Industrial Relations Commission of New South Wales CITATION: Rai, Lata, Rodriguez and Khan v The Hammond Care Group [2006] NSWIRComm 1106 APPLICANTS Barsha Rai Jasmin Lata PARTIES: Millie Rodriguez Vijay Khan RESPONDENT The Hammond Care Group FILE NUMBER(S): 6117, 6118, 6119 & 6120 of 2005 CORAM: McLeay C CATCHWORDS: Unfair dismissal, assistants in nursing, aged care, summary dismissal, allegations of sexual harassment of resident, alleged breach of mission statement and philosophy, seven witnesses, confusion about dates, statements changed, one statement retracted, respondent failed to check particulars raised at interview, original witness discredited, applicants required by respondent to prove innocence, onus on respondent to prove serious misconduct not fulfilled, reinstatement or re-employment impracticable, compensation ordered LEGISLATION CITED: Industrial Relations Act 1996 Sangwin v Imogen Pty Ltd (unreported, IRCA, 73/96 8 March 1996) Bi-Lo Pty Ltd v Hooper [1992] 53 IR 224 Byrne v Australian Airlines (1995) 185 CLR 410 Peter John Paris and Bankstown City Council [1999] NSWIRComm 10 Staal and others v WSAHS New South Wales Fire Brigade Employees' Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440 Antonakopoulos v State Bank of NSW (1999) 91 IR 385 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 71 Franklins Limited v Webb (1997) 72 IR 257 Wang v Crestell Industries Pty Ltd and Anor (1997) 73 IR 454 CASES CITED: Waterside Workers Federation v Commonwealth Steamship Co (1967) CAR 1 Briginshaw v Briginshaw (1938) 60 CLR 336 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and others (1992) 110 ALR 449 Gooley v Westpac Banking Corporation 59 IR 262 Standley v Electronics Boutique Australia Pty Ltd, IRC 4516 of 1998, 18 March 1999 Shop, Distributive & Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 Humphries and Cootamundra Ex-Services and Citizens Memorial Club Ltd [2002] NSWIRComm 225 Electricity Commission of New South Wales t/as Pacific Power v Nieass and Others (1995) 81 IR 46 Ferrett v Department of Ageing, Disability and Home Care [2006] NSWIRComm 177 Commissioner of Police v Dobbie [2006] NSWIRComm 285 Griffith City Council v USU (on behalf of O'Hara) (No 2) [2006] NSWIRComm 302 D & R Commercial Pty Ltd v Flood (2002) 113 IR 343 HEARING DATES: 27/06,06, 28/06/06, 30/06/06, 03/07/06, 07/09/06, 08/09/06 DATE OF JUDGMENT: 10/10/2006 APPLICANTS Mr J Elder, agent John Elder Consultancy Services for applicant Barsha Rai Ms C Howell of counsel Ms J Moffit New South Wales Nurses' Association LEGAL REPRESENTATIVES: for applicants Jasmin Lata, Millie Rodriguez and Vijay Khan RESPONDENT Mr R Warren of counsel Solicitor Mr G Ward Toomey Pegg Drevikovsky DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: McLEAY C 10 October 2006 Matter No IRC 6117 of 2005 Barsha Rai and The Hammond Care Group Application by Barsha Rai re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 Matter No IRC 6118 of 2005 Jasmin Lata and The Hammond Care Group Application by Jasmin Lata re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 Matter No IRC 6119 of 2005 Millie Rodriguez and The Hammond Care Group Application by Millie Rodriguez re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 Matter No IRC 6120 of 2005 Vijay Khan and The Hammond Care Group Application by Vijay Khan re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1106 1 These are applications for unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"), made by Barsha Rai, Jasmin Lata, Millie Rodriguez and Vijay Khan. Each of the applicants was employed as an Assistant in Nursing ("AIN") on a permanent part-time basis by the Hammond Care Group ("HCG") until her dismissal on 8 November 2005. 2 HCG is a not-for-profit non-denominational and independent Christian organisation specialising in aged care and dementia services. It provides care and services to older people in the community and in residential facilities with a particular commitment to the financially disadvantaged. The applicants were employed at Bond House in the Hammond Village in Hammondville. Bond House is a 121 bed hostel and nursing home incorporating Shaw Home, Poate Home and Jones Hostel. The incidents on which the dismissals were based were alleged to have occurred in Poate Home. 3 Vijay Khan commenced employment with the respondent in September 1998 and had seven years service. Jasmin Lata commenced employment in April 1999, Milagro Rodriguez in August 1999 and Barsha Rai in September 1999 and each had over six years service with the respondent. Each of the applicants had an unblemished record before the incidents leading to summary dismissal by the respondent on 8 November 2005 for serious and wilful misconduct. Both Ms Howell for Ms Khan, Ms Lata and Ms Rodriguez and Mr Elder for Ms Rai submitted that the dismissals of their respective clients had been harsh, unreasonable and unjust. 4 Mr Warren for the respondent submitted that, in the face of serious accusations, the applicants' abject denial of any knowledge of the inappropriate behaviour, as opposed to the force and clarity of the witnesses against them, HCG had no choice but to terminate the applicants' employment. 5 As a matter of practice, the letter of appointment of employees at HCG refers to the Code of Conduct which is provided as an attachment to the letter of appointment. The Code of Conduct incorporates the mission of HCG which is: "To nurture dignity and improve the quality of life for older people and dementia sufferers, especially those least able to provide for themselves." The complaints and the investigation 6 The respondent had received a complaint about certain behaviour by two AINs regarding their interaction with an 81-year-old resident of Poate diagnosed with paranoid schizophrenia and dementia, with advanced needs for nursing care ("Mr D"). 7 The initial complainant, Shellie Walsh, had been employed as an AIN by HCG since May 2005. On 25 October 2005 she approached Penny Prior, the Manager of Bond House, and spoke about incidents she observed on 21 and 22 October. She named Priscilla Harrison as a potential witness to the same incidents. Ms Prior spoke to Ms Harrison, and then referred the matter to Peter Squire, Relationships Manager, Operations, who had responsibility for human resources and personnel matters affecting HCG. On the same day, Mr Squire and Ms Prior interviewed Ms Walsh and Ms Harrison (in separate interviews) and received a written statement from each of them. 8 Each of the applicants was then sent a letter from Mr Squire dated 28 October 2005 advising her that her employment had been suspended and that she was to attend an interview on 1 November 2005. The allegations against each of the applicants, to the extent that they were articulated prior to the first interviews on 1 November 2005, are set out in letters dated 28 October 2005 to each of the applicants. In each case these initial allegations relate to conduct occurring on particular dates, relying on assertions of Ms Walsh in particular, and of Ms Harrison in regard to Ms Lata. 9 The issues were defined as (1) inappropriate and unprofessional behaviour and (2) breach of HCG's mission statement, philosophy of care, core values and residential services policy. The particulars of 'mistreatment of a resident in our care by you' were provided as follows: § On Friday 21 October 2005, you were in the company of three (3) other staff around lunch time in the Poate Sitting Room and contributed to the sexual harassment of Poate resident, [Mr D]. It is specifically alleged that in consort with other staff, you made sexually suggestive advances to [Mr D], a confused and demented elderly resident in our care, until he became aroused and tried to grab staff. It is alleged that once he was aroused you then laughed at his behaviour and further humiliated him. § On Saturday 22 October 2005 you were again in the company of three (3) other staff around lunch time in the Poate Sitting Room and contributed to the sexual harassment of Poate resident, [Mr D]. It is specifically alleged that in consort with other staff, you made sexually suggestive advances to [Mr D], a confused and demented elderly resident in our care, until he became aroused and tried to grab staff. It is alleged that once he was aroused you then laughed at his behaviour and further humiliated him. 10 Ms Lata's letter of suspension included additional particulars: · On Tuesday 11 October 2005 in the Poate Sitting Room around lunch time you were present and contributed to the sexual harassment of Poate resident, [Mr D]. It is specifically alleged that in consort with two (2) other staff, you made sexually suggestive advances to [Mr D], a confused and demented elderly resident in our care, until he became aroused and tried to grab staff. It is alleged that once he was aroused you then laughed at his behaviour and further humiliated him. 11 Ms Khan's letter of suspension included the following: It is specifically alleged that you touched [Mr D's] hands, leant over him so he could see your breasts and said to him: 'You got a little one!' in reference to his penis. It is then alleged that you 'danced' in front of [Mr D] to entice him to reach out to you and then laughed at him when he did so. It is also alleged that you enticed other staff to behave in the same way. It is also alleged that you drew attention to female bodies in the magazines (Vogue and Women's Weekly etc.,) we have in the Poate Sitting Room and asked [Mr D] what he thought of the bodies of the pictured females until he became further aroused and then you laughed at him again. 12 Ms Rodriguez's letter of suspension included the paragraph relating to 11 October, similar to that in Ms Lata's letter, and in addition: · On Saturday 22 October 2005 around lunch time, you harassed another Poate resident, [Mrs P]. [Mrs P] is a confused, frail, demented resident in our care. It is specifically alleged that you referred to [Mrs P's] son as a 'poofter'. It is alleged you then asked how [Mrs P] felt about her son being a 'poofter' and suggested that [Mrs P] might like to marry [Mr D]. 13 The interviews were conducted by Mr Squire and David Lewis, an Industrial Relations Consultant. The respondent kept a written record of each interview. 14 The allegations were subsequently put in slightly different form, by the removal of specific dates and the number of staff present. The alleged misconduct against each applicant was put in similar terms as follows: There were incidents in the Poate Sitting Room around lunch time when you were in the company of other staff and contributed to the sexual harassment of Poate resident, [Mr D]. It is specifically alleged that, in consort with other staff, you made sexually suggestive advances to [Mr D], a confused and demented elderly resident in our care, until he became aroused and tried to grab staff. It is alleged that once he was aroused you then laughed at his behaviour and further humiliated him. 15 The applicants remained on suspension pending second interviews which were conducted by Mr Squire and Angela Raguz, Director of Residential Services, on 7 November. Letters of termination dated 8 November were sent to each of the applicants, with some differences arising from what was said during interviews, but with the following conclusions common to each of the four applicants: We therefore make a determination that you had breached The Hammond Care Group's Mission Statement ('We are passionate about improving the quality of life for older people in need'); breached the Poate & Shaw Nursing Homes (Frail Aged) Philosophy of Care (specifically paragraph two (2) in relation to staff modelling of 'appropriate behaviour and encourage(ment of) a calm, supporting and secure atmosphere'); breached The Hammond Care Group's Core Values, (specifically dot point two (2) regarding the dignity and respect we have for our residents, dot point four (4) regarding appropriate individualised care for our residents, and dot point five (5) regarding enjoyment of older people; and breached the Residential Service Policy SP21 regarding Privacy and Dignity, (specifically paragraph one (1) where 'each resident is to be valued and treated as an important person, made in the image of God' and 'all staff are to show respect for the individual resident's dignity in each area of their physical, psychosocial, spiritual and emotional life'). Further, we were not presented with any information which would account for these serious errors of judgement or give us confidence that this would not happen again. To the contrary, you seemed to lack appropriate insight into the seriousness of the incidents and of your responsibility in providing appropriate care to our residents. Further, we find your denial of all knowledge of the incidents, given the weight of the evidence against you, lacks any credibility . ... In the absence of any mitigating evidence or explanation, and in light of your refusal to co-operate further with the investigation and the weight of evidence against you, your employment with The Hammond Care Group will be terminated for serious and wilful misconduct as from [the date of this letter/7 November 2005]. 16 Letters to Ms Khan and Ms Rai finished with the words 'the date of this letter'. Letters to Ms Lata and Ms Rodriguez ended with '7 November 2005'. All four letters of termination were dated 8 November 2005 and signed by Mr Squire. The emphasis (bolding and underlining) is identical in all four letters. Submissions for the respondent 17 The chronology of events was outlined by Mr Warren, commencing with complaints being raised by Ms Walsh in October 2005, when she spoke with Ms Prior regarding her concerns about the treatment of a resident. 18 The series of interviews that formed the respondent's investigations into the allegations were conducted in a timely and professional manner. Allegations were clearly put to each of the applicants. Where dates needed to be amended, such amendments were made so that interviews were broadened to other dates. The applicants understood, submitted Mr Warren, that the questions put to them during the interviews went beyond particular dates. 19 Mr Warren conceded that the dates given in the original allegations had become a problem, and that Ms Walsh had exaggerated both dates and events. However, he said, it was clear that she did see certain things occurring in the workplace. Also, Ms Walsh's evidence was not considered by the respondent in isolation, but in conjunction with that of other witnesses to the events. 20 The allegations against each of the applicants was considered individually, submitted Mr Warren. This is proven by the fact that allegations were made against six people in total. Having considered all of the evidence available to it at the time the respondent acted individually in determining the outcomes of its investigations. Two employees were given the benefit of the doubt by the respondent: one who gave a reasonable response to the allegations against her and another against whom there was only one witness and who had emphatically denied the allegations. Those employees were not dismissed. 21 The respondent relied on the allegations raised by Ms Walsh and evidence arising from its investigation and statements provided by Asinate Uaisele, Priscilla Harrison, Dioscora Shearer, Jayde Hatcher, Eseta Herman and Jane Black. Although some changes were made to original testimony, the respondent was satisfied on the Briginshaw standard that summary dismissal was the only option available to it, said Mr Warren. 22 Although some details of Ms Hatcher's and Ms Herman's witness statements were later retracted, the respondent had the clear evidence before them on 7 November, said Mr Warren. Similarly, Ms Black's evidence which had been provided verbally and confirmed in writing was before the respondent at the time of making the decision to terminate the applicants' employment. Mr Warren pointed out that Ms Black confirmed, under oath, that she had made the original statement, and that there was no basis to suggest her original statement had been coerced. 23 Each of the applicants had been interviewed initially and then given a second interview following the respondent's investigation. In this way each was given a second opportunity to respond to the allegations against her. Despite this opportunity, Mr Lata, Ms Rodriguez, Ms Khan and Ms Rai all denied any knowledge of any misconduct as reported. Mr Warren submitted that this was simply not credible. 24 Mr Squire remained true to his genuine beliefs throughout cross-examination, submitted Mr Warren, and his evidence should be accepted. He had clearly struggled with the dilemma of dealing with accusations affecting a demented person, where that person could not confirm whether the incidents took place. He had difficulty accepting the applicants' denial because, among other things, they denied ever joking with Mr D. Mr Squire's personal experience with Mr D was that he would enjoy a joke. 25 Even Ms Rodriguez admitted that sexual harassment of a demented patient should result in termination of an employee, said Mr Warren. Ms Raguz, Director of Residential Services, said that it would be negligent for the HCG not to terminate the employment of any employee if allegations of sexual harassment of a demented resident were proven. 26 Although some witnesses were unclear as to dates of alleged incidents, Mr Warren submitted that they were clear as to what they saw. In regard to the question of dates, Mr Warren referred to transcript of cross-examination of Mr Squire who was referring to the allegations made by Ms Harrison. Q. And did you ask her anything about why she'd suddenly remembered it was last week and not two weeks ago, as it were? A. Well yes I did. In the context of conducting this, and this is one of the difficulties that we face, we're dealing with people who are not used to dealing with the written word, who are not always very articulate and I anticipated - they do struggle with being presented with written information and asked to comment on it. Care working is a very difficult job and it takes a special kind of person and a personality. It's a very difficult job. It's a terrible job if you're not really cut out for it. Q. Yes, I fully appreciate that, Mr Squire. A. And it doesn't always attract people who are very good with the written words and accurate recollections of dates. But the inference that she gave me when I re-interviewed her on 1 November was very much that, you know, "these things which I reported to you happened. I am not lying. I am not making it up. But I may have erred in my recollection of dates and times." 27 The principal thrust of all the witnesses to the alleged incidents was "I saw it happen", said Mr Warren. As an example, he pointed to the cross-examination of Ms Shearer: Q. It's possible, isn't it, Ms Schearer [ sic ], that you misheard what you thought Ms Khan had said? A. No, I hear it what he said and I see what they're doing. Q. It's possible that you misheard what Ms Khan said, isn't it? A. I heard it and I won't tell if I didn't hear it. Q. You could have made a mistake about what you heard? A. I saw it and I heard it that's why I have to tell what I saw and what I hear. and later: A. I saw it. I was there and I hear it what they're saying. 28 It was an over-simplification to say that the respondent's witnesses could not be relied upon because of their language skills, said Mr Warren. Each had been crystal clear in what she had seen, both during the investigation and in the current proceedings. Ms Uaisele, for example, had admitted she did not come up with the word 'suggestive' but had used it in her statement because she agreed with it. 29 Whereas the above named six witnesses for the respondent stuck steadfastly to their evidence and the incidents that they had witnessed, the applicants only denied them outright. However Mr Squire and Ms Raguz came to the conclusion, on the balance of probabilities, that the activity had taken place. Mr Warren submitted that it was quite right that the respondent was satisfied on the Briginshaw standard that the events had happened and the applicants had been involved, on the basis of the seven witness statements they had before them and the outright denials of the applicants. 30 The process of interviews was fair, submitted Mr Warren. Questions were put to people in a non-suggestive way, those conducting the investigation were neutral in their presentation and were never leading to certain answers. It was not reasonable that the applicants had no knowledge of anything going on or no explanation for the behaviour that had been witnessed. 31 Given that the applicants continued their outright denials during cross-examination, there would not have been a different outcome to the interviews if the allegations had been put in a different form, Mr Warren said. The respondent conducted a proper investigation without rushing into any condemnation of its employees. The investigation was conducted with proper cause and the required standard of proof was met. 32 The evidence showed that the personal care notes and progress notes provided in evidence could not be relied upon, said Mr Warren. He said that the inconsistency between evidence of the respondent's witness Ms Hatcher and the records produced in evidence was not significant, and did not detract from the credibility of Ms Hatcher since other evidence showed that the notes were not accurate. Submissions for Ms Rai 33 Mr Elder, for the applicant Ms Rai, submitted that the allegations against Ms Rai had not been the subject of a full investigation and that specific allegations had not been presented to her. 34 Mr Elder submitted that Ms Rai received a letter from Mr Squire dated 28 October 2005 advising her that her employment had been suspended and that she was to attend an interview on 1 November 2005. This letter was sent to Ms Rai while she was on annual leave. 35 Ms Rai responded in writing denying the allegations and pointed to the fact that she had been on annual leave at the time the alleged incidents were said to have occurred and expressed her shock at having "been falsely accused of committing such a degrading act against an elderly resident". Mrs Rai attended the meeting on 1 November 2005 accompanied by her husband. 36 Mr Elder said that the interview consisted of Ms Rai asserting that the allegations were false and that she was on annual leave at the time stated and Mr Squire asking her "why would someone make these allegations?" He said that Ms Rai denied any knowledge of such behaviour and denied the specific charges of arousing the resident and drawing his attention to bodies in magazines. 37 At the further interview on Monday 7 November Mr Squire made repeated reference to seven witness statements but at no time were the details of those allegations revealed to Ms Rai, said Mr Elder. Despite threats by Ms Raguz that the matter could be referred to the Police, Ms Rai repeated her ignorance of any sexual harassment. In the face of her denial of any knowledge of the unspecified allegations, Mr Squire stated: ... we find your denial that any sexual harassment of [Mr D] takes place, against the weight of seven witness statements, lacks credibility. We do not accept you have been honest with us in your responses at interview. 38 He then asked if the applicant could provide any reason why her employment should not be terminated before dismissing her. 39 Under any circumstances sexual harassment is a serious offence, submitted Mr Elder, but when the alleged victim is an elderly patient diagnosed as paranoid schizophrenic with dementia the offence is heinous. The respondent clearly had an obligation to investigate any such allegations as it owed a duty of care to the patient. The respondent, however, also owed a duty of care to its employee and the very seriousness of the allegations and the odium that dismissal would attract made it imperative that such allegations were vigorously investigated and tested. 40 Mr Elder cited his Honour Justice von Doussa in Sangwin v Imogen Pty Ltd (unreported, IRCA, 73/96 8 March 1996): When the dismissal is based upon the alleged misconduct of the employee, the employer must satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power before dismissing the employee it conducted a full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; 41 The evidence shows that, at the time of Ms Rai's dismissal, there were only three hand-written witness statements against her, Mr Elder said. They were from: Shellie Walsh dated 25 October 2005 in which she specifies the dates of 21 and 22 October 2005; Jayde Hatcher, dated 31 October 2005 and Jane Black, dated 3 November 2005. 42 Mr Squire testified that he interviewed Ms Walsh on 25 October 2005, the day she produced her hand-written allegations, and produced a file note. The file note shows that Ms Walsh asserted her allegation that the actions she witnessed occurred on 21 and 22 October 2005 - just three and four days prior to her making that statement. Ms Walsh had initially stated that the events had also occurred on 23 and 24 October 2005 but had erased those dates in Mr Squire's presence. Once it was later shown that Ms Rai was not at the Poate home on the days claimed by Ms Walsh. Mr Squire merely accepted the fact that the events must have occurred on another day. Under cross-examination Mr Squire was involved in the following exchange: Q. And that didn't worry you? A. Look, what worried me in one respect, yes, because I wanted to have as accurate information as possible, but I anticipated that in dealing with these kind of allegations, that people's recollection of dates and times wouldn't necessarily be as accurate as what I would like. Q. I think that's probably a reasonable answer. A. Yes. Q. Except for the fact that she made that statement two days after the alleged dates … Now she's says, gee whiz, it didn't. And you're saying you can understand that? A. Yes, I am saying that I can understand that. Q. You can understand that? A. I can understand it, yes. And the person that's made the allegation is standing by the allegation and saying the dates are not correct. 43 Mr Squire was apparently content to ignore Ms Walsh's previous assertion that the events occurred on the days stated, whilst Ms Raguz claims she did - without success - ask Ms Walsh for the actual dates as the ones she had provided had a question mark, said Mr Elder. 44 According to Mr Squire, no investigation was conducted into the allegations by Ms Hatcher prior to Ms Rai's dismissal: Q. Why didn't you make a file note of your discussions with Jade Hatcher? A. She provided me with a written statement. Q. Right. A. The conversation was very brief. I could have provided a file note, I had no specific reason for not file noting that discussion, other than it was really a case of tendering a document to me. 45 It is a matter of record and, Mr Elder submitted, a very relevant fact that Ms Hatcher had commenced work on 27 October 2005, a mere four days prior to providing her statement. It is also on record that Ms Raguz, who conducted the second and final interview of Ms Rai, did not investigate Ms Hatcher's statement but thought that Mr Squire had checked the information. Ms Raguz was not meticulous and concerned in her interviews. In fact, under cross-examination Ms Raguz stated that she had no recollection of the contents of the Hatcher statement. Q. Were you shown a copy of that? A. I can't specifically recall her statement to say it was put in front of me, but I think I've seen her statement, I think I have seen her statement and it was shown to me, but I couldn't quote from it. Q. You knew that Ms Hatcher's allegations were confined to three specific days? A. If that's what it says in there, then I take that as being the case, but I couldn't say for you now definitely I know that it was confined to three specific dates. 46 Mr Elder also noted that Ms Prior did not investigate Ms Hatcher's allegation because, according to her evidence under cross-examination, "I don't think I would have read their statements because I collected them for Peter Squire". There is no record of any inquiries seeking some confirmation of the allegations from the mentor who would have been assigned to Ms Hatcher during her Work Experience, said Mr Elder. 47 Mr Elder submitted that Ms Black was so nervous being questioned by management that she made a statement that included information that "wasn't true and it's wrong, yes". She later corrected that statement. 48 Ms Raguz confirmed that she had asked the questions and Mr Squire "would do the write up". 49 The evidence of Mr Squire was that he did not push any employees to make statements. Under cross-examination he denied ever telling any employee "if you tell us nothing you will be suspected", but did agree that he had made such a statement to Ms Rai. 50 Mr Elder cited the decision in Bi-Lo Pty Ltd v Hooper [1992] 53 IR 224 where it was said at 230: Whether the employer will satisfy that objective test will depend upon the facts of each case. The gravity of the alleged offence will dictate the nature and extent of the inquiry which the employer must conduct. An employer must ensure that an employee is given as detailed particulars of the allegations against him/her as is possible, an opportunity to be heard in respect of such allegations, and a chance to bring forward any witnesses he/she may wish to answer those allegations. 51 It is clear from the reports of the interviews, said Mr Elder, that Ms Rai was never presented with the details of the allegations by which her future employment was jeopardised. If she had been provided with the full details of the allegations against her she could have carried out a defence by seeking the very information that the respondent should have explored. Brennan CJ, Dawson and Toohey JJ considered such a situation in Byrne v Australian Airlines (1995) 185 CLR 410 at 430: ...the respondent failed to conduct an investigation which would have provided a proper opportunity to be heard and thereby revealed the applicant's version of events. The absence of an opportunity being afforded to explain the conduct alleged (particularly where an innocent explanation is available) is a significant factor when assessing whether the contract or arrangement is rendered unfair as a result of the conduct of a respondent. This was not done in this case. There is a real doubt that the respondent had regard to any explanation available to the applicant when reaching its decision. 52 Mr Elder submitted that there was neither a proper inquiry into the allegations against Ms Rai nor was she told of the specific allegations against her and the dates on which such alleged actions occurred. There was therefore no proper opportunity provided to Ms Rai to answer the allegations that were being made against her. It is also clear that no allegations against Ms Rai were proved by the respondent. 53 Mr Elder submitted that the evidence provided before the Commission by Ms Walsh was confused, contradictory and unreliable. He said it is a travesty that her untested hand-written statement became the basis of the dismissal of Ms Rai. In support of his submission, Mr Elder quoted the following extract from transcript of Ms Walsh's examination by Mr Warren: Q. What was the conduct you saw Barsha Rai do that you find objectionable? A. Standing there and laughing while watching others. Q. Others what? A. Doing what was in my statement here, sexual movements. Q. And that's all? A. Well she didn't leave the room. She stayed there. She watched everybody else in the room. She could've left if she didn't like it. Q. Did you see her do this on more than one occasion? A. Yes. Q. How often? A. On several occasions. Q. Can you indicate dates as to when that might've happened? A. No I can't indicate dates. 54 The evidence of Ms Hatcher was never tested by the respondent, submitted Mr Elder. He drew the attention of the Commission to Ms Hatcher's evidence against Ms Rai that casts doubt on her credibility. First there was the allegation that on Monday 26 September 2005 she was assigned to work with Ms Rai and Ms Lata whereas the roster for that day clearly showed that Ms Rai started later than other staff as she was on a short shift and worked alone. When faced with that fact, Ms Hatcher glibly replied: "Well, they were short staffed that day, I'm pretty sure they were short staffed". The roster for that day indicated there was a full complement of five AINs on 26 September 2005 - Ms Lata, Ms Harrison, Ms Rai, Ms Walsh and Ms Uaisele. 55 Mr Elder itemised a number of discrepancies in Ms Hatcher's evidence. Ms Hatcher's accusations against Ms Rai and Ms Lata related to alleged incidents occurring during the bathing of a resident, while the clinical records indicate that the resident was showered that day. Ms Hatcher claimed to have witnessed certain actions against the resident in the TV room on 27 September 2005, whereas the clinical records showed that the resident stayed in bed all day. She also claimed to have witnessed similar events on Wednesday 28 September 2005 and included Ms Lata in her accusations as the ringleader, while the records indicate that Ms Lata was not at work that day due to sickness. 56 In her evidence before the Commission, Ms Harrison claimed that she was Ms Hatcher's mentor when she was on work experience, a fact that also casts further doubt on Ms Hatcher's claim to have worked with Ms Rai during that week, said Mr Elder. 57 Ms Rai attended work on three of the days that Ms Hatcher spent on work experience. Ms Rai testified that she had never seen Ms Hatcher prior to that week in September 2005 and that she could not place Ms Hatcher when she received her statement. Ms Rai went on annual leave on Monday 17 October 2005 and never resumed work as she was suspended whilst still on annual leave and then dismissed. Ms Hatcher commenced work with HCG on 27 October 2005 and would therefore not have been in a position to have seen Ms Rai since that period in September. Ms Hatcher claims she spoke to no-one about her statement as she "didn't want people to know that [she] was involved". The evidence of Ms Prior was that she merely collected Ms Hatcher's statement and that she doubts whether she would have even read it. 58 In light of the inconsistencies in Ms Hatcher's evidence against Ms Rai, Mr Elder submitted that Ms Rai's evidence should be preferred to that of Ms Hatcher. 59 Mr Elder noted that Ms Black recanted her hand-written statement in her later statement and stated that she had not witnessed any inappropriate conduct or any sexual behaviour directed at Mr D. 60 Mr Elder submitted that Ms Rai and the other three applicants in this collective dismissal by the respondent were seen as targets and any allegations against any other staff were regarded as clouding the issue. Ms Raguz stated that she accepted the explanations of both Linda Bergen and Usha Maran and gave them the benefit of the doubt. Under cross-examination Ms Raguz had the following exchange: Q. So if one person had made the allegation, you gave the person the benefit of the doubt. If two people had made the allegation, what would you have done then? A. Well, that would have changed matters. It then would have been testing what two people are saying, not just what one person had said. It was submitted that the evidence clearly shows that no such "testing" ever occurred. 61 Ms Raguz further testified under cross-examination: Q. Well, what was your attitude, did you say anything over one and you're gone, or how did you approach it? A. Well, I guess it was – I think the original allegation wasn't that Usha particularly participated either. I think the allegation was that Usha was present, but that she wasn't one of the people who was ringleader, so to speak. Q. Who did you identify to be the ringleader, so to speak? A. Well, I think the four people who are the applicants. Q. All four of them? A. Well, the four people who were involved in what I believed was systemic sexual harassment of a demented old man. Q. And you believe each of them perpetrated systemic sexual harassment? A. Yes, I do. 62 Ms Raguz stated that she did not go through each allegation and form an opinion nor to her knowledge, she stated, did anyone else. Ms Raguz then answered a further question as follows: Q. Would this be true, Ms Raguz, that you looked at the seven statements you had and basically said, well, unless the applicants come up with some explanation in the interviews, that is, the 7 November interviews, the weight of these seven statements means they have to be dismissed? Would that be a fair summary? A. Yes. 63 The evidence shows that the specific allegations in those seven statements were never presented to Ms Rai. If they had, submitted Mr Elder, the issue of rosters and of clinical reports would have provided a different story in relation to Ms Hatcher's allegations whilst Ms Walsh's allegations against Ms Rai ended up under cross-examination to be the same type of allegation that had been made against Ms Maran. 64 Dioscora Shearer had not named Ms Rai in her hand-written statement dated 3 November 2005 (but had named Ms Bergen whose explanation had, as earlier described been accepted by Ms Raguz). Nearly four months later, on 24 February 2006, she included Ms Rai in her typed statement but omitted Ms Bergen. Mr Elder submitted that when Ms Shearer noticed that her previous reference to Ms Bergen was omitted, she stated: "I thought Linda is all finished so I didn't mention ...'. It was submitted that Ms Shearer's testimony should be treated with caution as it appears to pursue a general company line of focusing only on Ms Rai and the other three applicants. 65 Ms Rai and each of the other applicants against the respondent received the same letters of suspension and the same letters of dismissal. In Peter John Paris and Bankstown City Council [1999] NSWIRComm 10 the Commission, as it is presently constituted, saw the unfairness in the applicant having been judged on the basis of evidence against another. The decision also noted that: The letters of dismissal of each of the three employees were in identical terms, despite the large discrepancies between the evidence against each of them available to the respondent in the records of interview conducted during the investigation period. I am not satisfied that the respondent could have determined, on the balance of probabilities, that the allegations against Mr Paris were proven, if the conduct of each of the three employees had been investigated separately. 66 The dismissal of Ms Rai was, Mr Elder submitted, carried out in similar circumstances to that in the Paris case and was harsh, unreasonable or unjust. Ms Rai suffered not only by her dismissal but particularly by the action of the respondent in naming her as the participant in a heinous act. Submissions for Ms Lata, Ms Khan and Ms Rodriguez The allegations 67 Ms Howell for the applicants Ms Lata, Ms Khan and Ms Rodriguez submitted that the allegations against her clients were vague, with allegations no more specific than 'sexually suggestive advances'. The dates on which incidents were said to have occurred were wrong. The respondent has taken a 'one size fits all' approach. 68 In broad terms, the accusations against each of the applicants involved "mistreatment" or "sexual harassment" of a particular resident, Mr D. However the precise nature of the conduct of which each applicant was accused and found to be guilty remains unclear even after the proceedings, submitted Ms Howell. 69 Ms Howell contended that the termination of each of the applicants' employment was harsh, unreasonable and unjust. She said there was no valid reason for the dismissals in that the applicants were not guilty of any serious misconduct or any misconduct at all. If it was found that there was any misconduct at all, it was not of a serious nature that would justify dismissal but would warrant some lesser sanction such as a written warning. 70 The precise conduct alleged against the applicants was not properly identified, and the applicants were accordingly denied a proper opportunity to respond to the allegations against them submitted Ms Howell. The respondent's approach was one of "collective guilt". It did not identify and evaluate the evidence against the individual applicants so as to determine whether each, individually, was guilty of misconduct and the nature of that misconduct. Rather it impermissibly concluded that each applicant was a participant, in unspecified ways, in "systemic" sexual harassment of a resident. 71 Ms Howell submitted that the evidence against the applicants was inconclusive, inconsistent and clearly erroneous in important respects. Had the evidence been properly tested prior to dismissal, these difficulties would have become apparent, she said. The weaknesses and inconsistencies in the evidence against the applicants have been clearly exposed in the proceedings, and particularly the evidence of the main accuser, Ms Walsh, has been demonstrated to be totally unreliable. The evidence of other witnesses has been demonstrated to be either unreliable, or of extremely limited scope. 72 In addition, submitted Ms Howell, the respondent failed to take into account mitigating factors including the length of service and unblemished records of each of the applicants, and failed to consider whether there were appropriate alternatives to dismissal. 73 The case law emphasises that summary dismissal is an extremely serious matter. The submissions of the respondent proceeded on the basis that the most important question, if not the only question, was whether the decision of the employer was reasonable on the material before it. Ms Howell submitted that this approach is inconsistent with the authorities. The Commission must evaluate the evidence for itself and determine for itself whether it has been proved that any of the applicants is guilty of serious misconduct, Ms Howell submitted. 74 The significant consideration in relation to summary dismissal is whether or not the employee is guilty of serious misconduct, said Ms Howell. Sams DP in Staal and others v WSAHS [2004] NSWIRComm 27 examined the authorities on serious misconduct in some detail. At [421] he said: ….However in my opinion, where an employee has been dismissed for serious misconduct, the conduct must be such as to constitute a repudiation of the contract of employment by the employee and must disclose a wilful and deliberate intent by the employee. His Honour went on to discuss various authorities which supported this proposition. 75 In New South Wales Fire Brigade Employees' Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440 Sams DP said: In a case of summary dismissal for misconduct four questions usually arise for consideration. Firstly, was the conduct alleged against the dismissed employee proven? Secondly, if the misconduct was proven, did the seriousness of the misconduct justify summary dismissal? Thirdly, did the conduct constitute a fundamental and wilful repudiation of the contract of employment? Fourthly, were mitigating factors taken into account? 76 Even if the summary dismissal was legally justified at common law (that is, the conduct constituted serious and wilful misconduct), it may still be harsh, unjust, or unreasonable. 77 The observations by the High Court in Byrne v Australian Airlines at 465 are pertinent, said Ms Howell: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 78 Lack of procedural fairness may of itself give rise to a finding that a dismissal was harsh, unjust or unreasonable, Ms Howell submitted. In support, she cited the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 389, where it was said: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. 79 Although the evidence of six staff is relied upon in the present proceedings to establish misconduct, it is important to note, said Ms Howell, that the evidence suggesting "systemic" conduct is primarily from Ms Walsh and Ms Hatcher. Of the remaining four witnesses, in their evidence before the Commission: Ms Harrison, who had been employed for 17 years, only alleged a single incident of inappropriate conduct, being an alleged incident involving comments by Ms Lata; Ms Herman claimed to have seen only two incidents involving Ms Rodriguez (and possibly Ms Lata) being present and approving whilst Ms Sutherland danced; Ms Uaisele also only claimed to have seen dancing by Ms Lata on "three of four occasions"; and Ms Shearer claimed to have seen only one incident involving Ms Khan making comments (which could possibly have had a sexual connotation) whilst the other applicants were present. 80 It is important that none of these witnesses adopted as true and accurate the typed statements which are attached to their statements in the proceedings other than to say that these were statements "they prepared". In fact, this was inaccurate because it emerged in cross examination that in the case of Ms Uaisele, Ms Shearer, Ms Black and Ms Herman, Mr Squire had prepared the typed statements and the witnesses had been presented with them in the workplace and asked to sign them. It may be assumed that for the purpose of preparing their statements in these proceedings, the witnesses were asked to advance every incident they could recall, and that such incidents are set out in those statements, Ms Howell submitted. 81 It is submitted that even taken at its highest, the substance of the evidence of the four witnesses referred to above does not support the conclusion that there was "regular, systemic sexual harassment" of Mr D as alleged in the respondent's letters of 4 November 2005 and interviews of 7 November 2005. To come to this conclusion at the time of the dismissals, the respondent appeared to rely primarily upon allegations made by Ms Walsh and Ms Hatcher of inappropriate conduct. These allegations, which were in similar form, were extremely general in nature. The respondent appeared to accept these allegations in full without testing them and without making findings about the particular conduct of any of the applicants. 82 Ms Walsh initiated the process that led to the dismissals by raising allegations with Ms Penny Prior, the Bond House Manager, in October 2005. She was the first and most substantial witness relied upon by the respondent at the time of the dismissals and in the proceedings. Unusually, but appropriately, the respondent commenced its submissions by conceding that the evidence of Ms Walsh was unreliable and exaggerated. The applicants say that Ms Walsh's evidence was simply untrue. 83 Ms Howell submitted that Ms Walsh's demeanour under cross examination was hostile and showed the demeanour of someone determined to "stick to their story" rather than telling the truth. She frequently gave answers before questions had been completed and gave evidence which was highly implausible in an obvious attempt to maintain consistency. The first problem with Ms Walsh's evidence relates to the dates on which she said conduct occurred, which was unlikely because of the proximity of the dates given to the time the allegations were made. Ms Walsh said she prepared her initial statement probably two or three days before handing it to Ms Prior, that is, about 22-23 October 2005. Yet the original document identified the conduct as occurring on 21, 22, 23 and 24 October 2005. 84 Ms Howell provided a series of further examples of evidence showing what she called inconsistencies, fabrications and exaggerations, raising questions of Ms Walsh's credibility. These included the evidence that Ms Walsh in the witness box "could not remember" saying that Mr D had an erection as a result of teasing by the applicant, and conceded that she would not have been able to see whether he had an erection or not (Mr D was sitting at a table and in any event was doubly incontinent so would have been wearing an incontinence pad). 85 Ms Howell said that Ms Walsh had a motive to fabricate or exaggerate allegations against the applicants, as she had on a number of occasions previously expressed concern that she was receiving insufficient or unsatisfactory hours of work. If the applicants were dismissed, there was a likelihood these hours would be increased. For all these reasons it was submitted that Ms Walsh's evidence is wholly unreliable and that no finding of serious misconduct could safely be made against any individual on the basis of Ms Walsh's evidence. 86 Ms Hatcher gave evidence of matters she claimed to have seen during a week of work experience commencing on 26 September 2006. Ms Hatcher subsequently commenced employment at Hammondville on 27 October 2005, immediately before the suspensions. Her evidence was of particular conduct said to have occurred in Mr D's room on Monday 26 September 2005, and of further conduct said to have occurred in the lunchroom on 26, 27 and 28 September 2005. It was submitted that Ms Hatcher's evidence shows obvious inaccuracies and recklessness (at best) about the truth. 87 With respect to 26 September 2005, Ms Howell submitted that it was important that the allegations concerning conduct in Mr D's room were not put to Ms Lata (nor to Ms Rai) prior to her dismissal. Ms Hatcher claimed to have been assigned to work with Ms Rai and Ms Lata on that day (her first day of work experience). Ms Lata denied having been paired with Ms Rai and says that Ms Rai was a 'floater' on that day. Ms Lata further stated that on 26 September 2005 and during that week she was allocated to H corridor and did not care for Mr D. These matters could easily have been checked by the respondent, said Ms Howell, had the allegations been put at the appropriate time. 88 A further discrepancy was that Ms Hatcher denied being allocated to a mentor during her week of work experience, yet Ms Harrison stated that she was Ms Hatcher's mentor. The respondent called no evidence to explain who was responsible for supervising Ms Hatcher, the role of the mentor, or with whom she was working on her first day of work experience. Nor did it make any inquiries about these issues during its investigation. 89 Ms Hatcher was insistent that harassment had occurred in the lunchroom on 27 September 2005, yet the uncontradicted evidence of the witnesses, supported by the Progress Notes, was that Mr D remained in his bedroom on that day. The entry in question in the Progress Notes was apparently made by Ms Harrison, a witness in the proceedings. Ms Hatcher asserted that the entry was incorrect, but no inquiry was made at the time of the investigation, and no explanation of this conflict of evidence was offered in the proceedings by the respondent. 90 Ms Hatcher alleged that Ms Lata, along with Ms Rodriguez, had taken the lead in conduct in the lunchroom on 28 September 2005. Ms Lata gave evidence that she believed she was absent sick on 28 September 2005. This evidence was not challenged by the respondent and Ms Hatcher accepted it in her statement in reply. Ms Hatcher attempted to explain this inaccuracy in cross examination by suggesting that Ms Lata had in fact "taken the lead" on 27 September. This oral evidence was in direct conflict with Ms Hatcher's sworn statement that Ms Rodriguez had "taken the lead" in respect of conduct in the lunchroom on 27 September. When the contradiction was pointed out Ms Hatcher abandoned her oral assertion about Ms Lata taking the lead. 91 It is inherently implausible that, when other witnesses such as Ms Harrison claimed to have seen only one or a few incidents during their entire employment, Ms Hatcher observed virtually the same conduct on three successive days, submitted Ms Howell. It is further implausible that she could even attempt to remember who was "leading" the conduct on three particular consecutive days six months earlier, as she purported to do in her statement which she swore to be true. 92 Far from being clear and reliable, Ms Hatcher's evidence showed a disposition to put the worst possible gloss on the conduct of the applicants, submitted Ms Howell. Where her evidence was shown to be false, she deliberately looked for other ways to implicate the applicants. Ms Hatcher was seeking employment with the respondent at this time and in fact commenced employment on a casual basis on 27 October 2005. Like Ms Walsh, she had a motive to fabricate or exaggerate conduct she believed she had seen, Ms Howell submitted. 93 In regard to Ms Khan, Ms Howell said that only two of the respondent's seven supposed eye witnesses raised matters concerning her conduct in their statements in these proceedings - Ms Walsh and Ms Shearer. Ms Herman "mistakenly" mentioned Ms Khan in the statement prepared by Mr Squire which she signed on 3 November 2005, and corrected this in her second statement in the proceedings. Vijay Khan 94 The original allegations against Ms Khan were based squarely on Ms Walsh's allegations concerning 21 and 22 October 2005. Two of the allegations are of a general nature, that " in consort with other staff" Ms Khan made "sexually suggestive advances" to Mr D, until he became aroused, and further humiliated him by laughing at him. The more specific allegation was originally alleged to have occurred in the lunchroom on 21 and 22 October 2005. It is to be emphasised that Ms Walsh stated that she wrote her account on about 22 October 2005. 95 Ms Khan denied any involvement in such conduct. At the first interview and in her written response she said that she was not near Mr D on 21 and 22 October 2005 because she was working in H corridor and further Mr D was not even in the lounge on 21 October, he was on bed rest. She stated that the progress notes would show that he was in bed on that day. She also stated that on 22 October she had gone home early, at 11.30am, because her clothes had been badly soiled, and that this could be checked with the Registered Nurse. None of these matters were checked, Ms Howell submitted, because the respondent simply took the view that the dates must have been wrong and that the conduct must have occurred on some unspecified day in September or October. 96 The respondent in its letter to Ms Khan of 4 November 2005 referred only to a generalised complaint of "incidents". Not only the dates, but also the more specific allegations did not appear. At the interview on 7 November 2005 there was no discussion of any specific allegations against Ms Khan. However Ms Raguz made the following telling observations: Even if you are not involved, there is an allegation against you – and unless you can give us an explanation - I can't afford to take the risk with residents that you are an abuser. 97 It is clear that Ms Khan was being required to prove her innocence, submitted Ms Howell. This was impossible in light of the vague nature of the allegations. It is unclear from what was said at the final interview and in the termination letter exactly what conduct Ms Khan had been found guilty of. 98 With respect to Ms Walsh's evidence against Ms Khan, it should be noted that the main incident which she describes in her statement in the proceedings occurred when Ms Sutherton was employed, and the conduct was said to have been "primarily orchestrated" by Ms Sutherton and was in May 2005. Ms Walsh's evidence was that Ms Lata, Ms Sutherton, Ms Khan, Ms Rodriguez and Ms Rai were all present in the lunchroom and participating on this one occasion. 99 There is no evidence to support the conclusion that six staff, including Ms Walsh, were all on duty on Poate on any single day, and it is inherently unlikely to be the case, said Ms Howell. The usual staffing arrangements were to have five AINs on duty, being two pairs and one floater (or short shift). It is also inherently unlikely that all of the conduct would have occurred on a single occasion, yet Ms Walsh insisted that it did so. 100 It is not reasonable for the respondent to simply say, when confronted with proof that the conduct did not occur on the days alleged, that some inappropriate conduct occurred on some unspecified days. The lack of specificity about dates prevented the applicants, including Ms Khan, from disproving the allegations in the same way that they were able to when dates were supplied, said Ms Howell. 101 As to the evidence of Ms Shearer, her allegation is that Ms Khan on one occasion made comments to Mr D along the lines of "Who do you want", "Do you want this one", and "Do you like this one" whilst pointing at other staff members. The date of this allegation is not identified although Ms Shearer identified September and October as possible months in cross examination. 102 Ms Shearer did not report the incident. She gave evidence that she was afraid to report what she observed, but also volunteered the following: When they call me that there's something happening in the place I was so frightened and I thought that Sue call me for giving me permanent shift and then we get to that office she said, "Oh they're there." Ms Shearer further agreed later in the cross examination that she was hoping to be given permanency when she went to the interview on 3 November 2005. 103 Ms Howell submitted that Ms Shearer gave implausible evidence that until she was called in for an interview (on 3 November 2005) she was unaware that anyone had been suspended. Ms Shearer also made an allegation in the interview of 3 November 2005 of inappropriate conduct of a sexual nature against another employee of the respondent, Ms Bergen. Ms Shearer in the witness box described the conduct as "inappropriate and disgraceful". The allegation proved to be totally unfounded and based on a misunderstanding or misinterpretation by Ms Shearer. 104 Ms Shearer gave evidence in her statement about one alleged incident involving Ms Khan only, because this was "the only incident (she) could think of", despite her determination to "tell everything that (she) saw in that place". 105 The evidence that Ms Shearer gave is that on one day, possibly some time in September or October 2005, Ms Khan said words to the effect of "who do you want" etc to Mr D. Even at its highest this evidence is totally inconclusive as to whether any misconduct occurred. Ms Howell submitted that, as is shown by the example of Ms Shearer's assessment of Ms Bergen's conduct, it is easy to misconstrue innocent conduct. This is particularly the case when the first language of one or both of the persons concerned is not English. 106 It was submitted that it can confidently be concluded that, in respect of the one alleged incident that Ms Shearer gave evidence of, Ms Shearer either misconstrued what she thought she heard, as she had misconstrued what she saw in relation to Ms Bergen, or deliberately or subconsciously exaggerated or overstated what she claimed to have seen because she wanted to assist her employer as much as possible in the hope of obtaining permanent employment. 107 Given that only two occasions of inappropriate conduct are even alleged, there is no evidence to support the conclusion that Ms Rodriguez participated in "systemic" sexual harassment of Mr D, said Ms Howell. Millie Rodriguez 108 The allegations against Ms Rodriguez were originally in similar terms to those against Ms Khan in the letter of 28 October 2005. It was stated that on 21 October 2005 and 22 October 2005: you were in the company of three other staff around lunch time in the Poate sitting Room and contributed to the sexual harassment of Poate resident [Mr D]. It is specifically alleged that in consort with other staff, you made sexually suggestive advances to [Mr D]…...until he became aroused and tried to grab staff. It is alleged that once he was aroused you then laughed at his behaviour and further humiliated him. 109 A similar allegation was made with respect to 11 October 2005. A further allegation against Ms Rodriguez related to another resident, Mrs P. 110 The allegations against Ms Rodriguez were based upon statements from Ms Walsh, Ms Shearer, Ms Herman and Ms Hatcher. However Ms Shearer's evidence in the proceedings only alleges that Ms Rodriguez was present and laughing while Ms Khan pointed to staff members and made comments to Mr D such as "Do you like this one". 111 Ms Rodriguez responded to the allegations by saying that she was not attending to Mr D on 11 October 2005, that Mr D was in bed all day on 21 October 2005, and that on 22 October Mr D also had breakfast and lunch in bed, whereas Ms Rodriguez was on 22 October caring for two residents who were very ill. Once again, Ms Howell submitted, the respondent appears to have taken no steps to check this information, but rather to have shifted to a position of 'the dates don't matter'. In its second letter of 8 November 2005, the wording was changed from specific dates to: "there were incidents in the Poate sitting Room around lunchtime where you were in the company of other staff and contributed to the sexual harassment of [Mr D]. It is specifically alleged that in consort with other staff, you made sexually suggestive advances to [Mr D]….until he became aroused and tried to grab staff. It is alleged that once he was aroused you then laughed at his behaviour and further humiliated him" 112 The allegation concerning comments about Mrs P's son remained in the letter of 4 November 2005, but the date had been removed. The letter of 8 November 2005 also contained similarly misleading and inaccurate statements to that sent to Ms Khan referred to above. 113 The main allegation by Ms Walsh was that Ms Rodriguez had (apparently at least originally on 21 October 2005) made inappropriate comments to another resident, Mrs P, including one to the effect that her son was a "poofter". No other witness claimed to have witnessed any similar behaviour by Ms Rodriguez. Ms Rodriguez also pointed out that she did not know that Mrs P had a son. Although the evidence of Ms Walsh suggested that Mrs P understood and was upset by the suggestion, there is no evidence that the respondent sought to find out from Mrs P whether the conduct had occurred. 114 The general allegations made by Ms Walsh involving conduct by Ms Rodriguez, which included Ms Sutherton must therefore have occurred on a day in or before August 2005, and would be rejected for the reasons set out above, said Ms Howell. 115 As to the allegation made by Ms Hatcher about conduct of Ms Rodriguez in the lunchroom on 27 and 28 September 2005, it was submitted that that evidence is entirely unreliable. It should further be noted that the conduct alleged by Ms Walsh against Ms Rodriguez on 27 September is that she pointed to the model's body parts and made "similar comments" to those allegedly made the day before (when Ms Rodriguez was not alleged to be present). There is no identification of what Ms Rodriguez was alleged to have said. 116 As to the allegation concerning 28 September, it is in similar vague terms in that the "staff" made various comments with Ms Lata allegedly taking the "lead role". It is impossible to identify with precision what if anything Ms Rodriguez supposedly said or did on 28 September 2005. 117 Ms Shearer only alleges that Ms Rodriguez was present and laughing when Ms Khan allegedly made comments about which staff members Mr D "liked" or "wanted". In relation to the evidence of Ms Shearer, the comments made earlier in respect of Ms Khan are applicable. Irrespective of the reliability of the evidence, Ms Howell submitted, the conduct alleged if true could not amount to misconduct or serious misconduct. Ms Rodriguez on Ms Shearer's evidence was no more than a bystander, as was Ms Shearer herself. 118 As to Ms Herman, she alleges that on one or two occasions Ms Rodriguez was present while Ms Sutherton danced in a "suggestive" manner in front of Mr D. She had previously, on one occasion, seen Ms Sutherton behave in a similar way. Ms Herman did not report the first incident, because she did not consider Mr D's wellbeing was threatened by the conduct. She did not report the second alleged incident either, because she did not think it was sufficiently serious to do so. 119 Ms Herman made a mistake at the initial interview in accusing Ms Khan of particular conduct, yet she denied that it was even possible that she had made a mistake with respect to Ms Rodriguez. Although Ms Herman had worked many shifts with the applicants, her evidence in her witness statement and orally was that the only times she had seen any behaviour she perceived to be inappropriate was two occasions when staff members, and particularly Ms Tofa Sutherton, danced in front of Mr D. Even if proved, the allegation of Ms Herman that Ms Rodriguez danced does not amount to misconduct on Ms Rodriguez's part. 120 In summary, the allegations against Ms Rodriguez lack any specificity. The conduct alleged cannot be precisely identified, let alone proved to the Briginshaw standard, submitted Ms Howell The main witness against her, Ms Walsh, is hopelessly compromised. Ms Rodriguez was an impressive witness who answered questions carefully. It was submitted that her evidence would be accepted and that the Commission would accept that she did not engage in sexual harassment of Mr D. Jasmin Lata 121 The allegations against Ms Lata were originally put that on 11, 21 and 22 October 2005, she with other staff: Contributed to the sexual harassment of a Poate resident, [Mr D]. It is specifically alleged that in consort with other staff, you made sexually suggestive advances to [Mr D] ...until he became aroused and tried to grab staff. It is alleged that once he was aroused you then laughed at his behaviour and further humiliated him. 122 These general allegations were put in similar terms in the letter of 4 November but without reference to any dates, rather asserting that "there were incidents in the Poate sitting room where you….". 123 Ms Howell relied on comments already made regarding the evidence of Ms Walsh and Ms Hatcher. 124 Ms Howell emphasised that Ms Hatcher alleged Ms Lata to have played a "lead role" in lunchroom conduct on 27 September 2005, a day on which she was not even at work. Accordingly the Commission is left in a position where it must, on the respondent's case, guess at whether this conduct supposedly occurred on some other day in the week commencing 26 September 2005, submitted Ms Howell. 125 Although Ms Harrison was interviewed on 25 October 2005 and made a specific allegation about Ms Lata, this allegation does not appear to have been put to Ms Lata prior to dismissal said Ms Howell. 126 Ms Harrison's evidence, though only relating to one incident said to have occurred in the lunchroom, also discloses puzzling features, most particularly the confusion about the date of the alleged incident. 127 Ms Harrison was interviewed on 25 October 2005, immediately after the interview with Ms Walsh. Ms Walsh had, during her interview, asserted that: Ms Harrison had been a witness to one of the incidents involving [Mr D] and had discussed with Ms Walsh making a complaint. Yet Ms Harrison asserted that she had not talked to Ms Walsh prior to the interview about what they had seen. 128 Ms Harrison unambiguously stated in her interview on 25 October 2005 and in the written statement she made on the same day that the one incident she had seen had occurred on 11 October 2005. This assertion was made on 25 October, two weeks after the said date. Ms Harrison subsequently made a correction that the conduct had occurred on 19 October 2005 (that is, one week prior). On 1 November 2005 a further correction was offered by Ms Harrison, to the effect that the incident "may" have been in September, but that it did not occur on 11 October. Ms Harrison offered no plausible explanation of these changes in her oral evidence, and particularly her certainty that it was not 11 October 2005, said Ms Howell. 129 While ordinarily some uncertainty about dates might be understandable, in this case Ms Harrison was describing an incident which was the only time, in her 17 years of work for the respondent, that she had seen any alleged abuse of a resident. If this were true, it is surprising, Ms Howell submitted, that Ms Harrison neither reported it nor discussed it with any other staff member. It is even more surprising that only one, two or a few weeks after the event she had three different versions of when it occurred. 130 Ms Uaisele alleged that she had seen Ms Lata dancing "suggestively" in front of Mr D on "perhaps three or four occasions". Ms Uaisele said that the word "suggestively" which she used in her statement to describe the dancing, was probably the lawyer's word, not hers. Ms Uaisele also stated in oral evidence that when she had referred in the original statement typed by Mr Squire to conduct of Ms Sutherton, she had been confused between what she had seen herself, and what she had heard other people say. Ms Uaisele properly accepted that she could also be mistaken about Ms Lata's conduct. The evidence of Ms Uaisele even if it were accepted does not disclose misconduct on the part of Ms Lata, submitted Ms Howell. 131 Ms Howell relied on earlier submissions as to the evidence of Ms Shearer, in regard to Ms Lata. 132 In summary, the evidence against Ms Lata is unreliable, imprecise and in a number of respects could not, even if accepted, amount to misconduct. It was submitted that Ms Lata was an impressive witness and her evidence that she did not sexually harass Mr D would be accepted. The investigation 133 It was submitted that the investigation conducted by the respondent was seriously flawed and that on any objective view it could not have come to the conclusion that the applicants were guilty of serious misconduct. 134 In relation to the investigation, Ms Howell submitted that: the respondent failed to identify with appropriate precision the allegations against each applicant so that they could adequately respond to those allegations; the respondent prejudged the issues through proceeding from the outset on the basis that serious misconduct had occurred; the respondent took the view that the applicants had to disprove the allegations (an impossible task, particularly given the vague way in which they were formulated); the respondent failed to make any findings about precisely what conduct each applicant was guilty of but rather come to a general conclusion that they were all, collectively, guilty of inappropriate behaviour towards a resident; the respondent failed to test the various witness accounts of what had happened even where they appeared to be glaringly inaccurate; the respondent failed to conduct proper and thorough interviews with witnesses and to secure accurate statements. 135 With respect to the evidence of the five witnesses interviewed on about 3 November 2005: there are no records of the interviews but only extremely short statements prepared by Mr Squire from those interviews and later given to the witnesses in the workplace to sign. The manner of the interviews was that Ms Herman, at least, was told about the evidence the respondent already had and "what was happening to [Mr J]" [sic]. A number of corrections were made by the witnesses to the statements prepared by Mr Squire in the course of these proceedings. Ms Herman had mistakenly identified Ms Khan as engaging in conduct because (presumably at the time of signing what Mr Squire had written) she was "attending to residents…", Ms Shearer had to cross out parts of the statement when she read it in February 2006 because it contained things she hadn't said at the interview. Ms Black in the proceedings denied she had seen any inappropriate conduct whatsoever. Ms Uaisele wrongly identified Ms Sutherton as having participated in conduct. 136 It was also significant, said Ms Howell, that the November 2005 statements of Ms Shearer, Ms Uaisele, Ms Herman and Ms Harrison contain generalisations about frequent conduct which are absent from their evidence in the proceedings. 137 The respondent failed to take into account or give appropriate weight to the evidence of important persons such as the Registered Nurse in charge of Poate, Ms Enzenhofer. Ms Raguz spoke to Ms Enzenhofer, and believed that a record of the conversation was taken by Mr Squire. However no record was forthcoming pursuant to any Notice to Produce or otherwise, said Ms Howell. The substance of Ms Enzenhofer's evidence, as the person responsible for day to day supervision of the AINs, was that she knew of absolutely nothing or any adverse conduct by the applicants in the proceedings. Unless Ms Enzenhofer was shown to be completely incompetent, this evidence is highly significant, Ms Howell submitted. 138 Ms Howell submitted that the respondent misrepresented the true situation to the applicants in the letters of 4 November 2005 and the interviews of 7 November 2005, particularly in asserting; "the denial provided by you at our meeting on 1 November 2005 has been specifically tested"; "…seven statements have now been provided alleging that regular, systemic sexual harassment of [Mr D] takes place in Poate, perpetrated by a group of staff; These alleged incidents relate not only to the dates provided in my letter but on numerous occasions during October 2005 and earlier; and The witness statements, in collective, name you as one of the perpetrators of these incidents. 139 These statements were inaccurate and put unfair pressure on the applicants in their interview. This pressure was reinforced by statements made by Mr Squire to the following effect in the 4 November interviews in response to the applicant's denial of wrongdoing, said Ms Howell. In Ms Lata's case the following was said: This is where we got to last time. The difference is we now have seven witness statements to say there is regular systemic sexual harassment of [Mr D] going on, not only on the dates we talked about last time but regularly and all through October and into September. You need to understand the position you are in. There is an overwhelming weight of evidence that says this is definitely happening. You work down there…. For you to sit there and say you don't know anything that is not credible. And We have been over this – you need to move on from that….. If your only defence was 'I was not there at the time – what did you think was going to happen? I told you that I would go back to the complainants and they would say: "Oh I got the dates wrong. It happens all the time… Further, I went and tested your denial with other staff and now I have seven statements to say this is happening and all of them say it was you who was involved. Why would seven people say that it was not true? And (in response to Ms Lata not knowing why people would make such allegations): Saying "I don't know" is not getting us anywhere. You have had over a week to consider theses issues. 140 Similar words were said to Ms Khan and Ms Rodriguez. There was no possibility in the respondent's eyes that the applicants were telling the truth when they denied knowledge of mistreatment of Mr D, Ms Howell submitted. Maintaining their innocence could only damage them further in the respondent's eyes. These words not only constituted unfair pressure, but reinforce the conclusion that the respondent prejudged the allegations and placed the onus upon the applicants to disprove the allegations against them. 141 Ms Howell submitted further that the respondent clearly determined prior to the meetings of 7 November 2005 that each of the applicants were to be dismissed. The email from Mr Squire of 3 November 2005 is quite explicit and the explanations as to why these words had been used is not persuasive, particularly when, as Mr Squire had said, the inquiry had already concluded that sexual harassment had occurred. 142 Ms Howell submitted that, had a full and open investigation been conducted, the outcome might have been very different and the applicants might not have been dismissed. Consideration 143 Because the termination of the applicants' employment was by way of summary dismissal, the onus is on the respondent to prove the misconduct: Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 71; Franklins Limited v Webb (1997) 72 IR 257. In Wang v Crestell Industries Pty Ltd and Anor (1997) 73 IR 454 it was said at 463: The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. See also Shop, Distributive and Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 and Coles Myer Ltd v Shop, Distributive & Allied Employees Association (NSW) (1989) 27 IR 299 . 144 Taking these principles into account the respondent in this matter was required to file its witness statements prior to the applicants, with the hearing proceeding in the same order. The witnesses to the alleged offences were called to give evidence as were the managers who conducted the investigation, as well as the applicants. 145 It is necessary that alleged serious misconduct be proved to a high standard: see Waterside Workers Federation v Commonwealth Steamship Co (1967) CAR 1; Briginshaw v Briginshaw (1938) 60 CLR 336; and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and others (1992) 110 ALR 449, a judgment of the High Court of Australia in which their Honours Mason CJ, Brennan, Deane, Toohey and Gaudron JJ said at 449-450: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved". 146 Ms Howell cited the Full Bench in Franklins Limited v Webb where it was said at 261: We consider that the significance of decisions by employers to dismiss employees in circumstances such as occurred here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account. It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employers of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal. In this case I am satisfied that each of the applicants has suffered hurt and embarassment to herself, and in some cases, to family members, and has had difficulty finding continuing employment in her chosen field because of the nature of the charges against her. Ms Lata, who has been employed since February 2006, was unemployed from November 2005 until then. 147 Further, Ms Howell cited Wilcox J in Gooley v Westpac Banking Corporation 59 IR 262 as follows: No employer is required to carry indefinitely an employee who lacks capacity for the job. But it is another matter to dismiss that employee summarily for "serious misconduct". Such a dismissal is likely to be traumatic and damaging to the employee. It brands the employee as someone who has committed an act of gross disloyalty, if not dishonesty. It is not an appropriate way of disposing of an employee who has acted conscientiously and honestly, though with poor judgment. The question that arises from this is whether the applicants were guilty of serious misconduct. Their denials of any misconduct removed the option for the respondent of considering they acted honestly, but with poor judgment. 148 In Standley v Electronics Boutique Australia Pty Ltd, IRC 4516 of 1998, 18 March 1999, Sams DP considered the serious implications for an employee where allegations of misconduct are made. His Honour said at 14: It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee. It can not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee's future employment prospects. A finding by this Commission that a summary dismissal was justified, is a most serious matter which may unhappily burden and grievously harm an employee for years into the future. 149 The Full Bench in Franklins Ltd v Webb also cited with approval the decision of the former Industrial Commission in Court Session in Shop, Distributive & Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 at 2 as follows: We consider in cases where dishonesty is alleged as the reason for summary dismissal, management should only summarily dismiss if it is fully satisfied after careful investigation that the accusation has been made out. In coming to such a conclusion, a prudent and fair employer will take into account, where relevant, as part of the circumstances of the case, an employee's youth or inexperience, the nature and effect of any interrogation and any admissions or denials made. We consider that this same standard should be applied by industrial tribunals when considering reinstatement. Some argument took place about the admission of character evidence relating to previous good character. We consider that in this class of case, such evidence should be received as tending to prove that the employee should be believed on her oath and that an inference of dishonesty should less readily be inferred against her. Of course, the weight given to any such evidence may vary widely and its effect is always a matter falling within the discretion of the tribunal. 150 The balance of probabilities test is found in Briginshaw v Briginshaw (1938): When the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect references". 151 The difficulty encountered in this case is that the proofs are inexact and the testimony is indefinite. 152 The evidence of Ms Walsh was, as Mr Warren conceded, exaggerated as to dates and events. It was, in my view, exaggerated in a wholesale manner. It is immaterial whether or not Ms Walsh was motivated by a desire to obtain morning shifts for herself, as Ms Howell suggested. Whatever her reasons, it remains that the initial information she provided to the respondent should have been tested, but was not. Four matters would have been plainly obvious from an initial investigation: 1. whether or not each of the applicants was at work on the days in question; 2. that the resident was wearing incontinence pads; 3. that the resident was climbing over tables to get at the staff is clearly an exaggeration, as such behaviour would presumably have been reported to the Registered Nurse; and 4. a decision to leave the resident in bed all day was a decision of the Registered Nurse on duty, not of the AIN. 153 The flaws in Ms Walsh's allegations are patently obvious. I will say little more about the allegations made by Ms Walsh because I find that her evidence lacks credibility. 154 Mr Warren made the point that Ms Walsh's allegations were not taken in isolation, but in conjunction with the statements provided by other witnesses. However, the allegations appear to have been taken on face value and to have coloured the respondent's investigation from that point onwards. 155 Ms Harrison, an employee of some seventeen years standing who had worked with Ms Rodriguez, Ms Lata and Ms Rai on a regular basis, had witnessed only one incident, involving Ms Lata. It is surprising that this did not cause the respondent to reconsider the allegations made by Ms Walsh. 156 Ms Hatcher named Ms Lata as participating in misconduct on 26 and 27 September, and later said Ms Lata was not a participant on those days. Ms Harrison detailed certain incidents on 11 October, later that day said it was 19 0ctober, and seven days later remembered that it was not 11 October but may have been in September. Ms Herman named Ms Khan and later withdrew Ms Khan's name. Ms Shearer initially said she saw certain conduct 'many times' but by February only wrote about one time. Ms Black withdrew her allegations completely, because they were not true, she said. This is apart from the number of changes made by Ms Shearer, Ms Black and Ms Uaisele to statements typed for them by the respondent on the same day that they were initially interviewed. All these changes indicate a high degree of uncertainty and unreliability of the initial evidence on which the respondent acted. 157 Ms Rai was on annual leave on 21 and 22 October 2005. At the first interview, Ms Rai was warned that termination of her employment was a possible outcome. She pointed out that she was upset by the allegations and her husband added that it was culturally 'unacceptable and unthinkable' and that their daughter's HSC was being affected by the allegations against her mother. 158 During the interview Mr Squire said "I have statements on this." Yet at the time of the interview the only allegations put to Ms Rai were in regard to 21 and 22 October, dates not mentioned by anyone other than Ms Walsh at this stage. Ms Harrison had not mentioned Ms Rai. Ms Hatcher had referred to events during the week of 26 to 30 September and had not referred to 'sexually suggestive advances' or causing the resident to become aroused and grab staff. The inference in Mr Squire's statement that several people witnessed events on 21 and 22 October could not reasonably be drawn from the statements available to the respondent at the time and is misleading. It confirms the view that the respondent's conduct of the investigation was conducted with a closed mind as to the likely outcome. 159 In the notice directing Ms Rai to attend the second interview, it was stated: I am advising you that a total of seven (7) witness statements have now been provided alleging that regular, systemic, sexual harassment of [Mr D] takes place in Poate, perpetrated by a group of staff. These alleged incidents relate not only to the dates provided in my letter of 28 October 2005, but on numerous occasions during October 2005 and earlier. The witness statements, in collective, name you as one (1) of the perpetrators of these incidents. 160 I am concerned that it was said that seven witnesses alleged regular and systemic harassment, when as I have said, Ms Harrison did not name Ms Rai, nor did Ms Herman or Ms Uaisele. Ms Shearer said that Ms Rai laughed at others on one occasion only. Ms Black's allegation of inappropriate joking can hardly be labelled 'regular, systemic, sexual harassment'. At the time of the interview, the respondent had four witnesses in all against Ms Rai, only two of which could have been characterised as alleging regular and systemic harassment. 161 I am also concerned that the reference is 'not only' to 21 and 22 October. By not excluding these dates from the accusations against Ms Rai, the respondent appears not to have checked its own records which show that Ms Rai was on leave. In these circumstances the respondent's investigation cannot be described as 'thorough', as required by its own policy. The dates of the allegations were not 'amended', as Mr Warren submitted, but were added to. It would have been appropriate to acknowledge Ms Rai's absence on the days originally cited. 162 Ms Lata denied the allegations against her. The allegations by Ms Hatcher and Ms Black were withdrawn prior to the current proceedings. Ms Herman's allegations refer only to Ms Lata laughing at Ms Sutherton on one occasion. I concur with Ms Howell's submission that matters raised by Ms Lata in her defence could have easily been checked by the respondent, if specific allegations had been put to Ms Lata at the time of the initial interview, or prior to her dismissal. The contradictions in Ms Hatcher's evidence about Ms Lata is also noted. 163 Ms Khan's absence on 22 October, the date initially offered by Ms Walsh, could have been checked by the respondent. The specific allegations were not put to Ms Khan. Yet Ms Raguz put to Ms Khan that she could not 'take the risk with residents that you are an abuser'. Clearly, as Ms Howell submitted, Ms Khan was being asked to prove her innocence. 164 Ms Khan was not named by Ms Harrison, Ms Hatcher, Ms Uaisele or Ms Black. Ms Khan was told of seven witness statements being received, and that the statements 'in collective' named her as a 'perpetrator'. Again, this is a misleading inference and I find that it was unfair to put the facts to Ms Khan in this way. I note that Ms Herman later withdrew Ms Khan's name from her testimony. 165 Ms Rodriguez was not named by Ms Uaisele. Ms Harrison, Ms Herman and Ms Shearer accused her of laughing. Ms Rodriguez gave specific responses to the charges against her at the interview on 1 November and provided a written response with details which should have been checked against the respondent's records. There is no evidence, either in the next letter to her or in the following record of interview, that any of the matters she raised were confirmed or denied. Rather, the particular dates were simply omitted from the letter. 166 Again, as with the other applicants, Ms Rodriguez was told in writing and at the second interview that seven witness statements were received alleging that regular, systemic sexual harassment of Mr D takes place in Poate, and that the witness statements 'in collective' name Ms Rodriguez as one of the 'perpetrators'. Ms Rodriguez was not named by seven witnesses. Nor did all those who named her identify her behaviour as sexual harassment, nor did they all say it was regular and systemic. By taking a collective view of the allegations, the respondent has treated the applicants as a group. As was found in Peter John Paris and Bankstown City Council there is innate unfairness in the applicants having been judged on the basis of evidence against another. 167 Ms Enzenhofer had described Ms Rodriguez as "liked and respected" as recently as July 2005. Another Registered Nurse had written that she was "compassionate". These descriptions are at odds with the allegations, and appear not to have been taken into account by the respondent. 168 It is unsurprising that all four applicants denied knowledge of behaviour characterised as systemic sexual harassment of the resident. Mr Rai gave evidence about the allegations against his wife, which could just as readily be said of any of the applicants. His words were: The charges against my wife that were made verbally at the meeting were so vague that I was unsure what it was that she was being called upon to answer. As a Major in the Australian Regular Army, Mr Rai cannot be said to be wanting in literacy or communication skills. 169 The respondent did not call the Registered Nurse who was usually on duty with the applicants to give evidence. If systemic abuse of any resident was taking place by AINs, it is the supervisor who carries responsibility to know what was going on during the shift. The nurse, Kathy Enzenhofer, provided one of the applicants with a reference which could not have been issued if she had any concern about abuse of residents. Being 'busy' at the time the incidents were alleged to have taken place is not an excuse, as the resident's changed behaviour as was alleged by Ms Walsh would have to be noticed by the nurse in charge. 170 As to the use of the word "systemic", even during the proceedings before me the word "systematic" was sometimes substituted for "systemic". The Oxford English Dictionary provides the general meaning as: Of or pertaining to a system. The definition does not clarify the allegations in any way. It is unsurprising that the witnesses denied being part of something if they did not understand its meaning, and I doubt the meaning of "systemic" was undertood by the applicants, particularly given Mr Squire's evidence that the witnesses were people who "struggle with being presented with written information and being asked to comment on it." There was nothing in the evidence to suggest that the applicants were in a different class to the witnesses regarding their literacy skills. In fact, none of the witnesses suggested the conduct was systemic. That word was used only by the respondent and was never explained to any of the applicants. 171 I cannot agree with the respondent's conclusion that denying allegations against them is equivalent to refusal to cooperate with an investigation. This is especially so when the allegations are put in general terms except as to dates, when so many dates were clearly wrong or were changed by the witnesses. The applicants all co-operated in that they appear to have followed the respondent's instruction not to discuss the issues with other staff, they attended two interviews each, and provided information in some cases which would have allowed the respondent to check details of the allegations. The accusation that the applicants refused to co-operate is a further indication that the respondent had a closed mind as to the outcomes of the investigation, coloured as it was by Ms Walsh's exaggerated and unsubstantiated claims. 172 I am also concerned that any behaviour viewed to be serious was not reported at an earlier stage. Ms Walsh said she had to take time to "get things right in my head" and to work out if she could trust management to take appropriate action. Ms Harrison chose not to report any concern (which is understandable when she only witnessed a single incident). Ms Hatcher was "deeply concerned" but did not report it. In fact, she assumed it was accepted practice. Ms Asinate, Ms Shearer and Ms Black did not report any conduct until interviewed. Ms Herman witnessed only two discrete incidents and appropriately told the participants at the time to cease, which they did. 173 Two options arise from this scenario: either the concerns which the employees had were not sufficiently serious to raise with management, or the atmosphere at HCG was such that the employees feared recrimination, such as loss of shifts, if they were to raise the issue. It is beyond belief that employees in an atmosphere of trust and goodwill would not report serious misconduct against a demented resident occurring over a period of some months. 174 The environment in which the investigation took place was described by Ms Black in cross-examination, when asked about her initial statement. Q. Ms Black, was it a case of you just saying what you thought management wanted to hear on this occasion? A. Not so much that, it was a case of I was nervous and I panicked because I'm not used to being questioned by management and my mouth just ran away without me thinking about what I was saying but then I went home later on that day and I thought about it and I said I can't say stuff like that so I spoke to my Dad and that about it and I recorrected it. Q. And the reason you thought you couldn't say stuff like that was because you knew it wasn't true? A. It wasn't true and it's wrong, yes. 175 Ms Shearer said she was "so frightened" when she was called in to her interview. She said she had been afraid to report what she had observed. 176 Whether the first option or the second is true, all the fault cannot be said to lie at the feet of the applicants. If the first option is true, the applicants behaviour may have been "playful" rather than serious misconduct. If the second option is true, the "systemic" problem may lie with management rather than with its employees. 177 It is well settled law that deficiencies in the process are not necessarily fatal to a decision to summarily dismiss an employee: Antanakopoulos v State Bank of New South Wales 91 IR 385. However in these cases I am satisfied that the processes relating to investigations, interviews and the decision to terminate the applicants' employment were not handled satisfactorily. Further I am not satisfied that the respondent carried out a careful investigation, using the standards applying to a fair and reasonable employer as set out in Shop, Distributive & Allied Employees' Association, NSW Branch v Jewel Food Stores. 178 In Bi-Lo Pty Ltd v Hooper the Full Bench said at 229: If a fact or facts come to light subsequent to the dismissal which cast a different light on the Commission of the alleged misconduct, such fact or facts will not necessarily render the dismissal harsh, unjust or unreasonable. In our view in such circumstances what will need to be considered is whether the employer, if it had acted reasonably and with all due diligence, could have ascertained those facts before the dismissal occurred. 179 Apart from the issue of dates, there are significant differences between the initial statements of a number of the respondent's witnesses and the statements prepared for these proceedings. For example, Ms Uaisele reported "dancing" initially, and this later became dancing "suggestively" and teasing the resident. Ms Uaisele said she agreed with the lawyer's word, but she had not adopted it before February 2006. Ms Black changed her testimony in February, when preparing her witness statement, to a total retraction of her earlier statement. These differences undoubtedly would have been discovered and taken into account if a more thorough investigation had taken place. 180 That is not to say that the investigation conducted by the respondent, as far as it went, was incorrect. Many of the steps taken by the respondent were appropriate. However, the actual allegations were not sufficiently particularised and information provided by the applicants was not immediately checked as it should have been. By not identifying particular behaviours to each applicant, the respondent denied them the opportunity to be heard, an issue deemed significant in Byrne v Australian Airlines. The fear expressed by some witnesses may also have affected the outcome of the investigation. It appears that the investigation was coloured by the outrageousness of the claims by Ms Walsh, much of which was discredited by the end of the proceedings, and the respondent's concern to protect its residents at any cost. While the protection of residents is admirable, a duty of care is also owed to employees. The evidence does not show that a careful and proper investigation was carried out, as required. 181 In fact, an email sent from Mr Squire to Mr Lewis on 3 November set out the following proposal: We direct Millie Rodreguiz, Vijay Khan, Barsha Rai and Jasmine Lata to attend interviews to discuss the additional allegations and move to terminate on the balance of probabilities and weight of evidence. I also want to issue Vijay with a formal warning regarding her behaviour at the last interview in the letter to attend the interview - at these interview, I would prefer to put the allegations to them, listen to their response, take a 10 minute break to consider and then terminate. 182 Despite Mr Squire's evidence that such action was predicated on no new evidence arising during the applicants' second interviews, it indicates that the decision to terminate their employment had been made prior to the second letter being written to the applicants. The email also indicates that no alternative outcomes were being considered. 183 Mr Warren relied on Humphries and Cootamundra Ex-Services and Citizens Memorial Club Ltd [2002] NSWIRComm 225 in which Sams DP said at [196]-[197]: 196 It seems to me that it would be a rare case indeed which disclosed an absolutely faultless process - free of blemish or mistake. The usual highly charged atmosphere of a dismissal situation will guarantee a less than pristine process. 197 I have no doubt, with the benefit of hindsight, that the dismissal of the applicant here might well have been better handled by the respondent. However, the faults in the process need to be balanced against the gravity of the allegations in the event they are proven. 184 Nevertheless, the respondent's gross generalisation of the misconduct alleged and failure to confirm particulars raised by the applicants at interview were factors which substantially affected the investigation. Notwithstanding the seriousness of the allegations overall, each applicant was entitled to have the case against herself considered. 185 The applicants had unblemished records of over six years work up to the time of the allegations for which they were dismissed. It was appropriate that these records were taken into account, as well as the effects of the dismissal on the applicants' personal and family life: Electricity Commission of New South Wales t/as Pacific Power v Nieass and Others (1995) 81 IR 46. I am not satisfied that the evidence against each of the applicants is sufficient to outweigh such personal considerations. In particular, I refer to the loss of income sustained by each of them and opportunity to continue to work in their chosen field of aged care for all except Ms Lata. I refer also to the humiliation and distress reported by a number of the applicants, particularly in light of their diverse cultural and religious backgrounds. 186 Mr Warren's submission that the accuracy of progress notes and personal care charts could not be relied upon was not one which reflects well on the respondent. Such records should carry a substantial degree of accuracy, I would expect. 187 I agree with Ms Raguz (among others) that it would be negligent for the HCG not to terminate the employment of any employee if allegations of sexual harassment of a demented resident were proven. However, in this case the allegations were not proven. 188 The respondent's letters of termination said that each applicant seemed to lack insight into the seriousness of the incidents. That was not the case during these proceedings, nor is it likely to have been the case during the second round of interviews when Ms Rai and Ms Lata were threatened with the matter going to the Police and when all four had received letters warning them that disciplinary action, including termination of their employment, was a possible outcome of the process. The letters also referred to the applicants' responsibility in providing appropriate care to the residents. Indeed, during the interviews in November 2005, Ms Lata responded to certain allegations by saying, "He's an old man. How could you treat him like that?" Ms Rodriguez said: I have worked here for seven years at Hammond Care. I have never had a problem about mistreating anyone. To me I treat the residents like they are my grandparents. I spend more time with them, I would not be able to do these allegations. 189 Ms Khan's understanding of the seriousness of the complaints against her are clear from her response to questions from Mr Squire during her first interview on 1 November when she said: I deny it. It never happened. I would tell the RN if it did. I have values. This is sick and disgusting. This is not a proper investigation. I've worked there for seven years without a single complaint. It's a second home. It's defamation of character... I am from a respected family. I want a complete investigation to clear my name. 190 The respondent's claim that the applicants lack insight into the seriousness of the allegations or their responsibilities to the residents is unfounded. Indeed, it is contrary to the evidence that the respondent had before it at the time of writing the letters of termination. 191 Mr Squire told Ms Rodriguez during her second interview that the investigation had already made a determination that Mr D was being sexually harassed, stating that he had seven witnesses who say so. Arising from the number of witnesses to behaviour which may have been construed as harassment (and some allegations definitely described incidents of sexual harassment), it is not unreasonable that the respondent had concerns that sexual harassment may have taken place and probably had taken place. 192 It is unreasonable that the applicants were required to prove their innocence, and inconsistent with established principles: Wang v Crestell Industries. The respondent's representatives were required to carry out a proper investigation including, at least, checking information provided by the applicants during the initial round of interviews and responding by telling them whether or not their comments were accepted. Mr Warren submitted, for example, that it was clear that Ms Walsh did see certain things occurring in the workplace. The respondent should have quickly discovered, if it was not already known, that Ms Walsh could not have seen other things happening. For example: the resident wore incontinence pads so that it would not be known if he had an erection; Ms Rai's absence on annual leave was information readily available to the respondent. That Ms Harrison in seventeen years had only witnessed one incident should have caused the respondent's representatives to question Ms Walsh's claims. 193 It was submitted by Ms Howell that the respondent has not proved serious misconduct, and that even if they had done so, dismissal was harsh, unjust and unreasonable because of the failure to accord procedural fairness to the applicants and the disproportionality of the penalty in all the circumstances. As I have said, the respondent may have been concerned that sexual harassment had taken place. However, the respondent could not have been satisfied that Ms Rai, Ms Lata, Ms Rodriguez and Ms Khan were guilty of the type of serious misconduct of which each was accused. Options other than dismissal of the four applicants were available, given that the misconduct was not proven to the standard required in these proceedings. If the allegations made by Ms Walsh had not been relied upon so wholeheartedly by the respondent, it is likely that a very different outcome would have occurred. In fact, Ms Walsh's evidence has been so thoroughly discredited that it should not have been relied upon at all. 194 I have considered the whole of the circumstances for each of the applicants individually while not listing each of them again, in order to avoid repetition. In all, I find that the respondent has not fulfilled the legal burden which falls upon it to prove serious misconduct by any of the applicants. I find that the dismissals were harsh because of the failure to prove serious misconduct, unreasonable because of the shortcomings in the investigation and harsh due to the impact on the applicants and their families, arising from the nature of the charges against them. Remedy 195 All of the applicants sought compensation under s89(5) of the Act on the basis that the relationship between the parties has broken down and reinstatement is impracticable. This was not contested by the respondent. 196 Reinstatement is the primary remedy and first alternative in cases where there is a finding that a dismissal should not have occurred. As in Ferrett v Department of Ageing, Disability and Home Care [2006] NSWIRComm 177, the unblemished records of the applicants over periods of six or more years would logically lead to orders for reinstatement. The Full Bench in Commissioner of Police v Dobbie [2006] NSWIRComm 285 recently upheld a decision to reinstate an employee whose conduct had been the cause of his dismissal. In Griffith City Council v USU (on behalf of O'Hara) (No 2) [2006] NSWIRComm 302 the Full Bench (by consent of the parties) upheld the decision of Commissioner Bishop to reinstate the applicant in that matter who had been guilty of misconduct. While both cases turn on their own particular circumstances and each provides certain conditions for continued employment, the practical implications are that, where possible, alternatives to dismissal are wide-ranging and may include certain acknowledgements about preferred conduct and final warnings. 197 However, I take into account the strong emotions expressed by many witnesses, both applicants and witnesses for the respondent, and I reluctantly accept the submissions of the parties in this regard. I find that reinstatement or re-employment are impracticable and that compensation should be ordered. 198 Evidence and calculations of economic loss have been provided in respect of each applicant, including earnings since dismissal and the steps taken to find alternative work. The applicants represented by Ms Howell relied upon the decision of the Full Bench in D & R Commercial Pty Ltd v Flood (2002) 113 IR 343 at 363. 199 Both Ms Khan and Ms Rodriguez have suffered total economic loss in excess of the maximum available compensation. They have made reasonable efforts to obtain other employment and it was submitted by Ms Howell that in each case they should be awarded the maximum available amount of compensation. In Ms Lata's case, the amount of loss is contained because of her ability to obtain comparable employment at the Frank Whiddon Home. Ms Howell submitted that she should be awarded compensation for the full amount of the loss she has suffered. Mr Elder submitted that Ms Rai should receive an entitlement based on the maximum amount allowable. 200 In D & R Commercial v Flood the Full Bench said: 63 Section 89 provides that where reinstatement is considered impracticable the Commission may order the payment of compensation "not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed". Section 89(6) provides for matters which the Commission "is to take into account" when determining the amount of compensation. The provision is expressed in mandatory language and requires there be taken into account in assessing compensation "whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment". 64 The power in the Commission to make a money order, subject to the limitation on the quantum of compensation and the matters required to be taken into account by s 89(6), is nevertheless within the Commission's discretion. Whilst the Commission is required to take into consideration the matters identified in s 89(6), those matters are not necessarily to be reflected in any particular, arithmetic or definitive way in the money order for compensation made. We would thus accept the submissions of the respondent to the extent that it was contended that the way in which, and the extent to which, those matters are in fact taken into account is ultimately a matter of discretion in the circumstances of the instant case. See, for example, the decision of the Full Bench in Sunny Queen Limited t/as Australian Quality Egg Farms v Reilly [2000] NSWIRComm 1128. 201 In the present proceedings I am satisfied to take an arithmetic approach to the determination of compensation in each case, starting with weekly pay figures provided by Mr Elder and Ms Howell for their respective clients. In the case of Ms Rodriguez and Ms Khan, the amount will be calculated over a period of 26 weeks, as they have not secured further employment. Ms Rai's compensation will be reduced by one week to allow for "a few shifts" worked elsewhere in January 2006 and Ms Lai's compensation will cover the period to 9 February 2006 when she commenced alternative employment. Conclusion 202 The respondent's onus to prove the misconduct leading to summary termination of Ms Rai, Ms Lata, Ms Rodriguez and Ms Khan has not been fulfilled to the reasonable satisfaction of the Commission. The standard of the evidence against each of the applicants falls within the description of being inexact proofs and indefinite testimony. The allegations put to the applicants during their interviews were generalised, with the addition of some specifics in particular cases. 203 The complaints first received by the respondent were patently flawed. The second complainant, an AIN nominated by the first complainant, was an experienced employee who could relate only a single incident. None of the employees had been sufficiently concerned about the well-being of the residents to raise any issue with the respondent's management team prior to the investigation which followed the initial complaint. The Registered Nurse responsible for the resident's care was not even called to give evidence. 204 The generalised allegations, and the language used to describe them, were such that the applicants could not have known what they were each being accused of. In addition, they were misled, in my view, by the respondent's repeated statements that there were seven witnesses against each of the applicants. 205 Even so, there is no evidence that the respondent adequately checked its own records to determine that the applicants' particular responses were correct. On the contrary, the evidence in these proceedings shows that each particular issue raised by any of the applicants, such as rosters, absence on leave and the resident remaining in bed, have all been proven to be accurate, whereas many of the issues raised by the first complainant have been proven to be untrue or, at least, exaggerated. 206 In all, I find that the investigation carried out by the respondent was inadequate. Because of this inadequacy, I find that the respondent did not have a proper basis to conclude that any of the applicants was guilty of the type of serious misconduct of which she was accused. I find that the dismissals of Ms Rai, Ms Lata, Ms Rodriguez and Ms Khan were harsh, unjust and unreasonable. 207 I find that reinstatement or re-employment of any of the applicants is impracticable. In determining orders for compensation, I take into account matters set out earlier in this decision. Pursuant to s 89(6) I make the following orders. ORDERS 1. The Hammond Care Group is to pay to Barsha Rai an amount of $12589.50 being 25 weeks pay at the rate of $503.58. 2. The Hammond Care Group is to pay to Jasmin Lata an amount of $8800.61 being 13.3 weeks pay at the rate of $661.70. 3. The Hammond Care Group is to pay to Millie Rodriguez an amount of $16235.96 being 26 weeks pay at the rate of $624.46. 4. The Hammond Care Group is to pay to Vijay Khan an amount of $15876.64 being 26 weeks pay at the rate of $610.64. 5. The amounts set out in Orders 1 to 4 above are to be paid within 28 days of the date of this decision, being 10 October 2006. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.