Industrial Relations Commission of New South Wales CITATION: Miller v NSW Attorney General's Department [2006] NSWIRComm 322 PARTIES: Bradley Robert Miller NSW Attorney General's Department FILE NUMBER(S): IRC 85 of 2006 CORAM: Grayson DP Unfair dismissal - senior public servant - 23 years service with respondent department - applicant dismissed for alleged misconduct involving fellow employees - alleged sexual misconduct outside of work hours - pub culture - allegations of binge drinking - whether applicant was afforded procedural fairness - witness and informant relied upon by investigator not called to give sworn evidence - credibility of witnesses - conflicting evidence - reinstatement order sought - practicability of reinstatement CATCHWORDS: Held - applicant's dismissal harsh and unreasonable - reinstatement ordered Anti Discrimination Act 1977 LEGISLATION CITED: Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 CCH Australia Ltd v Bowen (1998) 79 IR 206 Hardie Ferodo Pty Ltd v NSW Nurses Association, McClelland, J No. 562 of 1978, 28 November 1978 CASES CITED: Hollingsworth v Commissioner of Police (1999) 88 IR 282 Hornsby Shire Council v Hunt (2002) 115 IR 461 Hussein v Westpac Banking Corporation (1995) 59 IR 103 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 HEARING DATES: 17/05/06, 22/05/06, 23/05/06, 24/05/06, 07/08/06, 07/09/06 DATE OF JUDGMENT: 10/13/2006 Applicant Mr S Coleman of counsel Luke Adamson and Co Solicitors (Mr L Adamson) LEGAL REPRESENTATIVES: Respondent Mr G de Courcey Ms K Kerr Crown Solicitor's Office JUDGMENT: - 32 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Grayson, DP 13 October 2006 Matter No IRC 85 of 2006 Bradley Robert Miller and NSW Attorney General's Department Application by Bradley Robert Miller re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 322 1 Bradley Robert Miller (the applicant) commenced employment with the respondent department on 21 February 1983 as a Clerk1/2 in the Magistrates Courts Administration. 2 On 19 January 2006, his employment was terminated on the basis of alleged misconduct said to be in breach of the respondent's Code of Conduct and Ethics and the Harassment Prevention Policy. The allegations of misconduct are as follows: (i) During June 2004 Mr Miller privately interviewed Ms Watterson in a manner which intimidated her and reduced her to tears, and which left her unable to engage in a normal working relationship with him thereafter; (ii) On 25 February 2005, whilst attending a farewell function for Ms Sahara Hayes, Mr Miller sexually harassed Ms Watterson when, in the Steyne Hotel, he placed his hand on her hip and then ran it down over her backside in a manner unacceptable to Ms Watterson; (iii) On or about May 2004 Mr Miller, when discussing a resubmitted leave application with Ms Bewley, spoke to her in an offensive and inappropriate manner; (iv) Mr Miller sexually harassed Ms Bewley when he repeatedly asked her if she was pregnant after she and her partner had commenced cohabiting; (v) Mr Miller harassed Ms Rowan when he would attend Manly Court House outside normal working hours and whilst on extended leave and leave messages for Ms Rowan relating to her duties as Acting Assistant Registrar; (vi) When Ms Rowan raised the issue regarding the leaving of the messages with Mr Miller at lunchtime in the Ivanhoe Hotel, Mr Miller sexually harassed Ms Rowan by attempting to hug her and by telling her "I just want to have sex with you"; (vii) On 22 April 2005, when a number of officers from Manly Court were participating in a lawn bowls games at the "Diggers", Mr Miller sexually harassed Ms Rowan when he touched her on the backside and commented " ... he'd been wanting to do that all night"; (viii) On 26 April 2005 Mr Miller harassed Ms Rowan when they separately attended the Manly Wharf Bar and he directed inappropriate noises, to wit "woo-hooing", towards her when she and her then companion were leaving the premises; (ix) On 3 June 2005 Mr Miller sexually harassed Ms Rowan at the Steyne Hotel when he told her "she looked rootable". Ms Rowan found this comment particularly offensive because Ms Clifton, in her statement, claimed Mr Miller had made a similar comment to her regarding Ms Rowan at the bowls night of 22 April 2005. Ms Clifton stated Ms Rowan was very annoyed when she told Ms Rowan of Mr Miller's making the comment; (x) Later on 3 June 2005 Mr Miller again sexually harassed Ms Rowan when, after he had asked her out and she refused, he then tried to discuss the size of his penis with her. 3 At the time of his dismissal, the applicant held the position of Deputy Registrar at Manly Local Court although he had not carried out the duties of that position since being suspended from duty on 3 June 2005. 4 Leaving aside a number of interlocutory matters which were dealt with by Staff J on 11 January 2006 and by the Commission as presently constituted on 17 May 2006, the substantive application proceeded to hearing on 22 May 2006, 23 May 2006, 24 May 2006 and 2 August 2006. The matter thereafter progressed by way of written submissions which were filed on 22 August 2006, on 24 August 2006 and on 7 September 2006. 5 In the course of the hearing, the following witnesses gave evidence either by attendance at court or by teleconference: · Bradley Robert MILLER, the applicant · Kirsi EDWARDS, clerk, Local Court Registry, Coffs Harbour · David LANE, ex-registry officer Manly Local Court · Colin John PARR, clerk, Local Court Registry, Manly · Kent FEREBEE, a social acquaintance of the applicant · Dara TROY, a social acquaintance of the applicant · Wayne FLEMING, Registrar, Inverell Courthouse · Dana FLEMING, ex registry officer, Manly Local Court · Leanne ROWAN, senior clerk, Manly Local Court Registry · Emily WATTERSON, clerk, Manly Local Court Registry · Joanne BEWLEY, clerk, Manly Local Court Registry · Gregory Norman ASHTON, Acting Manager Employee Relations Unit, Human Resources Branch, Attorney General's Department 6 Of the ten allegations of misconduct set out above, three are said to have occurred in the workplace namely, Manly Local Court and none of those involve allegations of sexual harassment. 7 The remaining seven allegations relate to misconduct said to have occurred in various licensed establishments outside working hours and do involve allegations of sexual harassment. Procedural Fairness 8 It may be observed at the outset and on a proper review of the evidence, that I can find no basis upon which to conclude as Mr Coleman for the applicant submitted, that the applicant was denied procedural fairness in the investigative and disciplinary process which was followed by the respondent. To the contrary, the respondent appears to me to have meticulously followed the requirements of Part 2.7 Management of Conduct and Performance of the Public Sector Employment and Management Act 2002 and the procedural guidelines published by the Director of Public Employment under s 44 of that Act. In that regard, I note the submission of Mr de Courcey for the respondent that the procedures thereby required to be followed which have been developed in consultation and by agreement with the Premier's Department, other departments and agencies and the public sector unions, are inherently fair. I note further that I have not been taken to any provision of the statute or requirement of the guidelines which in breach, may constitute a basis for a procedural unfairness argument. The decision to dismiss 9 Turning then to the allegations of misconduct, it is plain enough that the decision to bring the employment relationship to an end was made by the respondent's Director General having regard in part to admissions said to have been made by the applicant and having regard otherwise to a preference for the versions of events put forward by the complainants Ms Bewley, Ms Rowan and Ms Watterson. The applicant's version of events, to the extent that it was at odds with the complainants, was not considered by the Director General to be reliable. 10 In his Notice of Decision which was published and placed on the applicant's personnel file on 4 January 2006, the Director General said this: Mr Miller's response to the allegations shows he lacks understanding of the boundaries between personal and professional conduct, particularly outside of working hours. Many of the incidents occurred on occasions when Mr Miller admitted to consuming alcohol and it may be that his judgment was affected as a result. He failed to see that whilst he is prepared to condemn the drinking habits of the women making the allegations, he denies his own drinking pattern is equally irresponsible. His evidence clearly indicates that he and other staff members are part of a "pub" culture in Manly and at times had acted unprofessionally when on licensed premises. I am satisfied that, on occasions, his unprofessional behaviour would have extended to the inappropriate behaviour, which is the subject of the investigation. The evidence of Ms Watterson, Ms Bewley and Ms Rowan, which is supported by a witness, Ms Rebecca Clifton, is considered reliable and without contradiction. Mr Miller, as a senior officer of the Local Court, should have been particularly conscious of his responsibilities to other staff on the occasions when the allegations were made and should have done nothing that might have been construed as taking advantage of the situation. Therefore I am of the view that Mr Miller did behave in a manner that does constitute both harassment and sexual harassment under the Harassment Prevention Policy and as such he brought upon himself the consequences of disciplinary action. His behaviour is also in breach of the Department's Code of Conduct and Ethics. The Department's Code of Conduct and Ethics outlines the minimum standards of professional and ethical behaviour expected of all staff. Each officer has a responsibility to uphold the values of the Department, and it is the responsibility of all staff to be aware of, and comply with Department policies. In this regard I would have thought Mr Miller would have been particularly cognisant of his responsibilities, given my previous advice to him in September 2000 of the consequences of another breach of the Code of Conduct and Ethics. I believe Mr Miller's behaviour and response to the allegations has undermined his credibility as an officer, led to a challenge to his integrity and severely affected the trust management can have in him. He has also irreparably damaged his reputation and lost the respect of his peers. The conduct of the type engaged by Mr Miller is unacceptable for an officer of the Local Court and it is not appropriate for him to remain in the Public Service. Under the circumstances the disciplinary action I would normally consider taking would be dismissal from the Public Service, as I advised him by letter to him on 21 November 2005. However I do accept Mr Miller was influenced by the drinking culture and environment pervading Manly Local Court, which led to a significant blurring of professional and personal behaviour amongst those officers involved in the events leading to the allegations being made. Without condoning his behaviour in any way I acknowledge Mr Miller's judgment was affected when he was under the influence of alcohol. Therefore I have reconsidered my decision of dismissal and instead I now direct him to resign from the Public Service. Failure to resign within the time specified will result in his dismissal. The disciplinary action imposed is in accordance with s 46 of the Public Sector Employment and Management Act 2002. 11 The applicant complains that, as may be seen from the extract above, the Director General relied upon the supporting evidence of Ms Rebecca Clifton who for reasons which were not explained was not called by the respondent in these proceedings and his description in the complainants evidence as being without contradiction appears to overlook the fact that it is directly and squarely contradicted (at least in certain respects) by the applicant. 12 A further criticism of the Director General's decision arises from the passage in the Notice of Decision where these words appear: At the lawn bowls night he (the applicant) said at interview that "Again a lot of alcohol was involved" and "She (Ms Rowan) was really drunk. She was yelling out and carrying on a bit, but again I touched her on the backside ". It might be noted that Mr Miller has since certified that the transcript is a true record of the interview. 13 What is there set out and relied upon by the Director General as an admission by the applicant during the course of a formal interview conducted on 14 December 2005, is in fact and on a proper reading of the transcript of that interview extracted below, merely a recitation by the applicant of one of the complaints against him: The next one, 22 April, again I'm on holidays, "A number of officers from Manly Courtroom were having a lawn bowls game at the Diggers and I touched her on the backside and commented I've been waiting to do that all night". Again a lot of alcohol was involved, she was really drunk. I was actually worried about how drunk she was, swaying off the bowling green, off the mat and couldn't leave bowls on the green. She was really drunk. She was yelling and carrying on a bit, but again I touched her on the backside . Again she's not saying I pinched her, slapped her, sexually molested her in any fashion. I don't remember touching her on - I remember we were hi-fiving a lot because we were in the team together. She was pretty under the influence of alcohol and enjoying herself and we were hi-fiving and we did dance a couple of times because it's really loud music, you have to stand beside someone to hear what they're saying on the bowling green. Very loud atmosphere, a lot of people yelling out. But for me to have touched her on the backside in front of 30 people, no one saw anything and she didn't say anything at the time, it's just - it's not what I recall happening. I just - and I've been wanting to do that all night, I never said that. I don't recall that. I'd been drinking I must admit. We were dancing. We were hi-fiving. I was more concerned about how drunk she was than the amount of alcohol I'd had to drink. (emphasis added) The allegations 14 As to the first allegation namely, that Ms Watterson was intimidated and reduced to tears by the applicant's manner of speaking to her in June 2004, the evidence indicates that a complaint of this nature was made by Ms Watterson to Mr Condie, the then Registrar at Manly Local Court in June 2005 a year or so after the alleged incident. 15 Whilst the applicant denies that his manner of speaking to Ms Watterson in June 2004 or anything in his demeanour could be characterised as angry or intimidatory and whilst he has no recollection of seeing her crying, it is common ground that Ms Watterson was called into his office and asked by the applicant, as her supervisor, to cease playing music CDs on her computer and doing other things in the open registry office which disturbed and distracted her fellow employees. The applicant had received complaints in this regard from other staff. 16 I am prepared to accept for the purpose of resolving the evidentiary impasse that Ms Watterson may have been upset by the experience of being admonished for her behaviour at the time and she did not recall, as the applicant did, any balancing words of praise from the applicant during that conversation. The applicant said that at no time during the conversation did he raise his voice, point his finger or adopt any other form of intimidatory behaviour towards Ms Watterson. He said he noticed she went a bit quiet but not to the point of becoming tearful and further, that he did not notice any change in her behaviour toward him after that incident. 17 A fellow employee, Mr Lane, gave evidence that he had seen Ms Watterson become quite emotional in the workplace on other occasions but not in June 2004 and not as a result of anything the applicant did and Ms Watterson's description of the applicant's demeanour as angry is inconsistent with Mr Lane's observations of him generally. 18 Although one cannot be certain, it is more probable, as I am disposed, that Ms Watterson was upset by the criticism of her conduct rather than by any overtly aggressive or intimidatory behaviour on the applicant's part for which there seems no logical basis in the context of the applicant as a supervisor raising a matter with her as a normal incident of supervision. Whether Ms Watterson was reduced to tears in the applicant's presence or after leaving the applicant's office or at all is not a matter upon which a conclusion could safely be reached on the evidence as it stands but either way, it would not be determinative of the question whether the applicant misconducted himself as alleged. I do not consider, on balance, that this allegation has been made out. 19 As to the second allegation namely, that on 25 February 2005 the applicant sexually harassed Ms Watterson at a farewell function at the Steyne Hotel, again there is an evidentiary impasse. Ms Watterson said that the applicant behaved inappropriately at the function by placing his hand on her buttocks and moving his hand in a downward motion. She said he appeared to be intoxicated. She said she felt repulsed and moved away as quickly as she could. She said the applicant approached her and a group of other females and grabbed her hair and draped it across his bald head. Although Mr Lane was at the same function and saw or heard nothing untoward, he also conceded in cross-examination that he was not in Ms Watterson's company the whole time. For his part, the applicant remembers the events of 25 February 2005 in this way: The occasion was after dinner where I, Sarayah Hayes, Jacqui Bruen, Emily Watterson, Michael Barber, David Lane, my ex girlfriend Susan Ryan, Leanne Rowan, Rebecca Clifton and others had a few drinks at the Steyne. Some one made a joke about my baldness, and Emily said "You used to have hair like me?" I said, "Yes, come on and show them what it looked like". She lent over and placed her hair on my head, leaning into me with our heads touching. She was laughing loudly at the time, and I manipulated her hair over my face" and I recall touching her on the shoulder. I deny absolutely touching her backside. I then stepped away from her. Emily said nothing to me at the time, and there were people standing around at the time. I recall turning to her and saying "Thanks Emily" for making me the butt of a joke, and she laughed. There was no other reaction. 20 When cross-examined about the incident, the applicant conceded that he was moderately affected by alcohol at the time. This may explain the equivocal nature of his evidence when the abovementioned denial is compared with his concession in cross-examination that he may have inadvertently or accidentally touched Ms Watterson on the backside. Ms Watterson's version of events, I am bound to say, was equally equivocal when taken firstly, to the original written complaint she made to Registrar Condie on 2 June 2005 (a year or so after the alleged incident) which indicated an intentional placement of the applicant's hand on her buttocks; secondly, to the interview with the investigator which indicated placement of the applicant's hand on her hip and subsequent movement down and over her buttocks (again intentional) and thirdly, to her concession in cross-examination that the contact may have been accidental. 21 The following extract of Ms Watterson's evidence puts the matter in context: Q. And do you remember that somebody made a joke about Mr Miller being bald? A. At the nightclub, yes. Q. This was after the dinner was it? A. This was after the dinner. Q. So nobody had actually organised them going to the pub, it just happened that way? A. It was something we decided afterwards. Q. And do you remember - I will go back to it. Do you remember who made the joke about Mr Miller being a baldy, bald, I should say? A. No. We were in a group and someone said it. Q. And you said to him "you used to have hair like me"? A. Yes. I had seen a photo, I don't know when, how long ago, where he had curly hair Q. Long, curly hair? A. I don't know if it was long, but it was curly hair. Q. And do you remember you leaned over and put your hair on his head? A. He put my hair on his head Q. You would have leaned close to him to do that? A. Yes. Q. He put your hair over his head, and you had a laugh about that? A. We did. Q. You were laughing and giggling? A. Yes. Q. And he was laughing. And when he put his - when you had put your hair on his head, you were leaning over, and did he put his hand on your shoulder at that stage? A. I don't remember if he had his hand on my shoulder. He may have Q. And it was during this that you say Mr Miller touched your backside? A. I think he put his hand on my hip, and either when he was taking it off or my hip, his hand brushed against my backside. Q. Would you accept that may have been accidental touching? A. It may have. I don't know if it was on purpose or not. 22 I think on balance, that it is more likely than not that the applicant's hand may have brushed across Ms Watterson's buttocks as she said but given the circumstances in which that occurred which involved jocularity and skylarking on the part of both the applicant and Ms Watterson, I have little difficulty in accepting that it was most probably accidental. Whether it was appropriate for a person such as the applicant who occupied a senior supervisory position in relation to Ms Watterson, to allow himself to be placed in such a compromised position is problematic and it is a matter to which I will return later in these reasons. 23 Either way, I do not think it can fairly be said that inadvertent physical contact with Ms Watterson's backside in the environment of mutual frivolity which then existed, would be such as to constitute sexual harassment either within the ordinary meaning of the term or more importantly, within the legal meaning of the term as defined by the Anti Discrimination Act 1977. Further and without dwelling on the point, it strikes me as somewhat at odds with the notion that the earlier incident with the applicant left Ms Watterson unable to engage in a normal working relationship with him, that she would feel able to engage in social activity with him involving the jocularity and skylarking described above. 24 As to the third allegation, namely that the applicant spoke to Ms Bewley in an offensive and inappropriate manner yet again there is an evidentiary impasse. The incident is said by Ms Bewley to have occurred in May 2004 and involved an approach by Ms Bewley to the applicant seeking to revise leave arrangements which had been settled sometime beforehand. Ms Bewley said she was rebuffed by the applicant who spoke rudely to her, who refused to consider her revised leave application and who screwed up the leave application and threw it in the bin. Ms Bewley said this occurred in front of other staff and that it not only annoyed her but it demonstrated poor management skills on the applicant's part. The applicant recalled Ms Bewley approaching him sometime after the 2004/2005 leave roster had been settled and asking for leave dates around Christmas 2004. He recalled all of the Christmas dates being filled by others who unlike Ms Bewley, had put in bids for Christmas dates. He recalled telling Ms Bewley there was nothing he could do and that she should speak to Registrar Condie about it. He denied speaking to or dealing with Ms Bewley in an offensive or inappropriate manner and said he later spoke to the Registrar on her behalf in any event as well as to other staff seeking to accommodate Ms Bewley's needs. 25 In the absence of corroborative evidence and I again note that other staff are said to have witnessed the conduct attributed to the applicant by Ms Bewley, it would be mere conjecture on my part given the applicant's denial to find that he misconducted himself in his manner of dealing with Ms Bewley's leave application and I can find no evidence of any attempt by the investigator to ascertain the identity of witnesses to the incident in order that this difficulty may be overcome. 26 As to the fourth allegation namely, that the applicant sexually harassed Ms Bewley by repeatedly asking if she was pregnant, it is conceded by the applicant that subject matter of that nature was broached with Ms Bewley and although the applicant denies that he was ever told by Ms Bewley to cease such discussions with her, I am inclined, on balance, as the following transcript of her cross-examination indicates, to accept that she did: Q. I think you said in your statement you thought what he had to say was inappropriate in terms of your pregnancy? A. I was not pregnant at the time, it was a comment that continued for quite a while that I ended up finding quite offensive, annoying and just put a stop to it, but it was an example of the type of behaviour that I found annoying at work rather then just the regular staff. I say that because as Ms Bewley's evidence indicates, it was not unusual for her and the applicant to make highly personal observations to each other and about each other and such banter was not regarded as offensive. Conversely, such banter was a feature of the friendly relationship that existed between them and forms no part of her complaint against him. 27 In the case of the applicant's comments about Ms Bewley's pregnancy, however, it is plainly the case that the applicant went too far and was rebuked. Ms Bewley described the matter in cross-examination this way: Q. At page 2 of the transcript the very bottom I think you say the business about the pregnancy was over a period of a couple of weeks and it seemed to be a running joke because Brad knows my partner and we just moved in together and you said it was inappropriate? A. What was being said was and I don't know what instigated it, it was a constant commenting on "Have you been doing it all weekend" and excuse the language "I know you have been fucking all weekend", things like that and I remember making a comment to someone on the staff and saying just because Brad knows Duncan and I it really does not give an excuse to make comments like that and I had enough and I ended up saying "Brad, can you just stop it, it is offending me". Q. When you said that to him he stopped it? A. He did stop it immediately. 28 For all of that, one gets the clear impression that Ms Bewley was not incapable of setting appropriate boundaries in her interpersonal dealings with the applicant and further, that whilst she regarded his behaviour at times in the workplace as less than appropriate, she also thought of him positively as someone who cared about and made an effort by and large, to ensure harmony in the workplace. I am not persuaded that this allegation has been made out. 29 The remaining six allegations against the applicant arise from complaints made by Ms Rowan. The first of Ms Rowan's complaints relates to a four month period beginning on 7 March 2005 during which the applicant was on long service leave and during the first half of which Ms Rowan was acting in his position of deputy registrar. Ms Rowan took umbrage at finding notes from the applicant who it seems visited the workplace out of hours whilst he was on leave and scrutinised her work. Ms Rowan said the notes were there when she arrived at work "pretty much every day" for the first three of four weeks after the applicant departed on leave. The applicant conceded he visited the workplace out of hours stating that he had done so for many years in order to keep abreast of his work and further, that whilst he may have left notes it was in an attempt to be helpful rather than to harass. His evidence as to the frequency of his out of hours attendance in the workplace and as to whether he knew and intended that Ms Rowan would be the recipient of the notes was, I am bound to say, lacking in clarity and candour. I am of the view on balance, that for reasons best known to himself he did adopt an approach of monitoring and critiquing of Ms Rowan's work. Such an approach as I am disposed is beyond what one would reasonably find acceptable particularly given that it occurred after hours and whilst the applicant was on extended leave. Ms Rowan felt and in my opinion, had every right to feel patronised by this conduct which she reported to Registrar Condie and other registry staff. 30 She also broached the matter directly with the applicant when she encountered him by chance one lunch time in a local hotel (the Ivanhoe Hotel) and it is this encounter which gives rise to the second of six allegations involving Ms Rowan. 31 Ms Rowan said she spoke to the applicant in the hotel and said words to the effect "why are you leaving notes for me - don't you think I can do the job?" She conceded in cross-examination that the applicant said he was just trying to be helpful and may have said that he did not know she would be the recipient. She did not accept that and as earlier observed, nor do I. Ms Rowan said the applicant attempted to hug her as she was leaving and that he said to her "you know I just want to have sex with you." 32 For his part, the applicant emphatically denied saying those words and said that rather than trying to hug her, he merely reached up and patted Ms Rowan on the waist. He said he was sitting down having lunch at the time and she was standing beside him and his gesture was in response to Ms Rowan patting him on the shoulder as she was leaving and saying to him words to the effect "no worries mate". 33 Now whilst Ms Rowan made no reference in her written complaint (or subsequent interview with the investigator) to an exchange of this nature with the applicant, she did concede when taken to it in cross-examination that she patted the applicant on the shoulder as she was leaving and said words to the effect "yeah okay then" which in context are not dissimilar to the words attributed to her by the applicant. Ms Rowan said she behaved this way towards the applicant because she had to work with him and wanted to avoid any backlash. It is to be remembered here that the applicant was at the time of the encounter in the Ivanhoe Hotel, approximately one month into a four month period of leave and the notion that there might be a backlash seems to me, to have been somewhat misplaced given the extended period time before Ms Rowan would have been working with him again. 34 Be that as it may, Ms Rowan was adamant that the applicant did, in the course of the conversation about him leaving notes, state that he wanted to have sex with her. She said she took him to mean that he was leaving her notes as a way of getting her attention because he was attracted to her. She did not regard this as propositioning her for sex. She conceded that the applicant's practices of leaving notes ceased at the time of or shortly after the conversation in the Ivanhoe Hotel. I must say if the applicant's motivation for leaving notes had been because he was attracted to Ms Rowan and if it had been his intention to explain his motive for so doing by bluntly stating that he wanted to have sex with her, then it would have been a most curious way to go about it. 35 Moreover and again there is no contemporaneous record of the incident and no corroborative evidence called by the respondent in support of the allegation of sexual harassment notwithstanding that Ms Rowan left the hotel and went back to work in the company of a workmate, Janet Wagstaff. It can be assumed if Ms Rowan had felt harassed or offended by the applicant's conduct she would have at least mentioned it informally to Ms Wagstaff and I note in that regard that neither Ms Wagstaff nor Registrar Condie to whom Ms Rowan allegedly complained about the incident were called in the proceedings. Finally and even if the applicant did say the words attributed to him, it was conceded by Ms Rowan that she did not consider them as an invitation, unwelcome or otherwise, but rather a childish throw away comment. For his part the applicant maintained that nothing he said could have been construed as a request for sexual favours and in any event, he simply did not feel that way towards Ms Rowan. 36 At all events and as Mr Coleman submitted, it is difficult to see in the circumstances of this allegation, how the test for sexual harassment can be satisfied where neither of the participants in the conversation namely, Ms Rowan and the applicant, feel they have been harassed or have harassed. I am of the view and find accordingly that this allegation has not been made out. 37 The next allegation namely, that the applicant sexually harassed Ms Rowan on 25 April 2005 by touching her on the backside and saying to her that he had "been wanting to do that all night", is strenuously denied and needs to be examined in the context in which it is said (by Mr Rowan) to have occurred. 38 The incident is said to have occurred at a social lawn bowls night which had been organised by Brendan Sullivan, the sheriff's officer at Manly Local Court. Ms Rowan said she and the applicant were drawn to play on the same team. She conceded as did the applicant that they both had quite a lot to drink and that at one stage, she stumbled or tripped on a mat. She remembered "high-fiving" with the applicant but denied dancing "the bumps" with him at various times throughout the night. She said the applicant put his hand on her right buttock and said he had "been wanting to do that all night". She said Registrar Condie and Chamber Magistrate Barber were standing behind them when it happened and that she spoke to Registrar Condie that night about what happened. There is no indication of any reference to this particular allegation in the investigator's record of interview with Ms Rowan and Ms Rowan conceded that she was not taken to it in the interview. The allegation appears to have derived from the written statement of complaint provided by Ms Rowan to Registrar Condie and in that statement as in her evidence in these proceedings, Ms Rowan refers to the touching incident at the lawn bowls night as having occurred in full view of other Manly Local Court staff. She did not name those other staff members. 39 For his part, the applicant denies touching Ms Rowan inappropriately that night and he denies saying the words attributed to him and the difficulty again emerges in that no attempt appears to have been made by the investigator to identify those persons who are said to have witnessed the incident and having done so, to elicit corroborative evidence from such persons in order to test or overcome the applicant's denial. In fact, the names of two such persons (Registrar Condie and Chamber Magistrate Barber) only emerged in the course of Ms Rowan's cross examination in these proceedings and I am bound to say as the transcript of her cross examination reveals, that Ms Rowan was somewhat unclear as the events of that night. 40 Put simply, if there was contact made with Ms Rowan's backside that night it seems to me more likely to have been a careless and inadvertent act on the applicant's part and something which must be viewed in the context of both the applicant and Ms Rowan having been affected by alcohol at the time and both of them engaging in the frivolity of the occasion. I do not consider this allegation to have been made out. 41 Ms Rowan next alleges that on 26 April 2005 a few months after separating from her long term de facto partner, she met a male companion for drinks at the Manly Wharf bar. She had been there about one hour and was about to leave when she noticed the applicant seated at a table in the indoor section of the bar with approximately five other persons one of whom she recognised as a local solicitor. She said she felt this was voyeurism and that the applicant "had parked himself at a table with a clear direct view of my brief date". She said as she and her companion got up to leave more than one person at the table yelled out "woo hoo" loudly and that the applicant's voice was the loudest. 42 For his part, the applicant recalled the incident this way: On 26 April 2005 I attended the Steyne Hotel after work at about 4:30pm. I was present with Magistrate Longley, Luke Adamson solicitor, Kent Ferebee chef, Dara Troy chef and Simon Phillips, a businessman having one or two drinks. We were sitting at a bar table, and Dara noticed Leanne Rowan was present. I looked over my shoulder and noticed Ms Rowan was with a person on the veranda, kissing him, and said to Dara "Yes that's Leanne". Someone saw her leave, and waved across the length of the hotel. Whether or not there was anyone who "woo-hoo'd" I do not recall, but I do know that I did not. Given Ms Rowan's prickly personality I would not do such a thing. I do not know who her companion was. A day or two later, Ms Rowan asked who was with me at the hotel. I said "Me, Luke and Chris". She said "Oh no, not Chris Longley, how embarrassing!". She did not say that I had acted inappropriately or that I had "woo hoo'd" her, nor did she make any other complaint about my behaviour. 43 Two of the persons identified as being in the applicant's company that day namely, Kent Ferebee and Dara Troy were called in the applicant's case and whilst both recalled seeing Ms Rowan and a male companion, they were adamant that there was no attempt on the applicant's part to place himself in a position where he could "spy on her" as Mr Troy put it and they were equally adamant that there was no yelling out or "woo hooing" (as Ms Rowan alleged) by the applicant or anyone else in their group. When Ms Rowan was taken in cross examination to her statement to the investigator to the effect that the applicant had positioned his group within the hotel for the express purpose of watching her, she conceded that "it's probably a bit paranoid on my behalf" and that the assertion was something of an exaggeration. She also conceded that her embarrassment stemmed from the fact that she was kissing her male companion and had been seen by colleagues and Magistrate Longley who had presided in proceedings she had brought against her previous partner. She further conceded that she was unaware that rather than having arranged the seating himself, the applicant had in fact joined Mr Ferebee and Mr Troy at the table where they were seated that day; that she did not actually see the applicant yelling in her direction and that she made no complaint about the applicant's conduct towards her when she spoke to him the next day. On the evidence as it stands, I am far from satisfied that this allegation has been made out. 44 The remaining two allegations relate in part, to events said to have occurred in the Steyne Hotel on 3 June 2005 and otherwise at the bowls night on 22 April 2005 to which earlier reference has been made. 45 As to the latter aspect and doing the best I can to simply describe the allegation, it seems that Ms Rebecca Clifton, another registry officer at Manly, was interviewed in the course of the disciplinary investigation. I assume she was not one of the persons who came forward as a complainant and I again note that whilst she is referred in the investigator's report, and elsewhere in the evidence, she was not called in the proceedings although the transcript of her interview was included in the material admitted into evidence and relied upon by the respondent. Ms Clifton is reported by the investigator as having been in the applicant's company at the bowls night and as having rebuked him for making an observation about Ms Rowan who was some distance away. 46 The following extract of the investigator's report summarises Ms Clifton's description of what occurred in this way: I asked Ms Clifton if she recalled the lawn bowls day, she advised, "There was a bowls evening, it was a Friday evening after work. We'd organised a function where I think about 15 of us went and had a game of bowls just at the Manly bowls just here nearby. I actually went over to the Pacific Club first, I believe, and had a glass of red wine there with Brad first, one of the prosecutors was there, and then we went on to bowls. As we were approaching the bowls I think Brad saw Leanne sitting up on a chair and saw that she looked very nice and said "yes, she looks lovely", said "yes, she looks rootable", and I did pull him up on it and he then rephrased to say "she looks really pretty" or something, so yes." 47 In her record of interview with the investigator Ms Rowan said this about the same incident: Q. 22 April 2005 you talk about a lawn bowls game at the Diggers in the presence of a number of people, it says that Rebecca told you that Brad had said something to her? A. Yes, I had - I think lawn bowls was actually like scheduled for about 6.30 that night, we'd booked in for that time. It had been organised by Brendan O'Sullivan, the sheriff, and I'd arrived at probably a quarter past/twenty past, you know, and there was other people sitting there having a drink. Brendan O'Sullivan and I think Brendan Condie and Michael Barber and I think Naomi White were all having a drink and Brad walked up the pathway with Rebecca Clifton and Jenny Saiz closer to the 6.30 mark, because I think they had been at the Civic Club, someone else at the table when we were drinking knew where they were and they were, you know, running just on time or a little bit late. And Rebecca told me, a short time after they actually walked into the club, that Brad had made a comment about my appearance. He's said that I looked rootable, which is pretty offensive, and Rebecca had said that she'd chastised him about it straightaway and said "Couldn't you find some other words to use", basically, it wasn't the right way to describe someone if you found them attractive. Ms Rowan then went on to say that the applicant made the same comment to her face at the Steyne Hotel on 3 June 2005. 48 For his part, the applicant responded to the allegations this way: On 3 June 2005, I was at the Steyne Hotel in order to meet my then girlfriend. I was walking through the upper area of the pub. I had only had one or two drinks that night, before I went home for dinner, and I was meeting my girlfriend. I was not aware of any complaint made about me until 6 June, and even then did not know what it was about or who made it. I was on leave until 6 June. It was about 2am in the morning, and I joined Ms Rowan and Rebecca Clifton. They started commenting on how many drinks they had. Rebecca was leaning on me while she was speaking. Rebecca commented that they had been drinking Black Ice coolers. Leanne started saying "All men are bastards". I said "Don't be like that, you'll be right" I said "Don't worry you'll find someone - I moved on from my breakup last year, you'll find someone, you have to get on with your life. You look good, you can get anyone you want". I also said "If you want to talk about it you can ring me". I do not recall using the word "rootable" and I do not believe I said it. I do recall on 22 April speaking to Ms Clifton and saying that Leanne could not go to the Steyne as she was so drunk. Again I do not recall using the word rootable or the alleged context of the remark. 49 As may be seen from the above versions of events the applicant is said by both Ms Clifton and Ms Rowan to have used the word "rootable" when referring to or speaking to Ms Rowan although the applicant does not recall using the word and does not believe he did. If Ms Clifton's unsworn and untested evidence in the form of an interview given to the investigator is taken at its highest, there is always the risk that the words attributed to the applicant may have been communicated to Ms Rowan inaccurately or out of context. I am simply not to know because Ms Clifton was not called. The applicant certainly recalls saying to Ms Clifton that Ms Rowan should not go out after the bowls night because she was intoxicated and Ms Rowan does not dispute that. The applicant said that Ms Rowan was in a similarly intoxicated state on 3 June 2005 at the Steyne Hotel (and again this is not disputed) inferring that she was not likely to have an accurate recollection of events on either occasion. Against that, there are two people who attribute the same comment to the applicant and whilst the applicant does not recall using the word, he does not strictly deny it. Frankly if he did use the term in talking about or directly to Ms Rowan as I am inclined on balance, to think he did then it was inappropriate conduct on his part. To her credit, Ms Rowan put him in his place. She acknowledged that she perceived the applicant to have meant it as a form of compliment and however backhanded or ill chosen it may have been, she did not take it as something other than that. In my view, the applicant's conduct although inappropriate and deserving of criticism, falls short of sexual harassment having regard to all the circumstances. Accordingly, this allegation is not made out. 50 As to the final allegation said to have occurred on 3 June 2005 at the Steyne Hotel, it was common ground that there was a group conversation which took place in the hotel at about 2am. Ms Rowan accepted that she and the applicant and Ms Clifton were joint participants in the conversation and that at some stage, there was discussion about male genitalia which had been a feature of the television program Big Brother. She recalled Ms Clifton having made a remark in that regard. She also recalled a mood of joviality that night and dialogue between herself and the applicant about her recent relationship breakdown and how she jokingly referred to her generally antipathetic feelings towards men. 51 The point of difference, however, between her and the applicant's memory of events that night is that which forms the basis of the allegation against the applicant namely, that he suggested she go out with him and also that he discussed the size of his penis with her. 52 The applicant said he was commiserating with Ms Rowan that night and that he told her he had moved on after a failed relationship and she should do the same. He told her that she should go out not with him but generally and he said the only discussion about male genitalia that night took place in the context of the television programme Big Brother and not in relation to himself. 53 Bearing in mind the fact that the conversation took place at about 2am in the Steyne Hotel and further bearing in mind that alcohol had been consumed throughout the night, it would be unsafe to conclude in the face of the applicant's denial that he conducted himself in the manner alleged. This is particularly so given the absence of supporting or corroborative evidence and given that Ms Rowan otherwise accepted that the conversation between them that night was generally as the applicant described it. 54 A passage from Ms Rowan's cross-examination where she was taken to the applicant's version of their interaction that night serves to illustrate the point: Q. At one of the conversations during this time you said to him you'd been drinking black ice coolers? A. Not sure if I said it or Rebecca but yes, that was said. Q. And you said to him, "All men are bastards", do you remember saying that? A. Yes, I was talking about dating. Q. And Mr Miller said to you, "Don't be like that, you'll be all right"? A. Yes. Q. And, "Don't worry, you'll find someone"? A. Yes. Q. And, "I moved on from my break up last year, you have to get on with your life"? A. Yes. Q. And so he was offering you some sort of friendly advice at that stage? A. Just general comments. Q. And he said, "You look good. You can get anyone you like"? A. Yes. 55 As with other allegations, I do not consider the evidence in relation to this particular matter to be sufficient to permit a positive finding that the allegation has been made out. 56 Having dealt with each of the allegations in order to examine whether on the evidence, they have been established, it should not be thought that the necessity of examining the question of fairness or otherwise of the dismissal against the cumulative effect of the allegations has been overlooked (see for example, Hornsby Shire Council v Hunt (2002) 115 IR 461). 57 The reality is, however, and leaving aside for a moment the conclusions reached in relation to the individual allegations, that much of the alleged misconduct - indeed the overwhelming majority of it when viewed by degree of potential seriousness - involved social activity at various licensed establishments outside working hours and away from the workplace and it seems to me, as Mr Coleman submitted, that there are significant limitations on an employer's legitimate interest in an employee's conduct outside the workplace. These limitations apply for a number of fairly obvious public policy reasons including but not limited to privacy considerations. 58 In Rose v Telstra Corporation Limited IRComm 1592 to which I was taken, Ross VP discussed the issue out of hours conduct and held (after considering the authorities) that such conduct might justify a termination where the conduct breaches an implied or express term of the employment contract; where the conduct is of such gravity or importance as to indicate a rejection or repudiation of the employment contract and is likely to seriously damage the employer/employee relationship or damages the employer's interests or is incompatible with the employee's duty as an employee. Absent those elements, the conduct will lack the connection with work necessary to provide a valid reason for dismissal (see also Hussein v Westpac Banking Corporation (1995) 59 IR 103). 59 In saying those things about out of hours conduct, I should not be taken to mean that none of the out of hours allegations in this case could, if proven, have been validly taken into account. It is merely to observe that caution needs to be exercised in the extent to which an employee may be held accountable by an employer for out of hours activities. 60 To the extent that the respondent bears the onus of establishing the alleged misconduct upon which the dismissal is based, I am of the view for the reasons set out above that by and large, it has failed to do so. That is not to say that the applicant's conduct should be thought of as generally appropriate. The evidence in my opinion makes it clear that it was not and I refer here to the blurring of proper boundaries between someone in the applicant's supervisory position and those over whom he may be called upon to exercise supervisory control. To be fair to the applicant the evidence (particularly the photographic evidence) also makes it clear that the blurring of those boundaries and occurrence both in and outside the workplace of social interaction of a highly personalised nature, is not just a feature of the applicant's conduct but also of those with whom he worked at Manly Courthouse and in that respect the blame for any souring of personal relationships and/or disharmony in the workplace should not be laid solely at the applicant's door. I am of the view and find accordingly, that the dismissal was harsh and unreasonable. 61 For all of that and as already indicated although I do not consider the applicant's conduct amounts to conduct justifying dismissal it is conduct to which the applicant should give careful and measured attention going forward in the interests of ensuring that the sequence of events giving rise to these proceedings is not repeated. 62 Turning then to the question of remedy, it was submitted by Mr de Courcey for the respondent that the applicant's evidence in relation to the complainants (which among other things, involved allegations of binge drinking on their part) and their complaints against him would impact adversely upon the prospect of any return to the Manly Local Court workplace. The respondent also contended that the applicant's post-termination conduct namely, that he approached Ms Rowan's ex-partner and in seeking to have the ex-partner give evidence in his favour, the applicant is said to have improperly disclosed the contents of Ms Rowan's affidavit thus knowingly and intentionally heightening the risk of retribution against her by the ex-partner. 63 As to the last matter, the applicant was taken to it in cross-examination and said this: DE COURCEY: Q. You knew you were not allowed to approach the witnesses, the complainants? A. Yes. Q. And not discuss this with them? A. Not to talk about it not discuss it. Q. So, you in relation to Miss Rowan, you disclosed information about her to her ex-partner? A. Yes. Q. And you did that in the context, I put it to you knowing full well that would get back to her or further harass her? A. No. Q. But you were not a friend of Mr Lavis? A. No not a friend. Q. And actually you sought him out, didn't you? A. I sought him out? Q. Yes? A. No, no. Q. So you never approached him about this matter? A. We discussed the matter. Q. Did you approach him about it? COLEMAN: It doesn't really matter if he approached him or not. HIS HONOUR: It may mean something but the question is clear. How did you come to disclose the information to Mr Lavis? You tell me. A. We were at the Rugby Club and he was talking to me about his access order to his child and it came up, "I have not seen you at work, what is going on?" "I am sacked" and he said, "She has always been out to get you. She has always wanted your job", and I said, "Would you be prepared to give a statement?" He said, "What for?" "I am going to Court over it because I have got sacked" And we discussed the matter how he would give statement and see my solicitor and what he would say. Q. And that was in that conversation that you disclosed the substance of the allegations Miss Rowan had made against you? A. Yes. Q. And so if it was put as Mr De Courcey has put it, that you sought Mr Lavis out and volunteered that information to him, you would say that is not strictly correct? A. No that is not correct. Q. Do you say it was a chance meeting at the Manly Rugby Club, is that how those conversations occurred? A. I met him another time down there afterwards. That was by arrangement but that first time then, that was a chance meeting. Q. Mr De Courcey also asked you and you need to think carefully. If you do not understand the question say so. You knew Mr Lavis would then discuss or disclose that information directly to Miss Rowan and in so doing create embarrassment and hurt for her? A. No. Q. Did you at any time suggest to Mr Lavis that he should contact Miss Rowan in relation to the information you gave him? A. No. Q. Did he say anything which caused to believe he had any intention to do that? A. No, no. Q. Did you know prior to now that he had done that? A. No. No. 64 On the basis of that evidence and in the absence of more, I do not see how the applicant can be said to have acted improperly with an intention to cause embarrassment or hurt to Ms Rowan and it is not suggested that he was not within his rights to ask the ex-partner or anyone else for that matter to attend and give evidence in his favour. His actions in that regard do not, in my opinion, bear upon the question of practicability of reinstatement. 65 As to the damaging nature of allegations made about each other by the applicant and the complainants, I do not consider that to be an insuperable obstacle to reinstatement. The cases talk about the sensitivities of parties who are restored by order of the Commission to an employment relationship following a termination of that relationship by reason of dismissal. 66 For example, in Hardie Ferodo Pty Ltd v NSW Nurses Association, McClelland, J of the Industrial Commission of NSW as it then was said this about the practicability of reinstatement: This is, of course, a consideration to be taken into account in every reinstatement case but it must be treated with considerable caution. These cases come before the Commission by way of s 25A proceedings and the fact that such a case proceeds to arbitration after conciliation has failed provides itself obvious evidence that the employer does not want the employee back. If that consideration had been allowed to outweigh all others, the Commission would never have reinstated anybody. (No. 562 of 1978, 28 November 1978, unreported). Further, in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 which was applied by the Commission in Hollingsworth v Commissioner of Police (1999) 88 IR 282 and CCH Australia Ltd v Bowen (1998) 79 IR 206, the Industrial Relations Court of Australia (per Wilcox , CJ, Marshall and North , JJ) said this: If the court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by the employer that reinstatement is impracticable because of the loss of confidence in the employee. Each case must be decided on its own merits. These may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about the discretion of an employee who is required to handle highly confidential information. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether the standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employers own making. If the employer is of even average fair-mindedness, they are likely to prove short lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impractical. 67 The applicant, as earlier observed, is an officer of the Attorney General's Department of some 23 years standing and but for an earlier incident in 2000 which after investigation was the subject of "no further action" by the respondent, has an unblemished record. There is no suggestion of unsatisfactory work performance. Indeed his progression to the level of Deputy Registrar suggests otherwise as does the evidence given on his behalf by persons who have worked with him over the years. 68 Subject to establishment and observance of those interpersonal boundaries to which earlier reference is made, I consider a restoration of the employment relationship to be an appropriate outcome of these proceedings. 69 I therefore make the following orders: 1. The respondent is to reinstate the applicant to his former position on terms not less favourable to him than those that would have been applicable if he had not been dismissed. 2. The respondent is to pay to the applicant an amount equating to the remuneration lost or foregone as a consequence of dismissal. 3. The period of employment is taken not to have been broken by the dismissal. 70 The proceedings are accordingly concluded. 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