either in support of, or against, the claims that have been made against Gary. However, Ann Power made comments confirming that Liz had made a complaint to her in relation to Gary's behaviour and that Liz had subsequently confronted Gary about his behaviour with Ann as a witness. Megan Clark also confirmed the "baseball incident"* where Gary was alleged to have been playing with Kathy's hair, which was in a pony tail at the time. On or about 27 August 1997 another meeting was held between myself, Gary and Steve Close (as an observer). A formal letter containing Liz and Kathy's allegations was given to Gary. … Gary told me that he required additional time to speak to his solicitor before responding to the matters put in the letter. I agreed and asked Gary to ring me from home with a suitable time frame. On or about Friday, 29 August 1997 Gary telephoned me …; … On Tuesday, 2 September 1997 a meeting was held to discuss Gary's response to the various allegations. In attendance were myself, Geoff Street, Gary Murphy, and Steve Close (again, as an observer). Gary handed to Geoff and I a letter dated 1 September 1997, which contained his responses. … Geoff and I asked Gary and Steve to leave us alone for 1 hour so that we could read through the letter then discuss the matter fully and reach a decision. Gary and Steve then left us alone. After Gary and Steve had left us alone Geoff and I held a conference telephone call with Chris Georgiou and Trish Richards from AGC's Sydney office. We discussed the allegations that had been raised against Gary and his various responses to them. We also took into account the following factors: … … After taking all of the above matters into account, we decided that on balance, the evidence supported Liz and Kathy's claims that Gary had breached AGC's sexual harassment policy. Because of the serious nature of our finding and Gary's then role as a manager of a large number of staff (approximately 50-60 at the time), we were of the view that Gary should be censured for his conduct. However, we also took into account Gary's long period of service at AGC. Ultimately, we decided that a "final" warning would be appropriate. As a result of our decision, Geoff Street and I prepared a letter to Gary. When Gary returned to my office we handed it to him. … … I recall that on or about 17 September 1997 we met with Gary in my office again to discuss his return to the Creditline department (amongst other things). … 106 * The "baseball incident " was alleged to have taken place late in 1996 out of work hours and at a non-AGC event. Ms Dunn said "we" assumed it was something to do with work. It had been investigated in 1997, although it was alleged to have occurred in 1996. 107 While the procedures set out above would, on the face of it, present a model approach to the investigation of complaints, examination of how they were actually implemented showed up serious flaws. 108 In relation to the August complaints, Ms Dunn said she, indeed later she said "we", had formed the view that the complaints were legitimate even before she had received the applicant's response. She had advised the complainants of that belief before receiving the response and before seeing the file notes of the interviews between Ms Lowth and the various supervisors. 109 Despite saying that she had taken into account a possible "tit for tat" situation by the complainants and the statements made by supervisors, Ms Dunn said "we did not believe" the supervisor who said Ms Stewart told lies because "it was not consistent feedback". "We believed it was fact [from that supervisor] but not in this instance" [i.e. in relation to Ms Stewart's complaint against the applicant]. As to Ms Campbell, "we had nothing to substantiate" that she had been warned for work performance shortly before the allegations were made "other than she had been spoken to in her appraisal and she was given a comment … We knew she had been spoken to" about work performance. 110 On 21 August 1997, even before the applicant had been invited to respond to allegations by Ms Campbell and Ms Stewart, Mr Street had, in a meeting with them, advised them that he was behind them 100 per cent, also commenting that they would not be transferred, but "Gary will be the one who goes." 111 One of the factors taken into account by Mr Street in issuing the final warning to the applicant on 2 September 1997, had been the negative comments the applicant had made against the credibility of Ms Campbell and Ms Stewart after they had made their complaints. The negative comments Mr Street pointed to as substantiating his claim that the applicant had attacked the credibility of the two complainants in August 1997 went to work related issues, not credibility, and were only made in relation to Ms Campbell. Examination of the file notes attached to Ms Dunn's affidavit showed negative comments had been made about the complainants by some of the eleven employees, including supervisors, interviewed in relation to the complaints. Mr Street said he had not seen the documents recording those interviews. 112 Taken to the above statements of interview, Mr Street said that such matters, other than the accusations of lying, (not against the applicant) even if he had known of them, would not really have been relevant to his consideration as to the final warning of 2 September 1997. Despite being strongly pressed by Mr Newall, Mr Street did not concede that he had formed the view as to the applicant's conduct warranting a final warning without being in possession of all the relevant information. 113 Another factor taken into account by Mr Street in issuing the 2 September letter was Ms Dunn's report of a "Strip Tease" picture of Demi Moore and comments made by the applicant to her about it. The decision makers were confused. The formal allegations did not refer to that picture or to its use by the applicant. It was not dealt with by the applicant in his written reply. The actual allegations went to a comment as to a strip tease said to have been made by the applicant to Ms Campbell. 114 Mr Street denied that, in relation to the claims of sexual harassment against the applicant, bad publicity for the company had been a consideration with him. 115 The letter handed to the applicant on 2 September 1997 advised him that: 1. We have determined that your actions are a breach of Australian Guarantee Corporation (AGC) Code of Conduct and the Harassment Policy. 2. Any repeat of this type of action or similar action will result in instant dismissal. 116 Ms Dunn, Mr Georgiou and Mr Street were involved in the drafting of the letter of 27 August 1997 setting out the allegations that eventually led to the above final warning. Reference was made by Ms Dunn in that letter to "the formal counselling session that took place on 23 December 1996." In these proceedings, Ms Dunn accepted that she was not aware of a formal counselling session on 23 December 1996. In making that reference she had taken a meeting between the applicant and Mr Street on 23 December 1996 as being a formal counselling session and acted on that basis in August 1997. Upon examination of Ms McKee's file note it is clear that the meeting on 23 December 1996 was not a formal counselling session. September 1997 complaints (1) Complaints by Ms Power 117 Ms Dunn had had a meeting with Ms Power around 30 September 1997. Ms Power had said she had no work to do, and that the centralising of the administrative and training functions had impacted on her role. She said that the applicant was treating her differently since she had been involved in the investigation of the complaints by Ms Stewart and Ms Campbell. Ms Power perceived that she was being excluded from various meetings the applicant was having with employees subordinate to Ms Power. 118 Ms Dunn had known of the decision to centralise functions after discussion with Mr Street in August, 1997. Advising Ms Power of the effects on her job of that decision would normally be advised to her by Mr Street or the applicant, but Ms Dunn did not know if that had been done between August and the 1 October meeting. 119 There was a meeting with the applicant on 1 October. At that meeting the applicant advised Ms Dunn and Mr Zogbi (attending instead of Mr Street) that he was dealing with employees who would normally report to Ms Power because of her absences due to illness and also, because, as manager of the department, he would always speak to his staff supervisors when they wished or when needed. On 2 October, in response to a request by Ms Dunn, the applicant sent out an e-mail, previously vetted by Ms Dunn, to all supervisors dealing with role responsibilities within his department. The essence of the message in that e-mail was in the final paragraphs: In effect, ALL operational issues for the department (including the After Hours operation,) need to be directed through Anne. In Anne's absence then obviously these will come to me. My responsibilities encompass the overall management of the New Business operation, plus a direct hand in the National Card Processing Centre. Please refer ALL day to day issues outside your own authority to Anne for clarification and when appropriate, a decision. Please discuss if further clarification required. 120 That e-mail appeared to be regarded as resolving the problems Ms Power saw to exist. 121 No disciplinary action was attached to that meeting or its outcome. (2) Rumours conveyed to Mr Georgiou by August complainants 122 One matter particularly dealt with by Mr Georgiou in his affidavit related to counselling he had given to the applicant in September 1997 as to rumours conveyed to Mr Georgiou that the applicant had bragged of "beating the system". The rumours came from Ms Campbell and Ms Stewart who said that they had heard them from other sources within the department. Mr Georgiou could not recall enquiring as to whom those sources might be. He accepted that the comments had been made by the applicant although the applicant had told him that he had heard the rumours and they were not true. 123 The applicant accepted that at a meeting on 17 September 1997, Mr Georgiou had reinforced the warning of 2 September 1997 as being a final warning to be taken seriously. 28 November 1997 Allegations 124 On 28 November 1997 Ms Power requested another meeting to discuss her employment relationship with the applicant. Present at that meeting at the respondent's office in Phillip Street, Sydney were Ms Dunn, Ms Power and Mr Georgiou. Ms Dunn said that that meeting, out of which the 1 December allegations emerged, lasted for two or two and one half hours. Ms Power said it was "brief". Mr Georgiou said one hour. Ms Dunn's file note of the meeting took up a little over half a page. 125 All Mr Georgiou's evidence as to his attendance at the meeting on 28 November with Ms Power and Ms Dunn was given orally. There was no mention of it in his affidavit filed in advance of the proceedings. Events: 1 December 1997 126 Ms Dunn said she had a discussion about the allegations with Mr Street when she returned to Parramatta the following Monday. 127 The oral allegations made by Ms Power against the applicant were reduced to writing by Ms Dunn in a letter dated 1 December 1997 (the 1 December letter): We refer to your recent final warning issued in relation to sexual harassment of certain staff members. In this process you were advised that if there was any further incident of either harassment or victimisation of staff your services with AGC would be terminated. Further information has now been received. AGC is presently considering the circumstances in relation to these incidents and is now in a position to provide you with a right of reply. In order you give you the opportunity to respond and advise your position, the following is an outline of the allegations. Allegations That you have victimised Ann Power, Manager, New Business since her involvement as a witness in the claim of harassment against you. This alleged victimisation has taken the following form: [1] During the investigation of the harassment allegations, Ann asked to speak with you and you aggressively advised her that she could not and proceeded to slam you office door in Ann's face; [2] You changed your OA mail account so that Ann, who was your second in charge and had "surrogate status", was unable to access your Emails in your absence and this surrogacy was given to two staff one of whom was a subordinate of Ann's. [3] That although Ann had advised that she was not interested in being seconded to another team that you approached your peers in Consumer Collections and requested that Ann be considered for secondment out of your department; [4] That you have excluded Ann from meetings with her direct supervisors [sic] that you held; [5] That Robyn Dunn met with you to discuss the fact that since the investigation, Ann's direct reports were bypassing her and reporting to you and she was being excluded from processes as a result. It was only on Robyn's insistence that you sent out an Email reinforcing that all Supervisors were to report to Ann; [6] That having sent out this Email, you continued to meet with Ann's staff without her involvement; [7] That you excluded Ann from an opportunity to give feedback in the recent LSI process and it was only after Robyn Dunn's intervention that you requested Ann's feedback; [8] After her return from illness you did not give Ann a debrief although the new creditline product and process was being introduced that day, but in fact told her there was nothing she needed to know; [9] That you continued to meet with her staff with the door shut without Ann being included; [10] That you have told Ann that you will get her out of the organisation and you would deny this if she raised it. In order for you to submit your response would you kindly report to: Geoff Street and Robyn Dunn Level 12, 32 Phillip Street Parramatta At 12.00am on 2 December 1997. 128 [The allegations were numbered during the course of the proceedings for ease of reference.] 129 Mr Street announced Ms Power had been made redundant to a meeting of supervisors at about 11.30 am on 1 December 1997. At the conclusion of that meeting Mr Street asked the applicant to come with him to Ms Dunn's office. When the applicant arrived at that office he was handed the 1 December letter. 130 The applicant was released from work to go home to consider his reply. His wife, who also worked for AGC, was also allowed to go home. Events: 2 December 1997 131 At this meeting the applicant did have Mr Close present as an observer. (Mr Close had acted as his observer on the previous occasions.) 132 The applicant advised Ms Dunn and Mr Street that he had been unable to talk to his solicitor because the latter had been in court the previous day. At noon, he gave them a 10 page letter in response to those allegations. Noon- 1pm 133 A number of events occurred in the period between noon and 1pm. 134 The applicant handed his 10 page letter in reply to Ms Dunn and Mr Street at noon on 2 December 1997. They had taken 5 to 10 minutes to read it. 135 A copy of the applicant's response was faxed to Mr Georgiou, who already had a copy of the allegations. 136 A conference call, set up the previous afternoon, between Mr Georgiou, Ms Dunn and Mr Street, took place from about 12.15pm. Mr Street said that call took in the vicinity of half an hour. During that conference call, it was said that each point was gone through. They looked at the previous allegations, the confirmations. (It was not clear if "confirmations" were of the previous allegations, or the acceptance by the applicant in his response that certain things had occurred e.g. removal of Ms Power from the E-mail list) 137 Ms Dunn said that at the conclusion of the conference hook up, it had been agreed that all the allegations had been made out, but that was subject to the third allegation being checked further. At the conclusion of the conference hook up it had, in any event, been decided to dismiss the applicant. 138 Ms Dunn had checked with Howard Mathews, the manager mentioned in the applicant's response as to the third allegation, and spoke to him for about five minutes. He had confirmed the applicant's version of events. Ms Dunn had then telephoned Mr Georgiou to advise him that the third allegation was being withdrawn. 139 Mr Georgiou recalled that in the discussion on 2 December 1997, decisions as to the majority of the allegations: boiled down to a determination of believability of one person versus another … and that it was necessary for us to form a view either on the basis of who we can believe and what was more likely or not to have happened … and we proceeded to have a general discussion around those … when the view was formed that weighing up all the information, it appears that more likely than not some of those things would have happened and a decision was taken at that point in time. 140 The conclusion then put by Ms Georgiou to Ms Dunn and Mr Street, and agreed to by them, was that "in this case we have no other option than to dismiss". 141 At about 12.45 pm Ms Dunn said she had dictated the dismissal letter. When typed that was read and signed by Mr Street and Ms Dunn. In another answer, Ms Dunn said she typed the letter of termination herself and showed it to Mr Street. 142 That letter was in the following terms: In relation to your response to our letter of allegation of 1 December, 97. We have now had an opportunity to review our initial allegations and your reply. We wish to now withdraw allegation 3, however all other allegations remain and the claim of victimisation stands. In reference to previous warnings and formal counselling we find your behaviour inappropriate and you have left us no other option then to terminate your employment effective immediately with a payment of four weeks in lieu of notice. Any entitlement will be processed by AGC into your bank account. 143 The contrast with the processes adopted by AGC in relation to the August complaints and with those adopted in relation to the December (Power) complaints could not be more stark. 144 I had thought to set out in detail only two or three of the allegations in order to demonstrate the approach of the three decision makers to their investigation. However, that proposed methodology was not possible in view of the way they went about their task. First Allegation [1] During the investigation of the harassment allegations, Ann asked to speak with you and you aggressively advised her that she could not and proceeded to slam you office door in Ann's face; 145 The applicant refuted this allegation completely, describing "the only incident I recall", citing a witness to it "if this is the incident in question" and concluding that he recalled no further incidents. 146 Ms Dunn said they found the first allegation proved. They had looked at all the allegations and the pattern of behaviour. Ms Dunn said there was no evidence for the door slamming (the first allegation) but she found it proven because of a pattern of behaviour. Taking Ms Power off his e-mail list (the second allegation) had suggested a pattern of behaviour. That was the only evidence they had to find the applicant guilty of that first allegation. Ms Dunn could not recall why they did not speak to Mr Close, the witness put forward by the applicant. 147 Ms Dunn said she and Mr Georgiou had decided that there was a pattern of behaviour. It did not mean that particular allegation (in this case the first) had been proven but the victimisation behaviour had been proven overall. 148 In relation to the first allegation, Mr Georgiou said "we weren't certain about that one". He said that "there was a question as to whether or not the incident in question, the allegations put forward was exactly the same as the date that was made there by Mr Murphy". He later accepted that, on that one, there was no basis on which they could find it proved. However, when one looks to the letter of dismissal handed to the applicant on 2 December 1997 it said that the third allegation was withdrawn, "however all other allegations remain and the claim of victimisation stands". 149 Taken to the first allegation, and the applicant's response to it, Mr Street said "That wasn't the one that concerned us. We suspected it was another time." (my emphasis) He later said he "just suspected it was" but had no information to lead him to that suspicion. Mr Street said he personally did not find that allegation proven, and in his opinion, it formed no part of his decision to dismiss the applicant. 150 Mr Street said he did not have an opinion on the first allegation. Because of other matters he believed there was a pattern of behaviour that was inappropriate. He later said he did find all allegations, except one (that being the third one) substantiated. Specifically as to the first, in the course of cross examination, he said he was relying on Ms Dunn and he did not "know the detail that went on between Ms Dunn and Miss Power in discussing that comment". He did not believe that Mr Georgiou knew something that he did not, but he believed that Ms Dunn did. Ms Dunn had not shared that knowledge with either of them. 151 Mr Georgiou said that the three decision makers were unclear in their minds as to the incident in the first allegation "because of the sequence of the events and it was basically a sequence of events that we had relied on and as a result we moved on from that allegation to the next one". 152 The problem with that approach was that the sequence of allegations was one drawn up by Ms Dunn in consultation with Mr Georgiou. Ms Power said she had not written her concerns down nor had she given notes of them to Ms Dunn. They did not go back to Ms Power to seek further details. Second Allegation [2] You changed your OA mail account so that Ann, who was your second in charge and had "surrogate status", was unable to access your Emails in your absence and this surrogacy was given to two staff one of whom was a subordinate of Ann's. 153 Surrogacy is a system whereby one person can allow another person access his/her E-mail files including all personal files. The applicant said that other surrogates had been made prior to that time, not instead of Ms Power. He said that Ms Power also had a poor grasp of email usage and he referred to specific persons and also "the IT people" who could confirm what he said. 154 In relation to the second allegation the applicant accepted that he did remove Ms Power as a surrogate from his E-mail. He provided a number of reasons, and the sources amongst staff who could verify some of them. The main reason given was that in his opinion, Ms Power, his second in charge was undermining his authority as Manager at every opportunity. On 24 October 1997, the applicant had had a luncheon meeting with Mr Street in order to discuss the difficulties the applicant was having with Ms Power. Those concerns included things being said in the workplace by Ms Power as to the private life of the applicant and his wife, who is also employed by the respondent. The applicant raised with Mr Street, the course of approaching the HR team in order for Ms Power to be counselled. The applicant and Mr Street disagreed as to the exact words used by Mr Street to the applicant at that meeting in relation to a restructure proposal already put by Mr Street to AGC that would have the effect of making Ms Power's position redundant. However, on Mr Street's evidence, he advised the applicant to "hang in there" until the restructure was approved in a couple of weeks. 155 On the basis of the observations made by Mr Street, the applicant did not approach the HR team. Ms Power was made redundant some five of so weeks later. 156 Mr Street said that the applicant had asked him to keep the matters discussed by them as to Ms Power at the October luncheon confidential and do nothing about them. Nothing further had been said up until the December events. 157 Mr Street said that the allegation so far as it went to Mr Murphy giving surrogacy to others at least, was not substantiated. He later accepted that there was not a shred of evidence to connect the removal of Ms Power as a surrogate from the applicant's E-mail with her involvement in the August harassment allegations. There also seemed to be some incomplete proposition by Mr Street that there had been victimisation by the applicant "not informing her by knocking on her door"(presumably a reference to the meeting not attended by Ms Power, the fourth allegation). 158 Ms Dunn said she had it in mind on 2 December that the applicant's wife had raised concerns with Ms Lowth in October 1997 as to gossip spread by Ms Power at that time. She did not recall Mr Street telling her that the applicant had raised that same concern with Mr Street in October 1997. 159 Ms Dunn said she did not accept the applicant's response as to Ms Power's limited ability to use E-mail, but did not check that with the IT people as suggested by the applicant. 160 In relation to the second allegation, Mr Georgiou said they accepted that the applicant had admitted the allegation. He could not recall Mr Street advising him that the applicant had earlier discussed his concerns with him as to the undermining of his authority by Ms Power. They had not gone back to check with Ms Power or with the IT people (as suggested by the applicant), as to the extent of her expertise with E-mail. The critical point in Mr Georgiou's view was that the applicant had acted to remove her from the surrogacy status. 161 Ms Dunn said the decision makers had moved only on the basis that Ms Power had been removed as a surrogate, although not from the E-mail network as such. Ms Dunn said it was not just that the applicant had removed Ms Power from her E-mail surrogacy. "There was a pattern of behaviour of treating her differently after the original allegations". That pattern of behaviour had been established by the matters set out in the ten allegations. 162 AGC has no policy whereby it is compulsory for a manager to have a surrogate. Ms Power remained on the e-mail network so the information she needed to know would flow to her. All she could not do was to delve into all of Mr Murphy's files. 163 Mr Hodgkinson submitted, with reference to lengthy extracts from the transcript, that the only reason left for the applicant to remove Ms Power from his email surrogacy was to pay her back because of her involvement in the earlier harassment allegations. It was his emotional reaction to her involvement. 164 I do not accept that submission that it was the "only reason" left. Contrary to the respondent's submission there was, other than Ms Power's involvement in the harassment allegations, another, and a very understandable reason, why the applicant may have removed Ms Power as a surrogate from his e-mail. 165 In October 1997 the applicant's wife had raised concerns with Ms Lowth from the HR department as to gossip being spread about her by Ms Power at that time. On 24 October 1997 the applicant had raised with Mr Street comments made to other staff by Ms Power that troubled him: the applicant's wife had told Ms Power she was fed up with the applicant having affairs and would like to go and have one of her own; the applicant had affairs with female participants when running training residentials and Megan Clark had been intimidated sexually by him at a training event in Melbourne. 166 In relation to those alleged comments by Ms Power, Mr Georgiou said "I accept that comments may have been made", "we expected that she may have said them" "but we didn't make any judgment about the accuracy or otherwise of those". 167 The three decision makers were not required to make any judgment about the accuracy of those statements made about the applicant. They were, however, required to take the fact that they accepted that such statements had been made by Ms Power into account in their consideration as to reasons advanced by the applicant as to why he removed Ms Power as an e-mail surrogate. 168 The applicant, taken in detailed cross examination to the surrogacy incident, agreed that to treat Ms Power differently was victimisation. The applicant accepted that by taking Ms Power off his surrogacy list he had treated her differently and, though he did not feel it at the time, by so treating her differently was victimising her. "My emotions dictated my actions, I believe." That however was not an admission that he had treated Ms Power differently because of her involvement in the sexual harassment allegations. 169 There seems to have been no understanding evinced by any of the decision makers that the fact that the applicant removed Ms Power from his e-mail surrogacy was, of itself, insufficient to prove victimisation, nor was the fact that he had admitted doing so an admission by him of victimisation. 170 The general allegation against the applicant was one of victimisation as specified in ten separate allegations. In taking the applicant's acceptance that he had removed Ms Power from his computer surrogacy list, for reasons which he set out, the decision makers took a huge leap in logic (or illogic) to decide that (a) the removal was an act of victimisation and (b) the applicant had admitted victimisation. Third Allegation [3] That although Ann had advised that she was not interested in being seconded to another team that you approached your peers in Consumer Collections and requested that Ann be considered for secondment out of your department; 171 This allegation was withdrawn after Mr Mathews, a witness nominated by the applicant, was contacted by Ms Dunn and confirmed the applicant's response. Fourth, Sixth and Ninth Allegations 172 I deal with the fourth, sixth and ninth allegations seriatim because Ms Dunn eventually conceded that they were one and the same allegation. Fourth Allegation [4] That you have excluded Ann from meetings with her direct supervisors [sic] that you held. 173 The applicant refuted this allegation in detail. He mentioned two possible meetings, the first of which Ms Power had declined to attend on the basis of a prior engagement, and a second one which she also declined to attend because she did not want to cancel a luncheon appointment. 174 He advised that the supervisors who attended the meetings could confirm what he said. Mr Street and others could confirm that Ms Power was regularly engaged in closed door discussions with staff. In such cases, where action was needed immediately on an issue, supervisors would come to the applicant for direction. In the period May to November 1997 Ms Power had been absent on some 51 working days, (i.e. in excess of 65% of the available working days), and supervisors during that time and on continuing matters would come to the applicant. He said he had always briefed Ms Power on those issues as they happened. 175 Ms Dunn said that the fourth allegation referred to the period August 1997 until 1 December. Ms Power did not identify particular meetings, but the implication was that it was more than one. Ms Dunn said it had not occurred to her to seek more details. She said "it was more than - it was examples of consistent meetings that were happening. It was a pattern of behaviour, being excluded from any meeting he was having". 176 Ms Dunn accepted that Ms Power had been absent on many days and that at such times, and for a period soon after, supervisors would have needed to talk to the applicant. She accepted that would not be victimisation. 177 Ms Dunn said she accepted as true the applicant's response to the first meeting he detailed. 178 Ms Dunn said she found against the applicant as to the second meeting he described. She accepted Ms Power had not specified any meeting but "we also took into account conversations which I had with Gary where he made it clear he didn't have to involve Ann if he didn't want to". "We found it proven as a balance of behaviour overall" to Ann Power. Ms Dunn agreed that the evidence on which she found this allegation proven was Ms Power's statement and Ms Dunn's earlier conversation in October with the applicant. 179 Mr Georgiou said what the applicant said about the second meeting relating to the new Creditline products was not accepted, because "this was specifically a meeting that Ms Power had referred to" in her verbal allegations made to the Department. Mr Georgiou had heard her make them. "It appears to be an omission on our part" that the applicant was not advised of those particulars. (That claim of a specifically identified meeting was raised for the first time on 19 November 1999, the second and last day on which Mr Georgiou had been giving oral evidence). 180 It was in relation to that particular piece of evidence that Mr Newall had submitted that that evidence had all the hallmarks of being made up on the run and if Mr Georgiou was to be believed, it meant that AGC knew some details about the allegations which Mr Georgiou said were overlooked. Either they knew or the only other alternative was that they did not know it. Mr Georgiou was either mistaken or he tried to make that claim up. If that was so, of course, then Mr Georgiou's evidence was not to be believed. 181 The specifics of that meeting had not been referred to in the 1 December allegations nor in Mr Georgiou's affidavit. They were not referred to in Ms Dunn's file note of the meeting and the evidence is contrary to that of Ms Dunn who said that Ms Power had not specified any meeting. 182 I do not accept Mr Georgiou's evidence on that point. It is quite contrary to the evidence just mentioned. 183 In the same way as had Mr Street, Mr Georgiou also accepted propositions that if he did not check with a named witness, he had accepted what the applicant said as true e.g. the details of Ms Lovett's advice at 11.05 am to the applicant as to the conference being arranged at 11.30 am to discuss Creditline. However, as to that same incident (the fourth allegation) he did not believe the applicant when he said that Ms Power had refused to attend because she had a luncheon appointment at 11.30 am. Mr Georgiou said that what added a degree of non-believability to the applicant's response was that the applicant, as Ms Power's manager, had not told Ms Power to cancel her luncheon engagement and attend the meeting. (One can only speculate as to how the allegation of victimisation would have read, if the applicant had insisted Ms Power cancel that engagement at such short notice). Mr Georgiou did not go back to Ms Power to recheck details with her. 184 Mr Georgiou said the applicant had been found untrue on that point: "there was a question of weighing up facts again .. This was a question with certain allegations here believing one word verses (sic) the other." 185 In the course of cross examination as to the sixth allegation (exclusion of Ms Power from meetings), Mr Georgiou agreed that he should not have any regard to meetings after 2 October in considering the fourth allegation. He could not point to any meetings before 2 October from which Ms Power was excluded by the applicant. He was not aware of specific meetings. "There were suggestions of meetings that Ms Power was excluded [from]". Asked as to what were the meetings from which the applicant had excluded Ms Power, Mr Georgiou said he was not privy to the detail of the information. In the course of discussions "we" formed a view on the basis of information that they [Ms Dunn and Mr Street] provided". Ms Dunn would have details of exact dates. 186 On that last point of Mr Georgiou's, it must be remembered that Mr Street was not present at the meeting of 28 November, and his knowledge as to what had occurred came as a result of a briefing by Ms Dunn on the following Monday. Mr Georgiou had been present. 187 In relation to the fourth allegation Mr Georgiou at first said that "we didn't make a judgment on allegation 4 on the basis of facts provided by Mr Murphy as such". They were unsure about whether the allegation was the case or not. He did not know why the decision makers had not checked with the supervisor whom the applicant said could confirm his response. It was "absolutely incorrect" of counsel for the applicant to suggest that they had not checked because even before they received the applicant's response they had decided that he would be dismissed no matter what he said. 188 He explained that they had not checked with the supervisor on this point because: A. We made a judgment on the basis of weighing up information available to us right throughout the course of the investigations with the harassment and subsequent victimisation allegations. And we came down to a situation in some situations where we had in one case an allegation admitted, in another case Miss Dunn was present and was able to verify it and confirm. In another case it was withdrawn and in another lot where we had essentially his word against hers and we were of the view that there was pockets of staff in one camp, pockets of staff in another camp in that department. So it was a question of how much are we going to be able to obtain by continuing to talk to the people down there because we did talk to individuals as part of the initial investigation, not this investigation here, so it was a weighing up of the information provided and making a judgment on balancing as to which view would be believed. 189 Mr Georgiou said that the fourth allegation was one that he found substantiated. He accepted that it was one of the allegations that had led to the applicant losing his job but "we made a judgment on balance" "that that allegation was proven". 190 In considering the fourth allegation Mr Street did not, in relation to the exclusion from meetings issue, take into account the large number of days Ms Power had been absent. Mr Street said that they had taken into account the days Ms Power was present, because she was the direct report to the applicant and controlled the credit line area. Cutting her out of E-mail cut her out of the communication channels to inform herself of what had happened when she had been away. 191 As to that second meeting, Mr Street said the applicant had excluded Ms Power because although the applicant had first become aware at 11.05 am that a meeting was to be held at 11.30 am, he had not told her of it until 11.15 am or 11.20 am. (The applicant said she was having closed door discussions). Mr Street found that allegation proven because if Ms Power had known of the meeting earlier, she might have rearranged her engagement. 192 The conversations relied upon by Ms Dunn to find against the applicant as to the second meeting he put forward as a possible one to be the subject of allegations by Ms Power, had taken place in October 1997, when he had said he did not need to include Ms Power in every meeting he had. After further discussion with Ms Dunn at that time, the applicant had agreed to include her. The three decision makers were unable to provide specifics of any meeting Ms Power had said she was excluded from after that time. Sixth Allegation [6] That having sent out this Email, you continued to meet with Ann's staff without her involvement; 193 The E-mail, which is the reference point for this allegation, was that stated in the fifth allegation to have been sent to all supervisors on 2 October 1997. 194 The applicant refuted this allegation, referring to Ms Power's absence for more than 63% of the available working days, a statement accepted by Ms Dunn. 195 Ms Dunn acknowledged that the sixth allegation was the same as the fourth allegation. She had drafted the allegations. The fact that the sixth allegation duplicated the fourth had been missed. She found the sixth allegation proven on the same basis as she had found the fourth allegation proven. 196 As already mentioned, Mr Georgiou relied upon the sequence of events, a sequence in fact decided by Ms Dunn and himself, to determine their responses to the applicant's replies to the 1 December letter. 197 The problem with that approach was further demonstrated by Mr Georgiou's evidence in relation to the sixth and ninth allegations. Taken to the sixth and ninth allegations, Mr Georgiou said they were two separate allegations. He could not say whether they referred to two different sets of meetings. He did not "believe the allegations were imprecise in totality". He admitted, in relation to those allegations, that "it cannot be necessarily understood they are two different meetings". However, "I would not have put separate allegations in one matter to Mr Murphy". They must be different sets of meetings. They followed a sequence in the allegations. Mr Georgiou finally agreed that "not specifically on their own", was there anything in the sixth and ninth allegations to indicate they referred to separate meetings. 198 Mr Georgiou accepted that the sixth allegation could only refer to meetings which occurred after 5 October 1997. After being taken to both the fourth and the ninth allegations, he also accepted that the sixth allegation dealt with the period between 2 October 1997 and Ms Power's absence on sick leave. He could not specifically advise of a single meeting from which Ms Power was excluded in that period. He could not recall either Mr Street of Ms Dunn telling him on 2 December of any meeting they knew of. He found the allegation proven. 199 Mr Georgiou at first explained why he had found the sixth allegation proven: A. The allegation was not in relation to meetings that were held whilst she was away from leave. The allegations were necessary [sic] for having returned from leave a pattern of being excluded from meetings that was advised. So again it came down to a question of believability of one side verses [sic] the other and things taken into consideration would have been, for example, a person was absent for that period of time and needed work done in her absence then there would be an expectation of more regular meetings to bring her up to speed and take on some of the work that was done in her absence. Q. Being the allegation that he didn't conduct meetings? A. No, that she was excluded. Q. Which means that when he held them she was excluded? A. Correct. 200 Later he said he found it proven on the basis that Ms Power had said so, but not only that. They had gone through a process of weighing up the information available to them to determine believability on the information provided by the two parties. Immediately following that statement he accepted that he had found the sixth allegation proven on the basis of Ms Power having said it happened and there was no other evidence to support that particular allegation. The applicant had denied it. 201 In relation to the sixth allegation, Mr Street said he decided that that had been proven on advice from Ms Dunn that it was founded. Ninth Allegation [9] That you continued to meet with her staff with the door shut without Ann being included; 202 According to Ms Dunn, Ms Power implied there were several meetings she had been excluded from. Ms Power had talked about occasions but Ms Dunn did not have specific dates. They were not recorded in her file note. Ms Dunn said she had the above evidence from Ms Power, and the conversation Ms Dunn had had with the applicant in October, when he had said he did not have to include Ms Power. 203 She said it was only after he was advised in October that he did need to include Ms Power, that he then agreed to include her. Ms Dunn had found proven the allegation that the applicant excluded Ms Power from meetings after October on the basis that before he agreed in October to include her, he had said he did not need to. 204 The applicant in response to the ninth allegation said he could only repeat what he had said about the sixth allegation. He described the only incident he could remember, which involved the manager call centre, Graham Rogers, on 17 or 18 November. (That burden on the applicant in having to dredge up possible incidents from his memory, strikingly demonstrates the unfairness of putting allegations with such a paucity of detail). Graham Rogers, although available, was not spoken to by Ms Dunn. 205 Ms Dunn said it was only the feedback they had from Ms Power that suggested the applicant's response to the ninth allegation was untrue. 206 Ms Dunn later accepted that the ninth allegation was the same as the fourth and the sixth allegations. 207 Mr Georgiou was unable to identify any specific meeting from which Ms Power had been excluded after her return from sick leave. He found the allegation proven, on balance. 208 Mr Street found the ninth allegation substantiated on advice from Ms Dunn. He did not know if the sixth and the ninth allegations related to the same or different meetings, but found both allegations proven separately. Fifth Allegation 209 This allegation was: [5] That Robyn Dunn met with you to discuss the fact that since the investigation, Ann's direct reports were bypassing her and reporting to you and she was being excluded from processes as a result. It was only on Robyn's insistence that you sent out an Email reinforcing that all Supervisors were to report to Ann; 210 The applicant's response had given details of a specific meeting on 20 October 1997 with Ms Dunn and Mr Garry Zogbi (relieving in Mr Street's position), that meeting having been called at the instance of Ms Dunn in relation to concerns raised with her by Ms Power. Those concerns, as specified in the allegation, were that since the investigation in August, Ms Power had been excluded from processes because her direct reports were reporting to the applicant and bypassing her. 211 Mr Georgiou could not recall, but believed the fifth allegation was one made by Ms Power. Mr Street did not know whether that was a complaint by Ms Power or a matter that Ms Dunn had put into the list of allegations. 212 In terminating the applicant on 2 December Ms Dunn had taken into account the fact that she had spoken to him on 1 October. Ms Dunn said that there had been no feedback after that meeting to lead to disciplining the applicant until the feedback from Ms Power on 28 November that her reports had been bypassing her to report to the applicant. 213 Ms Dunn said the only evidence that Ms Power's reports were bypassing her was the feedback from Ms Power on 28 November. There was no reference in Ms Dunn's notes that at the meeting of 28 November, Ms Power had said that her reports were bypassing her and speaking directly to the applicant. Ms Dunn had not checked with the supervisors concerned. However, elsewhere in her evidence, Ms Dunn said that this allegation was one she had herself made and was not one raised by Ms Power on 28 November. 214 Ms Dunn said she still believed that the allegation should be found made out, because she had not seen a change of behaviour in the applicant since the 1 October meeting. "He was not actively having his supervisors go to her," which was, in any event, not the allegation. On that point I ask, also, how would she know that, not being the applicant's day to day supervisor? 215 This allegation related back to the September complaints set our earlier in this judgment. The meeting on 1 October in relation to those complaints was not a disciplinary meeting or a counselling session. Those complaints had been resolved in the e-mail sent on 2 October 1997 by the applicant to all supervisors in his department. No disciplinary action had been taken. Seventh Allegation [7] That you excluded Ann from an opportunity to give feedback in the recent LSI process and it was only after Robyn Dunn's intervention that you requested Ann's feedback; 216 As I understand the evidence, the LSI questionnaires concerned an assessment by certain level subordinates of the performance of their direct manager, that being, in this case, the applicant. 217 The applicant said that the LSI documentation from the HR department had had a "must return" deadline of 19 September, a date when Ms Power was absent on sick leave. 218 The applicant thought that because he only had three immediate reports under his structure, it would have been impractical to hand the questionnaire out to only three staff. He said that, with Ms Power not being available he had issued it to six named staff whom he thought had a good understanding of his management style. (On that point Ms Dunn said that the applicant only had one immediate report, that being Ms Power.) 219 The applicant said he had first raised this issue and the issue of Ms Power's management skills with Ms Dunn and Mr Zogbi at a meeting on 21 October 1997. 220 Ms Dunn accepted that the fact that the applicant had not provided Ms Power with the LSI documents while she was away on sick leave was not victimisation. The applicant had done nothing wrong in returning the documentation in accordance with the deadline set by the HR department (her department), but not sending it to Ms Power contributed to his termination. 221 Mr Georgiou accepted that the LSI questionnaires were sent out and had a return date, during a period when Ms Power was away on leave. Mr Georgiou said the problem was not that the applicant did not send a questionnaire to Ms Power when she was on sick leave. The problem was that "in the context of what was happening and the issues with his department, there could have been an attempt to discuss the matter with Ms Dunn before Ms Dunn raised it with him about what to do in relation to Ann being absent". He said that the applicant's action had "helped form a view" that victimisation had been proved. 222 When the subject was raised a month later (by Ms Dunn according to the allegations, by the applicant according to his response), Ms Power was given a questionnaire to fill in and return. In order for the questionnaire to be given to Ms Power, HR had to agree to extend the "return by" date. Ms Dunn had confirmed with Mr Georgiou in the conversation of 2 December that she had raised the matter first. He did not go back to the applicant to check further: "Ms Dunn is the HR manager, she works directly for me, I had no reason to doubt her". 223 Mr Georgiou found the allegation proven, and to be an example of victimisation. 224 The applicant was not disciplined in October 1997. In December Mr Street found this matter substantiated as proving victimisation, and it contributed to his decision to dismiss the applicant. He said he would have sent out the questionnaire to a person away from work because of illness. 225 Neither Mr Georgiou nor Mr Street had checked with Mr Zogbi as to his recollection of events. 226 The decision makers found the allegation proven. The applicant "had an opportunity to still include her. When she returned to work, we had to ask him to do that before he would". Eighth Allegation [8] After her return from illness you did not give Ann a debrief although the new creditline product and process was being introduced that day, but in fact told her there was nothing she needed to know; 227 The applicant denied this allegation in considerable detail with reference to times he spoke to Ms Power, witnesses present, a diary note, Ms Power's later approach to the new procedures and to an earlier discussion with Mr Street on the subject of the illness of Ms Power. 228 Ms Dunn said she, Mr Street and Mr Georgiou found this allegation in whole proven. The allegation that the applicant had told Ms Power there was nothing she needed to know was not recorded in Ms Dunn's file note of the 28 November meeting nor had she mentioned it in her affidavit. It did not appear in Mr Georgiou's affidavit. The applicant denied saying it. In his response he said that there was in fact quite a lot Ms Power needed to know. 229 He said he did explain to Ms Power on the day of her return what his plans were to bring her up to speed and she was happy with that, and indeed, that part of the conversation ended because she spotted her salary increase letter, read it, did not like it, and left abruptly. (Ms Power had not, contrary to the applicant's recommendation received a bonus and she went off to see HR.) 230 Ms Dunn had taken Ms Power's word against that of the applicant that he had told Ms Power that there was nothing she needed to know. Her acceptance "would take into consideration all the issues and the pattern of behaviour". "The pattern of behaviour" was also evidence for the applicant slamming the door in Ms Power's face (first allegation). Ms Dunn said she had no actual evidence of the applicant's slamming the door. She had Ms Power's word and she found that allegation proven as part of a pattern of behaviour shown by the other allegations including the allegation that the applicant had told Ms Power "there is nothing you need to know" (eighth allegation). Ms Dunn found the allegation that the applicant said to Ms Power "there is nothing you need to know" proven on the basis that the applicant had, amongst other things, slammed the door in Ms Power's face. Ms Dunn said it was true she had no evidence for either allegation except Ms Power's word. 231 Ms Dunn accepted that the applicant's approach, as stated in his response, was reasonable, in view of the pressures on the other staff on the Monday of Ms Power's return to work and of the applicant's concern for her well being, to advise her how he would bring her up to date at a slower pace. 232 Mr Street had not mentioned to Ms Dunn on 2 December that the whole issue about Ms Power's return to work from illness had been discussed with him by the applicant in October 1997. Mr Street, after some equivocation accepted that the applicant did arrange to debrief Ms Power on that day. 233 In relation to the eighth allegation it was not clear from Mr Street's answers in cross examination as to the two parts of that allegation, whether he had found either proven specifically, but he did find them proven generally in accordance with the letter of termination: all allegations other than the third one stood. 234 Taken through the applicant's detailed response to this allegation, with it all in dispute as to what Ms Power said, Mr Georgiou did not feel there was a need to go back to Ms Power to check those differences. Essentially in his mind the truth or otherwise of this allegation turned on the believability of the two parties. To determine that involved a weighing up of all the information and a judgment made on the balance of the information provided as to who was believable. He decided against the applicant. Tenth Allegation [10] That you have told Ann that you will get her out of the organisation and you would deny this if she raised it. 235 The applicant completely refuted the statement, setting out over almost two pages, details of the background against which Ms Power's comments should be considered. They included a meeting on 20 November in which he thought Ms Power was "baiting" him, that meeting noted in his diary and mentioned to Mr Street; comments to two named supervisors by Ms Power around 20 November that placed Mr Street in an invidious position; untrue and defamatory comments made by Ms Power about the personal lives of the applicant and his wife and of alleged sexual harassment of Ms Clark. The latter matters had been raised with Mr Street in a meeting on 24 October. At least two of the four people named (and possibly all of them because he had not formally asked the other two) were prepared to confirm formally that Ms Power had made to them the comments he set out. 236 Ms Dunn said the tenth allegation had come from Ms Power at the meeting on 28 November. It was not recorded in her file note of that meeting, nor in her affidavit. 237 Ms Dunn found the tenth allegation proven, based on her acceptance of what Ms Power said. She knew that Mr Street and Mr Georgiou had also found it proven. 238 Mr Georgiou said additional information as to the tenth allegation could have been useful. He said he had heard Ms Power make the allegation and "I can't recall the exact conversation but that we would have asked for more information, we wouldn't specifically have taken her word without any checks". He could not recall whether Ms Power was able to provide him with any more information "but I would imagine that she would have been, yes". "There may have been more information that we omitted inadvertently" to tell the applicant. Though he could not recall specifics, he would imagine that "we" would have asked Ms Power for more information. 239 Mr Georgiou said he could not recall whether Mr Street had confirmed the meeting of 24 October, but: "We would have discussed the entire response so it would have been more likely than not that it would have been discussed, yes." Q. You proceeded on the basis that Mr Murphy had said these things to Mr Street back in October, presumably? A. Yes. 240 Further to the applicant's response and his allegation against Ms Power of defamatory comments, Mr Georgiou said: Q. You had no reason to believe that any of the things Ms Power said about Mr Murphy were true, did you, that his wife wanted to have an affair? A. We excluded that. It was nothing to do with the allegations raised here, we excluded that. … Q. The fact that Ms Power had, it seems, made those allegations obviously put her believability in real question, didn't it? A. These investigations, these comments that were made here? Q. Yes? A. Were raised with us for the first time here and they were not part of any formal investigation requested. Q. You said they were raised for the first time with you here, in fact they were raised with Mr Street back in October, weren't they? A. Yes, according to this. Q. Mr Street didn't tell you anything different, did he? A. I don't believe so. … Q. On pages 9 and 10 of his response you recall that I was asking you about Mr Murphy's suggestion to you that you assessed Ms Power's credit by having regard to some other allegations she made? A. Yes. Q. You accepted, didn't you, when you had read Mr Murphy's letter that Ms Power had in fact said those things about him? A. I accepted that these would have been discussed with Mr Street. I accept that comments may have been made but we did not investigate these particular issues. Q. I understand that, but my question is that you accept that it is a matter of fact Ms Power had said those things about Mr Murphy? A. We expected that she may have said them. Q. Mr Murphy on the next page indicated to you that he could supply the names of witnesses to matters if you wished? A. Mm. Q. You didn't ask him for those names? A. No. Q. That is because I take it you accepted that Ms Power had said those things? A. We accepted that they may have been said, yes. Q. You accepted that she did say them otherwise you would have checked, yes? A. Yes, but we didn't make any judgment about the accuracy or otherwise of those. 241 Mr Georgiou understood that the applicant was raising those matters with the three decision makers so as to deal with the question of Ms Power's truthfulness. He also knew that in some of these matters it was only Ms Power's word against that of the applicant. He agreed that in making a decision as to whom to believe, it would have been a relevant matter to decide if Ms Power was a person who told the truth or not. 242 The three decision makers had accepted that Ms Power may have made the comments and allegations involving other staff as alleged by the applicant. Mr Georgiou said they had no way of determining whether they were true or not. He then accepted they could have checked in at least one instance with a witness named by the applicant, but "we chose not to". 243 Mr Street said that at the time he thought it might have been wise to have more details of the tenth allegation but had no answer to why he had not sought them. He relied on information supplied by HR. He accepted Mr Newall's suggestion that it was very difficult for the applicant to deal with an allegation completely unspecified in time and place. Approach of the Decision Makers 244 The information the decision makers had came from the following sources: 1 Ms Power's allegations; 2 the applicant's admissions as to certain events in his response of 2 December; 3 the applicant's attempts in his December response to guess which incidents might be referred to in the December letter and to answer them; and 4 Ms Dunn's recollection of conversations over previous months with the applicant and with other employees. 245 Although the decision makers in evidence accepted that where allegations were made which depended upon one person's word as against another, such allegations could not be accepted solely on the basis of the word of the person making the allegation, that was not in fact the course of action they adopted. 246 They accepted completely what Ms Power said, except when forced, having checked with a witness and found her allegation to be untrue, to withdraw the third allegation. No further checks were made after that. 247 The complete acceptance of Ms Power's word was made in the face of their claims in these proceedings that they recognised that they could not accept any allegation made by Ms Power on her word alone. 248 The fact that the third allegation was not true did not make any of the decision makers wonder whether some other allegations, which involved the applicant's word against Ms Power, might also not be true. Ms Dunn said that was "because I had been personally involved in discussions with him that had suggested that some of those things had been occurring". 249 Mr Street said it would not have been a relevant matter for him to consider, when weighing up the applicant's word against that of Ms Power's, whether either of them was a person who had been in the practice of not telling the truth. Where it had been a question of Ms Power's word against Mr Murphy's he relied on the information supplied by Ms Dunn. 250 Mr Georgiou said: A. No, because whilst that allegation that was proved in Murphy's favour when we investigated the information it appears that meetings and discussions took place but it was not as she believed as the instigation of Mr Murphy and therefore it wasn't something totally dreamt up, it was some information that she wasn't aware of. Q. But Miss Power had made, in respect to that matter, the allegation that Mr Murphy had actively sought to move her out of the section. She said that didn't she? A. That's correct Q. And you knew after your investigation that that was not true? A. Yes but she referred specifically to the conversations about collections role, collections manager Q. But that was her assertion wasn't it? A. That's correct. Q. And so she applied an untrue assertion about Mr Murphy hadn't she? A. Yes. 251 In other words, there had been discussions as Ms Power claimed, but it was quite immaterial to their consideration that she was completely wrong in her claim as to the applicant's involvement in those discussions. To play down as they did any weakness in what Ms Power said was utterly the converse of how they approached the explanations given by the applicant. The general approach of the three decision makers was to ignore almost everything the applicant said, except when they used it as an admission. 252 In these proceedings, an overall examination of the evidence of Mr Georgiou, Ms Dunn and Mr Street shows that no matter what the applicant put forward in his defence an interpretation adverse to him would be placed on it. For instance, it did not matter that the LSI questionnaires (seventh allegation) had a deadline date for return while Ms Power was absent on sick leave. According to Mr Georgiou the applicant should have discussed the matter with Ms Dunn before Ms Dunn raised it with him (a sequence rejected by the applicant) about what to do in relation to Ms Power being absent. By not doing so that therefore was victimisation of Ms Power. Mr Street said he would have sent the questionnaire to a person on sick leave. The applicant did not. That therefore was victimisation of Ms Power. 253 The LSI questionnaire issue was accepted by Mr Street as not being a disciplinary matter when raised with the applicant in October 1997. There was no further action by the applicant or, it seems, by Ms Dunn after that date, but in December it was found proved as sustaining an allegation of victimisation and sufficient to support termination of employment. 254 Mr Georgiou had discussed the allegations with Ms Dunn prior to her writing the letter of 1 December 1997 and he did not think that letter required any more precision. The lack of specificity in the allegations led to the completely unfair result that the applicant, in trying to counter them, was forced into the position of volunteering information against himself. 255 Even that information was not enough for the three decision makers. 256 Despite the fact that the applicant put forward one incident that the first allegation might relate to, and an explanation for it, Mr Street said that that one was not the one that concerned them, but "we suspected it was another time". On the basis of that suspicion, unsupported by any detail whatsoever, they found the first allegation proved. 257 The applicant had suggested other reasons for his conduct towards Ms Power and given the names of people who could support his assertions. Ms Dunn said they chose not to talk to those people because they did not think they needed to. She said there would be no need to speak to such people as the one named as witness to the door slamming incident when the decision makers thought they had enough information already. In the next answer she accepted that earlier she had accepted she had absolutely no evidence the slamming door incident occurred, and in the following answer then said they believed they did have enough information to show it had occurred. 258 Mr Street said that the decision not to check with any witnesses suggested by the applicant in his response even before that response had been received, was based on the fact that they were reconvening at 1 o'clock and intended to give the applicant a decision at that time. They had no intention of speaking to other people, including Ms Power. Neither Ms Dunn nor Mr Street made any attempt to contact Ms Power after she left AGC, although Ms Dunn had asked if she could be contacted, to get further details of the allegations. 259 It appeared from his answers in cross examination that Mr Street did not check some matters raised by the applicant in his response, because he accepted them as being true, e.g. Ms Power's absences. However, on other matters e.g. the allegations by the applicant that things said to other staff members by Ms Power were adverse to him, he did not form an opinion but did not follow up the persons the applicant said could confirm what he said. 260 There was the one exception to the non follow up of witnesses suggested by the applicant. On 2 December, between noon and 1pm, Ms Dunn said she knew she had Mr Mathews there and she could, as she did, clarify the third allegation with him. If Ms Dunn could check with Mr Mathews, who substantiated the applicant's response, she could have checked with other persons nominated by the applicant in his defence. That would probably have meant that no decision could be made on the allegations before the time of 1 pm when the applicant had been told to return. No reasonable explanation was advanced by any of the decision makers as to why that could not have been done, their refuge to direct questions on that (and other issues) being such mantras as a "pattern of behaviour" had been shown, or, as Mr Georgiou said on a number of occasions, a view formed after "weighing up all the information", those mantras often being the only response when pressed in cross-examination for specifics as to the basis on which a decision adverse to the applicant was taken by them. 261 Specifically on that point, in answer to a question as to the tenth allegation, Mr Georgiou said: Q. That is not my question. Did you tell us why you didn't trouble to check whether they were true or not because that would have told you something important about Ms Power's believability, wouldn't it? A. During the course of the whole investigation, and I'm not talking about the raising of these things but the harassment allegations before hand and so forth, there was a clear division of camps servicing in the department. That led us to believe that further investigation of the matters was not going to get to the bottom of issues. 262 Mr Georgiou's answer suggests that the decision makers had little confidence in the integrity of other employees to deal truthfully, to the best of their ability, with questions put to them. As a reason for not following up witnesses suggested by the applicant it is completely unacceptable. The answer also does not explain why they sought and accepted the evidence of Mr Matthews as to the third allegation. 263 The "clear division of camps" referred to by Mr Georgiou did not seem to be evident in the interviews as to the August 1997 allegations. At that time, eleven employees, (10 female, 1 male) had been interviewed by Ms Dunn and Ms Lowth at the request of the applicant. Only one of the eleven, Ms Power, said she had seen inappropriate behaviour by the applicant. The interviews contained some very positive statements in favour of the applicant (as well as some luke warm ones) and with a similar range of responses in relation to the two complainants, though in the latter case there were some comments that one would have expected would raise particular concerns with an investigator, together with suggestions as to work related issues causing friction. 264 Further to the August interviews, Ms Power in these proceedings denied that she became antagonistic to the applicant during the time she was his 2IC. It was totally incorrect to say that she believed it was a bad move to put the applicant in charge of New Business. When it was put to her that on 25 August 1997, Ms Dunn had recorded her as making that statement, she could not recall having done so. She also could not recall unfavourable comments about Ms Stewart recorded by Ms Dunn as having been made by her. 265 Ms Dunn said that the three decision makers had given proper consideration to the applicant's ten page written defence in the period between noon and one o'clock on 2 December. However, she agreed that in not speaking to the witnesses the applicant had suggested she had not considered all the circumstances as required by the AGC guidelines. 266 The applicant in his reply not only referred Ms Dunn and Mr Street to other employees who could support his claims, but also referred to matters in Mr Street's own personal knowledge as to difficulties caused to Mr Street by Ms Power's untrue comments to two supervisors. Mr Street said he did not connect the matters. He had not formed any opinion as to the comments the applicant alleged Ms Power had made to other staff members about the applicant and his wife, or as to the applicant's inappropriate conduct in training areas. 267 In respect of the tenth allegation, amongst the alleged untrue and defamatory comments said by the applicant to have been made by Ms Power, was one relating to events involving Megan Clark. Ms Clark did not give evidence in these proceedings. She had been interviewed by Ms Dunn and Ms Lowth on 25 August 1997 in relation to the Campbell/Stewart harassment allegations. She was advised that anything said in the room would be strictly confidential and was not to be discussed outside of it. Asked by Ms Dunn "have you witnessed any behaviours from Gary that would be inappropriate, I understand that this is your perception?", Ms Clark replied: "Honestly, no. I don't tend to see a great deal, my desk is up in the corner". 268 However, in examination in chief on 19 November 1999, Ms Dunn was taken to the applicant's reference to and denial of, an alleged incident involving Megan Clark. Ms Dunn said she was aware of that incident, because: A. When we were investigating the allegations prior to this one Megan Clark was interviewed as part of that process and, in that interview, she discussed having gone on a training program with Mr Murphy and being quite fearful of leaving her room, but she asked that it not be formalised and not be raised for personal reasons. Her partner did not know about it and she did not want him to. 269 That evidence shows up the unfairness of the processes applied to the applicant. He had put Megan Clark forward as a person who could substantiate his claims. On 1 or 2 December 1997, he was not faced with Ms Dunn's alleged knowledge of the incident. He was not faced with Ms Clark. 270 Ms Dunn's involvement in the process against the applicant was more properly that of a witness than of a decision maker. She relied on understandings and perceptions she had had of prior involvement with the applicant. Those understandings and perceptions were never put to the applicant for clarification or comment. They were presumably the basis for Mr Street's comments that Ms Dunn knew things but had not shared that knowledge with either himself or Mr Georgiou. 271 The difficulty inherent in Ms Dunn investigating the December complaints and then being one of the final decision makers is also exemplified in her approach to the second allegation. She recalled a previous discussion with the applicant which, to her recollection, meant that his response was different in one detail from that discussion, that being the length of time Kim Williams had been given surrogacy. She did not believe she needed to go back to the applicant to check out that detail. 272 The evidence that the decision makers thought connected the applicant's conduct to Ms Power's involvement in the harassment allegations, was the applicant's admission as to the second allegation; Ms Dunn's version of events; acceptance of Ms Dunn's word for the fifth allegation, together with, in the words of Mr Georgiou "general information that was available during the investigation of the harassment matters and so forth leading up to the victimisation that gave us a view, on weighing up all the information, that more likely than not these things occurred". The timing of the events was also evidence of the connection. 273 Ms Dunn said the evidence that the applicant's conduct towards Ms Power was related to her involvement in the sexual harassment complaints, was "because the behaviour had commenced after the investigation had started". That was the only reason of which she was aware. There was also the discussion she had had with the applicant in October, in which he had said he did not have to include Ms Power in meetings. 274 Mr Georgiou accepted that the applicant's admission of the second allegation and Ms Dunn's view that she had had to ask the applicant to send out the LSI questionnaire (the seventh allegation) did not of themselves prove that those events happened because of Ms Power's involvement in the harassment proceedings. However, he said that taken with the other factors mentioned they proved the allegation. 275 There were a number of factors known to one or other of the decision makers which were available to be considered by them in coming to their decision, but which do not appear to have been the subject of any proper consideration by them. 276 Mr Street accepted that the applicant had discussed with him concerns as to Ms Power in November 1997. (I do not regard the fact that the applicant did not take any formal action against Ms Power in relation to the alleged comments she was making in October about the applicant and his wife as being adverse to the applicant, as appeared to be suggested in the respondent's submissions. He had raised them with Mr Street, and in the light of that conversation, understood that in a relatively short time, the problem would be resolved otherwise.) 277 Ms Dunn knew that Ms Power had expressed the view that it had been a bad move to put the applicant in charge of New Business. Ms Dunn recognised that at least some of the reductions in work, complained about by Ms Power and on which Ms Power based a claim that the applicant was treating her differently, resulted from the centralisation of certain administrative and training functions and had reduced Ms Power's work load. Ms Dunn was not aware as to whether anyone had advised Ms Power between August and October as to the decision to centralise and how it had affected her work. Ms Dunn accepted that the failure to do so could have led Ms Power to the perception Mr Murphy was reducing the work. However, in these proceedings, Ms Dunn did not accept that the reason Ms Power had no work to do was totally because of the restructure, although the position had been made redundant eight weeks later. 278 Mr Georgiou, Mr Street and Ms Dunn accepted that if nothing else had occurred, the applicant would have remained in his employment but for the allegations by Ms Power. Mr Georgiou said "we made a [final] decision on the basis of all the allegations and the weighing up of all the facts". That statement, as to "weighing up of all the facts" is, on the evidence of all three decision makers, manifestly incorrect. 279 In these proceedings it was conceded that one of those allegations had been repeated thrice over. Despite that, the investigators had assumed that each of the allegations had referred to separate incidents, and they had found each of those separate incidents proved. The import of that failure to recognise that one allegation had been repeated three times, and found proven as three separate allegations, was that it reinforced the approach of the three decision makers that the actions of the applicant as alleged reflected "a pattern of behaviour". 280 Ms Dunn said that at the 28 November meeting, Ms Power had also indicated her perception that she was being treated "differently" by other supervisors who worked closely with the applicant, in particular Lyn Gordon and Margaret Newson. Ms Dunn said those allegations could not be substantiated and no action was taken against them. There were no details as to the investigation that led to the exoneration of the supervisors named by Ms Power as treating her similarly to the applicant. Consideration - Procedural Fairness/Unfairness 281 The respondent submitted that the applicant could not deny that he had not asked for an observer at the 1 December meeting. The applicant had not suggested he needed more than 24 hours to respond to the 1 December letter. Those facts it was said did not support the lack of procedural fairness argued for by the applicant. 282 The applicant was not being evasive, as was claimed by the respondent, in his answers to questions in cross examination, as to whether he had asked for an observer to be present at the meeting on 1 December. His statement that he was not given the opportunity to ask for one was manifestly true when the timing and duration of that "meeting", if it could be so called, is considered. 283 The applicant said that he sought an extended time to respond to the allegations in order to speak to his solicitor. Ms Dunn and Mr Street denied that the applicant had made any such request, Ms Dunn denying that she had told the applicant that there would not be an extension of time in any circumstances. However, they had both said in the 1 December letter that a response was required by noon the next day. 284 In respect of the August allegations, the applicant had been granted a number of days on leave to get legal advice. He had been shocked when handed the 1 December letter, but, in the light of his previous experience, was more likely to have asked for an extension of time to get legal advice than not. 285 In my view, his recollection is more likely to have been the correct one, and I make a finding to that effect. 286 The applicant's responses to the August allegations were drafted with the assistance of a solicitor. If the applicant had been able to consult a solicitor before answering the 1 December letter he would have been told to tell AGC that he needed to get specifics as to the time, place, date and persons involved before he could even attempt to answer the allegations. As it was, the applicant said in oral evidence that in his reply to the December letter he had provided all the information that, at that particular time, in his state of mind, he could gather and muster. He accepted Mr Hodgkinson's proposition that since then he had not suggested that there was additional information that he could have, or ought to have presented. That acceptance by the applicant does not take away from the unfairness inherent in the lack of specificity and detail in the December letter. 287 The paucity of detail as to the allegations set out in the 1 December letter is obvious. The respondent gave no specifics of the allegations as to places, times or dates. Mr Hodgkinson accepted, at least with respect to some of those allegations, that there was a difficulty in pin pointing the time when they were alleged to have occurred. A date of commencement of the alleged acts of victimisation against Ms Power could be inferred: "since her involvement as a witness in the claim of harassment against you." It was common ground between the parties that in this case for there to be victimisation the actions allegedly taken by the applicant had to be dated after August 1997, the applicant contending that it would be after 22 August 1997, the date the applicant was told that Ms Power supported certain harassment allegations against him. Dates in relation to the LSI questionnaires were known to the applicant (even if he could not remember them exactly). 288 The applicant had been left, in a period of less than 24 hours, to put the clues together to try to answer those allegations. He denied them in a ten page letter dated 1 December 1997. 289 In relation to two of the allegations, the applicant answered them on the basis "the only incident I recall…"(allegation (1)), and "in relation to this allegation, I can only assume it refers to an incident on the 17th October 1997" (allegation (3) ). The applicant completely refuted allegation no. (10) saying he had "never made any such comment to Anne of anyone else". 290 With respect to allegations numbered (1), (2), (3), (4), (5), (7), (8), and (9) the applicant provided the names of persons, or departments (the HR) who could support what he was saying. As to allegation no (6) he listed dates which showed Ms Powers absence for 63% of available days, which dates could have been checked against available documentation such as wages records or Ms Power's own personnel file. 291 It was said in Wilson and Department of Education and Training [2000] NSW IR Comm 20 (unreported; Walton J, Vice President; Kavanagh J; Bishop C; 99/1735, 21/3/00 at par 74) in relation to proceedings brought under s 84 of the 1996 Act, that "a denial of procedural fairness in the termination of employment will plainly be relevant to determining whether or not a dismissal was harsh, unjust or unreasonable". 292 In my view, it is also relevant in the determination as to whether a contract of employment impugned under s 105 which does not prevent a denial of procedural fairness, is unfair, harsh or unconscionable in terms of s 105(a). The extent of that relevance will depend upon the overall circumstances of the termination. 293 The applicant has made out his claims as to procedural unfairness. Insofar as that unfairness was not prevented by his contract of employment that contract was unfair. Consideration - AGC Guidelines on Dismissal 294 The AGC's guidelines on dismissals requires that : Dismissal All terminations of employment must comply with the 'two levels up' principle (i.e. recommended by the employee's manager and subsequently approved by the manager's manager). In all instances, the contemplated termination must be referred to state/Head Office Human Resources prior to any action being taken. 295 It is earlier provided as a general guideline that a decision to dismiss an employee for unacceptable behaviour (as in this case) must be approved by Human Resources Management (or higher level management). It is also stated that any dismissal that may have legal involvement is to be referred to the Chief Manager, Human Resources, Head Office. 296 The applicant's termination was based on claimed victimisation of a subordinate. 297 The respondent's guidelines dealing with harassment, separate from the dismissal guidelines, are positive and detailed. They state that it is the responsibility of all managers/supervisors to make sure the workplace is free from harassment. In most cases, the complaint would be handled by either the relevant manager or supervisor or the Human Resources Manager. If an employee feels uncomfortable taking an initial approach to his/her manager or Human Resources Manager, he/she can call Head Office Human Resources anonymously and enquire as to an appropriate person to refer to. That may have the effect of cutting out of the investigation process either a manager or a manager's manager or both. 298 Although the harassment guidelines state that disciplinary measures imposed on the harasser may include dismissal, there does not seem to be a referral back to the termination guidelines. 299 The general dismissal policy seems to hand over to the HR section only after the employee's manager has recommended termination and that recommendation has been approved by the manager's manager. 300 It would seem that Mr Street was the applicant's manager. Mr Street did not know if either he or Ms Dunn was senior to the other. In any event, Ms Dunn was involved as HR manager, not as manager of the applicant in the ordinary work hierarchy. Mr Georgiou was senior to Ms Dunn. A Mr Sinclair, who was mentioned as being Mr Street's manager, and whom, it would seem, would be the "two levels up" manager, did not give evidence as to any involvement in the processes leading to termination. 301 The referral to Mr Georgiou, on my reading of the dismissal guidelines, should have been the third step in the dismissal process, not the second, nor indeed the first, as occurred here, Mr Georgiou having also been involved in the 28 November meeting with Ms Power as to her complaints. 302 Although the decision makers claimed to be aware of the AGC policy on employment policy, including its guidelines as to termination, and to have taken that policy into account in their consideration of the allegations against the applicant, it is clear from their evidence that that was not so. For instance, Mr Georgiou at first said there was no written AGC dismissal policy that specifically said length of service was to be considered in weighing up decisions to dismiss. Taken soon after to that document, he later said that at no time had he said that the three decision makers did not consider length of service. That was despite the fact that he was not aware, until it was put to him by Mr Newall in cross examination, that the applicant was above the age of 45 at the date of termination and so, under the policy provisions, he ought to have been paid a minimum of at least five weeks notice. 303 Mr Georgiou said that, in terms of AGC's values, it would be unfair to the applicant if the company's own policy on termination was not followed. However, it would not necessarily be unfair to an employee if an element of it was omitted, if in general the spirit and the principle of the policy was applied. 304 Mr Georgiou accepted that he was bound by AGC's guidelines on dismissals, but he did not agree that failing to speak to witnesses nominated by the applicant he had not, as he was required to do by the guidelines in finding the allegations proven, considered all the circumstances relating to those allegations. Taken to the first allegation, where he had not spoken to the witness put forward by the applicant he said: NEWALL: Q. Do you say to me that in the context of that allegation all the circumstances had been considered? A. As I explained previously, there was the weighing up of the information that was provided there to determine an overall view, and it was a question of fairness given the entire process that we had been following through, including the full investigation that had been carried read [sic] out regarding the previous harassment and the final warning given subsequently and so forth. 305 He finally agreed that, in relation to that allegation he had not considered all the available circumstances. 306 Mr Street accepted that, although he was not intimately familiar with AGC's written guidelines on dismissals, or aware of its content as to offering an employee both substantive and procedural fairness, or aware of the matters he was required to consider in any dismissal, he was bound to apply it. 307 It was Ms Dunn who told Mr Street, incorrectly, that the applicant should be paid four weeks pay in lieu of notice. He had not been aware of the provisions of the company policy (guidelines) as to any particular periods of notice. 308 The applicant was paid in lieu of notice on the understanding of Ms Dunn and Mr Georgiou that such a course of action was appropriate. In these proceedings, Ms Dunn said that the applicant had been incorrectly paid in lieu of notice because it was dismissal based on misconduct. The AGC guidelines as to length of notice and payment did not apply in such circumstances. Whatever the three of them intended the payment to reflect, it was incorrect and did not reflect a knowledge of the respondent's termination policy: no notice and salary paid only to time of dismissal if summary dismissal was involved, or, if not summary dismissal, incorrect length of notice and payment for an employee aged over 45 years. (As already noted that belief of Ms Dunn's was not adopted by the respondent in these proceedings.) 309 The evidence in this case shows how vitally necessary it was for the manager's manager, in accordance with the dismissal guidelines, to have been brought into the process undertaken as to the applicant. Both Mr Georgiou and Ms Dunn had been very closely involved in the primary process of getting Ms Power's complaints. Ms Dunn should not have been included as one of the decision makers or at least not without the opportunity having been provided to the applicant to answer her claims as to what he said in discussions but were not documented by her file note. 310 It would not be expected that the respondent's investigators would examine the allegations in the same way as would a prosecutor or a tribunal. However, one would expect that they would exercise some discipline as to fairness in their approach. It would be inevitable that the internal investigators would have personal knowledge of the persons involved and would utilise that knowledge. However, the person against whom the allegations are made should have the opportunity for full discussion that would bring such knowledge, especially when used adversely against him, into the open, and, if necessary, countered. 311 Mr Hodgkinson submitted that, in order to terminate an employee's services, the employer's suspicion did not have to be established to the extent that would be required in an administrative tribunal. It was merely that the opportunity must be provided to the employee to be heard and the employer must provide such information that would direct the employee's mind to the allegations. 312 That opportunity to be heard has to be a real opportunity and not a token one. The employee has the right to expect that when termination policies are in existence and it is held out to him by the existence of those policies that any termination of his contract of employment, would have to take account of those policies, that the implementation of those policies would present a genuine opportunity for him to be heard as to the accusations made against him. 313 I find it difficult to see where even the most token lip service was paid to the respondent's dismissal policy, the three decision makers appearing to have, despite their evidence, little actual knowledge of that policy. 314 The unfairness already visited upon the applicant by the lack of detail by which his mind could be directed as to the allegations, as considered in various parts of this judgment, was compounded by the unfairness of the lack of reference to the dismissals policy. 315 As I read the dismissal guidelines one objective of the guidelines, e.g. the "two levels up" principle and the mandatory referral to Human Resources of all decisions to terminate, is to bring to bear an independent mind on each decision to dismiss an employee. Such an independent mind was not brought to bear on the decision to terminate the services of the applicant. One check on the unfairness or otherwise of termination, implicitly at least held out to an employee as being provided to him/her by the respondent, was either dropped out of the system, or may indeed have not even existed when the dismissal and harassment policies interacted. Furthermore, victimisation is a complex legal concept. The circumstances were such as to cry out for imput from the respondent's legal advisers. 316 The contract was unfair in that it left the matter of the investigation into, and determination of, the allegation of victimisation against the applicant in the hands of three persons who, on the evidence, did not have the necessary expertise to deal with that particular allegation on a properly informed basis. 317 On that point, the Court is not in a position to decide whether or not any allegations by Ms Power as to victimisation were true or not. The Court is in the position the three decision makers should have realised they were in. Those allegations as they stood were devoid of the detail that would have provided a secure base on which to move into an investigation. 318 The contract of employment was unfair and harsh in that it did not have provisions in place to ensure that the applicant received the procedural and substantive fairness in relation to the termination of his employment, that the respondent's dismissal policy, on paper, demanded he should receive. Overall Consideration 319 The relevant provisions of the Industrial Relations Act 1996 as to unfair contracts are set out below: 105 Definitions In this Part: contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument. unfair contract means a contract: (a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or (c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) that is designed to, or does, avoid the provisions of an industrial instrument. Note . The jurisdiction of the Commission under this Part is exercisable only by the Commission in Court Session. Division 2 Unfair contracts may be declared void or varied 106 Power of the Commission to declare contracts void or varied (1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract. (2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason. (3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time. (4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force. (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case. 320 Mr Hodgkinson said that the applicant had the opportunity to disprove the allegations against him in these proceedings but did not do so. He did not call the people he had nominated in his response to the 1 December letter. 321 These proceedings are not reinstatement proceedings under s 84. These proceedings involve an application made pursuant to ss 105 and 106 in relation to an allegedly unfair contract, which unfairness it was said was evidenced by unfair conduct allowed by it that resulted in the applicant's loss of his job because the respondent had acted on non-proven allegations. It was not up to the applicant to disprove them in these proceedings. The difference between the relief available pursuant to s 84 of the 1996 Act as to unfair dismissals and that available pursuant to s 106 as to unfair contracts, has been considered recently by a Full Bench of this Commission in Court Session (Wright J, President, Walton J, Vice President and Hungerford J) in Beahan v Bush Boake Allen Australia Limited [(1999) 93 IR 1 at 35]: What emerges from the above authorities, we think, is the now settled view that s 106 (as with the previous s 88F of the 1940 Act and s 275 of the 1991 Act) is directed to an impugned contract of employment, whether existing or terminated, as to the fairness of its express or implied terms. Such unfairness will depend upon the facts of each particular case by focusing attention on the contractual relationship between a particular employer and employee and where the unfairness may arise from the terms of the contract itself, the surrounding circumstances and/or the manner of performance or operation of the contract. The section, we emphasise, is not concerned with re-establishing an employment relationship which has ended nor with compensating an employee for the loss of his employment contract. In other words, the section is properly concerned with the fairness of the terms of a contract of employment in its various respects and, if relevantly found to be unfair, to provide remedial relief by avoiding or varying the terms of that contract and to order the payment of money in connection with any contract so avoided or varied as is considered just in the circumstances of the case. 322 The issue for the Court to decide is whether the contract of employment which allowed the applicant's services to be terminated in the circumstances of the allegations made is or is not unfair in terms of s 105, and if the answer is that it is unfair, what relief should be provided in accordance with s 106. 323 The applicant's contract of employment with the respondent was terminated on the basis that he had victimised Ann Power, Manager, New Business, because of her involvement in August 1997 as a witness in the claims of harassment by Ms Campbell and Ms Stewart against the applicant. That victimisation was alleged to have been taken the form set out in ten separate allegations. 324 Mr Hodgkinson spent considerable time in his submissions, contending by reference to the evidence that the respondent could not trust the applicant nor rely on his integrity because of the applicant's willingness to lie and to mislead the respondent and the court in relation to earlier episodes of alleged harassment. 325 In these proceedings, the applicant said he had to accept that in answering the allegations in that manner he had misled the investigators but said that was not intentional. His answers to the August allegations were based on solicitor's advice: "just answer the question, deal with the question, don't embellish it." 326 It appears that AGC is relying on confirmation in these proceedings of an attitude: that of the applicant to put a gloss on a situation, to reply literally and within narrow boundaries etc, in order to say that it cannot trust him. 327 Those submissions would have relevance if what was sought by the applicant was reinstatement. That is not the case. 328 However, if those submissions are advanced to justify the approach of the three decision makers in paying minimal regard to the applicant's defence to the 1 December letter and their decision not to follow up witnesses suggested by him, then I do not accept them. 329 It is not sufficient for the respondent to adopt the approach that, just because it believed the applicant had misled it previously, it would not only not give any credence or consideration to what he personally had to say in his letter of 1 December, but also that no witnesses suggested by him would be approached. The injustice of that approach was demonstrated by the fact that in the only instance where the decision makers followed up an incident with a witness suggested by the applicant, that witness substantiated the applicant's explanation. 330 Mr Hodgkinson submitted that it has been accepted in many cases that an employer can proceed upon a well founded suspicion. The key words in that submission are "well founded". The examination by the employer should, even on the most relaxed standards of proof and fairness, have at least caused the three decision makers to pause for thought and, if nothing else, caused them to follow up matters with witnesses proposed by the applicant. 331 The overwhelming impression one gets from their explanations and their actions is one of panic. 332 In comparison with what happened in August 1997, the respondent reacted to the 28 November meeting with extra-ordinary haste. That may in part be explained by the evidence of Mr Georgiou. He said that at the meeting on 28 November 1997, Ms Power had said that she knew that there were some discussions between Mr Murphy and Mr Street about the possibility of restructuring the organisation to enable her to be made redundant. She felt that was perhaps part of the victimisation. "She indicated that if there was any truth to that, given the way she was feeling about the way she was going (sic) treated, she requested whether or not that could actually occur". Ms Power was actually made redundant on 1 December 1997, the next working day, that redundancy having been recommended by Mr Street at least two months earlier as a part of a restructure of that department. 333 At the same time on 1 December 1997 that Ms Power was told that under the restructure she had to go, she was told that the respondent would be putting the allegations she had made to Mr Murphy. 334 Ms Dunn at par 54 of her affidavit had said: 54 In accordance with Ann's complaint, Geoff Street and I decided to investigate the allegations she had made. We were concerned that if her allegations were true it would expose AGC to a claim for victimisation, in addition to any claims that Kathy and/or Liz may bring. 335 She was taken to that paragraph in re-examination and then said that a possible claim against AGC was only one concern among others. 336 Although there was some suggestion by Mr Georgiou that the decision at 1 pm on 2 December could have been that further time was needed to examine the applicant's response, I think the course of events and the actions of the three decision makers belied that suggestion. Indeed, until the applicant's response was handed to Ms Dunn and Mr Street at noon on 2 December, they had no idea as to the extent of any reply the applicant might make. Before even reading that reply, they had told the applicant to come back in one hour. It was simply not possible that the applicant's detailed 10 page response, with reference to the witnesses nominated could have been properly dealt with in that one hour. 337 Putting aside the fact that one allegation had been multiplied by three, there are other indications of haste. The fourth allegation presumably meant to say that the applicant had excluded Ms Power from meetings with staff whom she directly supervised, a presumption supported by reference to the duplicate sixth and ninth allegations. The parties have indeed acted on that presumption, but the framing of that allegation is a further indication of panic in the respondent's approach to Ms Power's claims. 338 The errors in the termination letter as to previous warnings (plural) and the amount of payment in lieu of notice are further indications of the haste that informed the actions of the decision makers. 339 As I have already found: (i) The applicant has made out his claims as to procedural unfairness. Insofar as that unfairness was not prevented by his contract of employment that contract was unfair. (ii) The contract of employment was unfair and harsh in that it did not have provisions in place to ensure that the applicant received the procedural and substantive fairness in relation to the termination of his employment, that the respondent's dismissal policy, on paper, demanded he should receive. 340 I find that the respondent did not show that the applicant's employment was ended for cause. I do not need, therefore, to consider those submissions of the respondent that proposed that the Court would not intervene as to the term of notice or otherwise where cause had been established. 341 I find that the contract which did not prevent termination of the applicant, in the circumstances in which it occurred was harsh, was unjust and was unreasonable in terms of s 105(a). 342 One objective of Divisions 1 and 2 of Part 9 of Chapter 2 of the 1996 Act is restitution to the position the applicant would have been in had the particular contract not been unfair. 343 In this case it was uncontested that if the applicant had not been found guilty of victimising Ms Powers, he would have remained in employment with the respondent. In this day and age it cannot be taken for granted that although the applicant had 24 years service with the respondent that he would have remained with it until the normal retirement age. 344 However, the result of a seriously flawed investigation, if what had happened could even be dignified by that term, was that the applicant at the age of 48, an age at which it is notoriously difficult to start afresh, had to seek new employment with the stigma of victimisation firmly in place. 345 In all the circumstances, a contract of employment which provided for a period of notice of four weeks, or of payment in lieu (even if that payment had taken account of the applicant's total remuneration package) was manifestly unfair. 346 In relation to possible mitigation, I do not see it necessary to do anything in relation to the moneys "mistakenly" paid, but simply let them stand without taking them further into account. Nor do I find appropriate in all the circumstances of this case to take into account moneys earned by the applicant during the twelve months after the termination. 347 The Court orders that the contract of employment between the applicant and the respondent shall be varied to include, as from 1 November 1997, the following terms: (a) termination of employment shall not be harsh, unjust or unreasonable. For the purpose of this clause termination of employment shall include termination with or without notice; (b) upon termination of employment for any reason the Respondent shall give to the Applicant one years notice of termination or payment in lieu of such notice of termination. (c) for the purpose of (b) above payment in lieu of notice shall be calculated by reference to the total value of all benefits that the Applicant would have received during the notice period. 348 Within 21 days of this judgment, the applicant is directed to draw up, in consultation with the respondent, draft orders that reflect the findings in this judgment and to file and serve those orders. 349 The applicant acceded to the request of the respondent that the question of interest be put into the same category as to that of costs i.e. the question be reserved for further consideration, and if necessary submissions, depending upon the terms of this judgment. 350 The parties are to advise the Court if they wish to be heard further on the issues of interest and costs. ******************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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