Industrial Relations Commission of New South Wales CITATION: Antonic and Roads and Traffic Authority [2005] NSWIRComm 344 APPLICANT Charles Antonic PARTIES: RESPONDENT Roads and Traffic Authority FILE NUMBER(S): 6555 of 2004 CORAM: Sams DP Permanent demotion of RTA driving examiner - disciplinary investigation - allegations of improper conduct - whether allegations proven - conflicting evidence - breach of trust - breach of Code of Conduct - whether disciplinary process unfair - whether demotion constitutes an unfair dismissal - relationship to other Acts and the Award - jurisdiction of the Commission. CATCHWORDS: Held, applicant's employment governed by "suite" of arrangements - contract of employment permitted demotion - contract of employment not broken by demotion - Award provided appropriate relief - demotion open to the respondent - demotion not a dismissal for the purposes of Pt 6 ch 2 of the Act - no jurisdiction of the Commission - matter considered on merits - evidence of complainants accepted - applicant's denials not credible - no issue of procedural unfairness - applicant's conduct grossly improper, breach of trust and breach of Code of Conduct - decision of respondent to demote the applicant not disturbed - application dismissed for want of jurisdiction and on merits. Industrial Relations Act 1996 Transport Administration Act 1988 Industrial and Employee Relations Act 1994 (SA) LEGISLATION CITED: AWARDS Crown Employees (Roads and Traffic Authority of NSW - Salaried Staff Conditions of Employment) Award 331 IG 1202 Crown Employees (Public Sector Salaries January 2002) Award 334 IG 1 Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia (1999) 90 IR 211 Boo Hwa Chan v Christmas Island Administration, AIRC [Print S1443] Polites SDP, 2 December 1999 Clark v Pittwater RSL Club Ltd (1998) 84 IR 309 Elizabeth Gorczyca v RMIT University, AIRC [PR922414] Full Bench, 12 September 2002 Hermann v Qantas Airways Limited, AIRC [PR903096] Whelan C, 3 April 2001 CASES CITED: Hosemans v New South Wales Police (No 3) [2005] NSWIRComm 161 Stephen Metcalfe v State Transit Authority of New South Wales [2000] NSWIRComm 212 HEARING DATES: 07/25/2005; 07/28/2005 DATE OF JUDGMENT: 09/28/2005 APPLICANT Mr C McElroy, Solicitor Marsdens Law Group LEGAL REPRESENTATIVES: RESPONDENT Mr S Meehan of counsel LAWYERS Blake Dawson Waldron JUDGMENT: - 39 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : SAMS DP 28 September 2005 Matter No IRC 6555 of 2004 Charles Antonic and Roads and Traffic Authority Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 344 1 Mr Charles Antonic ('the applicant') was a driving examiner employed by the Roads and Traffic Authority (RTA) ('the respondent') from January 2002 to October 2004. Following an extensive disciplinary investigation, the applicant was permanently demoted to a Registry Services Officer, Non Driver Testing on 13 October 2004. This demotion was a consequence of allegations of inappropriate conduct by the applicant towards young female driving test candidates in September 2003. The details of the allegations were as follows: 1. That on 11 September 2003 while conducting a driving test you made comments of a flirtatious, provocative and unwelcome nature including: a. "A nice looking lady like you" b. "Don't come too close, I might kiss you" 2. That on 19 September 2003 while conducting a driving test you made comments of a provocative and unwelcome nature including: a. "We could make love in the car", b. "Just relax and take your time. Imagine I'm your boyfriend and you're just taking me for a drive. I wish I were your boyfriend. He's very lucky. Wow, you are absolutely gorgeous." c. "You're such a good looking girl, I'm sorry if I won't be able to keep my eyes off you. I can't help it you are attractive, I know I won't be able to keep them off you." d. "Just relax and breathe. I know I could help you relax. I know I could help you relax. I could give you a lot of pleasure. We could make love in the car." e. "Do you wear green? That would look great with your hair. I think you would look good in black. Do you wear black?" f. "Really you're such a good-looking girl. Wow." 3. That on 19 September 2003 you bashed on the passenger window of another vehicle and screamed "Fucking moron" at its driver. You also yelled more abuse at the driver when they got out of the vehicle. 4. That on 19 September 2003 while conducting another driving test you made comments of a provocative and unwelcome nature including: a. "I would tell you to take off your top but it's not very appropriate, is it." 5. That on 19 September 2003, during a driving test you made inappropriate comments to an RTA customer regarding your wife stating "I could never work at Padstow because my wife would have a close eye on me and I am a naughty boy at work." 6. That on 19 September 2003 you made comments of a provocative, unwelcome and sexual nature including statements to the effect: a. "Just shut down the car as if you were going inside with me and we were going to make out". b. "I don't bite and if I do, I won't bite hard. Can I bite you?" c. "You are a beautiful girl and beautiful girls like you don't need to be nervous." d. "Do you want to have sex with me?" 7. That on 29 September 2003 you made comments of a provocative, unwelcome and sexual nature including comments to the effect: a. "I believe last time we went inside to make out. Maybe this time it will be for a longer amount of time. 8. That on 29 September 2003 you massaged the leg of the driver testing applicant; 9. That on 29 September 2003 you stated to that applicant (Allegation 8) that you could lose your job because of that action (massaging the applicant's leg). 2 Throughout the disciplinary inquiry and these unfair dismissal proceedings, the applicant strenuously denied all the allegations. He insisted that the three female complainants had made up the allegations and, in any event, the disciplinary process he was subject to, was unfair. 3 As a consequence of his demotion, the applicant claimed he was unfairly dismissed from his position as a driving examiner and, as a result, had suffered a significant loss of income. He sought to remedy his demotion by seeking reinstatement to his former position, pursuant to the provisions of Pt 6 ch 2 of the Industrial Relations Act 1996 ("the Act"). 4 This case raises some interesting jurisdictional questions. Did the applicant's demotion constitute a dismissal such as to enliven the Commission's unfair dismissal jurisdiction? If the answer to this question is 'yes', then was his dismissal harsh, unjust or unreasonable and, if so, should he be reinstated to his former position? Obviously, if the answer to the first question is 'no', then it becomes unnecessary to consider the later questions. THE EVIDENCE For the applicant 5 The applicant received a letter from the Registry Services Operations Manager, Michael Randall on 24 November 2003 in the following terms: Allegations of Harassment and Discrimination I have received allegations concerning your behaviour whilst undertaking driving tests at Hurstville Motor Registry. The allegations relate to harassment and discrimination and I view these matters seriously. Therefore, I have determined that you are not to undertake any further driving duties at Hurstville Motor Registry or any other motor registry, whilst these allegations are fully investigated. May I remind you that you are not permitted to discuss this matter with any members of the public or any RTA staff member. You will be given every opportunity to fully respond to these allegations. If you have any concerns, please contact me on 4228 2651. Michael Randall Registry Services Operations Manager 6 On 22 April 2004, the applicant received a further letter directing him to attend a disciplinary interview on 27 April 2004. This letter outlined the allegations (as detailed in par 1) and included statements from the various complainants. The applicant attended the disciplinary meeting in the company of Mr Les Royan and a PSA representative, Mr Brian Turner. The interview was recorded. The applicant denied each and every one of the allegations made against him. (In oral evidence, the applicant said it was unfair that he should receive a direction on the Thursday before a long weekend to attend a disciplinary interview on the following Tuesday.) 7 On 17 August 2004, in a hand delivered letter, the applicant was informed that the respondent considered the allegations had been proven. The respondent proposed the disciplinary action of demotion. The applicant was offered a further seven days in which to put any submission in response. 8 On 23 August, the applicant inquired of Ms Emelia Cvetkovic, Manager, Workplace Conduct, as to the existence of a statement made by a driving instructor, Mr Joe Scerri, in relation to one of the complainants. He asked for the statement, but his request was denied. 9 The applicant duly responded to the 17 August letter by stating inter alia, that he had "cogently refuted all the allegations" against him. He requested reasons for the respondent's findings and complained about not being provided with Mr Scerri's statement. 10 The applicant also raised another procedural issue. He claimed that in an informal meeting with the RTA in January 2004, the notes taken by management did not accurately reflect what was said in the meeting. The notes were later revised and provided to the applicant. 11 The applicant claimed the following further matters as demonstrating procedural unfairness: - Mr Scerri's statement totally contradicted the statement of one of the complainants. - The applicant did not receive the complainants' statements until he was directed to attend the disciplinary interview. This left him no time to prepare for the interview or seek advice. - In November 2003, the applicant was directed not to speak to any member of staff or the public about the allegations. - The respondent should have interviewed other driving instructors, but didn't do so. Mr Scerri was only interviewed after the disciplinary hearing, and not before. In respect to one complaint, a Mr Tony Stallone would have known where a particular vehicle had been parked at the relevant time. 12 In cross examination, the applicant accepted that at the time of these alleged incidents, he was well aware of the respondent's Code of Conduct. He further conceded that if the allegations were true, his conduct would constitute a breach of the Code, constitute an improper use of his position, a breach of public trust and amount to conduct which would bring the respondent into disrepute. 13 The applicant said that as a consequence of his demotion he had lost about $59.62 per week. He further claimed that since his demotion, he had not been offered ongoing training in respect to the Code of Conduct. He would be prepared to undertake such training, if it was required. The allegations 14 Ms Haley Marett was nineteen years of age when she applied to book her driving test on or about 5 September 2003. When she approached the counter at the RTA she had the following conversation with the applicant: ... I said to the man words to the effect of: I want to go for my Ps He said words to the effect of: Well, you can't do it now. You need to book it I then said: I'm going to be so nervous, I hate tests! He said: I'll be instructing you, don't worry, you'll do fine. If it helps you we can listen to the radio or talk or we could make love in the back seat of the car I was surprised by his comment. I thought he was joking. He then told me what I needed to bring to my test and I left the Registry. 15 In oral evidence, Ms Marett said that the applicant was behind the counter and there was a barrier between them with a hole in the middle, so both could be heard. She had no difficulty hearing the applicant. There was no one else close by. 16 Ms Marett reiterated that at the time she didn't think twice about the applicant's comment, as she thought it was a joke. She didn't believe the applicant was propositioning her for sex. However, she told her Dad and her boyfriend what had happened immediately after she went home. 17 On 19 September 2003, when Ms Marett took her driving test, the applicant was her examiner. She failed this test. Ms Marett deposed to the following conversations during the test: I turned on the ignition and we waited for a few moments while the engine warmed up. Charles then said in a matter of fact voice: You're such a good looking girl. I'm sorry if I won't be able to keep my eyes off you. I can't help it, you are very attractive And then, once again, emphatically: I know I won't be able to keep them off you I said nothing in response because I didn't know what to say. Charles then asked me to pull out and take the first right. I drove a few metres down the road. Chares said to me, again in a matter of fact manner: Just relax and breathe. I know I could help you relax. I could give you a lot of pleasure. We could make love in the car Just after he said this, he then said: OK, turn right here I just said, "OK". I was so shocked and felt so uncomfortable by what Charles had said to me that I turned into the wrong lane into the path of oncoming traffic. Charles grabbed the wheel, so that we just missed colliding with another car. Charles asked me to pull over and stop the car for a moment. We were stopped on the side of the road for a few moments during which time I tried to regain my composure. I was really disappointed because I knew I had made a mistake that meant I would fail my driving test. Charles then said: OK, pull back out I put my blinker on and pulled out. After doing this, I said: Oh and I've got my lucky green ring in my bag too... That was a stupid mistake. I then turned left and shortly after, Charles said to me: Do you like green? I said: Yes He said: Do you wear green? He didn't wait for me to answer, but said: That would look great with your hair. I think you would look good in black, do you wear black? I just said: No, I don't Charles was speaking in a conversational manner and I was extremely uncomfortable by this stage. I had turned off the main street into a back street. I was wearing a short skirt that day because it was very hot. I could see Charles was looking at my legs and I was concerned that he was going to touch me or ask me to pull over and stop the car. He then said again: Really, you are such a good looking girl. Wow! .... 18 Ms Marett said that when they returned to the Registry, there was no car parking spots outside the Registry. The applicant directed her to park in an adjacent undercover car park. When she parked the car, the applicant just stared at her. She felt scared and uncomfortable because the car park was dark. 19 Ms Marett said she spoke to her father about the test and typed up a statement of what had occurred on both the 5 and 19 September. She was concerned that the RTA might think she was complaining because she had failed her test. However, she did so for two reasons; the RTA should know what the applicant had said to her and she felt she had not been given a "fair go" during the test and shouldn't have to pay for a second test. 20 Ms Marett took her statement to the Hurstville Registry. Ms Marett said when she handed her statement to the RTA, the officer told her to write in that she didn't believe she should have to pay for a second test. She was contacted by the RTA about a month later. 21 Ms Marett later requested a female examiner for a second test, which she passed. Ms Marett said she wasn't sufficiently concerned by the applicant's earlier comment behind the counter as to not want him to take her for the first test. She thought it was a joke. 22 In oral evidence, Ms Marett was shown photographs of the Registry and adjoining streets. She explained her earlier evidence of the applicant telling her to turn right. This had occurred after they turned left into Park Road. 23 Ms Marett confirmed she was very nervous when she went for the test. She agreed she had made a big mistake when she turned into the one way street and failed to stay in her lane. However, the applicant had made an inappropriate comment to her just before this happened. While she had been trying to concentrate, she had felt uncomfortable and surprised. This was the reason why she felt she had not been given a "fair go" and should not have to pay for a second test. 24 Ms Marett said the applicant had made a number of other inappropriate comments to her. She denied the applicant asked her to cover up because she was wearing a short skirt. Ms Marett said she mentioned the green ring in her bag because when she gets nervous she speaks a lot and says "silly" things. 25 Ms Marett said that when the test had finished, she didn't immediately mention to her father what had happened. She later told him when they got home. She was upset at the time, felt disgusted and harassed and just wanted to go home. 26 Ms Marett acknowledged that her statement to the RTA was not as accurate as her affidavit for these proceedings. She could recall more now about the incident than she had written about at the time. This was because there had been other personal issues affecting her at the time. Ms Marett said she was aware that other people had made similar complaints about the applicant. However, she had not spoken to anyone else about the matter. Applicant's response to allegations made by Ms Marett 27 The applicant said that when Ms Marett's test began he instructed her to turn left into Park Road from Woodville Street. It was not possible to turn right into Park Road as it was a one way street. The applicant said that within two minutes of the test, Ms Marett had made an error sufficient for her to fail the test. She had drifted from her lane while turning into Park Road. After the test, the applicant explained to Ms Marett why she had failed. She replied that he had wrecked her whole weekend. She asked how she would get home. 28 The applicant said that he recalled saying to Ms Marett during the test, words to the effect "You should cover up, your skirt has come up." Otherwise, the applicant denied all the words attributed to him by Ms Marett. 29 In oral evidence, he described Ms Marett's allegations as "total fabrications." He confirmed he did not know Ms Marett before her driving exam. 30 Ms Jacqueline Smith was seventeen years of age when she went for her driving test at Hurstville Motor Registry. It was the second test she had taken. 31 Ms Smith described the incident when a ute reversed towards her car. She said that when she walked with the applicant towards the car, he asked if she was nervous. She said "yes". Her car was parked about fifty metres from the nearest one way street. 32 Ms Smith said that when she moved to leave the kerb, the ute started to reverse. She beeped the horn. The applicant bashed the passenger's side window and shouted "You fucking moron. Stop!" She beeped the horn again and the ute stopped, then moved slightly forward. As it did so, the applicant opened the passenger door and stepped out with his left leg and shouted "You fucking idiot, fuck off!" Ms Smith said a lady in the car behind her heard all this and said "What are you doing? The poor girl". Ms Smith then commenced the driving test and as she turned left she drifted into the other lane. The applicant grabbed the steering wheel and corrected her. 33 Further on in the test, the applicant asked her questions about how old she was, where she went to school, what she wanted to do when she left school and if she had brothers and sisters? 34 Ms Smith deposed to the following conversations with the applicant during her test: The sun was coming into the car on the driver's side of the vehicle. I was wearing a long sleeved polo-necked top. I pulled my sleeves up because I was hot. The examiner said to me words to the effect of : It's quite hot in here isn't it? I said: Yes He said to me words to the effect of I would tell you to take your top off but it's not very appropriate is it? I turned to look at the examiner. I thought he was going to laugh, but when I looked at him, he didn't say anything or laugh, he was just staring at me blankly. I was shocked by the way he was looking at me. The way he was looking at me and what he said made me feel very uncomfortable. He then said: No, it's not appropriate Shortly after this, the examiner asked me to undertake the first test requirement, a reverse park. After I had completed the reverse park, the examiner said to me words to the effect of: So, you go to East Hills? I said: Yes, I live in Panania He said words to the effect of: It's good that you didn't go to Padstow RTA for your test I said: Why He said words to the effect of: Those people don't know how do their job properly. Hurstville is the best RTA in this district. I would never work at Padstow. But there's another reason why I wouldn't work at Padstow, my wife is the supervisor there. If I worked there she'd keep a close eye on me, and I can't have that because I'm a naughty boy at work 35 Ms Smith said that she had never taken any steps to find out if the applicant was married or where his wife may have worked. She insisted the applicant told her about his wife during the test. 36 Ms Smith said the applicant just kept talking to her, even though she was not responding. After performing a kerbside stop and then a U turn, they returned to the Registry. The applicant told her she had failed the test and she returned home with her instructor, Mr Scerri. Ms Smith agreed she had not told Mr Scerri about the applicant's inappropriate comments. 37 When she arrived home, Mr Scerri told her mother there was an incident during the driving test, but he didn't elaborate. Later, Ms Smith told her mother what had happened and her mother telephoned Mr Scerri. Her mother told her Mr Scerri said: I understand your concern. But birds of a feather stick together. And I wish and hope that you don't take it any further. 38 Ms Smith had not wanted to complain about the applicant because she didn't want to appear as a "whinger" and didn't want a "cross against my name"; particularly as she now knew the examiner's wife was an RTA supervisor. 39 Ms Smith described the events when Mr Cafe, from the RTA came to her house. She and her mother told Mr Cafe what had happened during and after her test with the applicant. Mr Cafe asked them to make statements, which they both did. 40 In cross examination, Ms Smith accepted she was upset that she had not passed her driving test on the first and second attempts. However, it hadn't been difficult for her to tell her family and friends that she had failed as she didn't offer any details. 41 Ms Smith reiterated her affidavit evidence as to what happened during the incident with the ute. Ms Smith insisted that she had moved her vehicle about 45 degrees to the right when the ute began to reverse. She reaffirmed what the applicant said to the driver of the ute. Ms Smith said she saw the lady behind her when she heard the yelling, as the passenger door was open. The lady was at the front of her vehicle. 42 Ms Smith agreed she made a mistake when turning into the one way street. However, she was nervous after the ute incident. She agreed she had not asked for a few minutes to compose herself; she just wanted to get on with her test. Ms Smith agreed she did not write down immediately afterwards what had happened, but did so a couple of months' later when the RTA asked for a statement. 43 Finally, Ms Smith reiterated that she didn't want to make a complaint about what had happened because she might appear to be "whingeing" and she was scared she would get an "X" next to her name when she went for the test again. Applicant's response to allegations made by Ms Smith 44 The applicant said that when he was undertaking this test on 19 September 2003, he was wearing his name tag. He recalled that when the test commenced another vehicle reversed towards the test vehicle. He denied bashing the window, abusing the driver or leaving the test vehicle. He denied all of the words attributed to him by Ms Smith. 45 In oral evidence, the applicant explained that there was a ute reversing and a garbage truck next to the ute. Ms Smith had beeped the horn twice. The applicant again denied stepping out of the car, bashing the window, waving his arms or yelling abuse at the ute driver. Rather, he simply observed Ms Smith's reactions to the situation, notwithstanding there may have been a collision. The applicant could not say why Ms Smith would have fabricated this story. 46 In further cross examination, the applicant accepted that he may have asked Ms Smith where she went to school and what she wanted to do when she left school. 47 The applicant denied Ms Smith's allegation that he had mentioned to her that his wife worked at the Padstow RTA. His wife did work in a managerial position at Padstow RTA. The applicant said Ms Smith may have found out about his wife from her instructor, Mr Scerri. However, he had not verified this with Mr Scerri. It was also on the public record. He insisted Ms Smith made up this conversation. 48 The applicant believed Mr Scerri could verify his account of what happened when the ute reversed. He had known Mr Scerri as an acquaintance since 1993. In April 2004, the applicant had asked Mr Scerri to meet him outside the Padstow RTA. This was just prior to the disciplinary inquiry. He told Mr Scerri of the allegations. He showed Mr Scerri the statement of Ms Smith's mother. 49 The applicant agreed Mr Scerri's statement only dealt with the reversing ute incident and not the rest of the allegations made by Ms Smith. The applicant agreed that Mr Scerri's statement would not have changed his absolute denials of what Ms Smith alleged had happened during the test. 50 Mr Joseph Scerri was Ms Smith's driving instructor and was at the Hurstville Registry on the day she went for her driving test. Mr Scerri said he had known the applicant for some time as he attended the Hurstville RTA with his students undertaking their driving tests. 51 Mr Scerri provided a statement to the RTA on 17 June 2004 in which he described the incident involving the ute reversing towards Ms Smith in the test vehicle. Mr Scerri said he did not see the applicant bash on the window, abuse the driver or partially get out of the vehicle. He said he may have heard a horn sound when the vehicle reversed. 52 In his statement to the RTA, Mr Scerri said that Ms Smith's mother had phoned him after she had failed the test and said her daughter had been nervous about the reversing vehicle. She had said the situation had not been made easier by the applicant losing his temper with the other driver. 53 Mr Scerri referred to the meeting in which the applicant asked if Ms Smith's mother or anyone else had complained about him. Mr Scerri said no one had ever complained to him about the applicant. 54 Ms Sarah Hopper was seventeen years of age when she undertook her driving test on 19 September 2003. Ms Hopper said that shortly after the test commenced the following conversation occurred with the applicant: .... after I had driven down approximately two streets, the examiner said to me words to the effect of: Are you nervous? I replied: Yes The examiner then said to me words to the effect of: You're a beautiful girl. Don't be nervous, beautiful girls like you don't need to be nervous. Shortly after this comment, he then said words to the effect of: Don't be nervous, I won't bite, and if I do I won't bite hard. A few moments later, he then said: Can I bite you? I didn't say anything in response. These comments immediately made me feel very uncomfortable and I was very distracted by them. Shortly after the examiner made the comments referred to at paragraph 5 to me, I stalled at a roundabout. The examiner asked me to carry out a kerbside stop. After I had completed the kerbside stop, the examiner said to me words to the effect of: Just shut down the car as if you are going inside with me and we were going to make out. My anxiety increased after the examiner made the comment referred to at paragraph 7. By this stage of the test, I was concentrating almost solely on how much longer the test was going to take to complete, rather than the tasks that I had to complete to obtain my driver's licence. The examiner gave me directions on which streets to drive down and which directions to travel. For example, he would say to me, "turn left here" or "turn right at the next street". After each direction, I would say, "Yes" or "Ok". Shortly after I had completed the kerbside stop referred to at paragraph 7, the examiner said to me words to the effect of: Do you want to have sex with me? I giggled because I was nervous and uncomfortable, and then said to him in a stern manner: No. The examiner said words to the effect of: Well, you answer "ok" or "yes" to everything, so I thought I'd try. .... 55 Ms Hopper said she felt very uncomfortable with what the applicant had said to her and didn't know how to respond. While she failed the test, she didn't say anything to her instructor because she thought he might think she was making excuses for her failure. However, Ms Hopper did tell her mother. Her mother asked her if she wanted to make a complaint. She didn't do so because she was concerned she might have the same examiner for her next test. 56 Nevertheless, Ms Hopper took a second test with the applicant on 29 September 2003. When she saw him she became concerned and nervous. Ms Hopper described what happened during this test: At the commencement of the test, the examiner said to me words to the effect of: So what have you been doing over the last 10 days? My anxiety was compounded with this comment, because I thought that this comment meant that the examiner recognised me from the first test. Approximately 10 minutes into the test, I was instructed to perform a kerbside stop. After I had completed the kerbside stop the examiner said to me words to the effect of: Same as for last time, although I believe last time we went inside to make out. Maybe this time it will be for a longer amount of time. This comment made me extremely anxious and my left leg immediately started to shake. The movement in my leg was obvious. The examiner said to me words to the effect of: Take the car out of gear and massage your leg. The examiner demonstrated on his leg how I should massage my leg. I was unsure what to do and how to act. I felt as though I had no control over the situation. So, I started to massage my leg as he was demonstrating. The examiner said to me words to the effect of: No, like this. The examiner then leant towards me and massaged my left leg in the middle of my thigh by using his two thumbs. Once again, I was unsure what to do. I leant back into my seat. The examiner continued massaging my leg until it stopped shaking, He then said to me words to the effect of: Ok, continue the test. I put the car into gear and pulled out. I immediately did a U turn to travel in the opposite direction. The examiner asked me to turn into the next left street and as I turned down the street he said to me words to the effect of: I could lose my job because if what I just did. We aren't even supposed to talk to people we are testing. But, I just do what I can to calm people down as they do more damage to themselves. By this time, I really wanted to get out of the car as soon as possible and as with the first test, I was concentrating on the time on the clock. .... 57 Ms Hopper insisted the massage incident occurred. She agreed that during the test, the applicant had a clipboard in one hand and a pen in the other. She didn't know what happened to the clipboard and pen when the applicant massaged her leg. 58 Ms Hopper passed the test, but again didn't tell her instructor anything. She again told her mother what had happened, but was just glad it was all over. 59 Ms Hopper was approached by Mr Cafe about two months later and asked if she was happy with the treatment she had received during her test. She said she wasn't. Ms Hopper and her mother prepared statements for the RTA and gave them to Mr Cafe on 20 November 2003. Ms Hopper explained that at the time of making her statement she didn't know the examiner's name. She believed it was a "Geoffrey Hunt". 60 In oral evidence, Ms Hopper reiterated that the conversations she recorded in her affidavit were true. She agreed she had not made notes of what had happened at the time; she did so two months later. 61 Ms Hopper said that after failing the first test, the applicant had explained to her the mistakes she had made and she understood why she had failed. She denied making up the allegations because she was upset at failing the test. 62 Ms Hopper was asked why she didn't ask for another examiner when she saw the applicant was to conduct the second test. She explained that she was scared the applicant knew her address. In any event, she didn't know she could refuse to be tested by a particular examiner. Applicant's response to allegations by Ms Hopper 63 The applicant agreed that he did ask Ms Hopper if she was nervous before her driving exam on 19 September. However, he denied all of the other conversations attributed to him by Ms Hopper and denied touching her inappropriately. The applicant believed Ms Hopper and her mother colluded in respect to her story. 64 The applicant said Ms Hopper had named him as "G Hunt" in her statement. Notwithstanding this mistake, he didn't deny being her examiner on that day and on 29 September. 65 The applicant pointed to the other aspects of Ms Hopper's evidence which demonstrated she had made up the allegations, such as doing a U turn. He further stated that, at the time he was alleged to have massaged her leg with his thumbs, he was holding a folder in one hand, a pen in the other and was sitting in the passenger's seat. However, he agreed he had not raised these matters in his defence during the disciplinary inquiry. Evidence of respondent's officers 66 Mr Michael Randall is the RTA's Registry Services Operations Manager, Southern Sector. Mr Randall has forty registry managers reporting to him, involving some four hundred staff. 67 Mr Randall conducted the initial fact finding investigation into Ms Marett's written allegations. When he spoke with Ms Marett she confirmed the contents of her written complaint. Mr Randall believed that it was then necessary to investigate whether other driving licence applicants had experienced any inappropriate conduct during their tests. Following further inquiries, another four written complaints were received. 68 Mr Randall met with the applicant on 21 October 2003 to inform him of Ms Marett's complaint and obtain his recollection of events. It was then decided to suspend the applicant from 24 November 2003. 69 In February 2004, one of Mr Randall's staff, Mr Stuart Van Mouwerik was instructed to conduct an interview with the applicant. Mr Randall considered the notes of the interview and decided to recommend approval for a formal disciplinary interview. Prior to this interview, the applicant received copies of the complainants' statements and signed records of interview with the names of the individuals blacked out. 70 The interview was attended by Mr Les Royan, Registry Services Manager, Bankstown and Mr Brian Turner from the PSA. A transcript was made of the interview. During the interview, the applicant provided Mr Randall with a typed response to the allegations in which he denied all the allegations. 71 After a ten minute adjournment, Mr Randall asked the applicant if he agreed that if the allegations were substantiated, it would amount to a breach of the RTA's Code of Conduct. The applicant accepted this proposition. 72 In oral evidence, Mr Randall said he was not aware if any other Registry staff had been interviewed about Ms Marett's allegations concerning the incident at the RTA's counter on 5 September. In any event, the respondent had not relied on that part of Ms Marett's allegations. 73 Mr Stuart Van Mouwerik was the respondent's Acting Business Performance Officer and reported to Mr Randall. In late December 2003, Mr Van Mouwerik was asked by Mr Randall to conduct an interview with the applicant as part of the fact finding investigation into Ms Marett's complaint. 74 Before doing so, Mr Van Mouwerik phoned the applicant to advise him of the complaint and the requirement for an interview. He also told him he could have a support person present. The applicant's supervisor, Mr Paul McPherson, attended the interview with the applicant at around 2.00pm on 13 February 2004. 75 Mr Van Mouwerik prepared notes of questions prior to the interview and made notes of the applicant's responses to his questions. The notes were later typed up. A copy of the notes was provided to the applicant. At the applicant's request he made some minor amendments to the notes. However, the applicant would not sign the notes, as he claimed he was seeking legal advice. 76 Ms Emilia Cvetkovic is the respondent's Manager, Workplace Conduct. She has held this position for about one year. Her role is to provide a high level of support to senior management through the provision of advice regarding the investigation and resolution of claims of discrimination, harassment and workplace bullying. In relation to disciplinary matters, Ms Cvetkovic consults with the Disciplinary Panel, the General Manager, Human Resources and senior management to ensure that the process conforms to the respondent's internal policies. 77 Ms Cvetkovic referred to a number of relevant documents including: - The RTA Delegations Manual - The applicant's letter of appointment - RTA's Code of Conduct; and - RTA's Discipline Policy, Discipline Procedure and Discipline Guidelines. 78 Ms Cvetkovic cited the provisions of the Transport Administration Act 1988 as it applies to the powers of the Chief Executive Officer and the delegated powers in respect to determining conditions of employment and staff disciplinary matters. Ms Cvetkovic said the respondent is also bound to the Crown Employees (Roads & Traffic Authority of NSW - Salaried Staff Conditions of Employment) Award and the Crown Employees (Public Sector Salaries January 2002) Award. 79 In respect to disciplinary matters, Ms Cvetkovic said the respondent's guidelines provide that Directors have the delegation to determine the outcome of staff disciplinary matters having regard to the advice of the Disciplinary Panel. This includes the power to impose disciplinary sanctions, such as temporary or permanent demotion or reclassification. 80 Ms Cvetkovic outlined the disciplinary process against the applicant which commenced around 3 August 2004. This included the provision of relevant documents to the Disciplinary Panel and which recommended the disciplinary actions subsequently approved by Mr Ulf Fraser, the RTA's Director, Operations. 81 On 13 August 2004, the applicant was sent a letter from Mr Fraser advising of the decision to demote him and inviting him to respond. The applicant replied on 24 August 2004. The Disciplinary Panel met again on 30 August 2004 and, after considering the applicant's response, requested additional information from Mr Scerri. After further consideration, the Panel confirmed the disciplinary action earlier proposed and the applicant was advised accordingly. 82 In oral evidence, Ms Cvetkovic confirmed that the applicant had called her on 23 August 2004, and asked for a copy of Mr Scerri's statement. She told him he was not entitled to receive the statement. The applicant had also inquired as to why it had taken so long to obtain Mr Scerri's statement. Ms Cvetkovic had said that "some problems" had occurred. 83 Mr Mathew Cafe is an RTA Driving Testing Coordinator. He has worked for the respondent for ten years and has held his current position for the last five years. Part of Mr Cafe's responsibilities include the investigation of improper conduct and customer complaints in relation to driver testing. 84 In October 2003, Mr Cafe was asked to identify and interview the provisional driver applicants who had been tested by the applicant between 5 September and 19 September 2003. After identifying the names and addresses of young female licence applicants, Mr Cafe visited each person. Mr Cafe approached the women by asking for feedback on their driving test experience. These inquiries resulted in four more young women making complaints against the applicant. After taking notes of each of the conversations, Mr Cafe typed up the notes and asked the complainants to sign them. One of the complainants did not wish to make a formal complaint. Ms Smith and Ms Hopper and their mothers made signed statements of complaint. 85 On 21 November 2003, Mr Cafe prepared a written report of his interviews with the complainants and attached the signed statements to his notes. 86 Around 15 June 2004, Mr Cafe was asked by the Acting General Manager, Operations to speak to the driving instructors of Ms Smith and Ms Hopper - Mr Scerri and Mr Jeffrey Hunt respectively. Mr Hunt informed him that he had not heard any negative comments about the applicant. Mr Scerri knew of the allegations against the applicant and Mr Cafe asked him for a statement of what he had witnessed. Mr Scerri provided that statement on 24 June 2004. 87 Mr Cafe reported that Mr Scerri's statement confirmed that Ms Smith's mother had called him to complain about the applicant and she had mentioned that "he (the applicant) had lost his temper". SUBMISSIONS For the applicant 88 Mr McElroy submitted that the applicant's demotion constituted a dismissal such as to enliven the Commission's jurisdiction under the Pt 6 ch 2 of the Act. The dismissal was harsh and unfair, in that the applicant was not guilty of the misconduct alleged against him. Mr McElroy noted that the applicant acknowledged that if the conduct had occurred, there could be no complaint of procedural unfairness. 89 As to the effect of dismissal, Mr McElroy put that there was a clear distinction between the work the applicant was performing as a Driver Tester to the work he is now performing as a Registry Services Officer. The nature, quality and salaries of the positions are different such as to have created a new and discrete contract of employment when the applicant was demoted. Notwithstanding that his employment continued, the respondent unilaterally and permanently altered the applicant's contract of employment such as to end the former contract. In this regard, Mr McElroy relied on Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia (1999) 90 IR 211. 90 Mr McElroy submitted that the applicant's evidence should be preferred and that he had not been shaken in cross examination. It was possible that the motivation for the complainants making their allegations was because they have failed their driving tests. 91 Mr McElroy said his client was seeking reinstatement to his former position. For the respondent 92 Mr Meehan of counsel submitted that there was no binding authority in New South Wales to ground the proposition that when an employee is demoted without the employee's consent, such demotion constitutes a dismissal. He said the conclusions in the Advertiser Newspapers case are distinguishable from the present case and he referred in detail to the different legislative regime in South Australia and its reference to the common law contract of employment at s105 of the Industrial and Employee Relations Act 1994 (SA). 93 In referring to Clark v Pittwater RSL Club Ltd (1998) 84 IR 309, Mr Meehan accepted that there can be circumstances where a demotion will constitute a dismissal. However, there are very significant differences in this case and, as the Full Bench said in Clark v Pittwater RSL, particular circumstances might produce a different result. Mr Meehan identified the differences in this case as the express powers of the respondent under the Transport Administration Act to fix salaries, wages and conditions of employment, and specifically to provide for a demotion in disciplinary matters. 94 Mr Meehan put that there was a "suite" of statutory provisions, regulations and awards which deal with the wages and conditions of RTA employees. The legislation superimposes on the contract of employment the power to demote an employee without terminating the employment; just like an award entitlement might permit the transfer of an employee without the termination of the contract of employment. These are significant differences to the circumstances in the Clark v Pittwater RSL Club and Advertiser Newspapers cases. 95 In developing his submission on jurisdiction, Mr Meehan relied on Stephen Metcalfe v State Transit Authority of NSW [2000] NSWIRComm 212. He referred to Ms Cvetkovic's uncontested evidence about the delegation of powers under the regulations to the Transport Administration Act. These powers include the authority to discipline employees by permanent or temporary demotion. Mr Meehan emphasised his submissions by illustrating the same point by reference to awards in Elizabeth Gorczyca v RMIT University AIRC [PR922414] Full Bench, 12 September 2002, Hermann v Qantas Airways Limited AIRC [PR903096] Whelan C, 3 April 2001 and Boo Hwa Chan v Christmas Island Administration AIRC [Print S1443] Polites SDP, 2 December 1999. 96 Mr Meehan noted that the relevant award in cl 23(1) contemplates the respondent's powers to reduce the rank or grade of an employee with recourse to the Government and Related Employees Appeals Tribunal (GREAT). 97 As to the merits of the applicant's case, Mr Meehan submitted that if the evidence of Ms Marett, Ms Smith and Ms Hopper is accepted, there could be no substantive or procedural unfairness in the decision to demote the applicant. 98 Mr Meehan argued that Mr Scerri's evidence does not corroborate the applicant's account of events involving Ms Smith at all. Mr Scerri's claim that he didn't see anything, does not mean the incident didn't occur. It would be open to conclude that the applicant's complaint of not having received Mr Scerri's statement, would have made absolutely no difference to the applicant's blanket denial of any wrongdoing. CONSIDERATION Decision on jurisdiction 99 There can be no argument that the terms and condition of the applicant's employment were (and continue to be) determined by what Mr Meehan described as a "suite" of arrangements involving two Awards, the respondent's policies, and the statutory provisions of the Transport Administration Act 1988. Mr McElroy did not quarrel with this submission. 100 The respondent is a corporation constituted under s46 of the Transport Administration Act. The management and control of the respondent is vested in the Chief Executive (s48) who may, by virtue of s50, delegate functions to officers of the respondent who are authorised persons. In the case of disciplinary matters, this delegation is to the respondent's Directors. 101 Thus it can be seen that the applicant's contract of employment is governed by the relevant provisions of the Awards, the respondent's policies, and the relevant statute or, using Mr Meehan's description, a "suite" of arrangements. These arrangements provide a comprehensive code of conditions and benefits, including the disciplinary procedures under the Transport Administration Act and Regulations and the respondent's policy. I deal then with the scope of the specific relevant provisions. 102 Section 64 of the Transport Administration Act empowers the respondent to fix the salary, wages and conditions of employment of its staff in so far as they are not fixed by, or under any other Act or law. Section 65 of the Transport Administration Act relevantly provides as follows: 65 Regulations relating to staff (1) The regulations may make provision for or with respect to the employment of the staff of the Roads and Traffic Authority, including the conditions of employment and the discipline of any such staff. (2) Any such regulations relating to the conditions of employment or the discipline of staff (my emphasis): (a) have effect subject to any relevant award made by a competent industrial tribunal and to any industrial agreement to which the Roads and Traffic Authority is a party, and (b) have effect despite any determination of the Roads and Traffic Authority under section 64, and (c) have effect subject to Part 3.1 of the Public Sector Employment and Management Act 2002. 103 It follows therefore, that if the contract of employment includes a process or set of procedures for determining disciplinary matters involving the respondent's employees, then the employer is not only entitled, but is required to rely on these procedures when disciplining an employee. 104 In my opinion, if as here, the procedures include the temporary or permanent demotion of any employee for disciplinary reasons (see the above Regulation), there can be no breach of the fundamental terms of the contract of employment. Viewed in this way, the permanent demotion of the applicant cannot be said to constitute a repudiation by the employer of the essential terms of the contract of employment and cannot, as a consequence, constitute a dismissal for the purposes of Pt 6 ch 2 of the Act. 105 This point is even more amply demonstrated by reference to cl 17 of the Crown Employees (Roads & Traffic Authority of NSW - Salaried Staff Conditions of Employment) Award which provides for an appeal mechanism to GREAT in the event of an alteration in the grade or classification to which he/she may be appointed. The clause is expressed as follows: 17 Appeals in respect of salary grade or classification (a) An officer shall have the right to apply to the authority through the head of his/her branch or section for an increase in excess of the rate of salary provided, or for an alteration in the grade or classification to which he/she may be appointed. (b) Any officer dissatisfied with a decision or determination of the Authority: i) in respect to the salary, grade or classification affecting such officer; or ii) in respect to any other matter of the nature referred to in sections 20 and 23 of the Government and Related Employees Appeal Tribunal Act 1980, may, if he/she does not exercise his/her rights before the Government and Related Employees Tribunal, forward to the Authority within 30 days after he/she has been advised of such decision or determination, a notice of appeal setting forth the grounds of such appeal. The Authority shall hear and determine such appeal and shall allow the officer, if he/she so desires, to attend and to present his/her case personally or by his/her representative. 106 While not expressly referring to a demotion, there can be no doubt that the clause envisages an appeal mechanism where an employee expresses dissatisfaction with being demoted to a lower grade or classification. The applicant chose not to take up his rights in respect to his demotion which, on one view of it, would not have been attended by the same, or any jurisdictional problems, that this application has thrown up. 107 What the clause demonstrates moreover, is that there exists an award provision which directly addresses the circumstances which the applicant found himself in and provided the redress which he now seeks. 108 My conclusions on jurisdiction would seem to be entirely consistent with what the Full Bench described in Clark v Pittwater RSL Club at 311 when it said: In determining whether or not there has been a dismissal from employment it is necessary to determine what that employment is. The evidence before the Commissioner was to the effect that the appellant at all times was employed as a receptionist/doorperson. There is no evidence that he was employed to carry out any other duties, that there was a contractual requirement to carry out any other duties, or that any applicable award provision permitted the Club to unilaterally vary the incidents of employment. In these circumstances the employment of the appellant was as a receptionist/doorperson. We distinguish, by way of example, circumstances where the appellant may have been employed by the respondent to perform certain duties or any other duties that the employer might require the employee to carry out from time to time, or where the employer has similar rights pursuant to an award provision. The determination or variation of the "employment" of the appellant in those hypothetical circumstances would require a different consideration and may result in a different answer. 109 Further, in this respect, I believe that this case is entirely distinguishable from the conclusions in the Advertiser Newspapers case. That case is of no assistance to the applicant here. 110 That being said, there may of course be a complaint about whether the disciplinary process was complied with, or whether the conduct about which the discipline was imposed, actually occurred. However, the provisions of Pt 6 ch 2 of the Act can only be enlivened by a dismissal (or a threatened dismissal). In my view, this cannot be said to be the position in the circumstances of this case. 111 Accordingly, I find that the applicant's demotion was properly open to the respondent in the exercise of its legal and industrial rights and that such a demotion was not a dismissal such as to enliven the Commission's jurisdiction under Pt 6 ch 2 of the Act. The application must therefore be dismissed for want of jurisdiction. 112 However, if I be wrong about this finding, the Commission has nevertheless heard all of the evidence and submissions on the substantive merits of this case. That being so, I have no hesitation in concluding that the applicant should not be reinstated as a driver tester. Indeed, I would go further and suggest that the applicant should consider himself fortunate that he has a job at all. 113 In deference to the manner in which the applicant's case was prosecuted I propose to elaborate on my reasoning for this conclusion. I also believe the conflicting evidence in this case should be resolved. 114 Here we have a 48 year old male driving examiner who vehemently and unequivocally denies serious allegations of improper conduct made by three young female learner drivers he tested for their driver's licences. Whose evidence is the Commission to believe? 115 On the one hand there are three young women with surprisingly similar, but independent experiences during their driving tests conducted by the applicant. On the other, the applicant strenuously and consistently denies each and every allegation of improper conduct which they allege. 116 The applicant can offer little explanation as to why the three complainants would concoct their stories and then place themselves in the stressful and embarrassing position of recounting their experiences to the respondent's investigators and this Commission. What would the three complainants have to gain by making their complaints? In my view, absolutely nothing. Indeed, two of them were reluctant to do so and only made their complaints after being approached by the respondent. 117 It is incomprehensible to me, that in the face of the complainants' overwhelming and incontrovertible evidence (some of which could not have been known by them unless it actually happened), that the applicant has chosen to stridently maintain his innocence throughout these proceedings. No reasonable observer could believe his vehement denials and flimsy defence. Why he continues to do so is baffling. I would have more sympathy for him if he admitted his conduct and expressed some contrition. Perhaps he has developed a mindset in which he genuinely believes that he has done nothing improper or wrong. However, he did not appear to me to be an unintelligent or misguided individual. 118 I intend now to make some reference to aspects of the conflicting evidence. 119 Ms Smith alleged the applicant referred to his wife working at Padstow as a supervisor and said he wouldn't work there because she'd "keep a close eye" on him and he couldn't have that because "I'm a naughty boy at work". The applicant suggested Ms Smith may have found out about his wife's employment from the "public record" or her driving instructor. I find this explanation to be totally implausible. In my opinion, there was no way Ms Smith could have known or wanted to know about the applicant's wife's employment. His explanation is absurd. I accept Ms Smith's allegations against the applicant have been made out. 120 Ms Hopper initially incorrectly identified the applicant as a "G Hunt". The applicant suggested this mistake impugned the totality of her allegations and her evidence. This is nonsense. He also claimed that he could not have massaged her leg with both thumbs because he had held a pen in one hand and a folder in the other. The applicant further alleged there was collusion between mother and daughter. These are extraordinary and unbelievable explanations. Ms Hopper's allegations have been comprehensively made out. 121 Mr McElroy speculated that a possible reason why the young women complained was because they had failed their initial test. This assertion takes no account of the fact that two of the women, Ms Hopper and Ms Smith made their complaints after they had been approached by the respondent two months later. In the meantime, both had passed their tests. I ask, what possible motivation could they have for raising such matters when, by that time, they had passed their tests? 122 A number of other comments about this submission can also be made. 123 Is it any wonder that Ms Marett complained that she had failed the test. The driving test was stressful enough without the highly provocative and grossly improper advances made by a person in authority who had the power to decide if she failed or passed the test. 124 In Ms Smith's case she was reluctant to complain and only did so when approached by the respondent. Moreover, in Ms Hopper's case the massage incident occurred during a test which she passed. 125 It is important for the Commission to say that I found the evidence of the three young women to be completely believable. They gave their evidence without waiver or confusion. Moreover, there is absolutely no reason why the three of them would make such allegations independently, and for seemingly no reason at all. What possible benefit or advantage could they have gained by being willing to put themselves through such an experience? 126 I wish to add that Ms Marett, Ms Smith and Ms Hopper demonstrated maturity and strength of character way beyond their young years. They are to be highly commended for their willingness to expose the outrageous conduct of a person in authority who betrayed their trust. It is to their credit that they had the courage to do so before the applicant did further damage to innocent, unsuspecting young women. Procedural Fairness 127 The respondent's discipline policy provides for a fact finding investigation, the establishment of a disciplinary panel, the conduct of a disciplinary interview, a number of possible outcomes and appeal rights. At page five of the policy it provides as follows: .... Demotion or reclassification In matters where demotion or reclassification is considered the appropriate disciplinary penalty, the staff member must be advised in writing of the quantum and duration of the demotion/reclassification. A demotion or reclassification arising out of disciplinary proceedings may be temporary or permanent. In either case, the written notification must refer to the staff member's current and new grade/classification and the salary/wages of the staff member's current and new grade/classification. Unless otherwise stated by the Director, at the end of a temporary demotion period the staff member's grading/classification will revert back to the grading/classification held by the staff member immediately prior to the demotion. A staff member can be prevented from applying for advertised vacant positions during a period of demotion/ reclassification. ... 128 In my assessment, the respondent carefully and scrupulously observed the terms and of its discipline policy which, I should say, is itself a comprehensive and fair procedure entirely consistent with ensuring the principles of natural justice are applied. 129 Having said that, I find that the applicant's claim of being denied procedural fairness is completely without foundation. I make this finding against the following background. 130 The applicant complains that he didn't receive the statements of the complainants until just before the formal disciplinary meeting on 27 April 2004. This complaint ignores the fact that the applicant had an informal disciplinary interview on 13 February, in which the specifics of the allegations were put to him. As was observed earlier, his response was to deny each and every allegation. 131 To ground a claim of procedural unfairness on this complaint, the applicant must satisfy the Commission that he was unaware of the allegations and not given an appropriate amount of time to address the allegations and respond to them. Neither of these circumstances apply here. The applicant knew precisely what was being alleged against him. As I just said, the informal meeting on 13 February raised the specific allegations made. Indeed, the applicant was not only aware of the allegations, but he vigorously denied them. There was no suggestion in this interview or subsequently, that he was confused or unsure of the allegations. It is curious why the applicant chose to not disclose this earlier interview in his filed affidavit. 132 Of course, the applicant had another two months in which to prepare his defence. His claim of being unprepared sits rather oddly with the fact that he provided a typed two-page response to the allegations at the April interview. At that time, his only defence was to again strenuously deny the allegations. One might rhetorically ask, what difference would it have made in being able to prepare for the interview, if his only defence was to deny each and all of the allegations? 133 The applicant was at pains to point out a number of discrepancies in the witnesses' evidence - his wrong name, turning right into Park Road when you couldn't, whether a part of a conversation between Ms Smith and the applicant was in the car or outside the car. 134 It must be said that these inconsequential matters were no more than 'red herrings'. They were not materially relevant to the substantive allegations against the applicant. In any event, it would be most unlikely that a young person's recollection of events - particularly in a stressful situation like a driving test - would be entirely pristine and perfectly accurate. 135 In my view, Mr Scerri's evidence is of little assistance to the applicant's case. His evidence was restricted to a small and inconsequential part of Ms Smith's allegations. It related only to the ute reversing and the allegations of the applicant abusing the driver of the ute during the initial part of Ms Smith's driving test. Mr Scerri did not know and could not have witnessed what happened subsequently. 136 Seen in this light, it is difficult to imagine how Mr Scerri's statement would have helped the applicant's case in the disciplinary inquiry about his improper conduct. To suggest that it was a procedural fault that the applicant didn't have Mr Scerri's statement is a gross exaggeration. It made absolutely no difference to the outcome. 137 However, it is to be noted that in Mr Scerri's statement to the respondent in June 2004, he said he recalled receiving a phone call from Ms Smith's mother in which she had said her daughter had been nervous and "that Charlie did not make the situation any easier by him loosing (sic) his temper to the other driver". The applicant denied abusing the other driver. Mr Scerri however, records Ms Smith's mother mentioning him losing his temper. Whilst I accept Ms Smith's mother may have only relayed what her daughter had told her, Mr Scerri's response seems entirely consistent with what Ms Smith said occurred during the incident. 138 In any event, there was no obligation to provide, or make available, to the applicant all of the documentary and other source material relied upon by the employer in dismissing the applicant. I refer to the observations of Boland J in Hosemans v New South Wales Police (No 3) [2005] NSWIRComm 161 at para 158-160: .... 158 The applicant placed reliance on Humphries v Cootamundra Ex-Services & Citizens Memorial Club Limited (2003) 128 IR 37 where it was said at [118]: 118 This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious. 159 There is nothing in the above passage that supports the proposition that in unfair dismissal cases there is a duty on the employer to provide evidence and all documents which are requested by an employee prior to a decision to terminate. It may be, in particular circumstances, the failure of an employer to provide a document or material to an employee prior to making any decision to terminate the employment will amount to procedural unfairness. But Humphries is not authority for the proposition that there is a blanket obligation to provide to the employee all documents that may have a connection with the subject matter associated with the reasons for the termination. 139 As I said earlier, Mr Scerri's statement was of limited compass and not directly related to the serious allegations which the applicant was found guilty of. The respondent could not, and did not rely on Mr Scerri's statement for assisting it in concluding the main allegations of Ms Smith were true. 140 Viewed in this context, it would be impossible for any reasonable person to conclude that the applicant was denied procedural fairness. Lest there be any doubts, I note that the seriousness of the allegations and the conclusion that the allegations were proven (with which I concur) far outweighs any claim of any minor perceived procedural unfairness. 141 Finally, I wish to make this observation. The applicant should consider himself very lucky that he has a job at all; let alone that he was not charged with a criminal offence. His conduct was grossly improper and a breach of trust and the respondent's Code of Conduct. The fact that he was not prepared to admit to any of the allegations and plainly offered no remorse, utterly confounds me. In my judgement, his conduct was such as to warrant instant dismissal. 142 I would dismiss this application for want of jurisdiction and should I be wrong in that conclusion, I would not interfere in the respondent's decision to demote the applicant. Peter J Sams, AM Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.