Industrial Relations Commission of New South Wales CITATION: Hogan v Police and Community Youth Clubs New South Wales Ltd [2010] NSWIRComm 23 PARTIES: Michael John Hogan (Applicant) Police and Community Youth Clubs New South Wales Ltd (Respondent) FILE NUMBER(S): IRC 339 of 2009 CORAM: Staff J UNLAWFUL DISMISSAL - Occupational Health and Safety Act 2000 - whether complaint made about a workplace safety matter - meaning of "complaint" - whether Occupational Health and Safety Act provides an unfettered right to reinstatement - held - complaint made to employer - substantial and operative cause for termination serious misconduct - applicant failed to establish unlawful termination - no unfettered power to reinstate - Occupational Health and Safety Act 2000 - s 23, s 23A CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - unlawful dismissal - Occupational Health and Safety Act 2000 - whether complaint made about a workplace safety matter - meaning of "complaint" - whether Occupational Health and Safety Act provides an unfettered right to reinstatement - held - complaint made to employer - substantial and operative cause for termination serious misconduct - applicant failed to establish unlawful termination - no unfettered power to reinstate - Occupational Health and Safety Act 2000 - s 23, s 23A Fair Work Act 2009 (C'th) Industrial Relations Act 1996 Industrial Relations Further Amendment Act 2006 LEGISLATION CITED: Judiciary Act 1903 Interpretation Act 1987 (NSW) Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Workplace Relations Amendment (Work Choices) Act 2005 Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and others (2003) 130 FCR 524 Briginshaw v Briginshaw (1938) 60 CLR 336 Capral Alumimium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Construction, Forestry, Mining and Energy Union (NSW) (o/b of Hemsworth) v Brolrik Pty Ltd t/as Botany Cranes & Forklift Services (2007) 167 IR 214 Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 CASES CITED: Endeavour Coal Pty Ltd & Ors v Construction, Forestry, Mining and Energy Union (New South Wales) [2007] NSWIRComm 70; (2007) 161 IR 96 Inspector Vierow v Sibyon Pty Ltd (unreported 96/1549-1550) October 1997 Mills v Meeking Mills v Meeking & Others (1990) 169 CLR 214 New South Wales v the Commonwealth (2006) 229 CLR 1 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc and others (2000) 48 NSWLR 548 Re Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination (No 2) [2006] NSWIRComm 328; (2006) 158 IR 17 Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 HEARING DATES: 27 July 2009, 28 July 2009, 15-16 September 2009, 18 December 2009 DATE OF JUDGMENT: 26 February 2010 Mr D Shoebridge of counsel (Applicant) Turner Freeman Lawyers LEGAL REPRESENTATIVES: Mr A Searle of counsel (Respondent) Thomson Playford Cutlers Lawyers JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J Friday 26 February 2010 Matter No IRC 339 of 2009 MICHAEL JOHN HOGAN v POLICE AND COMMUNITY YOUTH CLUBS NEW SOUTH WALES LTD Application by Michael John Hogan re unlawful dismissal pursuant to section 23A of the Occupational Health and Safety Act 2000 JUDGMENT [2010] NSWIRComm 23 1 Michael John Hogan ("the applicant") was formerly employed as the Manager of the Police and Community Youth Club at Bankstown ("the Bankstown Club"). On 1 December 2008, his employment was terminated for alleged misconduct which involved a claim by his employer, the Police and Community Youth Clubs New South Wales Ltd ("the respondent"), that he directed a staff member, Mr Van Khai Ngo, into an area of the Bankstown Club where the employee was exposed to the possible presence of asbestos material. 2 The applicant contends that his dismissal was unlawful because it arose out of a complaint that he made about a workplace safety matter in the course of his employment. The applicant has brought an application pursuant to s 23A of the Occupational Health and Safety Act 2000 ("the Act") for reinstatement as a result of being unlawfully dismissed pursuant to s 23 of the Act. 3 The principal issue for determination in this matter is whether the applicant "made a complaint" for the purposes of s 23(1)(a) of the Act, and if so, whether the dismissal was occasioned by, or resulted from that complaint. That is the narrowness of the provision with which I am dealing and the issue requiring attention. 4 Mr D Shoebridge of counsel, who appeared for the applicant, raised a point of statutory construction that is anterior to the principal issue. Counsel attempted to argue that s 23A(4) should be construed on a broad basis, that being, that this subsection enables an application to be made in connection with, or as provided by s 84 of the Industrial Relations Act 1996 ("the IR Act"), if an employee claims that the dismissal was harsh, unreasonable, or unjust. Such a construction strains credulity, as I discuss later in these reasons. 5 In my opinion, the first issue should be resolved in the affirmative, and the second, in the negative. As a result, the applicant is therefore within jurisdiction, however, the application must fail. 6 Shortly stated, the reason for this is that in respect of the jurisdictional issue, s 23 should be given a broad construction, as it is part of beneficial legislation. The fact that the applicant made a complaint about the delay in receiving a report concerning a workplace matter involving occupational health and safety, makes it no less a complaint than if a person complained about a risk to health and safety, albeit, that it is indirect. However, the application must fail, as the applicant has not established that there is a link between his dismissal and the fact of his making a complaint. 7 I propose to explain these conclusions, firstly, by referring to the statutory scheme relevant to the present matter and dealing with the construction point before proceeding to the detail of the evidence relevant to the application and deal with whether there is the required link between the complaint and the dismissal of the applicant. 8 It is convenient at this point to refer to the statutory scheme relevant to the present matter before proceeding to the detail of the evidence relevant to the application. The statutory scheme 9 The Industrial Relations Further Amendment Bill 2006 inserted s 23A into the Act. This section requires attention to be had to s 23 of the Act. These sections provide relevantly: 23 Unlawful dismissal or other victimisation of employee (1) An employer must not dismiss an employee, injure an employee in his or her employment or alter an employee's position to his or her detriment because the employee: (a) makes a complaint about a workplace matter that the employee considers is not safe or is a risk to health, or (b) is a member of an OHS committee or an OHS representative, or (c) exercises any functions conferred on the employee under Division 2 (whether as such a member or representative or otherwise). Maximum penalty: (a) in the case of a corporation (being a previous offender)—375 penalty units, or (b) in the case of a corporation (not being a previous offender)—250 penalty units, or (c) in the case of an individual (being a previous offender)—225 penalty units, or (d) in the case of an individual (not being a previous offender)—150 penalty units. (2) In proceedings for an offence against this section, if all the facts constituting the offence other than the reason for the defendant's action are proved, the onus of proving that the dismissal, injury or alteration was not actuated by the reason alleged in the charge lies on the defendant. 23A Application for reinstatement of employee unlawfully dismissed under section 23 (1) In this section: reinstatement includes re-employment. unlawful dismissal means the dismissal of an employee in contravention of section 23. (2) An employee who has been unlawfully dismissed may, within 21 days after the dismissal, apply to the Industrial Court of NSW for reinstatement. The Court may accept an application that is made out of time if it considers that there is a sufficient reason to do so. (3) An industrial organisation of employees may make such an application on behalf of the employee. (4) The Industrial Court of NSW may, on such an application, order the employer to reinstate the employee in accordance with the terms of the order. (5) If the Industrial Court of NSW is satisfied that the applicant was unlawfully dismissed: (a) the Court is to order the employee to be reinstated in his or her former employment or in any other employment that is no less advantageous to the employee, except as provided by paragraph (b), or (b) if the employer satisfies the Court that it would be impracticable to reinstate the employee—the Court may order the employer to pay to the employee an amount of compensation determined by the Court to be appropriate in the circumstances (but not exceeding the amount of remuneration the employee would have received but for the dismissal in the period of 6 months following the dismissal). (6) If the Industrial Court of NSW orders reinstatement under this section, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal. (7) An application under this section may be made regardless of whether the employer has been convicted of an offence against section 23. (8) The Industrial Court of NSW must not make an order on an application under this section if: (a) another Act or a statutory instrument provides for redress to the employee in relation to the dismissal, and (b) the employee has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument. (9) Evidence of the fact that the Industrial Court of NSW has made an order under this section in respect of the unlawful dismissal of an employee is not admissible in proceedings for an offence against section 23. (10) In any proceedings under this section, if an employee establishes that a matter referred to in section 23 (1) (a), (b) or (c) occurred or existed before the employee's dismissal, it is presumed that the employee was dismissed because of that matter. That presumption is rebutted if the employer satisfies the Industrial Court of NSW that the matter was not a substantial and operative cause of the dismissal. Does a Commonwealth constitutional issue arise? 10 In written submissions, Mr A Searle of counsel, who appeared for the respondent, observed that State laws with general application to employment do not operate against employers that are constitutional corporations: New South Wales v the Commonwealth (2006) 229 CLR 1 ("Work Choices case"). Accordingly, so counsel submitted, the only possible reason for this Act to operate against the respondent was because it dealt with a "non-excluded matter", occupational health and safety. It followed, so it was submitted, that s 23A survived in its operation against the respondent solely because of occupational health and safety matters being "non-excluded matters" within the meaning of s 16(2) of the Workplace Relations Amendment (Work Choices) Act 2005 (now s 27(1)(c) and 27(2)(c) of the Fair Work Act 2009 (C'th): see Construction, Forestry, Mining and Energy Union (NSW) (o/b of Hemsworth) v Brolrik Pty Ltd t/as Botany Cranes & Forklift Services (2007) 167 IR 214. If there was no unlawful dismissal, counsel submitted, there is no other provision or power under which the applicant can seek relief in these proceedings. Any decision to the contrary would "fly in the face of the High Court's ruling in the Work Choices case, and would also be contrary to the ordinary and accepted approach to statutory interpretation." 11 In opening his final submissions, Mr Shoebridge raised the issue of whether Mr Searle's submissions in respect of the Work Choices case involved the interpretation of the Commonwealth Constitution and thus required the issuing of notices pursuant to s 78B of the Judiciary Act 1903. Mr Shoebridge submitted that his client did not wish to press any constitutional point, contending that the facts upon which the applicant seeks to move the Court to make an order under s 23A(4) of the Act clearly must relate to a bona fide application that there was "some unlawful dismissal for the purposes of s 23 of the Act." 12 Mr Searle submitted that the respondent did not necessarily concede that a matter arising under the Constitution was before the Court. Counsel submitted that the respondent's submissions did not seek to challenge the jurisdiction of the Court, but merely to call in a particular construction of the legislation in an attempt to persuade the Court that it would not adopt a construction of the Act that would lead it into conflict with the Work Choices case. 13 Mr Searle submitted that it was conceivable that an issue could arise if a court adopted a construction that found there was a general unfettered power to reinstate arising from the construction of s 23A(4) of the Act. The matter proceeded on the basis that the Court could not consider legislation involving matters that gave rise to s 109 of the Commonwealth Constitution. 14 In light of the conclusion that I have reached in respect of the construction of s 23A of the Act, the issue does not arise. Does the Act give the Court an unfettered discretionary power to reinstate? 15 Counsel took divergent positions in respect of the operation of s 23A of the Act, and in particular, s 23A(4) of the Act. Mr Shoebridge submitted that s 23A(4) of the Act gave a separate and discreet power to the Court, on application, to order the employer to reinstate the employee in accordance with the terms of the order. It did not require the Court, as does s 23A(5) of the Act, to find that the applicant was unlawfully dismissed. It was, counsel submitted, a separate broad and unfettered discretionary power to order reinstatement. 16 However, Mr Shoebridge accepted that the interaction of s 23A(4) of the Act and s 23A(5) of the Act was not entirely clear. Counsel contended that it cannot be that s 23A(4) of the Act is limited in its scope by reason of (on a narrow reading of s 23A(2) of the Act), a requirement that any application is only able to be made where there has been a proven unlawful dismissal in contravention of s 23 of the Act. Mr Shoebridge submitted that, if this was the case, each and every application under s 23A of the Act would require a preliminary hearing as to the proof or otherwise of an unlawful dismissal prior to the acceptance of an application under s 23A of the Act by the Registrar. In other words, counsel submitted that there would need to be a "pre s 23A application hearing" and judgment prior to the Registrar even accepting the filing of a s 23A application. 17 Such a narrow interpretation, counsel contended, would do mischief to the Act which requires that any application under s 23A of the Act is to be made within 21 days of the alleged unlawful dismissal. This interpretation would place an impossible burden on the Court, applicants and respondents alike, as it would require a final determination of this essential issue within 21 days of the dismissal. Given this scenario, Mr Shoebridge submitted that a more rational reading of the Act provided for s 23A(2) of the Act allowing any person who "alleges" unlawful dismissal, to make an application within 21 days. 18 Accordingly, the applicant submitted, s 23A(4) provided that on an application alleging unfair dismissal being made, the Court may, without more, order the employer to reinstate the employee in accordance with the terms of its order. The applicant submitted that such a broad discretion would not be entirely unfettered. Guidance as to unfairness could be found by reference to the body of learning developed by the Commission under Pt 6 of the IR Act as well as considering the nature of any complaint alleged in the instant application and the respondent's treatment of the applicant. 19 Mr Shoebridge submitted that the circumstances where the broad discretion in s 23A(4) of the Act may potentially be relevant in this matter, would be if the Court was to conclude, contrary to the primary submissions of the applicant, that: (i) the applicant had not established unlawful dismissal as defined in s 23 of the Act (no complaint being made); (ii) the applicant established that the respondent mistakenly believed that he had given a direction to Mr Ngo (an employee of the respondent) to enter an area contaminated with asbestos when in fact he had not (the latter aspect only is consistent with the applicant's primary case); and (iii) the applicant was dismissed by reason of this mistaken fact. 20 Contrary to the applicant's submissions, Mr Searle submitted that s 23A of the Act, when read as a whole, requires the Court to find that an applicant was unlawfully terminated as a necessary pre-condition for the Court to make any of the orders authorised by the section. It did not give the Court a separate and discreet power to order the respondent to reinstate the applicant otherwise or outside a finding of unlawful dismissal within the meaning of s 23 of the Act. 21 I was helpfully assisted by counsel as to the proper approach to statutory construction and to the method which now prevails, particularly by reference to the mischief and context approach: see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. 22 It is now accepted that "context", interpreted in its wider sense, should be considered at the initial stage of the interpretative process: see for example, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 per McHugh, Gummow, Kirby and Hayne JJ; Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc and others (2000) 48 NSWLR 548 at 576 per Spigelman CJ; Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and others (2003) 130 FCR 524 at 534 per French and von Doussa JJ, 540 - 541 per Marshall J. 23 It is a fundamental principle of statutory construction that a construction should be adopted which would promote the purpose of the statute in preference to one which would defeat the purpose, provided that the construction reflects the language of the statute by applying its ordinary and grammatical meaning: Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 444 - 446. 24 I readily accept that when construing remedial provisions in a statute, such provisions should be construed beneficially. However, it is not open to give the words used in the Act an unlimited or unfettered meaning, or to interpret the words "beyond the scope of the legislature's clear intention", or to interpret the words in such a manner as to strain the language beyond a meaning the words are not capable of bearing (see Project Blue Sky Inc v Australian Broadcasting Authority). Section 23A of the Act must be construed in the context in which it appears, and as part of the statute as a whole, so that the purpose of the statute is promoted. 25 In circumstances where the language of the statute is not ambiguous or uncertain, the Court should apply its ordinary and grammatical meaning (unless to do so would give the statute an operation which was obviously not intended): Mills v Meeking (1990) 169 CLR 214 at 223. A similar mandate is found in s 33 of the Interpretation Act 1987 (NSW). 26 In addition, I have had in mind s 34 of the Interpretation Act as to the use of extrinsic material in the interpretation of a statute, and in particular, the provisions of s 34(2)(e), s 34(f) and s 34(h) of the Act respectively as to any explanatory note or memorandum relating to the Bill for the Act, the speech made in the House of Parliament by the Minister moving that the Bill be read a second time and the official record of debate on that occasion. For present purposes, I think it is sufficient to attempt to summarise the position by reference to what the learned author said in Halsbury's Laws of Australia, vol 24 at 385 as follows: [385-145] Intention of legislature The function of the court is to construe, by the application of accepted canons of construction, the intention of the legislature through the words used in a statute. Whatever the difficulties of construction may be, a court is bound to give some meaning to a provision in a statute, and a court cannot hold that an Act is a nullity because of the uncertainty of the language used. This literal approach has been described as the fundamental rule of interpretation to which all others are subordinate. With the adoption of such an approach to interpretation, the rejection of the grammatical sense is only permitted if the results lead to an absurdity or inconsistency. While the literal interpretation of the words has at times been expressed in the past more absolutely than in recent times, the more recent approach has been for the courts to ascertain the intention of the legislature through the object or purpose underlying the legislation and to ascertain the meaning of the words in light of that object or purpose. Such an approach consequently allows the court far more latitude in departing from the literal or grammatical meaning and extends to any situation where the literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy that may be discerned from those provisions. Such an approach has also been supported by legislative provisions in all Australian jurisdictions. Within these general parameters, a court must not refuse a construction: (1) merely because it results in an inconvenient result or produces anomalies; (2) because the court disapproves of the provision; (3) by disregarding and treating it as a dead letter; or (4) by disregarding it because of unreasonableness. ... 27 I will approach the construction of s 23A of the Act having in mind the nature of the statutory scheme. 28 The Industrial Relations Further Amendment Act 2006 was an Act to amend the IR Act and also the Occupational Health and Safety Act 2000. The explanatory note relating to the Bill for the Act as introduced into the Parliament relevantly stated the overview of the Bill in the following way: Explanatory Notes ... Industrial Relations Further Amendment Bill 2006 Explanatory note ... Schedule 2 Amendment of Occupational Health and Safety Act 2000 Section 23 of the Occupational Health and Safety Act 2000 makes it an offence for an employer to dismiss an employee, injure an employee in his or her employment or alter an employee's position to his or her detriment because the employee: (a) makes a complaint about a workplace matter that the employee considers is not safe or is a risk to health, or (b) is a member of an OHS committee or an OHS representative, or (c) exercises any functions conferred on the employee under Division 2 of Part 2 of that Act (which deals with certain employer consultation duties in relation to occupational health and safety). Schedule 2 [2] inserts a new section 23A in the Occupational Health and Safety Act 2000 to enable employees who have been dismissed in contravention of section 23 of that Act to apply to the Industrial Court of New South Wales for reinstatement. Schedule 2 [1] makes a consequential amendment to section 23 of that Act. ... 29 In moving that the Bill be read a second time the Hon Henry Tsang, Parliamentary Secretary to the Premier and to the Treasurer on Trade and Investment, repeated what was contained in the explanatory note and commented: New South Wales Legislative Council, Parliamentary Debates (Hansard), 15 November 2006 at 3920; To ensure that certain occupational health and safety matters and workers compensation matters continue to be appropriately regulated by New South Wales, the Bill adopts and transfers protections for persons raising occupational health and safety concerns and injured workers from the Industrial Relations Act 1996 to the Occupational Health and Safety Act 2000 and the Workers Compensation Act 1987 respectively. The Bill seeks to ensure that remedies for employees making health and safety complaints or carrying out health and safety functions in the workplace are appropriately contained within occupational health and safety legislation. The Bill makes an amendment to the Occupational Health and Safety Act 2000 . Under the Bill new section 23A provides for reinstatement of a worker, or compensation, where that worker has been dismissed in contravention of section 23 of the Occupational Health and Safety Act 2000 . Section 23 provides that it is unlawful for an employer to dismiss and employee for making an OHS complaint; or for being a member of an OHS committee or an OHS representative and exercising functions in those capacities. These protections are an essential part of the occupational health and safety framework of this State. Employees must have the freedom and confidence to raise health and safety concerns in the workplace. People participating as members of OHS committees or OHS representatives should be encouraged to accept those roles and be supported in those roles. There should be no threats to job security for anyone functioning in these important roles - or indeed threats to any person doing the right thing by their workmates and their employers by raising health and safety concerns. Everyone needs to be able to raise health and safety issues in the workplace as and when they arise. This is in everyone's interest. The protections for employees raising health and safety concerns are vital to the occupational health and safety regime in this State. ... 30 In CFMEU v Brolrik,, the Full Bench of the Industrial Relations Commission of New South Wales briefly considered the amendment to the Act, observing at [75], [77]: [75] More recently, s 23A has been inserted into the OH&S Act. The Industrial Relations Further Amendment Bill 2006 was introduced in late 2006, in response to the perceived confusion arising from the WR Act, and in order to ensure that occupational health and safety matters would continue to be regulated by New South Wales. Section 23A provides remedies for victimisation under s 23, and in similar terms to those contained within s 213 of the IR Act. In the Second Reading Speech introducing the legislation, the following comments were made: ... [77] The Minister contended, in his written submissions, that these provisions are both clearly directed to occupational health and safety, and are directed to the same objectives and have the same "material legal effect". We agree with this submission. He also notes, correctly, in our opinion, it would be absurd for provisions contained within the OH&S Act (ss 23 & 23A) to fall within the exceptions contained within s 16(2) and (3), but for ss 210(1)(j) and 213 of the Act to be excluded from the exception, by virtue of the fact that the former provisions fall within a "law with health and safety in its name" and the latter are "found within the I R Act". 31 In my opinion, the intention of the legislature in introducing s 23A of the Act was to provide for reinstatement of a worker, or compensation where that worker has been dismissed in contravention of s 23 of the Act. As Mr Tsang observed during the Second Reading Speech, the underlying policy for the amendment was "that employees must have the freedom and confidence to raise health and safety concerns in the workplace" and "[T]here should be no threats to job security for anyone ... doing the right thing by their workmates and their employers by raising health and safety concerns." This also makes clear that the jurisdiction of this Court to make an order is activated if there has been an unlawful dismissal within the meaning of s 23 of the Act. 32 In my view, the legislation is constructed, particularly s 23A(2) of the Act, ("An employee who has been unlawfully dismissed may, ...") so that a valid application may be made only where there is an unlawful termination. The section does not indicate that an application may be made in connection with/or as provided for by s 84 of the IR Act if an employee claims that the dismissal was harsh, unreasonable or unjust. There is no requirement for any preliminary hearing or, as was submitted by the applicant, "pre s 23A hearing" and judgment prior to an acceptance of the filing of a s 23A application. The unusual wording of the provisions simply has the effect that the determination of whether the dismissal was unlawful or not will be determined at the end of a proceeding. The effect of an applicant not succeeding in establishing an unlawful dismissal means there was no valid application before the Court. Whilst this is an unusual formulation and effect, to my mind, it does not have the mischief suggested by the applicant. 33 In my view, s 23A(4) and s 23A(5) of the Act should be read together and in the overall context of s 23A of the Act and not disaggregated in the way contended for by the applicant. Section 23A(4) of the Act is a general provision which does no more than avert to the fact that the Court may, on application, make an order for reinstatement. Section 23A(5) of the Act, more precisely, delineates the powers reposed in the Court when those powers are activated by the appropriate fact situation that the Court may make if satisfied that the applicant was unlawfully dismissed. Section 23A(4) of the Act, in my view, should not be construed as providing the Court with a broad and unfettered discretion to reinstate an employee in accordance with whatever terms were considered appropriate. What is required is the statutory pre-condition for making such orders must be made out, which is that there has been unlawful dismissal within s 23 of the Act. 34 Accordingly, the question for the Court is "whether or not a complaint has been made and, if so, whether or not the making of that complaint by the applicant was a substantial and operative reason for the dismissal." Therefore, critical question, therefore, to my mind, is for the Court to determine what were the actual reasons for the dismissal. If the respondent discharges the burden placed upon it by s 23A(10) of the Act, then there will have been no unlawful termination within the meaning of s 23 of the Act, subject of course to the applicant identifying evidence to the contrary. If the applicant cannot satisfy the Court that there was an unlawful dismissal within the meaning of s 23 of the Act then, in my view, there is no broad discretion otherwise reposed in the Court to make an order of the kind sought by the applicant. Matters of harshness or unfairness of the termination do not arise. 35 As the statutory pre-condition of establishing an unlawful dismissal is not present, the Court is unable to make any order for relief. Construction of s 23A(10) of the Act 36 The remaining issue in respect of the construction of s 23A relates to the construction of s 23A(10) of the Act. The respondent accepted that s 23A(10) of the Act involves a statutory presumption. Mr Searle submitted, correctly in my view, once the statutory presumption has been negatived, the applicant bears the usual onus on the civil standard to make out his case. It follows that it is necessary for the respondent to persuade the Court that the only motivation for the termination of the applicant's employment was that the applicant had engaged in serious misconduct. 37 Mr Shoebridge contended that once a complaint is made in accordance with s 23(1)(a) of the Act, the applicant has the presumption in his favour that his dismissal was by reason of the complaint unless and until the respondent re-buts this presumption. 38 The critical question, therefore, is what was the reason or reasons that actuated the termination of the applicant's employment by the respondent. As characterised by Mr Searle, this requires an examination of "the moving mind", or to put it another way, what was "the state of mind of the decision-maker", that being, Mr Christopher Gardiner, the Chief Executive Officer of the respondent? The Evidence 39 The applicant commenced employment with the respondent on 1 November 2004. A Property Audit of the Police and Community Youth Clubs ("the PCYC Clubs") was conducted by Mr Sean Wells, the Properties/Project Manager of the respondent on 22 November 2007. A Report was subsequently issued on 21 December 2007, which identified a number of priority repairs to be undertaken within the Bankstown Club. Arising from a risk and policy meeting convened by the respondent, a number of PCYC Clubs carried out a "Hazardous Material Survey" ("HazMat") conducted by HLA Envirosciences Pty Ltd ("HLA ENSR") including the Bankstown Club, where it was found that asbestos was contained in the roofing of the Bankstown Club. 40 A Hazardous Materials Report ("the HazMat Report") of the Bankstown Club dated 30 January 2008 was forwarded to the State office of the respondent on 19 February 2008. The HazMat Report relevantly stated "No moderate or high risks were identified at the club - all risks were rated as Low P3: 'the materials do not present a health risk unless disturbed by intrusive work'." 41 On 19 February 2008, Mr Wells forwarded an email to the Managers of the various PCYC Clubs in respect of the HazMat Report and requested that various works be carried out at the identified PCYC Clubs. In respect of the Bankstown Club, he recommended that air-monitoring be carried out as the Club's asbestos roof sheeting condition was subject to change by weathering because of varying heat conditions. Mr Wells further advised in this email that he would issue a soft copy of the report, which included a "hazardous materials register" to each of the PCYC Clubs once he received it from HLA ENSR. He advised the name of a company that carried out air-monitoring and a licensed asbestos contractor who could quote and carry out the works at the various PCYC Clubs. 42 The respondent agreed to fund the identified priority repairs. Quotes for repairs at the Bankstown Club were obtained in March/April 2008. Mr Wells approved work to be undertaken by the contractor, Trade Wind Constructions, at the Club in an email to the applicant dated 25 August 2008. A PCYC Clubs' Service Agreement was signed with the contractor and work commenced on Monday 20 October 2008. 43 At 10.41 am on Thursday 23 October 2008, the HazMat Report was received via email by the applicant from Mr Wells. The applicant forwarded, via email, the HazMat Report to the contractor at 1.28 pm on 23 October 2008. After reading the report during his lunch break, the applicant became concerned that there was fibro containing asbestos at the Bankstown Club where the contractors had been working during the week. Work undertaken, particularly by the electrical contractors, included the cutting, drilling and sawing of fibro panels. 44 The applicant attempted to contact Mr Wells by telephone, and left a message for him on his message bank, to express his concern. He also contacted the contractor at 3.18 pm on 23 October 2008. The applicant subsequently received an email from Mr Wells which relevantly stated: Please note some of the Hazmats include a "Moderate Risk" with regard to painted asbestos sheeting in good or fair condition. I believe it should be a "Low Risk" but am seeking clarification of the issue. 45 At 3.47 pm on 23 October 2008, the applicant forwarded an email to Mr Wells expressing his serious concerns and complaining that he had not received a copy of the HazMat Report until 23 October 2008. The applicant advised of the potential exposure of asbestos fibres to the contractors, employees, police, members and visitors to the Bankstown Club. At 4.12 pm on 23 October 2008, the applicant received an email from Mr Wells referring to the email that he had forwarded to him in February 2008, which indicated that there were no "High Risk or Moderate Risk" items identified at the Bankstown Club. After undertaking a risk assessment and assessing the information that he had received, the applicant determined to close off the two areas of concern within the Club and seek expert opinion and guidance. Staff were advised of the restricted areas and the Club was scheduled not to open until 12.00 noon on Friday 24 October 2008. The applicant contacted the WorkCover Authority of New South Wales (Dust Diseases Board of NSW) and advised of a potential workplace safety breach with regard to asbestos. 46 The applicant also contacted HLA ENSR and arranged for a professional assessment and advice to be provided on 24 October 2008. Mr Stephen Smith of HLA ENSR attended the Bankstown Club on 24 October 2008. He inspected the two suspected areas and undertook air monitoring tests and swab tests. He recommended that these areas remain isolated and closed until the test results were known. Mr Smith recommended that the doors to areas of concern be sealed with tape and that signage be put up. Mr Smith assisted with the taping of the doors. 47 The applicant received an email and a report from Mr Ross Nefodov from HLA ENSR at 4.23 pm, indicating that the air-monitoring had come back clear, but that all four dust samples had detected chrysolite asbestos. The report recommended quarantining the two areas; erecting appropriate signage, sealing the doors (which had already been completed) and arranging a clean up. Mr Nefodov advised that if the two areas remained quarantined, the remainder of the premises could remain open. The applicant gave Mr Nefodov approval to prepare for the clean up and to arrange emergency WorkCover approval for such a clean up, together with undertaking further tests during and after the controlled clean up. The applicant re-opened the Bankstown Club at 5.00 pm on Friday 24 October 2008. The applicant lodged a PCYC Club Incident Report at approximately 6.30 pm on Friday 24 October 2008. 48 The clean up and testing commenced at 7.00 am on Saturday 25 October 2008 and was completed by 12.30 pm on that date. At approximately 4.00 pm on 25 October 2008, Mr Nefodov called the applicant to indicate that air-monitoring and swab test results were clear and the areas could be reopened. Mr Nefodov assured the applicant that he had handled the situation appropriately. Mr Wells also forwarded an email to the applicant on 27 October 2008 stating: Thanks Michael, great to get this done so quickly, Kind regards. 49 On 3 November 2008, WorkCover interviewed the applicant in regard to the Bankstown Club's asbestos situation. WorkCover requested copies of the HLA ENSR Report, the HazMat Report and a list of all people who attended the Bankstown Club between 20 October and 24 October 2008. 50 On 6 November 2008, the applicant was one of a number of recipients of an email from Senior Sergeant Grenside. The email outlined a complaint she had received from Senior Constable Hughes, the Police Programmer at the Bankstown Club, dated 6 November 2008. Senior Constable Hughes detailed his concern that the HazMat Report had not been forwarded to the Bankstown Club until 23 October 2008, four days after work had commenced at the Bankstown Club. He saw this as a failure to maintain a safe workplace for all staff. 51 On 7 November 2008, Mr Gardiner responded to Senior Constable Hughes' complaint asserting that the matter had been handled appropriately. Mr Gardiner confirmed in his affidavit that he had received the email from Senior Sergeant Grenside responding to the complaint from Senior Constable Hughes. Mr Gardiner said that he initially dismissed the complaint. However, after a meeting with Superintendent Luke Moore, Commander of Youth Command, during which Superintendent Moore informed Mr Gardiner that Senior Constable Hughes had requested a formal review of the incident, Mr Gardiner decided to make additional inquiries into the complaint. It was during the further investigation that the respondent contended that it became aware of the misconduct of the applicant. Further enquiries made by Mr Gardiner included a telephone conversation with Mr Daniell Kapustin on 14 November 2008 when Mr Kapustin told Mr Gardiner that on 25 October 2008 (the day after the asbestos incident), Mr Ngo told him he had entered the quarantined area. Mr Gardiner asked Mr Kapustin to obtain a statement from Mr Ngo. 52 On 13 November 2008, the applicant took part in a teleconference with Mr Gardiner and Mr James Leitch, the PCYC Clubs' Safety Manager, during which there was discussion about the quarantined areas and the movements of staff within those areas during the period they were quarantined. The applicant later sent an email to both Mr Gardiner and Mr Leitch explaining that the light switch box was located on another side of the quarantined area and that all staff would have accessed that area to switch the Bankstown Club's lights on and off between 21 and 23 October 2008 when the area was quarantined. 53 On 14 November 2008, the applicant claimed to have been "bombarded" with negative emails from Mr Gardiner regarding entry to the quarantined areas. The following is the series of emails exchanged between the applicant and Mr Gardiner on 14 November 2008. The first email was forwarded by Mr Gardiner to the applicant at 8.55 am. It stated: Dear Michael, Thank you for this additional advice. Could you please advise: 1. Whether any individual on your list actually entered the area to use the light switch – you should be able to confirm your own movements, and be able to ask the others. 2. Why S/C Hughes but not S/C Butler would have accessed the area. 3. Given your awareness of the issue and your concerns on Thursday, whether you allowed or directed any person to move through that doorway after you had identified the issue (eg, to turn lights off). Thanks. At 9.58 am Mr Gardiner forwarded a further email to the applicant which stated: Dear Michael, Could you advise what time on Thursday 23 October you stopped work and quarantined areas? Could you advise whether you quarantined all the club or specific areas, and if the latter which areas? Which staff were present or attended subsequently and were advised of the quarantine restrictions? You have advised that external signage was nailed to the panels. Our visual inspection suggests use of adhesives. Could you confirm that you gave advice in the incident report on the basis of advice from the tradesperson or on the basis of personal inspection, or if your advice was based on an assumption, as I need to rule this location in or our of inquiries. Thanks. At 12.36 pm the applicant replied to Mr Gardiner's email of 8.55 am as follows: Chris, 1. The turning on & off of light switches is a second nature action; lights are turned on & off at various times therefore it is not an action that remains in your consciousness. As Demetra, Khai & me were all on duty at various times from Tuesday 21/10/08 to Thursday 23/10/08; it is with certainty all staff would have entered the area. 2. S/C Butler was on leave during this period; as indicated it is possible S/C Hughes entered the area within him program duties. 3. Only myself to identify the suspected areas to the ABE consultants. At 12.39 pm the applicant replied to Mr Gardiner's email of 9.58 am as follows: Chris, 1. Approximately 4pm. 2. Only specific areas – corridor & meeting room. Khai was on duty the Thursday night, Demetra was on duty the Friday afternoon but remained outside the club until I received advise from ADE consultant (Stephen Smith) that there was no safety issue for the club as long as the two identified are isolated, Khai back on Friday afternoon/night. 3. Only for the lower panels (ground floor); the higher panels (first floor) have been nailed or screwed – personal inspection. At 2.46 pm Mr Gardiner forwarded the following email to the applicant: Dear Michael, Thanks for this. Could you identify the company that put up the external signage, advise me as to the date of the work, and forward me the service agreement? I will consider whether that aspect of the issue needs further review. Mr Gardiner forwarded a further email to the applicant at 4.04 pm which stated: Dear Michael, Some further details to assist with my report on this matter: you advise that you closed areas at approx 4.00 pm. The contractors advise that you told them that you advised them of the issue in the morning, which is consistent with the email being sent to you by Sean with the report mid morning. Could you advise as to the reason for the delay between advising the contractors of the issue and closing the relevant areas? At 5:09 pm the applicant replied to Mr Gardiner's further emails: Chris, Given the fact that I received a Hazardous Materials Survey report dated 30/01/08 on 23/10/08 and realizing the actions that had occurred sometime during that week; I was somewhat shocked. On the Thursday, I advised the two electrical contractors of my concerns and whether they had drilled, sawed in the two areas. They indicated yes; I immediately advised them to contact there supervisor and that they needed to talk to me before any other spots were drilled, sawed or nailed. The two electrical contractors left at approximately 4pm. On Friday morning, I realized that other contractors were possibly on site; I immediately contacted Shane from Tradewind. He indicated that a locksmith was on site; I requested Shane contact the contractor & request he immediately vacate the premises. I was later advised that contractor was off site. With regard to the tone & questions within your series of emails: Do you or James have any concerns and/or issues of how I handled the situation? I have received a positive email acknowledgement from Sean Wells as to the actions that were undertaken. I have also received positive verbal acknowledgements from the two consultants from AD Envirotech (Ross Nefodov & Stephen Smith) & WorkCover Inspector (Dimitri Barlas) with regard to my actions. At 5.55 pm Mr Gardiner forwarded the following email to the applicant: Dear Michael, As you know, WorkCover has been contacted by us, and, I understand, by you. Our initial advice was that they were satisfied with our actions and advice. They have now, however, asked for a detailed report. You would also be aware that S/C Hughes has raised concerns through the Command as to how the matter was handled, and we need a very detailed account to be provided in that regard, given the strength of his concerns. As a result, as and when questions as to details arise, I need to have information provided, hence the series of questions. The actual timetable of events is crucial, not least in terms of claims of potential exposure. In that regard, could I again ask you to clarify the apparent gap between the tradespersons being advised of the issue in the morning and your quarantining of spaces, which you have advised you undertook at 4pm. I have not yet formed a view on how individuals have performed, notwithstanding S/C Hughes' demands in that regard. I will do so as and when I feel a final report can be provided. There is at this point the issue of your apparent failure to provide a service agreement for the contractor you sourced for the assessment and clean-up. I am still awaiting a copy of the service agreement regarding the signage works (as requested in a previous email and which needs to be faxed to me immediately please). Service agreements are crucial in this matter in terms of our actions to ensure contractor obligations in the matter of safety and to protect PCYC's interests in terms of quality of work undertaken. Concerns arising from this process of review – for policy improvement, or regarding the actions of individuals or the organisation – will be identified, as intimated above, with the completion of the review and persons advised accordingly of any further need for discussions or actions. 54 In his affidavit, Mr Gardiner denied the emails he sent were excessive. He contended that he sent the applicant four emails throughout the course of the day in an attempt to gather information for the report he was compiling in response to Senior Constable Hughes' complaint. 55 On 19 November 2008, Mr Ngo, in response to a request from Mr Kapustin, the Regional General Manager of the PCYC Clubs, sent an email to him with details of the incident that occurred on 24 October 2008. At 6.45 pm, Mr Kapustin, , forwarded an email to Mr Gardiner in the following terms: Dear Chris, Please find an email below from Van Khai Ngo relating to the Bankstown Asbestos incident which confirms the details of my conversations with him. Mr Ngo's email which was forwarded to Mr Kapustin on 19 November 2008 at 5.55 pm provided as follows: Hi Danny, As discussed, on the Thursday 23rd of October I was asked by Michael Hogan during my shift at Bankstown PCYC to enter the room where the lights are located. He requested that I enter the room at the end of my shift to switch off the lights even though he knew there was Abestos [sic]. I asked him if it was safe to enter because the door was taped with a "Do Not Enter, Danger" sign and I knew of the asbestos incident… he told me to take the tape off and enter the room and to make sure I close it and tape it back up. When I asked him if he would send his sons in to enter if they were in my position, he answered "No, that's why I'm sending you in", I was offended and said that I shouldn't enter if he wasn't going to send his sons in but he did not change my mind and told me that I have to turn off the lights to not waste electricity. I replied saying that my life is more important than a couple of dollars but to no avail. That night I turned off the lights I actually asked a friend to come with me because I was scared there would be a reaction, this is because I didn't know what the immediate consequences would be. Upon reading the Safety sheet sent out by Sean Wells the following day, I immediately felt better that nothing would happen in the short term… I have spoken to many friends and family about the incident because I was honestly scared and offended by what happened. Hope you understand Khai Ngo 56 Mr Ngo was employed as an activities officer at the Bankstown Club at the time of the incident. Mr Ngo's evidence was that the applicant directed him to enter the quarantined area on 23 October 2008 to switch off the Bankstown Club's lights. He subsequently corrected the date to be 24 October 2008. Mr Ngo swore an affidavit on 10 July 2009 in which he detailed the alleged conversation he had with the applicant leading to him entering the quarantined area on 24 October 2008. Mr Ngo's evidence was that on 24 October 2008 he arrived at the Bankstown Club at approximately 4.50 pm before the Bankstown Club was re-opened at 5.00 pm. Mr Ngo said that at 5.30 pm he had the following conversation with the applicant: Q: What am I to do about the lights, because I can't get in there? A: Just go in there and turn the lights off. Q: Isn't it dangerous? That's why it's cordoned off? A: No it's not dangerous, just get a piece of tissue and cover your face and go in there to turn the lights off. 57 At approximately 9.00 pm, Mr Ngo and a friend, Mr Tassos Repousis, entered the taped off area to turn off the Bankstown Club's lights. The next day, after discussing the incident with his girlfriend, Ms Lesley-Anne Brassel, Mr Ngo telephoned Mr Kapustin to discuss his concerns with the events of the previous night. Mr Kapustin asked if he would like to lodge a formal complaint in regards to the incident. Mr Ngo said he was unsure whether it was worth it to make a complaint and get his manager in trouble. 58 The applicant denies Mr Ngo's allegation of the conversation on 24 October 2008. In his affidavit of 22 July 2009, the applicant said, in regard to the alleged conversation on 24 October 2008, "This conversation did not occur. It is completely untrue." During cross-examination by Mr Searle, he gave the following evidence: Q: I put it to you that the conversation with Mr Ngo that occurred in the late afternoon of the Friday occurred like this. Mr Ngo says to you, "What am I going to do about the lights because I can't get in there." And you respond, "Just go in there and turn the lights off." That's what -- A: That's not correct. A conversation like that did not take place. Q: I further put it to you that Mr Ngo then inquired, "Isn't it dangerous? That's why it's cordoned off." A: A conversation of that nature did not take place. Q: And I further put it to you that you responded, "No, it's not dangerous. Just get a piece of tissue and cover your face and go in and just turn off the lights," or words to that effect. A: That conversation did not take place. Q: I further put it to you that Mr Ngo said to you words to the effect of, "Are you serious? Would you send your kids in there?", to which you responded, "No, but you're not my kid." A conversation like that did take place, didn't it? A: That conversation did not take place. 59 The applicant did, however, admit that on the previous night, Thursday 23 October 2008, he had indicated to Mr Ngo that the lights needed to be turned off at the main switch. He gave the following evidence: Q: You give evidence that you had a conversation with Mr Ngo about the turning off of the light? A: Yes, and that occurred on Thursday after the – yes, after the breach was discovered, a risk assessment was undertaken and the areas were closed off. Q: Yes, and you now understand that Mr Ngo says it occurred on a Friday? A; He alleges a conversation occurred on Friday. Q: Yes. And he says both in the email and in his affidavit, the conversation – well, you don't deny that you had a conversation with him about the light, although you say it was in different terms and it happened on Thursday? A: It was a simplistic conversation of, the lights will need to be turned off from the main until we get this resolved. Q: And you have seen his email and in his affidavit that – leaving aside the day that was said in the email – he says the conversation between yourself and himself about the turning off of the lights occurred at a time when the area was taped off and when there was a sign, a warning sign? A: Yes, that's what he states in his email, which is impossible if it's -- Later, in cross-examination, the applicant gave this evidence: Q: And it is therefore more likely than not, I've said, on the basis of those things that the conversation in whatever terms took place between you and Mr Ngo on the Friday. That is, I'm asking you to accept that you might have been mistaken about the Thursday. A: Mr Ngo is obviously mistaken about a lot of issues, but the conversation in regards to the lights and how to switch the lights off until the situation was remedied, occurred on Thursday. Q: You couldn't be mistaken about that? Couldn't have possibly been the Friday? A: No, I'm not mistaken about that. Q: How can you be so sure? A: Because I actually closed the club that night. Q: On the Thursday? A: On the Thursday. Yes, I do remember the conversation of how we were going to treat – action the incident as far as the light switches were concerned. I responded on that night to that fact. Q: Yes, but you weren't there on the Friday night? A: I left at 7pm on the Friday night to – because I needed to be back at the club at 7am on the Saturday morning. Q: And you understand that Mr Ngo alleges – and I've put to you the terms of the conversation – that on the Friday you directed him to switch off the lights by going to the affected area? A: Yes, and I've denied that. 60 Mr Ngo stated in his affidavit that on 14 November 2008 the applicant left a voicemail message on his mobile phone. Mr Ngo's evidence was that when Mr Ngo returned the phone call the following conversation took place: Q: Has anyone from State Office called you? A: No, what's this about? Q: You know the asbestos incident, they are trying to pin this on me, make sure if anyone from State Office calls say you went in there of your own free will. A: It's a bit late, I already told Danny about the incident. Q: Give him a call and tell him you misinformed him about the situation. A: I don't know that I can, I am not sure Danny will believe me. Q: If he calls you say just that, all right? 61 The applicant's evidence was that the telephone conversation did not take place. His evidence was that he had spoken to Mr Ngo on a number of occasions in September, October and November 2008. In cross-examination, the applicant said: Q: Now, you say the conversation that you had with Mr Ngo on this occasion was about rostering, do you? A: No, I actually do not remember the exact contents of the conversation I had with Mr Ngo at the time. It could have been about work matters. It could have been about a roster day. 62 Mr Kapustin annexed to his affidavit a copy of the applicant's telephone record for the period 2 November 2008 to 30 November 2008, which showed there was one call made to Mr Ngo's mobile phone from the Bankstown Club, being on 14 November 2008 at 11.48 am. No other calls were made to that mobile phone during November. 63 On 19 November 2008, Mr Gardiner sent the applicant an email at 10:54 am attaching his final report on the Bankstown incident and a letter that raised the allegation made by Mr Ngo. It included a request for further information on matters arising from the review that raised issues about the applicant's performance, including the claim made by Mr Ngo. The email stated: Dear Michael, Please see attached: · A copy of my report on the Bankstown incident – this is not for distribution, but for your information only at this stage. The report will be provided to S/C Hughes through the Command, and to Workcover through James · A letter to you raising issues I need further information on by the close of business tomorrow. The incident and S/C Hughes' complaint is now closed. I look forward to getting your clarification on the matters outlined in my letter. Chris Gardiner 64 The applicant responded to Mr Gardiner's email at 2.31 pm in the following terms: Chris, I consider this email & the series of your previous emails (the questions within these), the non-acceptance of the answers I provided, the illogical conclusions within attached report and the tone & directions within the attached letter; workplace harassment. I therefore wish to notify you that I consider this to be an industrial matter & have referred it to my employee association (Australia Services Union) for guidance & legal advice. All future correspondence on this matter will be via the ASU. I am severely stressed by your attack & I will sign off from duty at 2:45pm to seek medical attention. 65 The applicant went on workers' compensation leave under a WorkCover NSW Medical Certificate for the period 19 November 2008 to 28 November 2008, which was further extended to 12 December 2008. 66 On 21 November 2008, Mr Gardiner wrote to the applicant outlining the details of the alleged misconduct and requested the applicant provide a response to the allegation and show reason why his employment should not be terminated. The relevant parts of the letter from Mr Gardiner to the applicant of 21 November 2008 (incorrectly dated 21 October 2008) are as follows: On 19 November 2008 I wrote to you and provided details of a complaint received from Mr Ngo Van Khai concerning alleged exposure to hazardous materials at Bankstown PCYC on 23 October 2008. … If Mr Ngo's account is accepted, it would support a finding that you wilfully endangered his safety by directing him to enter upon an area cordoned off and clearly designated as unsafe. Mr Ngo alleges that notwithstanding his protestations, you continued to urge him to enter the unsafe area contrary to a sign which read: "Do Not Enter. Danger". The alleged misconduct identified by Mr Ngo would, if substantiated, justify the immediate termination of your employment. … We note that you have thus far declined to comment upon the specific issues identified in my letter and have not denied the more serious allegations identified in the foregoing. This gives rise to a presumption that Mr Ngo's has provided a true account of the incident. In the circumstances, you will be given until 5pm, Monday 24 November 2008 to show cause as to why your employment should not be terminated. This will afford you adequate time to secure appropriate advice from your union. You are put in [sic] notice that if you fail to provide a response within that time frame, your employment will be terminated. 67 A copy of Mr Ngo's email of 19 November 2008, set out above, was also attached to the letter. Mr Gardiner requested that the applicant provide his response by 5.00 pm on 24 November 2008. The applicant contacted Mr Harvey Purse, an Australian Services Union ("the Union") representative, who advised him that he was under no obligation to respond whilst he was on sick leave. 68 Mr Gardiner's evidence was that Mr Purse, on behalf of the applicant, contacted him to request an extension of time to enable the applicant to provide his response. Mr Gardiner stated in his affidavit that on 1 December 2008, after he still had not received a response from the applicant or his representative, that he sent a letter to the applicant's home address terminating the applicant's employment at the Bankstown Club, effective immediately. A copy of this letter was also faxed to Mr Purse at the Union that morning. Mr Gardiner's evidence was that the reason for the termination of the applicant's employment was that he ordered Mr Ngo to enter the quarantined area. 69 In addition, the respondent called Mr Repousis, a friend of Mr Ngo, who was at the Bankstown Club on 24 October 2008 for a rehearsal. He stated that Mr Ngo informed him of the direction given by the applicant to enter the contaminated area and said: "It's crazy. My boss is asking me to go in the room." Mr Repousis replied: Yeah it's not good, there was asbestos at school about a month ago and our legal studies teacher was talking about it. She said it's really dangerous. If you want I will go with you. 70 Mr Repousis described covering his mouth with his shirt when he entered the contaminated area with Mr Ngo. Mr Ngo's reason for exposing his friend to the potential danger was that he was scared. 71 Ms Demetra Proestos, an employee of the respondent, gave evidence of Mr Ngo being upset. Consideration Did the applicant make a complaint? Section 23(1)(a) of the Act 72 There was no dispute that the applicant was dismissed. Mr Shoebridge submitted that the first issue requiring determination was whether the dismissal was unlawful for the sole reason that the applicant was dismissed for making "a complaint about a workplace matter that the employee considers is not safe or a risk to health" (s 23(1)(a)) of the Act. There was no evidence that the applicant was dismissed because he was "a member of an OHS Committee or an OHS Representative" (s 23(1)(b)) of the Act. 73 Counsel submitted that the evidence was incontrovertible that the applicant made a complaint in accordance with s 23(1)(a) of the Act. Counsel relied on the meaning of "complaint" as found by Chief Industrial Magistrate Miller in Inspector Vierow v Sibyon Pty Ltd (unreported 96/1549-1550) October 1997). In that case, the Chief Industrial Magistrate concluded in relation to s 26 of the Occupational Health and Safety Act 1983, that a complaint required the person making the complaint to view it as such, that is, it required a subjective element. Further, it required more than simply seeking advice; it required the airing of a grievance. However, it did not require a formalised complaint. 74 Mr Shoebridge submitted that this interpretation accorded with the ordinary meaning of "complaint". Its primary meaning is defined in the Macquarie Dictionary, 3rd ed (rev) (1997) as "noun. 1. an expression of grief, regret, pain, censure, resentment, or discontent; lament; fault-finding." Counsel adopted the definition of "an expression of ... discontent; ... fault-finding" as relevant to this matter. 75 Mr Searle took no issue with the meaning of the term "complaint" relied upon by the applicant. 76 The Full Bench in Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218, a case not referred to by counsel, considered the phrase "makes a complaint" found in s 210(1)(j) of the IR Act. This Section deals with freedom from victimisation. Relevantly, the section provides that an employer must not victimise an employee because "the person makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Div 2 of Pt 2 of the Occupational Health and Safety Act 2000". 77 It will be immediately apparent that the language of s 23(1)(a) of the Act and s 210(j) of the IR Act are identical. The Full bench observed at [23]: ... we consider that the phrase "makes a complaint" should be construed broadly and does not require a formal accusation. A complaint can be inferred from conduct, or a course of conduct, involving raising concerns, objections or disagreements and should be seen to encompass the myriad of ways in which an employee would ordinarily raise issues or make complaints in a workplace. 78 The Full Bench set out dictionary definitions of "complaint" and stated at [25] - [27]: [25] In interpreting the phrase "makes a complaint", it is also necessary to consider the phrase in the context of the words used in the sub-section. The requirement is "makes a complaint about a workplace matter that a person considers is not safe or a risk to health". In this regard, we refer to the observations of the Full Bench in Davis v Amalgamated TV Services (1998) 81 IR 364, in which it was said (in obiter): The result is that the legislation is now not penal but purely remedial in nature and, in our view, should not be interpreted on a strict or technical basis so as to defeat receipt of the intended benefits; rather, a more purposive and beneficial construction of the legislation should be adopted. [26] We consider that the phrase "about a workplace matter" gives meaning to "complaint". Specifically, the context within which "complaint" is included in the section connotes something which is informal in nature akin to the statement of grievances or expression of dispute in a workplace context and thereby having the following attributes: (a) the complaint may be in the nature of a grievance or dispute rather than a formal complaint; and (b) the complaint may be made in any one or more of the ways in which employees would ordinarily make complaints in the workplace, and (c) there is no requirement as to form, such that the complaint could be made orally or in writing. [27] Section 210(1) is a protective provision and to adopt an overly technical approach to the meaning of "complaint" as contended by the appellant would, in our view, serve to defeat the intended benefit of the section, that is, to allow people to make complaints about safety without fear of victimisation or retribution. In any event, the approach we take is to adopt a common sense approach to the ordinary meaning of the word. 79 The Full Bench observed that in interpreting the phrase "makes a complaint", it was also necessary to have regard to the purpose of the section in the Act and concluded at [29]: In conclusion, having regard to the ordinary meaning of the word "complaint", the context in which the phrase "makes a complaint" is used in s210(1) and the protective nature of the section, we are satisfied that the phrase "makes a complaint" should be construed broadly and that it is not necessary to point a specific formal accusation as constituting the making of the complaint. Expressing dissatisfaction about a workplace matter may well amount to the making of a complaint. This may arise from an instance or the statement of a grievance or, when viewed in context, a course of conduct involving the expression of dissatisfaction or the raising of concerns or objections. 80 I respectfully adopt the Full Bench's reasoning and propose to apply it in construing s 23(1)(a) of the Act. 81 Mr Shoebridge contended that there was no specific requirement for the complaint to be made directly to the employer, nor was there any requirement for the complaint to be made on only a single occasion. What was required, counsel submitted, was that there be a complaint made by the applicant about a workplace matter that he considered was not safe or was a risk to health prior to, in this case, his termination. Counsel accepted that the complaint must come to the attention of the employer. 82 Mr Searle disagreed with this approach. Counsel submitted, having regard to the whole of the provision, its location in the particular Act, and its policy and purpose, the better view, so it was submitted, was that the complaint must be made by the applicant and it must be made to the employer, otherwise the presence of the statutory presumption in s 23A(10) of the Act makes no sense. I do not agree with this approach. 83 The respondent's position was that upon a proper analysis of the applicant's evidence, there was no evidence which demonstrated or could relevantly constitute a "complaint" within the meaning of the Statute. 84 The first issue, therefore, to be determined is whether or not a complaint was made by the applicant, and if so, whether the making of that complaint was a substantial and operative reason for the dismissal. The second issue to be determined is what were the actual reasons for the dismissal. It is abundantly clear that the applicant's case rests on his credibility and the respondent's case rests on the credibility of Mr Gardiner and Mr Ngo. 85 An examination of the applicant's affidavit reveals two emails that could possibly constitute the complaint for the purpose of these proceedings. 86 The first email relied upon by the applicant as evidence of a complaint is the applicant's email response to Mr Wells at 3.47 pm on 23 October 2008. It will be recalled that at 10.41 am on 23 October 2008, Mr Wells forwarded an email to the applicant and copied it to Mr Kapustin and Mr Narsey. Under the heading "Subject: Bankstown - Hazardous Materials Survey", Mr Wells advised that the HazMat for the Bankstown Club had been completed. Mr Wells drew the applicant's attention to an Asbestos Fact Sheet, the Hazardous Materials Register and the Asbestos guidelines. 87 The applicant responded to this email as follows: I have serious reservations about receiving this report dated 30/01/08 on October 25, 2008 (sic); many of the panels noted as containing asbestos have recently been disturbed (drilled, nailed, cut) for priority maintenance and upgrade work without the contractors, staff, police, members & myself being aware of the contents of the material therefore exposing many to the dangers fractured & air-borne asbestos particles. I have indicated to the Shane (Tradewind) that the on-site contractors should be aware of the dangers and for them to consult with me if they are in any doubt as to the composition of the panels to be worked on. 88 The second email that may be a complaint is a PCYC Clubs' Incident Report lodged by the applicant at approximately 6.30 pm on Friday 24 October 2008. The report relevantly provided: I received an email from Sean Wells (Properties/Projects Manager) containing a Hazardous Materials Survey Site Report for Bankstown PCYC dated 30/01/08 on Thursday 23/10/08. Upon reading the report, I became concern that between Friday 17/10/08 and Thursday 23/10/08 a number of incidences of possible exposure to asbestos fibres had occurred to contractors, staff, police & members. The contractors from Tradewind had cut, nailed, drilled &sawed in two areas that the report indicated contained 'asbestos containing fibro' sheets. Upon questioning the contractors as to whether he was aware that the sheets contained asbestos; they answered no. I advised the contractors, they needed to contact their boss to advise of possible asbestos exposure. The contractors advised they had swept & dry vacuumed these areas. On Friday 17/10/08 contractors had nailed PCYC & activity signage to exterior panels the report indicated were 'asbestos containing fibro' sheets. 1. fibrous cement wall partition to north west ground floor corridor adjacent to police office 2. beam cladding to the meeting room at the north eastern side of the main hall were tested for airborne fibres & dust swabs were taken by AD Envirotech Aust Pty Ltd. The AD Envirotech report stated the airborne tests were negative but all swabs found traces of asbestos. The report indicated the two areas be quarantined & sealed immediately and decontamination of the affected areas occur urgently. Decontamination work has been arranged for Saturday 25/10/08. Workcover (Dust Diseases Board) has been contacted regarding this incident. Michael Hogan 6.30pm 24/10/08 89 In my view, a proper examination of the email and the report demonstrates that both of them relevantly constitute a "complaint" within the meaning of the legislation. The applicant expresses "concern" or dissatisfaction about the late receipt of the HazMat Report in relation to the Bankstown Club. The delay of the HazMat Report itself was unsafe and sufficient to cause a lack of safety or a risk to health. 90 However, neither of these complaints, according to the evidence, were in the mind of Mr Gardiner when he came to his decision to terminate the applicant's employment. This is a matter that I will expand upon later in these reasons. His evidence is that he was not aware of these emails/documents prior to the decision to terminate the applicant's employment. The evidence discloses that on or about 6 November 2008, Mr Gardiner became aware of a complaint made by Senior Constable Hughes regarding the alleged incident. This email had been forwarded to Mr Gardiner at 3.27 pm on 6 November 2008 by Senior Sergeant Grenside, A copy of Senior Constable Hughes' complaint was also copied to the applicant, Mr Kapustin, the Metro West Zone Sergeant and the Southern Zone Sergeant. At 5.42 pm on 6 November 2008. Mr Kapustin forwarded an email to Mr Gardiner which relevantly provided: Dear Chris I understand that the Commander was alarmed when he read this complaint and has asked for a response. I also understand that the manager has verbally complained to the Zone Commander. Would you like me to respond or would you prefer to yourself? The key points were: · A HazMat report was done on 30/1/08 for Bankstown but we did not receive this report until October and once we did it was forwarded to the manager · Sean Wells emailed the manager on 19/2/08 and organised an air monitoring test which came back clear and informed the manager there were other low risk issues at the club which would be detailed when we received a full report · Minor work commenced at the club in October just prior to the manager receiving the MazMat report on 23/10/08 and this work disturbed some asbestos (I believe 2 drilled holes) · On realising this, work was stopped and tests done. Air monitoring was clear but particles were found on the floor. These were subsequently cleaned and further tests found that it was clear · According to the NSW Health factsheet health concerns occur only when persons are exposed to airborne asbestos for prolonged periods. In this case no test has found airborne asbestos and there were no prolonged periods involved · Under the OH&S Regulations 2001 - Clause 228 states it is the 'responsibility of the principal contractor' to ensure work on asbestos is safe. Our service agreement also suggests it is their responsibility · The manager was aware that there was asbestos at the club (even if he did not yet have a detailed report) and should have been responsible for informing the contractor but did not Let me know if you require more information and if you would like me to respond. Regards Danny Kapustin 91 Mr Gardiner's evidence, which I accept, was that he came to a number of conclusions that led him to dismiss the complaint. These views were set out in an email to Superintendent Moore, forwarded at 10.52 am on 7 November 2008. Mr Gardiner supplemented his conclusions in a further email to Superintendent Moore forwarded at 3.29 pm on 7 November 2008. On 12 November 2008, Superintendent Moore advised Mr Gardiner that Senior Constable Hughes did not accept Mr Gardiner's review and conclusions and sought a more formal and comprehensive review and report. This led to Mr Gardiner undertaking additional enquiries into the complaint on Thursday 13 November 2008. Part of the further enquiries included an initial phone conference between the applicant, Mr Gardiner and Mr Leitch. 92 There is no evidence that any of the documents said to amount to the complaint came to the attention of Mr Gardiner prior to the termination of the applicant's employment. In order for the applicant to succeed, it is necessary to demonstrate that the making of an occupational health and safety complaint was a substantial cause of the initiation of the investigation undertaken by Mr Gardiner that ultimately led directly to the applicant's dismissal. Although I have found the applicant has made a complaint in accordance with the provisions of s 23 of the Act, he has failed to demonstrate that at all times it remained a substantial and operative cause of the dismissal. 93 In my view, the email of 23 October 2008 from the applicant to Mr Wells is clearly a record of a grievance about the late provision of the HazMat Report which the applicant said caused the applicant, contractors, staff, police and members to be exposed to asbestos particles. However, there is no evidence that "the moving mind" of the employer, Mr Gardiner, was aware of that email. 94 It is clear that Senior Constable Hughes made a complaint regarding the HazMat and asbestos issue. In my view, Senior Constable Hughes' email to Mr Gardiner could not constitute a complaint within the meaning of the statute for the reasons that I have already provided. The statute requires that the applicant make the complaint to the employer. Although the evidence of Senior Constable Hughes is that the applicant showed him the email from Mr Wells dated 23 October 2008 during the afternoon of the day he received it and that he was very upset and angry about the delay in receiving the report, the evidence does not disclose that the applicant requested Senior Constable Hughes to make a complaint on his behalf. 95 In any event, the evidence of Mr Gardiner, which I accept, was that he investigated Senior Constable Hughes' complaint and dismissed it. Furthermore, in an email to Mr Gardiner dated 18 November 2008, The applicant says that he was not aware of the concerns raised by Senior Constable Hughes, except for Mr Gardiner's response to Senior Constable Hughes which was copied to him. This email was a response by the applicant to a series of emails forwarded to him by Mr Gardiner when he commenced investigating the allegation made by Mr Ngo that he had been directed by the applicant to enter the restricted area. Although the applicant refers to the HazMat Report in the email, there is no complaint about the late receipt of the said HazMat Report or any consequences for health and safety because of its late receipt. 96 It is also necessary to interpret the word "employer" found in s 23A of the Act. In my view, the same approach to construction as was adopted in respect of the meaning of the word "complaint" should be applied. Noting that I am dealing with social legislation which must be construed beneficially, there is no basis to construe such legislation restrictively: see Capral Alumimium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [42] - [43]; Re Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination (No 2) [2006] NSWIRComm 328; (2006) 158 IR 17 at [111]; Endeavour Coal Pty Ltd & Ors v Construction, Forestry, Mining and Energy Union (New South Wales) [2007] NSWIRComm 70; (2007) 161 IR 96 at [44]. In my view, the word "employer" should be construed broadly to include any agent of the employer, in this case, Mr Wells, the Properties and Project Manager for the respondent. 97 In my view, and I find, the matters relied upon by the applicant in his email to Mr Wells identify a complaint within the meaning of the statute. The applicant, in his evidence, identified the complaint this way: The complaint I made was to the fact a report dated in January 2008 was not received by myself until October 2008 and, in that period of time, that there had been workplace safety breach[es] and that possibly, almost certainly, a number of people were exposed to asbestos fibres and fractured asbestos, including myself due to the fact that the report, which we now know was received by the PCYC in February [2008], was not forwarded on until October [2008]. 98 The evidence discloses, and I find, a "complaint" for the purposes of s 23(1)(a) was provided by the applicant to his employer prior to the termination of his employment. Reasons for termination 99 It follows that it is therefore necessary to examine what was the substantial and operative cause for the termination of the applicant and determine if the respondent has discharged the onus found in s 23A(10) of the Act. The reasons provided by the respondent for the termination of the applicant's employment in letter dated 1 December 2008 was stated as follows: To have directed a staff member into an area you believed was the subject of an asbestos material threat was a serious breach of State law, specific PCYC policy and procedure, and your general duty of care. It also appears that you lied about this matter in your email to me dated 14 November 2008. Your actions appear to have been wilful and deceitful and are totally unacceptable. I am therefore terminating your employment effective 9.15 am Monday 1 December 2008. ... 100 The critical evidentiary contest between the parties is to the alleged direction given by the applicant to Mr Ngo. In short, the applicant's case is that what led to his dismissal was the complaint that he made in relation to the asbestos incident. The applicant seeks an inference to be drawn from the whole of the evidence that one of the subjective reasons relied upon by Mr Gardiner was the complaint. 101 Mr Shoebridge submitted that this inference is available when the above fact is taken into account together with Mr Ngo's lack of credibility, his motive and the close relationship between Mr Ngo and Mr Gardiner. Counsel submitted, in such circumstances, an inference is open that Mr Gardiner knew of Mr Ngo's, at best, concocted version of events and used the investigation arising from the OHS complaint as a means of terminating the applicant's employment. This submission ignores the evidence of Mr Kapustin and Senior Constable Hughes. 102 In order to reach such findings, Mr Shoebridge urged that I conclude that Mr Gardiner was not a witness of credit and that where Mr Ngo's evidence contradicted that of the applicant, it should not be accepted. The effect of the applicant's case was that Mr Gardiner and Mr Ngo had conspired to harm the applicant and bring about his termination. 103 I am not prepared, for the reasons that I now provide, to make the findings urged upon me by counsel for the applicant. Having carefully observed the demeanour of Mr Gardiner, Mr Ngo and Mr Kapustin, I prefer their evidence where it conflicts with that of the applicant. Mr Gardiner answered questions thoughtfully and clearly. I found him to be a reliable witness. I formed a similar opinion in respect of Mr Ngo and Mr Kapustin. 104 Although I have found the applicant did make a complaint within the meaning of the Act which would give rise to an application pursuant to s 23A of the Act, in my view and I find for the reasons that follow, that the evidence before the Court demonstrates clearly that the applicant was not unlawfully dismissed within the meaning of s 23 of the Act, but was dismissed for serious misconduct based on the reasons set out in the letter of termination dated 1 December 2008 from Mr Gardiner to the applicant. 105 As I have already observed, on 13 November 2008, Mr Gardiner began additional enquiries into a complaint made by Senior Constable Hughes after the Senior Constable did not accept the initial conclusions reached by Mr Gardiner. Mr Gardiner undertook additional enquiries regarding the asbestos issue. Those further enquiries included a telephone conversation with Mr Kapustin on 14 November 2008 when, in response to a direction by Mr Gardiner to contact employees who had been on duty at the time of the incident and obtain information from them, Mr Kapustin advised that he had spoken to Mr Ngo the day after the incident and he had told him that he had entered the quarantined area. Mr Gardiner forwarded the applicant's emails of 8.33 pm on 13 November 2008 and 12.36 pm on 14 November 2008 to Mr Kapustin and asked him to check the details of his account with Mr Ngo. 106 On 14 November 2008, the applicant says that he commenced to be bombarded with emails from Mr Gardiner asking "pointed" questions to which he responded. 107 In my view, there was nothing oppressive, untoward or impolite about the enquiries being made by Mr Gardiner, which the applicant had no difficulty in answering. So much was conceded by the applicant in cross-examination. The enquiries by Mr Gardiner were nothing more than one would expect a prudent employer to undertake in a similar situation, particularly bearing in mind the seriousness of the allegation by Mr Ngo. 108 On 19 November 2008 at 10.54 am, Mr Gardiner forwarded a further email to the applicant attaching a copy of his final report into the incident, together with a letter asking the applicant to provide further information regarding three matters arising from his investigation that Mr Gardiner believed raised issues about the applicant's performance. The issues included the claim by Mr Ngo that he had been directed to enter a quarantined area and that the applicant had suggested to him that his management of the situation was appropriate. 109 A written response to these issues was requested by 5.00 pm on 21 November 2008. At this time, it is to be observed that Mr Gardiner had no further information about the alleged incident involving Mr Ngo, other than his conversation with Mr Kapustin. At 2.31 pm on 19 November 2008, the applicant sent an email claiming that his letter and earlier questions were "workplace harassment". The applicant advised that he considered "this to be an industrial matter". He claimed that he was severely stressed and that he was "signing off from duty" early "to seek medical attention". Mr Gardiner replied and expressed regret at the applicant's decision and rejected the claim of harassment and said that the matters would need to be addressed on the applicant's return to duty. 110 During the evening of 19 November 2008, Mr Kapustin forwarded to Mr Gardiner an email received from Mr Ngo providing details of Mr Ngo's claim that the applicant had directed him to enter a quarantined area. Mr Gardiner's affidavit and oral evidence was that he regarded Mr Ngo to be a reliable and trustworthy employee and one who had proven himself in the PCYC Clubs' Youth Leadership Program and who had been recognised for his community service. 111 On 21 November 2008, Mr Gardiner forwarded a "show cause" letter by courier to the applicant's home address asking him to show cause as to why he should not terminate his employment. The letter sought a response from the applicant by 5.00 pm on 24 November 2008. Mr Gardiner explained why he changed his mind from having the matter addressed when the applicant returned to duty as follows: Q. Are you able to inform the Court as to the reason for change in your view of this matter? A. My initial letter to Mr Hogan asking for a response raised an allegation by Mr Ngo that had been communicated to me orally. I received, after sending that document - the document to Mr Hogan, an e-mail from Mr Ngo sent to me by Mr Kapustin; that was the first occasion I had direct information from Mr Ngo. When I read that e-mail I was very concerned by Mr Ngo's allegation and the specific allegation that the direction he alleged had been given to him may have included a certain attitude displayed towards this young employee, I considered to be a very serious matter at that point and felt it appropriate that I should send that detailed allegation to Mr Hogan with a direction that he explain to me and show cause why I should not terminate him. ... Q: Apart from the matter you just indicated to the Court, are there any other reasons why you issued a show cause notice to Mr Hogan? A. No, it was the allegation by Mr Ngo. 112 Mr Shoebridge pursued this matter with Mr Gardiner in cross-examination where Mr Gardiner gave the following evidence: Q. What was the attitude? A. The allegation not only had he directed him into an area that was unsafe, but that when Mr Ngo had queried this - from the e-mail - "When I asked if 'he would send his sons in there if they were in my position?', he said, 'No, that's why I am sending you in'.", that disturbed me as a possible attitude compounding the alleged misconduct. Q. What is the possible attitude that you are talking about? A. I considered that to be dismissive of this young person's concerns and abuse of his position. 113 Subsequently, Mr Shoebridge asked Mr Gardiner to explain how it was appropriate to require the applicant to respond to such a serious allegation whilst he was off work on sick leave for an anxiety disorder, to which Mr Gardiner answered: [an] extreme example of a senior person abusing his position in regard to a junior person and put that person at risk in terms of his health. I considered that justified my drawing to his attention what the details were, asking for an immediate response, and advising him if that was not provided I would terminate him. I considered that appropriate, given how serious I thought the allegation was. 114 Subsequently, the Union sought an extension of time to respond to the email, which was granted by Mr Gardiner to 4.00 pm on 28 November 2008. Shortly prior to the expiry of the extension of time, the Union again contacted Mr Gardiner and sought a further extension until 1 December 2008. Mr Gardiner agreed to further extend the time for the applicant to respond to 9.00 am on 1 December 2008. The Union had indicated to Mr Gardiner that if the applicant was too ill, they would not push him to respond. However, there was no further communication from the Union prior to 1 December 2008, when Mr Gardiner forwarded by courier a letter of termination to the applicant's home address. 115 It should be noted that the applicant, at no time, issued any denial of the allegation prior to his termination. Either the Union, on the applicant's behalf, or the applicant, could have issued a brief denial as to what was clearly a most serious allegation, and sought to provide a more detailed response upon his return to work. At 2.11 pm on 1 December 2008, Mr Gardiner received an incomplete facsimile reply from the Union, which attached a response from the applicant regarding his directing Mr Ngo to enter a potentially affected area. It is important to note that the applicant was invited to respond to a very specific allegation. His ultimate response was approximately one page. His explanation for not responding within the extended timeframe was that he was under a WorkCover certificate for an anxiety disorder said to be brought on by perceived harassment by Mr Gardiner. The applicant's claim was denied by the workers' compensation insurer in February 2009. 116 As I have already observed, the issue for determination is what was the reason or reasons that actuated the termination of the applicant's employment by the respondent? As Mr Gardiner was the decision-maker, his reasons for terminating the applicant are critical. In other words, Mr Gardiner's state of mind at the time of the termination of the applicant is critical to his claim for unlawful termination. The clear and unshaken evidence given by Mr Gardiner was, that faced with a most serious allegation of misconduct against the applicant from what he regarded as a credible source (Mr Ngo), and faced with the situation that the very specific allegation that Mr Ngo made in relation to the applicant was not denied and not responded to in the period of time provided to the applicant by his employer, Mr Gardiner took action that he regarded as appropriate in the circumstances. 117 In my view, and I find, the statutory presumption contained in s 23A(10) of the Act is rebutted for the following reasons: (i) the action taken by Mr Gardiner was taken in the face of a serious allegation which was not denied by the applicant within a reasonable period in which the employer sought the applicant's response; (ii) the applicant, although ultimately denying the allegation, acknowledged that directing a staff member to go into an area quarantined because of the potential presence of asbestos would have been potentially dangerous and amount to an act of misconduct; (iii) the show cause letter did not raise any other matter that would cause the applicant's employment, at that point in time, to be in jeopardy, other than the allegation concerning Mr Ngo. There was no rejection of the allegation made by Mr Ngo by the applicant prior to his termination; (iv) the applicant accepted that an employer would be bound to undertake an investigation into such a serious allegation as made by Mr Ngo and that an employer would have to form its view based on the response provided by both himself and Mr Ngo, including any lack of response; (v) the applicant accepted he provided no response regarding the allegation prior to the extended deadline. 118 The evidence of Mr Gardiner, which I accept, and which was not contradicted, was that the applicant's employment was terminated because he did not respond in the time provided to a serious allegation of misconduct from what Mr Gardiner regarded as a credible source. Mr Gardiner's evidence was that he had only one account of the matter, as the applicant failed to respond, despite the seriousness of the allegation and that it was reasonable for him to rely upon the account of Mr Ngo. 119 It follows, therefore, that the statutory presumption contained in s 23A(10) of the Act has been rebutted on the basis of Mr Gardiner's evidence as to what was the substantial and operative cause in terminating the applicant's employment. The respondent therefore having rebutted the statutory presumption, the burden of proving the termination was unlawful within the meaning of s 23 of the Act, falls on the applicant. 120 In these circumstances, the Court does not need to determine whether or not, on the totality of the evidence before it, the alleged misconduct of the applicant occurred. However, should I be wrong in this regard, I propose to proceed to determine whether the alleged misconduct of the applicant occurred. In light of the gravity of the misconduct, in my view, the standard of proof that should be applied is in accordance with the principles stated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 360 - 363. At 361 - 362, Sir Owen Dixon stated: ... Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. 121 Mr Ngo's evidence is that on 24 October 2008 at around 5.30 pm, the applicant was getting ready to leave the Bankstown Club when he directed Mr Ngo to enter the restricted area and turn off the lights of the Club at the end of his shift. Mr Ngo first recounted the events involving the misconduct alleged against the applicant in a telephone call to Mr Kapustin on 25 October 2008, and subsequently, in an email to Mr Kapustin (which he requested) on 19 November 2008. Although Mr Ngo initially said that the direction given to him by the applicant occurred on 23 October 2008, he subsequently corrected the date to 24 October 2008. Mr Ngo was clearly mistaken. His evidence was that there were warning signs and tape present at the entrance to the affected area. It was common ground that the warning signs and tape on the door were put in place on Friday 24 October 2008, after Mr Smith attended the Bankstown Club on that day to inspect the contaminated area, and were not in place on 23 October 2008. 122 In addition, in his affidavit evidence, Mr Ngo stated that the direction given to him by the applicant occurred on 24 October 2008 because he recalled on that day he had an assignment to submit at the University of Technology and had sought an extension from 23 October 2008 to 27 October 2008. However, his lecturer had directed him to submit his assignment on 24 October 2008. 123 In all, Mr Ngo recounted what occurred on 24 October 2008 on four occasions: the first being to Mr Kapustin in a telephone call on 25 October 2008; the second being in an email to Mr Kapustin on 19 November 2008; the third being in an email to Mr Gardiner on 1 December 2008, and the fourth being in a statement to Verifact Investigations Pty Ltd on 6 January 2009. This company was acting on behalf of CGU Insurance and investigating a claim made by the applicant that he suffered personal injuries in an incident at the Bankstown Club on or about 24 October 2008. In all material respect, the evidence of Mr Ngo is consistent. I have reached the conclusion that I am comfortably satisfied that the evidence of Mr Ngo should be accepted in respect of the misconduct alleged against the applicant for the following reasons: (i) Mr Ngo gave his evidence in a clear and forthright manner. He was prepared to acknowledge when he could not recall specific details and he remained unshaken in cross-examination. I regard him as a witness of truth and where there is any conflict between his evidence and that of the applicant, I prefer the evidence of Mr Ngo; (ii) the contemporaneous complaint made by Mr Ngo to Mr Kapustin; (iii) the evidence of Mr Ngo was that he spoke to Senior Constable Peter Hughes on 1 December 2008 to obtain his advice because the applicant had asked him to change his story. This is corroborated by the evidence of Senior Constable Hughes; (iv) the evidence of Mr Ngo is corroborated by Mr Kapustin that he received a telephone call from him on Saturday 25 October 2008 when he informed Mr Kapustin that the applicant had asked him to go into the contaminated area. There is no evidence that at this time Mr Ngo spoke to Mr Gardiner. The evidence of Mr Ngo is again confirmed by Mr Kapustin that he called Mr Ngo on 14 November 2008 from Mr Gardiner's office and asked him to confirm what Mr Ngo had told him on 25 October 2008. Mr Kapustin also confirmed that on 1 December 2008, he received a telephone call from Mr Ngo advising him that the applicant had said "we need to get our stories straight and that if Danny or the CEO calls, you should not tell them that I asked you to go into that room." Mr Ngo's evidence was that he advised Mr Kapustin that he told the applicant it was too late because he had already informed Mr Kapustin of the direction on 24 October 2008. The applicant then said "call up Mr Kapustin and say that you have made a mistake and that it didn't happen." (v) the evidence of Ms Proestos, although not evidence of the truth of what Mr Ngo said took place between him and the applicant is strongly corroborative of Mr Ngo's evidence being more likely than not to be correct. This is particularly so in respect of her evidence that Mr Ngo was upset. I found Ms Proestos to be a reliable witness; (vi) the evidence of Mr Repousis who accompanied Mr Ngo into the restricted area at Mr Ngo's request. Although I accept that this is not evidence of the truth of what Mr Ngo says took place between himself and the applicant, once again, it is very strongly corroborative of Mr Ngo's evidence. Mr Repousis' evidence supports Mr Ngo's evidence that he went into the affected area twice, once in the company of Mr Repousis. The reason given by Mr Ngo that he was directed to do so by the applicant was also given by Mr Repousis at the time that they went into the restricted area. I found Mr Repousis to be a reliable witness. 124 There are a number of reasons, in my view, why the applicant's evidence should not be preferred to that of Mr Ngo to the extent of the inconsistencies between their respective evidence. These are: (i) on occasions the applicant gave non-responsive answers and occasionally evasive answers. He also had an inability to recollect important matters. This raised questions about the reliability of his evidence on matters which were the subject of conflict with the evidence of Mr Ngo; (ii) that the applicant, at no time, denied the allegation of misconduct involving Mr Ngo prior to the termination of his employment. The seriousness of the allegation and its potential and known consequences for the applicant's continuing employment were such that it is unlikely that a person in the position of the applicant, excepting that he was unwell, would not deny the allegation either himself or through his Union if it were untrue. It is not as if the applicant was confronted with a wide-ranging set of allegations, but rather, a single specific allegation of a direction to an employee to enter a restricted area; (iii) there is a serious conflict between the applicant's response to Mr Ngo's allegation, in which he states he advised Mr Ngo to turn the lights off at the main switchbox: his oral evidence was this would have occurred on Thursday 23 October 2008; in his affidavit he says he physically closed the Bankstown Club and turned the lights off from the main switch on the evening of 23 October 2008. The applicant's evidence in respect of this issue when cross-examined was unconvincing. When taken to his response to the letter dated 19 November 2008 from Mr Gardiner, his evidence was: Q. And you say that Mr Ngo was advised to turn the lights off at the main switch box ...? A. The advice was that whoever was to close the club, until the actual clearance was given, that that person would be required to close the club and switch the lights off from the main. I did it on the Thursday night. I was not there - I'd left the club about approximately 7pm on the Friday night. (iv) the applicant's oral evidence is significantly different to that found in his response to Mr Gardiner's letter. Mr Ngo's evidence, in cross-examination, was that he turned off the lights at the usual switchboard and closed the Club on Thursday 23 October 2008 as this was part of his normal duties. His evidence was that he was unaware that there was asbestos in the area containing the switchboard until he was informed about that on the Friday. The area had not been closed off on the Thursday. The applicant's explanation is also unlikely because it was the applicant's evidence that even he was unaware whether the lights had previously been switched off at the main switchbox. The applicant was also unaware as to whether Mr Ngo had previously switched the lights off at the main switchbox prior to the incident; (v) Mr Ngo's evidence is that on 14 November 2008, he received a voice message from the applicant whilst he was at work at his other job. He stated that he called the applicant during his lunch break and stated that the applicant asked him to say that if anyone contacted him from the State office of the PCYC Clubs, Mr Ngo should say that he entered the contaminated area of his own freewill. Mr Ngo's evidence is that he went on to inform the applicant that he had already advised Mr Kapustin. The applicant then advised Mr Ngo to call Mr Kapustin and inform him that he had misinformed him about the situation; (vi) telephone records of Mr Ngo indicate that he received a call from the applicant on 14 November 2008 and that he phoned the applicant. This is the only record of a call between the applicant and Mr Ngo in November. The applicant denies that he had a conversation in the terms alleged by Mr Ngo with him on 14 November 2008. The applicant's evidence was that he had a conversation with Mr Ngo, but he cannot remember what it was about. The two propositions, as contended by the applicant, are unsustainable. Either he remembers the conversation, or he does not. If he was unable to remember the conversation, he is also unable to say that it was not about him attempting to persuade Mr Ngo to change his statement of what had occurred on 24 October 2008. The evidence of Mr Ngo should be preferred in respect of the conversation that he had with the applicant, noting that it is corroborated by Senior Constable Hughes. 125 If, in particular, Mr Ngo, Mr Gardiner and Mr Kapustin's evidence is to be rejected, as pressed by counsel for the applicant, and that of the applicant's preferred, the only logical explanation for their conduct would be to conclude that they had engaged in an elaborate plan to trap the applicant. Such a proposition, in my view, is fanciful and should not be accepted in the absence of any motivation for Mr Gardiner, Mr Ngo or Mr Kapustin going to such extraordinary lengths. It must also follow that Mr Ngo was prepared to take enormous risks in respect to his own health and safety in entering the contaminated area. There was no motivation identified by the applicant that would rationally explain why Mr Ngo would take such a course of action. Once again, such a proposition is not credible. 126 It follows that the reason for the termination of the applicant's employment was, and I find, that the applicant engaged in serious misconduct by directing an employee of the Bankstown Club, Mr Ngo, to enter an area he knew contained dust samples of chrysotile asbestos and that had been designated unsafe. The evidence demonstrates that the applicant was not unlawfully dismissed within the meaning of s 23 of the Act, but was dismissed for the reasons stated by Mr Gardiner in his letter of termination dated 1 December 2008. 127 Accordingly, the application should be dismissed. I will hear the parties in respect of the question of costs should that be necessary. Either party has leave to approach my associate within 14 days in this respect. ORDERS 1. The application is dismissed. -------------------------------------- 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.