Industrial Relations Commission of New South Wales CITATION : Narda Tapia v Lagoon Seafood Restaurant [2003] NSWIRComm 341 APPLICANT Narda Tapia PARTIES : RESPONDENT Lagoon Seafood Restaurant FILE NUMBER: IRC 1551 of 1998 CORAM: Glynn J CATCHWORDS : Industrial dispute - claims of victimisation pursuant to s 210(g) (as it then was) - made on two bases - applicant had provided witness statement in support of fellow employee's unfair dismissal application and applicant had initiated own victimisation claim - applicant on rehabilitation return to work programme - continuing victimisation claimed - applicant left three weeks later after work incident - claim of direct dismissal - Held: not dismissed, no victimisation. Victimisation - defence of respondents - conspiracy alleged between applicant and her agent - agent former Labour Council official - acknowledged enmity between agent and respondent - agent personally involved in number of incidents claimed to support conspiracy defence - Held: no conspiracy. LEGISLATION CITED : Industrial Relations Act 1996 s 210(g) s 213 CASES CITED : Davis v Amalgamated Television Services Pty Ltd (1998) 81 IR 364 R v Shannon [1974] 2 All ER 1009. HEARING DATES: 09/01/1998; 09/02/1998; 09/14/1998; 10/06/1998; 10/07/1998; 12/10/1998; 02/25/1999; 07/06/1999; 10/05/1999; 10/07/1999; 10/15/1999; 11/30/1999; 12/01/1999; 12/02/1999; 12/03/1999; 12/17/1999; 02/28/2000; 02/29/2000; 04/13/2000; 04/14/2000; 06/26/2000; 06/27/2000; 06/28/2000; 06/29/2000; 06/30/2000; 07/14/2000; 07/17/2000; 07/18/2000; 07/19/2000; 07/20/2000; 07/21/2000; 10/30/2000; 12/04/2000; 12/05/2000; 12/06/2000; 12/07/2000; 12/08/2000; 03/26/2001; 03/27/2001; 03/28/2001; 03/29/2001; 03/30/2001; 05/17/2001; 10/29/2001; 10/30/2001; 10/31/2001; 11/01/2001; 11/02/2001; 11/16/2001; 07/08/2002; 10/10/2002 DATE OF JUDGMENT: 10/22/2003 APPLICANT: Mr P Matters as agent LEGAL REPRESENTATIVES: RESPONDENT: Ms M Stubbs of counsel JUDGMENT: - 186 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: GLYNN J 22 OCTOBER 2003 MATTER NO IRC 1551 OF 1998 NARDA TAPIA AND LAGOON SEAFOOD RESTAURANT Application by Narda Tapia for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996. JUDGMENT [2003] NSWIRComm 341 1 On 27 March 1998 an application for relief from victimisation was filed under s 213 of the Industrial Relations Act 1996 (the Act) on behalf of Narda Tapia (the applicant) by the South Coast Labour Council, contact Paul Matters. The respondent to the application as filed was the Lagoon Seafood Restaurant (the Lagoon/the respondent/Restaurant). 2 The Restaurant was destroyed by fire during the course of these proceedings, which is the reason that some references to it in the evidence are in the present tense and some in the past. 3 The application was filed on 27 March 1998, allocated to Glynn J on 6 April 1998 and was first mentioned on 17 April 1998. The respondent was first advised of the matter by my Associate on 14 April. Neither the application nor the supporting documents had been served on the respondent by the applicant. 4 At the first mention of this matter Mr Harrison appeared as the solicitor on the record for the respondent. He also advised that he was part-owner of the respondent and that the respondent would be instructing solicitors to represent it, because he believed objectivity was important. 5 Very early in the first mention of this matter Mr Harrison, without notice to Mr Matters, advised the Commission that he wanted to make an application in accordance with the Act that Mr Matters was a very unsuitable person to represent the applicant and was not a person of such a character that he should be given an audience by the Commission. Amongst the claims made by Mr Harrison was one that Mr Matters had a personal vendetta against the restaurant and Mr and Mrs Harrison. (I mention that claim because of the events at a later stage of the proceedings.) He stated that an application would be made to formalise the respondents' objections to the appearance of Mr Matters. (No Notice of Motion as foreshadowed was filed because, as was made known in the course of proceedings, of the legal advice he received.) 6 As from the second mention on 16 July 1998, the respondent was represented by Ms M Stubbs of counsel instructed, at that time, by Gilbert and Tobin. 7 From the occasion of the first mention of the application before the Commission on 17 April 1998, Mr P Matters appeared on behalf of the applicant, at first authorised to do so by the South Coast Labour Council (SCLC) of which he was Secretary, later by arrangement with Mr Neville Hilton of the Australian Workers' Union and even later, after he ceased to occupy the SCLC position, as her agent. 8 On 20 June 2000, the following fax was sent by the South Coast Labour Council to the Commission: Re: Application by Narda Tapia Pursuant to Section 213 for Relief from Victimisation by The Lagoon Seafood Restaurant, Matter No. 1551 of 1998 I write to advise you that the South Coast Labour Council (SCLC) will not be appearing for the applicant in this matter and that Mr Paul Matters does not represent or have the authority to represent the South Coast Labour Council in any capacity regarding the above matter or any other matter. I also write to advise that Mr Matters' position as Secretary of the SCLC ceased as at 22nd March 2000. 9 In his opening submissions, Mr Matters canvassed principles that related more to unfair dismissal than to victimisation. The compensation of six months pay sought was the maximum allowable for a finding of unfair dismissal. It was said that unfair dismissal constituted the victimisation. 10 The victimisation alleged by the applicant to have occurred following the applicant's provision of the Sirijovska witness statement (see below) included threats, attempts to induce the applicant not to give evidence in the Sirijovska case, physical violence by Mr Manias, the head chef at the Restaurant and dismissal from her job by Mr Harrison. 11 The witness statement that is referred to in this judgment as the Sirijovska Statement is a statement dated 17 February 1998 made by Mrs Tapia in support of Mrs M Sirijovska, another employee, who had made an unfair dismissal claim, later settled, against the Restaurant. That claim was being dealt with by Commissioner Murphy. Sirijovska Statement 12 In concluding the Sirijovska Statement, Ms Tapia said: 121 I have been abused and threatened both physically and verbally by Nick Manias since I started my employment with the Lagoon Seafood Restaurant. This has caused a lot of emotional distress for me and my family. Since my employment, I've always been stressed. Since the accident leading to the eventual operation of my ankle, I have suffered physical, emotional and economical hardship. I have always worked hard and tried to do the best of my ability and I think it is completely unfair that I have had to suffer from Nick Manias' abuse. I got to a stage that I could not cope with the situation any longer. 13 This Statement was tendered on the basis that the Commission would not traverse the truth or otherwise of the allegations made by Ms Tapia. 14 I do not know, nor do I make any finding as to the truth or otherwise of the allegations contained in the Sirijovska Statement. However, I do note that that Statement contained allegations both of physical (not sexual) assault and of verbal assault of a sexual nature, the latter in the crudest and most violent terms. 15 The applicant claimed an order for: 1. The employer to promote or otherwise advance the applicant in her employment. 2. Payment to the applicant [sic] the whole amount of remuneration and other financial benefits which have been previously foregone. 3. The employer not to carry out his threat to victimise the applicant and not make any such further threat. 4. Consequential orders. and claimed an order for payment of the sum of $……………. being for: 1. The loss of payments caused by the refusal of the employer to commence rehabilitation in accordance with her assessment by her medical and rehabilitation reports. 2. The amount claimed is the difference between the applicant's Workers Compensation payments and the payments she was entitled on the resumption of work. 16 The sum of money sought was later quantified as being $10,460. On 5 October 1999 the applicant in effect sought to amend the application by Notice of Motion seeking an order that the respondent pay the applicant the amount of $49,300.00, claimed to be pay for 12 months, but it provided no particulars as to how that amount was made up. Particulars on that point were finally produced orally from the bar table. 17 Although on 1 September 1998, the first day of the substantive hearing, Mr Matters referred constantly to Mr George and Mrs Vania Harrison as "the respondents", that reference was incorrect. The respondent to the application was named as the Lagoon Seafood Restaurant. That was also incorrect. Emibarb Pty Limited (Emibarb) traded as the Lagoon Seafood Restaurant. In answer to a question from the Bench Ms Stubbs said she did not anticipate any difficulty in the event that orders were made against the Restaurant. 18 In the course of this judgment, I refer, for convenience, to the "respondent" as Mr and/or Mrs Harrison and/or the Restaurant. If I had come to a different view as to the victimisation claim, orders would have been made against Emibarb Pty Limited. Background 19 The Restaurant was owned by George and Vania Harrison who were the two directors of Emibarb at the time the alleged victimisation occurred. Vania Harrison was the licensee and proprietor of the restaurant and overall was responsible for it. In relation to staff, Vania Harrison was primarily involved in the staffing of the dining room and the cleaning staff. Mr Harrison, a practicing solicitor had minimum involvement in the restaurant's day to day operation unless Vania Harrison was absent. 20 Nick Manias was the head chef and his primary responsibility was for the kitchen which included food ordering, staffing, menus, etc. In the kitchen Mr Manias had control of kitchen staff. In his absence the next senior chef on duty at the time had his authority but would not be responsible for staffing decisions. 21 The applicant commenced her employment with the Lagoon in October 1996 as either a kitchen hand or as a cook (her exact classification was in dispute). She suffered an injury at work and went off on workers' compensation in May 1997. She attempted to return to work on 6 January 1998, but, because she was still limping, was asked by Mrs Vania Harrison to get a further clearance from her doctor. 22 On 17 February 1998, the applicant made a witness statement supporting a co-worker Mrs Sirijovska, in the latter's unfair dismissal claim, later settled, against the Lagoon. The Sirijovska Statement (described earlier) contained a number of allegations as to abusive conduct by Nick Manias, the chef at the Lagoon, against the applicant. 23 That witness statement came to the attention of Mr and Mrs Harrison a few days before 16 March 1998 when the applicant was due to return to the Restaurant on a rehabilitation programme, overseen by her new rehabilitation service provider, Ms S Milne of the South Coast Workers Medical Centre (the SCWMC). On 16 March there was a discussion at the Restaurant in the absence of the applicant, in the course of which Mr and Mrs Harrison asked Ms Milne to be a witness to a discussion with Mrs Tapia about her allegations. Leaving the Harrisons, Ms Milne advised Mrs Tapia, who was annoyed at being excluded from the discussions, that the Harrisons wanted Mrs Tapia to withdraw sections of the statement before starting back at work. Ms Milne had also been advised by her supervisor to keep the rehabilitation issue separate from the industrial issue. Ms Milne and Mrs Tapia left the Restaurant without returning to talk to the Harrisons. 24 On 27 March 1998, Mrs Tapia made an application pursuant to s 213 against the Lagoon Seafood Restaurant for relief from victimisation. 25 Eventually Mrs Tapia returned to the Restaurant on 30 March 1998 on a return to work programme set up and monitored by Ms Milne. 26 Mrs Tapia remained at the Restaurant until 23 April 1998 when, after what was described as "the big blow up" by Mrs Harrison, she left the Restaurant and did not return. Particulars of Alleged Victimisation 27 The allegations in the Sirijovska Statement were referred to in the course of the proceedings as allegations of physical abuse, verbal abuse and threatened sexual assault by Mr Manias as against Mrs Tapia. 28 Mr P Matters said it was obvious that the respondents saw the Sirijovska witness statement as being quite damaging and that established the motive for victimisation. 29 In the application, particulars of victimisation were stated to comprise the attached documentation, that being two witness statements by the applicant and a report by Ms S Milne an occupational therapist. They were not itemised. 30 Pressed by the Commission and the respondent for proper particulars, a document described as "Particulars of the Application" was produced by the applicant on or around 28 September 1998. The "particulars" were relevantly contained in paragraphs 8 to 12 of that document: 8. On the 16th March the Applicant was prevented from returning to work by the Respondents due to the Respondents objecting to the Witness Statement of the Applicant, accusing her of lying and proposing that she change her Statement [the Sirijovska statement]. 9. The Applicant subsequently returned to work and was subjected to threats by the Respondents and her supervisor Nick Manias. 10. The Applicant was subjected to physical and verbal abuse by the Respondents and the Applicants supervisor Nick Manias. 11. The Applicant was prevented by the Respondents and her supervisor Nick Manias from working within the directions of her Rehabilitation Programme. 12. On the 23rd April the Respondent George Harrison summarily dismissed the Applicant. 31 The actions and events that were alleged to constitute victimisation of the applicant were eventually set out in the applicant's final submissions: The victimisation of the Applicant by her employer occurred in five discrete and distinct incidents: 1. 16 March 1998 - constituted by the requirement by the Respondent that the Applicant withdraw parts of witness statement before able to start work. The Applicant refused and she was unable to commence work until the 30th of March 1998. 2. 30 March 1998 - constituted by the Respondent accusing the Applicant of lying, making threats against the Applicant in regard to privacy and to jeopardise her lawful claim to worker's compensation entitlements, humiliating, bullying and causing her distress. 3. 19 April 1998 - constituted by the Respondent singling out the Applicant not to speak Spanish at work, falsely accusing her of being disruptive, attempting to intimidate her. 4. 19 April 1998 - constituted by the Respondent threatening to institute legal proceedings for defamation, threatening that she may suffer hurt and possibly lose her job. In addition a coercive offer is made by the Respondent to induce her to stop participating in the industrial proceedings of her free will. 5. 23 April - constituted by the Respondent's bullying, verbal abuse, threats, humiliation, assault, direct dismissal of the Applicant and the wilful destruction of the employment relationship. In addition there was a period from the 30th of March 1998 to the 18th of April when the Applicant was subjected to a work environment of duress, unreasonable pressure and hostility which constituted victimisation of the Applicant by the Respondent employers 32 The long term effects that arose because Mr Matters did not supply particulars of the alleged victimisation until his written final submissions are emphasised by the fact that if the incidents had been spelled out, it would have become obvious that some claims were based on misunderstandings or lack of understanding, for instance, by Mrs Tapia of what was actually provided for by her return to work programme. 33 Mr Matters insisted that Mr Manias was a "respondent" to these proceedings, contending that he was in partnership with Mr and Mrs Harrison in the Lagoon, not just an employee. Considerable, and, in my view, unproductive time was spent in these proceedings, because of his determination to make good that contention. He persisted with the approach even after the Commission had pointed out that, in any event, the respondents could be liable if they had sanctioned, even if passively, such actions by one employee towards another employee. 34 In referring to the "respondent" in his oral submissions, Mr Matters explained that it was his submission that Mr Manias is either part of the respondent through a de facto partnership or again if there is a narrow approach taken in terms of who is the respondent, strictly in terms of corporate identity, which is not an approach that should be taken here, because of the type of interpretation and construction that should be properly used in these kinds of proceedings but, if that were the case, the applicant says he is extremely close to the respondent, indeed, to all intents and purposes, he is part of the company, if not legally and technically, and in the day to day operations he was certainly part of that identity. 35 Although at one point of his oral submissions Mr Matters attempted, in answer to a request by the Commission, to say just which of the "respondents" he was referring to in his descriptions of the five incidents, he in effect gave up the attempt, saying that the "respondent" referred to by him in that whole section of his submissions was Mr Harrison, Mrs Harrison and Mr Manias. He said all three acted pretty much in concert. 36 Later in proceedings, Mr Matters claimed that the "respondent" had taken defamation proceedings against himself and Mrs Tapia. The proceedings were taken by Mr Manias. There was no evidence that the Harrisons had been involved in any earlier threat to take such action, nor in the proceedings in 2000. Position of Mr Manias 37 Mrs Harrison described the various roles at the Restaurant. There was a full time accountant. The work in the dining room was left to Mrs Harrison. The work in the kitchen was left to Mr Manias. Mr Harrison's role was more of an overseer of all departments to make sure they all pulled together. 38 Mrs Harrison denied that Mr Manias was a partner in the business. His role was that of senior management. 39 Mr Manias was in charge of the rostering in the kitchen in consultation with Mrs Harrison. Mr Manias would have to interview anyone to be employed in the kitchen and could hire them, but Mrs Harrison would employ them. The role of hiring and interviewing was shared between Mr Manias and Mrs Harrison. In relation to kitchen staff, Mr Manias made the final decision to hire. In relation to dismissing employees, Mr Manias had on a couple of occasions effected that dismissal but generally over 15 years that was Mrs Harrison's responsibility. 40 Although Mrs Harrison in par 6 of her first affidavit had stated that "the head chef at the restaurant, Mr Nick Manias has been employed with the restaurant", she clarified that statement in cross-examination, (Transcript p 1334) saying: A Now Nick is not drawing a wage from the restaurant so if you mean is he employed as a wage earner, he is not. For Nick the restaurant is more a way of life for him. That is his baby, so to speak. 41 Not since the early 1990s had the Restaurant submitted PAYE tax information to the Australian Taxation Office on behalf of Mr Manias. Such payments had been made up to 1990. Mrs Bokulic said that there was no superannuation contributions or a PAYE tax arrangement for Mr Manias. He was not part of the restaurant payroll. Mr Manias did not put in a time sheet. Mr Manias did not have to appear on the roster. 42 Mrs Harrison agreed with Mr Manias's description of himself as a consultant. The Harrisons paid his rent, electricity, telephone, food and drink and his dog's registration. (A minor point is that the dog actually belongs to the Harrison's children but has been adopted by Mr Manias.) 43 Although Mr Manias occasionally slept overnight at the Restaurant he had his own flat elsewhere in Wollongong. 44 There was no oral or written contract or agreement between Mr and Mrs Harrison and Mr Manias in relation to a consultancy. 45 Mrs Harrison said the benefit to Mr Manias was that he had a job where he could come and go as he pleased. He had gone to Kakadu/Darwin for about a year and to Surfers Paradise for a year or so. He had gone to Greece for three years after 1993. As Mr Manias had said "it's a hobby for him, it's a way of life". 46 In relation to the starting up of the Restaurant, Mr Manias had been one of the two successful tenderers but he had, because of financial difficulties, not been able to proceed with that project. Mr Manias had succeeded in interesting Mr Harrison in its development, and both Mr and Mrs Harrison had been involved in it with Mr Manias, with the exception of a four year period, since the day Mr Manias showed them the plans. 47 Mr Harrison said that when he and Mrs Harrison had taken over the lease of the Lagoon, neither had expertise in that area. Mrs Harrison was a primary school teacher while he was a solicitor. They relied upon the expertise of Mr Manias and the arrangement with him that he was a consultant. 48 Mr Harrison said he had an understanding with Mr Manias that if the Restaurant made money he would get a return on it. Mr Harrison had an obligation at some point of time to repay the money Mr Manias had lent him. Mr Manias did not have an investment in the Restaurant. There had been profits made from the Restaurant, but none had been realised because those profits have been put back into the Restaurant to improve it and extend it. (The number employed had expanded from 12 to 65 full-time or part-time employees.) 49 Whether or not Mr Manias was described as the owner or the proprietor of the Restaurant in the Illawarra Mercury and whether or not steps were taken by him or by Mr and Mrs Harrison to have that description clarified does not assist in determining what Mr Manias's position at the Restaurant was or was not. I agree with Mrs Harrison's expressed view that she did not see how it was important that the newspaper described him in the above terms. (The dangers in relying upon newspaper reports is evidenced by Mrs Harrison's recollection that when the Restaurant won the American Express Award for best restaurant on 26 June 2000, the later newspaper write up had referred to the winning of the Diners Club Award.) Witnesses 50 Witnesses other than the applicant called on her behalf were: Susan Milne, occupational therapist, rehabilitation counsellor and an intern psychologist, employed since 1993 by the South Coast Workers' Medical Centre (the SCWMC). The SCWMC is a community based rehabilitation and medical service, accredited by WorkCover as a rehabilitation provider. Ms Milne holds the degrees of Bachelor of Applied Science in Occupational Therapy, Cumberland College of Health Sciences (now part of the University of Sydney), First class honours degree in Psychology, University of Wollongong, currently being supervised for two years to become a registered psychologist. 51 The SCWMC was described by Ms Milne: Q. What is the relationship between the South Coast Workers' Medical Centre and the South Coast Labor [sic] Council? A. The South Coast Workers' Medical Centre is a community based organisation run by a board of individuals who are representatives from a broad variety of community based organisations. The South Coast Labor [sic] Council is a community based organisation and from time to time there has been a representative from the South Coast Labor [sic] Council present as a board - not "present" - but as a board member on that board. 52 The SCLC does not refer people to the SCWMC at all. Doreen Fay Campbell, State President of the National Union of Workers (NUW) and Vice-President nationally of the NUW. As at 29 February 2000 she was vice-president of the South Coast Labour Council (the SCLC). She has worked as a full time union official with unions in New South Wales for 25 years. She had been involved on a regular basis with welfare work, particularly pertaining to females within the NUW. Elizabeth Kostovska, secretary to Mr Matters at the SCLC. 53 There were a number of witnesses called by the respondent: Maritsa Bokulic, financial accountant employed by Emibarb at the Lagoon since April 1996. In that position she was responsible for the payroll, workplace injuries that are reported, maintenance of the injury register and completion of all documentation relating to staff of the restaurant. Susan McGrath, Secretary of the Liquor and Hospitality Division of the LHMU (appeared in response to Summons issued by Emibarb). Sheila Sheehan, employed by the LHMU in its Wollongong office (appeared in response to Summons to give evidence and also in relation to a summons to produce some documents). Mark Nolan, Manager of Thirroul Leagues Club until it closed on 18 June 2000 (Summons). Vania Harrison, restaurant manager/co-proprietor, Lagoon Seafood Restaurant. George Harrison, solicitor, co-proprietor of the Lagoon and, at the time of giving evidence, Lord Mayor of Wollongong. Nicholas George Manias, Head Chef employed at the Lagoon. Terri Martin, team leader at QBE Insurance (appeared in response to Summons to appear). Jodie Duffy, journalist employed by AAP. (Summons) Helder Oliviera Inacio, employed at the Restaurant since 30 October 1995 as a senior waiter. He worked permanent part-time, around 25 hours per week. Boris Durusovski, retired, pensioner since car accident in 1983. Murray Dribbus, solicitor, employed in 1998 by Mr Harrison. Donald Clode, South Coast Sub-Branch Secretary and Southern District Secretary of the TWU of Australia, New South Wales Branch; Assistant Secretary, SCLC (Summons) Gede Arnawa, head chef, at the Lagoon Restaurant for about 8 years as the second chef, Mr Manias being the executive chef. Roza Temelkovska, employed at the Lagoon Restaurant for 5 years as at 30 June 2000 (evidence given with assistance of interpreter in Macedonian though she was able to give some evidence directly in English). Cydonee Michelle Mardon, journalist, employed by Illawarra Newspapers Holdings Pty Limited, publishers of the Illawarra Mercury (Summons). Anthony Papaconstaninou, in 1998 Assistant National Secretary, Maritime Union of Australia (Summons). Peter William Newell, Newspaper Executive (retired). Paul Raymond Matters, student at time of giving evidence in 2000 and 2001. (Summons) Character Evidence 54 Both oral and affidavit character evidence in support of Mr and Mrs Harrison was adduced: 55 Lindsay Malcolm Stoddart, Anglican Priest, Chief Executive Officer, Anglican Youth Workers, first met Mr Harrison when Dr Stoddart was practising as a solicitor in Wollongong during the period 1974 to 1979. He and his family have been close family friends of Mr and Mrs Harrison for some 20 years. 56 Dr Stoddart deposed that "George Harrison is a hardworking, entrepreneurial Solicitor and community representative who balances personal interest and the common good and welfare of the City of Wollongong well. … From my observations George is an honest man but tempered with a certain naivete that accepts people at their best. … I have observed staff relationships at the Lagoon Seafood Restaurant. I have observed that Vania Harrison is a hard working, decisive and caring employer who models a style that her staff like and emulate. … I have observed good staff relationships always and have observed George and Vania taking a personal interest on numerous occasions in their staffs' personal lives and concerns. I have witnessed many incidents where they have both shown understanding and kindness to employees above and beyond that normally found in an employer/employee relationship". 57 Dr Stoddart was cross-examined by Mr Matters. 58 Madelene Smith, now sales assistant, but formerly Drinks waitress, later Maitre d', at the Lagoon for 9 ½ years, described Mrs Harrison as "a mother, a wife, a friend and a business woman all rolled into one". "Vania was able to organise the work roster around her employees needs. Some had other responsibilities such as small children and university studies. Vania was always more than willing to adjust the work roster to suit her employees' needs. This was no small task considering that the Lagoon had a workforce of 55 people". 59 Ms Smith's affidavit was tendered without objection. 60 Damian Hsu, now Manager, but earlier casual barman, later full time Head Waiter at the Lagoon for 9 years, in brief, described Mrs Harrison as a good person, both as an employer and friend, who never raised her voice in his presence even in the heat and chaos of a busy night at the Restaurant. Towards other employees, he had "observed Vania to be an excellent employer, good-natured, fair and understanding". 61 Mr Hsu's affidavit was tendered without objection. 62 Leanne Marsh, originally employed as managing waitress or as a waitress and cashier but later food and beverage manager at the Lagoon from February 1994 to February 1997 full time, gave oral evidence which was subject to cross-examination. No employee spoke to her about being unhappy. When Ms Marsh worked casually on Saturday evenings she would say "hello" to Mrs Tapia and she was always very friendly. 63 There was reference made to the involvement of Mr and Mrs Harrison with some nineteen charities/persons, on whose behalf the Lagoon had raised considerable funds, and in local community organisations. 64 In this decision, I have elected in some cases, unless the person has been directly involved in the current proceedings, to refer, without naming them, to "an employee" or Ms X. The reason for that is that much of their involvement was not only past history, but also related to adverse claims, which they were not present to refute, against them. 65 Inspections of the restaurant, and in particular of the kitchen and back area, were undertaken by the Commission on 3 December 1999. The area of the latter was compact with the cooking areas, benches, shelves and washing up area in fairly close proximity. That view was most helpful, as were a number of photographs tendered, in coming to a proper appreciation of the evidence. Many of the events described by witnesses occurred in a relatively small and defined area. 66 The restaurant had approximately 67 employees and 300 seats. Approximately 300 meals would be served in a one hour period. 67 Evidence given that there were four people at all times in the washing up area, and fifteen people involved in full time food preparation in the kitchen, actually cooking, as well as the waiters coming in and out. Conduct of the Case 68 On 16 July 1998, taking into account the estimates of Mr Matters and Ms Stubbs, five days in September and October were set to hear the application. A timetable was set for the filing of witness statements and submissions. Eventually, not taking account of mentions and directions hearings, 51 hearing days were utilised, the applicant alone being in the witness box for all or part of 10 days (not counting later evidence in reply). Twenty two other witnesses gave evidence in the substantive proceedings, transcript occupied more than 3000 pages and there were 114 exhibits. 69 A settlement between the parties was actually reached in February 1999. However, the settlement did not proceed to finality, the applicant saying in July that the respondent had failed to honour his side of the agreement. The foreshadowed possible filing of a Notice of Motion by Mr McArdle, solicitor, on behalf of the respondent arguing that the Deed of Release barred the Commission from proceeding further in relation to the application, did not eventuate. There was a hiatus of almost fourteen months before Mrs Tapia returned to the witness box on 30 November 1999. 70 Evidence was completed on 16 November 2001 and a timetable for the filing of final written submissions to be complemented by oral submissions in reply on 29 April 2002 was put in place. The timetable was not complied with and a new timetable laid down, final oral submissions to be made on 8 July 2002. That date was vacated. The illness of counsel was one complicating factor. Another was the fact that the applicant could only access transcript in Sydney at the Court Reporting Branch or at the Registry. Mr Matters resided in Wollongong, as did the applicant until recently. 71 Written submissions were spoken to on 10 October 2002, but because of the late receipt of the respondent's submissions, written submissions in reply by the applicant, together with any response by the respondent, were to be filed within four weeks. The applicant's ability to access transcript remained a problem for her. Eventually those submissions were filed on 16 December 2002, the last day of term. The respondent was given until the last week in January 2003 to file any submissions in response. None were received. 72 On at least two occasions during proceedings, the Commission advised Mr Matters that either the transcript could be read at the offices of the Court Reporting Branch, or he could approach the Chief Court Reporter setting out the financial position of the applicant and seeking the provision of free transcript. The first option was taken up. I do not know whether the second one was attempted. 73 The difficulties experienced by the court reporters in providing a proper record of the evidence are belied by the transcript produced. English was not the first language for a number of the witnesses, including Mrs Tapia. One small example, without in any way reflecting on Mrs Tapia's efforts to achieve fluency in the English language, is that the transcript shows that Mrs Tapia, in many cases, "explained" something. In fact, she pronounced the word "splained". 74 Apart from the expressed animosity as to the relationship between Mr Harrison and Mr Matters at the very first mention there were other ominous indications of future difficulties in the proper running of the case. On 1 September 1998, the first day of the hearing, Ms Stubbs stated that the respondent required some further particularisation of the claim in accordance with Part 9 of Industrial Relations Rules 1996, and in particular, the amount of compensation claimed and the specific conduct alleged to constitute victimisation. Mr Matters promised they would be provided by 5 pm on 3 September. However, the lack of particulars caused difficulty to the Bench and to Ms Stubbs in the course of objections raised to items in the applicant's affidavit while the applicant was continuing her evidence on 2 September 1998. In the lengthy exchange that followed over several pages of transcript, Mr Matters' understanding of the particulars required, based on his interpretation of the description of "victimisation" by a Full Bench of this Commission in Davis v Amalgamated Television Services Pty Ltd (Davis) ( (1998) 81 IR 364 at 380 ff) was encapsulated in the following statement. HER HONOUR: I need the series of events to know what the period is. MATTERS: It doesn't have to be particularised in terms of exactly each event for each victimisation, because the victimisation has been defined by the Full Bench as the treatment of people harshly or unfairly. It doesn't have to be joined to a particular thing or a day on a [sic] which something has occurred. 75 It was Mr Matters' contention that the unfair dismissal of Mrs Tapia constituted the victimisation as well. The unfair dismissal provisions were relevant to s 210, and evidence pertinent to an unfair dismissal could be adduced. 76 The outcome of that objection to the evidence was a hearing on the threshold argument and the decision on 10 February 1999 that: In generally accepting the thrust of the respondent's submissions as to the meaning of s.210, as I have earlier set them out, I must state, in relation to the evidence that may be sought to be adduced by either party, that such evidence is not necessarily limited, in time, to a point not earlier than the date on which the applicant actually made her statement in the Sirijovska proceedings. If, as alleged, the respondent's relationship with the applicant altered to her detriment, because of her proposed participation in those proceedings, it would be relevant, for instance, to know what was the state of that relationship prior to that time. Much of the material Mr Matters indicated he wished to adduce in evidence could be relevant to an unfair dismissal application per se under s.83. It would not be relevant to the present application made under s.210 as to claimed victimisation. 77 Unfortunately, Mr Matters' attitude to suggestions from the Bench as to the need to have legal advice on issues and on Ms Stubbs' submissions on the law, continued all through the case to be that exemplified by his statement on 2 September 1998 during the course of the original discussions as to the need for particulars: The point is that Miss Stubbs does not understand what the Section of the Act is about. (Transcript p 98) 78 As at 26 March 2001, Ms Stubbs noted that Mr Matters had still not particularised those aspects of the evidence he was relying upon as constituting victimisation. In those circumstances the respondent could not afford not to address various issues raised. (That statement was made in the context of a query by Mr Matters as to why a certain topic was being raised with Mr Harrison.) 79 It was a case in which the main protagonists had known each other for many years. The exchanges were combative and provocative, that set out below from the cross-examination of Mr Manias by Mr Matters indicating the tone for much of the proceedings: Q So the argument from your point of view wasn't about peeling potatoes at all but it was a statement? A No, I feel sorry about the lady being upset. The lady work for me for a number of months or years. She has been a very good employee to us and I had a soft spot for her. I wanted to help her and I was upset when I saw documents like this here because you instructed her to prepare all these lies. (Transcript p 1070/71; 29/6/00) … 80 On 2 November 2001, after some discussions between the parties had not led to agreement, I asked whether further conciliation before another Member of the Commission might be of assistance. Upon instructions, both parties accepted that I should approach his Honour the President to see if that could be arranged. Conciliation before Commissioner Bishop was set down, but was cut short by Mr Harrison's refusal to participate. ************************* 81 The written submissions were extensive and were supplemented by transcript for the full day they were spoken to. They have all been considered, and it is hoped that what is set out in the following pages goes to the essence of them. Submissions - Applicant 82 This is an application under s 213(2)(c) of Chapter 5 Part 1 of the Industrial Relations Act 1996 No 17, that the Commission make orders sought in relation to a claim of the applicant for payment for remuneration forgone by the applicant as a consequence of being victimised by the respondent her former employer. 83 The orders sought are that the respondent pay the applicant $49,300.00 which is an amount equivalent to the loss of remuneration that the applicant has incurred as a consequence of being victimised by the respondent. 84 On the 17 February 1998, the applicant deposed a statement which she understood would be filed in the unfair dismissal application of IRC 4602 of 1997 by Marika Sirijovska's agent, Paul Matters. On the 3 March 1998, that statement was filed in the Industrial Relations Commission of New South Wales Registry for IRC 4602 of 1997. 85 The applicant's occupational therapist, Susan Milne, arranged a meeting for the 16 March 1998, between representatives of the Lagoon Seafood Restaurant, the applicant and herself to discuss the return to work of the applicant. 86 Prior to that meeting Susan Milne was telephoned by Vania Harrison, who requested that Susan Milne meet alone with Vania Harrison before the scheduled meeting with the applicant. 87 Whilst Narda Tapia waited in another room, George Harrison showed Susan Milne a copy of the applicant's witness statement which she had deposed in relation to IRC 4602 of 1997 and had a conversation with Susan Milne where he stated that the applicant could start work if she repudiated her witness statement. 88 Susan Milne then informed the applicant of George Harrison's demand. The applicant refused to repudiate her witness statement. 89 The meeting between Susan Milne and the representatives of the Lagoon Seafood Restaurant did not resume and the applicant did not return to work. 90 On the 27 March the applicant filed an application, IRC 1551 of 1998 under s 213 of the Act, seeking relief from victimisation by her employers, the Lagoon Seafood Restaurant. 91 On 27 March 1998, George Harrison on behalf of the Lagoon Seafood Restaurant, wrote to the applicant offering a return to work on the 30 March 1998, without imposing any requirements on the applicant to repudiate her witness statement in IRC 4602 of 1997, on the basis of a rehabilitation program which outlined the duties of the applicant. 92 A meeting was convened by Susan Milne on the 30 March 1998 to monitor the applicant's return to work program. During that meeting George Harrison attempted to again raise the issue of the applicant's witness statement in IRC 4602 of 1997. Both George and Vania Harrison also attempted to direct the applicant concerning her right to choose her representative. 93 On the 18 April 1998, whilst the applicant was at work, George Harrison harassed the applicant, was abusive and imposed unreasonable conditions on her employment that she not speak in her first language whilst at work. 94 On the 19 April 1998, the applicant was threatened by Nick Manias because she was participating in an industrial matter. Also later that day Vania Harrison proposed to the applicant that she change her witness statement and engage different representation which she would pay for. 95 On the 20 April 1998, whilst waiting for the applicants decision in regard to changing her witness statement the applicant unusually experienced no problems at work. 96 On the 23 April 1998, the applicant declined Vania Harrison's proposal and indicated that she would continue to participate in the industrial proceedings. Her rejection of the respondent's offer triggered extraordinary abuse, threats and humiliation. Nick Manias and Vania Harrison convened a meeting of her fellow workers where she was ridiculed, accused of lying and publicly humiliated. George Harrison arrived and after initially trying to talk to the applicant, he too began to argue with the applicant. Nick Manias threatened the applicant and attempted to hit her. George Harrison summarily dismissed the applicant. 97 On the 3 September 1998, IRC 1551 of 1998 hearings commenced before Justice Glynn of the Industrial Relations Commission of New South Wales. In the course of these proceedings the parties reached agreement on settlement, which later did not proceed. 98 The legislation that should be applied is as it was at the time of the alleged victimisation, but perhaps in the context of the subsequent changes, in terms of interpretation given that it is beneficial legislation. There are difficulties for an applicant under the legislation as it was in terms of the requirements for the applicant to be able to satisfy the Commission on the balance of probabilities. There was no onus of proof on the respondent as is now the case. 99 The Act must be construed according to its terms. The purposive approach adopted in interpreting protective and beneficial legislation can be appropriately applied to the interpretation of s 210. Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 332-336 per Kirby J. 100 The freedom from victimisation provisions of the Act are clearly protective which have been legislated to achieve high social objectives and therefore should be construed beneficially and not narrowly. 101 Section 210 derives from the ILO Right to Organise and Collective Bargaining Convention 1949 (No 98) and also imports terminology from the Termination of Employment Convention, (No 15*) 1982 specifically, Article 5, of Division A, Part II. Standards of General Application which sets out prohibited reasons of termination of employment. The Convention refers only to termination as the requisite prohibited act of the employer therefore Article 5(c) is more narrowly constructed under s 210(g) which concerns victimising acts. 102 One of the principal objects of s 210(g) is to ensure that employees who pursue their rights through the industrial justice system are not deterred from pursuing those rights for fear of reprisals or detriment. The purpose of the section is to protect the free will and autonomy of the employee, from victimising conduct of employer and industrial organisations. By being free from victimisation employees will be free to participate in the industrial justice process. The protection of employee's participation afforded through s 210(g) creates a justiciable right to freely participate in the industrial justice process by prohibiting retaliatory or victimising acts by employers. 103 The protection of employees who choose to participate in the industrial justice system is fundamental to the very existence of a process of justice giving s 210(g) a related and equally important origin and purpose (see R v Rogerson (1992) 174 CLR 268 at 280 per Brennan and Toohey JJ [7]). 104 Section 210(g) is importantly part of the genus of the common law of contempt (see Re Read and Huggonson (St James's Evening Post case) per Hardwick LC (1742) 2 Atik 469; 26 ER 683 quoted in Australian Building Construction Employees' and Builders' Labourers' Federation v Commonwealth and others (1981) 53 FLR 396 at 401 [8]: For there can be no greater contempt that to intimidate a witness before he gives his evidence or to victimise him afterwards for having given it. AG v Butterworth [1962] 3 All ER 326 at 329 per Lord Denning [9]. 105 Section 210(g) adds greatly to the protection to employees over that which is provided by contempt law by providing powers under s 213(1) and (2) for the Commission to order a wide range of remedies. Common law contempt whilst protecting the administration and process of justice can provide little justice for the victimised individual (see Chapman v Honig [1963] 2 All ER at 521 per Pearson LJ). The Elements of Victimisation - Submissions - Applicant 106 There are three elements of victimisation as framed in s 210: 1 The employee did one of the things referred to in sub-paragraphs (a) to (h). 2. The employer or industrial organisation must have caused an employee to undergo or experience some injury, hardship, or loss or otherwise treated the employee harshly, unfairly or to his/her disadvantage in his/her employment. Whilst the Act does not specify the kind of conduct of an employer or industrial organisation that would constitute victimisation, this has been defined by the Full Bench of this Commission in the following way. The word 'victimise' is defined, inter alia, as "to make a victim of; to cause to suffer discomfort, inconvenience etc"; and where used in s 210 should therefore be interpreted as "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his employment". Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364 at 381 [12]. This ruling defines victimising conduct. 3. This conduct must have occurred because of one of the prohibited grounds set out in sub-paragraphs (a) to (h). 107 The applicant has an onus to prove to the Commission that she was victimised by her employer within the meaning of s 210(g) of the Act. It is submitted that all the elements constituting victimisation were present in the conduct of her employers towards her in the period of her employment from 16 April 1998 to 23 March 1998 at which time she was summarily dismissed. (a) The applicant was an employee and a participant in "proceedings relating to an industrial matter". An industrial matter is relevant defined in s 6(1) of the Act: (b) The respondent's conduct and treatment of the applicant was extremely harsh, unfair and to her detriment. The treatment of the applicant particularized in the outline of submissions are within the scope of the definition of victimising conduct adopted in Davis at p 381. (c) The respondent's victimising conduct towards the applicant was because the applicant was a participant in two separate and concurrent applications before the Commission against the respondent. The applicant's participation in those industrial proceedings was the reason that she was victimised by the respondent. 108 In Davis the Full Bench referred obiter to jurisdictional and legal issues which it was not required in that case to determine. One of those issues was the interpretation of the meaning of "because" to determine what should be the precise nature of the reasons or grounds of the employer's victimising conduct. 109 The causal nature of the term is clear. However, there is still ambiguity concerning the precise meaning of the term. Does "because of" imply a subjective element of motive and intent or is it rather an objective element that is merely causal? 110 The rule of construction that where there is ambiguity in beneficial legislation the ambiguous term should be defined in a way that is sympathetic and assists objectives of the statute should be applied to this question (see Bropho v Western Australia (1990) 171 CLR 1 at 20 [17]). 111 In order to further the objects of the Act and not to effectively frustrate the protection of employees from victimisation applications because of inherently difficult evidentiary tests it is submitted that the test that should be applied to the reasons for victimisation is an objective one of causation rather than requirement to prove the existence of a subjective element in motive or intention. Such an approach would be consistent with the Qantas construction rules. 112 It is submitted that motive and intent to victimise are not elements of victimisation but may be part of the circumstances affecting the conduct and relevant to the finding of victimisation. However it should not be part of the requisite burden on the applicant to prove a motive of the employer to victimise. What is required is that the employer's actions be caused by one of the prohibited reasons. This requirement is further qualified because that reason need not be the only reason, the determining reason or even a predominant reason. 113 It is submitted that the substantial and operative grounds or reasons rule should be appropriately applied to the determination of victimisation in this application. The position of Nick Manias - Submissions - Applicant 114 Nick Manias was not an employee of the Lagoon Seafood Restaurant. Determining what he was exactly is not so clear from the evidence due to Nick Manias, Vania Harrison and George Harrison dissembling in regard to his precise status at the Lagoon Seafood Restaurant. 115 The multi-factor test of employee status with control being the most significant of the factors clearly on the evidence before the Commission would indicate that Nick Manias is not an employee (see Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 per Mason J with whom Brennan J was in 'general agreement'). 116 Vania Harrison in her evidence in cross-examination stated that there was no contract with Nick Manias but described the relationship as a clear understanding. 117 She also explained what happened in the Restaurant when Nick Manias was absent for several years. He was not replaced in the kitchen. 118 Vania Harrison explained the meaning of Nick Manias being designated a "consultant". It is not meant that Nick Manias is an independent contractor who is hired for service, it apparently has a more literal meaning, that is he consults with Vania Harrison about the management of the restaurant. 119 In addition she confirmed that Nick Manias made the final decision to hire the applicant. 120 Nick Manias has the power to hire and fire. 121 Mrs Harrison said: Q. So in regard to the kitchen he would make the final decision about hiring the prospective employees that came in. In regard to firing them or finishing them if they were an unsatisfactory employee, he also had the power to dismiss people? A. Yes, but he would consult me. Q. He would actually dismiss them after he talked to you about it? A. On occasions I think it happened one or two times but generally it would happen through myself. A. No, as I said I remember that happening a couple of times where he effected if, but generally over the fifteen years that was my responsibility. 122 Nick Manias receives no wages and only subsistence remuneration. 123 Nick Manias has the power in the restaurant to purchase and order from suppliers. 124 Nick Manias in evidence in cross-examination volunteered that he had "loaned" George Harrison a considerable amount of money. His evidence is that he loaned the money without George Harrison having to ask for it. He describes their relationship as very close. There appears to be a relationship of maintaining secrecy about at least Nick Manias winning $120,000 at the races whilst a bankrupt and still managing to loan all of that money to a "friend". The money has not been repaid. 125 Mr Manias denied that he was either a creditor or a partner, but later in his evidence in cross-examination Nick Manias remembers that he has a partnership with George and Vania Harrison in a racehorse. His evidence is that he payed no money into the partnership. 126 George Harrison in his evidence in cross-examination confirmed an "understanding" of a sharing of profits with Nick Manias in the business of the restaurant. 127 Nick Manias expressed his strong attachment to the restaurant. He speaks of it as his property, certainly as something he possesses although he claims to have property in Greece and he is doing his work at the restaurant for a holiday and hobby. 128 Although Nick Manias claims never to have had an argument with George Harrison about finances there apparently exists no time frame for the repayment of the "loan". It is a reasonable implication that the money allegedly loaned to the business, which is claimed to be $120,000.00 whilst Nick Manias was an undischarged bankrupt, is really a financial investment in the restaurant. Due to his bankruptcy Nick Manias would have had a motive to invest his money quietly in the business as gambling winnings. 129 In Shand v Ball (1936) 35 AR 77 at 82 per Browne J [26] Shand and Ball were claiming to be partners, but in this case Mr Manias and the Harrisons were denying it and whatever they say about partnership all the facts that emerged from the evidence indicate that they are in a partnership relationship. The unusual facts of Vania Harrison paying Nick Manias from her personal account, not through the wages books, paying for his electricity, rent and even his dog licence indicate a close partnership that is almost protective of Nick Manias. In addition the large "loan" that was given to George Harrison for the business could be seen as collateral and finally George Harrison confirmed a share of profits arrangement with Nick Manias. In addition Nick Manias appears to be able to hire and fire, pledge credit for the business and had until recently presented himself to the world at large as a partner in the restaurant. If Nick Manias is not a partner that is not crucial to the critical issue. Nick Manias clearly exercises all the prerogatives of management, albeit in consultation with Vania Harrison. He is so close to Vania and George Harrison personally and in his managerial role that the issue of vicarious responsibility of the Harrisons for his actions need not arise. Nick Manias was at its weakest a senior manager in the restaurant who acted in concert with the Harrison's in regard to the business. There is no doubt of this from the evidence. 130 Nick Manias confirms that he employed the applicant. He also confirms his power to sack workers and attempts nonchalantly to calculate the number of employees that he has dismissed in the Lagoon Seafood Restaurant. For Nick Manias the right to dismiss was not an abstract power of the employer. His evidence is that although he could not recall exactly the number of people that he had dismissed it was a very large number. He also stated that he believed that he had the power to dismiss the applicant. 131 Nick Manias clearly knew of the witness statement at the same instant as did Vania Harrison if not slightly beforehand. Any investigation of the allegations contained in the applicant's witness statement was extremely cursory on the evidence given about this point by Nick Manias. It appears he was believed at face value when he denied absolutely the allegations in the applicant's witness statement that referred to him. This absolute denial appears to be good enough for George and Vania Harrison. It was a totally inadequate investigation of Nick Manias' denials. The allegations were extremely serious and the Harrisons appear to have backed up their friend from the very beginning. Nick Manias was backed up and protected rather than the applicant being supported and protected by her employers. Her tormentor was empathised with and the Harrisons exercised no control over Nick Manias but rather joined in victimising her. 132 Nick Manias understood very well that the applicant was a participant. He was also a participant and he was aware that he would have his day in court to answer under oath the allegations in the evidence that he would be called to give before the Commission. Of course, he would only have his day to answer the allegations if the applicant proceeded. Rather than being confident of his evidence Nick Manias, George Harrison and Vania Harrison did everything they could to pressure and intimidate the applicant from proceeding in the Commission. They victimised her because she told the truth. It is not a defence to victimisation to claim that an employee was perjuring herself and she had to be stopped. However in this matter the applicant had courageously decided to participate in an unfair dismissal hearing to give her evidence freely and honestly. She did so against great odds and enormous pressure. If the respondent had shown similar confidence in their evidence then no victimisation would have occurred. Indeed Nick Manias has said he wanted to defend his "honour". What better place than in the process of justice to mount that defence. George Harrison as a lawyer should have counselled his good friend concerning the protections that are afforded to people through the due process of the Commission. Men of "honour" need not fear courts or victimise those who participate in them. 133 The applicant was desperately seeking work in a region with very few work opportunities particularly for women. Her work pattern is typical where women have very few opportunities. She was a determined and hard working mother who took whatever work was available and did her best in whatever situation she was placed. 134 The evidence by Nick Manias that he had employed the applicant was confirmed by Vania Harrison in evidence in cross-examination. 135 The applicant commenced her employment at the restaurant on 8 October 1996. 136 After two weeks the applicant was transferred to the position of cook in the entrée section of the kitchen. 137 Whilst working at the restaurant the applicant was verbally and physically abused by Nick Manias. 138 After her injury, operation and recovery the applicant was under great financial pressure to return to work by the fact that her husband was about to lose his job. During the period of the victimisation incidents the applicant's husband mostly was out of work making it financially imperative that she return to paid employment and if possible progress through her rehabilitation program and be able to stay at work. The applicant's evidence shows this very clearly. The financial pressure on the applicant to return to full paid employment meant that she was willing to endure almost anything to be able to feed, educate and financially maintain her family. 139 After the applicant had been verbally abused by Nick Manias when she attempted to return to work with a medical clearance, she consulted her doctor and was placed in the care of a rehabilitation program with the South Coast Medical Centre. She was desperate to return to work and her financial plight would have been known to the respondents. All the instances of victimisation of the applicant occur within the context of her financial plight and her desperation to return to full paid employment. As her employer the respondents would have had some awareness of her circumstances. The huge inequality of power and resources between the applicant and the respondent was a vital context for the duress and unfair pressure that was placed on the applicant. Duress is used here somewhat similarly to the contract law doctrine of unfair advantage and illegitimate pressure. This doesn't mean that the applicant's will had to be "overborne" for duress to be applied to her. The overborne will doctrine has been rejected in Crescendo Management Pty Ltd v Westpac Banking Corp (1988) 19 NSWLR 40 [28] and see also Equiticorp Finance Ltd v Bank of New Zealand (1993) 32 NSWLR. 140 However, as in the applicant's situation during this period of victimisation, it is inherent in the nature of a threat that alternative courses of action are open to the victim, even if one may be extremely difficult and it is not essential that the illegitimate pressure on which the claim of duress is based be the sole cause of the determining the actions of the applicant. The respondents were aware of her desperation and used illegitimate pressure in an attempt to stop her participating in industrial proceedings. It is a mark of the remarkable character of the applicant that she refused to yield her free will in regard to her participation in the industrial matters to the respondents. Perhaps weaker souls would have relented if found in the applicant's situation and could anyone have blamed them if they did? The applicant throughout this awful period of her employment was placed under extreme and illegitimate pressure by the respondent. The applicant has a very strong sense of justice based on a faith in a natural law morality of clear right and wrong. It was exceptionally courageous for the applicant to have resisted unrelenting duress and harsh pressure from the respondent. 141 The evidence of Susan Milne the occupational therapist from the South Coast Workers Medical Centre should be believed in preference to the version of George, Vania Harrison and Marissa Bukolic. There are several reasons: she is a well qualified and experienced health professional, she has no personal interest in her version of the meeting and she maintained excellent contemporaneous documentation in regard to the meetings, monitoring and work programs of the applicant. She did not waiver in her understanding and recollection of what occurred on the 16 March in regard to George Harrison's conditions on the applicant's return to work. Submissions - Respondent 142 It is common ground between the parties that Mr and Mrs Harrison both enjoyed a very good relationship with Ms Tapia prior to her attempt to return to work from workers compensation leave on the 6 January 1998. Ms Tapia had been away from work for a significant period as a result of surgery on her ankle. 143 In fact, Mrs Tapia received a pay rise before going on workers compensation leave in May 1997. 144 Mr Manias deposes to having a high regard for Ms Tapia as a worker and denies having had any conflict with Ms Tapia during the period from the commencement of her employment until she left as a result of the injury to her ankle in 1997. 145 Mr Manias emphatically denied the instances of abuse asserted by Ms Tapia against him in the Sirijovska witness statement. Without traversing the specific details of the allegations, it is accepted in evidence that Ms Tapia asserted that she had been physically and verbally abused by Mr Manias and that he had threatened to sexually assault her during the period from the commencement of her employment until she left on workers compensation leave in May 1997. It should also be noted that in February 1998, Ms Tapia made a statement under oath deposing to Mr Manias' alleged conduct and stating that across the entire period of her employment at the restaurant she had been terrified of him and could not cope with the work situation with Mr Manias any longer. 146 Ms Tapia gave evidence that she had not made any complaint at the time they occurred in relation to the quite heinous allegations of physical, verbal, and sexual abuse asserted against Mr Manias to any person prior to 6 January 1998 - her husband, her union, Mr or Mrs Harrison or any of her work mates. There was no evidence she had a bad relationship with Mrs Harrison. She was a member of the union at the time. The first of those allegations appeared on 17 February 1998, when they all were said to have occurred before May 1997. 147 The photograph evidence of the Christmas Party of 1996 shows Mrs Tapia has her arm around Mr Manias' shoulders, a beverage in one hand and a cigarette in the other. Mrs Tapia also conceded she did not appear frightened, and was not, in that photograph. 148 The circumstances surrounding Ms Tapia's attempt to return to work on 6 January 1998 laid the foundation for the events which transpired. Ms Tapia's evidence was clear that she was desperate to return to work. She gave evidence that her husband was unemployed, and that she was the sole breadwinner for the family. Mrs Harrison's evidence was that she was pleased to have Ms Tapia return to work, and that she accommodated Ms Tapia's request to commence on 6 January 1998. 149 Mrs Tapia conceded in her evidence in that respect that Mrs Harrison was entirely civil and polite to her when Mrs Tapia contacted her about coming back to work. Mrs Harrison accommodated the shifts required. Mrs Tapia's evidence was she thought Mrs Harrison was pleased to talk to her and would be pleased to see her. 150 However, on her return, Mrs Harrison noticed that the applicant was limping. Mrs Harrison asked her to obtain a medical certificate certifying her fitness to return to work. There is no contest on the facts that the applicant was not only not fit to return to work on that day, but that she was not fit because of the injury to her ankle for some considerable time after 6 January to return to work. 151 Mrs Tapia's version of the events which she said occurred when she arrived at work on 6 January - that she had immediately been attacked verbally without provocation by Mrs Harrison and Mr Manias - does not accord either with the evidence or with commonsense. Mrs Tapia could offer no explanation whatsoever as to why she had been so attacked by Mr Manias. As at that date Mrs Tapia had not prepared her witness statement making her allegations against Mr Manias. That Mrs Harrison, as alleged by Mrs Tapia, heard the verbal attack but simply ignored it, and then, activated by malice, concocted a reason why Mrs Tapia could not return to work that day, does not accord with the reality of the circumstances. 152 The approach taken by Mrs Harrison to Mrs Tapia upon her attempt to return to work on 6 January was one which was entirely consistent with the proper discharge of her duties as manager of the restaurant. It would have been remiss if Mrs Harrison had let her go back into a busy kitchen when she was heavily limping. That was not only a proper assessment made by Mrs Harrison at the time, it is also consistent with the medical records available from Mrs Tapia which provided she could return to work if she was not limping. 153 In relation to the events of 6 January, the version of events that was adduced by Mrs Tapia also raises some concerns in relation to her credibility. She said clearly under cross examination that she had not had contact with Mr Harrison, Mrs Harrison or Mr Manias in the eight months she had been absent from the restaurant on workers compensation leave – May 1997 to 6 January 1998. There had been no contact other than that requested by Mr Harrison to pick up a cheque from Mr Harrison's legal office on one occasion. Mrs Tapia gives no explanation for what she says was an attack launched upon her by Mr Manias as soon as he saw her. Her evidence was that he launched into an extremely vulgar attack, and Mrs Harrison stood by and watched. 154 Mrs Tapia's evidence was Mr Manias did not say hello to her, but, straight away, used offensive language. The evidence sought to be accepted was that he was motivated by some level of animosity and she was prevented from coming to work. Mrs Harrison's version of those events not only much more accords with common sense, but it is also consistent with the proper discharge of her responsibility as an employer. The last medical certificate from November the previous year, provided that Mrs Tapia could return to work on the 7 January 1998, if she was not limping. 155 Mrs Harrison's course in requesting a medical certificate was that of a responsible employer and, in fact, Mrs Tapia was not medically fit to return to work on the 6 January. There is in evidence medical certificates subsequent to that date which confirm that. Mrs Harrison's evidence ought be accepted in relation to that incident. 156 Another issue of Mrs Tapia's credit relates to the evidence given of her participation in the Sirijovska proceedings. Mrs Tapia's evidence was that, after she left, having conceded she was upset, on 6 January she was asked by her nextdoor neighbour, Mrs Sirijovska whether or not she would appear in the Sirijovska unfair dismissal proceedings. 157 The evidence that Mrs Tapia gave was that she had been previously asked by Mrs Sirijovska to appear as a witness. Mrs Tapia's evidence was she had previously thought twice about it and then thought – why not – but something came up on the day and she was not able to attend the hearing. Mrs Tapia asserts she was asked again after the 6 January, and then decided to participate. 158 Mrs Tapia was angry and upset when she left the restaurant and the respondent says that it was in that context that she decided to become involved in the Sirijovska matter. The respondent contends that Mrs Tapia's evidence as to her involvement in those proceedings before 6 January 1998 was false. In that matter there had been no hearing dates nor witness statements prepared in 1997 contrary to Mrs Tapia's story. The circumstances of her involvement raises issues relating to her credibility as a witness. 159 That false history, as well as other evidence given by her discloses that Ms Tapia is prepared to "gild the lily" and she does not appear to have any compunction in exaggerating and amplifying her evidence when she considers it will assist her case to do so. 160 It is submitted that there is a very strong foundation for the Commission not to accept that Mrs Tapia is an honest or credible witness, and that there is a very strong foundation for the Commission to conclude her evidence should not be believed where it conflicts with the evidence, in particular, of Mrs Harrison, and other witnesses in general. 161 In the course of the Sirijovska matter, Mrs Tapia encountered Mr Matters. At all relevant times Mrs Tapia was a fully paid up member of the Liquor, Hospitality and Miscellaneous Workers Union, Liquor Division (the LHMU). Her evidence was that she had made an appointment in January at the Wollongong office of the union to see "a gentleman called George - I do not recall". She accepted the suggestion that would be Mr George Gogich. However, her description of the lady with whom she made the appointment did not match that of Ms S Sheehan employed at that office. Ms Sheehan had no recollection of Mrs Tapia attending the union office asserting she had an appointment with Mr Gogich. There was no record of any appointment for Mrs Tapia in the office records kept to record appointments for the period January to May 1998. There was one reference involving Mrs Tapia and Mr Gogich that being on 8 July 1997. Mr George Gogich had not worked for the union since the previous October. 162 That patently false evidence was another instance showing that Ms Tapia was prepared to exaggerate and even to fabricate evidence when it suited her purposes to do so. 163 The first thing to be taken from the evidence she gave in relation to her supposed meeting in January with George Gogich is that evidence was false. Miss Sheehan also gave evidence that she did not use the words attributed to her by Mrs Tapia when Mrs Tapia asserted she had an interview, she did not recall the date, that it was Monday, shortly after she was refused permission to return to work at the Lagoon Restaurant on the 6 of January 1998. Mrs Tapia's evidence was she made an appointment to see George Gogich at the office in Wollongong. Mrs Tapia's version of events was she turned up, waited, Mr Gogich did not arrive. The person in charge said – Mr Gogich is off on important business somewhere else, I will make another appointment if you like. Mrs Tapia, on her evidence, became upset and said – nobody is helping me, I am going to see Mr Matters. 164 The evidence is clear that evidence was not honest evidence given by Mrs Tapia. The question that arises is – why would she lie? It is submitted that arose out of an attempt to explain away why she chose to be represented in these proceedings by Mr Matters. 165 The description given by Mrs Tapia of the person that she spoke to at the office of the ALHMWU did not match the appearance of Miss Sheehan. In relation to that Miss Sheehan gave evidence that she had no recollection of having seen Mrs Tapia, she would have recorded that request for an interview in the phone message book or the diary. There was no such record. The only record was a record of an appointment that occurred in 1997 at the time Mrs Tapia left the restaurant on workers compensation leave. Miss Sheehan also gave evidence she was the only person working in that capacity in the office at that time. It is submitted that evidence was not credible. 166 Prior to 1996, there had also been a personal relationship between Mr Harrison, Mr Manias and Mr Matters. Mr Manias and Mr Durusovski gave evidence that in about 1995 Mr Matters had resided for a period in Mr Manias's flat. Mr Matters denied he was residing at Mr Manias's flat, but conceded that he had his personal effects stored there. 167 In relation to Ms Milne's evidence as to the return to work meeting on 16 March 1998, it must be noted that Ms Milne was not aware of the acrimonious history between Mr and Mrs Harrison and Mr Matters, nor of the threats Mr Matters had made to Mr Harrison either in November 1997 or just three days prior to 16 March when Mr Harrison has successfully sued Mr Matters for debt in the Wollongong Local Court. Ms Milne was also ignorant of union issues such as union coverage of employees, in this case the LHMU and their responsibilities to their members such as Ms Tapia. 168 Ms Milne's evidence was that Mr Harrison did not specifically state that Ms Tapia would not be offered duties if the [Sirijovska] statement remained unchanged. If Mr and Mrs Harrison had wished to bring pressure on Ms Tapia to change that statement, it would be illogical for them to do so in the presence of an independent witness such as Ms Milne, particularly as she was employed by the South Coast Workers Medical Centre (SCWMC), an organisation with affiliations to the SCLC of which Mr Matters was the Secretary. 169 The allegations in the Sirijovska statement were critically relevant to Ms Tapia's return to work program and the return to work meeting with Ms Milne present was the most appropriate forum to discuss the issue. All Ms Milne's oral and documentary evidence discloses that she was receiving advice from Mr Matters as to how those allegations should be dealt with in the context of Ms Tapia's return to work program. 170 Ms Tapia had been advised by Mr Matters not to talk to Mr and Mrs Harrison about the allegations. Ms Milne refused to participate in such discussions. Mr Matters, Ms Tapia's "union representative", would not speak to Mr and Mrs Harrison. Mr and Mrs Harrison were prevented from discharging their responsibilities under the Occupational Health and Safety Act (the OH&S Act) to Ms Tapia, despite her expressed fear of Mr Manias. Mrs Harrison wanted specifically to either prevent, or minimise contact between Ms Tapia and Mr Manias until the allegations were resolved. That outcome was thwarted by the demands of Ms Tapia herself supported by Ms Milne. It is submitted that the concerns held by the Harrisons as to this situation displayed a much higher level of concern for Ms Tapia than was evidence on the part of either her rehabilitation service provider or her "union representative". 171 Ms Tapia's understanding that none of the matters she addressed in the Sirijovska statement could be discussed with Mr and Mrs Harrison because they involved an "industrial matter" as distinct from the "workers compensation" matter of a return to work was a profound misconception on her part and made it extremely difficult for Mr and Mrs Harrison to discharge their OH&S Act obligations to her. It is a misconception that lies at the heart of the dispute now before the Commission, and was one held by Ms Tapia, clearly on the advice of Mr Matters. Ms Tapia perceived that she was being "victimised" because Mrs Harrison sought to comply with the preparation requirements of Ms Tapia's return to work program and tried to investigate the allegations and enquire of Ms Tapia her feelings about working in proximity with a senior male employee whom Ms Tapia had alleged had physically and verbally assaulted her. Such actions on Mrs Harrison's part were not a "detriment" to Ms Tapia in terms of s 210(g) nor were they victimisation of Ms Tapia. 172 Mr and Mrs Harrison separately raised the allegations with Mr Manias. 173 At no stage during proceedings was it every charged by Mr or Mrs Harrison against Ms Tapia, on her evidence or any other evidence, that she was "going to court against the restaurant" or that she was "appearing for Sirijovska" i.e. there was no issue complained of that Ms Tapia was participating in an "industrial matter". The only time Mrs Harrison spoke to Mrs Tapia about the witness statement was on a Sunday afternoon when Mrs Tapia approached Mrs Harrison first, not the other way about. 174 The Harrisons had a duty to investigate the very serious allegations raised by Ms Tapia. They both did so to the extent they were able to do so without speaking to Ms Tapia in relation to them. 175 The Harrisons also had obligations to Mr Manias. Mr Manias had denied all the allegations. In respect of two of the allegations the Harrisons had been able to satisfy themselves that they were not true. In the light of Ms Tapia's refusal to discuss her statement, the Harrisons could not progress their investigations further. 176 Less than one month before returning to work Ms Tapia in the Sirijovska statement said she was "terrified and unable to cope with Mr Manias". Yet in discussions of her return to work program she rejected attempts by Mrs Harrison to keep her away from contact with Mr Manias, insisting that it was appropriate for her to take work directions only from him. The respondent submitted that it may well be open for the Commission to draw an inference about the credibility of Ms Tapia's evidence from those circumstances. 177 In relation to the second alleged incident of victimisation on 30 March 1998, Mr Harrison admitted he was frustrated after a second return to work meeting with Ms Milne, because he could not make her understand the safety measures he saw as necessary to be included in that program. Driving away from that meeting he saw Ms Tapia "walking away briskly climbing up to the Novotel" and made the statement to her that he should not, in hindsight, have made that she had been lying about her medical condition. 178 Counsel for the respondent conceded that Mr Harrison's comments were not helpful, but submitted there were very strong grounds for accepting they arose out of the frustration of his attempts to ensure that Ms Tapia returned to an appropriate work environment. There was no suggestion that Ms Tapia would not commence her duties on 30 March 1998. She did in fact do so. 179 Mr and Mrs Harrison were confronted with a potentially volatile situation on the applicant's return to work. Ms Tapia had made heinous accusations against Mr Manias. She refused to discuss those accusations. She refused attempts by Mrs Harrison to minimise contacts between herself and Mr Manias. On the contrary she insisted that Mr Manias as chef be the person to give her directions. Mr Manias knew of, and denied, the allegations but was placed in a situation where the applicant, supported by her rehabilitation service provider, insisted she take her work directions from him. 180 The numerous suggestions by Mr Matters that even in the event that it was found that Mr Manias was guilty of the conduct alleged, Mr and Mrs Harrison would not take action against him was not only speculative but contrary to past history. Mr Harrison had on an earlier occasion refused to sack an employee as demanded by Mr Manias with the ultimatum "Mr X or me". Mr X stayed. Mr Manias left and returned to Greece for three years. 181 The simple fact of the matter is that Mr and Mrs Harrison were prevented from forming a concluded opinion about all of these alleged incidents because Ms Tapia refused to discuss the allegations she had made about Mr Manias with them. The Harrisons were also precluded from ensuring that Ms Tapia's fears and concerns about Mr Manias were appropriately accommodated into her rehabilitation and return to work program because she flatly refused to discuss them with her. 182 The enquiries made did not provide a foundation for disciplining Mr Manias and it is difficult to see how this matter could have been progressed any further without Ms Tapia's participation. Allegations of a criminal nature as were made also impose a responsibility upon the employee to participate in investigations by the employer. A union representative should also have assisted such a legitimate and proper enquiry. No efforts were made by Mr Matters to do so. 183 Mr Manias had told Mrs Harrison that the allegations were untrue and he did not have any problem working with Ms Tapia. He tried to avoid contact with her, but the evidence of Mrs Harrison was that Ms Tapia sought him out to get instructions fro him, and she did not want to take instructions from anybody else. The situation was such that Mr and Mrs Harrison had difficulties for the management of a harmonious work environment. That was the volatile situation after Ms Tapia returned to work. 184 The work environment at the restaurant from 30 March 1998 until 24 April 1998 was clearly an unhappy and unstable environment. Ms Tapia was upset and angry because she felt her return to work program was not being complied with by management, and she was behaving in an increasingly angry and defiant manner, refusing to perform her preparation work and engaging in argument with the chefs and with Mrs Harrison and Mr Manias when she was requested to perform preparation work, banging plates and dishes and generally making her displeasure about what she perceived as non-compliance with her return to work programme evident. 185 It is clear that Ms Tapia formed a very strong perception that her rehabilitation program was not being complied with during the period 30 March 1998 until she left the restaurant on 24 April 1998. This view permeated Ms Tapia's witness statements. 186 Mrs Tapia asserts that the direction she received from Mr Harrison not to speak in Spanish in the kitchen was an element of her victimisation. What in fact occurred at this stage was that Mrs Tapia was having, even on her own evidence, a serious argument with one of the chefs Mr John Barra Jaire. That arose when he requested she perform rehabilitation work. Ms Tapia, in Spanish, told the chef, Johnny, of her strong displeasure as to peeling potatoes and onions. The dialogue that she had with him was, clearly, a belief that she was being asked to do inordinate amounts of preparation work. She had a heated argument with him in Spanish. The exchange, and the tone of it, caught the attention of Mr Harrison who asked Ms Tapia what was the problem and why was she upset. He was rebuffed by Ms Tapia. Mrs Tapia responded very brutally to him, "If you don't know what we are talking about, don't you worry about it." 187 There was no evidence, apart from the Macedonian washing up ladies, that there was anything other than English spoken in the restaurant. Speaking English in the context of where Mrs Tapia was having a heated argument with one of the chefs was entirely reasonable and could not be considered as an act of victimisation. 188 That event led to a further claim by Ms Tapia of victimisation. Mr Harrison gave evidence that he requested Ms Tapia to speak in English in the workplace and Mrs Harrison had given evidence that there had been complaints from other workers about Spanish being spoken. It was entirely reasonable for Mr and Mrs Harrison to direct their employees that English is the appropriate language to be used in the kitchen. 189 Ms Tapia refused and started asking her co-workers if they had a problem if she spoke in Spanish. Ms Tapia escalated the dispute to involve other employees. 190 Ms Tapia's refusal of instructions to work out the back and her insistence on moving back to work in the kitchen was conduct that precipitated the argument with Mr Manias which resulted in Ms Tapia leaving the restaurant on 23 April 1998. 191 Mrs Tapia's evidence itself was that Mr Manias directed her to perform preparation work and Mrs Tapia refused and defied Mr Manias and the argument essentially started. Even on Mrs Tapia's evidence, Mr Manias said, "You have been difficult to work with in the kitchen." It went from there to, "You are saying these outrageous things about me." The events of 23 April were, there is absolutely no doubt, an unfortunate occurrence. However, they are not amenable to the interpretation that Mr Matters has placed upon them. 192 Ms Tapia perceived that she was being victimised because of the amount of preparation work she was required to do out the back, and the length of time she spent on it was not in accordance with her rehabilitation plan. That perception significantly coloured her view that she was being victimised by Mr and Mrs Harrison. The evidence is clear that was not the case. There is also clear evidence that that perception upset her and caused her to behave in what can only be described as a difficult and abrasive manner. Ms Tapia became disruptive in the workplace when she perceived the requirements of her rehabilitation programme were not being met and she would argue with the chefs, and become angry, banging pots, speaking aggressively to the chefs and other employees in Spanish, and defying the chefs and Mrs Harrison when she was required to perform preparation work in compliance with her rehabilitation programme. 193 Throughout Mrs Tapia's witness statement were allegations that she was subject to enormous detriment by the employer forcing her to do preparation of potatoes and onions out the back. This was a cause of extreme discontent on every occasion Mrs Tapia was requested to perform preparation work the evidence is clear she engaged in argument with the chef and other employees or went and approached Mr Manias and engaged in an argument with him in relation to it. 194 Mrs Tapia's rehabilitation program provided that she spent half her time doing preparation work, sitting at a table out the back resting her injured foot. She was at the restaurant for something like eighty two and a half hours from when she returned on 30 March 1998 until she left on the 23 April 1998. What that means is she should have done just over forty hours of preparation work, if her program was to be complied with. 195 There is evidence of the invoices for the potatoes and onions that came into the restaurant during the monthly period. Mrs Tapia was only there for just over three weeks, three weeks and two days, of that month. The evidence was unequivocal that eleven and a half hours of preparation work, peeling potatoes and onions, came into that restaurant during that time. That necessarily means the evidence given by Mrs Tapia is such a gross exaggeration there is no way it could be excused as some sort of misunderstanding. 196 Even if Mrs Tapia peeled every single potato and onion that came into the restaurant across that period she could not have done more than eleven and a half hours worth of preparation work. The assertion that something like six hours a day for twenty four days, being approximately 138 hours of preparation is so clearly the reverse of that it raises serious questions about the credibility of the applicant's evidence in that respect. 197 Much more significantly though, is that it was very clear that Mrs Tapia had an utter and complete conviction that she had been victimised because she was being required to do preparation work. The fact is that that perception was far removed from reality. 198 On Mrs Tapia's evidence in this respect, all of the dissension in the kitchen, arose when Mrs Tapia was requested to perform preparation work. 199 Ms Tapia refused instructions by Mrs Harrison on the night of Saturday 18 April to do prep work at the back where it was safer and not remain where she was in the middle of the very busy preparation area. Ms Tapia responded aggressively and inappropriately. Mrs Harrison's evidence was that Ms Tapia had yelled at her. Even relying upon Mrs Tapia's evidence in that respect, Mrs Tapia rudely and offensively defied Mrs Harrison and yelled at her and refused to comply with the request. 200 Mr Helder Ignatio said Ms Tapia had told Mrs Harrison "you can't tell me what to do, I know my rights, you are victimising me". He said the whole kitchen staff went quiet and stopped what they were doing and started to see what Mrs Harrison did. What did Mrs Harrison do? She simply turned around and walked away. She was not going to have that matter escalate into a debate and, of course, Mrs Tapia stayed in the kitchen. 201 Ms Tapia approached Mrs Harrison on the evening of 19 April 1998. Ms Tapia told Mrs Harrison that the information in her witness statement was different to what she had told Mr Matters. Mrs Harrison quite appropriately asked if Ms Tapia wanted to put on another statement clarifying what she had just said. Mrs Harrison offered to pay for Ms Tapia to obtain independent legal advice. Mrs Harrison denied Ms Tapia's version of what was said at that meeting, including the claim that Mr Manias was present. 202 The difference between what Ms Tapia said in Exhibit 6 par 141 and what she alleged in the Sirijovska statement leads to the inescapable conclusion that Ms Tapia should not be accepted as a witness of credit. On the other hand, Mrs Harrison presented as a highly credible and honest witness whose evidence should be accepted as measured and honest and to be preferred to the evidence of Ms Tapia where there is a conflict. 203 Mr Matters attempted to make much of the use of bad language in the kitchen. It is not, however, necessary to traverse this matter in any detail because it was not suggested that the use of bad language in the kitchen was any different before or after the service of the Sirijovska witness statement upon the respondent. No evidence was adduced that suggested that Mr or Mrs Harrison had ever used bad language in relation to Ms Tapia. Although initially denying that she used the word "fuck" at work, Ms Tapia later said she had done so on a number of occasions. 204 The dispute which precipitated Ms Tapia's leaving the restaurant on 23 April 1998 arose out of precisely Ms Tapia's perception that she was being victimised by being forced to perform prep work in what she perceived as a breach of her return to work program. 205 During the course of the morning of 23 April, Ms Tapia, in the presence of Mr Manias, referred to a conversation she had had with other employees in which Ms Tapia had said Mr Manias "gets completely unbalanced". "He should seek professional help". Ms Tapia then refused to perform preparation work as directed by Mr Manias. In the circumstances, and considering the sensitivity Mr Manias had concerning Ms Tapia's allegations of his misconduct, it is hardly surprising that their workplace relationship reached "flash point" and an argument erupted between Ms Tapia and Mr Manias. 206 Although on 23 April, Ms Tapia had told Mr Harrison he could speak to Paul [Matters] when he comes (Ms Tapia had telephoned Mr Matters), Mr Matters did not come. 207 At that stage Ms Tapia had joined the AWU. Before coming down to the restaurant, Mr Harrison had telephoned Neville Hilton from that Union for advice and wanted to discuss Mr Hilton's suggestion with Ms Tapia. She refused to speak to Mr Harrison at all unless Paul Matters was present. 208 Ms Tapia said she was terrified at the time and terrified of Mr Manias, saying that he had repeatedly tried to punch her but that Mr Harrison had pulled down the roller door between them. 209 Mr and Mrs Harrison moved heaven and earth and they did every conceivable thing they could to ensure that Mrs Tapia did not have contact with Mr Manias in the kitchen. Whether the allegations Mrs Tapia made were true or not, and there are certain inferences that can be drawn from that, in the light of Mrs Tapia's own evidence, but whether they were true or not, it is just incomprehensible that any person with a scintilla of commonsense or common decency would think it was inappropriate to have Mrs Tapia return to work in close proximity with someone she asserted physically assaulted her, verbally assaulted her and threatened to sexually assault her. 210 Mr and Mrs Harrison took the view that the appropriate way to deal with those allegations, on the advice of the Restaurant and Caterers Association, was to investigate the allegations. That was part of their obligations as an employer. The fact that those allegations were clothed in a witness statement does not in any way derogate from their obligations to ensure that Mrs Tapia return to a safe work environment. 211 She had made the most heinous allegations one can imagine in relation to a more senior male employee. Mrs Harrison immediately contacted Warren Clough from the Restaurant and Caterers' Association and he advised her they had an obligation to investigate and they should keep the parties separate until the matter was resolved. That is precisely what Mr and Mrs Harrison did. 212 It was an unusual set of circumstances for an employer to be placed in. They took appropriate action. They sought advice immediately. They did not attempt to see Mrs Tapia on her own. They waited until an entirely independent and appropriate person was present, Miss Milne, to raise those allegations with her. Mrs Tapia was returning to the work environment. It is entirely reasonable and entirely appropriate that that return to work program kept Mrs Tapia and Mr Manias out of each others way. Whether the allegations were true or not true one would expect a level of discomfort, a level of stress and a potential flashpoint to arise between two such employees. 213 Mrs Harrison, the evidence is clear, at all stages from the meeting on 16 March, wanted the assistance of Miss Milne to derive a return to work program that kept Mrs Tapia and Mr Manias apart. For some utterly inexplicable reason, Mrs Tapia rejected that approach. In her own evidence she concedes that Mrs Harrison raised that with her, using language to the effect, on Mrs Tapia's account, "One thing I would like to do is keep Nick and Nadia away from each other." Mrs Tapia rejected that and said, "No, as the head chef he is the person that I ought to take my work directions from." 214 In the context of less than six weeks prior to that comment being made, Mrs Tapia had asserted she was terrified of Mr Manias and that he physically and verbally assaulted her and threatened to sexually assault her. She said she could not cope with him. That position is an astonishing one. Even more bizarre is that Miss Milne appeared to support her in that. Again one only has to rely on Mrs Tapia's evidence. 215 The fact of the matter is that Mr and Mrs Harrison were left in an invidious position. They wanted to implement a return to work program that minimised the potential of a new conflict arising between Mrs Tapia and Mr Manias. There was some suggestion across the course of these proceedings that Mr and Mrs Harrison would never have taken the side of an employee against Mr Manias. 216 That was led by Mr Matters in cross examining Mr Manias about a dispute he had with Mr Harrison in about 1991. The evidence was that Mr Harrison had, in fact, sacked Mr Manias over a dispute involving an employee, where Mr Matters made allegations of sexual harassment. As a result of that Mr Manias attempted to terminate the services of that employee and Mr Harrison intervened to stop the termination. Because of that Mr Manias left and he went overseas for three years. 217 The evidence is absolutely clear that Mr and Mrs Harrison could indeed take disciplinary proceedings against Mr Manias over a dispute involving an employee. The proposition that was adduced throughout these proceedings, that Mr and Mrs Harrison would never have taken Mrs Tapia's side is demonstratively false. That comes back to what did they do in this case? 218 The evidence is very clear that Mr and Mrs Harrison investigated the matter as clearly and thoroughly as they could, subject to not being able to discuss it with Mrs Tapia. Mrs Harrison gave evidence that she took Mr Manias through the allegations in the witness statement. Mr Manias denied them unequivocally. She simply did not rest on Mr Manias's denials. 219 There was a fairly graphic incident that was alleged to have occurred on a specific date. Mrs Harrison checked the employment records of that date of the restaurant and found that Mrs Tapia was not present at work in accordance with those records on that day. 220 Mr Harrison, when he became appraised of the situation, when Mrs Harrison gave him a witness statement, also made inquiries of other employees, particularly a Mrs Zorka, who the employment records said was present on that day, which was an Easter Monday. She confirmed that Mrs Tapia was not present on that day. 221 Mr and Mrs Harrison did what they conceivably could to investigate the matter. One of the allegations where Mr Manias threatened Mrs Tapia with sexual assault, placed Mr Harrison within five feet of where these extraordinarily vulgar and graphic allegations were said to have been made. Mr Harrison said he knew he certainly had not been present when any such allegations occurred. 222 What else could they have done to investigate these allegations? Mrs Tapia refused flatly to discuss any of them. It was not possible for them to find out from Mrs Tapia what other employees may or may not have been present when these incidents occurred. Mr Matters made much in his oral submissions about the fact that Mr Harrison did not discipline Mr Manias or did not counsel him. One cannot progress from allegations to determination in one fell swoop. 223 The fact is that Mr and Mrs Harrison clearly had obligations also to Mr Manias. There is absolutely no embarrassment in that proposition or assertion. They had investigated the proceedings. The evidence that they gave was that at the stage the investigation was at, they had formed a view about two of the incidents but kept an open mind in relation to the other two. 224 It is simply inconsistent with procedural fairness and natural justice to expect them to form a view without a full and complete investigation. As an inquiry or an investigation proceeds the views about the substantive allegations may well change. 225 The evidence was clear that Mr and Mrs Harrison did act. They investigated as fully as they were able to. Without Mrs Tapia being prepared to discuss the matter with them at all there was very little they could, in any fairness, do. 226 Mr Matters also made much in submissions about why Mr Manias's shifts were not changed. Mrs Harrison's evidence was that his shifts would not change as he had to be there during peak periods. Mrs Harrison wanted to give Mrs Tapia shifts where she did not come into contact with Mr Manias but that was not acceptable to Mrs Tapia either. The situation that Mr and Mrs Harrison were placed in was a very very difficult one. 227 A very interesting question arises in relation to how this return to work program could or should have been managed. Mr and Mrs Harrison did everything they could conceivably have done to manage this difficult situation in a way which was responsible and accountable to Mrs Tapia. The incident on 23 April arose because Mr and Mrs Harrison were not able to effectively control the interaction between Mrs Tapia and Mr Manias. It was an incident which blew up in a moment. 228 Mrs Harrison's evidence was she tried to do something about it but it just got completely out of control. The argument that Mr Manias was not separated from Mrs Tapia is something in all these circumstances that can in no way be sheeted home to Mr and Mrs Harrison. If they had been able to introduce a return to work program that avoided or minimised the contact Mrs Tapia had with Mr Manias until the difficulties between them were resolved, it is very unlikely that incident would have occurred. 229 Mr Manias would have been entirely and understandably upset about the allegations. Any decent man would have been grossly offended about those allegations. The evidence from Mrs Tapia's own mouth is that they were substantially untrue, at least in some material respects. She said in her own evidence, "I never said Mr Manias assaulted me physically." That is what she said and the Commission was not being asked to traverse the truth or otherwise of the allegations. 230 Mrs Tapia gave evidence that: Yes, she expected Mr Manias to be angry about the allegations. Putting these two employees together is like putting them in a tinderbox waiting for the spark. It was not that Mrs Tapia was being asked to change her witness statement, what Mrs Harrison was requesting Mrs Tapia to do on 19 April was to clarify with Mrs Tapia whether what was in her witness statement was materially correct. 231 Mrs Harrison said: Go and get advice, go and see a solicitor of your choice and I will pay for it. That is an entirely reasonable thing for her to have done. The following day Mrs Tapia gave evidence that she was not proposing to avail herself of the opportunity to have free legal advice but the evidence shows on her own evidence that the spark that ignited this unfortunate event was when she defied Mr Manias. Her own evidence identifies that as the precipitating moment. 232 Mr Manias directed her to do some prep work and she flatly refused. She expressed words to the effect that Mr Manias needs professional assistance, in the context meaning psychiatric assistance, and, furthermore, she volunteered in front of him that she expressed that view to other employees. That is highly provocative conduct and in the circumstances of the particular allegations made and in the anger one would expect caused the explosion. 233 In the fairly volatile few minutes that followed there was no evidence about reference to participation in an industrial proceeding. The document was not referred to as a witness statement. Mr Manias simply lost control and said to his other co-workers: Look what she is saying about me. He did not say: That employee is going to court against me. There was not a scintilla of evidence that that was his concern. 234 Mr Manias's evidence was that in his entire working career he never had such allegations made about him. They were particularly unpleasant allegations. His evidence was that he was upset and concerned that the other employees would be aware of it and think badly of him. 235 The events that followed were a natural consequence of having two employees work together, considering the nature of the allegations made. It does not excuse that event and it certainly is not adduced on that basis but the fact of the matter is, the reason it occurred was because Mrs Tapia insisted on working in close proximity with Mr Manias. She continuously sought him out and it was the spark that blew up his frustrations and his anger about being the recipient of those allegations. There was not any evidence about the court proceedings. It was simply: Look what she said about me. None of you have seen me do that, have you? 236 Even at its highest, the event was a consequence of Mrs Tapia's flat refusal to participate in a return to work program that insulated her from Mr Manias and that event was not one which was substantially and operatively caused by her participation in an industrial matter or an industrial proceeding. It was an explosion resulting from another employee's response to particularly heinous allegations she had made. 237 The strength of Mr Manias's response can be supported by the fact that Mrs Tapia herself said in critical material respects that the allegations she made about him were wrong. She said she never said that he physically assaulted her. She quite clearly did. If her evidence about that was true then the witness statement was wrong in a critical and material respect and Mr Manias's response is more understandable. 238 Mrs Harrison attempted to control the situation but it got out of hand. It was over fairly quickly. It could not justify the assertion that it was conduct engaged in to punish Mrs Tapia for participating in an industrial matter. Mrs Tapia's evidence cannot suggest that the behaviour of Mr Harrison who was contacted immediately this incident occurred and who immediately came to the restaurant, was not anything other than polite and did his absolute best to calm her down. 239 He spoke to her softly. He said, "Nadia, I want to help you, tell me what is going on." Mrs Tapia asserts that there was an aggressive and violent interchange between Mr Manias and Mr Harrison. There were many other employees present on that day. There would be nothing precluding Mrs Tapia subpoenaing any of them to support the evidence she gave. Not one of the persons she identified was called and an inference can arise from that. 240 Mrs Tapia's evidence was that she had only barely missed being punched in the face when there were violent handicuffs between Mr Harrison and Mr Manias and Mr Harrison had violently propelled Mr Manias through the revolving door. 241 The evidence of Ms Kostovska, who was sent by Mr Matters from the South Coast Labour Council to pick Mrs Tapia up was that when Ms Kostovska turned up, Mr Manias was walking his dog in the park and he did not appear distressed. She said, "I am here to pick someone up." Mr Manias replied, "She is in there" and pointed to the back door. If that violent exchange had occurred, Mr Manias would not have been walking his dog in the park. He had not been making every effort he could to get back in and continue with the dispute involving himself with Mr Harrison, as alleged by Mrs Tapia. The objective evidence was that he was in the park keeping away from the proceedings until it had been resolved. 242 Mr Harrison's evidence was there had been no violent interchange and he pulled the roller down because Mrs Tapia was so visibly distressed. This was certainly a response one would have expected from Mrs Tapia in the circumstances. She is a volatile person who does respond at a fairly extreme and emotional level. 243 It is entirely consistent with that behaviour that Mr Harrison would have tried to have a little privacy. It is submitted that Mr Harrison's evidence is to be preferred to Mrs Tapia's in this instance, particularly concerning the fact that there was no evidence called in support by Mrs Tapia in relation to that incident. On that point as well, Mrs Tapia asserted in her evidence that she was terrified of Mr Manias because he was attempting to violently assault her. She said, "I just want to get away." 244 However, when Miss Kostovska turned up, Mrs Tapia did not leave. Miss Kostovska gave evidence that she went to the door and spoke to Mrs Tapia who responded, "I am just going to be a minute." Miss Kostovska spent 20 minutes walking up and down outside waiting. Miss Kostovska's evidence, in her witness statement, was that she stood two to three metres from the small back door of the restaurant. She heard parts of a conversation, or the conversation or discussion that was occurring between Mr Harrison and Mrs Tapia. The parts of the conversation she heard included such things as Mr Harrison saying, "I don't tell lies." Obviously, that had been levelled at Mrs Tapia. 245 Under further examination in chief that Miss Kostovska's evidence changed and she said she was standing 30cm from the door. That is a fairly significant difference when reliance is attempted to be placed on what she heard or did not hear. The fact is supposedly being verified by Mr Manias. When Miss Kostovska turned up to collect Mrs Tapia, Mrs Tapia did not leave for something like 20 minutes. Indeed, the circumstances within the restaurant escalated fairly significantly again. The Commission can be satisfied that Mr Harrison did everything that he was able to do to attempt to calm her down and placate her. 246 Mr Harrison having been immediately apprised of the circumstances at the restaurant, telephoned Mr Neville Hilton, a member of the Australian Workers' Union. Mr Hilton was unable, or refused to come to the restaurant but gave Mr Harrison some advice as to how the matter might best be dealt with. Mr Harrison did his best to deal with the circumstances in accordance with Mr Hilton's advice. 247 What happened next again raises an issue in relation to Mrs Tapia's credit. Mrs Tapia wanted to return to the kitchen to raise further matters with other staff members. In other words, she was going to return to the kitchen to embroil other staff members in relation to the argument that was in the process of occurring. 248 Mr Harrison directed her not to return to the kitchen and disrupt the other staff members and Mrs Tapia defied him. Her language was provocative. She told him to pull his pants up when dealing with Mr Manias, whatever that may mean. Whatever it meant, it is not terribly polite and is not an appropriate way to address an employer who is attempting to calm the matter down and deal with the matter appropriately. 249 Mrs Tapia defied him and moved very quickly towards the kitchen. Mr Harrison followed her in and she turned around and allegedly bumped into him. Mrs Tapia immediately alleged that he had assaulted her and said words to the effect, "As a lawyer you ought to know better." Mr Harrison denied that he assaulted Ms Tapia. On no reasonable construction could that conclusion be drawn from that evidence. 250 The evidence of the Macedonian washing up lady, Mrs Temelovska was clear. Mr Harrison did not directly bring any part of his body into contact with Mrs Tapia. If there was any contact that arose she said it was because she bumped into him. Position of Paul Matters - Submissions - Respondent 251 Counsel for the respondent stressed that the respondent did not and has not cavilled at Ms Tapia's entitlement to be represented by the agent of her choice in proceedings before the Commission. The respondent, however, has cavilled at Ms Tapia's representation by Mr Matters, because Mr Matters had been, as he himself acknowledged, involved in the facts giving rise to this application for victimisation. 252 At all relevant stages, Mrs Tapia believed that Mr Matters was her "union representative". That assertion is made throughout her witness statements. Those witness statements that were in fact prepared by the South Coast Labour Council, by her agent Mr Matters, and Mr Matters must have had knowledge of the contents of those statements. 253 If he was not her union representative he should during the course of these difficult proceedings have said that to her. He should have said: Look, I am not acting for you in this capacity. It would be very much in your interests to have the assistance of a union representative. The fact is, without a scintilla of doubt, that Mrs Tapia believed, and during the entire currency of these proceedings, believed that Mr Matters was her union representative. 254 The evidence of Mr Don Clode, who was accepted as an expert in these proceedings, being a senior member of the Transport Workers' Union and a man who appeared as an industrial advocate for 19 years in State and Federal jurisdictions, was what was an appropriate level of service Mrs Tapia could expect from a union representative. If Mrs Tapia had a union representative discharging their responsibility to her, these events would have been matters unlikely to have arisen. 255 Mr Clode gave evidence that he would have advised Mrs Tapia to discuss the allegations with the employer. He would have attended or insisted that someone from his union would have attended the rehabilitation and return to work meeting. He gave evidence that to put a worker back into close proximity with someone about him she had made those allegations was threatening to her physical and emotional well-being. 256 What did Mr Matters do? He did nothing. He did not do one single thing to contact Mr and Mrs Harrison in relation to the discharge of his role as the union representative. 257 Mr Matters clearly led Ms Tapia to believe that he was acting as her "union representative" in circumstances where he did not make any effort whatsoever to discharge the responsibilities attending upon that role: he never once spoke to Mr or Mrs Harrison, or any representative of the restaurant, in his capacity as her union representative to address the complex and difficult issues surrounding her return to work program. The evidence discloses that Mr Matters was in egregious breach of his duty to Ms Tapia by failing to disclose to her the extent of his animosity towards and previous history with the Harrisons. Ms Tapia's evidence was very clear that Mr Matters never once discussed with her his intense dislike and hatred of the Harrisons, the fact that there was pending and then concluded litigation between himself and Mr Harrison during the period of her attempt to return to work at the restaurant. Mrs Tapia's evidence was in relation to that unequivocal. She was not aware that three days before the return to work meeting on 16 March 1998 that Mr Harrison had successfully obtained a judgment in the Local Court at Wollongong against Mr Matters. He thereby failed to give Ms Tapia the choice of being represented by a union representative whose conduct was not clouded or biased. There was no impediment to Mr Matters contacting the LHMU and requesting assistance from one of their union advocates. 258 Mr Matters asserted from the Bar Table during the currency of these proceedings that he was not Ms Tapia's union representative, only her "industrial advocate". It is absolutely clear from Ms Tapia's evidence that at all times she believed Paul Matters was her union representative: this position was asserted throughout her witness statements, which were filed on her behalf by Mr Matters and the South Coast Labour Council. Mr Matters had ample time and opportunity to correct her belief that he was only acting as her "industrial advocate", if that was, in fact, the situation. 259 It is absolutely clear that Mrs Tapia had a different view of that relationship. Because she believed that, she was prevented from having the benefit of a union representative to assist her. A person of his level of expertise in union matters, must have known how egregiously short of discharging his duties to her as a union representative his conduct towards her fell. 260 Ms Tapia is an immigrant and manual worker. It is submitted that her evidence discloses her to be a vulnerable person, who has a comparatively poor command of written and spoken English. In these circumstances, it is submitted that she was vulnerable to and receptive to the advice she was given by Mr Matters. 261 Ms Tapia made a witness statement under oath in the Sirijovska proceedings on 17 February 1998. Contrary to the Rules of the Commission, this witness statement was NOT served on the respondent. Mr Harrison, after many unreturned telephone calls to the office of the South Coast Labour Council, in fact personally attended that office, where he was violently treated by Mr Matters and ejected from the office - again without the court documents. 262 In this case, the Commission made orders that documents relating to the alleged victimisation were to be served on the Harrisons. Mr Matters failed entirely to comply with the orders of the Commission. On 21 April 1998, after several fruitless telephone calls to Mr Matters' office attempting to obtain service of the documents, Mr Harrison attended the offices of the South Coast Labour Council and was violently and aggressively threatened by Mr Matters, who still refused to provide the documents. 263 Mr Harrison asked Mr Dribbus, a solicitor in his office to attend the offices of the South Coast Labour Council to obtain the documents. Unfortunately, Mr Dribbus was assaulted by Mr Matters. 264 Despite repeated attempts by both the Commission and the respondents, Mr Matters almost entirely failed to provide to the respondent written particulars of Mrs Tapia's claim. The only particulars supplied went to quantification of the applicant's claim, and the later amendment to that claim. 265 The result of that failure to provide particulars, despite being mandated by the Rules of the Commission, was to greatly extend the ambit of the proceedings beyond what could properly fall within the definition of "victimisation". 266 Mr Matters continually made improper and, as the evidence disclosed, incorrect assertions from the Bar Table for which it is submitted he had no foundation and thereby placed the respondent in the unenviable position of having either to adduce evidence to correct these outrageous assertions or leave the Commission with the taint contained within the allegations. The first proper instance of the applicant's particularisation of the basis on which she placed the claim of victimisation were in the applicant's final submissions in these proceedings. The failure to particularise greatly extended the length and cost of these proceedings. 267 It is the respondent's case that the unusual circumstances giving rise to this claim of victimisation before the Commission and the conduct of Mr and Mrs Harrison cannot be understood outside the context of the relationship between Mr Matters and Mr Harrison. The evidence is clear that from the period 1991 to 1996, Mr Matters and Mr Harrison enjoyed a friendly relationship. 268 However, the relationship had soured since 1996. 269 Mr Harrison's evidence, which stands uncontested, was that Mr Matters threatened on 16 March 1998 that he was going to destroy Mr Harrison using the Industrial Relations Commission of New South Wales as the vehicle in which he would do so. In that respect there is the evidence of Mr Gede Arnawa, a chef then working at the Harborside restaurant, whose evidence was not in any material respect challenged and there was further evidence in that respect from Mr Della Bosca. Suffice it to say that there is a very very serious level of concern about Mr Matters' involvement in these proceedings and in the conduct of these proceedings. It is entirely ludicrous for Mr Matters to have taken the position he did that he had no animosity towards Mr and Mrs Harrison and that he did not hold them in contempt. 270 There has been the most scandalous behaviour imaginable by Mr Matters. He informed Mrs Harrison that her husband was a wife basher in the proximity of the Commission's staff when no one had left the courtroom, and the press. That was in terrorem and absolutely interfered with the proper dignity and conduct of proceedings in this jurisdiction. Imagine the fortitude of any party having to put up with that sort of behaviour. 271 That shows the high level of animosity, on any sensible criteria, between Mr Matters and Mr and Mrs Harrison. It is conduct which has poisoned the conduct of these proceedings. Most importantly, Mr Matters' involvement was in breach of his duties to Mrs Tapia, the applicant. There was no disclosure of the circumstances defining his relationship with the Harrisons and she was prevented from having the assistance of someone who may have properly facilitated her return to a safe working environment. 272 Mr Matter's evidence given in relation to the incident at the Illawarra Steelers Club (public derogatory comments made about Mrs Harrison) was evidence of his lack of veracity and credibility as a witness, and displayed a level of disingenuousness about the evidence he had given to the Commission. 273 Having detailed the acrimonious history of the relationship between the Harrisons and Mr Matters since 1996 (alleged underpayments of wages especially to a particular waitress, threats to have Mr Harrison expelled from the Labor Party, threats to picket the restaurant, vulgar comments to Mrs Harrison at the Steelers Club, the successful debt recovery proceedings by Mr Harrison against Mr Matters and threats by Mr Matters to destroy Mr Harrison in court proceedings), counsel for the respondent emphasised that that background constituted the background for Mrs Tapia's return to work meeting on 16 March 1998, a meeting at which Mrs Tapia's rehabilitation provider Ms Sue Milne of the South Coast Workers Medical Centre (SCWMC) was to be present. 274 It defies credulity that Mr Matters would not have been aware of the desirability, if not necessity, for Ms Tapia to have had the assistance of a union representative in the difficult circumstances confronting her return to a safe work environment considering the serious and criminal nature of the assaults she had alleged against Mr Manias and the fear and terror in which she said she held him. Mr Clode's expert evidence makes it clear that the behaviour of Mr Matters defied even the basic standards of a union representative's responsibilities. 275 The inference clearly arises that Mr Matters was prepared to use Ms Tapia for his own purposes and to place his desire to realise the threats he made against Mr and Mrs Harrison using the Industrial Relations Commission as the vehicle for his vendetta. It is submitted that Mr Matters was, in short, taking advantage of Ms Tapia's lack of sophistication and understanding about the assistance she could expect from a union representative and it is submitted that the stridency with which she expressed her refusal to discuss the allegations because they were an "industrial matter" were clearly a result of the advice she was given by Mr Matters. 276 Mr Harrison and Mrs Harrison were confronted with a fundamental difficulty in dealing with the allegations of Ms Tapia because Mr Matters - Ms Tapia's "union representative" - refused to have any contact whatsoever with Mr or Mrs Harrison in relation to the difficulties attending devising a safe return to work program. Legislation 277 The application is made pursuant to s 213 of the Act. However, for the provisions of the Act to be activated, victimisation in the terms of s 210 first has to be found to have occurred. Those sections are set out below, commencing with s 210 as it stood at the time these proceedings were instituted: 210 Freedom from victimisation 210 [Reasons for victimisation] An employer or industrial organisation must not victimise an employee or prospective employee because the person: (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or (b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or (c) refuses to engage in industrial action, or (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or 278 After amendments in 1999 and 2000, the then s 210 became s 210(1) and sub-ss (i) and (j) added, together with a new s 210(2) as set out below: (i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000. 210(2) [Rebuttal presumption] In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. … 213(1) [Application for enforcement] The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. 213(2)[Commission orders] The Commission may, in particular, for that purpose do any one or more of the following: (a) order the reinstatement or re-employment of an employee, (b) order the employer to promote or otherwise advance an employee in his or her employment. (c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone, (d) order the employer to employ a prospective employee, (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, (f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, (g) make consequential orders (including orders concerning continuity of service). 213(3) [Application for an order] An application for an order under this section must be made within 21 days after the contravention concerned. 213(4) [Application made out of time] … Section 210(g) 279 The issue as to the extent of the operation of s.210(g) originally arose because the respondents opposed an attempt of Mr Matters to put into evidence factual assertions made by the applicant in her witness statement in these proceedings dated 16 March 1998 in relation to the circumstances in which she asserted she become involved in the unfair dismissal proceedings before Murphy C (the Sirijovska matter). Mr Matters then advised that not only was the applicant's witness statement of 16 March 1998 pressed, but also the factual assertions made in the applicant's witness statement of 17 February 1998 made in relation to the earlier unfair dismissal proceedings (Mrs Sirijovska) before Murphy C. 280 On 10 February 1999, the Commission (Glynn J) published a judgment dealing with two matters that had arisen in the course of the hearing: the ramifications of s.210, and of s.210(g) in particular, as to the admissibility of certain evidence sought by the applicant to be introduced into the proceedings; and costs claimed by the respondents in relation to one hearing date set, but not utilised. (No longer relevant) 281 Set out below are some extracts from that decision, though it must be noted that there have been some significant amendments to s 210 since that date: The meaning of the word "victimise" in s.210 was considered in Davis (81 IR 356 at 380ff), it being said there that: In our opinion, it is consistent with the objectives of the section and the statutory changes in 1996, that the word "victimise" in s 210 should be construed on a basis which corresponds with the meanings of the word "victim" where last appearing in the definition of that word, namely, "one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like". The word "victimise" is defined, inter alia, as "to make a victim of; to cause to suffer discomfort, inconvenience, etc"; and where used in s 210 should therefore be interpreted as "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment". That definition was accepted by both parties. Section 210 sets out eight separate circumstances in relation to which inappropriate behaviour by an employer might found an allegation of victimisation. The victimisation of an employee may result in a dismissal which is unfair, and which may found an application under Part 6 of the Act. However, if the employee makes application for relief under s.210, the employee must show, for instance under par.(g), that that dismissal was because the employee had participated, or had proposed to participate, in proceedings relating to an industrial matter. In making her original objection to material in the applicant's witness statement dated 11 March 1998 (Ex 7), Ms Stubbs submitted that nothing prior to 17 February 1998 can be relevant to the ascertainment of a victimisation claim. The differences between the 1996 Act and the 1991 and 1940 Acts, in relation to the issue of victimisation, were considered fully in Davis . The difference under the 1996 Act particularly referred to by Mr Matters is that an application claiming victimisation is now made to the Industrial Relations Commission, not to the Commission in Court Session, with the consequence that, in relation to such applications, the Commission is not bound by the rules of evidence. That does not mean that all evidence a party wishes to adduce will be received by the Commission. Such evidence must be relevant to the issue to be determined by the Commission. In this case that issue is whether the respondents victimised the applicant because of her participation, or proposed participation, in proceedings relating to an industrial matter (s.210(g) ). The unfair dismissal, if there was a dismissal (an allegation earlier disputed by the respondents), would be a by-product, as it were, of the alleged victimisation. It is victimisation which has to be proved, not an unfair dismissal grounded on factors other than that of claimed victimisation. Each objection to evidence sought to be adduced will be decided as it arises in the light of this decision. However, I stress that I reject the submissions on behalf of the applicant, that s.210 is, as it were, a gateway to jurisdiction and that once any one of the circumstances contained in pars (a) to (h) is shown to exist, the applicant is at large to bring in evidence that goes beyond the issue of victimisation and the particular circumstances which allegedly found the claim. "Victimisation" - Consideration 282 The amendment to s 210 does assist in the determination of this matter. As can be seen in Davis, the lack of any definition in the Act as to what would constitute victimisation has had the result that the Commission has had to wrestle with the practicalities of just what victimisation is. As it refers in s 210(2) to "any detriment as a result of action by the employer", that reference to "detriment" assists in the interpretation of the term "victimise". 283 The Full Bench (Cahill VP, Hill and Maidment JJ, Redman C) handed down its decision in Davis v Amalgamated Television Services Pty Limited [(1998) 81 IR 364) on 22 June 1998. In the course of that decision, the Full Bench considered whether there had been victimisation of the applicant for a reason within the meaning of s 210(e) or (g) as s 210 stood prior to the amendment as from 1 July 1999 referred to above. 284 The legislative history of s 210 is that par (i) was inserted into the then s 210 by Act No 156 of 1997, commenced 1 July 1999 and par (j) was inserted by Act No 40 of 2000, commenced 1 September 2001. Section 210(2) was inserted at the end of s 210, which then became s 210(1) by Act No 67 of 2000, which was assented to 12 July 2000 and commenced 9 October 2000. 285 In the course of the Second Reading Speech in relation to the Bill, the following statement was made: The Industrial Relations Act 1996 contains provisions which prohibit the victimisation of employees. These important provisions provide that employees cannot be victimised because they are members of an industrial organisation of employees, claim an industrial entitlement, or disclose an alleged breach of industrial relations legislation or an industrial instrument. Equally, employees cannot be victimised because they do not belong to an industrial organisation or refuse to engage in industrial action. While these victimisation provisions clearly establish significant rights, difficulties have arisen in trying to enforce them. Persons who wish to seek a remedy before the Industrial Relations Commission must establish not only that the conduct which constitutes victimisation has occurred but also that it occurred because of the motive which the legislation in effect prohibits . (my emphasis) In order to make the victimisation provisions more workable and effective, it is proposed to follow the approach of the Federal legislation and reverse the onus of proof in respect of victimisation proceedings. … (Hansard. Legislative Assembly. 6 June 2000, p 6684) 286 The portion of the Second Reading Speech emphasised by me above sets out the onus on the applicant in these proceedings as they commenced prior to that particular amendment. 287 That is the onus against which I consider the claim of victimisation in these proceedings. 288 It is the legislative history of s 210(2) that has particular relevance to these proceedings. 289 In Davis at pp 380 ff, the Full Bench, having observed (at p 380) that there had been a failure to define "victimise" or "victimisation" in the 1996 Act, expressed the following opinion: The words "victim" and "victimise" are defined in the Shorter Oxford English Dictionary (Vol 2) … In our opinion, it is consistent with the objectives of the section and the statutory changes in 1996, that the word "victimise" in s 210 should be construed on a basis which corresponds with the meanings of the word "victim" where last appearing in the definition of that word, namely, "one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like". The word "victimise" is defined, inter alia, as "to make a victim of; to cause to suffer discomfort, inconvenience, etc"; and where used in s 210 should therefore be interpreted as "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment". … 290 The word "detriment" is not found in part 1 of Ch 5, Industrial organisations, principles of association, as at the date the Act was consolidated to 14 February 2000. The terms "detriment" and "detrimental action" are only now to be found in s 210(2), which, as already noted, was inserted with effect from 9 October 2000. It can, in my view, be taken that, at the time that amendment to the Act was drafted, the legislature would have been aware of Davis and the difficulties caused by the lack of a definition in the Act of "victimisation". 291 Section 210, Freedom from victimisation, is within Part 1 - Principles of Association which in turn is within Chapter 5 - Industrial organisations. 292 What is being dealt with in s 210 is not victimisation at large, but victimisation within the context of industrial activity, that being in the present case, participation or proposed participation, in proceedings relating to an industrial matter (s 210(g) as at the time of the alleged victimisation). It was stressed by Mr Matters that Mrs Tapia's participation in industrial proceedings arose at two levels: in the first place as a witness in the Sirijovska matter, and in the second, as the applicant in these proceedings. 293 Whether or not the rebuttable presumption now to be found in s 210(2) applied at the time encompassed by these current proceedings, the Commission would, in any event, adopt a rigorous approach in its consideration of the allegation of interference in the administration of justice in accordance with the Industrial Relations Act 1996. 294 The orders that the Commission may make, as set out in s 213(2), are also relevant as to what is envisaged in s 210 as constituting victimisation of an employee. The orders go to remedy specific mischiefs: (a) termination of employment; (b) denial of promotion; (c) non-payment of remuneration or financial benefits; (d) refusal to employ; (e) specific threats to victimise; (f) activity taken or not taken by an industrial organisation; (g) consequential orders to ensure the efficacy of orders made under pars (a) to (f). 295 Paragraphs (a) to (e) relate to particular incidents of employment, and to actions of victimisation that might either be positive eg termination of employment or negative eg refusal to promote. 296 "Detriment" is defined in The Macquarie Dictionary (2nd ed, 1991) as: 1 loss, damage, or injury 2 a cause of loss or damage. 297 In the use of the word "detriment" in s 210(2) it can be seen that the legislature has adopted, in part, the definition of "victimise" as found in Davis at p 381: "The word "victimise" … where used in s 210 should therefore be interpreted as "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment". That would relate to conduct or activities caused or sanctioned by the employer. 298 Section 169(1) provides that the Commission must, in the exercise of its functions, take into account the principles contained in the Anti-Discrimation Act 1997. That Act renders unlawful racial, sex and other types of discrimination. 299 The objects of the Act include at s 3(f) the following: to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value. 300 For the applicant to succeed in her application that she has been victimised by the respondent (in the persons of Mr and Mrs Harrison) she must show that the actions alleged to constitute victimisation result from a relevant failure by the respondent. That "relevant failure" would encompass a failure to restrain the actions that would constitute victimisation of a person within their control, in this case, alleged to be Mr Manias. Allegation by applicant of contempt 301 These are not contempt proceedings. That issue was raised for the first time in relation to the respondent (though as an issue not for the first time in these proceedings as discussed later) in the applicant's final written submissions. 302 Section 180 deals with the offence of contempt of the Commission. Proceedings for an offence against that section may only be taken before the Commission in Court Session (s 180(3) ). The proceedings now being dealt with relate to a claim of victimisation made to the Industrial Relations Commission pursuant to s 210 and s 213. 303 I now turn to consider the series of events alleged by the applicant to constitute victimisation. Consideration Background Return to Work 6 January 1998 and events after that date 304 It was really common ground that Mrs Tapia had a good working relationship with Mrs Harrison until Mrs Tapia left the Restaurant on worker's compensation in 1997. She said she had a good working relationship with Mr Harrison up until Christmas 1997. She said she did not have problems with anyone at the time. Neither Mr or Mrs Harrison gave her any reason to be aggressive or angry towards her before she left on worker's compensation. Neither Mr nor Mrs Harrison had used bad language towards her. Mrs Tapia accepted that Mrs Harrison had presented no difficulties when advised Mrs Tapia was returning to work on 6 January and Mrs Tapia thought Mrs Harrison was pleased to see her. Mrs Tapia also agreed that Mrs Harrison had expressed concern on 6 January 1998 that she could not work "because I was heavily limping" and accepted much of the conversation Mrs Harrison said had occurred in relation to her concerns. 305 On 13 January 1998, IOH Rehabilitation, Mrs Tapia's then rehabilitation provider in a Preplan Progress Report advised Ms Martin of QBE Insurance, that "in a letter dated 27 November 1997, Dr Slater certified Mrs Tapia fit to resume normal duties on 7 January 1998, under the condition she is able to walk without a limp at that stage". (my emphasis) 306 Mrs Harrison would not let Mrs Tapia commence back at work on 6 January until she had received a clearance to do so from her doctor. 307 Prior to returning to work on 6 January 1998, Mrs Tapia had not seen Mr Manias at all since the previous May while she had been absent on workers' compensation, and she had seen Mrs Harrison only once. 308 According to Mrs Tapia, the very first words Mr Manias said to her, not having see her since May 1997 were: Narda, I do not want to see you. You have been a fucking bitch. 309 Before 6 January 1998 Mrs Bokulic said she had not observed any argument between Mrs Tapia and Mr Harrison or Mr Manias. 310 There is direct conflict as to the events on 6 January 1998 between the evidence of the applicant and that of Mrs Harrison and Mr Manias. However, this judgment is concerned with victimisation alleged to have followed the making by the applicant on 17 February 1998 of the Sirijovska Statement. On that basis, the alleged abuse of the applicant by Mr Manias on 6 January 1999 pre-dated by some six weeks the making of the Sirijovska witness statement. That abuse at that time could not found the applicant's present claim of victimisation in terms of s 210(g). 311 Mrs Tapia set out to enlist the support of her union, the LMHU, after Mrs Harrison had refused to allow her to start work on 6 January. 312 In evidence on 7 October 1998, Mrs Tapia said she rang the LHMU after she tried to return to work on 6 January 1998 and was not allowed to come back. She spoke to a man. She explained about the treatment she had received. The man she spoke to on the telephone gave her an appointment at 9.30 am for some Wednesday to see a man whose name she thought was Chris. When she went for the appointment he was not there. She did not remember whether the name was George or Chris but thought it was Chris. She later said it was not. It was George. At a point thirty pages later in the transcript, Mrs Tapia said she did not suggest his name was Chris. The conversation with the union official was not mentioned in any of her witness statements. 313 Mrs Tapia said that when she was told by the lady in the LHMU office that Mr George Gogich had important business somewhere else and could not see her that day, the lady offered to make another appointment. Mrs Tapia refused and left. There was no point in making another appointment, because she was disappointed with everything or every union or whatever. 314 In evidence on 2 September 1998, Mrs Tapia said that after she talked to Ms Milne on 16 March 1998 she went to have some legal advice. Because she belonged to the union, she went straight to the union. Asked which union she belonged to she said the SCLC, but in a later answer said she paid her dues to "hospitality people, liquor hospitality". She went to their office and made an appointment for 9.15am on Monday, although she did not recall the day exactly, with a gentleman called "George", but could not remember the man's surname. Mrs Tapia adopted the name "Gogich" suggested by Mr Matters. However, Mr Gogich was not there when she went there, nor was he there in all the period of time she tried to contact worker's compensation, the union, the doctors "trying to find some help and nobody help me". (As at 16 March 1998, Mrs Tapia did not think she was a financial member of the LHMU.) 315 She also said on 7 October 1998 (after some pages of cross-examination during which she was very confused) that she made a telephone call to the LHMU to obtain her membership number sometime in January 1998 after a letter from her doctor referred her to WorkCover (WCA). In that call, she identified herself, her workplace and said she would like to have her membership number. Having asked her to hold on the lady on the phone came back and said she could not find Mrs Tapia's name in the records. 316 (In relation to Mrs Tapia's confused evidence as to her contact with the LHMU, I note that, contrary to the situation on 23 April, as described later, when Mrs Tapia, with some justification, said that with 10 people against her and she being by herself, she could not remember everything, all she had to recall as to her approach to the union were her own actions and the individual responses she received in quite ordinary circumstances.) 317 Ms Sheehan produced documents which included a diary, appointment book and message book. Her oral evidence and the documents support findings that George Gogich left the LHMU in October 1997; there was no reference to Mrs Tapia in those documents for the period 1 January 1998 to 1 May 1998; there was no one in the Wollongong office of the LHMU between 1 January and 12 January because it was closed for the Christmas break; there were very few appointments made between 12 January and 31 January because there was no organiser present in the office, a situation that continued because Ms Byrne did not start until mid-March; there were many entries in the work book for January which related to telephone calls none of which mentioned Mrs Tapia's name; Ms McGrath came down to Wollongong on different times to take appointments; there was no male employed in the office after Mr Gogich's departure and for the period covered by the documents, and there were days when Ms Sheehan would have been absent because of illness or other reasons. 318 There was only one entry for Mrs Tapia in Ms Sheehan's work book for the period 7 April 1997 to 7 January 1998. That related to an inward telephone call on Tuesday, 8 July 1997 and stated "Lagoon Restaurant - 740174 Narda Tapia George please ring". The "George" referred to was George Gogich. 319 Ms Sheehan said that Mrs Tapia may have called into the LHMU office but she did not remember her doing so. 320 Ms McGrath said that she frequently attended the Wollongong office of her union. She did not recollect ever receiving a telephone call from Mrs Tapia. At no stage had she made an appointment for Mrs Tapia. 321 I think this evidence illustrates Mrs Tapia's not always firm grasp of dates. She may have had contact with the LHMU in relation to her worker's compensation claim and also when she sought help after Mrs Harrison had refused to let her start work on 6 January 1998. Chris Christodoulou was in the union at that time but not at that office. In later references to the person with whom she said she had an appointment at the union she could not remember the name but accepted the suggestion of counsel for the respondent that the name was "George" and later the suggestion by Mr Matters of "George Gogich". 322 The discrepancy in the applicant's recollection of names, together, it might be said, with the applicant's inaccurate description of the lady to whom she spoke in the union's office, founded one of the respondent's attack on the applicant's credibility. 323 There was apparently no problem raised in relation to Mrs Tapia's LMHU membership when she approached that union in mid 1997 in relation to her worker's compensation claim. I believe that it was at that time she spoke to Mr Gogich who later left the union in October 1997. 324 Mrs Tapia said she was upset when she was told she was not a member "because they were deducting the money and not putting in". She believed the Harrisons were stealing from her, deducting her union dues and not forwarding them to the LHMU. She did not raise the matter with Mr or Mrs Harrison mainly because her relationship with them was very difficult at the time and she did not want to have any trouble with them. 325 (The issue of "unpaid" union dues could have been disposed of much earlier in these proceedings, if Mr Matters, on 9 September 1998, one week after I had said, in response to Mrs Tapia's assertions, "I want to find out what happened", had advised the Commission of information he had received that morning. While present in the Commission, he had received a phone call from Ms McGrath, Secretary of the LHMU telling him that Mrs Tapia's union dues had been paid in full for the duration of her employment. He told her that he would not accept that was true without documentary evidence. Ms McGrath said Mr Matters had said that he did not believe Mrs Tapia was a member. It was not until Mr Matters was in cross-examination on 29 October 2001 that he acknowledged that he was satisfied that Mrs Tapia's union dues had been sent as they become due by the Restaurant to the LHMU, from the commencement of her membership of the LHMU and were paid even when she was off on workers' compensation. However, he was not satisfied that those dues had been recorded by the union. It is quite true that Mrs Tapia's name had been incorrectly recorded in the union's records but if the issue had been vigorously followed up either by Mrs Tapia or by him when he was first told by Mrs Tapia of the advice she had received, the course of these proceedings might have been very different. Mrs Tapia would at least have been disabused of her belief that the Harrisons had been stealing from her. As it was, because of the timing of the call on 9 September, Mrs Tapia thought it was "strange" and she "was a bit suspicious".) 326 Mrs Tapia said she had approached the Miscellaneous Workers Union sometime early in 1998 because she was looking for help but they said they could not help her because they covered cleaners rather than people who worked in the restaurant. The Miscellaneous Workers Union told her to go and see the LHMU because that was her union. She said that there was no point in her doing that because when she had called they had told her she was not a member. 327 Mrs Tapia's efforts to obtain advice from January 1998 onwards were described by her, when she explained why she could not call the LHMU to clarify the situation: A. Because during that period of time, between January, February and March I was trying to look for help from everywhere. I went to the Industrial Relations Commission. I went to the union, I went to Paul, I went to Paul Matters ' office. I was looking everywhere for someone to tell me because I couldn't get any help from anywhere. All they say I had to apply for a statement after 93, including the person I spoke to - I phone Downing - or Downing, or I was referred by Mr Collins, Mr Collins referred to Mr Downing, I think, or they told me there was nothing to do. They would need money to do things - (Transcript p 439) 328 The forces driving Mrs Tapia are understandable when she said she had to go back to work in January "I have two children to feed". She had been eight months out of a job. 329 Ms Milne said there had been a meeting on 24 February 1998 to discuss the applicant's rehabilitation programme and her return to work, and Mrs Harrison and Mr Manias were present and agreeable. The only difficulty initially had been the assumption by Mrs Harrison and Mr Manias that the applicant should be fully fit before she could return to the work place. After further discussion they had come to understand the value of the rehabilitation process, and were amenable to co-operating in it. Ms Milne agreed that no obstacle had been placed in the way of the applicant's return by either Mrs Harrison or by Mr Manias. That evidence was confirmed by Mrs Bokulic. 330 The applicant was assessed by a rehabilitation officer with the SCWMC on 12 March 1998 and was advised that it was all right for her to return to work, with certain restrictions. 331 As at 16 March 1998 Mrs Tapia said she was a member of the LHMU. At the meeting with Mr Matters on 16 March Mr Matters rang the LHMU to verify her membership, but was told she was not a member. At the conclusion of the call Mr Matters told her she had the right to join another union and he recommended the Australian Workers Union (AWU). 332 On 7 October 1998, Mrs Tapia said that she had joined the Australian Workers' Union on 31 March 1998. She joined that union because she had not had a satisfactory answer from the LHMU. Mr Matters had not suggested she join that union. In evidence given in reply on 2 November 2001, she said that on 31 March 1998 she went to join the AWU and was introduced to Neville Hilton by Mr Matters. 333 There was no explanation why the AWU, having accepted Mrs Tapia as a member and having been advised by her and Mr Matters as the gravamen of the dispute with the Restaurant took no action to become involved. Mr Hilton had told Mrs Tapia to trust Mr Matters, something she said she already did. Mr Hilton kept telling her that Mr Matters was managing her case. 334 Joining the AWU does not seem to have been of any direct practical benefit to Mrs Tapia. The LHMU had sole coverage of the Lagoon Restaurant coverage of the Restaurant and the clubs in which she later worked. Mr Hilton did not respond to any pleas by Mr Harrison to try to resolve the situation. The one benefit would appear to be that that membership gave Mr Matters, by arrangement with Mr Hilton, a union plank to appear before the Commission. 335 Mr Matters gave some curious evidence in respect of Mr Gogich. He said that after he read the Sirijovska Statement in February 1998 he had on several occasions rang the LHMU Liquor Division and asked to speak to George Gogich but did not get a reply. That evidence was not taken any further, but it seems most unusual that he was not advised on any of those "several occasions" after February 1998 that Mr Gogich had left the LHMU in October 1997. He also said in evidence that it was George Gogich, who, while still employed at the LHMU, had asked Mr Matters to take up the case of Ms X, an employee of the Restaurant, who was the centre of the dispute with Mrs Harrison as to what were correct weekend penalty rates. 336 In the light of the fact that Mrs Tapia had already been assisted by the LHMU in her continuing workers' compensation action, it seems to me a matter of deep regret that further enquiries were not pressed with the LHMU by or on behalf of Mrs Tapia. ************************ 337 In considering the victimisation allegations, I have, to the extent that specific incidents are either referred to, or are identifiable in the general allegations, set those incidents out in chronological order commencing from 16 March 1998. I then consider the general claim of victimisation extending over the period from Mrs Tapia's return to work on 30 March to her last day there on 23 April. Incident on 16 March 1998 338 The applicant contended that victimisation of the applicant was constituted by the requirement by the respondent that the applicant withdraw parts of witness statement before being able to start work. The applicant refused and she was unable to commence work until 30 March 1998. 339 Mr Matters said the particular of victimisation relied upon was not the discussion of the Sirijovska Statement with Ms Milne but the threat to Mrs Tapia's employment or to her willingness to return to work which would constitute victimisation. 340 The meeting on 16 March 1998 was intended to work out a return to work rehabilitation programme for Mrs Tapia. Those to attend it were Mr and Mrs Harrison, Mr Manias, Mrs Bokulic, Ms Milne and Mrs Tapia. 341 A few days before, the Harrisons had received the Sirijovska Statement with its allegations against Mr Manias. As Mr Harrison said, he was shocked by the allegations in the Statement because if they were true they were of a criminal nature. "They had a certain criminality about them." Mrs Harrison telephoned Ms Milne asking her to come early to the meeting in order to talk to her privately in the absence of Mrs Tapia. 342 At the time of the meeting with Ms Milne on 16 March, Mr Harrison believed that two of the four allegations in the Statement were lies. He was prepared to have an open mind in relation to the others, but he also wanted to hear Mrs Tapia's version so he could determine how it could be worked into Mrs Tapia's rehabilitation programme. 343 Mr Harrison believed that the views expressed by Mrs Tapia at pars 8 and 121 of the Sirijovska Statement as to fears she had of Mr Manias should have influenced the rehabilitation programme. Ms Milne did not share that view. 344 Mrs Harrison said that at the time of wanting to talk to Ms Milne on 16 March, she did not disbelieve the allegations until she had Mrs Tapia's version of events. Mrs Harrison believed Mr Manias, but that did not mean she disbelieved Mrs Tapia because Mrs Tapia in her mind may have believed those allegations. Mrs Harrison knew some were not correct, but Mrs Tapia may have thought otherwise in her mind. Part of Mrs Harrison's investigation was to ask Mr Manias "Did you ever give any indication [so that] she may have thought such and such?" 345 Mr Matters' lack of understanding about the practical results of the allegations being made was demonstrated in the following exchange in cross-examination of Mrs Harrison, in relation to Mrs Harrison's desire to ask Ms Milne to be an independent witness in any discussion of the allegations with Mrs Tapia: Q And you wanted to talk to Ms Milne about that [Sirijovska Statement] before there was to be any discussion about Mrs Tapia's return to work, isn't that true? A No. I wanted to talk to her about her return to work but in reference to these allegations which come into it because it would determine where Mrs Tapia was to work with Mr Manias. Q Why would that determine where she was going to work? A Because I felt it my duty and responsibility to make sure that she was in a safe working environment and to be working next to someone that had allegedly threatened her so severely would not be a comfortable position to be in. (Transcript 1575) ... Q No, before you rang Ms Milne, did you try to speak to Mrs Tapia about this statement? A No, because, as I said, I wanted advice as to the best way to go about speaking to Mrs Tapia. I didn't want her to feel uncomfortable about my asking her questions and I got advice from the Restaurant and Catering Association as to how to deal with these allegations and the best way was to speak to someone independent, which was Sue Milne that was looking after her. ... Q So it was your decision that it was best to speak to Ms Milne without Mrs Tapia being there? A I wanted to speak to Sue Milne and ask her if she would be happy to be a witness to be with Mrs Tapia when I asked her questions about these allegations. It's no use bringing them both in and then just stating facts about these allegations because I thought it's best to ask first - to see if she was comfortable to be there. (Transcript 1576) 346 As was also explained by Mr Harrison in cross-examination: A No, we saw that as an opportunity that we discussed those allegations in the presence of Ms Milne, as an independent person but nonetheless associated with you, [Paul Matters] but as an independent person that could determine her [Mrs Tapia's] safety. We were under threat. Q You were under siege? A What do you mean siege? Q That was the mentality you had, you had a siege mentality? A No, I did not have a siege mentality, we had a situation that I could not speak to you, you threatened to bash me up and throw me out and sue me. (Transcript 2014, 27/3/01) 347 Ms Milne said that Mrs Tapia had mentioned and provided some details of the alleged abuse by Mr Manias in her initial rehabilitation interview. (That evidence was admitted on the basis that it did not go to the truth of the allegations, but that Mrs Tapia had raised them with Ms Milne in that interview.) Ms Milne, at that time asked Mrs Tapia why she wanted to go back to the job, given that history of the situation. Although she would have acted differently with hindsight, Ms Milne did not note on her report the alleged physical abuse. That was because "I didn't want to actually open up that great can of worms as the rehab provider because it wasn't my role to resolve that problem". She accepted she was not aware of the specific incidents of assault and abuse alleged by Mrs Tapia against Mr Manias as contained in the Sirijovska Statement until she was shown it on 16 March. At that meeting Mr Manias had denied them. During the meeting Ms Milne did not express any concern to Mrs Harrison about Mrs Tapia working closely with Mr Manias. She denied that either Mr or Mrs Harrison had raised such a concern at that meeting on 16 March. 348 Ms Milne said that the issue of Mrs Tapia not working with Mr Manias until the allegations had been sorted out was not raised by Mrs Harrison at all at the meeting of 16 March 1998. (That evidence was contrary to that of Mrs Bokulic and of the Harrisons.) However, Ms Milne's approach is exemplified by her evidence that she did not recall Mrs Harrison making statements, other than the few recorded in her affidavit, at the meeting on 16 March, which Ms Milne considered related closely to the key issues (of the applicant's return to work). Other statements may have been made but not ones that Ms Milne, at the time, regarded as significant in terms of what they were there doing. 349 While Mrs Tapia, under protest, remained outside the Restaurant, Ms Milne saw Mrs Harrison who showed her the Sirijovska Statement and asked her if she would be a witness while the Harrisons discussed its contents with Mrs Tapia. 350 Ms Milne checked with her supervisor at the SCWMC and declined to do so. Ms Milne then went outside and gave her (understandable) version of events to Mrs Tapia. That understanding was that Mr and Mrs Harrison had made clear to Ms Milne that if Mrs Tapia dropped the statement she would get her job back. If Mrs Tapia could not drop it, she would not have her job back. Ms Milne had also said that they (the Harrisons) were thinking twice about reinstating Mrs Tapia to her previous duties. Mrs Tapia's response was: 52 I said "So, in other words, or plain english, you are telling me that if I step back and I deny the statement, they're willing to give me my job back". 53 Sue said "Yes, basically that". 54 I said "Well I won't. I will not step back and will not go quiet". 55 That was the end of our conversation. We then left the Lagoon Restaurant premises. (Exhibit 7) 351 Before leaving, Ms Milne did not return to the Restaurant to give those waiting there a report on the outcome of her discussion with Mrs Tapia, although she said that Mr Harrison had asked her to "ask Narda to come in and talk with us". Although Mrs Harrison said Ms Milne had returned to advise them that Mrs Tapia was seeking legal advice, I think the weight of the evidence is that Ms Milne did not return. 352 Ms Milne agreed that on 16 March neither Mrs Harrison nor Mrs Bokulic had said that Mrs Tapia could not return to work unless she withdrew the statement. 353 In evidence, Mrs Tapia said that on 16 March she just wanted to return "to work by the medical certificate", even though that meant working closely with Mr Manias. She was looking forward to going back to work, although she was frightened by Mr Manias, because she always tried to control herself and manage her fears or anger. It was when she spoke to Mr Matters later that day that he had explained victimisation to her and told her she had certain rights. 354 Mrs Tapia stated in cross-examination why she did not want to talk to Mr and Mrs Harrison on 16 March about her allegations against Mr Manias: Q Tell her Honour why you did not want to talk to Mr and Mrs Harrison about the allegations you made in relation to Mr Manias? A The reason I did not want to talk to them, your Honour, is because they did not do anything and the way Nick Manias abused me and George and Vania Harrison as well, he swore to them and screamed to them all the time in front of all the staff. If they were not giving a good example for the employees, how could I go looking for help when they do not have respect themselves, if they didn't tell Nick Manias to stop screaming. How could I go to them if they did not do anything. (Transcript 492 1/12/99) 355 The "abuse" Mrs Tapia referred to in her statement (Ex 6 par 141) was that Mr Manias swore at her and at the Harrisons, and "abused" in the above answer was in reference to that paragraph. 356 On 1 December 1999, Mrs Tapia said in cross-examination that she did not discuss the allegations with the Harrisons: A No Mam, I told you before I got instructions not to discuss this subject. Under s 210 section G it says you cannot talk to somebody who is to be a witness. 357 She believed the return to work and the industrial matter of the allegations in the Sirijovska Statement were separate issues and Mr and Mrs Harrison should not raise the subject because it was a legal procedure. Mr and Mrs Harrison should wait to discuss the allegations "till the court case come and be a case in the court". She expressed the view that: A They should stick to the rehabilitation programme and not to mix the industrial relations case as I understood, as I was a witness and I thought I should not talk about the subject, I should not talk about the statements and I should not make any comments to anyone. (Transcript p 490) 358 Ms Milne said that Mr Matters told her in a telephone call that he had advised Mrs Tapia not to discuss the statement with the employer. 359 In further cross-examination on 2 November 2001 Mrs Tapia said it was not her understanding after talking to Mr Matters that she should not talk to Mr and Mrs Harrison about the Sirijovska Statement, and in fact she had done so, but "it was to change it or to drop it or to make change my mind". Mr and Mrs Harrison had wanted to talk to her several times about what Mr Manias was said by her to have done, but not at rehabilitation meetings because after 30 March Mrs Tapia had said she wanted Ms Milne excluded and not involved in this industrial issue. 360 Even if George Harrison did say to Ms Milne that Mrs Tapia could return to work if she had been pressured to sign the Sirijovska statement, and he denied saying that, that statement did not necessarily carry the connotations ascribed to it by Ms Milne. If Mrs Tapia accepted she had been pressured to sign the statement, and the allegations were untrue, there was nothing to investigate and nothing that required a re-ordering of duties to keep Mrs Tapia and Mr Manias apart. 361 Mrs Tapia was not required to withdraw parts of the Sirijovska Statement on 16 March 1998. The fact that she did not start work on that day was because she and Ms Milne left the Restaurant without advising Mr and Mrs Harrison that they were not going to discuss the return to work further. At all times the Harrisons were willing for that to occur, but were seeking protection for both Mrs Tapia and Mr Manias in the rehabilitation programme. 362 I think Mr Harrison was correct in saying that if they could have sat down with Mrs Tapia on 16 March 1998 when Ms Milne was present to discuss the allegations, that would have taken a lot of the stress off the Restaurant. What did happen, as he said, was that the stress was just bottled up and it was only a matter of time before there was an eruption (my word, not his). 363 I find that there was no victimisation of Mrs Tapia by Mr or Mrs Harrison that resulted in Mrs Tapia not starting back at work on 16 March 1998. Applicant's criticisms of respondent's investigation of allegations 364 It was submitted by the applicant that, based on the evidence of Mr Manias, any investigation of Mrs Tapia's allegations was extremely cursory. According to Mr Matters, Mr Manias was backed up and protected by Mr and Mrs Harrison rather than Mrs Tapia being supported and protected by her employers. 365 The evidence is quite to the contrary. 366 Mr Manias had been separately interviewed by Mr and Mrs Harrison in relation to the allegations in the Sirijovska Statement. He accepted swearing but denied the incidents. 367 In investigating the allegations, Mr Harrison investigated only those that involved Mr Manias, not those against other people named in the Statement. At the time he read the Statement, he had formed the view that one incident absolutely did not happen because he was alleged to have been within five feet of Mrs Tapia and Mr Manias at the time and he had not seen it. In relation to a further alleged incident, a check of the roster and with another employee, informed Mr Harrison that Mrs Tapia was not at work on that day. 368 During the course of these proceedings, Mrs Tapia said she could have swapped shifts on that day. That was a claim that in earlier discussion with the Harrisons, discussion vetoed by Mr Matters, could have been investigated. Furthermore, Mr Matters was granted leave, without objection, to call Mrs Sirijovska to confirm Mrs Tapia's claim. Mrs Sirijovska was not called. 369 The time sheet that showed Mrs Tapia was not rostered on on that day had been filled in by Mrs Tapia. 370 When Mrs Harrison had made her inquiries about Mrs Tapia's allegations with other employees she had not told anyone that Mrs Tapia had made a statement. Mrs Harrison said her investigation was very careful so that Mrs Tapia's name did not come up and there would be no bias against Mrs Tapia from other staff. The questions she asked could not be traced back to Mrs Tapia. 371 There is a difference between the employer wanting to discuss the allegations in the witness statement and the employer wanting Mrs Tapia to change or withdraw her statement. 372 The advice of Mr Matters to Mrs Tapia not to discuss the statement with the employer was badly flawed advice. The allegations in that statement should have been discussed by Mrs Tapia with Mr and Mrs Harrison in the presence of a witness of her choice. Logically that choice would have been her adviser, and, ideally, that adviser should have been her union representative or some person of objectivity. However, Mr Matters, as her agent, did not in any way facilitate that process by his own presence, nor does he seem to have understood its proper purpose. He was not objective in his approach to the dispute. 373 One would have thought that once he had sighted the Sirijovska Statement, he would have encouraged Mrs Tapia to seek police intervention. He did not. (He said in evidence that he was not representing Mrs Tapia until 16 March 1998.) 374 In relation to that Statement, the concerns of Mr Matters were at all times directed to the fact that that Statement had been compiled in respect of proceedings before the Commission and that Mrs Tapia should not be victimised by her employer because she had made that Statement. During the proceedings, including the three days of his cross-examination, he evinced little, if any concern, as to the substance of that Statement. That approach set him apart from the Harrisons, who were desperately anxious to keep Mrs Tapia and Mr Manias apart in the light of the serious allegations made in the Statement. 375 Ms Milne had scanned the statement made by Mrs Tapia setting out the latter's complaints against Mr Manias. Ms Milne was also determined, and I understand her reasoning, that the rehabilitation issue should be kept separate from the industrial issue. However, the two issues were closely intertwined and could not be dealt with separately. Ms Milne is a highly qualified professional in the rehabilitation field. However, she did not have expertise or experience in the industrial relations area. That lack, in my view, led to a lack of understanding of what were the real and valid concerns of the Harrisons. 376 Very serious allegations of verbal and physical assault and threatened sexual assault had been made by Mrs Tapia against Mr Manias, the head chef in charge of the kitchen were she worked. The Harrisons specifically recognised that there was a safety issue involved in the two people working in close proximity that needed to be addressed. There was an obligation on the Harrisons under s 15(1) of the Occupational Health and Safety Act 1983 that provided, insofar as is relevant: 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all his employees. (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if he fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health, … (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of his employees, … (e) to provide or maintain a working environment for his employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or … 377 Mr Harrison wished to discuss Mrs Tapia's allegations with her. As he said, they were criminal in nature. The outcome of Mrs Tapia working alongside Mr Manias could be that the Restaurant would be sued for psychological injury or nervous shock. He was concerned also for the reputation of the Restaurant, because an accusation that a female employee had been exposed to that kind of environment would have been enormously damaging. When cross-examined by Mr Matters he said that on 16 March 1998, his only concern was to provide a safe system of return to work for Mrs Tapia. He went on to say that "I believe today and I believed then that you are orchestrating all these things. I was enormously careful and precise to be able to accommodate Mrs Tapia …". … "[Mr Matters] moved her [Mrs Tapia] to the South Coast Labor Council's provider so that he could control her. So I knew when we were confronted with all these facts - I knew, and he had threatened that he was going to destroy me in the Industrial Court - I knew he was hot on our heels so there was no way I was going to play into his hands by being foolish and we were on our best behaviour and dotting our i's and t's. We rang the Restaurant and Caterers Association and tried to do our best because I knew Paul Matters was on our heels and he controlled the situation and I was not going to fall into his trap." (Transcript pages 1989-1990) 378 It would have been a serious dereliction of their duty for Mr and Mrs Harrison, as employers, to allow Mrs Tapia to return to work in the kitchen before they had investigated those allegations. In my view, it would also have been a serious dereliction of duty for any union official to accede to the return of his/her member to the situation alleged to exist by Mrs Tapia, before taking steps to ensure the protection of that member in co-operation with the employer. Not only were no such steps taken by Mr Matters, but he frustrated the employer's efforts to provide protection by his advice to Mrs Tapia and also later to Ms Milne, both of whom relied upon him for industrial assistance. 379 The whole tenor of the evidence is that Mr and Mrs Harrison were desperate to deal with the allegations made by Ms Tapia against Mr Manias. 380 To investigate the allegations, the Harrisons needed to talk to Mrs Tapia. They were frustrated in those attempts. Mr Hough, from the Restaurant and Caterer's Association had advised them that they had to be careful to treat the allegations made by Ms Tapia separately from her return to work programme. Mr Hough also advised them that, as employers, they must speak to Mrs Tapia to find out the truth of the allegations but to have someone such as Ms Milne as an independent witness. Ms Milne, on the advice of the SCWMC, declined to carry out that role. The normal and natural procedure of a conference with the employee's union representative could not be arranged because Mrs Tapia's efforts to involve the LHMU had failed at the outset because the union's records mistakenly failed to show she was a member. The advice Mrs Tapia got from her "lawyer" as she described him, Paul Matters, was not to talk to Mr and Mrs Harrison. 381 They could not talk to Mr Matters. As a lawyer, Mr Harrison was acutely aware of the legal minefield he was facing. 382 A major thread the whole tenor of Mr Matters' cross-examination of Mr Harrison was that the attempts by the Harrisons to talk to Mrs Tapia about her allegations were an infringement on her rights and should not have occurred. 383 Mr Matters was very properly concerned to protect the "rights" of Mrs Tapia. However, he did not appear to understand that he should also be concerned to protect the person of Mrs Tapia. 384 In oral evidence, Mr Matters said that he had no concerns whatsoever as to Mrs Tapia working closely with Mr Manias, despite Mr Matters' awareness of what Mrs Tapia had said as to not being able to cope with Mr Manias in the Sirijovska Statement. He said that Mrs Tapia had said different things to him. If Mr Matters had shared those "different things" with Mr and Mrs Harrison, their concerns may have similarly been allayed. 385 Any criticism by Mr Matters of Mrs Harrison for failing to take any disciplinary action against Mr Manias in relation to the allegations is quite unfounded. Disciplinary action could not be taken on the basis of a mere allegation. Mr and Mrs Harrison did have a duty to investigate those allegations. The only time Mrs Harrison spoke to Mrs Tapia about the allegations was on 19 April and that was when Mrs Harrison said she became confident that they were not true, because Mrs Tapia actually admitted that Mr Manias had not physically done anything. That was when Mrs Harrison was 100% sure in her mind that they were not true. Leading up to that point she had made investigations. A couple of the allegations were false, but she kept an open mind up to that point. It was a big relief when Mrs Tapia actually said that. Mrs Harrison had made contemporaneous notes that night and did let the solicitors know. 386 In the absence of any assistance from Ms Tapia, acting on the advice of Mr Matters, Mr and Mrs Harrison had investigated the allegations to the extent they could, finding that, on the records, Ms Tapia had not been at work on the day of one alleged incident, a fact confirmed by other workers who had been present, and that, in the case of a second one, Mr Harrison himself had been only five feet away and had heard or seen nothing. Without further information from Ms Tapia, they could not progress either their investigations into those two alleged incidents, or the further two allegations. 387 It was also a constant refrain of Mr Matters, that the Harrisons were supporting Mr Manias and would not have stood up to him even if Mrs Tapia's allegations had been shown to be correct. As to that point, in a dispute involving an employee in 1993, whom Mr Manias wished to sack for reasons that included sexual harassment, Mr Harrison backed the employee, about whom Mr Matters had made representations to Mr Harrison. Mr Manias left the Lagoon. His services were terminated by the Lagoon. Mr Matters said it was not common ground Mr Manias was sacked in 1993 but he did accept that Mr Manias had attempted to dismiss an employee in 1993 and that Mr Harrison had overruled him. 388 Mr Harrison said that on 23 April, he could not say that Mr Manias was under his control but "certainly we wouldn't wash our hands of him". Mr Harrison that morning could give Mr Manias directions which he would lawfully have to follow. 389 At this point, I note that my attention was drawn during proceedings to comments adverse to the respondents that I had made in relation to an issue as to costs. In the light of the full evidence now before me, I realise that the actions that led to those comments were driven by the desperation of Mr and Mrs Harrison caused by their understanding that Mr Matters was "orchestrating" Mrs Tapia's action against them, not by any malign feelings towards Mrs Tapia. 390 The evidence of Mr and Mrs Harrison was, of all the evidence of the principals in the case, the most internally consistent, though, of course, not uncontradicted by that of other witnesses, nor, in all respects, totally accepted. Mrs Harrison was willing to acknowledge mistakes even when, in my view, such acknowledgement was not called for. I instance, in particular, Mrs Harrison's regrets at her inability to cut short the "big blow up" on 23 April. Mr Harrison regretted and properly apologised for remarks he had made to Mrs Tapia at the meeting on 30 March 1998. Events post 16 March 1998 391 Mrs Bokulic said that after Mrs Tapia and Ms Milne left the Restaurant on 16 March, the Restaurant had tried to contract Mrs Tapia. However, Mrs Tapia had changed addresses since she had been on worker's compensation and the Restaurant did not have her contact details. 392 Ms Milne's understanding of the situation, as she said she relayed it to Ms Maritsa Bukolic in a telephone call on or around 16 March 1998 was that: A. Marissa [sic] said "I want to know when Narda is going to come in and meet with us". I said "Narda is seeking legal advice about whether she is required to meet with you to discuss the legal statement you presented to me at the meeting. When she has got that advice I expect she will be either ready to meet with you or she will be advised she is not to meet with you over that statement before she returns to work". Marissa then said, "You misunderstood our intentions, we wanted only to discuss the statement with Narda to see how she felt about coming back to work". (Transcript p 544) 393 On 17 March Mrs Bokulic, at the request of Mrs Harrison, spoke to "Tania" from the Restaurant and Caterer's Association. The reason for calling the Association was because the Lagoon had not heard from Mrs Tapia in relation to her returning to work and wished to be advised of the procedure for it to implement Mrs Tapia's return to work. 394 Mrs Bokulic in a telephone conversation with Ms Milne on 20 March had told her that "Narda's return to work is not conditional and we would expect her to return to work soon". (Transcript p 683) In speaking to Ms Milne, Mrs Bokulic was speaking on behalf of the company. 395 In a telephone call on 20 March 1998 Ms Milne said to Mrs Bokulic that "George has made Narda's return to work conditional on meeting with him to clarify Narda's allegations". Mrs Bokulic advised her that: 17 On 20 March 1998 at 9.20am, I received a phone call from Ms Milne. I had a conversation with her in words to the following effect: Ms Milne said: I understand Narda has organised a meeting this morning with George but I'm not sure. Could you contact Narda to confirm this? I said: Narda's changed addresses since she's been on workers comp and we don't have her new contact details. Ms Milne said: Alright. I'll contact Narda and I'll call Vania later. Listen, George has made Narda's return to work conditional on meeting with him to clarify Narda's allegations. I said: Narda's return to work is not conditional and we would be expecting her return to work soon. George is concerned to clarify how Narda would feel about returning to work. (Exhibit 72) 396 Ms Milne did not say when Mrs Tapia was returning to work. She said that it was the Restaurant that had to specify the date of return. Mr Harrison still wanted to speak to Mrs Tapia about the allegations and about her return to work, but no meeting took place on Thursday, as was understood by Ms Milne to happen. 397 On 25 March 1998, Mr Harrison, after advice from the Restaurant and Caterers Association, sent a letter to Mrs Tapia advising her that a return to work had been scheduled for Monday 30 March 1998. A return to work programme listing suitable duties and a roster were set out. Mrs Tapia was advised that her allegations against a certain member of staff were being investigated and it would be endeavoured to provide a suitable working environment. Finally it was stressed that Mrs Tapia's return to work had never been conditional on her meeting George Harrison. A copy of this letter was sent to Ms Milne, for her to check and approve and amend the duties and hours of work as Ms Milne, in her judgment, thought appropriate. 398 Ms Milne accepted that that letter "seemed to be an offer to get cracking with getting back to work". At that stage Mr and Mrs Harrison were not making talking to Mrs Tapia about the Sirijovska Statement a condition of her return to work. 399 Ms Milne said that Mrs Tapia did not say anything to her about not wanting to work with Mr Manias or of being frightened of him. The difficulty that arose after 25 March was that Mrs Tapia had not contacted the employer in relation to her intention to return to work. 400 On 25 March 1998, Mrs Bokulic spoke to "Julie", a secretary at the SCWMC and said words to the effect of: Narda's return to work is not conditional on her meeting with Mr Harrison. Her return to work is a completely different matter. The only reason Mr Harrison wished to meet with Narda was to investigate the other allegations Narda had made and Narda's feeling and intentions regarding her return to work. (Exhibit 72) 401 Though there may have been some confusion as to the date of the conversation, Mrs Bokulic said that she never used the words "the restaurant no longer required Mrs Tapia" [to discuss the statement], in a conversation with Julie of the SCWMC as was put to her by Mr Matters because it never was a requirement. (That was another instance where Mr Matters had put his own "spin" on events and evidence.) 402 Mrs Bokulic said Mr Manias does use swear words in general conversation, but had not done so on this occasion. "It's a matter of his speech". 403 Ms Milne had an interview with Mrs Tapia on 26 March at which time Mrs Tapia advised Ms Milne that she wanted Paul Matters to advise her as to how she was going to get back to work. Mrs Tapia told Ms Milne she was unsure what Mr Matter's plan was but he had advised her not to discuss the employee statement with her employer. 404 Later on 26 March, Ms Milne had telephoned Mrs Tapia asking her to call Mr Matters to clarify her industrial situation. That was because after the time of the afternoon interview Ms Maritsa Bokulic said the Lagoon wanted to get things moving and, to Ms Milne, it looked like the employer was willing for Mrs Tapia to start back without discussing the witness statement. Actions by Respondent after 16 March - Consideration 405 In the letter sent to Mrs Tapia on 25 March 1998, following advice from the Restaurant and Catering Association, suitable duties were listed and a proposed roster on a split shift basis was set out. The hours rostered were 9 am to 12.30 pm and 1500 to 1900 Monday to Friday (7 ½ hours each day). 406 In relation to that proposed roster, I note two things. The first is that until the later discussion with Ms Milne, Mrs Harrison was not aware that Mrs Tapia would not immediately come back to full time work, but would start with fewer hours and work up to full time. The second matter I note is that the shifts were specifically and deliberately structured by the Restaurant as protection for Mrs Tapia in that the hours she would be rostered for, were hours that Mr Manias would not be present. 407 It was only Mrs Tapia's shifts that could be changed to try to keep her and Mr Manias apart. As was explained by Mrs Harrison, Mr Manias' shifts were impossible to change because he was the head chef. He had to be there during the service times, twelve noon to about 3 pm for lunch, 6 pm/7 pm to 10 pm/9.30 pm depending upon how busy the night shift was. However, the hours of anyone who just did food preparation could be worked outside service times. 408 Mrs Harrison said that prep work, including peeling of potatoes and onions, could be done on occasion by anyone from the chefs to the washing up ladies. However, Mrs Tapia had a very firm view as to her status. She was a cook, not a kitchen hand. 409 Mrs Harrison said that she believed Mrs Tapia should return to work but she also believed strongly that Mrs Tapia and Mr Manias should not be working together side-by-side. Her prime concern was for Mrs Tapia, not Mr Manias. Mrs Harrison had discussed the return to work of Mrs Tapia with Mr Manias. Mr Manias had said he was quite comfortable to work with Mrs Tapia because he knew the allegations were not true. I think Mrs Harrison's statement that she did not think "it was a good idea that he do that" displayed obvious common sense. 410 Whether or not Mrs Tapia was being truthful as to her own feelings and emotions, as set out in the Sirijovska Statement is not a matter I decide but the situation presented to the Harrisons in that Statement was that Mrs Tapia said that she had been physically and verbally abused by Nick Manias and could not cope with the situation any longer. 411 Mr Matters put it to Mr Harrison that the letter he had written on 25 March was a clever and devious attempt to cover his real intention which was to get Mrs Tapia to change her statement. That was denied by Mr Harrison. 412 There is absolutely nothing in the evidence to support the proposition put by Mr Matters. It was a letter written on the advice of their industrial organisation and set out quite clearly the efforts of Mr and Mrs Harrison to protect Mrs Tapia, and also Mr Manias, in the face of the allegations made by Mrs Tapia. The letter had the intended effect of getting Mrs Tapia to return to work. Incident on 30 March 1998 413 It was contended that victimisation of Mrs Tapia was constituted by the respondent accusing the applicant of lying, making threats against the applicant in regard to privacy and to jeopardise her lawful claim to workers' compensation entitlements, humiliating, bullying and causing her distress. 414 The meeting on 30 March 1998 was a resumption of that of 16 March. 415 The basis for this claim of victimisation is a statement made by Mr Harrison to Mrs Tapia during a heated conversation at the return to work meeting on 30 March 1998. According to Mrs Tapia, Mr Harrison said to her: 34 George Harrison said "Anyway, you've been lying about your medical condition because before you had the operation you came to the Restaurant when I was here and when you left I followed you with another employee in another car so you wouldn't recognise my car, and I saw you walking all right except sometime you would limp and you were turning your head to look back. You have been lucky that I didn't have a video camera with me". (Exhibit 9) 416 Mrs Tapia, Ms Milne and Mr Harrison are at one that at the return to work meeting on 30 March 1998 that that meeting became heated. They are also at one that in the course of that meeting Mr Harrison told Mrs Tapia that he had seen her walking away from the Restaurant without any sign of a limp and that Mrs Tapia was lucky he did not have a video camera with him. 417 However, Mrs Tapia also claimed that Mr Harrison had said she was lying about her medical condition. Mr Harrison denied saying that and Ms Milne made no reference to such a statement in her statement. 418 Mrs Tapia may have drawn the inference that she was being called a liar but I accept that Mr Harrison did not make that specific allegation. 419 In relation to that incident, Mr Harrison expressed regret that he had said what he did. He blamed the frustration he was feeling at not being able to bring either Mrs Tapia or Ms Milne to an understanding of the real concerns he had as to Mrs Tapia and Mr Manias working together and taking the measures he felt necessary to achieve that outcome. 420 Though she was understandably offended and upset by the comments, Mrs Tapia suffered no detriment that would constitute victimisation as a result of what was said by Mr Harrison. There was no suggestion that Mr Harrison had taken his comment further or that her ultimately successful workers compensation claim had in any way been affected. 421 I reject the claim of victimisation in relation to that incident. 422 On 30 March, Ms Milne suggested that for the first return to work of 4 hours per day for the first week there should be some kind of arrangement where Mrs Tapia could sit from time to time. Mrs Harrison's response, as recorded by Mrs Tapia, was that that would not be a problem: "we will co-operate as much as we can with the rehabilitation" (Exhibit 9, par 65). Asked by Ms Milne if she agreed with that, Mrs Tapia said: I don't. I prefer to work my 4 hours straight and not to have anyone on my back bothering me because of the incident that happened this morning with George. If I am just walking around or sitting down instead of working, I know he will ask me what I am doing. But if I see in the following week when my hours increase and I cannot cope with the standing I would then like to be able to sit from time to time. (Exhibit 9, para 67) 423 Mr Matters in cross-examination accused Mr Harrison, in his efforts to keep Mr Manias and Mrs Tapia apart of trying to return at that meeting of 30 March to the issues in the witness statement. 424 Of course, Mr Harrison was trying to return to those issues. He said the Harrisons were still concerned about the very serious allegations. The allegations were criminal in nature. They could not be allowed to go unresolved. The Harrisons tried to take the stress off the situation by rostering Mrs Tapia and Mr Manias separately. That attempt failed because Mrs Tapia believed that the Harrisons were victimising her and she insisted on working alongside Mr Manias, resulting, as Mr Harrison said, in a very difficult situation. 425 Mr Harrison said that it was because they did not know how Mr Manias, who was upset, would have reacted or how Mrs Tapia, who would not discuss the matter, would have reacted to working side by side that Mr and Mrs Harrison and Mrs Bokulic had put so much time and effort to try to work into the rehabilitation programme a safety measure for them both. 426 In the Sirijovska Statement, on 17 February 1998, Ms Tapia had said, amongst other things, that she had "been abused and threatened both physically and verbally by Nick Manias" since the start of her employment with the Restaurant, that "since my employment, I've always been stressed" and, in relation to alleged abuse by Mr Manias she "got to a stage that I could not cope with the situation any longer". In relation to one alleged incident of physical attack, Mrs Tapia had said "I was very shocked and scared". 427 Despite saying that, six weeks later, Ms Tapia, despite her allegations against Mr Manias, and in the face of Mrs Harrison's expressed wish that the applicant have no contact with Mr Manias, insisted that in her rehabilitation program she be supervised by Mr Manias. She told Mrs Harrison that she did not think it fair that she should not be supervised by Mr Manias "because I thought that if I am in the kitchen I had to be supervised whether I like it or not by my superiors …" (Transcript p 108/111) She had the support of her rehabilitation supervisor, Ms Milne, in taking that stance. 428 Mr Harrison had asked Mrs Tapia whether she had received legal advice and whether the accusations could be discussed and worked into the rehabilitation. Mrs Tapia, continuing to act on the advice she had been given by Mr Matters, refused to discuss the issues and would only discuss her working hours in the rehabilitation programme. 429 Mrs Tapia said that for the Harrisons to ask her about the Sirijovska Statement when she was talking about her return to work programme was, in one way, victimisation. That was because "they completely interrupt my rehabilitation programme". (Transcript p 481) 430 Ms Milne's attitude to the effect of the allegations against Mr Manias on Mrs Tapia's return to work program can be seen in the extract from transcript set out below: Q You were happy to be involved in a return to work program that resulted in your client working in proximity with somebody who had made the most, on her allegations, had engaged in the most heinous conduct in relation to her that you could imagine in a work place? A Yes, I was mystified she was willing to put herself back into that position, but she was. (Transcript p 595 13/4/00) 431 Ms Milne accepted "absolutely" that the situation of a junior employee who had made serious allegations against a senior employee working in a very close work environment with that senior employee would be a very difficult one for a manager to manage. 432 Although she could not specify a date, Mrs Bokulic knew that at a particular meeting with Ms Milne, Mrs Harrison had suggested that if Mrs Tapia had a problem with being supervised or instructed by Mr Manias Mrs Tapia could take her instructions from Mrs Harrison. 433 I accept that George Harrison did not tell Mrs Tapia on 30 March 1998, as she alleges, that it would be "illegal" for her to be represented by anyone other than the LHMU. Mr Harrison as a solicitor obviously, as he said, knew it was not "illegal". I believe that is the interpretation Mrs Tapia put on advice, in whatever terms that were used, that Mr Matters was not her "union" representative. 434 Mr Harrison said he had expected Paul Matters to attend the return to work meeting on 30 March 1998. Although Mr Harrison had challenged Mr Matters' position as her "union representative", Mrs Tapia had insisted he was. 435 Of course, in the ordinary course of events, the employee's union representative would have been sitting alongside his/her member and taking an active role in addressing his/her member's allegations. 436 Ms Milne in her affidavit said that at the end of the meeting on 30 March 1998, she advised Mr Harrison to use the union to address industrial issues which are not related to the return to work programme. That advice, in the light of Mr Harrison's efforts to obtain union involvement, was deeply ironic. 437 At the conclusion of that meeting, Mr Harrison felt that they had been defeated on the major safety issue of taking the allegations into consideration and working them into the rehabilitation programme. 438 Ms Milne said that prior to her writing her rehabilitation report dated 30 March 1998 there had been a few telephone calls between herself and Mrs Harrison and Mrs Bokulic to clarify some matters. Kitchen Incident 18 April 1998 439 This incident is not specifically claimed as an incident of victimisation but is one of those caught up in the general claim of victimisation during the period 30 March 1998 and 18 April 1998. 440 On the evidence, it would seem that Ms Tapia labelled every direction and statement contrary to her wishes as "victimisation", e.g. directions to do prep work out the back. 441 Mrs Harrison in cross-examination agreed with the position put to her by Mr Matters that after 3 April there was an agreement that Mrs Tapia would peel potatoes and other vegetables for one and a half hours in each shift of three hours, sitting in the back of the kitchen on a chair. However, to her knowledge, Mrs Tapia did not do that: Q What did she do to your knowledge? A To my knowledge she sat there for a little while but was very annoyed about sitting at the back and would come into the kitchen and try to do work there. I remember she was given instructions to go to the back but she was offended at having to do that. Q How do you know she was offended? A Because she was reluctant to do that. At one stage she said, "I know my rights. I don't have to listen to you. You can't tell me what to do". They were her words. Q These were words said directly to you? A Directly to me on 18 April on the Saturday night when I insisted she go to the back because it was too dangerous in the kitchen. She worked her way to the dessert section and there were four people in that narrow little area and [she] started to get plates twenty at a time and putting them on the bench and saucing them up at 9.30 the most busy time on a Saturday night and I felt it was not a proper place for her to be at that time. Things were far too hectic. (Transcript p 1642-1643) 442 It was Ms Tapia's evidence that Mrs Harrison, on 18 April 1998, had said to her: She said "the letter says you have to sit out the back and we'll go through the program, so get out and go and do some preparation and peel prawns or vegies, whatever you want". (Exhibit 6 par 37) I said "Vania, what I'm doing is preparation to prepare the plates for the desserts is preparation and I won't get out. (Exhibit 6 par 38) 443 The following extract from transcript of her cross-examination, (at page 543) in relation to Mrs Harrison's description of that incident demonstrates her understanding: Q Do you think yelling at your employer on any grounds is acceptable conduct? A That depends. I won't allow anyone to stomp on my head for the sake of it. Q You say Mrs Harrison [in directing Ms Tapia to leave the busy kitchen and perform prep work] was stomping on your head just for the sake of it? A Yes. Q You say Mrs Harrison didn't want you to work in the dessert section on a busy Saturday night? A That is correct. Q And you considered Mrs Harrison asking you to leave the dessert section was victimizing you? A Because she already victimized me. 444 That was a very busy time in that section. Mrs Tapia refused to work out the back at Mrs Harrison's direction and she said they had shouted at "each other" in front of other staff. Mrs Tapia said that Mrs Harrison had said she did not want Mrs Tapia there and for her to go out the back. Mrs Tapia said she was upset, but not "extreme upset" at that direction. 445 When it was suggested to Mrs Tapia that she had completely ignored Mrs Harrison's directions, Mrs Tapia said "we were discussing". Mrs Tapia denied that she had been yelling so loudly at Mrs Harrison that all work in the kitchen had stopped. 446 Mrs Tapia's version of these events could not be correct. Mrs Tapia said she was annoyed at the time because she had been sitting out the back for three hours in the morning and three hours of the afternoon shift (7 pm - 10 pm) peeling onions and potatoes. When she finished that work she went to the entrée section to see if she could help. (The cold entrée section and the dessert section were in the same area.) 447 Mrs Tapia agreed that it was at about 9.30 pm when she had tried to work in the dessert section. 448 As soon as it was 10 o'clock she walked out and went home. 449 Mrs Tapia said that it was quite possible she had kept insisting on returning to the hot entrée section because it was part of the rehabilitation programme at the suggestion of Ms Milne to observe and do some preparation in order to upgrade her knowledge of the present menu. She was never allowed to serve anything. 450 In cross-examination as to that incident Mrs Tapia accepted that Ms Kerry Hanrahan, a rehabilitation provider from the SCWMC, had said to her that for her to work in the kitchen when it was very busy was not a good idea because she could jeopardise her health or her foot by falling over. 451 By 23 April 1998, Mrs Harrison accepted that Mrs Tapia was able to work in the kitchen, including busy times, for two and one half hours, with the one restriction that she had to have her rest periods for half an hour. That was because on the previous Saturday night, 18 April, Mrs Tapia had displayed to Mrs Harrison that she was very keen to get back and had felt that she was being sort of downgraded and found it demeaning to be asked to sit at the back. In following the course she did on 18 April, Mrs Harrison said she was just following Mrs Tapia's rehabilitation programme. Spanish Speaking Incident 18 April 1998 452 There were apparently two separate incidents involving Mrs Tapia speaking Spanish. The first occurred on 18 April, and involved Mr Harrison, but it does not seem to be specifically claimed that he told Mrs Tapia not to speak in Spanish. 453 The background to that incident was that Mr Harrison said he heard an altercation and yelling and screaming between Mrs Tapia and the head chef that night, Mr Johnny Barra-Jaire. Although they were speaking in Spanish, he could tell from the body language that it was a serious altercation. Mr Barra-Jaire, amongst other things, then told Mr Harrison that Mrs Tapia had just told him off. At the same time another chef, Luis de Rosa, told Mr Harrison that Mrs Tapia had also told him off. Mr Harrison tried to take the matter up with Mrs Tapia, who, in her evidence, said she had replied that she did not have a problem with John or anybody and told Mr Harrison just to leave her to do her job. According to Mr Harrison, Mrs Tapia denied telling Johnnie off, said that Johnny and Luis were both lying, she was just talking to them, just doing her job, she knew her rights and "you are victimising me again and if you don't go away I am going to report you to Paul Matters". (Paul Matters, in cross-examination, said he was not aware of any problems after Mrs Tapia's return to work on 30 March). It is common ground that at the end of the exchange Mr Harrison turned and walked away. 454 Mr Harrison said he went back to tell the chefs that he had tried to calm Mrs Tapia down but that she had been as aggressive to him as to them. 455 In cross-examination Mr Matters put it to Mr Harrison that he had invented the statements by Johnnie and Luis, a proposition denied by Mr Harrison. Mr Matters adduced no evidence to back up his proposition. 456 Mrs Tapia did not appear to recognise that the plea Mr Barra Jaire, the chef in charge that day had then made, for her to go to the back, was asking her to stop talking to those employees to whom she extended the dispute. She said she refused to leave the kitchen "because it was not part of the program." ... "if it is not on paper it is not part of the program". (Transcript p 579, 2/12/99) 457 Mrs Tapia said she refused to work at the direction of Mr Johnny Barra-Jaire because she believed those directions were not consistent with her rehabilitation programme. She accepted that on Sunday morning (probably 19 April) when she turned up for work Johnny Barra-Jaire had told her in Spanish that he had been shown her rehabilitation programme by the employer. 458 It would seem that much of the upset in the kitchen when Mrs Tapia refused directions from Mr Barra-Jaire and from Mr Manias to work out the back, as, in accordance with her own evidence, occurred for instance on 19 April, derived from her mistaken understanding as to what her return to work programme said. Spanish Speaking Episode 19 April 1998 459 Victimisation of the applicant was alleged to have occurred on this day by the respondent singling out the applicant not to speak Spanish at work, falsely accusing her of being disruptive, attempting to intimidate her. That occurred two days after Mrs Tapia had instituted victimisation proceedings in the Commission. 460 Mr Harrison said the complaints by other employees about Mrs Tapia, about her speaking of others in Spanish and being disruptive in the kitchen had occurred in the first weeks after her return to work and before her victimisation application was first mentioned in the Commission. 461 Mr Harrison said he had received complaints about difficulties in working with Mrs Tapia from Ms Boyatzis, Johnny Barra Jaire, Luis de Rosa and another Chilean employee, Puri Silva. (Mrs Harrison's evidence was that she had changed Ms Silva's shifts to accommodate her complaints against Mrs Tapia.) He had received specific complaints from three employees in relation to Spanish being spoken in the kitchen. Ms April Bitz, an apprentice chef, and Ms Jan Boyatzis, a kitchen hand had complained about Mrs Tapia, Johnnie [Barra Jaire] and Luis [de Rosa] speaking Spanish and talking about them. 462 The complaint of Ms Silva was on a different basis. She said Mrs Tapia insisted on talking to her in Spanish and she knew other employees were uncomfortable because they heard their names mentioned. 463 When told by Mr Harrison that people had complained about her, Mrs Tapia demanded their names. When Mr Harrison refused to tell her, she immediately asked every employee around her "Do you have any complaints because I speak in Spanish? Do you have a problem working with me?" 464 Mrs Tapia said that on 19 April 1998 when she commenced her shift she had a conversation with John Barra Jaire (in Spanish) about the length of time she had to sit in the back. Mr Barra Jaire said he had been shown a medical certificate to that effect. Mrs Tapia told him that that medical certificate or letter said she had to sit at the back for ½ hour only not three hours in the morning and three hours in the afternoon. She told him that she did not think that was fair. 465 Mrs Tapia was mistaken as to what she was required to do under her rehabilitation programme. That programme, until the meeting with Ms Milne on the morning of 20 April, specified that she spend half of each shift, i.e. one and a half hours, not half an hour, out the back. 466 Mr Harrison said that about 11.55 am on Sunday 19 April Mr Manias told Mrs Tapia that in future he would like her to speak in English, because people had complained that they heard their names mentioned in Spanish conversations and they felt very uncomfortable. Mr Manias specifically remembered Ms Bitz on 19 April 1998 complaining about Mrs Tapia speaking Spanish and saying that Ms Bitz had heard her name in the conversation. 467 Mrs Tapia told him she could speak in Spanish if she wanted to. She told Mr Manias he could not stop her speaking her language because to do so was illegal and she did not come to work to be abused by him. 468 Mr Barra Jaire, who was present, told Mr Harrison he understood the situation and that they (the four Spanish speakers) would not speak in Spanish any more. 469 "Johnny" had said sorry and that it would not happen again. Mr Manias said that Johnny was not told his job was on the line if he did not tell Mrs Tapia to stop speaking Spanish: "you don't fire people about small incidents". 470 I accept that when one is listening to conversations in a foreign language with which one is unfamiliar, misunderstandings can arise as to the subject of those conversations. However, the evidence of Mr Manias, who also heard some conversations and does not speak Spanish, shed some light on how the employees could come to the views they held. He said that: A No it was a complaint made by a number of staff that they cannot work with Mrs Nadia and John when they are carrying on and laughing in their own language and calling names. They were very imitative of people. … A People imitated, because they mention names of the people that were mentioned, they feel very uncomfortable, hear the names while they are laughing and carrying on in their own language and this was during a service time, Mr Matters. … A This was not a matter of Johnny and Nadia getting on well, it was a matter of people annoyed and irritated when they heard the names with their carrying on and laughing. (Transcript p 1038) 471 Mr Manias explained that people working in the kitchen do not speak in their first language, if it is other than English, when the busy times start. There was a place outside at the dining room where people spoke whatever language they chose to. When an order is given for any particular food it is given in English. The rule is not to speak any other language in the kitchen. At busy times, employees need to co-operate with everybody and if people speak their own language it is very difficult to work in harmony. He said that in the kitchen: A They speak their own first language but it was a rule that they would not speak their own language in the busy times. Otherwise we have ten different nationalities and everyone speaks his own language it would be a battle. We can never finish our job. ... A What I had a rule in my kitchen only work time we all speak English. They can speak whatever language they like outside working hours. There are two different sets. There are in the kitchen, that is when I mean everyone to speak English. Outside they were entitled to speak whatever language they want. (Transcript p 1036) (Note: English was Mr Manias' second language.) 472 Service time was between 12 noon and 3 pm. 473 The respondent also had responsibilities to all its employees, not only to Mrs Tapia. There is nothing to show that the complaints of the other employees were not genuine. 474 Mr Harrison said that the complaints by employees against Spanish being spoken in the kitchen was the first time such a complaint had ever been raised. However he stressed that the complaint was not so much that Spanish was being spoken, but that the complainants could hear their names being spoken in the course of those conversations. 475 Whether or not the understanding of those employees was correct, the result was disruption in the kitchen. It should be noted that the employees generally were not aware of the Sirijovska Statement or the allegations in it. Mrs Harrison said she tried to deflect complaints by employees about Mrs Tapia by saying that Mrs Tapia was anxious to get back to full duties and everything would be all right when the rehabilitation period was finished. 476 The work force in the kitchen was multinational predominantly speaking Macedonian but also Greek, Portuguese and Spanish. English was very much the second language for most of the people who worked in the kitchen. 477 Mrs Tapia was not singled out for speaking Spanish. There were four Spanish speakers in the kitchen. Mr Johnny Barra Jaire, as already mentioned, accepted the point Mr Manias was making. Ms Puri Silva's shifts had been changed, after she told Mrs Harrison she would have to leave because of the distress Mrs Tapia's insistence on speaking Spanish with her was causing Ms Silva. (Ms Silva was of Chilean background as was Mrs Tapia.) 478 This claim of victimisation was not made out. 19 April 1998 479 It was submitted that victimisation also occurred on 19 April, which was constituted by the respondent threatening to institute legal proceedings for defamation, threatening that she may suffer hurt and possibly lose her job (first incident). In addition a coercive offer is made by the respondent to induce her to stop participating in the industrial proceedings of her free will (second incident). 19 April 1998 (First Incident) 480 Mrs Tapia said that during a long conversation with her on 19 April, Mr Manias said that "we" are going to put a claim for defamation over $300,000 against Marika [Sirijovska] and probably against Mrs Tapia. 481 Mrs Tapia and Mr Manias had a discussion in the office. The version of each of them is so different that there is not point trying to condense what each said happened. Mrs Tapia did agree that neither she, nor Mr Manias, sought to have a witness present, despite the existence of the allegations in the Sirijovska Statement. 482 Mrs Tapia said that in that conversation Mr Manias tried to get her to withdraw her statement in the Sirijovska matter. 483 Mrs Tapia did say to Mr Manias that she liked her job and that she felt unwanted there, mostly by her employers. In cross-examination she said that Mrs Bokulic and Ms Boysatis were unpleasant to her. No one else in the kitchen staff had done anything to her. 484 Mrs Tapia recalled that Mr Manias had talked about Paul Matters and Mr Manias had said that Mrs Tapia had not even been at work on one of the days it had been alleged in the Sirijovska Statement an incident had occurred. Mr Manias could have asked her if Paul [Matters] had asked her to check her pay slips to see whether she had been working on that day. Mr Manias had said that if Mrs Tapia told lies to the Court she would have trouble getting work in Wollongong, while Paul Matters would still have his own job. Mrs Tapia had been upset, but not crying during the conversation. At the end Mr Manias could have said for her to go home and he would see her when she came back that afternoon. (When Mrs Tapia said something "could" have been said or done, she was accepting claims put to her from affidavits.) 485 Mrs Tapia left at 3 pm after her first shift and returned for the later shift starting at 7 pm. She had another conversation with Mr Manias about 9 pm. John Bara-Jaire was included. Mr Manias had described plans for the work Mrs Tapia was to do when she finished the rehabilitation programme. (That work was not put forward as a promotion or as an inducement to withdraw the Statement. It was the sort of work Mrs Tapia had been doing before she went off on workers' compensation.) Mr Manias was very pleasant: "it was very convenient for him". 486 Mrs Tapia said she had a third conversation with Mr Manias on 19 April, that being before she went home that night. He wanted her to talk to Mrs Harrison. She rejected the suggestion put to her by Ms Stubbs that Mr Manias had not been present at that meeting with Mrs Harrison. 487 In relation to the first conversation, Mr Manias did not remember telling Mrs Tapia, as she claimed he did on that day, that Marika [Sirijovska] would still have her house and car and work elsewhere, that Paul Matters would still be Secretary of the SCLC but that Mrs Tapia would be without a job. He said that if it was not in his statement "it's lying and I never say that". (Transcript p 1138) 488 However, Mr Manias said that on 23 April, when he went to get the Sirijovska Statement: … I was only concerned about her job and her welfare and I know this poor woman, she was going to be out of work with that - at home and the family would have suffered, the kids. … … Q What did you want Mrs Tapia to do on 23 April when you went and got the statement? What did you want her to do by doing that? A I say to her had better drop this case. This is not you. Paul Matters is up to something. … … STUBBS: It seems very clear to me, your Honour, that Mr Manias does not apprehend that he is specifically being asked about this incident. He is clearly talking about a discussion that he had with Mrs Tapia on another occasion and Mr Matters perhaps needs to clarify that with him. HER HONOUR: I am not sure that Mr Manias is talking about a discussion that was held rather than what he wanted to do. MATTERS: We will clear it up. … Q What did you want Mrs Tapia to do when you brought that witness statement back out? A To do - I only asked her to withdraw it so she could have a job, nothing else. Q That is very helpful. Thank you. You said you wanted her to withdraw it so that she could have a job. What did you mean by "so that she could have a job"? A I said whatever she was doing it was nonsense because it was no help. There was no reason for her to go to what he [sic] was doing because I never - I never provoked it in any way for her to go to the extreme that she went. Q Mr Manias - A For me it was strange. Q I am very conscious of the fact that we do not particularly want an answer from you that may be as a result of you not understanding what was said to you. You said you wanted her to withdraw it because she would not have a job or she could have a job. I am just trying to clarify what you meant by "so she could have a job". What did you mean by that? A By that, because she was - Narda, my way of thinking she was - she wanted to get out of the restaurant. She wanted to go to a court procedure so she could get the $50,000 that you promised her she is going to get and I told her she is wrong, she is never going to get this money because there is no reason. (Transcript pp 1075-1076) 489 That evidence of Mr Manias is illustrative of the difficulties I had grappling with his evidence. It was often confused, as, for instance, in relation to the above, it seems to me just as likely, although Mr Matters tried to clarify the issue, to also refer back to the conversation Mrs Tapia said she had with him on 19 April. Furthermore, there could have been no reference to $50,000 at that time because Mrs Tapia's application was only amended to that amount in October 1999. 490 When his oral evidence varied from his affidavit, he said that whatever he said in his statement, sworn under oath, would be correct: "I haven't got a long memory to remember what I say and how I write my statement". (Transcript p 1090, 29/6/00) 491 At various times in his evidence he said that the Sirijovska Statement did not concern him because he knew it was not true. However, as he said elsewhere he was "just upset like any normal person because someone is accusing me for things that never happen". In evidence he said to Mr Matters: A Well, I have been many times to the office and I have picked up the statement many times. I can't remember which day and what time I picked up the statement. I have it in my office there for weeks. (Transcript p 1078) ) 492 I accept that a conversation to the extent of Mrs Tapia's evidence set out in [483] in which Mr Manias suggested she should withdraw her witness statement, spoke of her losing her job and raised the issue of defamation took place on 19 April. 493 Mr Matters claimed that the defamation proceedings commenced against Mrs Tapia in the District Court in 2000 were a continuation of the victimisation of Mrs Tapia. Those defamation proceedings followed an article, based on the Sirijovska Statement, which was published in the Illawarra Mercury on 2 December 1999. Mrs Tapia, questioned by Ms Stubbs, said she was "very surprised" to read it. She said she had neither given, nor directed anyone to give, copies of any witness statements to any journalist, television or print. (Transcript p 509 2/12/99) 494 The outcome of that publication was a defamation action brought by Mr Manias against Mrs Tapia and Mr Matters. 495 Mr Matters originally did not accept in Court that he had supplied the document to the Mercury, but later accepted that he had. (As I understand it, the defamation action did not proceed to determination.) 496 I accept the respondent's submission that the defamation proceedings in the District court against Mrs Tapia and Mr Matters arose out of the fact that the Sirijovska Statement was given by Mr Matters to the "Illawarra Mercury" in December 1999. The reference in par 85 of Mrs Tapia's witness statement (Exhibit 6) and par [479] above is not a reference to any defamation action relevant to the present proceedings. The defamation action that had been commenced was entirely unrelated to the present application. It related to the conduct of Mr Matters, acting as Mrs Tapia's agent. 497 I also accept Mrs Tapia's evidence that the giving of the Statement to the Illawarra Mercury by Mr Matters was not done on her instructions. 498 Ultimately Mr Manias's suggestion that Mrs Tapia should withdraw her statement, takes the victimisation claim no further. She did not withdraw the Statement. She did not, for the reasons I set out in detail later, lose her job because she did not withdraw it. There was no detriment to trigger any of the remedies provided for in s 213(2). 499 However, if Mr Manias had persisted with that approach, over a longer period, there might have been grounds for a finding of victimisation. 500 Mrs Tapia's evidence as to her relationship with other employees in the kitchen at the time her conversation with Mr Manias took place on 19 April is instructive to the extent that it confirmed the evidence of Mrs Harrison and Mr Manias that they were having to deal with complaints from other employees in relation to Mrs Tapia's attitude to work. The fact that Mrs Tapia said "I feel very uncomfortable in the kitchen by everyone else", (Transcript p 549) was referrable to a time prior to her allegations against Mr Manias becoming known to the other employees on 23 April. (Mrs Tapia later qualified the "everyone else" as being the employers, Mrs Bokulic and Ms Boysatsis). 19 April 1998 (Second Incident) 501 Mr Matters submitted that the victimisation arising out of the second incident was a coercion offered to induce her to stop participating in the legal proceedings of her free will. The word coercion is usually associated with a threat rather than an offer. It is usually in a sense of say, "your money or your life," and in this instance there was an offer for her to be assisted in getting some alternative legal assistance or advice. Of course that is based on the assumption presumably by the respondent that she needed legal advice at that stage. That is something which is part of the pressure placed on her to drop the proceedings, and to change her witness statement to make significant changes to that witness statement also. 502 There is nothing improper with that; it is conceded that a party can approach a witness and ask them to clarify a matter or ask them to consider changing the statement, but this goes way beyond what could have been a reasonable attempt to clarify the issues. It was an attempt to get a witness statement to be, not just changed, but that she go back on a sworn statement in large part which would have effectively meant that she was no longer a witness for the applicant in the Sirijovska case. 503 There was a strong indication there that she should go and see a lawyer, and this was Mrs Harrison's suggestion, and the offer was also that the representation would be paid for by Mrs Harrison. Logically, it is inconceivable that Mrs Harrison would fund a lawyer who would have proceeded with a victimisation application against her or her company. The offer of the lawyer can only be interpreted as either that Mrs Harrison was confident the lawyer would give advice of a particular kind or that Mrs Harrison would have only paid the lawyer if the advice had been that the applicant would drop the claim. (That interpretation had not been put to Mrs Harrison.) 504 Mrs Harrison had forwarded to her legal representatives the details of what Mrs Harrison said Mrs Tapia had said in a conversation. It was not just some offer to give some legal assistance. There was a collateral purpose in that whole approach which was coercive. 505 At that particular time there was real pressure on Mrs Tapia. She had been in the Commission on the previous Friday, 17 April, making application on the basis that she was seeking protection in the Commission. 506 There is also the other incident on the 19th, that Mrs Tapia comes back from being in the Commission, and there is an issue raised about her manner of work, an accusation of being disruptive and so on. The offer of legal advice on the 19th has to be looked at in that context. Mrs Tapia was an employee under very real pressure in her workplace. 507 It would have been a different matter if, after the Commission appearance on 17 April, the third incident had not occurred, and the threat had not been made about legal proceedings for defamation. Those threats incidentally were later to be carried out and then later, decided not to be proceeded with, by the respondent, Mr Manias. 508 Mrs Tapia said she asked to speak to Mrs Harrison on 19 April, having earlier spoken to Mr Manias. Mr Manias had asked her to talk to Mrs Harrison "so we can clarify why there is so much tension in the air". (Exhibit 6 pars 121-122) 509 There was some discussion of the Sirijovska Statement between Mrs Harrison and Mrs Tapia at that meeting. Mrs Tapia said that the specific allegations were not discussed "because I was involved in this case then". Mrs Harrison could have asked her if she wanted to work somewhere else in the restaurant, but later Mrs Tapia said she did not. 510 Mrs Tapia said it was correct that Mrs Harrison later offered to pay for Mrs Tapia to see a lawyer of Mrs Tapia's choice, because Mrs Harrison did not want her to have Paul Matters as her representative because she said he was not a proper lawyer. Immediately following that evidence, Mrs Tapia said Mrs Harrison had not made that offer, but had wanted to refer her to a friend of Mrs Harrison's. 511 Mrs Harrison told Mr Matters that the purpose for Mrs Tapia to get independent legal advice was "to settle this matter and the concerns she had in the restaurant because every time we spoke to you, [Paul Matters] you were confrontationlist about it and we were not getting anywhere. We tried different ways to resolve the problem and it never happened". 512 In relation to the conversation initiated by Ms Tapia on 19 April 1998, Ms Tapia said in Exhibit 6 par 141: I said "Vania, I didn't say in my [Sirijovska] statement that he abused me physically, but I did put that he did abuse me verbally in a very bad way. And as I said to Marissa the other day and to you now, do not put words in my mouth that I haven't said. Its just the way he expresses himself and you cannot deny that because he even abuses you in front of all your employees or anyone who is in the kitchen and I think that you should have a little more self respect and stop him and be a good example for your employees". 513 After the conversation with Mrs Tapia on 19 April, Mrs Harrison understood that Mrs Tapia would make a further statement saying the words she spoke to Mr Matters were not necessarily the ones that were portrayed in her statement and that there was not any real physical abuse of her. Mrs Tapia was also to speak to someone completely independent other than Mr Matters who had been so heavily personally involved with the Harrisons, Mr Manias and the Restaurant. (Mrs Tapia did not take up Mrs Harrison's offer, telling Mrs Harrison that she would look after her own case.) Mrs Harrison said her biggest relief was not that Mrs Tapia was going to make another statement, but that Mrs Harrison knew that those allegations were not correct. 514 The Sirijovska witness statement was admitted for the fact that it was made and the Commission could note its contents, but the Commission would not traverse the truth or otherwise of the allegations made in these proceedings. On that basis, the Commission notes that the allegations that were contained in that witness statement contained allegations of physical assault. 515 In his submissions in reply, Mr Matters dealt with par 141 (Exhibit 6) by submitting that for Ms Tapia, "physical" here has a meaning of sexual, in terms of, physical contact. The trouble with that submission is that there is no evidence from Ms Tapia that that, in fact, was what she meant. It is not sufficient for Mr Matters to contend that the respondent should have put the issue directly to Ms Tapia in cross-examination to enable Ms Tapia to have the opportunity to explain any ambiguity in her use of the word in the context of her conversation with Mrs Harrison. On the face of Ms Tapia's statement, there is no ambiguity. 516 If Mr Matters was aware of any alleged ambiguity in Ms Tapia's use of the word "physically", it was up to him, as her union representative or agent, in whatever capacity he was acting, to have taken that matter up with Ms Tapia, either in chief, or at the very least in re-examination. 517 Moreover, it must be said that if Ms Tapia did mean something other than appears at first sight in reading her statement, that was a matter that could, and probably would have been exposed, as early as March 1998, in the investigation into her allegations that never took place because Mr Matters told Ms Tapia not to discuss her allegations with Mr and Mrs Harrison. 518 If one puts those statements together, the statement in Exhibit 6 (par 141) and the statement in the Sirijovska Statement, then the assertion alleged by Mrs Harrison to have been made by Ms Tapia on 19 April 1998, "what I wrote in the statement was different to what I said to Paul Matters" would appear to be confirmed. In relation to that last point, the following extract from transcript (at p 647 3/12/99) of Mrs Tapia's cross-examination should also be noted: Q You also said to Mr Harrison [on 23 April 1998] "Your wife and Nick spoke to me on Monday and I told them the statements I gave to Paul Matters were not true because even though the words that came out of my mouth, that is not what I meant for Paul Matters to understand? A That's correct. (Transcript p 647, 3/12/99) 519 The continuation of that passage put to Mrs Tapia was that she said to Mr Harrison that "I did admit that Nick was not threatening to be physical with me. I only said to Paul that Nick was swearing". (Exhibit 103 par 38) That was what Mrs Harrison said Mrs Tapia had said to her. 520 The offer by Mrs Harrison to Mrs Tapia to pay for advice to Mrs Tapia from an independent lawyer was neither coercion nor victimisation. It was a further desperate attempt by Mrs Harrison to resolve the issue. As she said to Mr Matters during cross-examination in relation to that offer: It is always the feeling we have had, that any matter with the staff is better handled by someone other than yourself because of past history. (Transcript p 1563) 521 In the course of cross-examination, Mr Matters put it to Mr Harrison that, as a lawyer, he would have understood the significance of a statement by a witness to the effect that she had lied and deposed to a false statement. If that was the picture, which was in no way a true reflection of the evidence nor indeed of the interpretation a tribunal was likely to place on it, presented to Mrs Tapia by Mr Matters in the days after 19 April, it could only add to the stress being placed on her. Further Rehabilitation Programme Meeting 522 The evidence is unclear as to whether there was a meeting at the Restaurant in relation to Mrs Tapia's return to work programme on 20 April or on 23 April. Present at that meeting were Ms Milne, Mrs Harrison, Mrs Bokulic and Ms Martin. Mr Harrison was present for part of the time. Ms Martin said Mrs Tapia had been invited but was not present. 523 That meeting was described by Mrs Harrison and Ms Martin as having occurred on 20 April. Ms Milne's report of the meeting placed it as being held on 23 April. (In the light of all the evidence I think it was probably held on 20 April. The significance of the meeting does not go to the date, but to demonstrate that the situation with Mrs Tapia was under continuing review, not only by the employer and the rehabilitation provider but by the insurer, QBE. It assists to place the applicant's claims of victimisation in context.) 524 Ms Martin said that Ms Milne had stated that Mrs Tapia said she was finding it difficult to do her selected duties because Mr Manias was being abusive and disrupting her duties. She said that prior to the meeting of 20 April 1998, Ms Milne had advised her that the rehabilitation plan was not going ahead. Mrs Tapia was not participating in that plan because she was not sure of the duties she had to do. 525 Ms Martin, who had before 20 April been shown the Sirijovska Statement thought some issues could be addressed by having Mrs Tapia report directly to someone other than Mr Manias, namely Mr or Mrs Harrison or the other head chef. Ms Martin said that Mrs Harrison had accepted that suggestion, as a good idea. (That acceptance by Mrs Harrison is not surprising since that had been Mrs Harrison's own preferred approach in the pre-return to work conferences with Ms Milne, an approach rejected by Ms Tapia and Ms Milne.) 526 Mrs Harrison said she had told Ms Milne about Mrs Tapia feeling downgraded and wanting to get back to work right away, and that was why the rehabilitation programme was changed at that meeting from Mrs Tapia's working half her shift out the back to working one half hour. In any event, Mrs Tapia had not really adhered to spending half her shift out the back before 20 April. 527 The outcome of that meeting was the decision that, commencing 23 April, Mrs Tapia would work 6 hours per day. Initially, Mrs Tapia was to sit for ½ hour in each three hour block. Over the following 4 weeks, that sitting time was to be gradually reduced to 5 minutes. The ongoing need for sitting time would be monitored by the SCWMC. The second finding/recommendation arising from that meeting was that: 2 Mrs Tapia to contact Mrs Harrison immediately should any conflict arise in her interaction with Mr Manias and will seek to resolve any such matter through Mrs Harrison. Incident on 23 April 1998 528 It was alleged that victimisation of the applicant on that day was constituted by the respondent's bullying, verbal abuse, threats, humiliation, assault, direct dismissal of the applicant and the wilful destruction of the employment relationship. 529 In terms of bullying Mrs Harrison was part of that as well as Mr Manias. Bullying refers to the witness statement, the convening of the meeting of the workers on 23 April, the discussion of the evidence Mrs Tapia was preparing to give before this Commission in that kind of environment and in circumstances where she was isolated. There was an issue of there being a reckless indifference to Mrs Tapia's rights as a witness. 530 Mrs Harrison said she had two follow up conversations with Mrs Tapia after 19 April about her statement - one on the Monday (20 April) and another on the Thursday (23 April). On both occasions, when Mrs Tapia had said she was going to continue the victimisation issue to stop Nick swearing, the matter was left at that. 531 In relation to a conversation with Mrs Tapia mid-morning on 23 April, Mrs Harrisons's evidence in cross-examination was: Q You had a conversation with Mrs Tapia when she informed you on Thursday mid-morning she was not going to make an additional statement, where you said to her, "Tell me what you want with all this, how much?" That is what you said to Mrs Tapia? A I recall saying, "What do you hope to gain out of it; what do you hope to gain?" I cannot remember saying "How much?". Money did not come into it. Q When you said, "How much", you wanted to -- A No, I didn't say "How much". I said, "What do you want to get out of it?" She said, "I want the Court to stop Nick swearing." (Transcript p 1656) 532 (That extract is also but one illustration of the many times Mr Matters did not correctly put back to a witness the evidence of that witness.) 533 Mrs Harrison said that on 23 April Mrs Tapia had overheard a discussion between her and Mr Manias, in which Mr Manias had said other staff were complaining about Mrs Tapia. According to Mrs Harrison, Mrs Tapia had yelled "Who? Who told you that?". 534 Mr Matters put to Mrs Harrison that what Mrs Tapia had said was: "Nick I don't want to discuss the matter now. I have a job to do". Mr Matters also put it to Mr Manias that the argument on 23 April started when Mr Manias had found out that Mrs Tapia intended to go ahead with the Statement and she advised him that she did not want to discuss the matter then saying "I have a job to do". (Exhibit 6 par 185) 535 In my view, that alleged reaction of Mrs Tapia would be completely out of character for her. Her normal reaction in such a situation was to confront people head on. That she did, or tried to do later in the morning when Mr Harrison arrived after the laundry room incident and told her that staff had complained about her behaviour. 536 In relation to what occurred on 23 April 1998, Ms Tapia made a number of assertions in her witness statement (Exhibit 6). In the presence of Mr Manias, she had said to Mrs Harrison: I think I told Marissa once and others in the kitchen that when he starts screaming and goes off because he loses his temper completely he gets completely unbalanced. He should seek some help. Professional help. And he has to learn how to treat his staff and control his temper. (Exhibit 6 par 181) 537 Ms Tapia asserted that the dispute on 23 April escalated because she refused to perform preparation work. She said to Mr Manias: I will not sit at the back again. I don't like it here. My program says ½ an hour at the back and ½ an hour it will be. I refuse to sit here. You can't stop me to work in the kitchen area. (Exhibit 6 par 187) 538 It was also Mrs Harrison's evidence that the dispute escalated at that point. Mrs Harrison said Mrs Tapia had not yet spent the half hour only required as from 23 April by her programme at the back. Mrs Tapia said she had. 539 Mrs Bokulic said that Mr Manias had become upset after making three or four requests to Mrs Tapia to go out the back to do prep work, but Mrs Tapia had refused and "continued to scream at him". 540 Mrs Tapia in oral evidence denied that there was a dispute with Mr Manias in relation to her preparing vegetables at about 12 o'clock (lunch time) on 23 April 1998. Mrs Tapia's description in cross-examination of what happened on 23 April was that: Q I suggest that you were aggressive and angry towards Mr Manias at about 12 o'clock on 24 [sic] April, do you agree? A I was what - aggressive and? Q Aggressive and angry and upset with Mr Manias? A I was very upset during that period of time, yes. Q I will ask you a more specific question. I am talking about before the argument occurred out in the laundry area? A Yes, but that happened before - during the period that you say, 12 o'clock. That's when it was in the middle of all the heat of the fight. Q Just before the heat and fight started then, you were angry with Mr Manias weren't you? A No Why should I be. Q Mr Manias said to you, "Your behaviour is appalling. You are causing trouble in the kitchen and you are being deliberately disruptive. The other kitchen staff have been complaining about you and it is difficult for me to work with you after hearing all those filthy lies you told about me". A Yes, he did say that. Q What was your response to this? What did you do when Mr Manias said that to you? A I recall when he said that to me I said to him - I asked him why he was so scared. I said, "If you have nothing to hide why do you behave in this manner?". Q You were speaking in a raised voice then, weren't you? A A little bit loud, yes. Q I suggest you were very upset and that you were shouting? A We were discussing - yes we were shouting to each other because he was screaming at me. Q What did the other kitchen staff do, did you observe, when this was going on? Did you see them do anything, were you paying attention to what the other staff were doing? A They just keep doing things and in the meantime they were just looking as well. (Transcript p 597, 3/12/99) 541 She said that Mr Manias was not only angry at this stage: "He was always angry … . He is always cranky, bad mood and everything". (Transcript p 598) That same very unpleasant behaviour was towards mostly everyone. 542 She had also yelled at Mr Manias "who has been complaining about me?" "I shouted at him, yes. We were discussing". Mrs Tapia said she had asked Murray, April, Johnny and Wade who were working nearby and they had said no. (In later evidence Mrs Tapia said she had not asked who had made complaints against her because she already knew their names.) On the other hand, Mrs Harrison said that the situation had erupted on 23 April after Mrs Tapia insisted that Mr Manias tell her who had complained about her. 543 As to his dealings with Mrs Tapia between the Spanish speaking incident and 23 April, Mr Manias said: Q Well, were there any incidents that you can remember between the time you had the argument with Mrs Tapia about her speaking in Spanish and 23 April - do you remember anything that happened? A I did remember with Mrs Tapia, she was always ready to provoke me and I try to keep away from her as much as I can, to get away from her. So I can't remember having many dealings with Mrs Tapia. Q In fact, you were not in the kitchen with her, with Mrs Tapia, between the time you had the argument about the Spanish and 23 April? A No. I didn't want to aggravate her because she demanded I be with her. I was trying to keep away because I wasn't sure what she was planning to do with me. (Transcript page 1053) 544 Mr Manias said that when he asked Mrs Tapia to go and peel the vegetables at about noon on 23 April 1998, it must have been because she was not doing anything at the time. She was directed to leave the cooking area on 23 April because: … the rehabilitation asked me to put her in a cooler section comfortable for her to work. I couldn't leave her in the middle of the kitchen with all the oils and heat there and you have to run. Also you have to run and Mrs Tapia couldn't walk at the time. (Transcript p 1066) 545 After Mr Manias had spoken of allegations, one of the other employees had asked "what allegations?" Mr Manias had then called for Mrs Bokulic to bring out from the office, the Sirijovska Statement, and asked the employees present how he could work with someone who made such accusations against him. Mrs Tapia said that was when he took the witness statement and started showing it to all of them. She then said that Mr Manias did not hand the Statement to some of the staff. He just took it and said look at this and look at that, but he always kept it in his hand. 546 Mrs Tapia protested loudly at his raising her allegations with other employees, saying it was illegal from her point of view for him to do so. She said that he was humiliating her more and still abusing her in front of her co-workers. She could also have said "I'm being victimised". 547 Mr Manias said that when he asked Mrs Tapia on 23 April 1998 "would you like a meeting to discuss your grievances and these allegations against me?", he was addressing Mrs Tapia alone and suggesting a private discussion, i.e. he was not calling for the general laundry meeting which followed. 548 Mrs Bokulic said it was the workers themselves who decided they wanted the meeting in the laundry. That was about the witness statement but more specifically about certain complaints that had been raised by the workers regarding Mrs Tapia's attitude during her return to work. That evidence was in line with that of Mr Manias who said that at the time staff "had trouble working in the atmosphere because it was tense and arguments and disagreements with the orders" [by Mrs Tapia as to following her rehabilitation programme]. Indeed, it was also in line with Mrs Tapia's own evidence that "I feel very uncomfortable in the kitchen by everyone else". 549 Mrs Bokulic said that in the laundry meeting other staff had commented in support of Mr Manias and Mrs Tapia had screamed at all of them. She was working herself up and had not stopped screaming at everybody and over the top of everybody right from the start. 550 At the time the situation erupted on 23 April 1998, the fact that Mrs Tapia had made a witness statement was unknown to the staff. Nobody had mentioned it to them at that point and as far as anybody knew Mrs Tapia was on a return to work programme during worker's compensation. 551 In relation to the later events on 23 April and the meeting of employees the following evidence was given in cross-examination by Mrs Harrison: Q You had expressed an opinion, as you said, you raised your voice that in fact Mrs Tapia was the victimiser? A That was after she was yelling and screaming at me and the others. Q But I put it to you that in fact an objective observer looking at this situation - Mrs Tapia is completely one out and everyone is on the other side arguing saying she is wrong or so on and so forth - would that be a fair way to look at it objectively? A Yes. You're right. That's what could have been deduced from that scene. It was a very regrettable event and it was, well, it was embarrassing. Q And you made no attempt to stop it? A Well, I did at the beginning but then I am at fault as well there because it should not have carried on like that but I had no control over stopping it. (Transcript p 1667-1668) 552 In that meeting Mrs Harrison said that Mr Manias was angry. He was red faced, shouting and swearing. Mrs Harrison said (at transcript p 1672): A Yes. I was upset more than angry and regrettably I did have words with Mrs Tapia. I yelled back at her that we were not victimising her; I was not sacking her; whereas I believed she was victimising Mr Manias. … A It all happened so quickly, so fast, that that is what I remember, just the victimisation accusations [by Mrs Tapia] and asking if she was being sacked and [Mrs Harrison] saying no that is not true, that those words were not true, "that is not true and you know it". I really lost my temper - not temper - but control. I must admit I lost my control. It is not me to raise my voice like that. Q You were very upset? A I was upset and I was shouting over the top of Mrs Tapia, trying to shout on top because she was getting herself into a real frenzy then. We broke it up and I said, "That's it, no more." Mrs Tapia got her tool box, asked to make a phone call and asked if I was sacking her. I said, "Definitely not." That is what happened. Q Mrs Tapia was in tears; she was crying? A Yes. Q Would it be true to say she was crying almost uncontrollably at that point when she walked out? A No. She was upset. She was crying but I can't remember uncontrollable crying. I do remember she was calm, upset of course, made the phone call and after the phone call was hysterically crying. … 553 Mrs Harrison said she believed that telephone call had been to Mr Matters. 554 Mr Harrison, in answer to an urgent telephone call from Mrs Harrison arrived after the laundry meeting had concluded. 555 The meeting in the laundry took at most ten minutes, probably only five minutes. Mrs Tapia was still very angry when Mr Harrison arrived and she said she was "not talking to you George". Mr Harrison rang Mr Hilton from the AWU and also later rang Fay Campbell to seek assistance to come and sort the matter out. 556 In her affidavit, Mrs Tapia said that after George Harrison arrived, Mr Manias came up to where they were talking, shouting and swearing in English and Greek and saying that he did not want Mrs Tapia in the kitchen again (Exhibit 6). Mr Harrison tried to calm him down. After speaking to Mr Matters on the telephone, Mrs Tapia stood next to the back door waiting to be picked up by Ms Kostovska. Nick Manias threatened to kick both Mr Matters and Mrs Tapia. Mr Harrison tried to stop Mr Manias being aggressive. There was some pushing and shoving by the two men, before Mr Harrison pulled the roller door down leaving Mr Manias, who continued shouting and swearing, outside. (Exhibit 6) 557 In oral evidence, though not in the affidavit, Mrs Tapia said that Mr Manias had punched Mr Harrison and tried to punch her. That was something that Elizabeth [Kostovska] had forgotten to put in Mrs Tapia's statement when she typed it. 558 Mr Manias denied the events as narrated above. However, in evidence that he did give in relation to what had happened after Mr Harrison arrived, he said he was angry because Mrs Tapia was defying him and he wanted to know what Mr Harrison was saying to Mrs Tapia after he arrived. Seven answers later he said "I wasn't angry, I was concerned about my reputation" and some questions later "never been angry". 559 Mrs Harrison's recollection was that Mr Harrison was conciliatory to Mrs Tapia to start with, but things got heated between them. It was after that "that Nick showed his face and Mrs Tapia reacted to him" by yelling at him. Mr Manias was upset, but Mrs Harrison thought he wanted to hear what Mr Harrison and Mrs Tapia were saying to each other. It was then the roller door came down, and Mrs Harrison, who was not in the conversation, thought she was on the outside of it. She thought the door had come down to separate Mr Manias and Mrs Tapia. Mrs Harrison did not remember Mr Manias speaking in Greek, but said it was easy for herself, Mr Harrison and Mrs Manias to drift in and out of Greek without realising it. 560 Mrs Harrison did not remember threats by Mr Manias to kick Mr Matters and Mrs Tapia. She said that Mr Manias did not attempt to pull the door up as alleged by Mrs Tapia. The door went back up after a minute or two. 561 Mr Harrison said that when Mrs Tapia said to him "all I am against is Nick's swearing", Mr Manias who was standing nearby entered the conversation. Mr Harrison asked him not to interfere, told Mr Manias to leave, and pulled the shutter down. He denied that Mr Manias had used the bad language alleged by Mrs Tapia in that conversation. The reason he closed the roller door was not to calm Mr Manias but to create some privacy so he could speak to Mrs Tapia without interference, in line with a suggestion made to him by Mr Neville Hilton. 562 Ms Kostovska's evidence was that when she arrived Mr Manias was walking in the car park with his dog. She had arrived before Mrs Tapia went back to talk to employees in the kitchen, which event, it would seem, followed immediately after the roller door incident. 563 I think that what occurred in those few minutes probably was not as extreme as related by Mrs Tapia but did encompass bad language. I do not think that Mr Manias tried to get back inside. The timing of Ms Kostovska's arrival and her evidence makes that claim seem unlikely. 564 Mrs Harrison said that when Mr Harrison arrived Mrs Tapia was still upset but it was controlled. It was more attacking Mr Harrison and not letting go until she found out the names of the employees who said they would not work with her. That kept going on at length and when Elizabeth [Kostovska], Mr Matters' secretary arrived at the back door, Mrs Tapia told her to wait because she was not ready yet. Mrs Tapia continued arguing with Mr Harrison and wanting to talk to the kitchen staff. She demanded to know their names and had run towards the kitchen to ask them herself. (This followed the roller door incident.) 565 Her evidence was: A When I was starting to argue with him during that day [23 April 1998] he said to me that some of the co-workers were complaining about me speaking in Spanish and he got evidence of problems I have with my fellow employees. I decided not to argue with him. I said to him I will go to the kitchen to ask my co-workers who's complaining. (Transcript p 384) … Q Now where was she [Mrs Temelkovska] in relation to Mr Harrison? How far was Mr Harrison from you at that point? A He was just straight on top of me behind me. Q You say in your evidence that after the incident you spoke to Mrs Temelkovska, is that right? A Yes, when Mr Harrison told me to stop going to the end of the kitchen and do not disturb the workers, I said to him that I need to ask them myself, and he told me not to go. I keep walking and he grabbed my left shareholder [sic] and pulled me back and he told me -- Q Can I stop you there. You said he grabbed your left shoulder? A Yes. Q And pulled you back? A Yes. HER HONOUR: She says left, but points to her right. (Transcript p 386) … Q Now, was anything else said between yourself and Mrs Temelokovska? A No, nothing else. Q Nothing else? A Nothing else, sir. Q What happened after that? A Yes, when I ask her that Mr Harrison told me to go back to the back section and when he did that I turned and he put his hand softly behind me and told me to go, like a soft, you know. Q To the best of your memory, was there anyone else in the washing up area at that time when you turned and had this conversation as well as yourself, Mr Harrison and Mrs Temelkovska? A When that happened? Q Yes. A Yes, there were more chefs and apprentices in the kitchen area. Q Do you recall how many people were there? A About seven to ten people. Q When the incident occurred between yourself and Mr Harrison, how far were you and Mr Harrison from the actual cooking kitchen area, can you estimate how far it was? A How far? Q Yes, I will ask you this question. How far is the wishing [sic] up area from the cooking area? A Not far, just next to it. Q When you say not far, just next to it, can you give us an idea? A The washing up finishing here (indicated), there is more corridor passages and where the benches continue, that's where we work. How far, you can say three metres, four metres, roughly, but I don't know. Q Do you recollect at the time of this incident what the people in the cooking area were doing, do you remember what they were doing? A No, sir. I saw they were in front of the bench working and I asked them if they saw what happened, but George Harrison keep asking me to be quiet and not to interrupt the workers. (Transcript p 387) … Q Can you tell us when you get agree [sic] [angry] how did you express yourself? A Upset. Q Yes, but what sort of words to you use? A When I am fighting with somebody. Q When you are having an argument? A I just discuss my point of view what I am upset about. Q But can you tell us how you express yourself when you are upset and angry? A I discuss with that person and I normally do not swear to that person. Q You normally don't swear, but sometimes? A You do, yes. You tell the person off that he is upsetting you. Q What sort of words do you use when you swear? A To the waiter. Q No, generally what sort? A Just tell them to back off. I tell them to shut up. I tell them to leave me alone or - (Transcript p 388, 30/11/99) 566 As I understand the applicant's allegation of assault on 23 April, it went to the circumstances surrounding Mr Harrison's forbidding Mrs Tapia to return to the kitchen to take up alleged complaints against her with other employees said to have made those complaints. 567 According to Mrs Tapia, Mr Harrison had tried to stop her going back to Puri [Silva] by grabbing her shoulder. Mrs Tapia had yelled at him not to touch her. She accepted she had disobeyed him when he told her not to go into the kitchen and disrupt the other staff. She accepted also that the staff had earlier been very disrupted and there was now going to be more trouble. She denied deliberately spinning around and deliberately bumping Mr Harrison. 568 Mrs Harrison was watching Mrs Tapia and Mr Harrison walking fast to the kitchen. She did not see Mr Harrison put his hand on Mrs Tapia. Mrs Tapia did yell "Don't touch me" twice and "Don't push me". Mr Harrison bumped into Mrs Tapia as she turned round. Mr Harrison and Mrs Tapia then walked to the back area of the restaurant. 569 On Thursday 23 April 1998, Mrs Temelkovska was working in the wash area doing the dishes. She heard Mrs Tapia arguing with Mr Harrison when they passed near the kitchen. When she looked up Mr Harrison was standing at one corner of the bench, and Mrs Tapia on the other corner. There was a gap between them. Mrs Harrison was behind Mr Harrison. 570 According to Mrs Temelkovska, she did not see everything because she was washing the dishes. She said that Mr Harrison, in following Mrs Tapia who was rushing into the kitchen, did not touch Mrs Tapia, did not push her, only lifted a finger but not touch her. Mrs Temelkovska at first said that she did not hear Mrs Tapia say anything, but did hear Mr Harrison tell her not to come in the kitchen and not to disturb the other staff and the chefs and just go back to her working position. Later Mrs Temelkovska said she did hear Mrs Tapia say "Don't touch me, don't push me". She did not see if George touched her or not. He was not close to Mrs Tapia. Mrs Temelkovska said she saw the last two minutes and then when they walked away, but she did not see what happened before that. 571 Mrs Tapia kept Ms Kostovska waiting at least 10 to 15 minutes. In oral evidence she said that Elizabeth Kostovska had arrived after the episode with Mr Harrison. Referred to her statement of 11 May 1998 she agreed that she had there stated that Elizabeth had already turned up. 572 If Mr Manias or Mr and Mrs Harrison had, in the period 30 March to 23 April, used the Sirijovska Statement to influence the other employees against Mrs Tapia, that could have been described as victimisation. However, the other employees were not aware of the allegations made by Mrs Tapia until 23 April. 573 If the events Mrs Tapia set out in the Sirijovska Statement occurred as she alleged it is understandable that on 23 April 1998 she would be extremely upset that she was being disbelieved and contradicted by other staff. 574 Mrs Harrison said both parties had contributed to the hostile environment on 23 April. Mrs Tapia's behaviour was very hostile when she came in and instigated events that happened on that day. Those events were regrettable. 575 The blow up of events on 23 April precisely demonstrated why Mr and Mrs Harrison had fought so hard to keep Mr Manias and Mrs Tapia apart. The explosion was inevitable. 576 Mrs Campbell referred in oral evidence to a later telephone conversation on 23 April with George Harrison, not mentioned in her statement. Asked why not, she said that George Harrison had telephoned her that afternoon to ask her to tell Paul not to proceed with this [Tapia] case. Mr Harrison said the matter should have been one for the AWU. Mrs Campbell said there had been a subsequent call from her brother, an organiser with the AWU, Neville Hilton, who had also spoken to Mr Harrison. 577 Mrs Campbell said that Paul Matters was not in the room at the SCLC when she had had that conversation with Mrs Harrison but she could only think she did tell him later that day. 578 In relation to the evidence of Mrs Campbell as to the telephone call to her on 23 April 1998 from Mr Harrison, it is my view that Mr Harrison was not trying to have the victimisation matter terminated, but was trying to have brought into it officials with whom he could have proper discussions, untainted by the deep feelings of animosity between Mr Matters and himself. If such an situation could have been achieved, I believe a resolution satisfactory to Mrs Tapia and to the Restaurant would have been reached, and these long running proceedings would not have progressed further. 579 Refusing to obey the directions of Mr Manias, the Head Chef, was in total contradiction of Mrs Tapia's insistence that on her return to work she should get her instructions from him, not from Mrs Harrison or from another chef, as had been proposed by Mrs Harrison on 30 March. 580 In relation to the claim of direct dismissal Mr Matters had said on 6 December 2000 that he did not think that there had been any contest between the parties that at the QBE meeting on 7 May 1998, Mrs Harrison was saying that Mrs Tapia could come back to work. There has never been a submission put by the applicant that she was told she could not come back to work by the employer after the incidents on 23 April. It was a question of could she return. The applicant would submit that this was a constructive dismissal. 581 Mr Matters said the issue was not confined to the question of dismissal alone. Victimisation is a broader ambit than just being dismissed. It is a range of activities or actions by the employer. It is true that Mrs Tapia chose not to come back. There is no question about that. The question is why and was that reasonable under the circumstances. 582 Despite what Mr Matters said on 6 December 2000, in his final oral submissions, he submitted: "What we find occurring is a terrible incident on the 23rd, we have had a dismissal, not conceded by the respondent, … ". 583 If that "dismissal" claim is related to Mr Harrison's alleged parting words to Mrs Tapia when she was picked up by Ms Kostovska on 23 April, then it had been made very clear by Mrs Harrison to Mrs Campbell very soon after that Mrs Tapia had not been sacked. If that "dismissal" claim goes to the claim of constructive dismissal, that is considered later in this judgment. Period 30 March 1998 to 18 April 584 During this period it was claimed the applicant was subjected to a work environment of duress, unreasonable pressure and hostility which constituted victimisation of the applicant by the respondent employers. 585 This general claim would appear to relate to the applicant's conviction that her return to work programme was not being implemented in good faith by the Restaurant. 586 According to Mrs Tapia, Mr Manias was "on her back" from the time she started back on 30 March 1998. The ways that Mr Manias got "on her back" was by sending her to sit out the back peeling onions and potatoes for six hours every day, when her rehabilitation plan said she could sit for half an hour. 587 Mrs Tapia said Mr Manias victimised her in her rehabilitation programme, one example being that she was to sit out the back and was not being taught the new menu. He had done that the first day she went there. The transcript continued: Q Yes, what was the next thing? A He used to scream at me. He used to swear to me, tell me that he doesn't want to see my face in the kitchen, tell me to go and stay in the back. He said he didn't want me in the kitchen. He used to start talking and -- Q You are speaking very generally here. What day are you asserting that he started swearing? A You ask me what minute, what hour. It was every day. It was every day. It was constant, annoying, if I need to go to the ladies, all the time. In the rehabilitation it says I couldn't sit for half an hour, they made me sit out the back for six hours peeling onions and potatoes and -- (Transcript p 520) Q Which day do you say you sat there for six hours? A Every day that I work there. Q I would suggest to you that that is just completely and utterly incorrect? A No. it's correct. You weren't there. They didn't send you to sit out the back. Every time I try to go to the kitchen they used to start swearing and tell me to go out the back. 588 However, it should be noted that when Mrs Tapia commenced duties on 30 March 1998, Ms Milne monitored Mrs Tapia for at least 45 minutes on that day and monitoring by the SCWMC continued at first weekly but later on a fortnightly basis, for periods lasting between 30 minutes and one hour. There had been several meetings with Ms Milne over those three weeks. Any complaints by and about Mrs Tapia were brought up at the next meeting with Ms Milne either by Mrs Harrison or by Mrs Bokulic. 589 In accordance with the return to work programme dated 30 March 1998, Mrs Tapia's hours were to be built up over a period. The first week she worked five four hour shifts plus an additional 15 minutes (20 hours 15 minutes). In the second and third weeks she worked two split shifts each day of three hours each (30 hours per week). In the fourth week, that commencing 20 April (the week she did not finish), she was to have worked two split shifts each day, the first being 3 ½ hours in length, the dinner shift being 4 hours long. During each of the shifts in those four weeks the rehabilitation programme provided that she was to spend half of each shift sitting at the back doing prep work. 590 In relation to the rest periods, the earlier suggestion was that Mrs Tapia sit on a stool in the kitchen. After an inspection of the kitchen on 3 April 1998 by Ms Milne and Mrs Bokulic, it was decided that it was too dangerous to have the stool there. It was decided it was safer to sit at the table out the back. 591 An addendum to the return to work programme dated 6 April 1998 stated that, after a meeting with Mrs Tapia and Marissa [sic] [Bokulic] on that day at the Lagoon with Ms Hanrahan (occupational therapist relieving Ms Milne), the outcome had been: For the period 6/4/98 - 16/4/98 Mrs Tapia to do ½ of her preparation work per shift in sitting position at table at the back of the kitchen. SCWMC to review progress at the Lagoon on 16/4/98. 592 On 20 April, the programme was further modified so that she was to spend no more than one half-hour sitting at the back. 593 Reference to Mrs Tapia's return to work programme and to her time sheets show that for the week commencing 30 March, her first week back, she was only rostered on for one four hour shift each day. Mrs Tapia was not sitting out the back prior to the meeting with Ms Milne on 3 April 1998. 594 In further cross-examination, Mrs Harrison accepted that in her first week back, Mrs Tapia had been working at the front of the Restaurant in the kitchen preparing garlic bread amongst other duties. 595 In the period from 30 March 1998 until the incident on 23 April, Mrs Tapia worked 85 hours. Correlation of the relevant time sheets with her return to work programme dated 30 March 1998 showed that, although she worked an additional 15 minutes in the first week, Mrs Tapia's shifts were set out exactly in accordance with her rehabilitation programme. Mrs Tapia did not work the Friday lunch shift (17 April 1998) (12 noon to 3 pm) because on that day she was in Sydney attending the first mention of this matter. 596 Ms Tapia claimed that she was being victimised because she was being required to do preparation work and sit down for longer periods than that set down in her return to work program. 597 Ms Tapia said that every day she worked at the restaurant, she was made to sit out the back for six hours peeling onions and potatoes. A further complaint by her was that such a job was that of an apprentice. 598 Ms Milne on 24 February 1998, in company with Mrs Harrison and Mr Manias, had conducted a worksite assessment at the Restaurant in relation to a return to work programme for Mrs Tapia. That assessment included examination of the duties to be undertaken and of the work area. Ms Milne's report stated that "The worker allocated to vegetable preparation stands at the sink while preparing vegetables, however these duties make up only 1 - 1-5 hours of the worker's total shift". 599 Mrs Harrison denied that Ms Tapia had been forced to peel onions and potatoes for any length of time other than was said in the programme. 600 The potatoes and onions were delivered in 20 kilogram bags. Mrs Harrison had never seen 40 kg bags of potatoes, a size suggested by Mr Matters in cross-examination, in the 15 years she had worked in the restaurant. She had only ever seen 10 kg or 20 kg bags. 601 On that point as to the weight of the potato bags, Mr Matters put it to Mrs Harrison that the bags of potatoes weighed 40 kgs not 20 kgs. Mrs Harrison told him that that fact was stated on the bags and she could show them to him if he wished. Although Mr Matters answered "we may have to Mrs Harrison", that offer by Mrs Harrison was never taken up, nor was any evidence adduced to support that proposition. In any event, Mrs Tapia's own evidence supports that of Mrs Harrison. On the evening of 18 April, in refusing Mrs Harrison's direction to leave the dessert area, Mrs Tapia said she had told her "I already done twenty kilograms". 602 Potatoes and onions were the only vegetables that could be "prepped" effectively without water and therefore the only ones that could be prepped by Ms Tapia at the table at the back of the kitchen. Occasionally potatoes and onions were prepped by the washing up ladies. 603 Mrs Harrison estimated that it would take the average worker about an hour to peel one 20 kg bag of potatoes, while a particularly efficient worker would take 10 to 15 minutes less. Mrs Harrison said Ms Tapia was a fast efficient worker who would have taken less than 1 hour to do one bag. 604 Mrs Harrison said it would have taken perhaps half an hour for an ordinary worker to peel a bag of onions. 605 Potatoes and onions were ordered as needed. The invoices for the period 30 March 1998 to 20 April 1998 showed that eleven bags of potatoes and one bag of onions were delivered in that period. Each invoice received was double checked to avoid mistakes with incoming goods. Each individual invoice had to be checked against the goods coming in before the Lagoon's accountant would accept it for payment. Upon delivery the potatoes were peeled and put into buckets of water in the cool room to be used as needed. 606 On the estimates of Mrs Harrison, noted earlier, peeling all of those potatoes and onions would have taken 11 ½ hours of the 85 hours Ms Tapia worked in that period. 607 Comparing claims by Ms Tapia that, for instance on 17 April 1998, she was asked to spend three hours peeling potatoes, with the vegetable delivery invoices, shows that on 17 April one 20 kg bag of potatoes was delivered; on 18 April when she asserted she also spent three hours peeling potatoes, two 20 kg bags of potatoes were delivered. In relation to 18 April, when she asserted she peeled onions for three hours, there was no delivery of onions and was not one until 20 April. Mrs Tapia asserted that on 17 and 18 April she had spent nine hours peeling potatoes and onions. 608 I do not accept that Mrs Tapia spent either six hours every day peeling potatoes and onions as she claimed or that she spent an excessive amount of time doing so. The evidence of Ms Milne supports Mrs Harrison's claim that there was simply no call for the amount of work Mrs Tapia claimed to carry out. 609 I reject the applicant's claim that she was victimised either by being required to peel potatoes and onions or as to the time taken to do such work. 610 There was no duress, or pressure, reasonable or unreasonable, placed on the applicant in doing the above work. 611 If a question put to Mr Manias by Mr Matters was put on instructions, it reveals a further misunderstanding on the part of Mrs Tapia as to the terms of her rehabilitation programme and thus a cause of dispute with Mr Manias and Mrs Harrison. That question was "the rehabilitation program said that Mrs Tapia could decide whether she sat down or not in the kitchen?" 612 Mr Manias said he had no trouble with the agreed rehabilitation programme. That programme did not provide, as Mr Matters put to him in cross-examination, that Mrs Tapia could decide whether she sat down in the kitchen or not. The programme said she had to sit down. However, having provided the chair, he was not going to stay there all day watching Mrs Tapia as to whether she was going to sit down or stand up. He was not a policeman: "she is old enough to understand her limitations". He had an argument with Mrs Tapia on 23 April as to the work she was to do that day but: A I had a number of arguments with Narda after she came back because she was very unco-operative. She wouldn't do exactly what the rehabilitation orders would say and she wasn't doing exactly what I was asking her to do. There were a number of arguments over that. Often she accused me of this discrimination because I asked her to sit down and she also thought I would discriminate against her because I would ask her to work in a corner place. (Transcript p 1031) 613 If Ms Tapia's statement that "being at the back peeling potatoes and onions constantly was actually causing the lower back pain" was correct, that was a matter she should have immediately taken up with her rehabilitation service provider, as should any other complaints she had in relation to the program. Her program, which had so carefully been worked out, could not be changed unilaterally by Mrs Harrison. Nor could it be changed unilaterally by Ms Tapia as, on her own evidence, she did by refusing instructions that accorded with that program. 614 Ms Tapia interpreted the program differently from Mrs Harrison. The answer to that difference was to seek the immediate assistance of Ms Milne, assistance that could have been sought by either Ms Tapia or Mrs Harrison. Ms Milne, and, in her absence, Ms Hanrahan continued to monitor the return to work programme. 615 Mrs Harrison said that Mrs Tapia did not comply with her rehabilitation programme. Mrs Tapia did not want to sit at the back to do prep work and did not want to take directions from Mrs Harrison insofar as her duties were concerned. Mrs Harrison had the feeling that Mrs Tapia probably found it demeaning to have to peel potatoes and onions. In re-examination, Mrs Harrison said: Q Do you have any grounds for believing, from your observations of Ms Tapia across that period, whether Ms Tapia felt aggrieved or may have perceived she was being victimised? A I felt that she was very contrary to sticking to her rehabilitation program. She did not want to stick to it for the fact that she could not get straight back into cooking so I could only surmise from that she probably felt that she was being - she kept referring to "not working to my ability and I know my rights. I have to get back into the kitchen straight away with full duties.". I believe she probably felt that - she felt in herself she was well enough to go on full duties and I think she probably felt that it was demeaning that she had to do preparation work. (Transcript p 1900) 616 I concur with Mr Harrison's description of Mrs Tapia as being a woman who had "a strong sense of what her rights were". In this case, Mrs Tapia had either been profoundly misled by Mr Matters, or had profoundly misunderstood his advice, not only as to her rights, but also as to her responsibilities. It seems from the evidence that in the period 30 March 1998 to 23 April 1998 Mrs Tapia categorised any action or response as to her rehabilitation programme from Mr and Mrs Harrison and Mr Manias with which she did not agree as "victimisation". 617 There was no issue that Mr Manias swore in the kitchen. He accepted that he did but said it was general swearing and the "F" word not directed to any person in particular. All the other kitchen employees also swore in that same fashion. Although she at first denied it, Mrs Tapia eventually agreed that she had also used the word "fucking" but not as a normal thing. 618 The swearing in the kitchen by Mr Manias and other employees complained of by Mrs Tapia had gone on from the time Mrs Tapia commenced her employment in October 1996. It was not something that started after she had provided the Sirijovska Statement. Up until the time the applicant went off on worker's compensation in May 1997 she had not complained to either Mr or Mrs Harrison about the bad language used by Mr Manias. However, she said later that she had complained to Mr Harrison (about Mr Manias' swearing) two or three times after Christmas 1996. That claim was not in any of her witness statements. She had not complained to the LHMU about Mr Manias' language before Christmas 1997. She said she had complained in January 1998 about Mr Manias' language to Chris "something" from the LHMU. 619 In reply on 2 November 2001, Mrs Tapia said that in February 1998 she had told the solicitor she was then seeing about her workers compensation claim about the actions of Mr Manias. His reaction had been to smile and say "That's just Nick. Don't worry about it" and "you can live with that". 620 The applicant alleged she was subjected to a work environment of hostility which constituted victimisation of her by the employers. 621 Responding to a question from Mr Matters that he gave Mrs Tapia work that was going to be humiliating to her, Mr Manias said: A Mr Matters, my instructions was I have to give light duties to Mrs Tapia in a cool environment and with a chair. I couldn't get a steak or prawns or oysters outside in a cool area and expect her to cook the steak or prawns or oysters. Only light duties available in the cool section that Mrs Tapia was required to do, was to peel vegetables. She was not humiliated. (Transcript p 1066) 622 Mr Manias rejected the proposition that by locating Mrs Tapia in the cooler area of the kitchen, he was not trying to protect her, but to isolate her. 623 Even after a week she had not complained to Mrs Harrison "because they were all on my back and … ". "Every time I try to go to the kitchen they used to start swearing and tell me to go out the back". "They [the kitchen staff] bring it [the statement] up all the time and they interrupt on my work rehabilitation programme". (Transcript p 520) 624 Mrs Tapia's evidence as to employees having been shown the Sirijovska Statement before 23 April was confused. She acknowledged that she had only seen it happen once and that was in the course of the incident on that day. She had heard rumours, not referred to in her witness statement, that the Statement had been shown to employees before that date. The one person she named, Ms Bitz, as having told her that, was not called to give evidence by either party. 625 I do not accept that the Statement was even made known to the other employees prior to 23 April. 626 She said that only on one day (20 April) had she worked for half a day in peace "until I come back in the afternoon because he [Mr Manias] talk to me and I didn't agree to drop the statement". (Transcript p 520) 627 Mrs Tapia denied that from 30 March until 23 April 1998 she had been disruptive in the workplace, by singing, chanting, humming or talking loudly. She said she always sang when she worked. Everybody sang, sometimes all at the same time. It was not done with the express purpose of trying to cause a problem with Mr Manias. She did not throw things around instead of just placing them down. 628 In the period 30 March 1998 until 23 April 1998, Mrs Harrison observed Mr Manias' behaviour in relation to Mrs Tapia and Mrs Tapia's with Mr Manias in the work place. Mr Manias tried to avoid Mrs Tapia, but Mrs Tapia insisted on specifically seeking out Mr Manias to get her instructions from him. 629 Mrs Harrison said that between 30 March 1998 and 23 April 1998 she had seen that Mrs Tapia's aggressive behaviour was disrupting work in the kitchen. Mr Manias had not complained to her about Mrs Tapia. A number of employees had done so. Two employees had said they would resign because they could not work with Mrs Tapia. Mrs Harrison had changed Ms daSilva's roster in response. Mrs Harrison did not say anything to Mrs Tapia because she "did not want her to feel she was being discriminated against because she had the workers' compensation case going. Employees had not only complained to her but also to Mr Manias and to Mr Harrison. 630 As the "not to speak Spanish" incident on 19 April demonstrates, Mrs Tapia insisted that she follow up on the spot any statement that people had complained about her. On her own evidence there seemed to be a lot of shouting involved when she "was debating with George Harrison" on 18 April about speaking Spanish, and with Mrs Harrison when Mrs Tapia insisted on working in the dessert/entrée area. 631 Although Mrs Tapia said to Mr Harrison "Okay. You don't want me to speak in work hours I won't do it" (Transcript p 576 2/12/99), she widened the incident to others (Murray, Matt and Wayne). 632 Extracts from the Return to Work Programme signed off by Ms Milne on 6 May 1998 are indicative of the problems that had been experienced in the period 30 March to 23 April: 1 In order to minimise confusion over when Mrs Tapia is to sit to perform her duties the following schedule will be followed: … A daily logbook will be provided by the employer and both Mrs Tapia and the head chef will sign for each time worked. … 3 Lines of Communication. Mrs Tapia to take direction from Head Chef. In the event that she feels unable to follow his direction she may ask for clarification and if she is still unable to agree to the designated task, Mrs Tapia will approach Mrs Harrison and request her assistance. Neither the Head Chef nor Mrs Tapia should engage in extended debate over her duties within the kitchen area. * Mrs Harrison has requested that Mrs Tapia does not delegate duties to other staff members, however she may request the head chef to delegate duties to other staff members if she believes this is necessary to perform her duties. 633 In relation to that last point, Mr Inacio who had witnessed the occasion on 18 April 1998 when Mrs Tapia had yelled at Mrs Harrison and refused to do what she had been told, said Mrs Tapia was difficult to work with, but working-wise was probably a good worker "but she was, you know, doing it her way". It was very hard to accept orders from her. Mr Inacio did not like her and knew that Mrs Tapia did not like him and he stayed away from her as much as he could. Mr Inacio thought that Mrs Tapia was an honest person. Nobody who worked with Mrs Tapia had complained to him about her. 634 Mr Harrison said that Mrs Tapia had been extremely disruptive in the period after her return to work. The Harrisons did not know how to handle it. They "were crying out for help from union officials and every time they said: "This is Paul's matter, we have got nothing to do with it" ". (Transcript p 2210) "Everywhere we turned "This is Paul Matters. We don't want to handle it" ". These things had never ever happened in the restaurant. "This was new territory for us. We never had as situation as tense, as aggressive, as volatile as this, never. … We didn't know how to handle the situation. We didn't know how to handle the situation". (Transcript p 2220) Events Post 23 April 1998 Meeting at Restaurant 1 May 1998 (or 30 April) 635 There was a meeting at the restaurant on 30 April or 1 May 1998, in attendance at which were Terri Martin (QBE), Graham Quinton (Quinton Insurance Brokers), Ms Milne, Mr and Mrs Harrison, Nick Manias and Mrs Bokulic. Mrs Bokulic said she had spoken about the meeting to Mrs Tapia, who had advised she would not be able to make it because of other appointments. An upgraded return to work plan was prepared by Ms Milne and was to be implemented on the 11 May 1998. 636 Ms Milne said that Ms Terry Martin had suggested that Narda [Tapia] might report directly to someone other than Mr Manias. Ms Milne described Mrs Tapia's earlier reaction to such a suggestion: A My memory of it is that Narda was very concerned that she had her place in the restaurant, that she had not lost status because she was just doing the preparation and not having the control of the entrees or duties that she used to do and there was some issue there of her wanting to be seen to be instructed from the right person in the organisation … (Transcript p 649) 637 She said that because of Mrs Tapia's sense of status in the work group she wanted to take instructions from the head chef. 638 During that meeting Mrs Bokulic said that Sue Milne would have expressed that Mrs Tapia could possibly take directions from someone else and Mrs Harrison had agreed she could take her direction through her although she had stressed that Mrs Tapia had previously insisted she would only take directions from Mr Manias. Mrs Bokulic could not recall Mr Manias saying anything in particular. 639 The return to work programme signed off by Ms Milne on 6 May 1998 to commence 11 May provided that Mrs Tapia was to take her directions from the head chef. Ms Milne agreed that that was what Mrs Tapia wanted to do. It had been reported to Ms Milne that Mrs Tapia and Mr Manias had arguments eg Mrs Tapia said she was not allowed to get up from her chair often enough in relation to the work programme and the work place said they could not get her to sit down. Ms Milne said there was disagreement about basic issues. QBE Meeting 7 May 1998 640 The second meeting Ms Martin described was held on 7 May 1998 at the offices in Wollongong of QBE Insurance. Those present included Ms K Wilkinson, Manager of QBE Workers Compensation Limited, Ms Milne, Mrs Harrison, Mrs Bokulic, Mrs Tapia and Mr Matters. Ms Milne said each side was to have three minutes to present its case. Ms Milne spoke for approximately three minutes and was interrupted by Mr Matters, who then spoke for several minutes. 641 According to Ms Martin, those present were trying to resolve the selected duties issue in relation to Mrs Tapia so she could return to the Lagoon to continue her rehabilitation programme. Anything that was put forward at that meeting, Mr Matters objected to. He kept interrupting everyone. He had accused Ms Martin of not doing her job properly. 642 In oral evidence Ms Martin said that after unpleasant comments by Mr Matters about Mrs Harrison and Mrs Bokulic "it became a slanging match and I don't recall what was said". The tone and level of Mr Matters' voice was hostile "but there were hostilities in the whole room and very loud". 643 Ms Martin testified that at the meeting on 7 May 1998, Mrs Harrison said she was happy for the return to work programme, the rehabilitation programme, to continue at the Lagoon Restaurant and she had suitable duties to offer Mrs Tapia. 644 Ms Martin said that there was no mention anywhere on the file that Mrs Tapia had been terminated from the Lagoon. 645 Ms Milne said it would be difficult to say an agreement was reached at that meeting. The meeting involved a lot of loud voices and yelling. Mr Matters yelled at Mrs Harrison and Mrs Bokulic, speaking to them both very loudly and very critically. Ms Milne, having been invited by the QBE representatives to start, was interrupted by Mr Matters. Ms Milne told him to sit down and ensured each party had the opportunity "to speak their piece". 646 Mrs Harrison's recollection of the QBE meeting was that of Mr Matters attacking every member in that meeting. She said that the first thing that happened at the QBE meeting when they were all sitting around the table was that Mr Matters said "Right, we are here now to talk about Mrs Tapia's reinstatement". That statement set the wrong mood from the start because Mrs Harrison immediately said that "There's no reinstatement because there was no dismissal. We are here to talk about her continuing her return to work programme on the rehabilitation …". Later in cross-examination Mr Matters put it to Mrs Harrison that he had said "We are here to talk about her rehabilitation", Mrs Harrison's response being that another six people present had heard him say "reinstatement". 647 As described by Mrs Bokulic, the meeting was to discuss Mrs Tapia's return to work as previously discussed on 1 May 1998. Mrs Bokulic described Mrs Tapia's attitude as being "hostile" at the beginning. Mrs Tapia had broken down later on. Although Mr Harrison had asked Ms Bokulic to be present for administration purposes, including taking notes, she did not have the chance to write many notes. The meeting flowed very quickly and "there was quite a bit of people talking over each other. It was very difficult to take notes". Mrs Bokulic had stated very firmly that Mrs Tapia had not been sacked. 648 Mrs Bokulic's recollection of the QBE meeting was that Mr Matters was very aggressive not only towards Mrs Harrison and herself, but towards all participants. Mr Matters said a number of times that Mrs Tapia had been sacked and should be reinstated. Each time she heard Mrs Harrison in reply say that Mrs Tapia had not been sacked. Mrs Tapia said she had not been sacked but that she was uncomfortable working at the Lagoon. Mr Matters interrupted Mrs Tapia at that point, and to Mrs Bokulic he appeared annoyed. He started talking over Mrs Tapia and in fact interrupted everybody else at the meeting and was aggressive. He spoke loudly throughout the whole meeting. 649 Mrs Harrison remembered clearly at the QBE meeting that Mr Matters had a disagreement with Mrs Tapia after she said she was not sacked. Mrs Tapia was in tears because Mr Matters then turned round and said something to her. 650 During the course of the meeting Ms Martin heard Mrs Tapia say that she had not been sacked from the Lagoon, but she found it very uncomfortable to have to return to work there under present conditions. Ms Martin observed that Mr Matters did not appear very happy with that comment. Mr Matters got up and said "that's it", the meeting was finished. He then held Mrs Tapia by the arm and said "We're now leaving and the meeting is finished". 651 Ms Martin said that Mrs Tapia had not made allegations at that meeting about the terrible treatment she had received from Mr Manias. 652 Mrs Harrison said that Ms Milne had raised the question of a consultant at the QBE meeting to assess the situation because Mrs Tapia did not comply with her return to work programme and that was causing problems with the other staff. The consultant might see how that programme could be better implemented. The question who would pay was raised - the insurer or the restaurant. (Ms Martin did take that question further to WorkCover but was advised that the cost would not fall on the insurer.) 653 Mr Matters had apparently left that meeting before further discussion took place as to a suggestion that a consultant assess the workplace. 654 It was common ground that Mr Matters' objective at the QBE meeting was to have a return to work trial for Mrs Tapia at some place other than the Lagoon Restaurant. However, that approach was not accepted by Mrs Harrison nor by Ms Martin, though it was later, at some stage, adopted by Ms Milne. 655 Mrs Harrison agreed that at that meeting Mr Matters had said that the work environment at the Restaurant was no longer safe for Mrs Tapia after what had happened on 23 April. Mrs Harrison had disagreed with that statement. 656 At the conclusion of the meeting on 7 May 1998 Ms Milne asked if those present were agreed that Mrs Tapia could do a 12-14 days placement at another work place until the problems at the Lagoon could be sorted out. Mr Matters said that placement could be at the Thirroul Leagues Club. 657 After Mr Matters and Mrs Tapia had left, Mrs Harrison told Ms Martin that she did not want the work trial arranged elsewhere because the Lagoon could provide selected duties for Mrs Tapia. Ms Martin replied that the matter would have to be referred to WorkCover. 658 Mr Matters later advised Ms Martin that he had arranged a work trial, but was advised to contact Ms Milne. Ms Martin said that no work trial would be approved because a medical certificate had not been received. Ms Martin said that plan was never approved. 659 The advice given to Ms Martin by WorkCover on 20 May 1998 (set out later), was that in the circumstances "it would appear that a work trial would not be appropriate". Although also advised that further information could be obtained from another unit of WorkCover it does not seem that the suggestion was formally taken any further. 660 Mrs Tapia's understanding of the meeting at QBE was that it was to find suitable duties for her. "That is when they sent me to the Thirroul Leagues Club and that is when I started doing the job there". (Transcript p 472, 1/12/99) Asked by Ms Stubbs as to identity of the "they", Mrs Tapia said "insurance told me to find job in another place". "There was an agreement I had to look for another job in a different place so I would not be stressed out, there would be more relief". "They found a job for me to up grade my physical rehabilitation", the "they" in that case being either Ms Milne or Mr Matters and the job being at the Thirroul Leagues Club. However, she said that Mr Matters did not raise the Thirroul Leagues Club job at the meeting. (That last evidence was contrary to the evidence of every one else present at the meeting, including that of Mr Matters.) 661 Mrs Tapia did not recall Mrs Harrison calling out to her at the QBE meeting to come back to the Restaurant. She said it was possible but she did not remember. Asked by Ms Stubbs if Mrs Harrison and Mrs Bokulic wanted Mrs Tapia to come back to the Restaurant, Mrs Tapia said that "I don't know if they wanted me to come back or not. I don't know if it was honest or not." That answer suggests to me that Mrs Harrison and Mrs Bokulic did in fact make such a statement. 662 The comment by Ms Martin that the meeting at QBE Insurance on 7 May 1998 "was becoming a slanging match and it was getting out of context, what we were there for" (Transcript p 1363) is unfortunately indicative of what happened in the course of these proceedings. Mrs Tapia's interests came second to the other conflicts between Mr Matters and others. 663 The contribution of Mr Matters to the meeting at the QBE on 7 May 1998 can be gauged by the question put to Mrs Bokulic by Mr Matters that he had said, at that meeting that Mrs Bokulic was "jointed at the lip" with Mrs Harrison, not "joined at the hip" as Mrs Bokulic had contended. He said they were joined at the lip because both of them were saying the same thing. 664 Mr Matters accepted that at that meeting he spoke to Mrs Harrison and to Mrs Bokulic in a loud and raised voice. 665 Mrs Harrison said that after the QBE meeting she had expected Mrs Tapia would return to the Restaurant and was expecting to be notified of what arrangements had been made and how the Restaurant was going to approach her return to work after that. 666 On the evidence, Mrs Tapia's non-return to the Lagoon after the QBE meeting was not as the result of a decision taken at that meeting. Contrary to Ms Milne's Progress Report (Exhibit 13) as to the meeting on 7 May, both Mrs Harrison and Mrs Bokulic said there was no agreement reached that Mrs Tapia work with another employer under the work trial programme. Ms Martin in cross-examination steadfastly rejected two propositions put to her by Mr Matters, the first being that at the end of the meeting, Ms Martin, Ms Milne and himself had agreed that Mrs Tapia should continue her return to work programme at the Thirroul Leagues Club or away from the Lagoon, and the seond that Mrs Tapia was then crying uncontrollably. 667 I find that working away from the Lagoon was a course of action advanced and implemented by Mr Matters with the concurrence of Ms Milne but without agreement from Ms Martin or Mrs Harrison. 668 Mrs Harrison and Mrs Bokulic found out weeks later that Mrs Tapia had a position at the Thirroul Leagues Club. Mrs Harrison did not contact Ms Milne to contradict the Report, (Exhibit 13) because she thought it best just to go along with it and not rock the boat. 669 The SCWMC completed a Case Closure Report on 1 June 1998. In its Summary of Rehabilitation Intervention it was stated that "due to the industrial issues unrelated to the injury there was a significant level of conflict between Mrs Tapia and her employer and supervisor. The return to work programme commenced on 30/4/98 with Mrs Tapia performing a selection of her pre-injury duties. On 23/4/98 an argument broke out between employer and worker over whether Mrs Tapia was conforming to the documented return to work guidelines or not". 670 That last sentence, of course, only expresses the perception of the SCWMC as to the events of 23 April. However, the SCWMC had been involved in on-going discussions as to Mrs Tapia's programme and had been involved in the QBE meeting. It seems that at no time after 23 April had any suggestion been raised in Ms Milne's presence that the incident on that day had anything to do with the earlier witness statement of which Ms Milne was aware. 671 Two other statements in that case closure report are relevant: REHABILITATION GOAL: To return to pre-injury duties. WAS GOAL ACHIEVED: Ms Tapia is now certified fit for all duties by Dr Slater. She has a claim for work related stress pending and it is unclear at this stage whether she will return to her duties due to the conflict she is experiencing with her employer. … Following Dr Slater's certification of Ms Tapia as fit for full duties she has been requested by employer and insurer to return to pre-injury duties. The rehabilitation provider has been requested to close the case. 672 On 15 May 1998 Mrs Harrison, after consulting the Restaurant and Catering Association "and our insurance people or WorkCover", wrote to Mrs Tapia as follows: Our records indicate you have not provided a medical certificate since 7 May 1998. We now assume that you are fit for work, unless you provide further medical advice, and on that basis we require you to present for work by Wednesday 20th May 1998 or advise us of your intentions. Unless you present for work or contact us prior to this date, outlining satisfactory reasons why you cannot return to work we will assume that you have abandoned your employment with us. 673 In re-examination Mrs Harrison said she believed Mrs Tapia was going to return to the Restaurant. The Restaurant was prepared to have her return, not to her full work duties, but to continue her rehabilitation programme until she was ready for full duties. 674 On 20 May 1998, Ms Martin contacted WorkCover about the suggestion of a work trial for Mrs Tapia being arranged with another employer. Set out below is the opinion she received from Christopher Downie, Principal Inspector, WorkCover's Country South Regional Office: I refer to our discussion about this claim today. The situation is that the worker has been unfit because of an issue unrelated to this claim. However you have been advised that a certificate has been issued, stating the worker is fit for suitable duties. You will need to clarify the situation in respect of the incapacity solely for the ankle injury. The employer has stated to you that they have suitable duties available to the worker in accordance with the return to work plan prepared by the rehabilitation provider. Therefore payments pursuant to Section 38 of the Act would be inappropriate. If the worker chooses not to return to work, and after the appropriate notice has been given, a calculation should be made pursuant to Section 40(2). Entitlement (if any) would be payable under that section rather than S 38. You mentioned that there were previous discussions about a work trial being arranged with another employer. Work trials are normally only available to injured workers when their employers have refused to provide suitable duties. Therefore it would appear that a work trial would not be appropriate. However, further information should be obtained from Marcia Underwood, Coordinator of our Vocational Rehabilitation Unit on 02 9370 5830. You advised that there was discussion about appointing a human resources industrial relations consultant and that the employer does not wish to pay for this service. In my opinion it would not be an appropriate claims cost for you to pay under the claim. Our Operations Review Branch can also assist you in respect of this issue. I confirm that in November 1997 a colleague of mine visited the workplace on an unrelated matter and found no obvious OHS issues which needed addressing. 675 At the QBE meeting Mrs Tapia said she would be uncomfortable working at the Lagoon Seafood Restaurant. The main thing that had changed between her return to work in March and that meeting was the fact that fellow employees had become aware of her allegations against Nick Manias. In the "laundry meeting" on 23 April, a number of them had supported Mr Manias. However, Mrs Bokulic's evidence was that in the "laundry meeting", the employees were also concerned to discuss their own complaints against Mrs Tapia since she had returned to work. Mrs Tapia had been upset at the number of them who said that they did not want to work with her. 676 When Mrs Tapia deposed to the Sirijovska Statement on 17 February 1998 it was in circumstances where her rehabilitation provider was seeking to arrange for her to return to work at the Restaurant. In fact, there was a meeting between Ms Milne, Mrs Harrison and Mr Manias in relation to a rehabilitation programme one week later on 24 February 1998. Mrs Tapia knew that it was intended that that Statement be tendered in the proceedings before Murphy C. Therefore, Mrs Tapia must have understood that her allegations against Mr Manias would become public knowledge and, more particularly, known to other employees at some time. The incident on 23 April only had the effect that other employees came to know of them sooner rather than later. That Mrs Tapia would feel "uncomfortable" is understandable, but it must be taken that in deposing to the Statement, she realised and accepted that such an eventuality was bound to occur. Meeting at South Coast Labour Council 26 May 1998 and later negotiations 677 Mr Matters had asserted from the bar table on 6 October 1998 that the Harrisons had made no efforts to settle the matter. From my observations and from the evidence, my conclusion is that Mr and Mrs Harrison were desperate for union involvement in trying to resolve the issue. I instance the telephone calls made by Mr Harrison to Mr Hilton and others, and his organisation of the attendance on 26 May 1998 at a meeting of prominent outside union officials to try to resolve all outstanding disputes brought by Mr Matters against the restaurant. 678 The evidence was that Mr Matters never once contacted Mr Harrison, Mrs Harrison or Mrs Bokulic to try to discuss the dispute involving Mrs Tapia. Mr Harrison said there was a point when he dropped out of the negotiations, thinking that Mrs Harrison and Mrs Bokulic might be able to discuss these matters outside the enormous angst Mr Matters had organised against him, but nothing came of that either. 679 On 26 May 1998 a meeting was held at the SCLC in an attempt by Mr Harrison to try to resolve four matters including the alleged victimisation of Mrs Tapia. Present at that meeting were Paul Matters, SCLC; Tony Papaconstantinou, Assistant Secretary Australian Maritime Union; Chris Christodoulou, Assistant Secretary LHMU; Nada Tapia; Marika Sirijovska; Radmila Zivkovic; Mr and Mrs Harrison and Nick Manias. Ms McGrath also attended. Mr Matters could not recall that Mr Neville Hilton had been invited, but accepted the word of Ms Stubbs that he had. Mr Hilton did not attend. 680 During that meeting Mr Harrison said that Mr Matters was very co-operative, speaking quite civilly to him. Because Mr Matters was responding in a very conciliatory way, Mr Harrison thought they were getting somewhere, "but we didn't". 681 Mr Harrison said that there was an agreement drawn up by one of those union officials present and it was proposed to document it and get settlement arrangements. However, Mr Matters disregarded it and continued with the court proceedings. He did not come back to the settlement arrangements that were very fruitfully cultivated at that meeting. (The proposed Deed of Agreement was set out over three closely typed pages and dealt with all four disputes considered at the meeting.) 682 In evidence on 30 October 2001, Mr Matters said that the settlement negotiations at his SCLC offices related to Mrs Sirijovska but not to Mrs Tapia, although he conceded that Mrs Tapia and her husband were present. In evidence the next day, Mr Matters said the settlement negotiations were "for Sirijovska and also for Mrs Tapia". He said the union officials who attended, including Mr Christodoulou and Mr Papaconstantinou, were under Mr Harrison's control/influence and neither had attended bona fide in relation to Mrs Tapia. He later clarified that statement to say that those officials were there for the ALP, supporting Mr Harrison. The gist of the advice they gave Mrs Tapia was to withdraw her application for victimisation. That was improper advice by them. They were acting in the interests of the ALP as they saw it. Mr Matters' opinion was that neither those union officials, nor Mrs Harrison, were trying to settle Mrs Tapia's matter. Mr Harrison had involved many people to have the Tapia application dropped, not resolved. 683 The Deed of Agreement drawn up by Chris Christodoulou after the negotiations on 26 May 1998 at the SCLC noted the parties as being SCLC, Lagoon Restaurant and LHMU. The proposed deed was described as a full and final settlement of all matters/disputes between the parties as they related to Marika Sirijovska, Radmilla Zivkovic, Nadia Tapia and Diana Shinner [sic]. It was acknowledged in cl 7 that "the appropriate Union to deal with further industrial relations issues is the LHMU". Where appropriate the LHMU could request the SCLC to assist in the resolution of disputes. 684 Mr Matters said Ms McGrath of the LHMU, who was apparently also present, had political difficulties in representing workers at the Restaurant. Although she was a very competent union official, she was not capable of doing a proper job in relation to representing workers there. 685 Mrs Tapia's name was listed in that Deed of Agreement but there was no dollar amount noted against it. Although she and her husband had been present, Mrs Tapia had not been aware of that Agreement until shown it in the course of these proceedings. 686 On 14 August 1998, Mr Harrison wrote, without success, to both Ms McGrath, Secretary LHMU and Chris Christodoulou asking them as the relevant union to take over the dispute and try to reach an amicable settlement. 687 In evidence Ms McGrath said the LHMU could only become involved in a dispute if its member requested that involvement. Mrs Tapia had not made any such request. 688 After the arbitration of the application had been stood over part heard, the Commission was advised that early in 1999 the matter was resolved, the sum of $10,000 to be paid to Mrs Tapia. However, there was some confusion between the solicitors for the insurers and Mr Harrison as to how the payment should be made. Mr Harrison made out a cheque for what he believed to be his proportion of the payment, executed the deed and sent it back to Mr McArdle for settlement. Unfortunately, there was some delay in providing one cheque for the full amount and Mrs Tapia decided to proceed, the claim then being amended to $50,000. Job at Thirroul Leagues Club 689 Following an approach by Mr Matters to Mr Nolan, Mrs Tapia was employed at the Thirroul Leagues Club on a casual basis from early June 1998 for about 6 to 8 months. On her pay slip she was described as a "Casual Cook Level 3", the pay for that level in the relevant club employees award being the closest to that paid to the employee. Mr Nolan said that although Mrs Tapia was paid at cook level 3, her main function, even though she did probably cook sometimes, was preparation of food. To Mr Nolan's knowledge there had not been any problems in the kitchen with Mrs Tapia. 690 In employing Mrs Tapia, Mr Nolan was aware that Mrs Tapia had been injured and had been on workers' compensation. Ms Milne had inspected the kitchen at the Club before Mrs Tapia started work there. Constructive Dismissal 691 It was submitted by Mr Matters that Mrs Tapia was victimised and she was constructively dismissed. The victimising conduct was the abuse, swearing and shouting, and the consequence of that which is also victimisation was the fact the employment relationship simply came to an end as a consequence of that behaviour which is the harming of Mrs Tapia and disadvantaging of Mrs Tapia in her employment. She was unable to continue her employment through the constructive dismissal and this constitutes a clear harm to her employment. 692 Even if the respondent's evidence that that Mrs Tapia was not directly dismissed is accepted, there was a constructive dismissal clearly, if Mrs Tapia's evidence is to be believed, because there is no way she could have continued to work in that environment and still continue to give her evidence before the Commission. She had a clear choice at that time, she could go back to that environment and what would be the protection, before she got back to the Commission, that she would not be subjected to shouting, humiliation, threats again? 693 The employment relationship was effectively ended by the actions directly of the respondents and here it is Mrs Harrison is the respondent. 694 The concept of constructive dismissal was considered in Allison v Bega Valley Council [(1995) 63 IR 68] and the general principles espoused by the Full Bench in that matter (Peterson and Marks JJ, Connor CC) were set out at pp 72-73: Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation? It is obvious that a consideration of these matters must be made on a case-by-case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue. In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee particularly where the dynamics within a factual situation may change. For example, an employer may demand a resignation with a threat of dismissal, negotiations may then ensue and the employee may ultimately be genuinely pleased with the outcome of those negotiations to the extent that any resultant resignation may be said to be given freely and without any undue influence being brought to bear by the employer. Where an employee initiates the termination of the contract of employment it is necessary to consider whether that ostensible act of termination was given freely and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed. 695 In the course of this judgment I have considered in detail the circumstances up to and after the QBE meeting of Mrs Tapia's return to work as from 16 March and her eventual departure from the Restaurant. 696 I could only find that the claim of constructive dismissal had been made out, if I found that the actions of Mr and Mrs Harrison, from 16 March onwards and after Mrs Tapia left the Restaurant on 23 April 1998, were not genuine efforts directed to have Mrs Tapia return to work and to stay there to continue her workplace rehabilitation programme. I do not so find. The prime cause of that non-return, as I have already found, was the determination of Mr Matters to have that programme continued elsewhere. 697 I reject the allegation that there was a constructive dismissal of Mrs Tapia by Mr and Mrs Harrison. The Matters/Harrison Relationship 698 Mr Matters placed on the record on a number of occasions, one being on 18 July 2000 that he accepted and it had never been contested that there had been a falling out between Mr and Mrs Harrison and himself. There was no admission by himself as to the merits or rights or wrongs of the facts otherwise in regards to that fall out. Mr Matters stated on 19 July 2000 that at one stage Mr Harrison had been his solicitor on certain matters and there had been a friendship. Mr Matters characterised his earlier relationship with Mr Harrison as one of co-operation and trust. 699 The relationship between the Harrisons and Mr Matters was amicable until about 1996. It apparently soured in 1996 after a dispute between the Harrisons and Mr Matters as to whether a waitress (Ms X), in whom the Harrisons alleged Mr Matters had a romantic interest, was being paid correctly. 700 Further instances of the deterioration in the relationship included the threat by Mr Matters to have Mr Harrison expelled from the Labor Party (June 1996); his letter to the LHMU claiming underpayment of wages at the Restaurant (June 1996) (the restaurant's wages records for all employees were inspected by Gail Byrnes and Chris Christodoulou from the LHMU and they found no underpayments. Although Mr Matters had been advised by them that there were no problems with wages or under payments, Mr Matters' simple answer in cross-examination was "They were wrong."; a threat by Mr Matters, not specifically denied by him to have the Restaurant's liquor supplies cut off and to go to the media (June 1996) (in relation to that matter Mr Clode of the TWU remembered Mrs Harrison raising that threat with him). 701 Following upon the Steelers Club incident (discussed later), Mr Harrison initiated proceedings in the Local Court at Wollongong to recover moneys he had loaned Mr Matters. On 13 March 1998 (3 days before Mrs Tapia's return to work meeting on 16 March 1998), the matter was determined in Mr Harrison's favour, the Court not accepting that the moneys were donations to the Bougainville Revolutionary Army as apparently argued by Mr Matters. (In relation to those proceedings, Mr Matters in evidence on 30 October 2001 said that Mr Johnson, a Senior Magistrate at Wollongong had made findings against Mr Matters "wrongly, and not the first time the magistrate has got that wrong" and "who is often wrong". However, the next day he said he did not think he had been unjustly dealt with by the Magistrate.) Mr Harrison alleged that after the judgment was entered, Mr Matters had threatened to destroy him in Wollongong when Mr Matters got Mr Harrison into Court (presumably referring, at that time, to these and the Sirijovska proceedings). (Many other threats made in November 1997, but not detailed in full here, were admitted by Mr Matters. The threats at that time were presumably in relation to proceedings in the Commission in the Sirijovska matter.) Allegations of personal denigration of Mr and Mrs Harrison 702 After the Commission had adjourned one afternoon at Wollongong, Mr Matters accepted that while still inside the court room, he had shouted to Ms Stubbs that her client "is a liar and a basher of women who mistreats employees. He is a woman beater". There were court staff and other people still present in the court room. 703 Mr Matters accepted that he had described Mr Harrison as a "wife basher" to Mr John Della Bosca in a telephone conversation. He had said it to two lawyers involved in these proceedings. He had said it in the court room in the presence of court staff and others. 704 Mr Matters denied telling Mr Harrison at an ALP function in November 1997 that he would destroy him in court or calling him a "wife basher" amongst other derogatory terms. Mr Matters version was: Q Did you say anything like that? A I said to him "Still ripping off women, George?" What he did then is put his hands up in some cross-like manner, as if I some kind of a vampire. I walking past and he was walking the other way. (Transcript p 2501) 705 Mr Harrison very robustly denied that he was a wife beater and woman beater as had been alleged by Mr Matters on a number of public occasions, including at the Steelers Club and in the Wollongong precincts of the Commission. 706 In relation to another incident at the Commission in Xerox House, in early to mid 1998, Mr Matters corrected Ms Stubbs as to words he had shouted to Mr John Della Bosca, who was getting into the lift with the Harrisons, saying he had described the Harrisons as "scabs", not "scumbags". However, later in further cross-examination Mr Matters put it to Mr Harrison that what he had said to Mr Della Bosca was "John, you are getting into the lift with a couple of scumbags". Mr Harrison had said that the words used were "scumbag employers and scabs". Mr Harrison said he had taken offence to both terms and Mr Della Bosca had pulled him back into the lift when he had gone towards Mr Matters. Mr Harrison denied he had hit Mr Matters in the back before being pulled back. 707 Mr Matters later accepted that he had possibly at some stage described the Harrisons as "scumbags" but not to Mr Durusovksi. 708 In late August 1999, the SCLC organised a demonstration by teachers against the Premier who was lunching at the Restaurant. Mr Matters had said to Andrew, the Harrison's son, the words "Your old man is still ripping off workers". Mr Matters said that was said in response to an obscene gesture by Andrew Harrison. 709 On oath Mr Matters said he held the Harrisons in contempt. He said that was different from dislike. He had a high level of dislike towards them. 710 From my personal observation, the relish in Mr Matters' ferocious rejoinders in cross-examination late in the proceedings that the Harrisons had no reputation to be damaged was quite disturbing. Steelers Club Incident 711 Mr Matters in cross-examination was recorded as having accused Mr Harrison of being a wife basher and a woman beater on a number of occasions - at the Steelers Club and in the Court precincts. 712 Ms Stubbs submitted that it was asserted repeatedly in evidence by Mr Matters, certainly under cross-examination that he was asserting matters of truth in relation to those accusations. Mr Matters had said he made those propositions before Court staff and other people in the Court because they were true. Those words were said on a number of occasions. They went to the relationship between Mr Matters and Mr Harrison and were quite reputation damaging to Mrs Harrison. 713 Ms Stubbs sought to re-examine Mrs Harrison in relation to those accusations. Mr Matters submitted that the evidence elicited from him in cross-examination by Ms Stubbs was not evidence going to the truth of the accusations, but of how he allegedly became aware of certain things. 714 Mr Matters said the applicant would not be asserting the truthfulness of the statements. 715 The incident started when Mr Matters entered the Steelers Club and Mr Harrison approached him and asked him to repay money Mr Matters had borrowed. Earlier on that same day an article had appeared in the Mercury headlined "Harrison/Matters in Labor Party Brawl". That article said that Mr Matters had refused to confirm that he was seeking to have Mr Harrison expelled from the ALP, but said that Mr Matters did confirm that he had been concerned for some time about complaints from restaurant employees that appropriate weekend penalty rates were not being paid. Mr Harrison saw the article as further evidence of Mr Matters' manipulation of the media. Mr Harrison was angry and saw the actions of Mr Matters as betrayal. 716 Mr Matters then made a number of derogatory comments loudly in public about Mrs Harrison. Mr Matters said that it was perhaps completely ungentlemanly to address those words to Mr and Mrs Harrison "but the main bar of the Steelers Club is not a gentleman's bar" and "was hardly a public forum". Mr Matters said that what he said about Mrs Harrison was true. "I was speaking brutally frankly to Mr Harrison". He did not wish to apologise to Mrs Harrison "I don't believe you apologise for things that are true". What he said "in the main bar of the Steelers' Club is not offensive". According to Mr Matters, the words he said to Mr Harrison in the presence of Mrs Harrison, and some of Wollongong's leading lights, as described by Ms Stubbs, at the Steelers Club were not "maliciously motivated, they were true and they were said frankly and openly to George Harrison" (Transcript p 2382). Mr Matters denied the comments as displaying animosity towards the Harrisons, though the only challenge he made to the words said to be used by him about Mrs Harrison was to change the word "fuck" to the word "screw". Support that the former word was used came in the evidence of Mr Newell, the then Managing Director of the Illawarra Mercury who was present. 717 In contrast to the evidence given by Mr Matters as set out above, he had on 17 May 2001, specifically put it to Mr Harrison that the episode described above "did not take place, is untrue, that is untrue". That approach by Mr Matters reflected badly on his credibility. 718 People present had had to stop Mr Harrison going back to Mr Matters, and Mr Harrison had had to physically restrain Mr Manias who wanted "to have a go" at Mr Matters. 719 Mr Matters rejected the proposition that there was anything in his relationship with the Harrisons that was an impediment to his representing Mrs Tapia. His attitude, in relation to what a scandalous and scurrilous personal attack on Mrs Harrison, which he belatedly said he was not pressing as the truth, was clearly expressed in the following extract from transcript: Q You are seriously suggesting that you thought you were going to be able to have amicable discussions with a man when you had said those sort of things about his wife? A There are many worse things I have heard said in industrial relations between people and parties and within a short period of time people are sitting down talking together again. Q I am not interested in that - A I am telling you that is the way in which the game is played. It may be unusual to you but the fact of the matter is it is a tough business. Harsh things are often said. (Transcript p 2392/2395 29/10/01) 720 Mr Matters did not accept Ms Stubbs' description of a number of those present as "leading lights". Mr Newell "is hardly a leading light of Wollongong, he is an employer"; Mr Matters did not consider Mr Ray Kearney, the Club's marketing manager, officials from the West Suburbs Leagues Club and others as "leading lights". 721 Mrs Harrison, as later did Mr Harrison, denied the accusations totally, Mrs Harrison speaking of the embarrassment and humiliation she had suffered. The Harrisons did not go the Steelers Club again after that incident. The Matters/Manias relationship 722 Mr Manias saw the allegations as being against him personally, not against the restaurant. He did not see them as being against Mr Harrison. 723 According to Mr Manias a number of times he gave money to Paul Matters and paid his rent. 724 Mr Matters accepted that he had stored books at Mr Manias's flat but denied he had stayed there. 725 In 1992/1993 Mr Manias had wanted to sack an employee on the basis of sexual harassment. Mr Matters had made representations to Mr Harrison in favour of that employee. The employee stayed. Mr Manias left and went back to Greece. 726 Mr Matters accepted that he had made allegations reported in the Illawarra Mercury that Mr Manias had attempted to bribe him in the sum of $10,000 in relation to a development in Wollongong. Mr Manias was in Greece at the time and when contacted by the Mercury, denied the allegations. Illawarra Mercury Proceedings 727 On 7 July 2000, Illawarra Newspapers Holdings Pty Limited as publishers of the Illawarra Mercury filed a Notice of Motion seeking the following orders: 1 That Illawarra Newspapers Holdings Pty Limited be heard in relation to this Motion. 2 That Paul Matters, the plaintiff's agent in these proceedings, be reprimanded in relation to his conduct towards representatives of the media, and in particular employees of Illawarra Newspapers Holdings Pty Limited, in relation to the potential reporting of the conduct of the proceedings on 26 and 28 June 2000. 3 Such other Orders or Directions as the Court thinks fit. 728 The Grounds for the Orders sought included the following: 5 In pursuit of that principle [that judicial proceedings be open to the public] and subject to established statutory or common law restrictions, it is fundamental to the administration of justice and due process that judicial proceedings be open to members of the media for the purposes of reporting upon the proceedings. 6 Mr Paul Matters, the plaintiff's agent herein, by his conduct on 26 and 28 June 2000 towards employees of Illawarra Newspapers Holdings Pty Limited, acting as reporters for the Illawarra Mercury: (a) sought to and intended to; or (b) whether intended or not, engaged in conduct which had the effect of, improperly affecting or seeking to affect the reporting in the Illawarra Mercury of the conduct of the proceedings before the Commission on those days. 7 In all the circumstances, it is appropriate and proper for the Court to exercise its inherent power to control the conduct of Mr Matters in order to ensure due process and the proper administration of justice in relation to the proceedings. 8 Illawarra Newspapers Holdings Pty Limited as the publishers of the Illawarra Mercury, a daily newspaper with a substantial circulation in the Illawarra area where the proceedings are occurring, has a substantial and sufficient interest in these issues so as to be entitled to be heard in relation to them. 729 Mr Ellicott, solicitor, had first raised the matter in the Commission on 29 June 2000, referring to matters raised outside the doors of the court in fairly substantive and aggressive comments by Mr Matters with journalists reporting the proceedings. 730 He sought a direction regarding conduct or contact that may occur between Mr Matters or, for that matter, by any other representatives of the parties at these proceedings and the journalists who are employed by Fairfax. 731 Mr Matters objected to directions being made, saying he had not received any warning that the application would be made. He stated that he had "had two conversations with journalists from the Mercury that have raised biase [sic] with their reporting, which I understand is not an unusual thing with the Illawarra Mercury or with the media". 732 A timetable was set for the filing of a Notice of Motion by the publishers, and a reply by Mr Matters prior to the Notice of Motion being heard on 14 July 2000. 733 In relation to the hearing of the Notice of Motion, Mr R Dubler of counsel appeared on behalf of Illawarra Newspapers Holdings Pty Limited. 734 Mr Dubler explained that the gravamen of the position of Illawarra Newspaper Holdings Pty Limited is that it wishes to bring to the attention of the Commission an allegation of conduct which it says amounts to misconduct and contempt of the Commission that has affected employees of Illawarra Newspapers. The nature of the misconduct, in a nutshell, was that Mr Matters on 26 and 28 June 2000 conducted himself in a way which was intended to discourage reporters from the Illawarra Newspapers from attending the proceedings and reporting them. The contempt alleged by the Illawarra Mercury was contempt in the precincts of the Commission. 735 Mr Matters said that the matters set out in the four witness statements supporting the Notice of Motion were strenuously denied. He said that "what is admitted here today is certainly there were two conversations with two journalists in regard to the nature of the reporting proceedings before the Commission, and there was criticism and concern raised about the nature of that reporting, there is no denial of that your Honour, and that is perfectly proper in a democratic society". He also pointed out that, in relation to the two allegations made, the second conversation, which was not denied by him but the contents were, took place with a reporter outside a building quite a distance from the Commission premises in Wollongong. 736 In the course of the hearing as to the Notice of Motion filed by Illawarra Newspapers, Mr Matters stated that the relationship between himself and the Mercury generally had been a good working relationship "so much so that in fact I am facing a defamation action in the District Court because I gave a witness statement to a Mercury journalist". 737 The outcome of the proceedings, which did not go beyond opening submissions, is set out in the following extract from transcript: SHORT ADJOURNMENT DUBLER: We appear to have reached a compromise as follows: The parties wish to announce a joint statement of principles that apply to Illawarra Newspapers, my client, and Mr Matters and Mr Matters wishes to read that on to the transcript, following which I will apply for leave to withdraw our Notice of Motion with no orders to costs. MATTERS: If I can preface this by saying the purpose that I see for reading this before the Commission is that the joint statement of principles is an understanding shared by the parties Illawarra Newspapers Pty Limited and myself. I am doing this not as a representative of Mrs Tapia but as an agent before this Commission who has been given the right to appear before this Commission by the Commission and by reading this statement on to the transcript it becomes more than a mere statement of understanding, but something which is binding on both parties, and if in future any breach occurs of this statement then clearly it is contempt of the Commission. It is an attempt to bring the Commission to the centre of the agreement if you like in that sense so if I may read it on to the transcript. HER HONOUR: It is the statement that is agreed between the parties? MATTERS: Between the parties. … MATTERS: It is a three point statement: 1 Both parties acknowledge that in proceedings before the Industrial Relations Commission of New South Wales the media has an important role to fairly report and inform the public in regard to those proceedings. 2 Both parties acknowledge that journalists should not be subject to unfair pressure from participants, their representatives, or management regarding their professional role with the Commission's proceedings. 3 In regard to issues that may arise between the parties in IRC number 1551 of 1998, Mr Paul Matters will communicate directly with Mr Nick Hartgerink on behalf of Illawarra Newspapers. HER HONOUR: Thank you Mr Matters, was that the completion? MATTERS: It goes without saying that statement is made by me without admission in regard to any of the allegations made before the Commission but on the basis of stating my views in regard to the role of the media and my relationship with them. HER HONOUR: Thank you. Mr Dubler? DUBLER: If I could have leave to discontinue our motion, we seek no order as to costs and we trust and hope that there won't be any need for us to have any further role before your Honour. HER HONOUR: Yes. That application for leave to discontinue the Notice Motion brought by Illawarra Newspapers is granted. No order as to costs. (Transcript pp 1182-1183) Incident with Illawarra Mercury Reporter 738 This incident relates to one of the incidents that led to the action by the Illawarra Mercury (described above). 739 In cross-examination by Ms Stubbs Mr Matters denied that he had yelled abuse at Ms Mardon, a columnist of the Illawarra Mercury in the lift area outside the Wollongong Commission. He had pointed his finger at her. He denied circling her. 740 Mr Matters said the reason he had behaved in a way that led to the Notice of Motion being filed by the Mercury was because there had been an allegation of sexual harassment made against him by a witness. He said he did become agitated later in the conversation with the journalist because of her very arrogant attitude and he called her incompetent. 741 Mr Matters said the Mercury was biased against the applicant although there had not been any complaints from the Mercury while the applicant's case was being heard. The Mercury's complaints about Mr Matters only occurred when the respondents' case was being heard. Mr Matters thought the Mercury was biased towards the Harrisons. 742 The respondents then summonsed Ms Mardon to give evidence in response to that evidence of Mr Matters. The incident occurred outside the Commission on the afternoon of 28 June 2000 shortly after the Commission rose in these proceedings. 743 Ms Mardon had reported these proceedings on a number of days, although she was not in attendance all the time. During the day, Mr Matters had been cross-examining Mr Manias. In the course of that cross-examination Mr Manias, in answer to a question from Mr Matters, allowed over the objection of Ms Stubbs, referred to an incident, some years previously, said to be sexual harassment, involving Mr Matters. Seeing Ms Mardon outside the court room when he was leaving, Mr Matters approached her and told her she could not use the evidence as to sexual harassment. Ms Mardon told him he would have to approach her editor. 744 Ms Mardon described Mr Matters as becoming more agitated, his voice got louder and he spoke to her more aggressively. He said: … to me on a number of occasions, "I'll sue you personally, as well as the paper," "I've put you on warning," and, "You can't use that stuff." The whole thing became quite threatening from my point of view. I said to him "Are you threatening me?" and he said, "It's not a threat, but I'm warning you. You wait and see what happens." (Transcript p 2642) 745 Put to her by Mr Matters that she was not distressed at all, Ms Mardon answered: Q I put it to you that you were not very distressed at all? A Well you can put it to me, but I say I was. Q Were you very distressed when I was talking to you? A I can't recall at what point I became very distressed. Q I think it is an important point. Can you remember, were you very distressed in the court here or outside the court, or did you get - - A No, I was very distressed when you were in my face pointing and saying you would sue me personally, I can tell you that. (Transcript p 2653) … Q And that was because of the financial implications of that possibility? A I took the whole thing that I was at the hearing to do my job. I had no inkling to anyone involved in the case. I came here to do my job, and I got harassed when I walked out of the court, so that distressed me. (Transcript p 2653) … Q When you say I was circling, I put it to you that in fact I had pushed the button to the left [sic] and I turned around and said to you, "You are just a prima donna"? A I remember you saying that, but I don't remember - - (Transcript p 2655) 746 Her editor asked her to type up her summary of the incident. She said later in her evidence that he had said there had been a similar incident involving Mr Matters and a journalist a couple of days before. Position of Mr Matters as Advocate/Agent 747 Ms Stubbs submitted: I would like to pick up on Mr Matters' final points about appearance before the Commission being, essentially, a discretionary matter to the Commission, and much is made of Mr Harrison's objection to Mr Matters' appearance on behalf of Ms Tapia at the first directions hearing on 17th April 1998. I make a number of submissions in relation to that. … Mr Matters asserted something could be made of Mr Harrison's failure to proceed with the notice of motion attempting to restrict his involvement in the proceedings. Firstly, if that submission is intended to suggest Mr and Mrs Harrison are responsible for Mr Matters' ethical conduct in deciding to represent Ms Tapia, or his ethical behaviour in conduct of the proceedings, that is rejected. Mr Matters is entirely responsible for that behaviour himself. Secondly, Mr Matters suggested it was his understanding that his appearance was somehow discretionary to the Commission. It appears that Part 12 rule 15 and s 166 of the Act governs this question. … There is nothing in that s 166 that suggests that leave is sought, or required, and those provisions provide a statutory entitlement on the part of a litigant, or party to proceedings before the Commission, to be represented by an agent of their choice. Mr Harrison, particularly after the directions hearing, saw his solicitor and, as a result of advice received that there was no legal basis for objecting to the appearance of Mr Matters , that motion did not proceed. Nothing can flow from that proposition but complaints about Mr Matters' appearance related essentially to this question. It was the fact it was very obvious to Mr Harrison at the time that Mr Matters had a substantive involvement in the facts and circumstances giving rise to the conduct asserted by the applicant as constituting victimisation. The ethical rules of the Law Society and Bar Association make it clear an advocate should not take a brief in any proceedings where there is any possibility that they may be called to give evidence. It can compromise the proper conduct of the proceedings if there is an advocate in that circumstance. The respondent has not ever objected to Mrs Tapia being represented, or by anyone of her choice. What they have objected to is Mrs Tapia being represented by Mr Matters . It is submitted, at the end of this long case, the evidence is overwhelming that there was a strong and clear and proper concern for their concerns and fears in that respect. The word "fears" is not used lightly. The respondent has been subjected to an inordinate financial burden. The Commission is going to be invited to draw inferences arising from Mr Matters' participation. There is clear evidence that there were other people who could have represented Ms Tapia. One of the assistant secretaries of the South Coast Labor Council, Brad Welsh, was available. Mr Colac [sic] [Clode] of the Transport Workers Union said he would have released Mr Welsh had a request been made. Susan McGrath gave evidence there were many industrial advocates that could have been made available to represent Ms Tapia, had a request been made. Her evidence was their hands were tied unless the applicant made specific application for assistance. (Transcript p 2839 ff) 748 Having referred to the many legislative provisions which govern officers of the Court, Mr Dubler on the occasion of the hearing of the Illawarra Mercury's Notice of Motion, submitted: Pursuant to the Industrial Relations Act 1996 s 166, litigants may appear by agents, but there are no sections or regulations which deal with any means of control of agents. We would say that until regulations are perhaps created, if need be, that it would be inherent or implied in the statute as a whole which created the Commission that the Commission would have that inherent or implied power to control the agents who have the right to appear, that it ought be recognised as a matter of necessity, because otherwise the Commission may find itself in a position where it can not function effectively and efficiently if it did not have some powers over those who appear before it. That is the second instance and I think it's explained in the grounds of the motion that we bring forward our motion, and that is again perhaps in the nature of amicus curiae we bring forward our allegation and ask the Commission for control. Again it may be similar to the submission on contempt, it may not be appropriate for any formal application to be made for a consequence or an order, but merely to inform the Commission of conduct which we believe amounts to misconduct so that the Commission can be ceased [sic] of it and decide for its own view whether it wished to take the matter further or not. We wish in the main to simply be heard and have the evidence received, but we say it is an allegation that would amount to contempt of the Commission and, therefore, necessarily by conduct of the agent. 749 After talking to Mr and Mrs Harrison on 16 March 1998, Ms Milne advised Mrs Tapia to seek legal advice before meeting with Mr Harrison to review the Sirijovska statement. In answer to a question from Mr Matters, on that point the applicant said she did seek legal advice: "I went to talk with my representative, that was you". Mr Matters was not a lawyer, nor even a law student at that time. 750 There was no doubt that Mrs Tapia believed that Mr Matters was a person who could give her legal advice. She went to see a doctor after the events of 23 April because that was what her "legal representative" ie Paul Matters told her to do. (Transcript p 646) 751 The problem of Mr Matters being both advocate and personally involved in events was exemplified in his cross-examination of Ms Martin. Much of that cross-examination went to a meeting at QBE Insurance at which Mr Matters was present and to telephone conversations he said he had with Ms Martin, but which she could not recollect. The cross-examination was repetitive, often confused and, in terms, often consisted of allegations by him of unprofessional conduct on the part of Ms Martin. One whole hearing day was devoted to evidence, that on any count, should not have taken more than three hours at the most. 752 Mr Matters style of cross-examination was argumentative eg: WITNESS: [Mrs Harrison] Narda never came to make a complaint about Nick swearing. MATTERS: Q Why would she? You were fully supporting him. A She was accepting it - - OBJECTION. ARGUMENTATIVE. MATTERS: Q You fully supported Mr Manias, didn't you, through this whole period from 6 January right through to the period where Mrs Tapia left? A I don't think you could say that. Q Well, I do say that. (Transcript p 1507) 753 He was similarly argumentative with witnesses when cross-examining them about events in which he had been a participant eg at the QBE meeting and the conciliation conference at the SCLC on 26 May 1998. 754 In his own cross-examination by Ms Stubbs, Mr Matters often gave unresponsive answers, made speeches and self serving statements and was evasive. 755 A further illustration of the difficulties inherent in Mr Matters being both an advocate and a participant in events was the time that was spent in continuing, in cross-examination of Mrs Harrison, a dispute years old as to the proper interpretation of the earlier award as to payment of weekend penalty rates. 756 Mr Matters said he was not a union official in the sense that Mr Clode was. That unfortunately was true. 757 The action Mr Clode said he would take if a worker expressed fears about returning to work with a particular manager was a text book approach and was exactly what Mr and Mrs Harrison were trying to achieve - a meeting with the employer and making sure the employee and the manager were not working side by side in a confined area, followed by investigation of any allegations. 758 Mr Matters' concerns in the main part of his work at the SCLC, as I understand them, went to issues of concern to the wider trade union movement - the setting up of a food bank for the disadvantaged (the Hobart conference), involvement in picketing at Port Botany and Port Kembla during the maritime dispute in 1998, organising funds for medical and other supplies to the Bougainville Revolutionary Army. Mrs Tapia would have been much better off had she been assisted by a union official for whom disputes between individual employees/employers were the bread and butter of day to day work. Unfortunately however, Mrs Tapia had been advised she was not a member of the LHMU and did not follow that up with the Restaurant or with the LHMU. She believed other unions she had approached in January 1998 had not been willing to help her. 759 One could be fairly certain that with another advocate appearing for her, Mrs Tapia would not have been subjected to the additional worry of being a defendant in defamation proceedings arising out of the actions of her advocate in supplying an untendered document to the Illawarra Mercury. 760 Mr Matters' existing animosity, particularly in respect of Mr Harrison, was a factor preventing him from adopting the objective "one step back" stance that was appropriate for a union representative trying to resolve conflict between an employer and employee. 761 Mr Matters made arrangements for Mrs Tapia to join another union, the AWU, which he believed was more effective than the LHMU and of which he was a member. That union was content for Mr Matters to continue to assist Mrs Tapia. 762 On 30 March 2001, Mrs Harrison, in cross-examination said, as part of an answer "If your client was in there …" and was immediately advised by Mr Matters "She is not my client". 763 So, I ask, what was she? 764 As an advocate, his court behaviour left much to be desired, as the following example illustrates: MATTERS: The witness is from a non English speaking background. This is a letter from a solicitor to her and I believe that Ms Stubbs has misunderstood the letter. I hope it is a misunderstanding rather than an attempt to mislead the witness and - - STUBBS: That is outrageous. I simply wish to be able to put my case without this constant run of interruptions. There is a way of making an objection and it is not simply because there is going to be a question that Mr Matters does not like. MATTERS: It is a misleading question. (Transcript p 457 1/12/99) … MATTERS: There is no reference to a treating specialist there. You don't understand how the workers compensation system works. STUBBS: I am becoming accustomed to these sorts of unpleasant asides from the bar table, but I will persevere regardless. (Transcript p 458 1/12/99) 765 Mr Harrison when he arrived at the Restaurant on 23 April spoke soothingly to Mrs Tapia. She refused to speak to him "because they are all against me and I am only by myself and I don't have any witnesses in my favour". Mrs Tapia agreed that Mr Harrison had said that he had spoken to Neville Hilton of the AWU and that Mr Hilton had suggested they sit calmly and try to defuse the situation. Mr Harrison had asked her please to come into the office to talk about it. Mrs Tapia's evidence was that after the laundry meeting, she rang her husband and asked him to call Paul [Matters] and ask him to come to the restaurant "because they want to talk to him and I don't know what to do. If I just leave they will say that I'm abandoning my job". She refused to talk to Mr Harrison telling him "you can talk to Paul when he comes". Although Mrs Tapia was very upset and sobbing when she spoke to Mr Matters, he did not come to the Restaurant then and was never present at any discussions between Mrs Tapia and Mr and Mrs Harrison. Mr Matters simply advised Mrs Tapia to leave and go to see her doctor, and he sent his secretary to pick Mrs Tapia up. 766 Although in the course of his cross-examination, Mr Matters said that in his whole time in the trade union movement he had never seen, as an advocate, a witness who had been victimised and treated as Mrs Tapia was after 16 March 1998, he took no steps, direct or otherwise, to talk to the Harrisons in relation to that victimisation and treatment. 767 It must be taken, I think, that Mr Matters' cross-examination of Mr Harrison reflected his approach to the circumstances surrounding Mrs Tapia's return to work programme: Q You gave evidence previously that at the meeting on 30 March, that at the end of that meeting you felt defeated in your objective? OBJECTION ON THE BASIS THAT THE WITNESS' EVIDENCE WAS CLEAR THAT HE FELT THERE WAS NO POINT PURSUING THE MATTER WITH MS MILNE BECAUSE SHE DID NOT UNDERSTAND THE POINT HE WAS TRYING TO MAKE. Q Ms Milne, in your view, would be no ally to your purposes in regard to getting Ms Tapia to drop or change her witness statement after the 17th? OBJECTION TO THE WORD "ALLY" Q You felt she would be of no assistance to you in your objective in getting Ms Tapia to drop or change the statement? A There was never any by me. (Transcript p 2189) … Q I am not suggesting that you accept my premise in that question and I assume you do not, but the preface to my question is that: prior to the 17th you were attempting to use Ms Milne in a manipulative way to get Ms Milne to assist you to get Ms Tapia to change her statement or drop her statement? A I was not. Q I am putting to you that after the 17th, after Ms Tapia's victimisation application, this matter with Ms Tapia was now becoming an industrial issue itself because of the victimisation application and it had now become an industrial matter? A Yes Q So Ms Milne was of no use to you at all in terms of getting the statement dropped or changed? A Your Honour? OBJECTION ON THE BASIS THAT THERE WERE TWO QUESTIONS. MATTERS: Q Perhaps I could put it simply. In your view, Ms Milne after the 17th was of no use to you in getting this witness statement issue fixed up? A I do not think my evidence has been that we were trying to get Ms Tapia to drop her statement. Q No, I am not suggesting you would, but prior to the 17th you saw Ms Milne as possibly being some assistance to clear up the problem? A The purpose of the rehabilitation meeting was the safety of Ms Tapia to return to work. Q You had requested Ms Milne to be a witness to the reading of that witness statement on 16 March at a meeting to discuss Ms Tapia's return to work? STUBBS: The evidence was that they were to go through the statement. WITNESS: Yes, to discuss those four allegations. MATTERS: Q After the 17th you did not see Ms Milne in terms of being useful, in terms of doing anything with the witness statement? A We never wanted anything done with the witness statement. We wanted to be able to interview Ms Tapia in relation to the four allegations that were made and we considered them to have been so serious that safety measures had to be worked into the rehabilitation programme. After the 17th or the 30th I realised that Ms Milne did not have an appreciation or understanding as the seriousness of the situation, as a result of which the matter ended up in the industrial court. Q After the 17th you used all your political influence to bring very senior union officials in to bring pressure to bear on Ms Tapia? OBJECTION TO THE PHRASE "SENIOR UNION OFFICIALS" AND THE "CONDUCT WHICH WAS ENGAGED IN" AS NEEDING CLARIFICATION. (Transcript p 2190) 768 That cross-examination reveals absolutely no understanding on the part of Mr Matters of the very real and significant problems that Mr and Mrs Harrison were trying to address, or of the part he, as Mrs Tapia's representative, should have been playing in the resolution of these problems. In my view, it can be inferred that it was those views and understanding that informed his advice and discussions with Mrs Tapia and influenced her attitude to the Harrisons. 769 In the July 2000 sittings Mr Matters refused to provide Mrs Tapia's contact details to the respondent on the grounds that she had been subject to harassment by Mr and Mrs Harrison. No evidence was advanced to provide a foundation for that assertion. 770 During the course of submissions as to the issue on 6 December 2000, Mr Matters said he had said that Mrs Tapia had concerns about harassment and intimidation and threats from the Harrisons. He had not asserted that Mrs Tapia had been harassed or intimidated. He said there would now be evidence from Mrs Tapia about things that had occurred. [No evidence was ever brought.] He was not in a position, on instructions, to ask Mrs Harrison who was in the course of cross-examination of any specific events. Upon further exploration as to details, Mr Matters said the assertions related to allegations of behaviour by Mr and Mrs Harrison since Mrs Tapia left the Lagoon Restaurant towards himself as Mrs Tapia's representative. The incident that Mrs Harrison was then cross-examined about involved Mr Matters, Mr and Mrs Harrison and Mr John Della Bosca at Xerox House on the occasion of proceedings in the Sirijovska matter. Mrs Tapia was not involved. Mr Matters said Mrs Tapia had knowledge of the incident and it formed part of her concerns. He asserted that knowledge of behaviour and incidents that occurred, particularly to her representative and particularly so soon after commencing her victimisation claim would be relevant to her concerns not to provide her particulars to Mr and Mrs Harrison. 771 That incident at Xerox House is described earlier. It was one Paul Matters initiated with an insulting and provocative remark to Mr John Della Bosca who was in Mr Harrison's company. 772 Ms Stubbs said on 6 December 2000 without contradiction that Mr and Mrs Harrison had had absolutely no contact with Mrs Tapia from the day she left the Lagoon Restaurant. 773 If Mrs Tapia did have the concerns asserted by Mr Matters (and she did not give evidence, although at all times seated at the bar table with Mr Matters, in hearing of the calls by Ms Stubbs to do so), those concerns could only have reflected Mr Matters' own views because she had no contact at all with Mr and Mrs Harrison after she left the Restaurant. 774 The representation of Mrs Tapia by Mr Matters became even more complicated when Mr and Mrs Harrison as a defence alleged conspiracy between Mr Matters and Mrs Tapia in bringing the victimisation claim. He thus became a personal litigant in the proceedings. That compromised, even more than his original inimical relationship with Mr and Mrs Harrison, his representation of Mrs Tapia. 775 One of the starkest examples of the problems arising because of Mr Matters' involvement as advocate/participant/party was in relation to the witness statement in reply being prepared by Mrs Tapia. Mr Matters had told Mrs Tapia she was to do that statement herself without his assistance because I said to her that I believed it was better that she did it herself rather than me transcribing it because I did not want any aspersions to be cast that I was in some way putting words into her mouth or doctoring up her witness statement, given that Ms Stubbs indicated the sort of defence that was now being taken by the respondent. (Transcript p 1494) 776 The document produced by Mrs Tapia showed what an impossible task had been placed on her by Mr Matters. 777 In relation to that same witness statement, Ms Stubbs, on 30 October 2000, asked Mr Matters: STUBBS: Q Is there any reason why you could not have immediately forwarded a copy of that, consistent with her Honour's rulings, in relation to the service of witness statements to either myself or the respondent? (Transcript p 1494) 778 His explanation included the following statements: Q Mr Matters, there is no reason identified why you could not have sent me a facsimile or made a telephone call advising me of what the position was. There is no reason why you could not have made a telephone call - - A There was good reason. What I was discussing with Mrs Tapia was potentially - I'm not a lawyer. I don't have the requirement of professional ethics. The fact of the matter is that I said we were still not clear as to what we were going to do. … MATTERS: there was a good reason. This is very unusual. I am personally involved in this. This is a very unusual situation. I have never been in an application - and as you say I have been before the Commission for twenty years - I have never been in an application where this situation has arisen in this way. I am very aware of the fact that I am emotionally involved in this and I am also very, very keen to pursue a particular course of action in relation to this matter. I have to continue reminding myself that I am represent Mrs Tapia, not myself. … (Transcript p 1496) … I did not feel that I was doing Mrs Tapia's cause any good by perhaps laying our hearts [sic] [cards] on the table in regard to the differences that I have had with Mrs Tapia or the reasons we were being delayed at this point with yourself or particularly, with Mrs Harrison, and - - Q Mr Matters, I am here as a professional running this matter and what I am suggesting to you again is that there is no reason why you could not have indicated to me that you were proposing to lead some evidence but for various reasons you were not going to file or provide that evidence. … … A There were two reasons I didn't ring you and speak to you directly, firstly because I felt it was only making myself perhaps vulnerable and, secondly, and most importantly, I didn't want to disadvantage Mrs Tapia in any. Q Please tell the court how you communicating with me in any way and advising me that you were considering putting witness statement on in relation to identifying people, could in any way have disadvantaged Mrs Tapia. You must have had some reason for not complying with the orders of the court. A Ms Stubbs, I tried to comply with the court orders in the circumstances as best I could. It is not true to put the position that I deliberately flouted the order. (Transcript p 1497) 779 Australian courts, from the Local Courts to the High Court, are grappling with problems caused by some agents, without the underpinning of the ethical standards of the legal profession, appearing for litigants as well as the problems arising from the increasing incidence of self-represented litigants with little understanding of the law and legal procedures. Those problems existed in this case and were combined with either ignorance of, or marked disregard for, court decorum and protocol. 780 However, more than once during proceedings, Mr Matters stated that he had told Mrs Tapia that she might be better off to have someone else represent her, Mrs Tapia had said she did not trust anyone else. On 30 October 2000, Mr Matters in the course of cross-examination on a particular issue, said he was not running the matter. He had instructions from Mrs Tapia. From what has been set out earlier as to Mrs Tapia's views as to the lack of assistance she received from any organisation she approached after 6 January 1998, I accept that Mrs Tapia acquired her distrust of such organisations, including unions, before she had her initial contact with Mr Matters. Conspiracy Allegations by Respondent 781 As early as 2 December 1999, in the course of responding to objections to cross-examination of Mrs Tapia as to her understanding of Dr Wallace's medical report received by her solicitors in May 1998, Ms Stubbs submitted: STUBBS: The understanding [of Mrs Tapia] is the allegation that the applicant return with a particular motive to provoke an incident. The understanding [sic] [respondent] will be arguing that the applicant was well aware that there were grounds for her not being certified fit to return to work at the moment she was returning to work, when she wanted to be reinstated to her previous full time position. It is relevant that Miss Tapia had information relating to her impairment and fitness for work and that was not included in her rehabilitation and was not brought to the attention of the respondent. In the event that the applicant was bona fide about the rehabilitation program, one would expect information of that nature to have been brought to the respondent's attention. That is the relevance. (Transcript pp 514-515) 782 Comparatively late in the proceedings, the respondent sought and was granted leave to put its own case in defence in reply to that of the applicant. 783 An edited version of what was said by Ms Stubbs on 18 July 2000 is set out below: It is the respondent's case in part that these proceedings have been brought for the purposes of a vendetta against the respondent and that there has been a collusion between the applicant and the applicant's agent in bringing these proceedings. … It is clear from the conduct of the respondent's case that there is an assertion by way of defence that there was an orchestration of either an unfair dismissal or to precipitate a response for the purposes of bringing proceedings in the Industrial Relations Commission. For example, Ms Tapia has given evidence she was terrified of Mr Manias and there is contrary evidence she nevertheless insisted on taking her work instructions from him. There was no attempt to obtain the assistance of the union which had cover of the restaurant. Mr Matters has made threats he was going to destroy the respondent through the court system. … The respondent's case is this: firstly, that the victimisation claim was orchestrated. Secondly, it was orchestrated by Ms Tapia and Mr Matters. Thirdly, Ms Tapia could have had available to her other experienced industrial advocates through her union. Ms Tapia chose Mr Matters. It is a very real question in these proceedings why Mr Matters would conceivably have accepted a brief in these proceedings in the circumstances. Mr Matters has made a concession from the bar table, he has stated there was a falling out between himself and the respondent, but unfortunately the facts go significantly beyond that. Threats were made specifically in relation to what was going to be done to the respondent through the Industrial Commission. In the light of that history the respondent will be inviting the Commission to conclude at the end of the day that prudence, commonsense and professional propriety should have dictated [that] an advocate of Mr Matters' experience should have referred Ms Tapia to another advocate, to another union or to the Legal Aid Commission. It appears there was no such application or advice that was given. The respondent's case is that the victimisation claim was an orchestrated exercise and that it was done between Mr Matters and Ms Tapia. That defence, would have been pressed by the respondent whether Mr Matters was acting for Ms Tapia or whether he was not. From the earliest stage of these proceedings these concerns were raised. I am instructed to waive privilege to this extent, to indicate my advice at the commencement of the proceedings was to attempt to restrict the matters strictly to those specific factual assertions. It appears because of the way the matter has been conducted and because of my instructions that the respondent wishes to press the defence in relation to the matters foreshadowed. I appreciate the consequences of this application may have the undesirable result of extending time in this matter. But that is what the respondent asserts is behind the application. It must have been apparent these difficulties would present themselves to Mr Matters at the conduct of the proceedings. It is absolutely apparent there was a level of involvement on the part of Mr Matters that should have rendered it very clear he would be a potential witness in these proceedings. (Transcript pp 1293 - 1294) 784 On the following day, 19 July 2000, in response to submissions by Mr Matters that the course of action proposed by the respondent would bring into contention material already ruled out, Ms Stubbs stated at pages 1306 to 1315, in the edited version set out below: The ambit of this dispute is a victimisation claim. The issue is whether or not Mrs Tapia was victimised by the respondent as a result of submitting a witness statement in a matter that was then before the Industrial Relations Commission. With respect, that has to remain the touchstone of relevance for these proceedings. … The ambit of the evidence which has now been put forward is simply this, the respondent is asserting Mr Matters personally made threats to both Mr and Mrs Harrison. Those threats were to use the Court processes of this State essentially to destroy Mr Harrison. On the basis of that evidence and on the basis of the evidence that is before the Commission by the applicant in terms of when this application for victimisation occurred and the applicant's conduct past that point, the respondent's defence is there was a threat made by Mr Matters and that threat was realised. … The respondent will assert that the only relevant extension of the ambit of the proceedings as presently constituted relates to whether or not Mr Matters did or did not, on three separate occasions, make serious threats to the respondent. … Those threats are not related in any way to the Sirijovska proceedings. They are not related to the relationship between the South Coast Labour Council and the Harrisons. They were personal comments that were made by Mr Matters to Mr and Mrs Harrison. That is all that the respondent submits is necessary to the defence. The threats that were made occurred in a way which gives good ground to believe that those threats may have been acted upon. There is other evidence that is before the Commission from which the Commission, if it is so minded at the end of the proceedings, will be able to draw a conclusion that these proceedings and the conduct of Ms Tapia when she returned to work was for the purpose of orchestrating either an unfair dismissal or victimisation claim. That is part of the respondent's case. The threats are relevant to that and the respondent relies only on Mrs Tapia's conduct in the period from the day of her attempted to return to work on 6 January 1998. … Mrs Tapia was a member of another union. She made no effort to be represented by that union. … It is the respondent's case that Mr Matters, having had an extremely poisonous relationship with Mr and Mrs Harrison and having threatened them, then joins Mrs Tapia to a union that he has an affiliation with that has nothing to do with the restaurant, and then engages in extremely protracted litigation with conduct on his part that provides a foundation for a high level of personal animus. … The respondent's case is Mrs Tapia was so annoyed at not being permitted to return to work when she attempted to do so on 6 January that certain things flowed from that, so the respondent's case is 6 January is really the line in the sand, as it were. … So there is no misunderstanding, of course the respondent is not abandoning any defence there was no victimisation as well. … In fact the defence is put on three levels: firstly there has been a collusion to effectively bring false claims, firstly to orchestrate and then to attempt to rely on an unfair dismissal which for time reasons and whatever could not proceed. Secondly, the victimisation claim was sought to be precipitated with Mr Matters' assistance or in collusion with Mr Matters. If the Commission accepts on the evidence that Mrs Tapia was attempting by her own conduct in the work environment to precipitate a dismissal or precipitate a set of circumstances that would give rise to a victimisation claim, that is also relied upon. 785 On 5 December 2000 Ms Stubbs advised that: It is very much the respondent's case, Mr Matters' active involvement in the event across the relevant period, that is immediately before and after the filing of the Sirivjoska Statement, significantly affected the respondent's ability to properly facilitate Mrs Tapia's return to work and did pose significant impediments to the resolution of the issue. … For the record, from the earliest stages the respondent had taken issue with Mr Matters' engagement in these proceedings for exactly that reason. … Someone should never take instructions in a matter if there is any possibility they will be called as a witness. It was made apparent to this Commission at the earliest opportunity this was the case. Mr Matters, regardless, sought to forge on. (Transcript p 1619) 786 In the course of submissions as to an objection on 6 December 2000 at Transcript p 1765, Ms Stubbs stated that: ... The respondent is not suggesting Mrs Tapia may not have had complaints or concerns. ... 787 Ms Stubbs submitted that the quantification of damages, s 213, delineates the damages that are able to be awarded by the Commission. Mr Matters asserted that psychological damage occurring to Mrs Tapia was a criteria the Commission could take into account. There is not a scintilla of evidence in relation to psychological damage at any level which the Commission would be able to quantify. There was no nervous shock. That battered woman's syndrome was never forthcoming. 788 What is of particular concern, however, are the medical reports of Drs Berry and Wallace. They were filed in support of Mrs Tapia's application for Workers' Compensation in about May and June 1998. Both of those asserted that Mrs Tapia is permanently incapacitated for work as a cook and reports suggest she would need to do work of a more clerical and, certainly, sedentary nature. 789 The foundation for the damages claim under s 210 depended upon Mrs Tapia's loss situation. 790 It was in evidence that the application for commutation was successful and Mrs Tapia received approximately $40,000 compensation in relation to her permanent incapacity. That means two things in terms of the quantification of damages in this case. Compensation was determined but there was no notification by the applicant, or her representative, when that, in fact, occurred. It appears an order for compensation was made. Given what the Commission compensates for under s 213 the only head is what the worker may have lost as a result of any victimisation that is found by the Commission to have occurred. Mrs Tapia could not have worked as a cook because of her permanent disability. Therefore, there is no causal nexus allowing compensation to flow for the period claimed arising from her inability to work as a cook. Further, Mrs Tapia has already been compensated for the loss in another jurisdiction. Further, there is a necessary element of concern in relation to asserting two different positions, effectively, contemporaneously. Conspiracy - Consideration 791 The fact of the matter is that Mrs Tapia is seeking compensation in this case on facts and circumstances that are materially different to what was being adduced and for which she has been compensated in another jurisdiction. 792 The evidence suggests that the conspiracy theory was not equally subscribed to by Mr and Mrs Harrison. 793 Mrs Harrison said she had not come to a conclusion that there was a conspiracy involving Mrs Tapia and Mr Matters in February 1998. It was in the last year or so, ie 1999-2000, that she had come to that conclusion. 794 In relation to Mrs Tapia's attitude, she said: Q In fact your conversation with Mr Manias [on 23 April 1998] was about that very thing? A He commented on the fact she [Mrs Tapia] was not co-operating in the kitchen. For some reason or other she was not co-operating. Her attitude just changed. On reflection, and this is our whole case, she came back to work and was very confrontational, did not adhere to the program, did not get along with anyone in the kitchen and just generally caused problems which was not the case as a worker before. She was very good, very co-operative, got along with her co-workers but ever since after 6 January when she attempted to come back and I did not allow her to come back, her attitude just changed and particularly later on. (Transcript p 1656) 795 Mrs Harrison pieced together the idea that Mr Matters was involved in a conspiracy to destroy, not the business, but the credibility of herself and her husband, around December 1999, after her husband had been elected Lord Mayor of Wollongong. 796 In evidence on 27 March 2001, during cross-examination by Mr Matters, Mr Harrison said: … you Honour, I believe that Ms Tapia herself was a victim, as we were. I believe that - he [Mr Matters] asked me a question earlier about a conspiracy theory and I reflected on it in the break why I didn't report it, because I didn't believe Ms Tapia conspired with him. I think she was a victim as we were. He saw her as a vehicle where he could significantly attack us and he did that. (Transcript p 2039) … Q You saw Ms Tapia as some sort of agent, a tool of myself on 16/3 and that is the way you looked at it? A I believed Ms Tapia was genuine in her concern in returning to the restaurant. I also believe she was of the genuine belief there was victimisation because you told her there was victimisation. I believe that was the advice you were giving her. Look, this is a woman that worked in our restaurant. She had a very friendly relationship with me. She gave me books. I gave her - I can't answer questions when whilst I am giving these answers you are making your own comments to intimidate me. Q I am not intimidating you. (Transcript p 2039) … MATTERS: Q If you can just help me with something you said yesterday and correct me if I have got this wrong, but in answer to a question I put to you you said you had rung union officials many, many times. Is that right, is that what you said? A What I said, when I realised that I couldn't get any constructive communication with you and I realised that we had to provide a safe system of work for Ms Tapia, I had gone to an enormous extreme to be able to bring into play other union officials in the belief that it may be able to provide Ms Tapia good representation because I believed that the representation and the advice you were giving her was absolutely incorrect. I believe you manipulated her to believe she had a significant claim against the Lagoon Restaurant. As I said, it was no coincidence that on 13 March I received judgment against you in the Local Court for which you threatened to destroy me in the Industrial court and three days later we had a meeting with Ms Milne in which a subsidiary of the South Coast Labor Council was acting as the rehabilitation provider. (Transcript p 2051) 797 On 17 May 2001, Mr Harrison said that Mrs Tapia had given an explanation on 19 April 1998 to Mrs Harrison as to the words in Sirijovska Statement not really being what she meant but were Paul Matters' words. The Harrisons believed that explanation and still believed it. "As far as Mrs Tapia is concerned she probably did form the view there was victimisation but only because of what you put in her mind. You manipulated her, you orchestrated all that and you directed it and you are still directing it". (Transcript p 2249) He was asked: Q Mr Harrison, did you expect to use Mrs Harrison's statement in the Sirijovska matter? A Mr Matters, we believed that the allegation was withdrawn, I didn't form any opinion but now you ask me I didn't have an expectation that all of a sudden she would withdraw her statement in the Sirijovska matter. The explanation she gave us or gave Vania and me was that allegation was not made by her but by you. It was made by you, Mr Matters and I believe that was the case so we were not going to take any punitive action against Ms Tapia, even to this day we have no animosity toward her because we believe it is being orchestrated by you, it is you who had directed and orchestrated this. (Transcript p 2250) 798 On that same day, in answer to a question from Mr Matters, Mr Harrison said "She [Mrs Tapia] is an innocent victim". He later told Mr Matters: A I believe you used Mrs Tapia ruthlessly to foster your own vendetta against myself, Vania and the restaurant and Nick, that is what Mrs Tapia meant to you, it shows you weren't interested in the client you set out in good faith to represent and I'm sorry she has not woken up to it. (Transcript p 2307) 799 Mrs Tapia's own attitude to the proceedings was that expressed on 2 November 2001, when she became distressed in Court having mentioned how she missed her family, and how much longer it would be until the case finished. She explained why she persisted with the proceedings: WITNESS: To be honest with your Honour, I have nothing to hide but I do not want this case to keep going longer and longer. I miss my family. That mean that I am going to be another year in this country. (Witness upset) HER HONOUR: Do you want a break, Mrs Tapia? WITNESS: I don't want to stay longer here. I already have not seen my children for a year. Will I be another year? I could go away and let everything go to hell but I think I have got a responsibility and I have got an obligation. I have to show that I have not lied. … I have not lied and I know that. God knows that I have not lied. A lot of people sit here and I cannot understand how they lie. They lie not just to you but they lie to God. I know a lot of things - but I have proved that I have not lied but I cannot stand this any more. I miss my children. I try to deal with it every day and every day they send me back to things I have tried to put behind me and this is going on for years. I cannot recall exactly and I don't want to make a mistake. They want to put me as liar because I cannot remember properly. There are some things I will never forget where they say what they were saying, but there are things where I get confused and it has been a long time where things happen. … WITNESS: Your Honour, I would like you to accept my sincere apology for breaking down before. It has been very hard for me to deal with this. I have been trying to have a very strong will to keep going. I would like to clarify that I am trying to do my best and I would like to say that I have never ever been used by Paul Matters and I consider myself, even if sometimes I break down, that I have a very strong personality and will. … But too many ramifications they come up. I would never allow anyone to use me. I think I have a very strong point of view, what my rights are and what is fair and what is right and wrong. I know what I am trying to do, which is to prove that some mistake had been done, that they are very wrong issues. And it is not just for me, it is for everyone who has been working, all the workers and all the apprentices, not just me who is going through this. And it is to prove. … I know that I have to accept responsibility for my action, and I have, and that is the reason that I stay here, because I have a matter of responsibility to finish. I am not an irresponsible person, that I just do things without thinking. … I want to be able to keep growing and learning and, as I said, I do not hate them and do not wish any bad to them, but they make a mistake. When I make a mistake I apologise and say sorry. … WITNESS: No, I am not saying that. I am not saying that they are bad people, I just say that in my particular case, nothing to do with Paul Matters, nothing to do with their problem - because as a union official or people who work in politics, things come between them. But nothing has affected me personally. I have never been a coward, but I have been accused of cowardice. I have been denigrated and I have been humiliated, and they just worry about their reputation. (Transcript pages 2709 - 2713) 800 It was not in issue that Mrs Tapia had been and was a diligent and valued employee. 801 Mrs Tapia was antagonistic to the Harrisons before she met Mr Matters. After January 1998, Ms Tapia's dealings with the Harrisons were made in the context of her belief that they were stealing from her. When she had been told by the LHMU in January 1998 that their records did not show her as being a member, she had thought that the Harrisons had deducted her union fees but not passed them on to the union. She said she had not taken the matter up with the Harrisons because her relationship with them was very difficult at the time. 802 When Mrs Tapia returned to the Lagoon on 30 March 1998 she held views not known to Mr and Mrs Harrison. She not only believed that they had stolen union dues deducted from her wages by not passing them on to the LHMU. She also believed, whether she originally thought in terms of "victimisation" or not, that she had been badly treated by Mrs Harrison when the latter refused to let her start back at work on 6 January 1998. She also believed that on 16 March she had been given an ultimatum to withdraw her witness statement in the Sirivjovska matter. 803 Putting aside any allegations about Mr Manias, those factors alone could have caused the change of attitude Mrs Harrison said she noticed between 30 March and 23 April. 804 However, Mrs Tapia's feeling that the relationship with the Harrisons was "very difficult" was one sided. It was common ground that until January 1998 the relationship between Mrs Tapia and the Harrisons had been amicable. Mrs Tapia accepted that when the Harrisons had received a copy of the Sirijovska Statement in March that was the first knowledge they had of her accusations and "they were very upset". 805 The explanation that Mrs Harrison gave to employees to fob off their complaints against Mrs Tapia, that she was anxious to get back to full duties and that things would improve once the rehabilitation period was completed, could also very well have had a substantially valid basis. 806 Dr Wallace, an orthopaedic surgeon, who examined Mrs Tapia on 23 March 1998, advised Maurice May & Co, her solicitors, in a letter dated 4 May 1998, that: At present I do not believe that she is fit to return to her pre-injury duties at work as a Cook. She would not be fit for activities requiring repetitive bending, squatting, crouching or kneeling at her right leg, standing in one position for prolonged periods, repetitive lifting above 15 kilos, working in confined spaces, at heights or on ladders, or prolonged driving of a motor vehicle. … Unfortunately she will be unfit to return to her pre-injury duties at work as a Cook in the long term. She would be best suited to retraining in work involving only light physical activity or clerical duties on a full time basis with due consideration given to the restrictions on her activities detailed above. (That letter was received in QBE's office on 19 May 1998.) 807 That prognosis was confirmed by Dr Neil A Berry, specialist general surgeon, in a letter dated 25 August 1999 to Mrs Tapia's solicitors: On the basis of todays examination this patient is permanently unfit for her previous duties and for any activities that require 8 to 10 hours of standing in a shift. She would be fit for lighter sedentary duties which allowed frequent posture changes and did not require her to climb up and down stairs, ladders and slopes. 808 In cross-examination of Mrs Tapia, Ms Stubbs suggested that Mrs Tapia knew of the contents of Dr Wallace's report shortly after 8 May. The point that Ms Stubbs was exploring was whether Mrs Tapia had told Ms Milne of Dr Wallace's opinion as to her fitness before Ms Milne wrote her closure report dated 1 June 1998. Mrs Tapia said she did not recall telling Ms Milne of that opinion. 809 Ms Milne's case closure report on 1 June 1998 said Mrs Tapia was, at that date, fit to return to full duties as certified by Dr Slater. 810 In relation to the restrictions still placed on her work activities (lifting, bending, squatting, crouching etc), not all of which words she understood, Mrs Tapia said "I manage. I just look after myself. I manage. I always manage to do if I have to do my job, I always push myself to do the best I can". (Transcript p 427) (Mrs Tapia said that as at 28 February 2000 she still had occasional difficulties with the above listed activities.) 811 Ms Stubbs submitted that the doctors' evidence showed that Mrs Tapia was not able to continue to work on a full time basis, as to the duties she had previously done, but Mrs Tapia was alleging victimisation because she was not able to. 812 Mrs Tapia was advised of what was in Dr Wallace's medical report as to her inability to continue work as a cook in May 1998. These victimisation proceedings were initiated in March 1998. The report could not therefore have influenced Mrs Tapia in that regard. 813 A proper understanding of what was said by the doctors in 1998 and 1999 could have been expected to influence the course of these proceedings. However, I would not be confident that Mrs Tapia fully understood their import in relation to her case. The reports were tendered into evidence by Ms Stubbs on 30 November and 1 December 1999. It is not clear from the transcript whether Mr Matters had seen them before. 814 However the one feature that stood out in all of Mrs Tapia's evidence was her desperation to work. Even though Dr Wallace on 4 May 1998 had said she could never return to her pre-injury duties but would need to be retrained, she had, in accordance with arrangements made by Mr Matters and Ms Milne, worked for at least 6 months as a casual in the kitchen at the Thirroul Leagues Club. She later worked for some months at another club on the same basis. Obviously any retraining would take time, but, if it had not been for the intervention of Mr Matters she could have been working at the Lagoon until the insurer made the appropriate arrangements. 815 The date the workers compensation proceedings concluded is not known to the Commission but the proceedings were still on foot at the end of 1999. 816 Mrs Tapia's understanding of the events of 1998, and her motivation in pressing these proceedings was explained in the course of cross-examination on 28 February 2000: WITNESS: He [Mr Matters ] didn't put any money [in the original application]. I don't remember that we put any money. We just put what the problem was. Why was I unfair dismissal. I was kicked out. (Transcript p 477) ... Q That was a fairly important matter for you, was it not, the amount of money you may get if your claim is successful? A The money does not give me anything, it is the point. (Transcript p 479) ... Q You just said in evidence a little while ago that money wasn't important to you, that it was a matter of principle? A Yes, it is very much indeed. Do you think I would have come for money - I would have settled for $10,000? I settle for that because they owed me a public apology and that was the main point and -- (Transcript p 480) 817 In relation to that last answer, I note that there was a delay in coming to the 1999 settlement, because of Mrs Tapia's concern as to a form of words that was to be used in relation to her understanding of the allegations made by her. 818 Mrs Tapia vigorously stood up for herself. On 23 April when Mr Harrison responded to Mrs Harrison's call to come down to the Restaurant, Mrs Tapia told him that Mrs Harrison had started the problem, advising him that "If you were man enough you should put your trousers on and stop this situation a long time ago". (Exhibit 6 par 274) … "If you love and respect your wife you wouldn't under any circumstance allow to … [Nick Manias] to insult your wife in front of the staff". The "insult" referred to was apparently Mr Manias's constant swearing. 819 Mr Matters at one stage of the proceedings advised that he proposed to adduce evidence from an expert witness as to the "battered wife syndrome". Presumably he intended to make some comparison with Mrs Tapia's insistence or willingness to go back to working alongside Mr Manias. As the evidence shows, there was not the slightest likelihood that he could have made good that proposition in relation to Mrs Tapia. (The respondent foreshadowed opposition to the calling of such evidence, but eventually Mr Matters did not take that avenue.) 820 In an answer to Ms Stubbs re Rosa: Q. Just in relation to the supplementary evidence you have given, in relation to the incident where you allege Mr Harrison assaulted you in the kitchen, where he put his hand on your shoulder and pulled you around, you said that there were a number of people in the washing up area? A. I didn't say in the washing up area. You are not listening. I said Roza was in the washing area, the rest of the staff was in the kitchen area. (Transcript p 393) 821 Mrs Tapia got angry with Ms Stubbs during cross-examination "because you are mean". Ms Stubbs was following an unexceptional line of cross-examination and Mrs Tapia took it that she was blamed for an omission from her witness statement as to her claim of being punched by Mr Manias. Mrs Tapia told Ms Stubbs that she was "mean, sarcastic and inconsiderate. You are putting as if it is not happening … you weren't there, woman; it did not happen to you". 822 Ms Milne's description of Mrs Tapia was that "Ms Tapia is somebody who speaks very strongly about her opinions and expresses openly her anger about difficult situations or conflict situations". 823 At a meeting on 30 April at the QBE Insurance office, Ms Milne noted that Mrs Harrison had raised several areas she felt were problems in the workplace: ... A. At that meeting Mrs Harrison raised several areas she felt were problems in the workplace. She said Narda works very noisily, clangs and bangs pots and pans which bothers other workers, she speaks and talks to other workers too much, she chants in Spanish and swears in Spanish, she does not take direction from the people she should take instructions from in terms of chefs and the like; she argues with Nick Manias or the chef in the kitchen, and that disrupts other workers. I think that's about the lot. (Transcript p 550 29/2/00) 824 Mrs Tapia said she had refused to talk to Mrs Bokulic earlier on 30 March when Mrs Harrison was delayed about her return to work "because this meeting should be with my employer and my rehabilitation officer", "not with another employee". 825 Mrs Tapia during the course of her evidence presented as possessing fierce independence. Her evidence showed that she gave a spirited defence of her position on occasions she thought that such defence was called for. She was also very sensitive to behaviour that, to her eyes, belittled her, eg the non-completion in its exact terms of the agreement to settle. 826 My assessment of Mrs Tapia's competency in English as stated during side submissions on 1 December 1999 was that "Ms Tapia does have a certain understanding of English but she does not understand all of it and she has a surprising understanding of some areas, and a non-understanding, which I accept is genuine, in other areas". (Transcript p 459) 827 Later on 1 December 1999, after my comment set out earlier and following some difficulties over a lengthy period of cross-examination of Mrs Tapia, Ms Stubbs suggested that perhaps an interpreter was needed. That suggestion went no further when the matter of who would be responsible for payment of the interpreter was raised. 828 In her emotional address to the Commission on 2 November 2001 Mrs Tapia did not specify what were the particular matters concerning which she had to prove that she had not lied. If she was referring to her allegations against Mr Manias in the Sirijovska Statement, it will not be decided in these proceedings whether those allegations were or were not true. Although Mr Matters appeared to labour under a misapprehension in that regard at the outset of proceedings, that point was clarified in the Commission's decision of 10 February 1999. 829 Mrs Tapia denied that she lied as to any of the evidence she had given to the Commission. 830 The problem is that events she was describing could not, in the very words she described them, have been correct. She insisted for instance, that every day since she started back on 30 March, she had been forced to spend six hours each day sitting at the back peeling onions and potatoes. In relation to that claim, the first week she was back she only worked four hours a day. In that first week, the programme did not call for her to sit out the back. Full reasons why that statement could not be true are set out earlier. 831 In another, Mrs Tapia said that the altercation with Mrs Harrison in the dessert section on 18 April had occurred at 9.30 pm after she had spent six hours, including the hours of 7 pm to 10 pm, peeling potatoes and onions. 832 Mrs Tapia had a mistaken understanding of the terms of her rehabilitation programme provided. Until 23 April, she was to spend half of each shift, ie 1 and ½ hours, sitting at the back, not one half hour as she said. It was not her decision to decide whether she would sit or stand. Those mistaken beliefs coloured her whole attitude after 30 March to the actions of Mr Manias and Mr and Mrs Harrison. She also believed that Mr and Mrs Harrison had been stealing from her by not remitting her union dues. She believed her perceptions of those actions was the truth. Those perceptions were the ones passed on, not only to Mr and Mrs Harrison, Mr Manias, other employees, Ms Milne and Mr Matters, but also to the Commission in her evidence. 833 In the Macquarie dictionary, 2nd ed (1991) the first definition of "lie" is: a false statement made with intent to deceive, an intentional untruth; a falsehood. 834 A necessary element of lying is that there is an intention to deceive. 835 As discussed in the course of this judgment, some evidence deposed to by Mrs Tapia could not have occurred as she claimed, but in my view, Mrs Tapia fervently believed everything she said, contradictory as it may have been in its own terms. 836 I could not describe her as a liar, as that term is defined. 837 The conspiracy is alleged to involve Mrs Tapia and Mr Matters. 838 "Conspiracy" is described in part, in "Words and Phrases legally defined" (3rd ed 1988) as follows: Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the court. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other. (11 Halsbury's Laws (4th edn) para 58) 839 I cite only one of the many references then set out: It must be a self-evident proposition that one man acting alone cannot conspire and therefore cannot be guilty of conspiracy. It is the very essence of a conspiracy that a person agrees with some other person or persons. R v Shannon [1974] 2 All ER 1009 at 1029, HL, per Lord Morris of Borth-y-Gest 840 In response to a question from Ms Stubbs as to whether Mrs Tapia would describe herself as an intelligent woman, she agreed "pretty much. I am not super woman but I am not stupid at all". I concur with that self-assessment. 841 In my view, it is evident, from the evidence I have set out earlier, that Mrs Tapia is not a person who would consciously be manipulated as to her actions by someone else. She had, however, minimal knowledge or understanding of either the New South Wales industrial or legal systems. She relied on Mr Matters for advice in both areas, and received no countervailing advice from anyone in respect of what she was told. I find that Mrs Tapia genuinely believed that she had been victimised and that she followed the advice given her by Mr Matters in good faith. 842 As early as 30 November 1999, I made the following observation in the course of some side submissions by Ms Stubbs and Mr Matters: HER HONOUR: I was certainly from the start aware of the difficulties between Mr Harrison and Mr Matters . There have been allegations from both sides. My concern is Mrs Tapia is caught perhaps in the middle in one sense, but certainly I am concerned that her particular situation is not worsened by something that is outside her control. (Transcript p 445) 843 The evidence is incontrovertible that Mr Matters fostered a deep enmity for Mr Harrison in particular. He not only did nothing positive to resolve Mrs Tapia's victimisation claim, one framed by himself, but, on the evidence, frustrated resolution of that claim in that, for instance, he made no attempt to contact Mr and Mrs Harrison, and did not follow up, in relation to Mrs Tapia, the Deed of Agreement reached, with the assistance of outside union officials, on 26 May 1998. 844 However, the fact of such enmity is not sufficient to ground a finding that Mr Matters sought to conspire with Mrs Tapia to pursue this victimisation claim against Mr and Mrs Harrison and Mr Manias. What has to be examined is whether there were valid bases for Mr Matters, prima facie, to believe that Mrs Tapia had suffered victimisation. 845 Although the SCLC formally took up the cause of Mrs Tapia at the instigation of Mr Matters, and continued to endorse that cause later, there was an understandable basis for doing so, independently of Mr Matters' own attitude, though it was probably influenced by his interpretation of events. 846 Mrs Tapia had sworn a witness statement to be used in proceedings pressed under the imprimatur of the SCLC. 847 On the understanding of Ms Milne, the Restaurant had refused on 16 March 1998 to start Mrs Tapia's return to work programme unless she withdrew her statement and for that reason Mrs Tapia had been deprived of work until 30 March 1998. 848 Mrs Tapia had been told by Mr Manias that she could lose her job if she pressed the Sirijovska Statement. 849 Mrs Campbell was a member of the SCLC Executive and had been called to assist Mrs Tapia at the SCLC when she was distressed after Ms Kostovska had brought her back there on 23 April 1998. Ms Kostovska described Mrs Tapia as "sobbing uncontrollably in the car". Mrs Campbell said that Mrs Tapia had been crying uncontrollably and Mrs Campbell comforted her until Mr Tapia arrived. It was more than half an hour before they could even talk to her to find out what happened. 850 Mrs Campbell had a telephone conversation with Mrs Harrison who unequivocally confirmed to Mrs Campbell that Mrs Tapia still had a job at the Lagoon. Mrs Campbell had told Mrs Tapia what Mrs Harrison had said but Mrs Tapia "didn't make any comment at all. She just kept saying that George had told her she was finished". Elizabeth Kostovska had told Mrs Campbell that "George" had said he did not want Mrs Tapia in the restaurant any more, evidence that was confirmed by Ms Kostovska in oral evidence. 851 Mrs Campbell described what happened as she left: A I can recall very clearly what I said to you, Mr Matters. I pointed at him [Mr Matters] and I said, "Don't you dare let this woman down, don't you dare let this woman down. She is not to be thrown to the wolves. She is to be looked after and don't you dare throw her to the wolves." I was very strong about it. (Transcript p 2669, 2670) ... ... I said to Paul, "she has to be supported and she has to be looked after." I cannot repeat what else I said, I do not think it is fit for transcript. (Transcript p 2670) 852 The SCLC continued to be involved to the extent that when Mr Matters attended a conference in Hobart, Mr Welch, another officer of the SCLC had been prepared to take over the running of Mrs Tapia's case before the Commission in Sydney for that day. 853 There cannot be a conspiracy involving one person only. 854 I find that the evidence does not support the respondent's claim of conspiracy between Mrs Tapia and Mr Matters. Allegations by Respondent against Mr Matters 855 In taking Mr Matters through a number of incidents, Ms Stubbs said it was the respondent's case that Mr Matters had used the proceedings as a forum to take every opportunity to denigrate and damage the reputation of Mr and Mrs Harrison. Mr Matters said he had not: "that is an exaggeration". 856 Mr Harrison's views of Mr Matters were vividly demonstrated in the witness box when he showed how he had on one occasion told Mr Matters he was "evil" at the same time using the age-old symbol of fingers in the sign of a cross to ward off evil. 857 Between 1991 to 1995, Mrs Harrison said she really did not have any sort of a relationship with Mr Matters. She saw him as a friend of her husband and a customer of the restaurant. In respect of the relationship between Mr Matters and the business, Mrs Harrison thought Mr Matters was bad for business because there were a lot of her clients who really did not agree with everything Mr Matters did. She denied that Mr Matters had ever attempted to assist from time to time with some problems in the Restaurant. Mrs Harrison had two concerns with Mr Matters in the running of the business - his threat to black ban the restaurant and cut off her liquor supplies and his interference with the staff and how he conducted himself there. 858 As I understand Mr Matters' response to the claim of his threat to cut off the liquor supplies, after studying many pages of his cross-examination of Mrs Harrison, it was not to deny that he had made such a threat but he was seeking confirmation that it had not been implemented. Visit by George Harrison to SCLC on 21 April 1998 859 Mr Harrison said that during the period 27 March 1998, when the victimisation claim was filed, to 17 April 1998 when the claim was mentioned before the Commission, Mr Matters did not serve the documentation on Mr and Mrs Harrison, contrary to the requirements of the Commission's Rules. After several futile telephone calls to Mr Matters, Mr Harrison went to the SCLC on 21 April 1998 to try to obtain documents the Commission (Glynn J) had, on 17 April 1998, directed Mr Matters to serve on the respondent. They were needed in relation to a Notice of Motion the Commission had said had to be filed by the end of that week. Despite several telephone calls from the respondent, Mr Matters had refused to serve the documents. 860 At the SCLC, Mr Matters had told Mr Harrison to get out because he was going to sue him for trespass. Mr Harrison said he responded that it was a public place. Mr Matters was speaking to him in a very aggressive tone, pointing at Mr Harrison and walking fast towards him. 861 Mr Harrison walked out. The documents were not served on him. 862 What happened when Mr Harrison went to the SCLC to try to get those documents was described by Mr Matters in cross-examination: STUBBS: Q Mr Matters, it is in evidence that you did not serve documents personally, but you were at the Leagues Club [sic: SCLC] when -- A When George Harrison came in. I was there. Q And Mr Harrison asked you for copies of that document for service and you did not give them to him, did you? A No, I did not give them to him then. Q Not only did you not give them to him, but you said to him, "You are a joke, you are a scumbag employer. You exploit people and sack women. Keep off this property, you are trespassing here, you are not welcome." You said those words? A I said something like that, but not those words, no. Q Words to that effect? A Well, I said other things as well. HER HONOUR: Q You are saying you did not say that, or you said those plus other words? A I said words to that effect plus other words. (Transcript p 2526) … Q You walked towards him in a threatening manner, he became fearful and he left the premises? A He left, that's true. I am not agreeing that he was fearful. Q And you did not give him the documents, did you? A Not on that day, no. Q And in fact, and the Court record will show, the Harrisons subsequently approached the Commission and requested the Commission to provide them with a copy of the initiating process? A I don't know if that is the case. (Transcript p 2527) 863 Mr Matters did not put to Mr Harrison Mr Matters' version of that conversation. The Dribbus Incident 864 Mr Dribbus, a solicitor employed in Mr Harrison's office, described an incident on 7 May 1998 where he had attempted to serve an unsealed statement in the Sirijovska matter on Mr Matters. The statement was unsealed but Commissioner Murphy had advised that it should be served that day. 865 Mr Harrison had tried to serve the documents earlier. 866 Mr Dribbus had been asked by Mr Harrison to serve the document on Mr Matters. Mr Dribbus understood Mr Harrison had had some contact with Mr Matters. It was difficult and Mr Harrison did not want to actually meet Mr Matters face to face. Mr Dribbus said he probably had some neutrality in the relationship. 867 At the SCLC, the lady in the front office took the documents away. In the words of Mr Dribbus (Exhibit 102) what then happened was that: Shortly afterwards, Mr Matters walked in to the reception area. His face was red and his lips were quivering. He looked very angry. He had the document in his hand and he walked toward me very quickly. Mr Matters walked up very close to me, approximately 12 inches away. As he approached me, he waved the documents and he yelled: "Take this back and get it sealed. You can just get out of here and piss off or I'll kick you out". I started to walk toward the door to get away from him. I did not turn my back on him because I believed he was about to put his hands on me and manhandle me out the door. That is why I walked toward the door. He waved the document at me from about a distance of one foot. To prevent being assaulted I took the document back from him. … … Mr Matters then walked quickly toward me. He was agitated and as he was already standing close to me I had to move to avoid contact with him. I moved toward the door to get away from him. He was very angry and I thought he was about to hit me or put his hands on me so I kept walking away. He followed me physically very closely and slammed the door violently on my heel when I left. I estimate he was standing approximately 6 inches behind me as I exited the premises and "crowded" me out of his office. I had to leave to avoid being pushed out and I did not hand to [sic] documents to him because I was concerned that he would react violently. I was not able to serve the document upon him and I returned to my legal practice with it. 868 Mr Dribbus, in cross-examination by Mr Matters said he had a perception that he would be hit if he did not take the document back. Mr Matters frightened him and he took the document back. Mr Dribbus did not want to do anything else to perhaps upset him any more than he was. Mr Dribbus did not turn his back on Mr Matters until he was leaving the office. He had to walk past Mr Matters to get out the door and Mr Dribbus was in fear of him. That was despite the fact that Mr Dribbus was younger and bigger than Mr Matters. 869 Mr Matters was well aware of the effect he was having on Mr Dribbus. Mr Matters asked him in the course of cross-examination whether Mr Dribbus was aware that Mr Matters had had a meeting that day at QBE with Mrs Harrison. In response to an objection to that question, Mr Matters said it was going to be his submission that Mr Dribbus's conduct was quite provocative under the circumstances: "I was going to ask was Mr Dribbus aware that there had been a meeting and discussion earlier that day - in other words, was he aware that he walking into a hornet's nest". (Transcript p 1921) Mr Matters put to him that: Q In hindsight, I put it to you it would have been more prudent simply to leave the document at the front desk with a message that the document was to be later served with a sealed -- OBJECTION STUBBS: Mr Dribbus has already answered that question and he said that there were directions made that he had to be satisfied that the document found its way into Mr Matters' possession, and that it was not simply left at the front desk and did not find its way into Mr Matters' possession. That was his evidence. That is what he understood his responsibilities were, to serve the documents that way. That has already been answered. (Transcript P 1921) 870 The time from when Mr Matters walked into the reception area waving the documents until Mr Dribbus was "crowded" out of the office was about twenty or thirty seconds. Mr Dribbus said he did not have any opportunity to explain why the document was being served as it was unsealed, and he would have been frightened to raise any opportunity. What made Mr Dribbus frightened of Mr Matters was the tone of his voice, the speed with which he walked, his lips quivering, he was angry. 871 In relation to the incident with Mr Dribbus, Mr Matters said Mr Dribbus was greatly exaggerating because he worked for Mr Harrison and for that reason Mr Dribbus would compromise his evidence. Mr Matters said he refused to accept the unsealed documents even though Mr Dribbus said the Commission had authorised their being so served. He did reject the document and he handed it back to Mr Dribbus forcefully. 872 Mr Dribbus' description of Mr Matters as physically crowding him and effectively crowding him out of the door at the SCLC has overtones of Ms Mardon's description of Mr Matters "circling" behaviour to her outside the Commission court room at Wollongong. 873 Mr Matters did not deny the incident. He said that Mr Dribbus had "exaggerated" it for a reason that accused Mr Dribbus of quite unethical behaviour as a solicitor and officer of the court. 874 I accept Mr Dribbus' version of events. Boris Durusovksi Incident 875 Mr Durusovksi first met Mr Manias in 1974 and Mr Matters in 1992. He confirmed that Mr Manias was a big gambler. He occasionally stayed at Mr Manias' flat and he remembered Mr Matters staying there too. 876 Mr Durusovksi said his friendship with Mr Manias was broken around 1993 when Mr Matters had advised Mr Durusovksi to take Mr Manias to court in relation to the sharing of a $100,000 win on a scratch lottery ticket. It would seem that after Mr Durusovski had told Mr Matters of the problem as to the sharing of a $100,000 win on a scratch lottery ticket in 1993, Mr Matters had advised him to see a solicitor. It was the solicitor who had advised him to take court action, but it was Mr Matters Mr Durusovksi blamed for the breakdown in the friendship with Mr Manias. After talking to Mr Harrison in the street, the case was dropped sometime in 1993 or 1994. 877 Mr Durusovksi said that in July/August 2000 Mr Matters had told him that Mr Matters could get him a lot of money for all the work he did at the Lagoon. Mr Matters had said that he had the Harrisons in court now and was "squeezing them hard". Mr Matters said he would act for Mr Durusovski for nothing and would get him money from the Lagoon. Each of the allegations was put by Mr Matters to Mr Durusovksi as not having happened. 878 Mr Matters accepted having two meetings with Mr Durusovski, one in 1993 and the second in 2000. He denied the alleged locations of the meetings, and in the second case the subject matter. That was Mr Matters' alleged attempt to encourage Mr Durusovski to take action against the Harrisons for unpaid/low paid work. Although Mr Matters had allegedly given Mr Durusovksi his telephone number and invited the latter to call him, Mr Durusovksi had not done so. 879 Mr Durusovski had lived in Australia for 32 years and was comfortable with his spoken English, though not with reading it. In my view, it was evident that he did have problems with his spoken English, especially in the formal court setting. Mr Durusovski was not an impressive witness. He was defensive and hazy in his evidence, not remembering what he was not interested in. As he said "can't recall clear". I was not able to accept his version of the first conversation in Mr Matters' office. However, that would not cause his evidence as to the alleged offer by Mr Matters to be dismissed out of hand. Although it is similar to that given by Mr Arnawa, I do not explore it further as it does not advance the respondent's conspiracy claim and the poisonous relationship between Mr Matters and the Harrisons is acknowledged by Mr Matters. Mr Gede Arnawa Incident 880 Mr Arnawa, a chef, described Mr Manias as executive chef, there at the Lagoon Restaurant seven days a week. He described a conversation with Mr Matters sometime early in 1998 when Mr Matters, hearing he had left the Lagoon, said to him "if you want do so something against the Lagoon, I can do it for you for free". Mr Arnawa did not know what Mr Matters was going to do. He got upset and walked away. 881 Mr Matters' recollection of his conversation with Mr Arnawa was different from that of Mr Arnawa. He denied he had approached Mr Arnawa to try to solicit another action against the Lagoon. 882 I accept Mr Arnawa was an honest witness. His action in walking away was prudent. 883 I note the similarity of his evidence to that of Mr Durusovski. I note also that the four cases in which Mr Matters was involved, all concerned employees of the Restaurant, coverage of which fell to the LHMU. It was clear from the evidence how he had come to take up Mrs Tapia's case, but not the others, though he claimed Mr Gogich of the LHMU had asked him to take up the cause of Miss X. 884 However, as already noted in relation to the evidence given by Mr Durusovski, Mr Arnawa's evidence does not take the conspiracy claim any further. Conclusions Victimisation Claims - Conclusions 885 The problems that arose between Mrs Tapia, Mr and Mrs Harrison and Mr Manias between 30 March and 23 April did not arise because of the Sirijovska Statement as such, although the allegations made in it, undoubtedly caused undercurrents in the relationships. Nor did those problems arise because Mrs Tapia had made her victimisation application. 886 The problems arose because Mrs Tapia's interpretation of her rehabilitation programme was incorrect in many respects, for instance as to how long she had to sit at the back during each shift and whether she could decide whether she would sit down or get up. 887 The intrusion of the Statement into the events of 23 April was almost incidental and occurred because of Mrs Tapia's repeated refusals on that day to take instructions from Mr Manias, the same head chef from whom she had insisted on 30 March 1998 she get all her instructions as being proper to her status in the kitchen. 888 Until then, on the basis of Mrs Tapia's own evidence, it can be seen that, despite the many difficulties caused by Mrs Tapia proceeding according to her misunderstanding of the rehabilitation programme, she was treated with kid gloves by Mr and Mrs Harrison and Mr Manias from 30 March until her final refusal to take orders from Mr Manias on 23 April. That was demonstrated on 18 and 19 April when both Mr and Mrs Harrison walked away from quite serious confrontations with Mrs Tapia. 889 I accept that their concerns went to the allegations in the Sirijovska Statement, not to the Statement itself, nor did they in any way, either deny, or seek to frustrate, Mrs Tapia's right to give evidence in any form in proceedings before the Commission. Findings 890 The Commission finds: 1 There was no victimisation in terms of s 210(g) of Mrs Tapia by Mr or Mrs Harrison or by Mr Manias; 2 There was no conspiracy between Mrs Tapia and Mr Matters in relation to the bringing of this application to the Commission. ******************************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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