Industrial Relations Commission of New South Wales CITATION: Barbara Scott and Greyhound & Harness Racing Regulatory Authority [2009] NSWIRComm 1005 APPLICANT Barbara Scott PARTIES: RESPONDENT Greyhound & Harness Racing Regulatory Authority FILE NUMBER(S): 820 of 2008 CORAM: Tabbaa C Temporary Employment Casual Conversion Bullying CATCHWORDS: Sexual Harassment Misconduct Composition of Selection Committee Reinstatement LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 07/10/08-09/10/09. DATE OF JUDGMENT: 11 February 2009 Mr John Murphy, of Counsel, with Brooke Pendelbury (instructing Solicitor) on behalf of the Applicant LEGAL REPRESENTATIVES: Mr Paul Brown, Solicitor, on behalf of the respondent DECISION: - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Tabbaa C 11 February 2009 Matter No. IRC 820 of 2008 BARBARA SCOTT and GREYHOUND & HARNESS RACING REGULATORY AUTHORITY Application by Barbara Scott re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ............................................................................................................................ D E C I S I O N 1 Ms Barbara Scott, the Applicant, filed a claim pursuant to s 84 of the Industrial Relations Act 1996 (the "Act") in which she contended that she commenced employment as a casual cadet Harness Racing Steward on 24 March 2006 with the Greyhound & Harness Racing Regulatory Authority (the "Respondent"), the only employer of harness racing stewards in New South Wales. She was elevated to a temporary position which she failed to secure in a permanent capacity following a selection process. That temporary employment ceased on 8 May 2008. The Applicant continues to be employed on a casual basis. 2 The claim for relief relates to the cessation of the temporary employment position. The applicant is seeking the primary remedy under the Act, which is reinstatement to that position. The Respondent submitted that the Applicant is effectively seeking an order to create a role and have the applicant appointed to that position. 3 Mr John Murphy, of Counsel, appeared for, and called evidence from, the Applicant. 4 Mr Paul Brown, Solicitor, appeared on behalf of the Respondent and called evidence from: Mr John Coughlan Chief Executive Officer Ms Kay Johnson Human Resources Manager Mr Michael Beattie Chair of Stewards, Harness Racing Panel FACTUAL BACKGROUND & CHRONOLOGY 5 The Respondent was established under the Greyhound & Harness Racing Regulatory Authority Act 2004 (the "GHRRA Act") and commenced operation on 1 October 2004. It is an amalgamation of two sections within the New South Wales racing industry, being greyhound and harness racing. It has two (2) steward panels, being the Harness Steward Panel and the Greyhound Steward Panel. Each Steward Panel is comprised of approximately eight to nine permanent Stewards. It employs approximately 47 permanent employees, two (2) temporary employees and a pool of 20 casual employees. 6 The Applicant has been involved at different levels of harness racing over the past 27 years. She approached the then Chairman of Stewards, James Perry, in May 2005 to discuss her intention to pursue a career in the administration of harness racing. In November 2005, she applied for the position of casual cadet Harness Racing Steward to which she was appointed on 24 March 2006. She commenced employment pursuant to a contract of employment dated 14 March 2006. Matthew Bentley also commenced employment on the same date as a casual cadet Harness Racing Steward. 7 At all relevant times, the casual position was subject to: (a) the policies of the Respondent (as amended from time to time); (b) the terms and conditions of the Crown Employees (Greyhound & Harness Racing Regulatory Authority Harness Racing Staff) Conditions of Employment Award 2007 (the "Award"); and (c) the terms and conditions of a written contract of employment dated 14 March 2006. 8 The Respondent submitted that the Applicant's employment was also governed by the relevant terms of the Public Sector Employment and Management Act 2002 (the "PSE" Act) which, it contended, confers on the Respondent a wide discretion to engage employees on a temporary basis. 9 In or around October 2006, Ms Scott informed management of various concerns she had in relation to Kevin Adams, a Harness Steward. 10 In June 2007, the Authority advertised a permanent full-time Steward position on the Harness Panel on its website and the Australian Racing Board's website. Ms Scott applied for that position. Michael Beattie was the successful applicant and Ms Scott was placed on an eligibility list for future vacancies. 11 In or around July 2007, Dave Kiernan, a Steward on the Greyhound Panel, proceeded on a period of extended leave of absence. Dean Degan was transferred to the Greyhound Panel to take up that position temporarily thereby creating a temporary fulltime vacancy on the Harness Panel. Mr Degan's transfer to that position was confirmed in writing to him on 24 July 2007 as a temporary appointment. 12 As a result of the Applicant's earlier placement on an eligibility list for a permanent position, she was contacted by John Coughlan, the Chief Executive Officer of the Authority, and offered the temporary position on the Harness Panel vacated by Mr Degan, which she accepted. In addition to the matters listed in paragraph 7 above, the temporary position was subject to the terms of a written offer to the Applicant dated 23 July 2007. She accepted the offer in writing the following day and the appointment was publicly announced in a press release issued by John Coughlan on 25 July 2007. 13 The Applicant relocated from Newcastle to Sydney in order to take up that temporary acting position on 30 July 2007. 14 Harness Racing, one of the longest organised sporting activities in Australia, is a largely male dominated industry and occupation and Ms Scott was the first female harness racing steward ever appointed and remains as such. 15 From 25 August 2007 to 1 March 2008, the Harness Racing industry was seriously affected by equine influenza resulting in a substantial number of race meetings being cancelled and the Applicant's role being mostly administrative in nature. 16 In or around October 2007, Kay Johnson, the Human Resources Manager, was made aware of further concerns Ms Scott held in relation to Kevin Adams. Ms Johnson addressed the matter internally. 17 In or around October 2007, the Applicant and Michael Beattie had words in relation to vaccinations conducted in Goulburn. 18 In November 2007, the Applicant complained to James Perry, then Chairman of Stewards, about sexual harassment by Kevin Adams. 19 On 28 November 2007, the Applicant received an internal memorandum from John Coughlan recognising her contribution, commitment and dedication to the GHRRA during the Equine Influenza crisis. 20 On 15 January 2008, the Applicant formalised her sexual harassment allegations against Kevin Adams by submitting thirteen allegations in writing. The Respondent commenced an investigation into the allegations. The Applicant and Kevin Adams were interviewed on 22 and 24 January 2008 respectively. Ms Scott was advised on 29 January 2008 that a decision had been made to appoint an independent investigator to deal with the complaint. Ms Scott formalised the responses she gave at the interview in writing and provided them to the Respondent on 31 January 2008. 21 Also in or around January 2008, Kay Johnson became aware of a number of concerns Ms Scott had in relation to Michael Beattie. Those concerns involved a number of allegations of systematic bullying by Mr Beattie over a six month period (during August and October 2007 and again in January 2008). Mr Beattie provided Ms Scott with an apology on the same day Kay Johnson made him aware of those concerns. 22 In or about January/February 2008, James Perry, Chairman of Stewards, and Trevor Flower, Steward, tendered their resignations. On 15 February 2008, Michael Beattie was promoted to Chairman of Stewards and, hence, became the Applicant's immediate supervisor. 23 On 19 February 2008, a follow up meeting was held with the Applicant to advise her of the outcome of her sexual harassment complaint against Kevin Adams. Mr Adams was required to, and did, apologise to the Applicant on 7 March 2008. Counselling was arranged for the Applicant as recommended in the report. 24 On 22 February 2008, the Applicant reported another alleged incident of bullying by Michael Beattie to Kay Johnson. 25 On 13 March 2008, the Counsellor advised the Applicant of an email she had received from Kay Johnson, the contents of which distressed the Applicant. The Counsellor also advised the Applicant that she was suffering from Depression and Post Traumatic Stress Disorder. 26 The Applicant was advised on 1 May 2008 that she had failed in her application for the position of full-time Steward on the Harness Panel. 27 In around May 2008, as a result of a resignation from a Steward and another Steward proceeding on a period of leave of absence, arrangements were put in place to advertise and recruit for those permanent positions. The Applicant was advised of the cessation of her temporary position. 28 In or around May 2008, interviews were conducted for the permanent and temporary vacancies. Dean Degan was successful in obtaining, on a permanent basis, the position he previously held on a temporary basis on the Greyhound Panel. As a result, the Respondent advertised and interviewed candidates for his permanent Steward position on the Harness Steward Panel. 29 In or around May 2008, the Respondent became aware of a number of allegations made by Matthew Bentley relating to discussions he had with the Applicant. A meeting was called by Kay Johnson and Michael Beattie with the Applicant on 19 May 2008 to advise her of the allegations. Kay Johnson kept diary notes of the meeting which she subsequently provided to Ms Scott. 30 On 21 May 2008, the Applicant applied, and was interviewed, for the permanent and temporary Greyhound Steward positions. She was advised that she had been unsuccessful in relation to both positions on 28 May 2008. 31 Ms Scott filed an application for relief from unfair dismissal with the Industrial Commission of NSW on 29 May 2008 in relation to the temporary position. 32 On 2 June 2008, the Applicant was provided with written confirmation, signed by John Coughlan, that her appointment as permanent Steward (Greyhound) would cease on 2 June 2008 when Dean Degan was due to take up the position. She was further advised that she would be restored to the list of casual Harness Stewards. Ms Scott was paid two weeks' pay in lieu of notice and her accrued annual leave. She was required to return all property belonging to the Respondent as a result of the cessation of that temporary employment. 33 Ms Scott provided the Respondent with a written response, on 7 July 2008, to the allegations made against her by Matthew Bentley. 34 Ms Scott remains employed by the Respondent as a casual Steward on the Harness Panel. ENTITLEMENT TO FULL-TIME EMPLOYMENT 35 The Respondent submitted that, pursuant to section 7 of the GHRRA Act, it cannot employ staff. Staff may be employed pursuant to Chapter 1A of the PSE Act which confers on it a wide discretion to engage employees on a temporary basis to enable it to exercise its functions. 36 Mr Murphy pointed out that the Respondent was erroneously relying on the provisions of Chapter 2 of the PSE Act which allow for the employment of temporary officers or temporary employees. He pointed out, however, that sections 5 and 6 of that Act specifically exclude the Respondent from its operation and, therefore, there is no statutory basis upon which the Respondent is entitled to employ people on a temporary basis. It was not disputed, nevertheless, that the Commission has jurisdiction to deal with the dispensing of the services of an employee in a public service context. Mr Murphy concluded that the employment of the Applicant was therefore underpinned by the Award 37 Mr Murphy drew attention to the following: Firstly, the Applicant's regular and systematic pattern of work are borne out by the letter of appointment, dated 14 March 2006, which stipulates that the Applicant would be required to work one or two harness race meetings per week, which will include evenings and/or weekends, as rostered by her Manager. Secondly, in practice, by October 2006 and definitely by July 2007, the Applicant had worked regular shifts every week of at least one race meeting, but often two race meetings. An examination of the shift rosters reveals that, on average, the Applicant worked an average of six race meetings per month. It was noted that, during cross-examination, the Applicant insisted that she was on a regular monthly roster, working between six and eight shifts per month. James Perry, who prepared the rosters at the time, invited her to let him know if she ever wanted a Saturday night off. In fact, she had given him two months' notice on one occasion that she would not be available on a Saturday as she had to attend a wedding. In addition, she had arranged with the Ambulance Service, her other employer, to have Thursdays off in order to attend Newcastle race meetings. She stated that it made sense that, as a trainee, she was offered regular shifts to reinforce her training. The Respondent, she further insisted, took it for granted that she was available on at least those two days unless she advised otherwise. Thirdly, the casual employment is systematic in that it is not disputed that the rosters are prepared a month in advance, albeit they may be subject to change from time to time. 38 The Award contains standard provisions in relation to full-time, part-time and casual employment. It does not contain a reference to temporary employment, however, it does contain a casual conversion clause. Clause 38 places an obligation on the employer, after a casual has been employed on a regular and systematic basis for a period of six months, to invite the employee to apply for permanent employment, either full time or part time. Mr Murphy pointed out that it was never done despite the fact that she worked on that basis for in excess of 12 months. 39 Mr Murphy concluded that the Respondent breached its obligation to offer the Applicant the opportunity to elect to convert her casual employment status to permanent once she had completed six months of regular casual employment as per the requirements of the Award. 40 Mr Murphy submitted that in view of the above, and in the absence of any sound reason as to why that election cannot be granted, the Applicant was entitled to be notified of her right to elect to be made permanent. The clear denial of that award benefit, a crucial issue in the circumstances, constitutes not only a breach of the award but demonstrates another element of the unfair treatment of Ms Scott. 41 Ms Johnson, the Respondent's Human Resources Manager, denied that it was as a result of her instigation that Ms Scott applied for the casual position in the first instance. She recalled that she had received a call from the Applicant in or about November 2005 inquiring about a position and she had advised her to submit an application for employment. 42 Ms Johnson gave evidence that the Applicant presently resides in North West Sydney and is accordingly rostered to work at race meetings within the Sydney metropolitan area. She contended that the Applicant's working patterns as a casual employee "are sporadic and subject to the business needs of the Authority at any one time". She had reviewed the Applicant's casual engagements attendance in the period March to October 2006 and confirmed that Ms Scott had been rostered on an "as required, non-systematic basis". 43 Mr Brown argued that, at the time of the cessation of her temporary appointment, the Authority was not obliged to provide, and Ms Scott was not entitled to, on-going permanent employment of an indefinite duration. 44 Mr Brown submitted that there was sufficient evidence from both the Applicant and the Respondent witnesses that the roster pertaining to the casual employees was prepared with reference to matters such as availability of full-time stewards, their annual leave applications, attendance at inquiries and travel times. It was submitted that, just because an employer can foreshadow, a month in advance, where the holes in full-time capacity may be, does not make the employment regular and/or systematic. The allegation of an award breach was denied and it was submitted that the evidence of a roster was, at best, neutral. 45 Mr Brown further submitted that, irrespective of the provisions of the legislation and of the relevant classifications under the industrial instrument in relation to "temporary" employment, there is nothing special about the term and it is open for the parties to agree upon that mode of employment, which they did. Mr Brown pointed out that the facts and circumstances as to why the appointment was temporary had been explained to the Applicant and confirmed to her in writing. In addition, a news release which was circulated to the entire organisation, and tendered by the Applicant in the proceedings, announced that two temporary appointments had been made that day. The Respondent rejected the proposition that it was statute barred or barred by law or barred by rationality from having a meeting of the minds with an employee on the nature of the employment being a temporary engagement. Both those temporary contracts came to conclusion on the same day. 46 Mr Brown also submitted that Mr Coughlan should be believed of his denials of the representations regarding when and how the temporary role would be made permanent. 47 Clause 38, Secure Employment, of the Crown Employees (Greyhound and Harness Racing Regulatory Authority - harness Racing Staff) Conditions of Employment Award 2007, provides that: (i) A casual employee engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment under this Award during a calendar period of six months shall thereafter have the right to elect to have his or her ongoing contract of employment converted to permanent full-time employment or part-time employment if the employment is to continue beyond the conversion process prescribed by this subclause. SEXUAL HARASSMENT ISSUES 48 Mr Murphy pointed out that Mr Adams, a Steward employed by the Respondent on the Harness Racing Panel, was an employee of longstanding service and experience when the sexual harassment and workplace bullying commenced and continued. He had the power to influence, either positively or negatively, the Applicant's career prospects within the Authority and the Applicant was powerless to prevent it. The Applicant's evidence was that he commenced to make unwelcome comments to her "of a personal and sexual nature" in September 2006. 49 Mr Murphy further pointed out that, initially, it was other stewards who, having witnessed the sexual harassment, brought these matters to the notice of Kay Johnson. That was confirmed by Ms Johnson who, during cross-examination, stated that another Steward on the Harness Panel, Mr Chris Paul, brought to her attention, in or around October 2006, what he considered to be inappropriate comments made to Ms Scott by Mr Adams. She initiated a discussion with Ms Scott on 9 October 2006 who confirmed, firstly, that she had felt uncomfortable with Mr Adams' suggestion that she have dinner with him; secondly, while she had not told him immediately that his comment was inappropriate or that it offended her, she intended to do so on 12 October 2006 as they were rostered to work together at a race meeting in Newcastle; and, thirdly, she was comfortable talking to Mr Adams about the issue. The Applicant pointed out that she needed to deal with it personally. She confirmed that Ms Johnson said to her that she needed to be advised if his behaviour did not alter following that discussion. Ms Scott said that she had followed Ms Johnson's advice and asked Kevin Adams to stop the harassment and it had indeed ceased for several months until July 2007. 50 Ms Johnson said that she followed up on that conversation by calling Ms Scott on 13 October 2006 to find out how she had fared. She was concerned when Ms Scott advised her that she did not get the opportunity to raise the matter with Mr Adams and that the inappropriate comments had escalated to the extent that she was not only embarrassed but was concerned that other people would get the wrong impression. Ms Scott told her that, in responding to someone's question regarding his accommodation, he had said that he "...might have to move in with Barbara". Ms Johnson stated that she confirmed with the Applicant that she would raise the issue with Mr Adams and that she was comfortable doing so. She recalled that Ms Scott had said to her: "I'm concerned about this. I'll call Kevin [Adams] over the weekend and advise him that his comments are inappropriate and offended me and that he should stop immediately." 51 Ms Scott confirmed during cross-examination that she was content to deal with the issue personally believing that it was the best way to handle it initially by letting him know that she found his behaviour offensive. 52 Ms Johnson further stated that she initiated another follow up call to the Applicant on 18 October 2006 during which Ms Scott confirmed to her that she had raised her concerns with Mr Adams. She told Ms Johnson that Mr Adams had apologised to her indicating that he had not intended to offend her and did not realise that she had been offended. She recalled that Ms Scott had raised her concern that the issue with Mr Adams might threaten her employment. She had advised Ms Scott to contact her immediately if there were any repercussions which negatively affected her in her working relationship with Mr Adams. She had assured Ms Scott that the Respondent would support her through any difficulties that may arise. Ms Scott confirmed, during cross-examination, that at that particular point in time, she was very comfortable with the degree of support that was given by Ms Johnson and was confident that the sexual harassment would stop. 53 Ms Johnson gave evidence that she formed the view that the issue between Ms Scott and Mr Adams had been adequately addressed because, on 21 November 2006, she contacted Ms Scott to determine whether normalcy had resumed in the latter's working relation with Mr Adams. She made a file note of that conversation which she tendered in the proceedings. Ms Scott, she said, advised her that she felt comfortable working with him and that he had made no further mention of the incident. Ms Johnson said she had concluded the conversation with an instruction to the Applicant to contact her immediately if anything like that happened again. The above account was confirmed by the Applicant during cross-examination. Ms Scott accepted that Ms Johnson was within her rights to feel that she was comfortable working with Kevin Adams at that stage because she had indicated to Ms Johnson that Kevin Adams had stopped harassing her since she had the talk to him. 54 Ms Johnson said that she had not received any further complaints or concerns from Ms Scott in relation to Mr Adams until 15 January 2008 when Ms Scott handed her a letter titled "Formal Complaint Regarding Sexual Harassment". She provided a copy of that letter to Mr Coughlan and they discussed how to address its contents. Ms Johnson pointed out that the formal complaint did not make mention of the alleged repeated incidences of "bullying" that Ms Scott referred to in the statement which she tendered in the proceedings. 55 The Applicant stated that there was further bullying by Kevin Adams at a Bankstown race meeting on 6 August 2007 and unsolicited incidents of touching in September 2007. Ms Scott also stated that she reported the resumption of inappropriate behaviour to Kay Johnson and to Bill Cable, Acting Chairman of Stewards, in October 2007. She had complained to James Perry, then Chairman of Stewards, upon his resumption at work from a period of annual leave in November 2007, however, she had not requested a transfer to other tracks as it would not have been appropriate for a number of reasons. Firstly, she was a casual trainee and the majority of her work was in Newcastle where she was also living. It would have been financially unviable for the Respondent to transfer her because of the cost involved in travelling to those tracks. Secondly, Mr Adams was a permanent full time steward who had established himself as a regular steward at Newcastle so she did not believe that the Respondent would opt to move him to other race tracks. Finally, she did not consider that she had done anything wrong and therefore should not have to interrupt her training by seeking to work elsewhere. Ms Johnson denied that the Applicant had informed her of all the documented incidents or of any incidents that she said occurred between October 2006 to October 2007 with respect to Mr Adams. Ms Scott further stated that Kay Johnson led her to understand that she had spoken to Kevin Adams informally in October 2006 and reinforced the Applicant's request to cease sexually harassing her. That statement was denied by Ms Johnson. Ms Scott also stated that she was aware that Kevin Adams admitted his actions to Mr Perry in October 2006. 56 The Applicant said that, initially, she had not lodged a formal complaint against Kevin Adams as she was fearful of unpleasant reprisals from the Respondent. However, when she became aware that Matthew Bentley had lodged a sexual harassment claim against him on 15 January 2008, she felt empowered to do the same. She documented thirteen incidents of sexual harassment in a written complaint to Kay Johnson dated 15 January 2008. 57 The Respondent commenced an investigation into the allegations contained in the written complaint. Mr Coughlan, Chief Executive Officer, gave evidence that his duties included overall responsibility for the day to day management of the Authority and to enforce policies established by its Board. He stated that he called a meeting with the Applicant and Ms Johnson on 22 January 2008 to provide the former with an opportunity to address each of the concerns raised in her written complaint against Kevin Adams. 58 Mr Coughlan stressed that the meeting was not disciplinary in nature nor were his inquiries intended to be interrogatory in nature. He was merely attempting to understand the nature of her complaints. Ms Scott had a different recollection of the meeting. She said that she thought that the purpose of the meeting was to come up with a process for investigating her complaint against Kevin Adams. Instead of being provided with the support she was expecting, the meeting had degenerated into an interrogation into her actions with John Coughlan accusing her of leading Mr Adams on. Ms Johnson denied that Mr Coughlan used the meeting to interrogate Ms Scott. Rather, it was to make the Applicant aware of matters that had come to the attention of the Respondent. She described the meeting as calm and following an interview format. 59 Ms Scott said that Mr Coughlan asked her various questions which appeared to lay the blame at her feet and which seemed to indicate to her that he would have preferred her to deal with the problem herself and not trouble him with it. Mr Coughlan denied that he had "interrogated" Ms Scott pointing out that he had merely asked her a series of questions in order to obtain a better understanding of the full facts. 60 Ms Scott said that one of the questions he asked her was, "How am I going to handle the fall out from all of this?" Mr Coughlan stated that he could not recall asking it although it was probably something that was going through his mind at that time. 61 Ms Scott also recalled that he had asked her, "Why didn't you tell him to piss off?". Mr Coughlan could not recall specifically asking her that and accepted that such a comment, if it had been made, would have been inappropriate in the circumstances. Ms Johnson recalled that he had asked it of the Applicant. 62 Mr Couglan said that he met with Matthew Bentley regarding his sexual harassment complaint against by Kevin Adams. He confirmed that he had not asked Mr Bentley, "Why didn't you tell him to piss off?" because the nature of the complaint was different. He could not recall if he asked Mr Bentley whether he had led Kevin Adams on. 63 Mr Coughlan recalled asking the Applicant why she had not spoken to James Perry, then Chair of Stewards and initial contact point in relation to issues with other Stewards, about the issue of harassment and requested a transfer to other tracks. 64 The Applicant stated that Mr Coughlan also asked a rhetorical question to the effect of, "Why are all the Harness Stewards a problem?" to which Ms Johnson had responded, "Come on, John, that's not fair". She recalled that Mr Coughlan had insisted, "Yes it is. When I started here, there were two stewards stood down for misconduct. I never had any trouble with the greyhound stewards". Mr Coughlan could not recall such an exchange. However, he pointed out that he would not dispute Ms Johnson's recollection of what he had said at that meeting and if Ms Johnson recollected that they did have that exchange, then he would accept that he said it in a general way about the problems he encountered with harness racing stewards when he first commenced employment in comparison with the greyhound stewards, the relevance being that he was making an effort to explore the issues. Ms Johnson stated that she could not recall that exchange. 65 Mr Coughlan recalled that he had provided the Applicant with a copy of an email she had forwarded to Kevin Adams and given her an opportunity to read it. Ms Scott said that she had not expected either Mr Coughlan or Ms Johnson to investigate the complaint. She presumed that an independent investigator would be appointed to undertake that task. She therefore did not think it appropriate to be questioned by Mr Coughlan as to the contents of the email, particularly as they were not relevant to the sexual harassment complaints she had made against Mr Adams. 66 Ms Scott stated that she was surprised that Kevin Adams would provide a copy of her email to him in explanation of his actions. She denied that it could be inferred from its contents that she was in a consensual relationship with Mr Adams. She stated that she had received, and still had in her possession, four emails of an intimate nature from Mr Adams which she ignored prior to finally responding with said email. Those emails were not tendered in the proceedings. She had not received a response, either verbally or in writing, from Mr Adams to her email. She did not agree that it would have been relevant to include a copy of the said email with her letter of complaint. She explained that the September/October 2006 sexual harassment ceased after she spoke to him. During August 2007, they were discussing a possible relationship between them and the email was the culmination of those discussions. She did not regard any of those conversations or actions as sexual harassment because they were talking about him sorting out his personal life and the possibility of developing a relationship between them at some stage in the future. 67 Ms Scott explained that, had Mr Coughlan sought, or provided her with an opportunity, for an explanation as to the circumstances, she would have explained that in July 2007 she was still a casual trainee, she was still living in Newcastle and had her family staying with her because throughout that month her mother was quite ill and in hospital and she spent every day at the hospital with her. In relation to August 2007, the rosters would confirm that Kevin Adams was on holidays in the country for a period of two weeks. It was not possible therefore for there to be a relationship between them. The said email was forwarded to Kevin Adams on 5 September making it clear that she no longer wanted to have discussions with him and she wanted his overtures to cease. She acknowledged that her email referred to "our feelings for each other" but pointed out that it was incorrect. She had intended to point out that he had initiated the discussion stating that he wanted to talk about his feelings for her. She insisted that there was no relationship between them. Ms Scott explained what she meant by her email: ..... Kevin and I had many discussions about his feelings for me and he wanted to pursue a relationship with me, and my position all the time was, you need to sort out your personal life. Because he was telling me that his marriage was not strong, he was wanting to get out of his marriage and my position always was, you need to sort out your personal life.... So I made myself clear to him that he needed to sort out his life. But because we were having discussions about whether at some stage in the future we could have a relationship, and we had many of these discussions about what if, we had like a secret between us, and that's what I was referring to by saying, "I feel like we've been having an affair", because there were secret discussions between us and I was likening that to that people who do have an affair have a secret between them. 68 Ms Scott disagreed that the secret discussions she held with Kevin Adams were intensely personal in nature pointing out that they had a friendly relationship. She was, in the main, a sounding board for him, a sympathetic ear, when he wanted to talk about his marital problems. She admitted that whilst she had not agreed to enter into a relationship with him at that point in time, she had also not ruled it out, indicating that he needed to sort out his personal life before she would discuss whether or not she would enter into a relationship with him. A. ......... I never gave him a firm undertaking that I would have a relationship with him. My position always was, Kevin, you need to sort out your personal life. And I used to say to Kevin, you can't be married one day and expect to be in a relationship with someone else the next day. There's a period of time where you need to get to know someone and see if a relationship does develop. 69 In relation to her comment in the email that she did not want to see Kevin Adams any more, she explained that he wanted to go somewhere with her for a cup of coffee. Because she wanted to avoid being seen in public with him and avoid gossip about them, she had invited him to her home to discuss the pressure he was continuing to exert on her to have an affair with him. At one stage, after she came of the bathroom, he told her that he had laid down on her bed. She said that she immediately asked him to leave her home. 70 Ms Scott confirmed that her expectations had been met. Firstly, an independent person was appointed to investigate her complaint against Kevin Adams and, secondly, there was a level of support provided to her by management to the extent that she was advised that she would not have to work with him until her complaint was investigated and resolved. 71 Mr Coughlan stated in cross-examination that, having read the contents of that email and discussed the complaint with Mr Adams, he had formed the view that there "may have been" a close personal consensual relationship between Ms Scott and Mr Adams between July to September 2007. He could not recall asking the Applicant, "Well, could you have led him on?" Both the Applicant and Ms Johnson recalled that question. 72 Mr Coughlan recalled that she had not responded to his comment to her that, "Well, it seems like there are two sides to every story". He explained that he made that comment because the email implied that there may have been complicity between the two parties. He referred to extracts from the email which presented the possibility of an alternate picture, a suggestion that the Applicant wanted Mr Adams to make a determination one way or the other about their relationship. He argued that if the Applicant had felt pressured by Mr Adams to enter into a relationship in circumstances which were entirely unacceptable to her, then the email would have been much shorter and much more succinct in relation to what should happen to the relationship. Mr Coughlan did not recall Ms Scott telling him that the relationship she had with Mr Adams was sick nor denying that a relationship existed. Later on in cross-examination, he stated that he refused to accept the Applicant's protestations in reference to the existence of a relationship with Mr Adams and that what relationship they did have was "sick" because he had already formed a different view. 73 As Chief Executive Officer, Mr Coughlan accepted that sexual harassment of any level of gravity is unacceptable in the workplace especially between someone like Mr Adams who is a longstanding, experienced, senior member of the panel and someone like Ms Scott who is relatively junior and new. 74 Mr Murphy submitted that the lengthy email from Ms Scott to Mr Adams required careful analysis. He noted that Mr Coughlan read its contents and concluded that the Applicant had led Mr Adams on. He pointed out that Ms Scott was in fact responding to the intensifying pressure from Mr Adams who was attempting to engage her in a relationship. It was an email which, when read and understood in its context, was a plea from Ms Scott to Mr Adams to leave her alone until he sorted out his own personal situation. He was in a marriage at the time and effectively what Ms Scott was telling him was that she did not want to get involved with him whilst he was married. Mr Adams had ignored that plea and continued to sexually harass her. Mr Murphy said that the Applicant had dealt with the issue of the email she sent to Mr Adams in September in a very credible way. It was submitted that, despite Mr Coughlan and Ms Johnson's attempt to twist her words around to give them some other quite different meaning in order to suggest that the Applicant was leading Mr Adams on, a fair reading of that email would lead to the opposite conclusion. Ms Scott had adopted an entirely appropriate response to the pressure that she was being put under to engage in a relationship with Mr Adams. She had made it clear that she wanted him to leave her alone, that she was not interested, and would not consider his advances until he sorted out his marital issues. 75 Both Mr Coughlan and Ms Johnson confirmed that they had formed the view that the appropriate course of action was to engage the services of an independent investigator to enquire into the allegations by Ms Scott against Mr Adams. On 29 January 2008, John Coughlan wrote to the Applicant advising that Ms Christie Breakspear, an independent investigator, had been appointed to fulfil that role. Ms Breakspear was referred to the Respondent by a member of the Equal Opportunity Division of the NSW Administrative Decisions Tribunal. 76 On 4 February 2008, the Applicant was interviewed by Ms Breakspear in relation to her complaints against Kevin Adams. Ms Scott said that she spoke to the independent investigator for about an hour and a half. Prior to discussing the issue, she had questioned the investigator as to the extent of her brief and was advised that her role was to establish, on the balance of probabilities, whether sexual harassment and bullying had occurred. Ms Scott stated that she had concerns at the time that she was being interviewed before Kevin Adams and would therefore not have the opportunity to respond to any matters raised by him. The results of the investigation confirmed that her fears were founded. The report included a finding, based on interviews with witnesses and Kevin Adams, that Kevin Adams and herself were involved in a close personal relationship during the period July to September 2007. Ms Scott was not aware of who those witnesses were or what information they provided about Mr Adams and herself. She disagreed with both the process and the conclusion reached. She vehemently denied having a close personal relationship with Mr Adams despite the fact that they were discussing matters pertaining to their potential relationship. She insisted that he was discussing with her matters pertaining to his personal life - matters relating to his sexual relationship with his partner at the time. Ms Scott considered a close personal relationship to include a sexual relationship. 77 The outcome of the investigation was relayed to the Applicant at a meeting with John Coughlan and Kay Johnson on 19 February 2008 and confirmed to her in writing by Kay Johnson on 26 February 2008. Ms Johnson informed Ms Scott that Ms Breakspear found only three of her allegations against Mr Adams constituted sexual harassment and, further, that the allegation that Mr Adams had subjected her to unwelcome sexual harassment for over 12 months was unsubstantiated. Mr Coughlan stated in his statement that Ms Breakspear's report had identified "only" three instances of sexual harassment. It was deemed to be sexual harassment in relation to the allegation that Mr Adams had asked too many personal questions about Ms Scott's marital status, family, and personal health. In relation to the allegation that while they were having dinner at KFC, Mr Adams made a remark that "this could be our first date", it was deemed to be highly inappropriate, an unwanted remark and constituted harassment. In relation to the allegation that Mr Adams made a comment in front of other persons to the effect that "I'm going to move in with Barbara", Ms Breakspear found that comment to be inappropriate, tasteless and constituted harassment. 78 During cross-examination, Mr Coughlan accepted that Ms Breakspear deemed that the four instances when Mr Adams touched Ms Scott were unwanted, unwelcome and uninvited behaviour and therefore constituted sexual harassment. He acknowledged that those four instances were in addition to the three set out above. Nevertheless, he argued that although a couple of the allegations contained multiple instances of harassment, the number of complaints proven should only amount to four. He denied the suggestion that he was attempting to downplay the seriousness of the sexual harassment of Ms Scott by Mr Adams. 79 Mr Coughlan conceded that Ms Breakspear had found unacceptable behaviour that amounted to workplace bullying in relation to another allegation. He argued that he had only turned his mind to the sexual harassment allegations in his statement and had not addressed the issue of bullying. 80 Mr Murphy questioned the purpose of Mr Coughlan's blithe dismissal of the thirteen allegations raised by Ms Scott just because Ms Breakspear found that "only three" of the 13 allegations were substantiated. In fact seven instances of sexual harassment and one instance of bullying had been identified. Ms Breakspeaar formed the view that the Applicant and Kevin Adams were involved in a consensual close personal relationship without ever reverting back to Ms Scott to get her response to that. In fact it was quite to the contrary. Ms Scott described, in her email, a sick relationship where there was pressure coming from a senior employee with power to influence her career to achieve a certain outcome which she was not willing to engage in given the fact that he was married. 81 The disciplinary action taken against Mr Adams was that he was required to, firstly, provide a written and a verbal apology to Ms Scott; secondly, receive a formal written warning as a result of his conduct towards the Applicant; and thirdly, undertake counselling. Mr Coughlan confirmed that, apart from that, Mr Adams suffered no other detriment at all concerning his career and his employment. He provided a written apology to the Applicant on 7 March 2008. Mr Murphy described the written apology as "very qualified", "hardly an expression of remorse and regret". 82 Ms Scott was also provided with counselling. When Ms Scott commenced her counselling with Nancy Troke on 28 February 2008, she said she explained to her about her mounting distress at the lack of support she was getting from management. She had pointed out that John Coughlan had ceased speaking to her and Kay Johnson was discouraging her from formally complaining about Michael Beattie who was continuing to bully her. 83 On her third visit, on 13 March 2008, Ms Troke advised the Applicant of the contents of an email she had received from Kay Johnson the contents of which distressed the Applicant. The email stated in part: "As mentioned, it is important that Barbara develop coping strategies to enable her to work professionally with her male colleagues." Ms Troke, she said, told her that " These comments are offensive and insensitive...they imply your behaviour is unprofessional. " Ms Troke went on to inform her that she had advised the Respondent that the Applicant was suffering from Depression and Post Traumatic Stress Disorder. Ms Johnson argued that it was designed purely as a guide as to where to focus in assisting the Applicant to develop strategies to cope with a situation where she worked with a predominantly male workforce. Mr Murphy pointed out that, despite the finding that the Applicant had made valid complaints of harassment, Ms Johnson appeared to blame the Applicant for being a victim of a sexual harassment situation. The Commission was reminded that when those issues were raised with Ms Johnson during cross-examination, her response to them was entirely dismissive. 84 Mr Brown submitted that, on the evidence, there should not be a criticism of Mr Coughlan's account of what he said occurred at the meeting with the Applicant on 15 January 2008. The Applicant sought two things from the meeting - a broader consideration and an independent investigation. The Respondent commissioned an independent investigation. In relation to the first part, Mr Coughlan did take a broader view of the matter. It was submitted that, armed with the email from the Applicant to Mr Adams, it was quite appropriate and not unfair for Mr Coughlan to ask the questions that he did. BULLYING ISSUES 85 Mr Beattie was a steward, more recently appointed than the Applicant, when he commenced his inappropriate and bullying behaviour towards Ms Scott. Mr Murphy pointed out that it was not the Applicant who brought that behaviour to the attention of management. Rather, it was Mr Adams who witnessed the behaviour and brought it to the attention of James Perry, the Chairman of the Harness Racing Panel. The Applicant detailed seven instances of bullying conduct by Mr Beattie. 86 On 4 August 2007, Ms Scott was participating in discussions with Kevin Adams and Michael Beattie at a trotting track at Newcastle Paceway regarding whether one or more drivers would be charged in relation to a breach of the rules on 4 August 2007 at a previous race meeting she had chaired. She said that she and Kevin Adams shared the same view as to the action to be taken. She said that Mr Beattie was trying to talk over the top of both of them and, at one stage, warned her in an aggressive tone to "shut up and listen". Unbeknownst to her, Kevin Adams had complained to the Chairman of Stewards, James Perry, who called her and assured her that he would be speaking to Michael Beattie about his behaviour towards her. Mr Beattie said he was a Steward at the time. He insisted that he had said to Ms Scott words to the effect of, "No, Barbara, you need to listen". He explained that it was not unusual in situations such as that for the discussion to be vigorous and robust but denied that his behaviour had been aggressive. Mr Beattie stated that, on or around August 2007, he had a conversation with Mr Perry, the Chair of Stewards, about a number of issues including the relationship between Mr Adams and Ms Scott. Mr Perry had cautioned him, without any elaboration, to be wary of Ms Scott, "You need to be very careful in your dealings with Barbara [Scott] as she can be oversensitive to some issues". 87 On or about October/November 2007, Michael Beattie was working with a Vet in Goulburn vaccinating horses when they ran out of microchips. That meant that they lost half a day and had to organise another run to complete the job. Ms Scott said that he was upset and blamed her for that omission. Although she had not been threatened by his words to her, "I am going to kill you", she was offended and intimidated by him. She recalled responding with words to the effect, "It's not up to me to pack your supplies, I'm not your mother" although she had not recalled that statement when she was preparing her statement. She pointed out that vaccinations were completely new to Stewards as equine influenza had not occurred in NSW previously and there were no set procedures on the issue. The practice was for Stewards to take sufficient supplies with them on a daily basis in order to vaccinate a large number of horses in an area. She argued that it was no use calling her because she could not remedy the fact that he had failed to take sufficient supplies of microchips with him. Mr Beattie stated that he had not called to blame her for the discrepancy but merely to confirm the correct number of horses which required to be vaccinated as she was the Steward who had provided the instructions on the matter. He denied that he had spoken to the Applicant in an intimidating or offensive manner. 88 Ms Scott added that there was further offending behaviour towards her on 14 January 2008 when Michael Beattie implied, in the presence of other Stewards that she was incompetent. He was critical of the fact that while she was chairing the event at the Temora Trots the previous day, she had allowed an unlicensed bookmaker to work there. She recalled that when she corrected Mr Beattie by indicating that she was "Chairwoman" and not "Chairman" at that event, he had responded with words to the effect that, "You weren't even that...". Mr Beattie explained that the comment was not intended to be offensive. He explained that the Applicant was in Temora the previous day in the capacity of Chief Steward. She was under the impression that she was there as "Chairwoman". Mr Beattie had made it clear to her and to other members of the Stewards Panel in a number of discussions that in circumstances where a Steward was the most senior person at a race meeting, their title was that of Chief Steward, as defined by the harness racing rules. Ms Scott pointed out that the term "Chief Steward" was not in use at that time. The issue concerning the unlicensed bookmaker was totally separate subject. He recalled receiving a telephone report from the Office of Liquor Gaming and Racing advising him that an unlicensed bookmaker had fielded at the Temora Trots meeting. The procedure was for him to pass on that information to whoever was Chief Steward at that meeting. Hence his call to the Applicant to give her that information. He denied that his comments to her were vindictive or designed to discredit her professionally or to imply that she was incompetent in performing her job. 89 Ms Scott stated that just six days after she lodged a formal complaint against Kevin Adams, she experienced a distressing and vicious attack from Michael Beattie in the presence of approximately five Stewards at Bankstown office on 21 January 2008. They were discussing the structure of the stewards report for a race meeting later that month. Both Ms Scott and Mr Beattie were in agreement that the conversation at one particular point was becoming a bit heated when Mr Adams made a comment to the effect, "Did you hear the trainee in Queensland resigned?" whilst he was reading something off the computer. She had commented on that statement believing that it was a general comment and not directed at anyone in particular. She had expressed an opinion that the trainee had resigned because she probably could not handle working with men. Mr Beattie had responded, "If that's how you feel, you have the option of resigning... I am not going to suck up to you. Everyone knows if you fall out with you - you've fallen out for good." At her request, he had provided clarification of his intention, "I have been doing Steward Reports for 30 years. I am not going to have someone who has been here 6 months tell me what to do". When she tried to explain that she was merely attempting to achieve uniformity in report writing, he had retorted, "I am not going to have a conversation with you unless it is recorded. Everyone knows if you fall out with you - you've fallen out for good. I've been here long enough to see what's going on here." She had noted the conversation in her diary and reported it and the previous incidents to Ms Johnson as she was convinced that his behaviour was directly attributable to her sexual harassment complaint against Kevin Adams and that his comments were intended to discredit her. Mr Beattie said that Mr Adams had directed the question at him and the fact that Ms Scott chose to reply prompted him to make the retort attributed to him. He agreed with the transcript of the conversation as outlined by the Applicant. Mr Beattie stated the he noticed that Ms Scott was visibly upset by his remark and so he initiated a meeting with Ms Johnson to seek advice on how best to handle the situation. He had apologised to the Applicant later that day. He denied that his behaviour towards the Applicant was a direct result of her lodgement of a sexual harassment complaint against Mr Adams. Ms Johnson said that she had made a diary note of the complaint she received from Ms Scott and the explanation provided to her by Mr Beattie. Ms Johnson recalled that Ms Scott told her that she had complained on two occasions to James Perry, Chair of Stewards - Harness, about Mr Beattie being a "bully" but she could not take them up with him as he was on leave of absence at that time. She said that Ms Scott had not made any mention to her that the above comment by Mr Beattie was a direct result of her lodgement of a sexual harassment claim against Mr Adams or as a result of any other incident. Ms Johnson said that she undertook to the Applicant that she would speak to Mr Beattie about the matter. Ms Johnson stated that, conscious of the need for expediency, she had a conversation with Mr Beattie shortly thereafter during which Mr Beattie admitted that he was "probably out of order. I should not have spoken to her in that manner." He agreed that he should apologise to Ms Scott. He explained to her that Ms Scott "was trying to wind him up" and "talking about K Adams and that has not been appropriate". Ms Johnson also noted that he said that both he and other panel members were aware that the Applicant and Kevin Adams had a "close" relationship and that something happened in September or October which caused it to sour. Ms Scott said that she was aware that Mr Beattie was in Ms Johnson's office for a considerable period of time following which she received an apology from him. Ms Johnson said that, prior to having an opportunity to approach her, Ms Scott came to see her later that day in her office to advise her that Mr Beattie had apologised to her. Ms Scott also said, and her demeanour confirmed it, that she was satisfied with the resolution of the matter and comfortable with the apology she had received. Ms Scott confirmed that Ms Johnson asked her if she was okay and she had replied that she was. Ms Johnson denied categorically any claim that she, in any way, discouraged the Applicant from formally complaining about the alleged bullying she incurred from Mr Beattie. Ms Scott agreed that Ms Johnson was professional, responsive, and made her feel that she was acting upon her complaint. She confirmed that, at that particular point in time, she had every confidence that Ms Johnson would listen to her and deal with any issues she raised with her. Mr Murphy submitted that the lodging of the formal complaint against Mr Adams had serious adverse consequences for the Applicant. Despite his denials, the evidence will persuade the Commission that Mr Beattie's verbal attack, in the presence of other staff, was absolutely connected and was a direct consequence of her having the temerity to make a complaint of that sort against Mr Adams. Mr Beattie stated that his outburst had resulted from a comment he heard someone attribute to the Applicant. Mr Murphy pointed out that Mr Beattie had not heard it from the Applicant and therefore there was no justification for his outburst. Mr Murphy submitted that what was going on between the Applicant and Kevin Adams was not any of his business and he had no right to take sides. 90 Ms Scott said that Michael Beattie overheard her, on 22 February 2008, responding to a telephone inquiry from a member of the public about a shot for his female greyhound. After she forwarded the call on to a greyhound steward, Michael Beattie made a comment to her that she had been fielding the question correctly. She said to Mr Beattie words to the effect that "when he said something about a bitch, I knew he was not talking about me". Mr Beattie replied, "are you sure?" The Applicant stated that she had made a diary entry about that incident. A few days later she telephoned Kay Johnson and told her that she was offended by the fact that Mr Beattie had implied that she was a bitch. Ms Scott said that Ms Johnson had discouraged her from making a formal complaint about him responding with words to the effect, "I wouldn't worry about that comment, I wouldn't be offended by that". Mr Beattie stated that he had been appointed to the position of Chair of Stewards-Harness Panel earlier that month. He overheard Ms Scott attending to a telephone inquiry which was clearly outside her area of expertise yet she appeared to be handling the inquiry adequately. He believed that he was being genuinely supportive of her when he said words to the effect, "That call was obviously about treating bitches, I thought you were going okay". He was surprised, therefore, when, a few days later, Ms Johnson advised him that Ms Scott had lodged a complaint about it. He denied making the comments attributed to him by the Applicant and insisted that he had not made any offensive or aggressive comments to her. 91 The Applicant agreed, during a meeting held on 4 March 2008 with Michael Beattie and Bill Cable, the Chief Steward on the Harness Panel, that she ought not chair race meetings as Chief Steward in the immediate future as she was feeling emotionally fragile. She recalled Michael Beattie saying to her words to the effect of, "I don't want anyone at a race meeting to say to you 'you're just a girl, what would you know?'" She recorded that comment in her diary as well as the comment that he was disappointed that she had referred the incident with the roster to Kay Johnson and that she had no right to be upset over it. Mr Beattie stated that, on or around late February 2008, in dealing with a number of issues at the monthly meeting of Stewards, he had reminded them that he was the relevant contact person in relation to any concerns regarding rosters. He advised the Stewards, who included Ms Scott, that rosters may be altered to suit individual needs. Despite that advice, Ms Scott approached Ms Johnson regarding concerns about her March 2008 roster. Ms Johnson asked if he would review it and contact Ms Scott directly about the matter. Mr Beattie recalled that the meeting was to discuss the March roster as well as a recommendation to him from Bill Cable that Ms Scott should be stood down from officiating at race meetings as Chief Steward. Mr Cable, he explained, had regular professional contact with the Applicant and from his observations of Ms Scott at race meetings, formed the view that she was not able to deal with the pressures of such a position. Mr Beattie said that he had expressed disappointment that the Applicant had seen fit to approach Ms Johnson about the roster instead of raising the matter with him, particularly in view of the advice he had given at the February meeting of Stewards. In addition, he said that he advised Ms Scott that she would be stood down from officiating at race meetings as Chief Steward. Mr Beattie pointed out that a subsequent request for a change to the May 2008 was immediately approved to accurately reflect her requested leave of absence. 92 The Applicant gave another example of Michael Beattie's rude treatment of her and which demonstrated his dismissal of her opinions. In May 2008, whilst she was talking to him about what she thought had happened during the Derby race at Harold Park trots, he rolled his eyes and walked off while she was still talking. Mr Beattie refuted that allegation and denied that he had, at any time during their working relationship, been rude or dismissive of Ms Scott. He insisted that he had consulted with all of the Stewards and obtained a consensus of opinion to declare the "all clear" on that race. Mr Murphy pointed out that Mr Beattie gave the impression that his regret was spontaneous, however, an examination of Ms Johnson's contemporaneous notes reveals otherwise. In addition, Mr Beattie's statement did not include all of his evidence and therefore no opportunity was provided to the Applicant to test it or deal with it in her evidence in reply nor was she cross-examined on it. Mr Murphy asked the Commission to prefer the evidence of the Applicant, which was clear and credible, over that of Mr Beattie. 93 Mr Brown submitted that Mr Beattie denied that he acted in a manner that was in any way aggressive, offensive or unprofessional towards Ms Scott. Nevertheless, he had provided her with an apology immediately upon being made aware of Ms Scott's concerns through Ms Johnson. It was submitted that Mr Murphy was being unfair to Mr Beattie who was an extremely credible witness and who had provided open and honest evidence in relation to the allegation of bullying the Applicant. Upon being spoken to by Ms Johnson, he was very quick to acknowledge that he had reacted inappropriately to one of the incidents and promptly offered an apology to the Applicant. He cannot be blamed for harbouring the belief, in view of the Applicant's acceptance of his apology, that there were no legacy issues or on-going aggravation between them and therefore,. He cannot, therefore, be blamed for taking the view that there was no conflict of interest or no apprehended bias and participating in the selection panel in April 2008. Mr Brown argued that not only did Mr Beattie have sufficient experience to be on the panel but, as the Applicant admitted, his participation as Chief Steward, was appropriate. MISCONDUCT ISSUES 94 Ms Scott said that she attended a meeting with Kay Johnson and Michael Beattie to discuss allegations made against her by Matthew Bentley. Those allegations related to a conversation she had with him on 12 May 2008 during which she was supposed to have threatened damage to Kevin Adams' car by her daughter and her daughter's friends as contained in a typed statement prepared with the assistance of Mr Paul Brown of Baker McKenzie, the Respondent's Solicitors. The statement was provided to the Respondent on 19 May 2008 and Ms Scott was advised of the allegations contained therein at a meeting held on the same day. 95 Mr Bentley said that the Applicant told him that "Once the matter goes to the Commission it will be open to the public, but don't worry, it will be leaked to the media. My daughter has already got this worked out. My daughter has friends who are participants in the Newcastle area, they are planning to graffiti Kevin's car, slash his tyres and do other things". Whilst Mr Murphy acknowledged that such behaviour was entirely unacceptable and inappropriate, he pointed out that Ms Scott's evidence was that she had been made aware by other racegoers that such action was being discussed and she had counselled strongly against it. He also pointed out that there was no evidence whatsoever of any threat by Ms Scott or anyone else against Mr Adams personally. The threat was against his car by persons other than the Applicant. 96 Mr Murphy pointed out that Mr Bentley was a willing participant in a discussion with the Applicant at a harness racing meeting on 19 May. It was submitted that Mr Bentley was, in effect, pumping Ms Scott for information about what was going on with her position. She told him that she had been dismissed albeit the advice had not yet been formalised in writing to her. Following that conversation, Mr Bentley felt compelled to report the contents of the conversation to Mr Beattie by telephone. The Respondent found it necessary to brief Mr Brown to assist Mr Bentley to prepare a statement in that regard yet it was not considered necessary to provide legal assistance to assist Ms Scott in preparing her formal complaint against Mr Adams. 97 Ms Scott stated that the recollection of Matthew Bentley was incorrect. She said that the allegation was baseless pointing out that her daughter is 23 years of age, a university student and law abiding citizen. She stated that, during the course of the meeting, she had provided her own version of the conversation with Matthew Bentley. Ms Johnson recalled that she had concurred with Ms Scott when she interjected and pointed out that the threats were "alleged" and should be referred to as such. She agreed that Ms Scott had said words to the effect that, "this kind of thing is not in my nature". She denied that she had already formed the view or concluded that Ms Scott had engaged in serious and wilful misconduct. 98 Ms Johnson confirmed the Applicant's evidence that, at the conclusion of the meeting she had, firstly, been accused of misconducting herself by discussing her termination with Mr Bentley and her intention to seek relief by instituting these proceedings. Secondly, the Applicant was directed not to make, or carry out, any threat against Mr Adams or any of the other employees of the Respondent. Mr Murphy reminded the Commission of the "prompt" Ms Johnson had placed in her diary, even before hearing an explanation from the Applicant that she would be seeking a commitment from Ms Scott that she would not, directly or indirectly, by herself or others, make any threat or carry out any threat against Kevin Adams. Ms Johnson initially stated that Ms Scott had not provided an explanation about the threats at the meeting. Later, when she was given an opportunity to read the notes she had kept of that meeting, she retracted that statement agreeing that Ms Scott had denied making any threat to Mr Adams. Thirdly, the Applicant was advised that the Respondent reserved the right to take action against the Applicant in relation to any misconduct which may arise as a result of the allegations by Mr Bentley. 99 Kay Johnson provided her with a letter dated 30 June 2008 in which she advised that the Respondent believed that the Applicant "may have engaged in serious and wilful misconduct". The Applicant was required to provide details of the person who had made threats against Kevin Adams, her account of the conversation she had with that person and a contact number for that person so that the Respondent can make contact. That request, said the Applicant, was the first opportunity she was given to respond in detail to the allegations against her. On 1 July 2008, she received from Kay Johnson a copy of the notes she had made at the meeting on 19 May. Ms Scott stated that she prepared a written response to the said allegations on 7 July 2008 and provided them to Kay Johnson the following day. She explained that the comments about damage to Kevin Adams' car were made by three male participants who had attended the race meeting at Newcastle. She knew them by face and not by name. 100 Both Ms Johnson and Mr Beattie denied that the meeting they held with the Applicant on 19 May 2008 was of a disciplinary nature. Rather, they stated that its purpose was to advise the applicant of a number of allegations made against her by Matthew Bentley. Ms Johnson stated that the Applicant had been provided with several opportunities during that meeting to make comment and respond to the allegations against her. Ms Johnson denied that the notes she had kept were an incomplete record of the meeting. Initially, Ms Johnson denied, during cross-examination, that she had continually repeated the reference to the threat against Kevin Adams. Her recollection was that she had made that statement once during the course of the meeting and again at the end of the meeting. She grudgingly admitted, having referred to her diary entries made prior to the meeting and the notes she had taken at the meeting on 19 May that she had referred to the threat on a number of occasions. 101 Mr Murphy described the Respondent's reaction as extraordinary. He argued that, irrespective of what the Respondent's witnesses chose to call it, the meeting was of a disciplinary nature and raised a number of major concerns. Firstly, according to the Applicant, the notes kept by Ms Johnson were not complete. The Applicant claimed that she had provided an explanation as to the source of the threat which no-one else at that meeting appeared to recollect; secondly, the Applicant was interrogated in relation to a personal conversation she had with another employee. Mr Murphy argued that it was narcism to suggest to employees what they can talk about with other employees, whether at work or elsewhere; thirdly, the Applicant was told by Ms Johnson that it was inappropriate for her to discuss her dismissal with another employee; fourthly, the Applicant was required to provide a commitment that she would not, either directly or indirectly, make any threat or carry out any threat against Kevin Adams despite the fact that she had never made such a threat. Mr Murphy reminded the Commission that the complaint was not about a physical threat against Mr Adams. The Applicant explained at the meeting on 19 May, and it was duly recorded in Ms Johnson's notes, that the threat against Mr Adams' property was not made by her. The Applicant had further explained that she was aware of it and had counselled against it. Mr Murphy submitted that the Respondent's behaviour was outrageous and displayed bullying conduct of the worst kind although no further action has been taken in that regard by the Respondent; finally, Ms Scott was advised that the Respondent retained the right to take action against her in relation to misconduct which may arise in relation to the matter. The Applicant did not receive a copy of the notes on that meeting until after 1 July, that is, after she received the letter advising that the Respondent preferred Matthew Bentley's recollection over hers and concluded that she had engaged in serious and wilful misconduct without having heard in any full and detailed way Ms Scott's version of events having refused to hear her on the issue at that meeting. Mr Murphy invited the Commission to compare Mr Bentley's assisted report with the response of the Applicant and contended that "What Bentley says, with respect to him, is just arrant nonsense". Mr Murphy further pointed out that nothing more has been heard of the matter and therefore should be dismissed as "an appalling beat up that should be just entirely put to one side". 102 Mr Brown submitted that the issues raised in Mr Bentley's statement were serious and Ms Johnson gave evidence that they had impacted so strongly on Mr Adams that he reported the matter to the police. Although no evidence was led as to the outcome, the Respondent did not resile from the issue. 103 He submitted that Kay Johnson had dealt with that issue appropriately and her manner cannot be regarded as victimisation or bullying, contrary to the Applicant's submissions. While it was necessary to raise the issue as part of the chronology, it was regarded as a side issue and not a matter for consideration in these proceedings as it involved other persons not connected with the workplace. STAFF SELECTION PANEL 104 It is noted that the interview panel convened in June 2007 to conduct the selection of a suitable candidate for the permanent position of Harness Steward included the Human Resources Manager and the Chair of Stewards-Harness. 105 In June 2007, following the recruitment and interviewing process, Ms Scott stated that she was advised that she had ranked second behind Mr Michael Beattie in her application for a permanent full-time Steward vacancy - a position for which four applicants had been interviewed. As a result of her ranking, she was to be placed at the top of the eligibility list for created in June 2007 for any future vacancies. Ms Scott agreed that Mr Beattie had extensive experience in the area of horse racing and harness racing. The selection panel comprised John Coughlan (Chief Executive Officer), Kay Johnson (Human Resources Manager), James Perry (Chair of Stewards - Harness) and John Schreck (an independent). Mr Coughlan denied that he had advised Ms Scott that she was on top of the eligibility list stating that he merely told her that she was eligible to take on the role. He pointed out that when she missed out to Mr Beattie for the position, the interviewing panel formed the view that if a position became available, Ms Scott would be considered for the next position. During further cross-examination, Mr Coughlan grudgingly agreed that she was the most eligible person after Mr Beattie but refused to accept that she was on top of the eligibility list! When Mr Murphy persisted that both meant the same thing, he said that he was not denying that she topped the eligibility list, he was merely pointing out that the first conversation about the eligibility to take on the role was by Ms Johnson to Ms Scott. 106 Pursuant to section 20 of the PSE Act, an eligibility list may be established when a competitive selection process has been held for an advertised vacant position. Such lists are used within the public sector for the purposes of easing the administrative burden of recruiting and interviewing candidates. Department heads do not have to use the eligibility list if, in the circumstances, it seems fairer or more appropriate to conduct a fresh selection process or take other administrative action. An eligibility list need not include all the eligible applicants. In July 2007, eligibility lists remained current: (a) in the case of a list prepared in relation to a base grade or entry level position, for 12 months after the list was created; or (b) in the case of a list prepared in relation to a position that is not a base grade or entry level position, for six (6) months after the list was created. 107 The Applicant recalled that, in July 2007, she was advised by Mr Coughlan that Mr Dave Kiernan, a Greyhound Racing Steward, had departed on long leave and was to be replaced by Dean Degan, a Harness Racing Steward. Her position on the eligibility list meant that she was a candidate for the position of full-time Harness Racing Steward vacated by Mr Degan. She decided to accept the role, which required her to relocate from Newcastle to Sydney. The Applicant acknowledged that the letter confirming that appointment, dated seven days prior to taking up the position, stated in part that "Should the Greyhound Steward who is on Extended Leave return to the employ of the Authority, this position will cease." Nevertheless, she insisted that she was, at no stage, led to believe that the appointment would cease if that Steward resigned his employment. She insisted that Mr Coughlan assured her at the time the offer was made that the move would be permanent, "You don't need to worry Barbara. Dave's not coming back, we have had his farewell. Once he resigns you will be made permanent". Ms Scott insisted, during cross-examination, that John Coughlan went to great lengths to reassure her, in terms of the appointment being temporary, that a farewell had been held for Dave Kiernan and he would not be returning. Whilst the term "on-going" was not used to describe the position to her, she agreed that in all cases, the position was referred to as a full time "temporary" position. Ms Johnson insisted that the intention of the Respondent was always that the acting temporary position would be strictly temporary in nature. She could not recall ever advising the Applicant that the temporary position would guarantee her permanent position nor was she aware of anyone else doing so. Mr Coughlan denied that he confided in Ms Scott that Mr Kiernan had indicated an intention to formally resign and that he promised Ms Scott that she would be confirmed in his position as a full-time employee. He insisted that at all relevant times, the Applicant's appointment to the temporary position was subject to a temporary status, that Mr Kiernan never indicated to him that he was going to resign and that Mr Kiernan had taken extended leave because he was unwell. He agreed that there was a possibility that Mr Kiernan may not return to his job, but insisted there was nothing determined. He agreed that in the conversation he had with Ms Scott he had referred to a farewell luncheon organised by his stewards panel. Mr Coughlan accepted that the only condition that was placed on the appointment of Ms Scott, given its temporary nature, was the following sentence in the said letter, "Should the greyhound steward who is on extended leave return to the employ of the Authority, this position will cease". He did not recall saying to Ms Scott over the telephone words to the effect, "Once he resigns, you will be made permanent". 108 Ms Scott pointed out that Mr Coughlan had congratulated her on being a "pioneer" as she was the first female horse racing Steward in the State and, in addition, he had repeated his congratulations in the letter of appointment which had concluded with the words, "... I would like to congratulate you on your selection and wish you well in your career with the Authority." 109 At that point in time, the Applicant had very little to do with Mr Coughlan, she had been happy with the way Ms Johnson had handled her complaints regarding Kevin Adams and she had mainly telephone contact with Mr Perry when he called to discuss rosters and inquired about her training. She confirmed that both Ms Johnson and Mr Perry were supportive of her at that time. 110 In correspondence confirming her appointment, the Applicant was advised that the appointment was subject to a 6-month probation period and that should Mr Kieran return to that position, then her employment would cease. The Applicant successfully completed that probationary period. Mr Murphy pointed out that the Applicant was appointed to the full-time position, a feature of which was its ongoing or indefinite nature, terminable only if the greyhound steward she replaced decided to return to work. Ms Scott's clear recollection of the terms of that offer were not tested in cross-examination and while Mr Coughlan could not recall giving that assurance, he could not deny it either. The question needed to be asked, it was submitted, as to why else Mr Coughlan would make reference to the farewell function in his evidence. Mr Coughlan's prediction was correct to the extent that the condition she was told would not eventuate did not indeed eventuate. However, his promise to her that she would be made permanent once Mr Kiernan resigned did not happen. 111 In or around March 2008 the Respondent advertised to fill the vacant full-time position on the Steward Harness Panel. Ms Scott said that she contacted Kay Johnson and sought her opinion as to whether she ought to apply for the position. She considered that it would be quicker to obtain a permanent position that way than waiting for Dave Kiernan, the Greyhound Steward, to resign. 112 On 2 April 2008, just under three weeks prior to the interview, Ms Johnson forwarded a letter to Ms Scott advising of the composition of the selection panel which comprised four members, including Mr Beattie and Ms Johnson. The other two members were Independent persons. Ms Johnson denied that the inclusion of herself and that of Mr Beattie on the selection panel was unsuitable or inappropriate. She pointed out that it was part of her role to participate on selection panels and it was also a standard requirement for the Chair of any Steward Panel within the Authority to be involved in the selection and appointment of Stewards within their Division. She denied that either of them had more influence on the selection that other members of the panel. She pointed out that the Applicant did not contact her either before or after the interview which was held on 21 April 2008 in relation to any concerns over the composition of that selection panel. Ms Scott said that she considered the inclusion of Michael Beattie and Kay Johnson on the Selection Panel was unsuitable and inappropriate in view of the circumstances and particularly since they both exerted more influence in relation to the selection than the other members of the panel. Ms Scott said that she had been disappointed to learn from Kay Johnson, in the presence of Michael Beattie, on 1 May 2008, that she was unsuccessful in her application for that position particularly as she had been at the top of the eligibility list. She pointed out that she had not been advised where she ranked or why she had not been successful - only that Matthew Bentley was the successful applicant. Mr Beattie stated that he could not recall Ms Johnson advising the Applicant, nor was it usual to inform unsuccessful applicants, of the reasons or their ranking amongst the other candidates. 113 Mr Murphy submitted that it was inappropriate for Mr Beattie to have sat on the selection panel. He should have stood down and indeed he should have been so advised by Ms Johnson to do so, even though he was chairman of the panel. There was clear bias, not just apprehension of bias, as a result of his actions towards Ms Scott and her complaints to Ms Johnson about them. Unsurprisingly Ms Scott, despite the fact that the Applicant was at the top of the eligibility list and despite the fact that she had far more experience than Mr Bentley as a steward (he was a 21 year old law student working as a casual), she was advised on 1 May 2008 that Mr Bentley was the successful applicant for the position. Mr Beattie insisted that his inclusion on the selection panel was both suitable and appropriate and pointed out that he had the same degree of influence on the panel as every other member of that panel. He further insisted that he had treated the Applicant in a professional manner at all times. 114 Mr Murphy argued that it was "just sheer nonsense" to suggest that the Applicant should have objected to the composition of the selection committee. The Applicant was keen to obtain a permanent position and did not want to antagonise those who had the authority in that regard. She stood no chance whatsoever. He said that it would be tantamount to "committing hari kari" if she had objected in any way to the composition. He argued that the personnel handbook put the onus on Mr Beattie to consider whether or not there was a conflict, or a potential conflict or a situation of bias and to stand down. That notion has been recognised by the High Court in Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 516 to 517 and 525, albeit in regards to a disciplinary meeting, was recently cited with approval by his Honour, Boland P, in Wheelahan v North Coast Area Health Service (2008) NSWIRComm 164. In Stollery, it was held that the presence of a person in a meeting who is biased or acting as accuser may be sufficient for such a meeting to constitute a denial of natural justice and to be improperly conducted, even if that person does not play an active part in the meeting. It was argued, therefore, that the mere presence of Mr Beattie on the selection panel had the potential, and did render the process unfair to Ms Scott. 115 Mr Coughlan said that in or around February/March 2008, there was pressure brought on the Authority by the Minister for Racing that the Authority had to be more stringent in its expense area. A review was undertaken by all departments in the organisation to determine how expenses could be curtailed. Mr Coughlan said that he met with the Managers of the various departments and asked what they could do to assist him in framing the budget for fiscal year 2009 in relation to these areas. Mr Beattie, who had a wealth of experience in the racing industry, designed a better and more efficient manner of rostering which satisfied the requirements of the harness industry with fewer Stewards. As a consequence of a revised rostering schedule, the number of full time permanent employees reduced from 10 down to eight thereby eliminating the requirement for any temporary positions. He did not finalise that proposal until May 2008. 116 In around May 2008, staffing arrangements changed within the Authority's two Steward Panels - the Greyhound and Harness Panels. Mr Kiernan ultimately resigned in May 2008, almost a year after Mr Coughlan advised Ms Scott of the possibility of him resigning. Mr Coughlan said that he had been actively seeking his resignation throughout that period of time but Mr Kiernan was reluctant to provide it to him. Mr Degan was not able to be confirmed in that acting position on the harness panel because there was no eligibility list for that position and the current policy was that the position would be advertised. The position was advertised and Mr Degan was the successful applicant. That meant Mr Degan's position, which Ms Scott was filling on a full-time temporary basis on the harness panel, ceased. It could not be permanently filled by Ms Scott as a result of the structure proposed by Mr Beattie. The Respondent already had eight full-time permanent employees and budgetary constraints prevented any additional full-time staff on the harness panel. The Applicant would be reverting to a casual Harness Steward position if she chose to. Kay Johnson advised the Applicant of that fact both verbally and by email on 8 May 2008. Ms Scott explained that she had driven 4.5 hours from Wagga to Parkes on 8 May 2008 when Kay Johnson telephoned to give her the news. She had diarised that conversation. The email advice she received advised that two positions were to be advertised - the position of Greyhound Steward vacated by Dave Kiernan and the temporary position of Greyhound Steward filled by the Applicant while Dean Degan acted in Mr Kiernan's position. It pointed out that neither Dean Degan nor herself would automatically be appointed to the positions in which they had been acting. It was further pointed out that another candidate who had ranked highest on the eligibility list created after the April 2008 interviews would be offered the position on the Harness Steward panel and the Applicant would revert to a casual. The Applicant was invited to apply for either or both positions if she wished to be considered for either of those roles. Mr Murphy argued that there was no evidence of changed staffing arrangements in May 2008 except for the dismissal of Barbara Scott. The Applicant had no opportunity to respond to any allegations of misconduct or the like as none were put to her. 117 On 19 May 2008, the Applicant, upon pointing out that section 20 of the PSE Act provided that eligibility lists lasted for 12 months, was advised by Ms Johnson that the GHRRA Board had recently decided that the period would be reduced to six months. Ms Johnson gave evidence that eligibility lists, as at June 2007, when the permanent full-time Steward position on the Harness Panel became vacant, were only current for a period of six (6) months. Mr Murphy pointed out that the Applicant was shuffled down the eligibility list without any explanation to her or objective assessment being made of the respective merits of the job applicants. In the absence of any action on behalf of the Applicant that would provide a valid reason for her dismissal, the purported reason for terminating her full-time employment would appear to be a device constructed to remove the Applicant from her position. Ms Johnson gave evidence that he had not been made aware of the recent changes to that section of the PSE Act until 18 June 2008. 118 Mr Murphy pointed out that, despite the fact that an independent investigator found the Applicant's complaints of bullying and sexual harassment to be valid, as a result of the complaints she made in that regard, she was treated unfairly by the Respondent in her employment and was regarded in an unfavourable light by senior staff. He added that the Applicant was treated unfairly in relation to job applications she made during her employment. In particular, the four member selection panel was manifestly unfair in that it was composed of two senior staff members who had already formed adverse views about her, including one who she had earlier made a legitimate complaint about. 119 Ms Scott gave evidence that although she was not interested in greyhounds, she had, on 21 May 2008, applied for both the permanent and temporary greyhound steward positions in order to keep working as a Steward. The advice she received on 28 May 2008, that the successful applicants for both positions had a greater level of knowledge and experience in greyhound stewarding than she did, reinforced her view that the outcome of the interviews in April 2008 was flawed as she had possessed a greater level of knowledge and experience than the candidates who had ranked above her. 120 On 2 June 2008, she received a letter from John Coughlan and Kay Johnson terminating her employment from the temporary position effective on the same date. She was required to return the Authority's property, was paid two additional weeks' salary in lieu of notice and then reinstated to the casual steward role. 121 Mr Murphy pointed out despite the fact that the Respondent was working on a roster that would reduce the numbers of full-time harness stewards, it went ahead and advertised and appointed Mr Bentley in April 2008 and Ms Scott was relieved of her temporary position in May 2008. Ms Scott was one of the applicants for that position. An examination of the rosters for the relevant period revealed that in July 2008 when the Applicant's temporary employment ceased, there were seven full-time stewards, plus Mr Clarke - one less than the number required. Mr Coughlan argued that another Steward was still on extended leave and had not yet tendered his resignation. Therefore, if he decided to return, the Respondent was duty bound to take him back. 122 In relation to numbers engaged during the period under examination Mr Coughlan gave conflicting, evasive and, in my view, deliberately confusing evidence about the status of Mr Clarke at various times during cross-examination. Initially, he insisted that Mr Clarke was not a full time employee of the Respondent. He was the subject of a 12-month traineeship agreement with TAFE and partly funded by the Department of Sport and Recreation. He was obviously not available for work on days when he was required to attend TAFE. When questioned as to whether a trainee was able to be utilised as a fully qualified steward, Mr Coughlan had responded: A. If the chairman of stewards thinks that the trainee is of sufficient quality, ability and has sufficient knowledge, they can be used in that manner. Obviously it wouldn't happen, you wouldn't think immediately, but it's part of the training program. Later in the cross-examination, when it was determined that, as at July 2008, the Respondent had seven full time stewards when it needed eight, the following exchange took place: Q. Well, you told us that you need eight, you've currently got seven, Mr Worboys is not there. Why isn't Ms Scott there, even if it's in, as you want to call it, a temporary position? A. Because Mr Clarke is there. Q. You told us Mr Clarke was not a full time employee? A. He is not an employee employed in the manner that the other employees were employed, but he can work in a permanent position for the steward panel. Q. Well, that's entirely contrary to the evidence you gave earlier. It was you - A. He's not engaged by the Greyhound Racing Authority to be an employee of the organisation. Q. You gave evidence that it was determined that you needed eight full time stewards and that did not include Mr Clarke? .... A. I don't believe I said that. Q. Mr Clarke was not included in that eight? A. I didn't think so, not at all, sir. I said we needed eight full time stewards, full stop. Q. And Mr Clarke was not a full time steward, so it follows he's not included, doesn't it? That must follow as a matter of logic? A. Well, Mr Clarke is working at the Authority on a traineeship. He has worked there now for six months and he has taken over the role of being in the harness capacity, able to do meetings. Q. He's not a full time steward, because on different days of the week he's going to TAFE, you've already accepted that. A. He still is fulfilling that role attending race meetings. Q. So putting him to one side, there are seven full time stewards employed at the present time? That's the numbers, isn't it? A. Well, Mr Clarke is undertaking the role of a steward on the basis where he goes one day two or three days a month to TAFE. Q. And what's going to happen when that traineeship ends? A. 12 month traineeship and it will be a decision as to whether Mr Clarke stays on will be made by the chairman of stewards and making an assessment of performance. Q. And that will be Mr Beattie, will it? A. Amongst others. Q. Despite the fact that you know you've got an experienced steward in the person of Ms Scott who is desperate to obtain a full time permanent stewards position? A. Yes. Q. She's a quite capable steward, that's so, isn't she? A. I don't know, sir, I'm not a steward. Q. You've never heard any complaint about her capacity to operate as a steward, have you? A. Not myself, no. 123 Mr Coughlan denied that he was attempting to construct a scenario that would convince the Commission that the Respondent does not need and cannot usefully employ Ms Scott. He repeated that the Respondent did not require more than the eight full time stewards it currently has on its roster system to undertake the workload and to keep within its resource levels. 124 Mr Coughlan could not adequately address the question as to why Mr Bentley was engaged in April 2008 to replace Mr Flowers in the knowledge that Mr Beattie was working on a roster requiring only eight full time stewards. At that stage, according to Mr Coughlan, there was no guarantee that Mr Kiernan would not be returning and if he did, then Mr Degan would be returned to the harness panel resulting in 10 full time stewards on that panel. Mr Coughlan's response to that scenario was: A. That's look, I work in probabilities at times and you've got to make judgment calls. 125 Mr Murphy invited the Commission to draw the conclusion that this was part of an unfair process designed to make life easier by removing the Applicant who, in the Respondent's view, had become troublesome. ADDITIONAL EVIDENCE 126 The New South Wales Government Department of Premier and Cabinet develops the conditions of employment for New South Wales public servants. The Department issues a personnel handbook which is a compilation of legislation, awards, agreements, determinations and policy guidelines relating to conditions of employment in the New South Wales public service. The Respondent relies on the use of that Handbook as an employment guide. 127 The Applicant pointed out that the Authority is the only employer of Stewards in the harness racing industry, that her passion and desire is to work as a Harness Racing Steward and has been developing her career to that end for many years. She further pointed out that she was the first female Steward in the industry and produced a character reference from well-known trainer attesting to her capabilities. 128 Mr Coughlan advised that there were eight (8) full-time Harness Stewards of which one is a trainee. As CEO, he was aware that there is no present requirement for any additional permanent Stewards. 129 Ms Johnson said that she considered that reinstatement of the Applicant to the permanent position would be both inappropriate and impracticable. In order for the Applicant to obtain a permanent position, another Steward would need to be terminated as there are currently no vacant positions on either the Harness or the Greyhound Steward Panels. 130 In conclusion, Mr Beattie stated that, in his view, the Authority does not require the services of another full time permanent Steward on the Harness Panel. SUBMISSIONS 131 It was submitted on behalf of the Applicant that the circumstances of the termination of her employment fall squarely within the unfair dismissal provision of the Act. 132 Mr Murphy submitted that it was far easier to get rid of the Applicant than to deal with the issues raised by the Applicant - the propensity for sexual harassment by Kevin Adams and for bullying by Michael Beattie - compounded by the outrageous complaint of a threat by the Applicant against Mr Adams. Whilst it was admirable that the Authority would assist an employee by the provision of the services of its Solicitor to help compile his complaint against the Applicant, Ms Scott was never provided with that level of assistance when she had far more substantial complaints to make. 133 The representation that was made to her, which caused her to move her home from Newcastle to Sydney, was that once Mr Kiernan formally tendered his resignation, she would be made permanent. What was defined as temporary in the letter of appointment was the situation that if Mr Kiernan did not, as expected, resign his position, then Mr Degan would go back into his job and the Applicant would be out of a job. That never occurred. 134 The Commission was invited to conclude, based on the evidence and the credit issues that have arisen, that the Applicant's termination was entirely due to the fact that the Applicant had lodged a formal complaint about Mr Adams. Mr Coughlan's response to the situation was entirely inappropriate and very telling. 135 It was submitted that the Respondent ignored its policies and procedures, which emanated from the Department of Premier and Cabinet, which require that it take a proactive approach in relation to such things as equal employment opportunity policies and programs, training for people who sit on selection committees, ensuring that the workplace is free of sexual harassment and bullying and so on. 136 Mr Coughlan's response during cross-examination also spoke volumes about his attitude to those policy issues. He referred to there being "only" three of the seven issues raised by the Applicant as sustained. In fact sustained were seven instances of sexual harassment and one of bullying. Nevertheless, Mr Coughlan's response to the Applicant was deplorable - he tried to lay the blame at the Applicant's feet, "Could you have led him on?" 137 Unfortunately, that attitude led to a culture of sexual harassment festering, it led to the perpetrator walking away completely unscathed despite at least two sexual harassment complaints being lodged against him by two different Stewards. 138 It was pointed out that Mr Coughlan had experienced difficulty in relation to his ability to recall certain issues that were crucial to Ms Scott's case. The Commission was invited to prefer the evidence of Ms Scott where she does have a clear recollection. 139 In relation to the issue of credit, it was pointed out that the Commission had the benefit of witnessing the demeanour of the witnesses during cross-examination. It was submitted that on each point on which there was a factual dispute between the Applicant and the Respondent's witnesses, the Commission will find in the former's favour. Ms Scott's version was supported by one or other of the Respondent's witnesses. On the other hand, the Respondent's witnesses backtracked, retracted, changed evidence and jumped all over the place on various contested issues. 140 Mr Murphy insisted that the Applicant had been dismissed as she had been paid up her statutory entitlements, she was paid out for her notice period, advised that she was to be reinstated to the casual steward role for no reason other than Ms Scott had come to be regarded as a troublesome employee because she had been the victim, and found to have been the victim by an independent investigator, of sexual harassment and workplace bullying. 141 Mr Murphy submitted that the comment was offensive, insensitive and misguided. The Authority did not develop any strategies to assist Mr Adams to desist from sexually harassing other stewards. In conclusion, the victim has been blamed for the sexual misconduct and not the perpetrator. 142 Finally, it was submitted that the Respondent had a continuing obligation pursuant to the Award to offer the Applicant permanent employment. 143 The Respondent submitted that the Commission is precluded from hearing the Application on the grounds that the cessation of the temporary position was not a "dismissal or threatened dismissal" within the meaning of those terms found in Part 6, Unfair Dismissals, of the Act. 144 It was further submitted that Section 83 of Part 5 of the Act applies in circumstances were a "dismissal" has occurred. In the case of a public service sector employee, s 83 (5)(b) of the Act specifically provides that a "dismissal" or "threat of dismissal" includes: "dispensing with the services of the employee, dismissing the employee as a consequence of disciplinary proceedings against, or the commission of an offence by, the employee or annulling the appointment of the employee." 145 It was argued that the Applicant is a public sector employee who is subject to the specific provisions of s 83 (5)(b) of the Act. 146 Ms Scott was employed for a period of 16 months in the casual position prior to her appointment to the temporary position. Ms Scott continues in employment with the Authority as a casual steward. 147 It was concluded that, in these circumstances, the essential pre-requisite of dismissal is not met and, accordingly, Ms Scott does not have a right to bring the Application. 148 In the alternative, it was submitted that the cessation of the temporary position was not harsh, unjust or unreasonable. 149 It was argued by the Respondent that it had a valid reason for the termination of the Applicant's temporary employment. It has a limited number of permanent position on each Steward panel and when a Steward, who was on an extended period of leave, advised in May 2008 that he wished to terminate his employment with the Authority, it undertook a re-arrangement of its staffing of the Greyhound and Harness Panels. The immediate effect of the staffing arrangements was that two temporary Steward appointments on the panels ceased, one of them being the temporary position held by the Applicant. It was contended that her temporary position was, at all times, subject to the changing staffing needs of the Authority. 150 The Commission's attention was drawn to section 30 of the PSE Act which provides the Authority with a discretion dispense with the services of a temporary employee without enlivening the provisions of Part 6 of the Act: "The appropriate Department Head may dispense with the services of a Departmental temporary employee at any time." 151 Finally, it was submitted that the recruitment and interviewing processes for the positions Ms Scott applied for within the Authority were conducted fairly and impartially. The Authority denied that the Applicant was treated unfairly or unfavourably during her employment and, further, denied that the Applicant has an entitlement to permanent employment. 152 It was submitted on behalf of the Respondent that Ms Johnson had handled the matters relating to Ms Scott seriously and professionally at all times. She had immediately investigated the matter including approaching all individuals involved and addressing the matter internally. 153 There was no evidence put before the Commission that the Respondent considered the Applicant to be a troublesome employee. The Applicant gave evidence that all the issues she had raised with the Respondent regarding Kevin Adams had been dealt with professionally, promptly and in a manner which was consistent with her expectations. She also conceded during cross-examination that the disciplinary action taken against Mr Adams was "satisfactory". 154 The Commission was reminded that chronology was very important when considering Ms Johnson's credibility. The Applicant gave evidence that she had every confidence in the responsiveness of Ms Johnson and her professionalism in dealing with the issues she had raised with her. The turning point in the relationship between the Applicant and Ms Johnson was when the Applicant became aware of the contents of Ms Johnson's email to Ms Nancy Troke, the counsellor. During cross-examination, Ms Johnson explained that her intentions were genuine - she believed that the Applicant was not coping well and wanted the psychologist to address that issue. She rejected out of hand the suggestion that it was intended to reflect badly on the professionalism of the Applicant. 155 The Commission was reminded that the counselling had been arranged by Ms Johnson and provided at the expense of the Respondent. 156 It was noted by the Respondent that the Applicant presented as a very strong person, one who, at various stages, felt quite capable in dealing with issues that involved some confrontation as evidenced by her election to deal with the initial issues involving Mr Adams in October 2007. 157 The Applicant had a period of 20 days to raise issue with the appropriateness of otherwise of any members of the selection panel prior to the interviews being conducted. The reasons proffered by Mr Murphy - that the Applicant was in fear of annoying people or scotching her potential to get the job - were rejected by the Respondent as having no basis. Neither did the Applicant raise any issue in relation to perception of fairness or bias. In fact, the Applicant gave evidence that she had no problem with Mr Bentley being awarded the position. It was concluded, therefore, that the suggestion that any members of the panel conducted the selection inappropriately should be rejected. 158 It was pointed out that, irrespective of what had occurred at the meeting on 15 January 2008, Mr Coughlan did not influence the decision of the selection panel as he was not part of it. 159 It was submitted that the issue at hand does not involve a discrimination case; nor an award breach despite the fact that it has been raised by the Applicant as evidence of unfairness; nor Ms Breakspear's report. With respect to that report, it was submitted that the Applicant cannot have it both ways. Ms Scott accepted those parts of the report in which Ms Breakspear found that the Applicant had been subjected to harassment and bullying but cavilled with some other findings which are not found in her favour on the basis of the perception of her relationship with Mr Adams. It was pointed out that in relation to the former, the Respondent took action which, ultimately, the Applicant was satisfied with. In relation to the latter, the Applicant had conceded, during cross-examination, that there was a period in approximately August 2007 when the interactions between her and Mr Adams could be, and were ultimately, characterised as a relationship. 160 It was incorrect to suggest that the Applicant was not provided with reasons for her termination. Ms Johnson referred in her affidavit to a conversation she had with the Applicant and a follow-up email, dated 8 May 2008. The Applicant conceded that she had been provided with an opportunity to review that document which contained reasons as to why the temporary position was to come to an end. It was pointed out that the Applicant had continued in the employment of the Respondent, albeit in a casual capacity, after the temporary appointment came to an end. Her employment had been continuous. She commenced as a casual, she accepted an offer of temporary employment, the temporary position came to an end and she reverted back to a casual. 161 The Respondent, it is true, had some difficult financial decisions to make in about March/April 2008. Those decisions included a determination of the right number of stewards and right composition to maintain. It was conceded that while there are a number of competing rights involved, the Respondent has the right to form a view regarding its requirements. 162 It was submitted that the allegation that the permanent employment did not eventuate was because the Applicant was troublesome does not stack up in terms of chronology or proportionality as it would have taken a great deal of thought processes to have put it all together. It was further submitted that there was no evidence that the Applicant's services were terminated as a result of a perception by anyone that she was a troublesome employee. 163 It was pointed out that it is to be expected that people in modern work places will make mistakes and will sometimes say and do the wrong thing, hence the dispute resolution processes which are in place to resolve issues promptly. 164 Whilst the issue between the Applicant and Mr Adams falls into a different category, from a modern workplace perspective, there was a complaint, a prompt investigation, findings, and disciplinary action which the Applicant was satisfied with. It was argued that these matters must be considered to have been concluded at some stage. One cannot accept that an articulate and intelligent person, such as the Applicant, who previously had no problems at all asserting and ensuring her rights, can wait for an opportune time to regurgitate those issues on the pretext that she was perceived as troublesome. 165 In conclusion, it was submitted that the Commission should dismiss the application on the jurisdictional issue. However, if the Commission found against the Respondent on that issue, then it was urged to dismiss the application on the grounds that the requisite unfairness was not present. REMEDY 166 It was emphasised that the primary remedy being sought by the Applicant is reinstatement. She has committed to a career as a Harness Racing Steward and the Respondent is the only employer of such persons in New South Wales. 167 It was submitted that reinstatement of the Applicant is not impracticable in the present circumstances. Firstly, Mr Beattie, the person identified by the other witnesses of the Respondent as being the Chairman of the Panel and hence the most competent authority on this issue, gave evidence that there is absolutely no barrier to the Applicant working effectively as a full-time Harness Racing Steward on the panel. Secondly, the Applicant's services are still being utilised by the Respondent as a casual Harness Racing Steward. Thirdly, the Applicant undertook a shift at Harold Park as recently as the Friday prior to the hearing in company with Messrs Beattie and Bentley. Finally, there is presently a vacant Harness Racing Steward position into which the Applicant could be placed. 168 It was submitted on behalf of the Respondent that reinstatement of the Applicant would be impracticable as, at the present time, there are no vacancies within the Authority of the Harness Panel for a full-time Steward. 169 It was submitted that the temporary position the Applicant occupied had come to a conclusion. 170 It was pointed out that the Respondent had, at no time, criticised the Applicant's work performance. The Respondent cannot reinstate or re-employ the Applicant purely because of its current situation in terms of the number of stewards that it requires. The Respondent, it was submitted, is entitled to form the view as to how many stewards it requires. One cannot assume, merely because Mr Beattie indicated in cross-examination that he has no issues with the Applicant in terms of her performance, that there are no issues with the Applicant with respect to her reinstatement. Apart from the extra resources and pay that would be required to fund an additional steward, there was the issue of the trainee steward in its employment. 171 It was submitted on behalf of the Respondent that reinstatement cannot be ordered as both parties are in agreement that the temporary position no longer exists. 172 In relation to re-employment to a position which, in the Commission's opinion is suitable, it is the evidence of the Respondent that there are no other positions available at this point in time. It was further submitted that if another position becomes available in the future, then the Respondent would expect the Applicant to apply for that position, particularly given the evidence of Mr Beattie. Mr Brown observed that there would not be too many potential applicants in the gene pool in an industry as narrow as this with only one employer. 173 Regarding the question of remuneration, it was pointed out that some regard needs to be had to the fact that the Applicant has remained in employment and not only has the Respondent provided her with casual shifts but intends to continue doing so irrespective of what it hoped would be a dismissal of the s 84 claim. Nevertheless, if the Commission was of a mind to award compensation to the Applicant, then both representatives would appreciate an opportunity to provide written submissions in that regard. 174 Mr Murphy submitted, in response, that Mr Coughlan had put forward some reasons as to why the Applicant could not be reinstated as a harness racing steward, including the fact that Mr Worboys had not resigned and could return to employment. It was pointed out that Mr Coughlan could be excused for not knowing that Mr Worboys resigned during the period Mr Coughlan was off sick. That particular reason, therefore, for preventing reinstatement is no longer available to be used. It was further pointed out that Mr Beattie's approach to the practicality of reinstatement was quite different from that of Mr Coughlan and Ms Johnson. The former made it quite clear that the trainee Clarke could be transferred to the greyhound panel and that would not cause any difficulty at all. 175 Mr Murphy did not agree that the position that was held by Ms Scott no longer exists. Even though the position was titled temporary, in reality it was an ongoing position of indefinite duration given that the only contingency to bring it to an end did not occur. She has not been replaced and therefore the position still exists and reinstatement is available. 176 If the Applicant is reinstated, then there is absolutely no reason why there would not also be an ancillary order made for payment during the period between termination and reinstatement, less the amount of money she earned during that period. CONSIDERATION 177 The Respondent has attempted to utilise the provisions of the PSE Act when it suited it and reject its provisions when it went against its submissions. It has been established beyond reasonable doubt that the Applicant was engaged pursuant to the provisions of the Crown Employees (Greyhound & Harness Racing Regulatory Authority - Harness Racing Staff) Conditions of Employment Award 2007. 178 The evidence has also established that the Applicant worked on a regular and systematic basis for a period in excess of six months. 179 The Applicant should have been invited to apply for permanent employment, either on a full-time or part-time basis, upon the conclusion of the initial six months of employment. That was not done. There was no evidence before the Commission that, had an offer of such employment been made to the Applicant that it would have been rejected. 180 The temporary position contract dated 23 July 2007 relevantly stated: "I am pleased to offer you the position of Temporary Full Time Harness Racing Steward ...., subject to a probationary period of six months from the date of commencement of employment... You should be aware this is a Temporary .... employ. Should the Greyhound Racing Steward who is on Extended Leave return to the employ of the Authority, this position will cease.... " [emphasis added] 181 There is no possible explanation for the Applicant being aware of the circumstances surrounding that position becoming vacant without that information being divulged to her by management. The recollection of the Applicant is to be preferred in relation to the circumstances surrounding her transfer into that role. The contents of the letter of offer are also quite clear - the position would only cease if the incumbent were to return from extended leave and that did not occur. Ms Scott should have been made permanent in that position. 182 In relation to sexual harassment issues, Kevin Adams provided a copy of an email he had received from Ms Scott in his defence of the sexual harassment allegations. The email, dated 5 September 2007, is long and detailed. Without detailing the contents of that email, suffice to say that it was an email which: · confirmed that Ms Scott and Mr Adams were having deep and meaningful chats, albeit time restricted because the latter has to go home to his wife; · confirmed that Mr Adams was putting pressure on her to have sex but she refused to have an affair with him as she wanted a more permanent relationship; · was written at a time when Ms Scott appeared to be feeling particularly vulnerable. She had been thinking about the unfairness of their relationship and she needed him to make a decision about them "one way or the other"; · confirmed that she was confused about the kind of person she was getting involved with because he appeared to be "OK" with the "sick" relationship they were developing; and · advised Mr Adams that she refused to have anything more than a professional relationship with him whilst he continued to go home to his wife every night. 183 Mr Coughlan and Ms Johnson cannot be blamed, in the absence of any emails from Mr Adams to Ms Scott which may have explained why she wrote to him, from drawing the wrong conclusions in relation to the relationship between the parties. It is noted that, had Ms Scott been aware that it was to be read by anyone else barring the addressee, she would have been more careful in expressing herself to better reflect the discussions that had been going on between them. On a reading of the email in the cold hard light of day, no other conclusion can be arrived at except that reached by management. 184 Nevertheless, irrespective of the fact that she had foolishly allowed the matter to get that far, it is noted that Mr Adams was in a position of seniority over the Applicant and alarm bells should have rung in his head from the first complaint she filed against him that his actions must cease and they did not. It is clear from the evidence that Mr Beattie and, possibly, Mr Bentley had resented the fact that she had filed those complaints against one of their own. Mr Bentley, I accept, pumped the Applicant for information which was the bases for the subsequent misconduct claims against her. Mr Beattie's continued haranguing of the Applicant which are detailed in the decision, have no other bases that have been put before the Commission. 185 I accept that Mr Beattie and Ms Johnson are relevant persons to serve on Selection Panels. I am critical of the fact that the Applicant did not make mention of her concerns and at least have them noted prior to the interview. Nevertheless, the outcome of the interview process is confusing - no evidence has been put before the Commission in relation to the performance of the Applicant except praise. I find it very disturbing therefore that a person with less experience than the Applicant would succeed in an interview ahead of the Applicant. 186 The Applicant's dismissal was harsh, unreasonable and unjust and the situation needs to be remedied. 187 It is noted that the Equine Influenza had hindered the practical side of the Applicant's duties when she was serving the six month's probationary period. Her duties had been reduced, in the main, to administrative duties. It would therefore be difficult to assess how she would indeed have fared if she had completed the full gamut of duties. 188 The parties asked for an opportunity to address the Commission in relation to relief. The parties are required to note the findings that have been made above. 189 The matter is listed for hearing and determination of that issue at 11.30 am on 24 February 2009. I Tabbaa COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.