Industrial Relations Commission of New South Wales CITATION: Azar and Ritchie [2005] NSWIRComm 1124 APPLICANT: Nayla Azar PARTIES: RESPONDENT: Dr James Ritchie FILE NUMBER(S): IRC7505 of 2003 CORAM: Patterson C Unfair Dismissal - medical secretary – allegations of "serial" sexual harassment/abuse - denial. CATCHWORDS: Held: Allegations unsupported by the evidence – serious and wilful misconduct justifying summary dismissal. Application for relief instituted without reasonable cause – vexatious and mischievous - dismissed. Observations as to costs. Industrial Relations Act 1996 LEGISLATION CITED: Crimes Act s.100A HEARING DATES: 06/17/2004; 06/18/2004 DATE OF JUDGMENT: 08/04/2005 APPLICANT Applicant appeared in person LEGAL REPRESENTATIVES: RESPONDENT Tress Cox Lawyers A. Gee T. Unsworth DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER PATTERSON 4 August 2005 Matter No IRC 7505 of 2003 Nayla Azar and Dr James Ritchie Application by Nayla Azar re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1124 1 This application for relief was filed by Ms Nayla Azar following termination from her position as "medical secretary" to the respondent, Dr James Ritchie. On Workers' Compensation leave at the time, she received three weeks' pay in lieu of notice. 2 Further to a failed romantic liaison between them Ms Azar had demanded payment of $50,000 in consideration that she not report a spread of "severe" events as to his alleged "serial" sexual harassment, attempted rape, professional misconduct/malpractice and other misdeeds across a band of statutory authorities from which she would otherwise seek to obtain "justice" for the indignities and trauma which "destroyed" her "life". 3 Claiming to have suffered the indignities of sexual "harassment" from the outset of her employment, and "sexual abuse" throughout and beyond their affair, Ms Azar describes this as escalating from suggestive remarks about her clothing, to unwanted advances and fondling leading to their becoming intimate. 4 Despite her claimed early rejection of his alleged overtures the two eventually formed a passionate relationship which continued for several months during which he purchased her an "engagement" ring. 5 After eventually informing his wife of the affair Dr Ritchie announced to Ms Azar that the marriage had rekindled and he would not be separating and moving in with her pursuant to his alleged "promises" and her expectations. 6 Ms Azar then embarked upon a curious campaign designed to restore their personal relationship whilst, at the same time, seeking to preserve her employment, this generating some nasty conflicts with Dr Ritchie's wife. 7 When finally convinced that she had been betrayed by him, at the behest of his wife in no small part, she then charted a rancorous course designed to stain his reputation and career as a medical specialist and possibly lead to prosecution and arrest whilst pressing her demand for compensation and/or restitution – and still expecting to preserve her employment. 8 Now claiming the affair to have been "forced upon" her by deception, culminating in "rape" after it floundered, and the affair itself not ever being one of consensuality, Ms Azar is seeking maximum compensatory relief, payment for outstanding wages and entitlements, with legal costs. Although her application is filed pursuant to s.84 she also makes oblique reference to relief otherwise available under s.99. 9 Dr Ritchie openly admits to a consensual relationship, strenuously denies her allegations of sexual exploitation and rape, denies the existence of any outstanding entitlements, describes the balance of her claims reported to various authorities as false and accuses her of "blackmail" and defamation. 10 Filed on 31 December, 2003 the primary matter of "unfair" dismissal was incapable of effective conciliation and proceeded to Hearing over three days in June and August 2004 to be concluded by final submissions in writing in October and November. Certain of the other matters involving so-called "outstanding entitlements" were settled in part without admission of liability. Regrettably, publication of this Decision has been unavoidably delayed due to a protracted and continuing disability concerning myself. THE HEARING 11 Although she had the benefit of legal advice and representation in the period leading up to this matter first proceeding, for which she incurred an unusual expense of $11162, Ms Azar elected to represent herself. 12 Apparently no complete stranger to the processes of this Commission - having made two prior applications for relief in respect to two earlier employers - she had, most recently, appeared for a short time as agent for clients of Employment Help Services after she had approached them for assistance in this matter. 13 Mr A. Gee, solicitor, appeared for Dr Ritchie. THE EVIDENCE 14 Specialising in General and Laparoscopic Surgery Dr Ritchie's practice is spread over two base locations, Macquarie Street Sydney and Eastwood, with substantial visitation and surgical commitments at certain hospitals across Sydney and the inner metropolitan area. 15 Following the "sudden" departure of his former medical secretary from the Eastwood location due to "illness," according to him, Ms Azar had presented herself as a person of longstanding experience in such a role and filled the vacancy in September 2002. Her duties would include the scheduling of appointments, telephone duties, audio typing, hospital bookings, banking, bookkeeping and assisting with minor surgery. Installed within a medical centre complex she was the sole employee at his Eastwood surgery with Dr Ritchie generally attending there for a full (extended) day on Wednesday in each week and for a half day on other selected mornings. 16 Initially paid a salary of $42,000 per annum this was raised to $47,372 in June 2003 following a praiseworthy assessment (written by her) and signed by Dr Ritchie in respect to her performance and commitment to the job. 17 During the period of Ms Azar's employment, fifteen months, the two had developed a deeply passionate romantic liaison which was constantly patterned by a myriad impromptu expressions of affection and "love" flowing between them by telephone, "e-cards," emails, handwritten notes, SMS, his jottings in her business diary with other messages she had interspersed within his patients' daily appointment/procedure schedules. She diarised "everything" she claims to have happened between them, what was said, what was done, in addition to filing/recording every message from him whatever its form or source. 18 He believes the "initiating factor" to their personal relationship was one occasion when he called Ms Azar from the United States in February, 2003. For the first time she had addressed him by his christian name, spoke to him in a "loving way" and said "I miss you James." 19 Upon his return "there were flowers ... a loving card ... followed by more affectionate messages, affectionate actions and it built up to a point where I believed we should sit down and talk." He had marital problems at the time and believed the state of his marriage as "probably defunct." The Affair 20 Following approximately eight months in which she claims to have resisted his attentions their relationship is variously described as having become more "affectionate" by early May 2003 when Dr Ritchie invited Ms Azar to close the surgery in the afternoon and meet him (for their "talk") at the Sydney Rowing Club, which he understood to be one of her favoured locations. 21 A momentous occasion, it seems – from either view of the evidence – with each sharing their respective personal histories, interests and aspirations whilst holding hands with views across the water as this attraction for each other continued to ferment. 22 From his own description of an unhappy marriage situation Ms Azar understood her employer, whilst sharing the same residence as his wife, to have been effectively estranged. 23 There is no denial that he had become highly aroused by the applicant at this time. However, she states her reaction to his progressive attentions as being wary in the absence of total "commitment," recalling that she had earlier suffered "ongoing" sexual harassment over a period of "two" years from a previous employer (named), also a medical practitioner. She had, then, remained silent in the interests of preserving her employment. 24 Also, she had told Dr Ritchie during their meeting, and this Commission later, of her own marriage breakdown when her ex-husband, yet another medical practitioner, had been "jailed for sexual assault" upon patients and staff and that he was "being charged with giving scripts for narcotics to patients." 25 As they departed from the Club Dr Ritchie states "we embraced and kissed passionately" in the car park for up to an hour - about which she now complains. 26 The relationship quickly intensified after they met again for dinner on the following evening when, according to Dr Ritchie, she "suggested that we return to her flat ... took me to the bedroom where we had intercourse." 27 In the days and evenings which followed, until late August, the two regularly spent time together with he attending her home at nights and on weekends for mutual satisfaction and comfort. According to Dr Ritchie "in (those) months we enjoyed a very passionate relationship where we had sexual intercourse frequently ... we often left affectionate messages for each other ...". 28 The two had seriously contemplated a future together, according to the applicant, which was enhanced by discussions of their co-habiting, his/their (?) purchase of a common residence closer to the surgery, marriage and their desire to have a child. He is 60 years of age and she is 42. Although he had remained married for 36 years, she believed her endeavour for permanent attachment was consecrated by his presentation of an "engagement" ring which, she states, "formalised his commitment." 29 Dr Ritchie describes the jewellery purchase as one which was thrust upon him without notice as he arrived at her residence to drive Ms Azar to Sydney Airport. She was travelling to Melbourne to visit family on 9 June for the Queen's Birthday holiday weekend and demanded some immediate confirmation of his "commitment," such as a "friendship" ring. Unless he agreed she would make her own way to the airport. 30 He did agree and whilst en route she suggested they call into a jeweller who was known to her and located in the vicinity of her home. Somehow, they were able to quickly choose a suitable ring which the jeweller then discounted from $2300 to $2000 and settled purchase on the doctor's credit card. She later obtained a receipt for the original price which she presented in evidence. 31 True to the conservative values of her "fraternity" beliefs Ms Azar expected his presentation of the ring to represent "formal commitment" of their everlasting bond, "engagement," which – as a consequence – would cause her to forfeit each of two alternative marriage proposals that she claims to have been in the offing. (Names were supplied of the two "prominent" aspirants.) Dr Ritchie denies having proposed marriage – he was already "encumbered" - but agrees that he had considered joint purchase of a property closer to the surgery. 32 And, although she states that she had been earlier "informed" by staff members of other medical practitioners in the Eastwood premises – in the first few days of her employment – that Dr Ritchie had earlier been engaged in a string of affairs with her predecessors, Ms Azar nevertheless considered his expressions of "love" and "promises" as genuine foundation for a permanent and secure future once the ring was placed on her finger in the shop. Just as she would be singularly faithful to him she had insisted that she was not prepared to share him with his wife. Not interested in the role of concubine, she had warned him of the consequences if the "commitment" was not fulfilled. Rising Tensions 33 However, as their expressed feelings and actions had blossomed to dizzy heights, and Ms Azar was increasing the pressure for him to join with her, Dr Ritchie admitted his extra marital interests to his wife. Rather than reject him, as he states he had "expected," Mrs Ritchie "decided that she would work to repair our marriage ... our marriage definitely started to take a turn for the better, though I continued my relationship with Ms Azar." As the marriage showed signs of rekindling Ms Azar, according to Dr Ritchie, "became increasingly aggressive to my wife, refusing to put through telephone calls she made to my Eastwood Office and on several occasions abusing her on the phone." Ms Azar claims the wife had known about their affair all along and the two had a number of spirited discussions. 34 A month or so earlier, in early May at about the commencement of their active relationship, Dr Ritchie discovered that the affectionate notes he had previously received from Ms Azar – and which he had "saved" in his desk drawer – had disappeared. When he asked her as to their whereabouts he states that she replied with words to the effect: "I have removed them for safekeeping. I will keep them at my house ... you can see them in the future if you wish." His requests for their return were never satisfied and although she produces copious quantities of messages and records of phone calls from him in these proceedings she produced nothing similar in the ones she had sent him. 35 As her expectations appeared threatened by the intervention of his wife's interests, Ms Azar's agitation grew as she sought further and urgent evidence of his continuing "commitment" to their earlier "plans" whilst struggling with her own mounting doubts and distress due to his feigned and non-convincing response. With the relationship spiralling downward and then lurching into limbo she persisted in pressing him for positive demonstration toward their "future" union. Her dreams were fading, tensions increased, and the scene deteriorated into a one-sided fierce confrontation. Infuriated, she then elevated her threats and twice despatched a series of revelations and insults to his wife and family. 36 On 18 July Ms Azar forwarded a three-page dossier to Mrs Ritchie illustrating a vivid history of her version of her affair with Dr Ritchie, illustrating their experiences, his "promises" and her own expectations of their future together. Studded with her own opinions of the marital relationship and unsavoury descriptions of difficulties with his wife (as allegedly and crudely revealed by him) the letter was peppered with insulting and offensive reflections which included specific reference to her employers' adult children. Addressed to "My Dearest J..." it was accompanied by a cross-sample of affectionate emails and notes which he had sent Ms Azar. She then offered to supply Mrs Ritchie with additional material sufficient to "fill a book" together with "videos and tapes" of their exclusive times together. 37 The correspondence also informs Mrs Ritchie of her husband's alleged earlier dalliances with three other named staff, that he gave Ms Azar a diamond ring to the value of $2300 on 9 June, and concludes: "Do you know that if these (sic) document goes to the discrimination board what would happen to James ??? .. I advise you to move on ..." Ms Azar also suggests Mrs Ritchie should "buy a dog" ... (for alternative company) and advises her to "move on and be happy ..." 38 Her fears of rejection rose to the boil as the pair debated their rising predicament with increasing demands that Dr Ritchie leave his wife and move in with herself. In the meantime his affectionate messages of appeasement and affection continued to flow. 39 Disaffected, Ms Azar off-loaded a second blister to Mrs Ritchie on 2 August. Two pages in length, it reveals certain events which accompanied the doctor's visit to her home on the previous evening, a summary of their alleged personal discussions supplemented by her own additional opinions and offerings as to the tragic circumstances of his (now) two fragile relationships, more uncharitable remarks about their children and concludes with some critical and crude observations of this man whom she now claims to have used and abused her. The contents and thrust of this letter (which requires no elaboration here), headed "FINAL WORDS," are as equally disturbing as the one sent previously. In some strange fashion this correspondence appears to seek an ally in Mrs Ritchie for the torrid path which lay ahead. 40 The tension peaked as Dr Ritchie was preparing to attend a conference in Spain in early September. Due to return three weeks later, he states "although I had enormous affection for Ms Azar, I also had a deep love for my wife and therefore was reluctant to break up my marriage of 36 years." Ms Azar had issued a further ultimatum - "make up your mind" whilst away "whether to live with me when you get back or stay with your wife." He was otherwise warned that failure to comply would lead to her exposing him to the various authorities and to the media. They subsequently spent private time together shortly before his departure. 41 Although his wife had accompanied him overseas it seems he and Ms Azar managed to communicate frequently. A few days before his return Dr Ritchie returned one of her many phone messages (on or about 21 September) and confirmed that he was "not prepared to leave my wife and live with her." He received a fierce response. Whilst she interpreted this to mean their personal relationship was dissolved in terms of her own expectations and values, it becomes reasonably clear in the evidence that this was not his favoured choice as I believe he had hoped for the affair to continue on private terms. 42 In answer to a question from the applicant in cross-examination: "RITCHIE: When you say our relationship was terminated, the relationship was not terminated, I just simply told you I was not leaving my wife." 43 Upon the Ritchies' disembarkation at Sydney Airport, on or about 25 September, they were met unexpectedly by Ms Azar, whose presence provoked a loud and bitter confrontation between the two women. Whilst not denying the embarassment of an awkward public scene, Ms Azar describes her purpose as being merely to collect some duty-free cosmetic items which had been pre-arranged with Dr Ritchie coupled with an offer to drive them home to Edgecliff. They declined the lift. She denies this unfortunate episode as being of her own deliberate creation although admitting to issuing threats to Dr Ritchie of professional exposure and taking photographs of Mrs Ritchie for use in her "article" prepared for widespread "press release." 44 At some time earlier during the previous month (20 August?), Ms Azar had incurred an injury to her neck as the result of a motor vehicle accident whilst travelling to work. Although the treating doctor had considered her unfit for duty at the time she had continued to attend her own workplace, she claims, in response to her employer's insistence. Whatever the true position, when considered against Dr Ritchie's denials, Ms Azar nevertheless proceeded on workers' compensation leave on or about 8 October, a week after his return which I refer to later. 45 She was, also by this time, receiving concurrent treatment and medication for a post-traumatic stress/depression/anxiety disorder which, she states, led to her twice attempting suicide after the affair (and her employment?) had "ended.". Although she had been subsequently approved for admission to a specialist facility for acute care, Ms Azar decided to suspend that opportunity pending her pre-occupation with an outcome to these proceedings. This diagnosis is claimed to be exclusively attributed to her experiences arising out of, or in connection with, the workplace and Dr Ritchie. The "Rape" 46 Despite this recent history, Dr Ritchie paid Ms Azar yet another visit to her Campsie apartment in the late evening of Friday 27 September – only two days after the unfortunate scene at the airport. At whose invitation or encouragement this conclave occurred remains a matter for the parties' contrasting recollections and conscience since their evidence is, in no small part, dramatically and diametrically opposite. 47 Each claim the other as being "desperate" or "anxious" to meet and discuss their personal interests and, after having spoken by phone several times throughout the day, his surgery commitments did not permit him to visit her until approximately 10 pm on that evening – not unlike the timing of many earlier visits. In the belief that he was not coming, it being "so late," Ms Azar states that she took heavy (five) medications before retiring to bed at about 8 pm. He appeared at her door without notice and, having told her that he could only stay for "an hour" due to a further surgical commitment, the parties engaged in sexual intercourse. 48 Prior to dismissal Ms Azar had made the claim of "attempted rape." Following her dismissal she described this encounter as "rape" with he having swiftly and abruptly forced himself upon her whilst she was heavily sedated and wearing a cervical collar. He allegedly degraded her further by issuing crude suggestions as to her promiscuity with other men. 49 Dr Ritchie claims to have arrived there in response to her pleas, admits to their engaging in sexual intercourse (for the "last time") by consent, and denies having exploited or offended her in the manner described. They each agree in evidence that he left her home after approximately one hour. 50 During her cross-examination of Dr Ritchie on this matter the proceedings took an unusual twist (one of many) with Ms Azar producing a dressing gown from beneath the bar table that she claimed to have been wearing on the fateful night. I set out below certain extracts of the transcript of 25 August 2004 where she then addresses me: "APPLICANT: ... Also I have further my .. (not transcribable) .. here that Dr Ritchie maintained that I was (wearing) nothing else. My gown still shows the stain that I have emotionally kept for the police investigation. I was eventually wearing a gown and I was very conservatively dressed. COMMISSIONER: Was this when you answered the door? APPLICANT: I opened the door because – COMMISSIONER: Was this when you answered the door on the night he came to visit you? You were wearing that gown? APPLICANT: I was wearing this gown, it is a very conservative gown, all like a blanket. COMMISSIONER: Why do you mention stains? APPLICANT: Because it's still on it. When he raped me obviously he pushed me on the bed. My hair is still on it because he was very sort of violent that night when he came in. GEE: There is a police report. COMMISSIONER: Yes I understand. APPLICANT: We went through this before. COMMISSIONER: He admits in his evidence on the last occasion, if I remember correctly that – APPLICANT: He admit he did have sexual intercourse. COMMISSIONER: That you had consensual sex. APPLICANT: It is not consensual. How can it be consensual when somebody terminated the relationship on 21 September and we had a fight in the airport and I walked away when I was in severe distress and I told him we are not friends any more. I told him not to contact me ever again and he has got nothing to do with me and I warned him and told him I was going to the medical board. We spoke about the article and then he returned to my house on the 27th and sexually raped me. This is proof enough Commissioner that his visit was not consensual . It was 10 o'clock at night when I had taken very heavy medication. COMMISSIONER: If I remember your evidence he was there for an hour. So he raped you for an hour? APPLICANT: For someone to come into a woman's house when she is on her own at night at 10 o'clock at night and get into the house, into her house without her invitation at 10 o'clock, sexually raped her when she is taking a very heavy medication prescribed by the doctor which clearly shows that this medication proves me, at the time, that I wasn't in a strength enough or fit enough to have a sexual intercourse anyway. In fact my gown was stained, if it was a consensual act it would not stain on my gown. In fact eventually he forced me on the bed when I was still dressed up in my gown and sexually assaulted me. It was never consensual otherwise I wouldn't have reported him to the police if I wouldn't feel it was unjust in that manner. If it was consensual I would not even cause myself all this distress and go and report him to the medical board if I had any intention of really causing Dr Ritchie any hassle of any cause if I wouldn't feel I was a victim of any of this case Commissioner. COMMISSIONER: This incident allegedly happened ten or 11 months ago. You have kept the gown in that condition all that time? APPLICANT: Exactly because the police have asked me to. They said to me, 'If we go further with the investigation we will probably need it for DNA.' So I have left it and I never wore it since that day. I have never even touched it, there is still my hair, when he pulled my hair where I was lying on the bed, there's still my hair on it. I haven't touched it, it's still there." 51 Having confirmed that she held a very clear recollection of the events of this evening, in answer to a question from me, Ms Azar states elsewhere in her evidence: "... the moment he walked in the clothes were off his body. Within a second I was taken by my shoulder, dragged to the bedroom. He pulled my gown off my body. I was raped at the time. I was really intense. I was depressed, it was the most disgusting situation at the time." 52 If this earlier recollection be correct, then why produce the dressing gown? She has, by now, provided two versions of the event. Whatever happened on that evening she nevertheless returned to her work at the surgery on the following Monday and Tuesday before proceeding on workers' compensation leave shortly thereafter. 53 Whilst she claims to have told Dr Ritchie of her grief, and that she was only prepared to continue their relationship on a professional level, the expressive messages of affection continued to flow between them. Allegations and Threats 54 Whilst it seems she had already, on or about 23 September, distributed her first batch of complaints to the Medical Registration Board, Anti-Discrimination Board, Human Rights and Equal Opportunity Commission, etc Ms Azar did not report the alleged "rape" to Police until some months later – subsequent to her dismissal and her application for relief being filed in this Commission. 55 Asked why she did not promptly report the alleged "rape" to Police Ms Azar cited the delay to have been in the interest of preserving her employment. I deduce from this reply that if she had not been dismissed, and he had satisfied her demand for money or personal commitment – the "rape" would never have been reported. I note further that the events of this particular evening are variously described by Ms Azar in her correspondence and evidence as "attempted rape" or "sexual assault" and not termed as "rape" until after the dismissal. 56 With Ms Azar later proceeding on workers' compensation leave, Dr Ritchie states that he had made arrangements for his previous secretary to cover her absence "until a temp could be hired ... she was to open up for the day" at 8 am. However, when he arrived on 8 October "there was no-one there ... later, a patient came in and said that 'Ms Azar has been in the office and sent the secretary rudely away'." He states "fortunately, my wife was able to stay in the office" until he could arrange for his secretary from Macquarie Street to come out to Eastwood. 57 "During the day Ms Azar returned to the office, forced her way into my room and yelled at me words to the effect: 'You can't treat me this way ... I will ruin you ... I'll take you to the medical board and discrimination board and you will be ruined.' "She continued yelling at me, using 'fuck' and 'shit' often and loudly." He was informed by the secretary that "her words were heard outside the office and by a number of patients." 58 After she returned "later that day and yelled similar things" Dr Ritchie sought legal advice and, on 11 October, sent Ms Azar a letter expressing his extreme disappointment and concerns for the alleged disruption and embarassment caused to his office. He advised her to desist or face the possibility of dismissal. I reproduce the terms of the letter below: "Dear M/s Azar, I was greatly disturbed by your behaviour on Wednesday last. By your actions you caused your temporary replacement to leave the office leaving me without secretarial services on such a busy day. By returning to the office on 3 occasions during the day and berating me loudly using offensive language you disturbed the running of the office and caused consternation amongst the patients, several of whom cancelled their surgery as a result of your actions. This must not happen again. I insist that you do not return to the office while on compensation leave unless absolutely necessary. You must not come to the office while I am consulting with patients. You are not to have any contact with the secretary who will be covering for you while you are on compensation leave. Further episodes of this type could result in your dismissal. I sincerely hope that you will be feeling better shortly and hope you will be able to return to work in the near future. Yours sincerely ..." 59 Ms Azar denies the allegations, claiming to have been greeted with affection on at least one of these visits, being kissed by her employer behind closed doors whilst his wife was outside, and claims to have been ordered out of the place on another by the person occupying her position. Nevertheless, in the meantime the doctor's expressions of affection, appeasement and encouragement continued to flow by SMS and otherwise. He still loved her and was looking forward to her return to work. She had replied in kind. The Demand 60 On or about 15 October Dr Ritchie was "served" a 13-page chronicle of events setting out the so-called history, details, and pros and cons of their relationship in which she accuses him of sexual harassment, having used her as "slave labour" by reference to outstanding entitlements (bonuses, overtime, etc), describing her ongoing psychological/psychiatric medical treatment being due to his alleged breach of promise, that his wife was trying to get rid of her and a breadth of other issues concluding in a demand for $50,000 in compensation or damages. 61 Now translating and broadcasting their earlier bliss as having been initiated by him in the form of "non-stop" and "serial"sexual harassment in the workplace from the outset of her employment, and later cultivating her trust of an everlasting future relationship upon a foundation of calculated deception and betrayal portrayed as "abuse," Ms Azar erected a coup dé main directed at obtaining this sum of money in return for the hurt and torment she claimed had been thrust upon her soul, impugned her reputation and destroyed two alternative marriage opportunities. Failure to satisfy within a stipulated timeframe of 28 days would lead to her filing a spread of complaints with various statutory authorities commencing with the Medical Registration Board and the Anti-Discrimination Board. 62 The documents are presented with a cover-sheet portrayal of two coloured photographs of a different happy couple, side by side. One photograph is of Dr Ritchie and his wife taken by Ms Azar whilst she met them at the airport. The other was of Dr Ritchie with Ms Azar in relaxed mode claimed to have been taken when he had visited her on Saturday 30 August – two days before he departed for Spain. 63 Addressed to "Dear James" the chronicle is headed: "RE: YOU/YOUR MARRIAGE/MY EMPLOYMENT/MYSELF." Whilst purporting to enclose a copy of the prologue she had prepared for release to the media, the "article," bearing his photograph, and the caption: "TIP TOP SURGEON ... TIP TOP CHARM ... TIP TOP WAY TO DUMP A FEMME" with the message occasionally steeped in rhyming verse, its enclosure had been overlooked, or withheld. A single photo of Dr Ritchie is on the first page and one of Mrs Ritchie with uncomplimentary remarks on the third page. He states that he had not sighted the "article" until provided with a filed copy during the first stage of conciliation proceedings in this Commission. 64 Dr Ritchie referred Ms Azar's demand and its accompanying material, documents and photographs to his solicitors who, inter alia, characterised certain of her claims as defamatory, advising her by letter that she had placed herself at risk of legal action. 65 His solicitors further observed: "Your threat appears to be blackmail by threat to publish , which is a criminal offence under section 100A of the Crimes Act , and is punishable by up to 10 years' imprisonment. Unless you withdraw this threat in writing, Dr Ritchie will consider reporting your threat to the police." 66 In respect to the insulting and revolting observations (my own interpretation) made in her letters to Mrs Ritchie, which require no elaboration here, Ms Azar was strongly advised to forward an unconditional written apology and retraction of all comments about her employer's family members and issued a caution in respect to additional "defamatory material" which Dr Ritchie, by then, understood had already been provided to the "Daily Telegraph" and, possibly, "A Current Affair." 67 Ms Azar was also cautioned not to attend the surgery "until you have provided a Medical Certificate Clearance that you are able to return to work". Failure to comply may result in dismissal. 68 However, by this time the horse had bolted with Ms Azar having already despatched copies of her material to the Anti-Discrimination Board and other agencies prior to his return from Spain and prior to serving her demand. Dr Ritchie first became aware of this after receiving an enquiry from one such body in respect of her allegations of sexual harassment, attempted rape, medical malpractice, his addiction to a soporific drug ("Mogadon"), and improper relationships with patients, staff and other forms of so-called illegal and unethical conduct. I return to this later. 69 Having received the letter from Dr Ritchie's solicitors Ms Azar did not recant or retreat. Seemingly undaunted, she visited Dr Ritchie's home on the morning of Sunday 19 October without invitation or notice. Upon answering a knock at the door, Dr Ritchie states that she tried to force entry to the house by attempting to push past him "demanding in an aggressive way to speak to my wife ... I had to forcibly restrain her." According to his evidence she said words to the following effect: "If you do not come with me immediately I will take legal action against you and report you to various bodies and take you to court." 70 As noted [54] [68]Ms Azar seems to have overlooked, or attempted to conceal, the fact that many of her complaints and allegations had already been placed in train three weeks earlier, and two days following his announcement from Spain on 21 September. 71 She describes her surprise visit to the Ritchie's home as being in response to one of his more recent affectionate messages which had continued to flow seeking to discuss matters further and became offended when he accused her of trespass and directed her to leave. His intention was to meet on neutral territory and no meeting date had been fixed. 72 This episode gave rise to a further letter being sent by "Express Post" to Ms Azar from Dr Ritchie's solicitors which I reproduce below: "Dear Ms Azar Trespass to Dr Ritchie's land I am instructed that you went to Dr Ritchie's house on the morning of Sunday 19 October and demanded to speak to him and his wife. Dr Ritchie refused you entry into his house and asked you to leave his property. You entered Dr Ritchie's property that morning even though when you had previously asked to see him, Dr Ritchie told you that he was unable to see you that weekend. You were well aware that he did not authorise or consent to you being there. You have clearly and unjustifiably trespassed on his land and he is now entitled to commence proceedings against you for this trespass. You must not enter his property again without his prior written consent. If you do, you will be removed, by the police if necessary, and proceedings will be commenced. If you wish to speak to Dr Ritchie, you must write to him or call him at the surgery to arrange a mutually convenient time and place to meet him. You have no reason to speak to Dr Ritchie's wife and she does not wish to speak to you. You must not attempt to contact her. If you do have a reason to contact her, please put it (sic) writing to me. The same applies to Dr Ritchie's children. Action will be taken against you if you continue to harass or behave in any way unlawfully to any member of Dr Ritchie's family. Your comments in your document of 15 October regarding members of Dr Ritchie's family (especially on page 3) are defamatory. To avoid legal action, please forward an unconditional written apology and retraction of all comments about his family to this office by 10 November. I am also instructed that several weeks ago you said to a number of Dr Ritchie's colleagues at the surgery that they should 'look at the front page of the Telegraph tomorrow'. Dr Ritchie understands that you have forwarded defamatory material to the Daily Telegraph newspaper (and possibly others) similar to the material in your document dated 15 October. As explained in my letter to you of 17 October, Dr Ritchie will commence defamation proceedings if you seek to publicise false allegations against him. Please forward to me in writing by 10 November, preferably through your lawyer: 1. the names and contact details of all individuals and organisations who you have ever contacted regarding Dr Ritchie's alleged behaviour towards you 2. a copy of all material you have given to these people details of all comments you have made to these people (including what was said and when) 3. If you do not comply with this request, Dr Ritchie will commence preliminary discovery proceedings against and (sic) you will be subpoenaed by the court to give these details. Yours faithfully ..." 73 Shortly thereafter, Dr Ritchie became aware that one of her allegations had been referred to the Health Care Complaints Commission (the "HCCC") [54] [68]. Having received notice from this body in correspondence dated 29 October he learned that a complaint had been received "concerning an alleged sexual relationship with staff members and clients." 74 Of this he states in-chief: "This claim incensed me and I recalled that Ms Azar had tried to contrive a situation where she could be perceived to be a patient of mine. She had asked me to remove a small irritated mole from her back earlier in the year. I did this as a favour and was surprised to find in the rubbish bin a receipt for a payment for the procedure. She stated on the receipt that she had been referred by Dr Carol Murray of Castle Hill. As I had met Dr Murray at a conference I said to Ms Azar ' Dr Murray's practice is a long way away, why did you go there? ' Ms Azar became flustered and said ' Ah, I wasn't referred by Dr Murray, it was Dr Mah' . This struck me as odd at the time and when I received the communication from the HCCC I realised why she had taken this action – she had falsified a referral so as to set herself up as a patient." 75 Of this complaint, plus the raft of others including his alleged addiction to "Mogadon" and consequently "stuffing" up a surgical procedure on one of his patients (name supplied) – all of which are strenuously denied – Dr Ritchie describes these "vicious slurs on my professionalism (as causing) me considerable distress as they were false and could have resulted in my being de-registered." The office would then have to be closed and the other employees would lose their jobs. 76 "It was clear to me that Ms Azar was seriously jeopardising the whole practice through her false allegations" and states that he "repeatedly asked her to stop making up these lies and to stop filing false complaints. I believed I could not continue to employ her unless she apologised and agreed to stop her misbehaviour." So, on 11 November he sent her a letter: "Dear Nayla I understand you are intending to return to work on 24 November 2003. I feel that in the circumstances this will be difficult. I do not think that we can work together again until you withdraw all the accusations you have made against me together with your demands for monetary compensation. Please discuss this with your solicitor and as per the letter from my solicitor of 17 October 2003 ask her to make contact with mine. I feel that if you wish to continue with your actions that this will place us in a position of conflict that will make it impossible to work together. This must be sorted out before your return to work. If you do return to work it will be under the following circumstances: 1. That my wife is present in the office on Wednesdays to assist with office duties and that you accept she has free access in person or via the telephone at any time. 2. That you sign a formal employment contract. 3. That you wear a uniform at all times in the office. I am happy to provide this. 4. That you do not enter other offices in the medical centre unless invited to do so. 5. All bills for surgical procedures, major and minor must be verified by me before being given to patients. 6. All patients requesting initial appointments for banding or biliopancreatic diversion surgery be directed to the Macquarie Street office and that all hospital bookings be made there. If you feel these conditions are unacceptable then I am happy to discuss them further with you. Your sincerely ..." 77 Reference to point "3", the requirement to wear a "uniform at all times" was intended, according to Dr Ritchie, to avoid Ms Azar's alleged habit of wearing "provocative" dress whilst on duty which is denied. 78 Reference to point "1", that she should "accept" the presence of his wife in the office caused particular offence to Ms Azar. Yet, despite the fact that each party had the benefit of legal advice/representation at the time, they both further strayed from this territory of protective barrier and directly explored the possibility of a mutual outcome in the absence of, or contrary to, professional advice. 79 As his messages of affection and appeasement continued, they discussed matters on the phone and met in his Sydney office to negotiate a "return to work plan." However, Ms Azar remained totally opposed to the prospect of Mrs Ritchie attending the Eastwood office, believing this proposal as a device to provoke resignation, or dismissal. She refused an alternative offer of redundancy with three months' pay, totally rejected the proposed amended terms of employment, and insisted that she would be returning to work on 5 January, irrespective, without any change in conditions, upon the expiry of her Workcover certificate. Any attempt by him to frustrate this would lead to an indefinite extension of leave due to a work-related "stress" condition. 80 Further to Dr Ritchie's solicitors' earlier seeking her retractions, apologies and undertakings Ms Azar remained seemingly undeterred and faxed a 14- page diatribe in response. Dated 21 November, but sent on 9 December she again canvasses her own version of the relationship, recalling events, conversations, messages and "severe stress" caused to her by Dr Ritchie's betrayal and Mrs Ritchie's alleged abuse and includes the following untrue statement: "I did not attend to deal with any individual and have not reported to any organisation Newspaper or else thus I have not and did not expose any of Dr Ritchie privacy to any body or individual also. I did not have any intension in doing so. THERE IS NO LIST OR ANY PUBLICITY REGARDING DR RITCHIE." 81 Throughout the correspondence Ms Azar declines to apologise in relation to any of the matters raised and now threatens to "press charges" against him for "attempted rape" on 27 September: "BE WARNED ...POLICE WILL REPRESENT ME IN THIS MATTER" It appears she also faxed a copy to her own solicitors simultaneously without prior consultation or advice. The Dismissal 82 For Dr Ritchie this was the last straw. He states in chief: It was clear to me then that she was not going to apologise for her misconduct and that she was going to continue to act in a way which would seriously jeopardise my career and the practice. Her actions made it impossible for her to continue in my employment. Her position required considerable trust, especially as I was out of the office for most of the week. There was also the very real danger that she would try and manufacture another sexual assault or sexual harassment claim against me if only the two of us were in my office at any time in the future. If she was to continue to work, there was no way of preventing this from happening." 83 On 10 December, he instructed his solicitors to send a letter giving notice to Ms Azar of her employment being terminated. I reproduce the terms of this letter, of the same date, below: "Dear Ms Azar Termination of your employment at Dr Ritchie's surgery I am instructed to inform you that your contract of employment with Dr Ritchie has been terminated, effective from 31 December 2003. My letters to you and your solicitor of 17,28 and 29 October and 18 November set out a number of your employer's concerns about your misconduct. You have attempted to blackmail your employer for $50,000 and made false allegations against him, including: 1. attempted rape 2. sexual harassment 3. an addiction to Mogadon (which is very serious allegation against a surgeon) These allegations are also vexatious. Your email of 17 October to Dr Ritchie shows this regarding your sexual harassment and attempted rape allegations. In this email you say, amongst other things: ... LOVE this is the most precious things that i have cherished with you i still love you and thats way i am fighting ... In regard to the Mogadon addiction, I am told that When Dr Ritchie denied this to you, you replied: every doctor I have ever worked for has take some sort of night sedation, so I assumed you did. You have been asked to retract your false allegations, and apologise for them, by Dr Ritchie in person and in writing from me on a number of occasions. In my letter to you of 28 October I asked that you provide this by 10 November 2003. You have still not done this. In your fax to this office dated 21 November 2003 (received 9 December), you have made it clear that you will neither apologise nor retract your allegations. Your attempted blackmail of Dr Ritchie is extremely serious and on its own gives rise to a right of summary termination. You have still not withdrawn, nor apologised for, your demand for $50,000 from Dr Ritchie. In the circumstances, it is clear that your employment at Dr Ritchie's surgery is untenable and your contract has been terminated on the grounds of your misconduct. Your termination has nothing to do with alleged comments by Mrs Ritchie. You have been given many opportunities to apologise for your misconduct though you have failed, and now refused, to do so. You deny that you have defamed Dr Ritchie and deny that you have told others of your allegations. Please ensure that you do not defame Dr Ritchie or members of his family in the future. You are, of course, entitled to make genuine complaints to appropriate authorities. If you do so, please notify them that I am acting for Dr Ritchie, as I am happy to provide them with a copy of all relevant material. Please advise whether you have any personal possessions at the surgery. If so, you will be entitled to return to the surgery to quickly collect your belongings. I confirm that your leave will continue until the date of termination being 31 December 2003. Yours faithfully ..." The Report to Police 84 On 22 December Ms Azar wrote to Campsie Police complaining of sexual harassment from the "onset" of her employment and continuing up until 27 September when she now claims to have been "raped" ... and harassment continuing thereafter. 85 Having filed her application for relief in this Commission on 31 December, the matter was first listed for conciliation on 20 February but adjourned due to illness, re-listed for 5 March and adjourned further by request of the respondent due to his surgery commitments, and finally commencing on 22 March. 86 By then, Ms Azar had already attended Campsie Police Station for interview on 11 January providing, according to the record of interview: "a number of documents including letters written by the POI (person of interest), copies of emails and copies of SMS text messages sent to the victim." 87 The record of interview states: "On the 27 September 2003 the POI contacted the victim on her mobile phone on a number of occasions throughout the day..." There is no mention of her contacting him. "At approx 10 pm this date the POI attended the victim's home address. The victim was shocked to see the POI, however was drowsy and tired from a sedative that she had taken earlier in the evening." No mention of "five" sedatives and pain suppressants as described to this Commission and no mention of her wearing a cervical collar. 88 "The POI forced himself onto the victim and 'raped her' (penile/vaginal intercourse) ... the sexual harassment has continued since the above date." If this be an accurate record her complaint suggests she was sexually harassed up until the date of her police interview in January, two weeks after she had filed in this Commission, a month after her dismissal, and 3 1/2 months after they each told this Commission they last had intercourse, now characterised by her as "rape". 89 When disseminated by Campsie detectives for further investigation the "Case Narrative" records: "The complainant commenced working for the accused in September 2002. Sometime after that a relationship commenced between the two. From documents provided it appears there was physical intimacy. The complainant when spoken to initially denied this, then agreed there had been a physical relationship, however it was non-consensual, but these acts do not form part of the complaint. The relationship soured, apparently after the accused declined to leave his wife. The complainant then forwarded letters to the accused's wife, outlining details of the relationship, including her opinion as to why the wife/accused's poor relationship had driven the accused to the complainant's arms ..." 90 It mentions: "... as a result the accused apparently sought to end the relationship with the complainant ... and then she commenced civil proceedings ... with complaints to (etc) ... and the Industrial Relations Tribunal. In documents supplied, the complainant clearly asserts that unless her claims are settled in full she will report the alleged sexual assault of 27/9/03 to the police ..." Clearly enough, Ms Azar's 3½ month delay in reporting the alleged "rape" to Police has no parallel to the reasons provided in her evidence to this Commission [54] [55]. 91 Since commencement of her employment with Dr Ritchie the Police note: "... the victim has experienced constant sexual harassment from the POI, including constant phone calls, SMS text messages, handwritten notes and emails of an intimate nature. The POI also continually asked the victim out to dinner and for coffee, to which the victim always refused ..." How does this line up with her own evidence before this Commission? 92 The interviewing officers, Constable Deborah Chard and Sergeant David Wood, wisely assess the complaint as appears below: "After speaking to the complainant, I form the view that she is suffering from some type of illness as a result of stress or otherwise I do not know. However, she is very erratic, evasive, easily distracted and would make a poor witness. She constantly changed her story to suit the situation and sought to change the context of the documentation provided ..." 93 And of the stained dressing gown produced in this Commission there is no record of its mention to Police: "There is no forensic evidence available in this matter. She alleged she told her solicitor about the assault the day after the incident, but declined to report the matter to police ..." None of her solicitor's correspondence seeking settlement with the respondent's solicitors mention the alleged "rape" on 27 September. 94 The officers further note: "A copy of an email forwarded from the (complainant), to the accused, dated 17 October, 2003 clearly stating she still 'loved' the accused. This is in possession of the accused solicitors who make an issue of it in their communications with the complainant regarding her intention to accuse their client of sexual assault unless paid ... "In light of this I form the view the complainant has no credibility, would make a poor witness, is clearly attempting to use the police to either gain leverage in her civil matter, or to be vindictive and seek 'payback' for not being compensated as sought. "The complainant also produced a 'mini-cassette' tape with copies of messages left on her home and mobile telephone services from a male voice she identified as the accused in this matter. These calls did not support her accusation. "Of particular interest was that despite the allegation of sexual assault and civil action the complainant is pressing against the accused she provided me a letter in which she wrote to the accused she still 'loved' him and hoped they would be able to still 'work together' ..." 95 The outcome: "I advised the complainant again that this matter would not proceed, and further she should take serious note of the communication she received from solicitors acting on behalf of accused in which they warned her about continuing to make allegations about the accused unless he settled her claims." 96 Contrary to her evidence in this place her complaint, as I understand the above, has been effectively dismissed by Campsie Police who never considered it necessary to interview the accused, Dr Ritchie. But the officers' advice [95] obviously went unheeded and Ms Azar, in her evidence to this Commission, persists in her claim that she was requested to retain her soiled dressing gown for DNA testing and that Detective Sergeant Wood was prepared to give evidence in this Commission to support her complaint. Given her skewed interpretation of the material unravelled in these Commission proceedings, she informs me that she intends to "re-open" the police matter. The Applicant's Claim for "Justice" 97 Describing herself as an independently "wealthy girl" the applicant describes her claim for compensation as not representing a quest for bounty so much as it merely represents the only symbol of relief satisfaction available for the trauma allegedly visited upon her by the respondent. 98 Whilst certain of her claims concerning so-called outstanding entitlements have been gratuitously satisfied in part since her application was filed, she has been advised, frequently, that the remainder which she claims to be due will need to be pursued in another place. 99 Given the mountain of material that she has generally put forward – prevaricated, convoluted and in many important respects frequently self-contradictory, not unlike her oral evidence in-chief and in cross – I have frequently struggled to confine Ms Azar's focus to the claim as it falls within this Commission's relevant interest and jurisdiction. 100 Following one outburst during her cross-examination of the respondent I offered the following advice just prior to a lunch adjournment: "COMMISSIONER: We will come back at 2 o'clock. Try and consider your position carefully for the afternoon over, I hope, a good lunch. Just think very carefully and try to step aside from your emotions and continually remind yourself what this case is about. It is not about breach of promise, it is not about malpractice, it is not really about a failed relationship, it is about unfair dismissal an unfair dismissal that arises after you made certain threats and issued a demand for $50,000, otherwise you would file these complaints with various authorities. Dr Ritchie says in his evidence today that he had become aware since that certain of those complaints had already been filed prior to you making that demand of him. Now that is where you have got to focus your attention. On the dismissal itself. Can you try and do that? APPLICANT: Yes." 101 Then continuing to persist in her objections to his solicitors' allegations of "blackmail" upon resumption she seems impervious to helpful advice and unable, or unprepared, to absorb the gravity of her actions in seeking to ruin her employer, both personally and professionally. 102 Instead, her attention remains fixated upon his so-called earlier betrothal, then betrayal, which is claimed to have "destroyed" her personal and professional life. Further, Mrs Ritchie is portrayed as the villain who manufactured the dismissal. Although the affair had dissolved Ms Azar expected the employment to continue within an atmosphere of professional harmony and immunity from the potential damage already caused to him by her widespread filing of allegations. 103 In this respect, the claim for $50,000 – and which is variously agitated here as distinct from her filed claim – would seem to be properly characterised as punitive damages and, therefore, beyond the charter of this place. 104 The following extract of transcript is perhaps instructive in considering the applicant's approach to the matter: "COMMISSIONER: As I understand his evidence before lunch you made that complaint, you filed that complaint with the Medical Registration Board before you made the demand on him for $50,000 on the condition that you do not make it. APPLICANT: No I declared why I had requested the $50,000, as compensation to my situation, that he had made it so traumatic. It is because he destroyed my life and he destroyed my employment. COMMISSIONER: Pain and suffering, if we can call it that, yes? APPLICANT: In fact he destroyed my future with other men when I could be married by now and a happy woman. He destroyed all this for me. I made it clear in my note why I demanded the $50,000. I can pull out my statement. COMMISSIONER: Why has he destroyed your future in respect to getting married? APPLICANT: Because obviously prior to what happened he admitted eventually on 18 June when he was giving evidence that he did meet other men in my life who were very dedicated to me and proposed the marriage and because of him involved in my life at the time, and he would not get out of my life and leave my life alone, and— COMMISSIONER: But how has that destroyed your— APPLICANT: It did destroy it Commissioner. His wife— COMMISSIONER: Wait until you hear my question. How has that destroyed your personal future? APPLICANT: It destroyed my personal future when in fact I could have made a commitment with other dedicated men who proposed marriage to me at the time. He was standing in my way, he would not get out and he would not stay. So he was in and out of my life. COMMISSIONER: So he has effectively snatched your entire future? APPLICANT: He has destroyed my relationship with other people. I am a very religious person, I would not go with two men at a time. I asked him to get out and leave my life alone so I can move on with my life and he didn't. He was insisting he loves me and he wants me and because he gave me the ring and I gave him a commitment, a formal commitment, eventually I rejected a proposal to another two men who was in my life. He did eventually meet the two men in my life that proposed the marriage to me at the time and I rejected it because I accepted to have a commitment with him and because of my background, I'm from a very conservative family, I would not go with other men when I commit myself with one man." 105 Ms Azar's claim of "serial sexual harassment" alleged to have been endured over the first "eight" months of her employment is then translated as "sexual abuse" to co-incide with the occasion of their first becoming intimate. 106 She refuses to acknowledge that, for a period of approximately three or four months, their regular pattern of close encounters can only be considered on the evidence as consensual. How can this affair, tumultuous though it was with her demands for "commitment", be fairly – once ended – be otherwise considered as the product of force? 107 And however it came about – by whose encouragement – the affair was predicated upon a foundation, it seems, of differing and, perhaps, unrealistic expectations as things turned out. However their respective and genuine expectations were revealed, or concealed, the evidence speaks for itself. 108 In the circumstances of her application it seems to me, Ms Azar cannot reasonably present herself as having been so vulnerable or naive as to have been unknowingly and innocently seduced into such a relationship with a man whom she describes as attracting some prior notoriety in respect to her predecessors [32]. Further, she is a woman who claims to have suffered earlier unfortunate experiences with her husband and a previous employer [23] [24]. 109 As stated supra their expressed feelings for each other were reinforced by the myriad messages of love and affection reciprocated between them – even well after she had first issued her threats and allegations in writing and launched them. 110 As the relationship had intensified in May they "argued" whilst she pressed for his "commitment": "COMMISSIONER: So you argued between 6 May— APPPLICANT: Until the termination of my employment. COMMISSIONER: Until 9 June you argued. APPLICANT: Yes. COMMISSIONER: Once you received the ring— APPLICANT: I become more— COMMISSIONER: Everything was okay. APPLICANT: Yes, I become more sort of committed because he gave me a commitment. COMMISSIONER: Okay, so you felt a commitment was made and you were satisfied with that, and any time that he called you or visited you or had sex with you after that time, you do not regard that to have been anything forced on you. APPLICANT: Absolutely, I agree on that point. I agree that during this period after he promised me that commitment I accepted him and I even introduced him to my family and he had dined with them. COMMISSIONER: So after the ring was purchased— APPLICANT: I accepted him on the basis that it is a commitment. COMMISSIONER: After the ring was purchased you regarded the relationship to have been formalised. APPLICANT: Absolutely Commissioner. COMMISSIONER: There were no problems after that in respect of anything that went on between you? APPLICANT: No Commissioner. COMMISSIONER: You make no complaint here? APPLICANT: No, I accepted the thing because the thing was going formal and absolutely he was promising things all day long. COMMISSIONER: I understand that. You were seeking a future and the ring provided that certainty? APPLICANT: That sort of security, I recall it as a security." 111 How, then, in light of the warmest messages and happy experiences between them and her responses above – leading up to, and during the affair – can this be characterised as sexual harassment and/or abuse? Again, she contradicts herself in respect to the nature of her complaint to this place. 112 Asked about her threats to Dr Ritchie: "APPLICANT: ... That particular photograph of his wife I took it on the 25th (September) when I went to the airport. He was there when I took that picture and he asked me, because he knew about the article. Before he left (for Spain) Commissioner I told him about the article. He knew that I was going to report him if he ended up terminating our relationship and dumped me. COMMISSIONER: When did he first know you were going to report him? I will hear from you in a minute Mr Gee. When did he first know you were going to report him for certain events or alleged incidents if the relationship was not going to be continued on the level that you expected? APPLICANT: Three months before he even went to Spain. COMMISSIONER: So we are talking about June? APPLICANT: Absolutely. COMMISSIONER: We are talking about the same time the ring was issued? APPLICANT: Absolutely Commissioner, that's why I told him. 'If you don't promise me you give me the ring and you promise me a permanent commitment, Dr Ritchie that means you are proving you are an unlawful employer.' COMMISSIONER: So you put to him, 'Give me a ring to demonstrate your sincerity in the relationship.' APPLICANT: Yes. COMMISSIONER: He does that on 9 June about three or four weeks after you had become involved, if I can put it that way with respect, and around about that time he was in the knowledge, was he, that unless the relationship continued, productively and positively that you would report him for certain things? APPLICANT: Yes, because he proved to me he is unlawful. COMMISSIONER: Am I to understand that he was under threat throughout the entire relationship. Am I to understand that? APPLICANT: No, please I would like to explain. The relationship went into a permanent sort of consensual after he had promised me the commitment and gave me the ring. COMMISSIONER: Yes, he gave you the ring. APPLICANT: After that, as he said in his affidavit, we had continuously had a very pleasant relationship, but after that— COMMISSIONER: In the meantime? APPLICANT: In the meantime he admitted as well Commissioner that he was rekindling the marriage and in the meantime he promised me the commitment. He was rekindling the marriage with his wife. He admitted in his affidavit of 26 May that-- COMMISSIONER: You miss my point with respect. You become involved, the first time intimate, on 6 May or thereabouts? APPLICANT: Yes. COMMISSIONER: You are going to Melbourne to see family on 9 June? APPLICANT: Yes. COMMISSIONMER: You suggest to him the production of a ring or presentation of a ring would have the effect of confirming your ongoing relationship and represent something for a secure future, is that right? APPLICANT: That's right Commissioner. COMMISSIONER: So you suggest that this should happen on 9 June whilst— APPLICANT: No it was by coincidence." 113 Elsewhere in her evidence in-chief Ms Azar makes no mention of "co-incidence" and confirms his statement that the presentation of a ring was put to Dr Ritchie as a condition precedent to his driving her to the airport. 114 With sequential reference to the extract of transcript above: "COMMISSIONER: Whilst on the way to the airport to catch a plane to Melbourne? APPLICANT: Yes. COMMISSIONER: So you call into a jeweller you know, who happens to be nearby. The ring is produced and paid for with a plane to catch. It is produced at several hundred dollars less than the original asking price. You are happy then, because you had some arguments in the preceding days, or weeks, about what this relationship might represent. APPLICANT: I was happy at the time because it was a commitment yes. COMMISSIONER: You see that as a firm commitment? APPLICANT: Yes. COMMISSIONER: Then you have an ongoing relationship for a number of months? APPLICANT: Yes. COMMISSIONER: He goes to Spain and whoever initiated the conversation on 21 September ... listen (to me) ... whoever initiated the conversation on 21 September -- APPLICANT: He did, he did Commissioner. COMMISSIONER: --whilst he was in Barcelona you interpret that to mean that the relationship is concluded forever. APPLICANT: It is finished obviously, he made it clear. COMMISSIONER: That is the personal relationship. No mention of the employment relationship, just the personal relationship? APPLICANT: Yes. COMMISSIONER: So, then you produce an "article" on 23 September two days later? APPLICANT: That's right. COMMISSIONER: You forward that to the Medical Registration Board. On 25 September he arrives home. You meet him at the airport in spite of all that has happened. APPLICANT: Yes. COMMISSIONER: You have a row with his wife? APPLICANT: Yes. COMMISSIONER: Then on 27 September he comes to the house and allegedly rapes you? APPLICANT: That's right. COMMISSIONER: After the dismissal ... APPLICANT: After the dismissal of the relationship. COMMISSIONER: Now, in answer to a question of mine five minutes ago, you said that you considered reporting him to various authorities three months before. That takes us back to June and it takes us back to only a couple of weeks after he gave you the ring and you were satisfied that everything was going to be hunky dory. APPLICANT: Because he demanded the relationship. COMMISSIONER: So were you holding this over his head all the time? APPLICANT: No Commissioner. COMMISSIONER: (Referring to the demand) 'If this does not continue—' APPLICANT: Commissioner when he told me he wanted a relationship— COMMISSIONER: '—this is what I will do.' APPLICANT: No I would like to make it clear. At the time when he demanded the relationship I said to Dr Ritchie, 'My background is very conservative. I cannot have a relationship with you if you have an association with another woman. At the time he made it clear that he wanted a commitment and a proper relationship.' COMMISSIONER: You were not going out with anybody else at the time although you had two (separate) proposals in marriage? APPLICANT: I never go out actually, I do not go out with anybody unless one man in my life. I've never been with more than one man in my life. At the time when you ask the commitment we accept that but during the time when I have threatened him to report him that was within that period when he was demanding the relationship and I said to him, 'I'd better tell you something. If you plan to do to me what you did to (another employee) forget it because I'm not like that.' That was the reason that I had threatened him before the commitment started. I told him, 'Please if you think you are trying to persuade me within this eight months of sexual harassment and now you want to prove to me it is love and you say you love me, you had better tell me now.' We had an argument on a number of occasions and I made it clear to him. 'If you think what you are doing to me you are did to (her) forget it, I am not like that. My family will not be happy.' COMMISSIONER: So you made it clear to him that you would- APPLICANT: That I will not accept him other than a permanent commitment Commissioner. COMMISSIONER: You would not accept him taking advantage of you? APPLICANT: Absolutely, I would like to be clear on that one. That's why on the 9th of June he proved it to me and he gave me the engagement ring. To finish our hearing today I would like to make it clear to the Commission that I was totally victimised, I fear that I am definitely dismissed unjust because of the fact I did rekindle Dr Ritchie's marriage and because of that relationship that he developed again after many years with his wife I was being thrown out of my job unjust and in fact being threw out under allegation for sexual harassment which is true and attempt to rape, he did attempt to rape me. He terminated the relationship and he raped me.' 115 Whilst Dr Ritchie, in his evidence, acknowledged that his desire for Ms Azar – when made known to his wife – had the effect of rekindling the marriage he seems to remain reticent in response to particular questions put to him by the applicant as to the wife's alleged part in the dismissal. 116 Ms Azar also accuses Dr Ritchie and wife of threatening to have her committed to an institution: "COMMISSIONER: Do you have any further questions? APPLICANT:: The last question I would like to ask Dr Ritchie today – Q. My dismissal from you is unfair and unjust because you pushed me out of my employment as a result of you having your wife back and I was not needed any more? A. Is that a question? Q. Yes it is a question. A. What exactly is the question? Q. The question is do you agree yes or no? A. I don't agree no. Q. But you do agree because this is a fact? A. I don't agree, I've just given my answer, I do not agree. Q. I was dismissed because you have no longer need of me. You have got your wife, you rekindled the marriage. If Nayla stays she is going to ruin your marriage because you told me? A. I don't think I ever said that. Q. You said to me, 'My wife is going to throw me out of the house if I keep you.' A. I can't recall that. Q. You abuse me and tell me, 'Your job is finished, you will see Nayla I am going to send you to the mental hospital..' A. That is a conversation between you and my wife. Q. You want to send me to the mental hospital and causing me severe distress and harm to an employee. You were an employer, do you consider what you did to me was lawful? A. I don't think it was unlawful. Q. For sexually harassing an employee? A. I did not sexually harass you. If anybody harassed it was probably you Nayla." 117 The applicant suggests that his written "conditions" for her return to the office [74] during Mrs Ritchie's presence was unrealistic: "Q. You made it clear to me on your second warning that if you intend to return to work you have to consider to have my wife in the office. How do you expect me to work with your wife when you rekindle the marriage with her. How do you expect your wife to accept me in the office when you two have rekindled – Nayla is a victim in the middle of your marriage? A I was trying to find a solution that might enable you to keep your job, and that solution was— Q. It is a solution to get me out of my job, Dr Ritchie ... and I resigned— COMMISSIONER: Let the witness finish.. RESPONDENT: --and that solution was that would have prevented any personal relationship between you and I continuing. The whole concept was that if my wife was there, there could be no continuing of sexual and personal relationship and you may be able to keep your job. APPLICANT: Q. You already made it clear for me the relationship is finished on 21 September. It is before 10 November – come on Dr Ritchie, your lies was enough? A. Nayla for one minute I do not believe you could have worked in the circumstances where you would not have tried to rekindle our relationship and therefore the idea of aving my wife-- You have already admitted I have rekindled your relationship? –therefore the idea of having my wife present in the office was to make sure that couldn't happen. So that was going to be a condition of your re-employment and it was a condition that you rejected, but that was an opportunity for you to keep your job and in fact you did not accept that and therefore I couldn't employ you." 118 As stated earlier in this Decision Ms Azar has meticulously recorded all of his messages, diarised their alleged experiences and conversations. Of the emails, for instance, she was asked of the purpose, why – and for how long – she had kept them: "COMMISSIONER: You have attached copies, I don't know whether it represents all of them but a lot of them? A. Yes. Q. As to your documents, I am just wondering why you kept all of these? A. I kept them because I kept them as evidence to prove— Q. When did you decide to keep them as evidence, the— A. They were always on my e-mail, Commissioner. I've got a laptop which is— Q. Yes, but when you have read a message, why would you not then delete the message once you've read it? A. No, Commissioner it's not me. I am not that type. Q. Why— A.. I keep record of everything. Q. So, you kept a record of everything he sent you. But, why? A. Everything, I keep record for everything in my laptop. Q. Were you keeping any of the e-mails as evidence in the early stages of your relationship? A. I kept them as proof to all his love to me. I kept them as proof— Q. So you would look at them occasionally, would you? A. I still look at them today ... I read them all the time ..." 119 She offers no reasonable explanation as to why she removed her own sweet messages to Dr Ritchie from his drawer without his knowledge, why she did not return them as requested, or why she does not produce them here. CONSIDERATION 120 From the nature and detail of the applicant's original documents when first filed it became readily apparent that this matter, absent a peaceful outcome, posed the potential to unravel at such pace and depth as to cause immeasurable discomfort and pain for some directly concerned and others close to them. 121 Noting there had already been several efforts by the respondent, as represented by his solicitors, Messrs T. Unsworth and A. Gee, and the applicant's former solicitors to achieve a peaceful settlement this was not, unfortunately, to be so. 122 In December 2003 the applicant had been offered an amount in "excess of $11000" prior to the application being filed. Subsequently, this offer was increased to $15000 in January 2004 and later reduced to $12000 once the respondent was committed to proceedings in March. 123 Although Ms Azar admits to being advised by her former solicitor to settle for $10000 prior to commencement of proceedings, she declined, due to the legal expenses already incurred in the sum of $11162. This amount, considered as excessive, represents a liability which I understand to have been in dispute. 124 As the matter began to unfold during conciliation proceedings the parties will recall the period of time and effort accorded to them in my search for compromise toward a mutually discrete settlement. According to my encouragement of a cautious approach such outcome would have – at the very least - shielded their most private mutual experiences, disappointments and conflicts from unnecessary reflection, unwelcome intrusion and public gaze. 125 Whilst the employer, represented as he was, did attempt to participate reasonably and gently throughout this process the applicant, now unrepresented, remained committed in her quest for divine "justice." 126 Unyielding throughout, she offered no scope for compromise. Upon their respective confirmation that conciliatory efforts had eventually become exhausted Ms Azar made application for the matter to be arbitrated and I timetabled the matter for hearing. Issuing the usual directions I advised her of the process mechanics and structure – notwithstanding her stated prior experience in this place in the role of applicant twice removed, and advocate/agent acting on behalf of others [12]. 127 My directions were accompanied by a summary of the jurisdictional requirements and limitations available when considered in terms of the depth and breadth of "justice" she sought in her original application and as loosely expanded or re-flourished during proceedings. The parties were also provided continuing access to the transcript without charge. 128 When Ms Azar asked if the hearing room in which I had convened the original proceedings was the "biggest court available" for the Hearing fixture she intimated its public gallery as inadequate to accommodate a huge contingent of perceived supporters and others she expected to be alerted to her cause. 129 In response I suggested that if she had no concerns for her own personal privacy, I was concerned for that of the respondent and his family, etc. She was accordingly placed on notice that I would not permit the Hearing process to become frustrated or manipulated to public spectacle in the nature of a reckless crusade. Given the small number of individuals to appear (2) and/or give witness (2) in the matter I determined a change in venue as being quite unnecessary. 130 Considering the focus of her primary claim, "serial sexual harassment/abuse," the "unfair" dismissal, and the reasons and grounds advanced in support, I remain mindful of the broader allegations showered separately and/or correspondingly across a wider field beyond this Commission's relevant interest and jurisdiction. 131 However, due to the style and force from which this case has its origins, been conceived, mounted and executed, the evidence – as predominantly falling from the applicant – it did predictably, but unavoidably, lead to a most seriously intrusive exhumation of actual, or perceived, private events between the parties. 132 As can be seen the applicant's case is one that directly arises from affairs of the heart – the conscience and morals about which this Commission is hardly qualified or moved in offering fatuitous comment. Indeed, the Full Bench of this Commission has been caused to observe previously that this is "not a court of morals." The Claim of Sexual Harassment/Abuse 133 Nevertheless my considerations necessarily reside in affairs of the heart initially involving two people who, on the evidence, were more than mildly attracted to each other. They first become intimate – employer and employee – at her home on or about 6 May. He is married and she is not. 134 Whatever went before – his so-called suggestive remarks as to her clothing, unwelcome advances, fondling - the expressive notes and messages of "love" and affection passing between them since February is ample expression of their mutual attraction and cannot reasonably lead to a hint, or a finding, of sexual harassment/abuse in the circumstances. 135 Neither can the fact of their active affair, which flowed from then until he had departed for Spain in early September, be properly understood or reasonably determined upon either competing view of the evidence, as being other than consensual between two adults. It was a continuing and regular arrangement existing between two mature aged adults, in which she "fed him ... comforted him ..."and was intimate with him – generally, if not exclusively, within her own home [105] – [109]. 136 Whatever their respective and genuine motives – revealed or concealed – such an arrangement, in reality, remains a matter for their respective adult judgment, contrasting recollections and conscience. Therefore, it cannot, now, be conveniently and retrospectively claimed as otherwise simply because the expectations of one party were not realised as it crumbled into a screaming heap. 137 However, this is the approach of Ms Azar in dealing with her disappointments. She labels Dr Ritchie's so-called "promise" of permanency as a condition precedent to their ever having become involved, as borne out by one of her varied descriptions of the relationship when pressed – "permanent consensual." Since it did not lead to permanency she would conveniently re-interpret it, retranslate it, then broadcast it as "serial sexual harassment/abuse" and, therefore, "unlawful" conduct by the respondent [111]. 138 And, in this regard, her meticulous attention to diary (however accurate, embellished or misunderstood), in respect to conversations and events, and her keeping of records – including those that she had stolen from his desk – suggests she was doing so for purposes other than warm reflection. 139 From the outset of early vibes between them upon his return from the U.S.A. in February she was gathering this "evidence" as "proof of his love" according to her explanation. She liked to "look" at the material and "still likes to look at it". 140 But, why secretly remove the messages she had sent him up to early May before, and about, the occasion of their first becoming intimate for reasons other than to prevent risk of their discovery by Dr Ritchie's wife. "Safekeeping" she said. However, on Ms Azar's own evidence, this would have been unlikely since his wife was not in the habit of visiting the surgery. In any case she claims that Mrs Ritchie had early knowledge of their affair. If this were so, discovery was not a major concern if a concern at all. 141 When whittled down, the evidence strongly suggests that she determined her messages to him as potentially incriminating to her own interests. Once having become intimate upon her stated expectations of permanency, it seems likely she was simultaneously assembling an alternate strategy for future insurance should his "promises" not lead to her plans being fulfilled. 142 Viewed overall, her actions in this regard can only be interpreted as calculated and extreme and, whilst pressing for his demonstration of "commitment," accompanied by her early "warnings" and later threats of exposure, she also revealed to him the existence of two other marriage proposals she claimed were in the wings. 143 In terms of my considerations it does not matter a continental who initiated the affair – who first felt attracted to the other, or the mysteries of life which may induce two people to become so closely connected. Neither is it my concern as to how it ended. Torn between his wife and his lover, it happened! They had entered such an arrangement with eyes wide open whatever the so-called promises and expectations and each must surely have considered the attendant risks and possible regrets. Then he elected to remain with his wife. 144 However, in light of her previous sorrowful experiences with former husband, and a former employer – then armed with prior knowledge of Dr Ritchie's so-called notoriety [23] [24] – I have no doubt that Ms Azar thought she had all the angles covered from the outset as it would appear from her early selective gathering of "evidence." 145 And the evidence in this respect suggests that she was intent on taking no gamble. In my assessment she would call upon all the stuff she had squirrelled away, if necessary, for her own maximum advantage. As demonstrated by her subsequent actions – if she couldn't have him she would destroy him! The Claim of "Rape 146 As stated, the true events of 27 September remain a matter for their contrasting recollections and conscience. However, it is in this area where Ms Azar's absence of credibility again suffers badly. 147 She effectively provides three differing versions of the event – two to this Commission and one to the Police. 148 In respect to the latter the Police report was thorough and records that, following the alleged "rape" Dr Ritchie's "sexual harassment has continued since." [86]. No such complaint was made to this Commission – she complains of no such conduct from Dr Ritchie since 27 September. His subsequent notes of love, affection and appeasement since, and certain of her own up to 17 October cannot be placed in this category. 149 As I have already observed she told Police that she was "drowsy" from a "sedative taken earlier in the evening" and stated to this Commission that she had consumed "five" medications. She states here that she had been wearing a cervical collar at the time and makes no mention of that to Police according to their report. [85] 150 Ms Azar's reasons for the delay in reporting the "rape" are poles apart in her evidence by comparison with her statement to Police and clearly are advanced as a bargaining chip in support of her brash and persistent attempt to extort money from her employer. 151 Since the Police interview formed a negative and concluded view of Ms Azar's emotional state, her motives and credibility, they decided to investigate the matter no further. Dr Ritchie was not interviewed and the complaint was dismissed as stated supra. 152 Yet, Ms Azar informs this Commission that she was requested to preserve her dressing gown in original condition, having claimed it to have been soiled on 27 September, for "DNA testing." The Police report clearly states " there is no forensic evidence available." [91] 153 Further, she makes the extraordinary statement here that the senior interviewing officer, Det. Sgt Wood had offered to testify in support of her case at these proceedings. Even if she genuinely believed this to be true, she made no effort to bring about this unlikely event. 154 Ms Azar's production of the dressing gown in this Commission [48] as "proof" that she was raped whilst still wearing it is, of course, totally opposite to that which she had claimed earlier – "he pulled my gown off my body" beforehand [49]. 155 In my opinion of the evidence and the demeanour of the witnesses, Ms Azar's claim of "rape," earlier described as "attempted rape," cannot be sustained at all. For reasons best known to the parties – given their difficulties – I believe they again came together by mutual convenience whatever their respective motivations at the time. And, when she arrived at full realisation of his resolve to remain at home, I consider that she then sought to re-cast the events to suit her own advantage and raised the stakes in her final pursuit of "justice." Threats/Allegations/"Blackmail" 156 Whilst the evidence in this matter reveals a great deal of odd behaviour by the individuals directly involved, of which I attempt to avoid or not rating as worthy of mention, it does seem strange that the affair intensified from their early experience since Ms Azar, on her own admission, was issuing warnings and threats almost from the outset. 157 Whilst at the same time expressing her conditional love for Dr Ritchie she was telling him to leave her alone and elevated the threats as the relationship developed. She behaved in a fashion which might be suspected as crafting a scheme of entrapment. And, in my understanding, he did not know how to let go. 158 When things weren't panning out, according to her own goals, she then embarked upon her alternate strategy – as it appears – and first sought to create pandemonium between he and his wife, and their adult children. 159 That failed, Ms Azar then appears to have sought an unlikely ally in the wife, by the nature of her further correspondence which is so scathing of him as to imply that they should join forces against him. 160 That failed, and whilst still expressing her "love" for the man who allegedly raped her she sent a further note dated 17 October – ".. LOVE this is the most precious thing i have cherished with you i still love you and thats way i am fighting –" – two days following her service of a "demand" for $50000 that she not issue her sweeping and unsubstantiated allegations to the relevant authorities. 161 Although her demand was accompanied by 28 days' grace in which he may respond, the allegations were already in flight having been launched three weeks previously, 23 September, and only two days following his confirmation from Spain that he was not separating from his wife [70]. 162 The confrontations at the airport, and at his home, were no doubt manufactured by Ms Azar to rattle his wife. Perhaps so she might leave him or cause him to be tossed out. Otherwise Ms Azar would reveal his alleged sins – personal and professional – to the world at large. 163 But the potential damage was already done – a fact that she denied in her diatribe to Dr Ritchie's solicitors on 9 December [80]. And she appears to have overlooked, in her facsimile despatch, the 14-page document as bearing a date of 21 November. This suggests it was the sole creation of considerable prior thought – and not that of immediate and blurred emotional overtones. 164 In this regard Ms Azar's calculated deception reigns supreme – from presenting herself as an illegal "patient" of her employer, stealing her affectionate messages to him which she believed to be incriminating, her issuance of threats if he did not separate, concealing the fact that she had already proceeded to act them out whilst demanding firm demonstration of his "love" for her or, in the alternative, "$50000." Cautions/Warnings/Dismissal 165 Notwithstanding the above – and whatever the outcome – Ms Azar still expected the work relationship to continue in professional harmony as if this might be capable of being insulated against her threats and actions which could ruin him as a medical practitioner. 166 Notwithstanding the above, she challenged his cautionary letter of 11 October which arose from her alleged disruption at the surgery after proceeding on workers' compensation leave [58]. 167 She twice rejected detailed correspondence from his solicitors which sought unqualified retractions of her allegations and insults, undertakings in respect to her future conduct and further warnings as to the risk of dismissal [64] [72]. 168 Considering herself immune from this possibility she denied, untruthfully, having already hatched and launched her battery of sweeping claims. She then rejected Dr Ritchie's personal letter in which he sought to amend her conditions of employment to provide inter alia a uniform dress code and "acceptance" of his wife being in attendance at the surgery [76]. 169 Eventually, and following her final 14-page challenge to his concerns Ms Azar is given three weeks' payment in lieu of notice [83]. 170 Asked by Mr Gee in-chief why he terminated Ms Azar's employment, Dr Ritchie explains it this way: "A: I felt I couldn't trust her to run my office any longer in view of her claims ... I believe she'd made a number of false accusations impugning me and my professional standards. I'd given her many options to withdraw these allegations, she failed to do so, and I feared that she could prove very disruptive in my practice if I allowed her to continue as my secretary ... Ms Azar worked as a solo secretary in a medical practice, she was there alone a lot of the time because I'm basically only there in the office one full day a week with a half day every second day .. "It had come to my ears that she'd already made aggressive statements around the medical centre about how she was going to make claims in the press, how she was going to extract money from me financially. I was aware also of her saving all communications between us and also removing evidence of her initiating many of the aspects of our relationship, so I started to perceive her as somebody who was contriving a situation to my disadvantage and I felt with her to whole-heartedly fail to withdraw her comments and statements claims that she could easily contrive a very unpleasant situation in the office ... "She could deter patients, she could make claims to patients when I wasn't here, to (other) medical practitioners as she threatened to do on some occasions. "In fact, I know in conversations with her (own) practitioner that she had claimed to him on many occasions that I had forced sex et cetera with her. So he admitted to me when I was talking to him about her (workers' compensation) situation that she had made these comments to him. So I know that she was, in fact, spreading the, what I consider to be, lies amongst other members of the community and I felt that her employment could not be continued under those circumstances." 171 After her dismissal Ms Azar then elevates her earlier claim of "attempted rape" to one of "rape" and files her complaint with Police CONCLUSION 172 Claiming her dismissal to have been "harsh, unreasonable and unjust" in terms of the Act, by reference to s.84 – and "unlawful" pursuant to s.99 – Ms Azar would seem to have become lost in the abyss which accompanied the rise and fall of her tumultuous relationship with Dr Ritchie. 173 "Harsh, unreasonable and unjust" as Dr Ritchie had "destroyed" her "life" by reference to her employment, "destroyed" her "career" and caused two alternative and parallel marriage proposals to evaporate. "Unlawful" as the affair turned out and because her dismissal, whilst on workers' compensation leave, is – in certain circumstances – deemed an "offence" under the Act. 174 But, she continues to disregard the lasting legacy that she has attempted to impose upon him by her threatening manner and demonic behaviour aimed at destroying him professionally. 175 By her laying down of the gauntlet in this fashion her behaviour morphs into a reckless and indifferent crusade which, by implication, could have otherwise placed her own continuing employment – and that of others concerned with the Macquarie Street practice – at serious risk. 176 Initially smitten, if I am to believe her admissions of genuine heartfelt attraction for him, once rejected she then embarked upon this ill-conceived, rampant and indeterminate campaign of destruction as flagellated from some point early in the personal relationship and continued in this Commission. 177 Whatever her personal disappointments in the decline of their personal relationship she naively, or arrogantly, placed her employment future at risk, in my opinion, from the moment she despatched her revelations and insults to his wife and family. 178 Remaining defiant, despite the prescriptive cautions and warnings, her campaign marched on with vehement intent and an insatiable thirst for revenge. In this respect her conduct can only be regarded as perfidious to the extreme and she cannot reasonably expect her utterly ruthless behaviour to be treated by the employer, or this Commission, as insulated or immune from consequences to follow. 179 In so many respects her own evidence, even in-chief – lacks harmony, is commonly inconsistent, erratic and self-contradictory. In certain respects she has actively sought to deceive this Commission. Dr Ritchie's evidence is generally delivered, however embarrassing to his own interests, reservedly, precisely and with minimal hesitation or embellishment. 180 And, whilst I consider the proposed attendance of his wife at the surgery – acting in the role of pseudo chaperone – was an unrealistic solution to maintaining Ms Azar in her role – I do not speculate as to the wife's part, if there was a part, in the demise of Ms Azar's employment. Mrs Ritchie was not called and it does not seem important to my considerations as to whether, or how, she may have influenced the dismissal. After all, Dr Ritchie was the employer and the decision rests with him. 181 It was sufficient for him to consider Ms Azar's inveterate assault upon his professional capacity to continue in practice as demonstration that she had boldly crossed the conventional line of fiduciary obligation to her employer. How could he ever again trust her in the business? What scope for amnesty? 182 Her future was in her hands, yet she flaunted her outrage, ignored the cautions, challenged the warnings and rejected any attempt by him – or solicitors acting on his behalf – to calm her down and back off. Indeed, the doctor's own reluctance to act as he pondered her employment future – not without risk to his own interests – has been more than generous in my opinion. 183 And, then, the crunch – inevitable in my opinion. She sealed her own fate as he was clearly entitled to exercise his right to discharge an employee who had already placed, and may continue to place, his registration, and, therefore, his business at risk. 184 Having considered all the evidence, and the demeanour of the witnesses, I determine the respondent as having had no other choice but to terminate the applicant's services. 185 Since Ms Azar's predatory conduct fits squarely within the category of serious and wilful misconduct, thereby justifying summary dismissal, I suggest that she ought be mildly grateful in having received three weeks' wages in lieu of notice. 186 Further, she ought understand – that whilst s.99 provides certain protection for "injured workers" – it does not, in my understanding, provide blanket protection from dismissal in circumstances of serious and wilful misconduct. 187 For the reasons stated, I consider Ms Azar's dismissal as one which clearly does not attract the intervention of this Commission, it not being "harsh, unreasonable or unjust," and I dismiss the application accordingly. Costs 188 In consideration of the cross-application for legal costs I decline to award in favour of the applicant since her claim is not, in any way, supported by the respondent's alleged failure to attempt reasonable settlement of the matter in accordance with the requirements of the Act. 189 Conversely, I find that Ms Azar's application for relief was instituted without reasonable cause – and her pursuit of it to have been vexatious and frivolous. Ordinarily, such a finding would properly lead to an Order being made against the applicant in respect to the respondent's costs. 190 However, given her questionable psychological and emotional state, I perceive that Dr Ritchie would personally regret her being caused further distress by my issuing an Order to that effect and sincerely doubt that he would pursue it to satisfaction. 191 I therefore propose to adjourn this part of the proceedings for 14 days to allow the respondent to reconsider his application as to costs. Should I receive no response in that time the respondent's original application for costs shall lapse and the matter shall be concluded with no such Order being made. R J Patterson COMMISSIONER 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.