Industrial Relations Commission New South Wales Medium Neutral Citation: Torres v Commissioner of Police [2017] NSWIRComm 1001 Hearing dates: 17, 18 & 19 August, 24, 25 & 26 October,28 November 2016 Date of orders: 20 January 2017 Decision date: 20 January 2017 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The unfair dismissal application by George Torres is dismissed Catchwords: UNFAIR DISMISSAL – Senior Special Constable – complaints of sexual harassment and bullying – part of workplace culture – long and distinguished service – internal investigation – disciplinary process – talking about sexual acts – inappropriate and offensive comments in the presence of junior staff – proven misconduct extremely serious – mitigating factors – dismissal not harsh unreasonable or unjust – application dismissed Legislation Cited: Industrial Relations Act 1996 Evidence Act 1995 Cases Cited: Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Loty and Holloway v Australian Workers Union (1971 AR 95 at 99) Category: Principal judgment Parties: George Torres (Applicant) Commissioner of Police (Respondent) Representation: Counsel: Ms N Sharp (Respondent) Solicitors: Ms S Emery, Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant) Henry Davis York Lawyers (Respondent) File Number(s): 2016/00024823 DECISION 1. Before the Commission is an Application for Relief in relation to Unfair Dismissal brought pursuant to the provisions of Chapter 2, Part 6 of the Industrial Relations Act 1996 (the Act). The applicant is George Torres, formerly employed as a Senior Special Constable by the respondent, the Commissioner of Police, in the Security Management Unit which provides security to a number of government facilities such as Parliament House. 2. The applicant was dismissed from his employment with effect from 4 January 2016. The basis of the applicant's dismissal was a finding by the respondent that four allegations of misconduct by the applicant were sustained. Those allegations, as ultimately formulated, were as follows: 1. Between September 2014 and February 2015, Mr Torres sexually harassed PSC Laura Hutchinson (aged 24), PSC Jesse Lane (aged 22), PSC Cody Baxter (aged 21), PSC Jade Davies (aged 25) and PSC Danielle Cooper (aged 46) in breach of the NSWPF Harassment, Discrimination and Bullying Policy and Guidelines; 2. Sometime after calling PSC Hutchinson on November 2014 and saying "Hey Laura, do you want to suck my cock", Mr Torres rang her on her day off to intimidate her into not making a complaint about the comment and by his conduct PSC Hutchinson felt intimated; 3. Over the course of the weekend of 7th and 8th of February 2015 Mr Torres attempted to contact PSC Hutchinson by telephone on several occasions in an effort to persuade her not to complain about his behaviour. Such behaviour may be viewed as harassment and bullying; and 4. Between September 2014 and 28 January 2015, Mr Torres behaved unprofessionally on several occasions in front of his colleagues, making inappropriate and offensive comments, such as "have you ever done anal sex" and "suck my dick" whilst in the workplace. Such behaviour may be viewed as harassment and bullying. 1. In his unfair dismissal application to this Commission, the applicant denied many of the allegations but it was acknowledged "that at times he has made inappropriate jokes in the workplace and sincerely apologises to those he has offended. The Applicant however notes that this is part of the culture within his workplace and has been for many years, and he has never been reprimanded in relation to such behaviour". 2. In the proceedings before the Commission, the allegation of sexual harassment by the applicant against Probationary Special Constable Jesse Lane was not pressed on the basis that Jesse Lane is, in fact, a male officer. Background 1. The applicant commenced employment with the respondent as a Special Constable with the Security Management Unit on 23 April 1992. He was employed as a Sworn Police Officer from 1992 to 1995 when he resumed employment as a Special Constable, again in the Security Management Unit. In 2013 he was promoted to the rank of Senior Special Constable. 2. Evidence was led as to the applicant's long and distinguished service which has included a commendation for bravery in relation to an incident in which he disarmed a mentally ill man armed with a knife in the Sydney Police Centre. The applicant was also involved in several other traumatic incidents, including being the first officer to apprehend a dangerous offender during a bomb scare in Macquarie Street several years ago. 3. Many of the events which led to the applicant's dismissal occurred at Parliament House, Sydney. 4. On 28 January 2015 Laura Hutchinson, a 24 year old Probationary Special Constable, made a written report in which she alleged that, in November 2014 whilst she was on day shift at Parliament House, she received a phone call from the applicant, who was in the control room at the time, during which, according to Ms Hutchinson, the applicant requested that she perform a sexual act on him saying "will you suck my cock". 5. Ms Hutchinson's report led to an internal investigation by the Professional Standards Command during which a large number of Special Constables, who had worked with the applicant, were interviewed. There then followed a disciplinary process which culminated in the dismissal of the applicant. 6. Much of the investigation and disciplinary process, as well as the evidence and submissions in these proceedings, concerned the complaint against the applicant by Ms Hutchinson. For the reasons set out below I have given this complaint, and the misconduct allegations which flowed from it, no weight at all in coming to my determination in this matter. Ms Hutchinson's evidence 1. On 31 May 2016 the respondent filed a witness statement by Ms Hutchinson in these proceedings in which she attested to the truth of the complaint which she had made against the applicant, as well as to the matters which formed the basis of allegations (2) and (3). The applicant has denied these allegations and has maintained that denial throughout these proceedings. 2. At the commencement of the hearing on 17 August 2016, Ms Sue Emery of the Public Service Association, who appeared for the applicant, opposed the admission into evidence of Ms Hutchinson's witness statement on the ground that, due to health reasons, Ms Hutchinson was unavailable to appear before the Commission to give evidence. Ms Emery made the very valid point that her inability to test Ms Hutchinson's evidence had the potential to visit a procedural unfairness upon the applicant. 3. In the ultimate, having regard to section 63 of the Evidence Act 1995, I admitted Ms Hutchinson's witness statement into evidence but, in light of the determination which I have made based upon evidence of other misconduct by the applicant, I have not found it necessary to further consider, or to attach any weight to, the contents of Ms Hutchinson's witness statement. This in no way reflects on the credibility of Ms Hutchinson. 4. For similar reasons, I do not propose to deal further with evidence led by the respondent which was said to corroborate Ms Hutchinson's allegations against the applicant. In particular, I have found it unnecessary to further consider the evidence of Special Constable First Class Peter Hewett, who stated that he was present when the applicant phoned Ms Hutchinson and said "Hey Laura, do you want to suck my cock". Likewise, I do not propose to attach any weight to the evidence of Special Constable Olivia Walker to the effect that she overheard a subsequent phone conversation between the applicant and Ms Hutchinson, during which the applicant said words to the effect "remember when I said do you want to suck my cock? Did you find that offensive?". Nor do I propose to deal further with evidence from a number of the applicant's witnesses, which was to the effect that Ms Hutchinson had, in conversations with them, recanted her allegations against the applicant. My determination in respect of this issue should not be taken as any form of adverse credit finding against any of these witnesses. 5. Whilst the initial report by Ms Hutchinson was the trigger which led to the investigation and, ultimately, to the dismissal of the applicant, it was, by no means, the only matter upon which the respondent relied to justify the decision to dismiss the applicant. Further allegations 1. Below is set out a brief summary of the further allegations of misconduct by the applicant as detailed in the evidence of the respondent's witnesses given during the proceedings: Operations Supervisor Trent Pennington According to Mr Pennington, the applicant frequently made comments in front of other work colleagues involving sexual innuendo, including comments about metal piercings on his penis. Mr Pennington had cause, on a number of occasions, to speak to the applicant regarding his inappropriate conduct in the workplace. The applicant did not dispute this evidence of Mr Pennington in his reply witness statement, but claimed that "most of the staff in the workplace told jokes that are inappropriate". He did not believe that he was worse than many others and did not mean to offend anyone. Mr Pennington was cross-examined at length. However, it was never put to him that his evidence as to the comments made by the applicant was untrue. Operations Supervisor Shony Majcug According to Ms Majcug, in September 2013, whilst she was on the phone at work, the applicant proceeded to mock "dry hump" her with his tongue out. In his reply witness statement the applicant denied that this incident had occurred. Ms Majcug was cross-examined about this incident and stated that, at the time, she pulled the applicant aside and told him that if it ever happened again she would formalise a report. Senior Special Constable Adam Craven Mr Craven gave evidence that, on a number of occasions, the applicant would see a female person on the CCTV screens at Parliament House and say words to the effect "I fucked her" or "I fucked her friend". According to Mr Craven, on many occasions the applicant would talk about his sexual conquests and be very descriptive with other Special Constables including junior probationary female officers. The applicant spoke openly about the metal piercings he has on his penis. The applicant denied the allegation concerning the CCTV screens in his reply witness statement but, otherwise, did not take issue with Mr Craven's evidence as summarised above. Mr Craven was cross-examined about that aspect of his evidence referring to the applicant talking about his sexual conquests in front of junior probationary female officers, but it was never put to Mr Craven that his evidence as to these matters was other than truthful. Mr Craven rejected the proposition that it was part of the workplace culture for officers to describe their sexual exploits to others, or to ask others in the workplace what their sexual practices were. Senior Special Constable David Shearman Mr Shearman gave evidence that he heard the applicant asking Probationary Special Constable Cody Baxter if she liked anal sex. Mr Shearman claimed that he immediately reprimanded the applicant. Ms Baxter, who appeared as a witness in the proceedings for the applicant, denied that this incident had occurred. Mr Shearman also recalled the applicant speaking about the metal rings on his penis and how he set off the metal detector machine at the airport. Mr Shearman stated that, on many occasions, the applicant would tell stories about his sexual exploits and be very descriptive and explicit and would often demonstrate sexual acts with his hands. This would occur, at times, in the presence of female officers. Mr Shearman also gave evidence that, during the morning muster on the day of an indigenous demonstration, the applicant referred to the demonstrators as "Black Cunts" and that he was heard by Mr Shearman to say in a loud voice "Where is that black cunt SHEARMAN?". In his reply witness statement the applicant denied that the incident involving Ms Baxter had occurred. He also claimed that he had never called anyone "black cunts" but, otherwise, the applicant did not take issue with those aspects of Mr Shearman's evidence as summarised above. Under cross-examination Mr Shearman was adamant that the incident involving Ms Baxter did occur. He was also cross-examined about the "black cunts" allegation but, apart from those matters, it was not put to him that the other aspects of his evidence were other than the truth. Special Constable First Class Peter Hewitt In addition to his evidence concerning the phone call from the applicant to Ms Hutchinson during which Mr Hewitt claimed to have overheard the applicant say "Hey Laura, do you want to suck my cock", Mr Hewett also gave evidence that, on one occasion during a shift, the applicant made a joke about having sex with chickens. The applicant did not, in his reply witness statement, dispute this aspect of Mr Hewett's evidence and he was not cross-examined about it. Special Constable First Class Marin Jurcevic According to Mr Jurcevic, the applicant told him about the fact that he had ball bearings inserted into his penis. A couple of other persons in the workplace also mentioned that the applicant had told them the same thing. Mr Jurcevic also heard the applicant talk about whether other personnel had ever engaged in anal sex. The applicant did not respond to Mr Jurcevic's evidence in his reply witness statement. Under cross-examination Mr Jurcevic stated that the applicant had shown him his penis with the ball bearings visible. This was not denied by the applicant who claimed that Mr Jurcevic asked to see it. Mr Jurcevic denied initiating this incident. Special Constable First Class Alex Mantzoros Mr Mantzoros gave evidence that the applicant was always making inappropriate sexual comments in the workplace in the presence of junior staff. He was always boasting about his sexual encounters with females and, whilst doing this, he was actually describing thrusting actions and making sexual noises. Mr Mantzoros has heard the applicant talking, in the presence of junior female staff, telling them that he has ball bearings on his penis for more sexual stimulation. Mr Mantzoros recalled hearing the applicant offering to show the female officers present the ball bearings in question. In his reply witness statement the applicant denied that he had told the story about the ball bearings to junior female staff, but conceded that he had told this story to "some of my longstanding colleagues, including I believe Mr Pennington and Mr Rees". Mr Mantzoros was asked, under cross-examination, whether he had ever complained to anyone about the applicant's behaviour. He replied "No". Similarly, he had not made any formal commentary in his notebooks nor had he reprimanded the applicant for his behaviour. However, it was not put to Mr Mantzoros that his evidence, as summarised above, was other than the truth. Special Constable First Class Corey Bassingthwaighte-Hatch Mr Bassingthwaighte-Hatch recalled hearing the applicant talk in the workplace in front of other colleagues about whether he likes anal sex, but couldn't give specifics. He had also heard the applicant speaking openly at work in front of other colleagues about the metal ball bearings on his penis. The applicant did not respond to the evidence of Mr Bassingthwaighte-Hatch in his reply witness statement and Mr Bassingthwaighte-Hatch was not cross-examined on those aspects of his evidence as summarised above. Special Constable Olivia Walker Ms Walker gave evidence that, although she never found the applicant's conduct personally offensive, she observed that his general behaviour was inappropriate in the workplace. He regularly made jokes and comments which were more of a sexual nature than those made by other employees. He made jokes and comments of a sexual nature on a daily basis when Ms Walker worked with him. Ms Walker had heard the applicant discuss his private sexual life and sexual encounters, in the workplace in the presence of other staff. Some of his comments during these conversations were explicit and inappropriate in the workplace. These included the applicant discussing with other staff the fact that he has metal rings on his penis. In his reply witness statement the applicant denied that he made jokes of a sexual nature on a daily basis. He claimed that Ms Walker made jokes of a sexual nature in the workplace, as do most of the other Special Constables. Ms Walker was not challenged in cross-examination on those aspects of her evidence as summarised above. Special Constable Jade Davies According to Ms Davies, the applicant was always talking about sexual acts and, on one occasion, she recalled him singing a song and then changing the words to rhyme by saying words similar to "putting it into your arse". In his reply witness statement the applicant did not recall changing the words of the song in the manner described by Ms Davies, but did not take issue with her evidence about him always talking about sexual acts. Ms Davies was not cross-examined on that aspect of her evidence. Special Constable Danielle Cooper According to Ms Cooper, the applicant's conduct in the workplace was very unprofessional, unethical, intimidating and, at times, harassing. His language was disgusting. He often made inappropriate and offensive comments in the presence of junior staff, including herself. He told stories in the workplace about his sexual adventures in the presence of other officers. In his reply witness statement the applicant denied certain aspects of Ms Cooper's evidence but did not deny those aspects of her evidence summarised above. She was not cross-examined about those aspects of her evidence. Special Constable Jesse Lane In an interview with the Professional Standards Command in 2015, Mr Lane was asked if he was present with other staff when the applicant was talking about how he likes having his "arse licked". His response was "With his language, he may very well said that, I can't one hundred per cent to you confirm that did happen". Mr Lane gave a similar response to the allegation that a junior female officer then entered the control room and the applicant also asked her if she likes having her "arse licked". Mr Lane stated that he had witnessed the applicant eating a banana in the control room and he would then pretend to be making sexual acts with the banana. Mr Lane had heard or witnessed the applicant asking other staff members if they liked to have anal sex but couldn't say when or who. He also recalled that the applicant can be very descriptive, in the presence of other staff, about sexual encounters at times. In his reply witness statement the applicant specifically denied that he had ever asked a staff member whether they liked having their "ass" licked. Apart from that one aspect, the applicant did not respond to Mr Lane's evidence as summarised above. Under cross-examination it was not put to Mr Lane that any aspect of his evidence, as summarised above, was other than the truth. Special Constable Gregory Britt Mr Britt's evidence was to the effect that the applicant's conduct in the workplace was "purile" and, at times, offensive and very inappropriate. By this, he meant that the subject of most of the applicant's conversations in the workplace revolved around sex and sexual acts. This was in the presence of junior staff, both male and female. The worst incident that Mr Britt could think of occurred in the control room at Parliament House, possibly in January 2015. The applicant was describing, in the presence of other staff, how he liked having his anus licked. Mr Britt was pretty sure that Probationary Special Constable Lane was present when the applicant posed this question "do you like having your arse licked?". He recalled that, a short time later, Probationary Special Constable Hutchinson also walked in and the applicant asked her the same thing. Mr Britt gave evidence that, not long after this incident, he was confronted by the applicant in the goods lift at Parliament House where the applicant said to him "Did you tell someone I wanted to lick Laura's arse?". Mr Britt said to the applicant "No, you asked her if she liked her arse licked". Mr Britt then said to the applicant "Your jokes are purile and I believe you need to lift your game around the females and younger staff… You can't talk about that sort of subject matter in front of staff in the workplace". The applicant's reply was "I didn't ask to lick her arse". The applicant, in his reply witness statement, denied that he had described in front of female staff how he liked having his anus licked. He also denied asking any staff members, female or male, if they liked having their "ass" licked. The applicant did not dispute any other aspect of Mr Britt's evidence. Under cross-examination Mr Britt was asked about the incident in the control room where the applicant described how he likes having his anus licked. In particular, Mr Britt was asked if he could recall how many people were in the control room at that time. He stated that there were "four maybe five of us in the room at the time". When asked if he had noticed any response to the comment that he alleged was made by the applicant, Mr Britt stated "Just that Laura's face lit up bright red". Mr Britt was not cross-examined about any other aspect of his evidence. Special Constable Kim Barrett Ms Barrett recalled one occasion where the applicant mentioned words to the effect of having a "piercing" in his penis. The comment was made in the presence of Ms Barrett and several other employees. She also deposed that the applicant said words directly to her to the effect that, while on night shift, he "watches SBS because there is porn on there". On another occasion, when Ms Barrett mentioned that she had a pet snake, the applicant said words to her to the effect "I have a pet snake as well that has a piercing in its head". Mr Pennington, who was also present, told the applicant to "stop". Ms Barrett understood that the applicant was referring to his penis. These comments by the applicant made Ms Barrett feel extremely uncomfortable in the workplace. However, Ms Barrett did not report these incidents at the time of their occurrence as she was a junior officer and was concerned about the impact that making a complaint against a senior member of staff, such as the applicant, may have had on her career. The applicant, in a further reply witness statement, stated that he did not believe that he would have said that he had a piercing on his penis as that would have been an inaccurate statement. He did not recall making such a statement. He did recall saying at some stage "I like watching SBS because that's the way I learn proper English because they had subtitles and they have porn". He claimed that he was joking when he mentioned this and it was part of the conversation. He did not recall Ms Barrett being there at the time. Cross-examination of the applicant 1. The applicant accepted that, as a Senior Special Constable, he was a role model for more junior members of staff. He was aware of the obligations on employees as set out in the NSW Police Force Code of Conduct and Ethics including the requirement to "treat everyone with respect, courtesy and fairness", although he claimed that "I didn't do any training about this, none of us done training about this, so we don't really understand what is the whole Code of Conduct". 2. The applicant was also aware of the NSW Police Force Harassment, Discrimination and Bullying Policy but again claimed that "… we just read it, sign that we read it. We didn't have any course like the police does". 3. The extent of the applicant's concession as to inappropriate conduct on his part was "Saying, talking about rude, talking about dirty jokes". However, in a written submission to Inspector Sheather of the Professional Standards Command, Ms Emery, on behalf of the applicant, stated that he acknowledged that "at times during his employment he has been involved in inappropriate discussions or has told sexually explicit jokes in the workplace that others may have found offensive". When asked about those "inappropriate discussions", the applicant recounted an incident where, according to the applicant, another employee asked him if he did anal sex. According to the applicant, he responded "Yes, sometimes you have to do. You have to try everything". 4. The applicant maintained that he had never been counselled nor had he been given any sort of warning in relation to his behaviour, despite being shown a number of documentary records, including a number of extracts from Mr Pennington's duty book, which indicated the contrary. 5. The applicant denied that he had, in the presence of Mr Shearman, asked Ms Baxter if she liked anal sex. He accused Mr Shearman of being a liar. 6. The applicant denied that that he had dry humped Ms Majcug. He also denied that he had, in the presence of Mr Hewett, told a joke about having sex with chickens. He admitted that "I do make sexual – sexual joke, like everybody else, but not frequently". 7. The applicant also denied that he had, on a number of occasions in the presence of Mr Craven, said, in relation to women seen on the CCTV screens, either "I fucked her" or "I fucked her friend". He also accused Mr Craven of lying. 8. The applicant denied that he had told Mr Jurcevic that he had a ball bearing on his penis. He accused Mr Jurcevic of lying. However, the applicant conceded that he probably did discuss anal sex with Mr Jurcevic in the workplace. He said "Because, like I said, everybody joke everything. We call ourselves names and things like that. Is all a joke". 9. The applicant conceded that, on one occasion, he did sing a sexually explicit song in the presence of Ms Davies. He later claimed that he could not recall this incident. To the extent that Ms Davies had stated that the applicant had done this on a number of occasions, the applicant claimed that she was also lying. 10. The applicant did agree with the statement of Ms Cooper to the effect that, in her presence, he regularly made jokes and comments in the workplace which were more sexually driven than those made by other employees and that such comments were often filled with profanities and could be demeaning towards females. However, shortly after making this concession, the applicant recanted and said that "… probably she's lying". 11. The applicant rejected the evidence of Mr Mantzoros to the effect that he saw the applicant tell junior female staff that he had ball bearings on his penis and that he offered to show his penis to those staff members. He accused Mr Mantzoros of being a liar. 12. The applicant also disputed the evidence of Mr Britt that he was present when the applicant told staff members that he liked having his anus licked and asked the question "Do you like having your arse licked?". The applicant also accused Mr Britt of being a liar. 13. In relation to the evidence of Ms Barrett, the applicant denied that he told her, in the presence of several other employees, that he has a piercing in his penis. He did, however, concede that he probably told her that he watched SBS because there is porn on there. He claimed that this is the way that he learned "proper English". He could not recall the discussion with Ms Barrett about a pet snake but suggested that Ms Barrett was probably lying about that conversation. Case for the applicant 1. Much of the case mounted on behalf of the applicant, as set out in the final written submissions filed on his behalf, focussed on the allegations against the applicant made by Ms Hutchinson. As I have already indicated, for the reasons stated above, I do not propose to canvass these allegations in these reasons for decision. 2. The applicant relied upon the following: The applicant's length of service being in excess of 26 years, primarily in the roles of Special Constable and, later, Senior Special Constable; The absence of any complaint or grievance against the applicant prior to the matters which led to his dismissal; The fact that the applicant has never been placed on a Performance Management or Remedial Plan in relation to conduct allegations; The applicant's attempts to support and protect his staff in the workplace, including trying to implement Work Health and Safety strategies, such as commissioning the purchase of protective footwear for his staff; Awards for outstanding bravery during his employment, such as receiving the Highest Commendation of Valour for apprehending a mentally ill man armed with a knife at the Sydney Police Centre and apprehending a bomber in Macquarie Street; The applicant being a hands on supervisor who visits his staff at their posts and tries to support them in their work; Admissions by the applicant to some of the matters alleged against him, whilst claiming that such comments have been in the context of joking conversations with colleagues and that this is part of the workplace culture; Denials by the applicant that he: - asked Ms Baxter if she liked "having anal sex"; and - sexually harassed Ms Majcug; The denial by Ms Baxter that the applicant had asked her if she liked "having anal sex" or otherwise sexually harassed her; and The harshness of the consequences of the dismissal for the applicant and his family. 1. Much of the case mounted on behalf of the applicant was to the effect that there existed in this workplace a culture of swearing and sexually explicit language. The applicant claimed that most people told offensive jokes. 2. Special Constable First Class Jason Rees, who was called as a witness in the proceedings by the applicant, gave evidence that he had sometimes heard the applicant swear or tell dirty jokes in the workplace, but that most Special Constables engaged in that sort of behaviour. This was part of the culture of the workplace and has been since he started working as a Special Constable. 3. Ms Baxter also gave evidence that, at Parliament House, many of the Special Constables made sexual comments and used offensive and inappropriate language in the workplace. It was part of the work culture. She claimed, however, that the applicant did not talk like that in front of her and never directed any offensive comments to her. 4. Special Constable First Class Kris McVicker gave evidence to the effect that some people, who did not know the applicant, may have felt that some of his jokes were inappropriate, although he was not aware of anyone previously being offended by the applicant's humour. Many of the other Special Constables also swear or tell offensive jokes 5. The applicant relied upon concessions made under cross-examination by Mr Shearman that he had sworn and made offensive jokes in the workplace and participated in conversations that may have been of an offensive nature. The applicant also relied upon a concession made under cross-examination by Mr Craven that he had seen other staff tell offensive jokes or jokes that others may consider offensive in the workplace. 6. Reliance was also placed on the evidence of Operations Supervisor Lawrence Mallia to the effect that, in his observation, the applicant's language did not stand out any more than others in the workplace and, regarding content, it was mainly about the applicant's time in the Philippines military and joke telling. Also, to the best of Mr Mallia's recollection, the applicant's language was not directed towards, or offensive to, anyone at the time. 7. Mr Lane accepted, under cross-examination, that other officers tell jokes that might be considered inappropriate or use language that might be considered offensive. Case for the respondent 1. As with the case for the applicant, the bulk of the final written submissions of the respondent was directed towards the allegations against the applicant by Ms Hutchinson. As previously indicated, I do not propose to further deal with those allegations. Allegation (1) – sexual harassment of PSC Cody Baxter 1. The respondent submitted that the Commission should find, despite the denials of both parties, that, on a day during January 2015, the applicant asked Ms Baxter if she liked anal sex. 2. It was submitted by the respondent that Ms Baxter's denial in these proceedings was inconsistent with her statement prepared for the internal investigation by the Professional Standards Command in which she claimed that she could not recall this incident. When this discrepancy was pointed out to her during cross-examination, Ms Baxter said that she had "no choice" but to sign the investigation statement and that the investigator had pressured her. The respondent submitted that this explanation as to the inconsistency should not be accepted. 3. Mr Shearman gave evidence that, in or around January 2015 while he was in the traffic box at Parliament House, he did hear the applicant ask Ms Baxter a question to the effect "do you like anal sex?". Mr Shearman stated that he immediately reprimanded the applicant. Mr Shearman held firm to his account during cross-examination. 4. During the investigation by the Professional Standards Command Mr Jurcevic was asked "Do you have any knowledge or witnessed TORRES ever asking personnel as to whether they ever engaged in anal sex, in the workplace?". Mr Jurcevic replied "Yes. I've heard him talk about this, but I don't recall the dates and times. And I don't recall who he was talking to about this". 5. Mr Britt gave evidence that he was present in the control room at Parliament House, possibly in January 2015, when the applicant was describing, in the presence of other staff, how he likes having his anus licked. Mr Britt was pretty sure that Mr Lane was present when the applicant posed this question "do you like having your arse licked?". Mr Britt recalled that, a short time later, Ms Hutchinson also walked in and the applicant asked her the same thing. Mr Britt stated that "I saw that Laura's face went bright red. She is very young and very junior in the job". Allegation (1) – sexual harassment of PSC Jade Davies 1. The respondent submitted that Ms Davies' evidence to the effect that the applicant was always talking about sexual acts and, on one occasion, sung a song with the words "putting it into your arse", was not challenged by the applicant. The applicant had agreed in cross-examination that he did sing a song of a sexually explicit nature to her on one occasion. 2. Whilst Ms Davies agreed that she was "never directly targeted" by the applicant, her unchallenged evidence was that the applicant did not abide by workplace rules, conduct and ethics. He generally made inappropriate and offensive comments in the workplace in the presence of other staff including female officers. This, according to the respondent, constituted sexual harassment. Allegation (1) – sexual harassment of PSC Danielle Cooper 1. It was submitted by the respondent that Ms Cooper's evidence was that the applicant regularly made sexually driven jokes and comments in the workplace which were filled with profanities and which were demeaning towards females. Her unchallenged evidence was that the applicant regularly used the "'C' word in the presence of junior staff during everyday conversations in the workplace and everyone is aware of this". 2. Ms Cooper further stated that the applicant's conduct in the workplace was "unprofessional, intimidating and at time harassing". She later clarified this by saying that she meant that his conduct "typically involved comments regarding his private sexual life, as well as sexual comments in general" which she found to be inappropriate. 3. Ms Cooper was concerned generally that being a junior officer meant that complaining about the applicant would have the potential to damage her career, and though she was "frequently taken aback by sexually charged comments made by Mr Torres in the workplace", whose conduct "often made [her] feel very uncomfortable", she did not officially report him. 4. In the submission of the respondent, Ms Baxter, Ms Davies and Ms Cooper had each been the victims of sexual harassment by the applicant. Allegation (4) – behaved unprofessionally, making inappropriate and offensive comments, harassment and bullying 1. In support of this allegation, the respondent relied upon the applicant's conduct towards, and in the presence of, Mr Pennington, Ms Majcug, Mr Craven, Mr Shearman, Mr Hewitt, Mr Jurcevic, Mr Mantzoros, Mr Bassingthwaighte-Hatch, Ms Walker, Ms Davies, Ms Cooper, Mr Lane, Mr Britt and Ms Barrett, as outlined in paragraph 16 above. 2. The respondent specifically rejected the proposition that the applicant's conduct can be excused because it was consistent with the culture in the workplace. In the submission of the respondent, the witnesses who gave evidence for the respondent unequivocally rejected the suggestion that the applicant's conduct was consistent with the culture of the workplace. The workplace culture 1. The respondent submitted that, whilst some of the witnesses acknowledged that the applicant was not the only officer who swore or told jokes, the picture that emerges from the whole of the evidence is that the applicant's conduct stood out from that of his colleagues in the workplace. 2. Mr Pennington's evidence was that he did not observe people joking or making inappropriate jokes or swearing in the normal course. He stated that the applicant's conduct was not consistent with the culture at Parliament House, or within the Security Management Unit generally, and that other colleagues did not make the smutty, sexual comments that the applicant made. 3. Ms Majcug had observed the applicant telling dirty jokes or offensive jokes and using offensive or inappropriate language but had not really noticed anyone else at all in the workplace doing that. Whilst there was always "the occasional slip and some bad jokes", they were "not filthy, but just bad jokes". 4. Mr Craven stated that the applicant went further than other employees in terms of the inappropriateness of his conduct in the workplace. He did not agree that there is a culture of inappropriate language in the workplace, although he had seen other staff tell offensive jokes, or jokes that others might find offensive. However, he did not accept that it was part of the workplace culture that officers would describe their sexual exploits or would ask others what their sexual practices were. 5. Mr Shearman conceded that he had sworn, made offensive jokes and participated in conversations that may have been of an offensive nature in the workplace, as had other Special Constables, but claimed that they would not do it around female officers or people who found it offensive. Mr Shearman stated that, in the past, the workplace was male officer dominated and the applicant "would get away with his conduct as most guys would laugh things off". However, in the recent past, a number of junior female staff began working at Parliament House and the applicant was not able to adjust his conduct and behaviour. Mr Shearman stated that the applicant "is a very bad example to junior staff and an embarrassment to the department and his conduct is very offensive and unprofessional". Mr Shearman also stated that the applicant's conduct stood out, as compared with other officers. In re-examination, the following exchange occurred: Q. You gave some evidence about people in the workplace making jokes and having a laugh. Did anybody in the workplace, other than Mr Torres, talk frequently about their sexual exploits in the workplace? A. Not specifically, no no. Like it's a male-dominated culture, people talk, they tell funny jokes, they watch movies, but George would always have to go one better with things that he'd said that he'd done in the past. 1. Mr Jurcevic rejected the proposition that there was a culture of swearing or telling jokes with explicit sexual language in the workplace. 2. Ms Davies gave evidence that the applicant was "one of those persons who does not abide by workplace rules conduct and ethics and by this I mean, he generally makes inappropriate offensive comments in the workplace in the presence of other staff including females". When pressed in cross-examination, Ms Davies stated that the applicant was "the main person" and she could not recall anyone else who behaved in this manner. 3. Mr Britt agreed that he had noticed other officers engage in jokes of a sexual nature or make sexually suggestive comments in the workplace, but rejected the proposition that this occurred on a fairly regular basis. He further stated that he had not observed, as part of the workplace culture, that officers within that workplace boast about their sexual exploits in front of their colleagues or describe the sexual practices that they would like to engage in. 4. Mr Lane agreed that he had seen other officers tell jokes that might be considered inappropriate or use language that might be considered offensive and swear. He accepted that "that could be described as being a feature or a part of the culture of the workplace". However, Mr Lane agreed that it was not part of the workplace culture for male officers to "discuss whether they liked their arse being licked… to discuss their sexual conquests… to tell others what sexual practices they like to engage in… to tell others they enjoyed watching pornography… to grab pieces of food and pretend to give oral sex to them". Conclusion 1. The respondent submitted that the conduct of the applicant amounted to serious systemic sexual harassment which was unlawful and contrary to the respondent's workplace policies. The applicant deliberately engaged in this conduct despite a long history of being warned about his behaviour. Despite the seniority of his role, its supervisory nature and the responsibility on the applicant to be a role model to more junior staff, he engaged in a pattern of conduct that created an environment in which staff, particularly junior staff, felt uncomfortable. 2. The respondent rejected the applicant's claims of hardship on the grounds that, since his dismissal, he has been in receipt of workers compensation payments. The respondent also relied upon the applicant's failure to produce evidence of any attempts by him to mitigate the impact upon him and his family of his dismissal. 3. Ultimately, the respondent submitted that the applicant cannot discharge the burden of establishing that the termination of his employment was harsh, unreasonable or unjust. 4. In the submission of the respondent, the application for reinstatement by the applicant should be dismissed. Was the dismissal of the applicant harsh, unreasonable or unjust? 1. It is not the function of this Commission to lay down rules, or even guidelines, as to what constitutes acceptable, or unacceptable, interpersonal interactions between employees in the workplace. Those are matters best left to the direct participants involved, the employer and the employees themselves. 2. The line between what could be regarded as acceptable conduct, and what is properly seen as unacceptable, will not always be easily drawn. The exact positioning of that line may vary significantly from workplace to workplace. What might be regarded as an acceptable interaction between workers on an off shore oil rig or in the crib room of an underground coal mine, might not be seen as acceptable in a more genteel setting, such as the staff room of a primary school. 3. Despite the inherent difficulty in drawing the line, there will be cases where the conduct of an individual employee falls so deeply within 'unacceptable territory' that it is difficult to contemplate that any reasonable person would regard the termination of that employee's employment for such conduct as unfair. The question before the Commission is whether or not this is such a case. 4. The catalyst for the investigation which led to the dismissal of the applicant was the allegation by Ms Hutchinson that, in November 2014, while both she and the applicant were at work at Parliament House, she received a phone call from the applicant during which he said to her "Hey Laura, do you want to suck my cock". The applicant has consistently denied this allegation. For the reasons already stated, primarily the inability of the applicant to test Ms Hutchinson's evidence due to her unavailability to participate as a witness in the proceedings, I determined that I would place no weight on this allegation. However, I do observe that, if such an allegation had been sustained in these proceedings, it is difficult to contemplate circumstances in which a determination could be made that the dismissal of the applicant on the basis of that conduct alone would be regarded as harsh, unreasonable or unjust. 5. What remains then is to consider the further allegations of misconduct against the applicant to determine, on the evidence before the Commission, whether or not those allegations have been made out to the required standard of proof and, if so, to consider whether or not the dismissal of the applicant on the basis of that proven misconduct was unfair, in the sense of being harsh, unreasonable or unjust. The applicant's lack of credit 1. The applicant was an unimpressive witness. In many instances his responses during cross-examination were vague and evasive. His memory was faulty when it suited his cause. On occasions, he refused to give straight answers to straightforward questions. 2. The applicant denied, or failed to accept responsibility for, the more salacious aspects of his conduct. He blamed the culture of the workplace and the failure of the respondent to train him in relevant policies for those aspects of his conduct to which he reluctantly admitted, such as telling "dirty jokes". 3. Where the evidence of the applicant conflicted with that of the respondent's witnesses, especially in instances where there was corroborative evidence to support the respondent's witnesses, I have preferred the latter evidence over the former. Allegation (1) – sexual harassment of PSC Cody Baxter 1. The respondent relies upon the definition of 'sexual harassment' contained in the NSWPF Harassment, Discrimination & Bullying Policy and Guidelines which includes the following: Behaviour which creates a sexually permeated or hostile working environment. Some of the factors that may indicate a potentially hostile environment include …. general sexual banter, crude conversation or innuendo, and offensive jokes. 1. The central allegation of sexual harassment by the applicant of Ms Baxter was that he had asked her, in the presence of other staff, if she liked anal sex. 2. Mr Shearman gave evidence that he heard the applicant ask Ms Baxter this question and immediately reprimanded him, even though the applicant was senior to Mr Shearman. 3. Ms Baxter denied that this incident had occurred. 4. I have some reservations about Ms Baxter's denial given that, when she was interviewed by the Professional Standards Command on 28 May 2015 and was asked about an allegation that, sometime in January of that year when she entered the traffic box, the applicant asked her if she liked anal sex, her equivocal response was "I do not recall this conversation ever occurring". In these proceedings she was definite that the incident did not occur. 5. Nevertheless, it is difficult to see how this Commission could make a positive finding that the applicant sexually harassed Ms Baxter by asking her if she liked anal sex, in the face of sworn denials by both parties that the incident ever occurred. Allegation (1) – sexual harassment of PSC Jade Davies 1. Ms Davies gave evidence that the applicant was always talking about sexual acts and, on one occasion, he was singing a song and changed the words to rhyme by saying words similar to "putting it into your arse". Whilst the applicant did not recall the incident involving this particular song, he did not challenge Ms Davies' evidence to the effect that he was always talking about sexual acts, but denied that this occurred on a daily basis. 2. Whilst this evidence of Ms Davies was lacking in specifics, the fact that it was not disputed by the applicant is sufficient to support a positive finding that Ms Davies was sexually harassed by the applicant. 3. A 25 year old junior female officer, such as Ms Davies, is entitled to come to work and not be subjected to a senior male officer constantly talking about sexual acts. Such conduct by the applicant is well over the line and into the territory of what would be considered unacceptable conduct in this particular workplace, and constitutes sexual harassment. Allegation (1) – sexual harassment of PSC Danielle Cooper 1. In a similar fashion as occurred with Ms Davies, Ms Cooper claimed to have been subjected to the applicant's language, which she described as disgusting, and to his stories about his sexual adventures in the presence of other officers. Her evidence as to these matters went largely unchallenged. 2. The applicant's conduct in the presence of, and towards, Ms Cooper constituted sexual harassment of her by him. She was, and is, entitled to function in a workplace which is free from the sort of behaviour which was inflicted upon her and her colleagues by the applicant. Allegation (4) – behaved unprofessionally, making inappropriate and offensive comments, harassment and bullying 1. The evidence in support of this allegation is overwhelming. 2. There can be no doubt that applicant openly discussed his predilection for anal sex and, in particular, his fondness for having his anus licked, in front of his work colleagues, including junior officers, both male and female. Evidence to this effect was given by Mr Shearman, Mr Jurcevic, Mr Bassingthwaighte-Hatch, Mr Lane and Mr Britt. I accept the evidence of these officers over the denials of the applicant. To subject his work colleagues to this sort of appalling behaviour places the applicant well beyond the line of what might be considered acceptable in any workplace. This misconduct by the applicant is, on its own and without more, sufficient to justify his dismissal. 3. The evidence that the applicant openly discussed, in the presence of his fellow officers including junior male and female staff, the existence of ball bearings and/or rings and/or piercings on his penis is equally compelling. Such evidence was given by Mr Pennington, Mr Craven, Mr Shearman, Mr Jurcevic, Mr Mantzoros, Mr Bassingthwaighte-Hatch, Ms Walker and Ms Barrett. I accept as truthful the evidence of these officers. Again, this conduct of the applicant is, on its own and without more, sufficient to justify his dismissal. 4. There is also a significant body of evidence that the applicant openly discussed his sex life and sexual conquests in the workplace in front of staff including junior officers, both male and female. Such evidence was given by Mr Craven, Mr Shearman, Mr Mantzoros, Ms Walker, Ms Davies, Ms Cooper, Mr Lane and Mr Britt. Again, I accept as truthful the evidence of these officers. It should be unnecessary to state that these officers were entitled to come to work and not be subjected to being regaled with the lurid details of the applicant's sex life. 5. There were a number of more specific matters raised in evidence in support of allegation (4). These included: The applicant proceeded to "dry hump" Ms Majcug; Within the hearing of Mr Shearman, the applicant referred to demonstrators as "Black Cunts" and used that term in reference to Mr Shearman himself; The applicant made a joke in the presence of Mr Hewitt about having sex with chickens; In the presence of Mr Lane, the applicant pretended to be performing sexual acts with a banana; The applicant told Ms Barrett that he had a pet snake that has a piercing in its head, being a reference to his penis. These particular allegations were not supported by corroborative evidence from other witnesses and I have determined that it is unnecessary to make any finding in relation to them. The applicant's excuses: It was all a joke 1. The applicant maintained that the extent of his culpability was telling the occasional rude or dirty joke, as other officers did. The following exchange occurred during cross-examination of the applicant: Q. Your representative, Ms Emery, said in her opening that you did concede that you had made some inappropriate comments in the workplace. Could you please tell me exactly what you concede that you have done? A. Well, like I said, that at work, when we working, they everybody having a joke. Now-- Q. No, Mr Torres, I'm not asking about everybody else. I'm asking about you. What do you concede that you did that was inappropriate? A. Saying, talking about rude, talking about dirty jokes. Q. Is that the extent of what you concede? A. Yes. Q. That's it? A. Yeah. 1. There is nothing joke-like about the applicant proclaiming to his work colleagues that he has a liking for anal sex and having his anus licked. There is nothing funny in the applicant humiliating junior female officers by asking them, in front of other colleagues, if they like having their anuses licked as well. 2. There is no humour in telling work colleagues, whether they be male or female, junior or senior, about the metal work that the applicant has had done on his penis. There is nothing humorous about the applicant sharing intimate details of his sex life and sexual conquests with fellow workers. 3. This behaviour of the applicant is not funny. It is the salacious outpouring onto work colleagues by the applicant of information about his particular sexual proclivities without any regard for the sensitivities of his fellow workers. 4. The applicant's conduct, as disclosed by the evidence in this matter, is no joke. It was the culture of the workplace 1. Under cross-examination the applicant was questioned as to his understanding of the types of conduct that constituted sexual harassment. The following exchange occurred: Q. …….Now, you understood at all times that that kind of conduct was sexual harassment under this policy? A. Yes, I understood it, but because that everybody at work is doing a joke and things like that…. 1. Contrary to this proposition, under cross-examination Mr Shearman conceded that he had sworn, made offensive jokes and participated in conversations that may have been of an offensive nature in the workplace. However, he then gave the following evidence: Q. So other special constables may have participated in conversations that may have been of an offensive nature? A. Yes. Yes. But I will say we would not do it around female officers or people who found it offensive. You have your group of friends that you tell jokes to, yes of course you do, we're males, we do that. Q. So since you've been at Parliament House it is the culture that the males in the workplace do - it's a generalised culture at Parliament House? A. Parliament House predominantly was male culture. Q. Mm. A. It was male dominated, yes. Q. Mm. A. Then all of a sudden we got young female officers in and it had to change - like, you know, we really had to be careful and had to change, but, yes. Look jokes are told, of course. And later: Q. You gave some evidence about people in the workplace making jokes and having a laugh. Did anybody in the workplace, other than Mr Torres, talk frequently about their sexual exploits in the workplace? A. Not specifically, no, no. Like it's a male-dominated culture, people talk, they tell funny jokes, they watch movies, but George would always have to go one better with things that he'd said that he'd done in the past. Q. Did his conduct stand out, as compared with other officers, in relation to this matter— A. Yes, yes. 1. Mr Craven specifically rejected the proposition that it was part of the workplace culture for officers to describe their sexual exploits to others or to ask others in the workplace what their sexual practices were. 2. Ms Davies stated that the applicant did not abide by workplace rules, conduct and ethics and could not recall anyone else who did not. 3. Mr Jurcevic gave the following evidence: Q. Sorry. Have you observed any other instances of sexually explicit conduct or humour in Parliament House before or during your time working there? A. Not that I recall, no. And later: Q. Now, do you think, some witnesses have said there is a culture of swearing or telling jokes with explicit sexual language in the workplace. Would you agree that officers indulge in that sort of behaviour? A. No, I wouldn't. 1. Ms Walker stated that the applicant regularly made jokes and comments which were more of a sexual nature than those made by other employees. 2. Perhaps the most telling evidence on this issue of 'workplace culture' came from Mr Lane: Q. So are they the times that officers might engage in humour or joking around? A. At times. Otherwise it will be more so in the, like, the meal room, our control room at Parliament. Q. Have you seen other officers tell jokes that might be considered inappropriate or, you know, use language that might be considered offensive? A. Yes. Q. Would that be a lot of officers? A. A lot? So you're saying to swearing? Q. Yes, yes? A. Yep, I think a good amount of officers swear in the workplace from time to time. Q. So would you— A. Or humour. Q. Would it be fair to say that that could be described as being a feature or a part of the culture of the workplace? A. I would say yes. But later: Q. I just wanted to ask you, sir, about the evidence you gave about the workplace culture? A. Yep. …………….. Q. Is it part of the workplace culture for male officers to discuss whether they liked their arse being licked? A. No. Q. Is it part of the culture of your workplace for male officers to discuss their sexual conquests? A. No. Q. Is it part of the culture of the workplace for male officers to tell others what sexual practices they like to engage in? A. No. Q. Is it part of workplace culture for male officers to tell others they enjoyed watching pornography? A. No. Q. Is it part of common workplace culture for male officers to grab pieces of food and pretend to give oral sex to them? A. No. 1. I reject absolutely the proposition that there is a culture within this workplace which condones conduct of the type which has been exhibited by the applicant, as demonstrated in the evidence before the Commission in these proceedings. A fair assessment of that evidence compels the conclusion that the conduct of the applicant went way beyond what could possibly be captured by the applicant's claim that "everybody at work is doing a joke and things like that…". I was never trained on the Code of Conduct or the Harassment, Discrimination & Bullying Policy 1. In an attempt to avoid responsibility for his own conduct, the applicant gave the following evidence about the lack of training offered to him on what might be regarded as acceptable, as opposed to unacceptable, conduct in the workplace: Q. You are familiar with that Code of Conduct? A. Yes. …………. Q. You were aware of paragraph 4, the requirement to treat everyone with respect, courtesy and fairness? A. Well, I tell you the truth about this Code of Conduct; yes, we read this, but we don't have training on it. They give us a paper, that, "You read this, and then sign this piece of paper that you read it.." But-- Q. All right. Is there - can I stop you there, Mr Torres. Is there anything that confuses you about the requirement to treat everyone with respect, courtesy and fairness? A. The only thing that confuses me is, like I said, you know, because that I didn't do any training about this, none of us done training about this, so we don't really understand what is the whole Code of Conduct. ………….. Q. Now, this is the New South Wales Police Force Harassment, Discrimination and Bullying Policy dated 22 May 2007. It's right that you have been aware of this policy at all times from the beginning of November 2014? A. Yes. And again, we just read it, sign that we read it. We didn't have any course like the police does. 1. I reject entirely the proposition that training, or lack thereof, can, in any way, exculpate the applicant with respect to those aspects of his conduct upon which the respondent relies as justification for the decision to dismiss him. 2. Any officer who occupies a senior position, such as that occupied by the applicant, should not, and does not, need to undergo training, or to have policies in place, in order to arrive at the realisation that it is absolutely unacceptable conduct in the workplace to: openly discuss in front of other staff, including junior employees, one's predilection for anal sex and having one's anus licked; ask junior female employees whether they like having their anuses licked; share with work colleagues details of the various metal work jobs that one has had performed on one's penis; and divulge to work colleagues details of one's private sex life and sexual conquests. 1. No senior officer should, or does, need training or policies to realise that inflicting that type of behaviour on work colleagues, in particular, junior employees, in the workplace is unacceptable conduct which should not be tolerated and which cannot be excused. 2. The applicant must accept full responsibility for his own conduct. The attempt by him to lay blame on a lack of training must fail. I have never been formally warned, performance managed or been subject to a formal complaint or grievance in 26 years 1. The claim by the applicant that he has never been formally warned, performance managed or been subject to a formal complaint or grievance in 26 years has to be considered against the evidence of the attempts by other officers to pull the applicant into line, none of which appears to have succeeded. 2. Operations Supervisor Pennington gave evidence of the occasions over the past two to three years when he had cause to speak to the applicant relating to inappropriate sexual comments and his unethical behaviour, including one occasion in relation to the applicant making inappropriate sexual comments in the workplace in the presence of other staff, including Probationary Special Constables, about the piercing he apparently had on his penis. 3. In relation to the incident where Special Constable Britt claimed that he witnessed the applicant ask a number of probationary officers "do you like having your arse licked", Mr Britt gave evidence that he said to the applicant "Your jokes are purile and I believe you need to lift your game around the females and younger staff… You can't talk about that sort of subject matter in front of staff in the workplace". It does not appear that the applicant took heed of this advice. 4. As with the claim about lack of training, any attempt by the applicant to have his conduct excused on the basis of a lack of appropriate supervision must also fail. 5. The applicant alone was responsible for his behaviour. He cannot avoid his responsibility by claiming that, had he been more closely supervised, he would have behaved differently. 6. The proven misconduct of the applicant is extremely serious in its blatant disregard for the sensitivities of his work colleagues. It cannot be excused by any of the exculpatory matters put forward by him. The bottom line is that it was the applicant alone who was responsible for his conduct. It is the applicant alone who must bear the consequences of his misconduct. 7. Nothing has been placed before the Commission which could support a determination that the dismissal of the applicant was unreasonable or unjust. Mitigating factors 1. It remains to be considered whether or not the dismissal of the applicant was, nevertheless, harsh 2. I accept that the applicant has had a long, distinguished and, in some respects, exemplary career as a Special Constable. The loss of such a career will, no doubt, have devastating consequences for the applicant and his family. Against those considerations, the gravity of the applicant's misconduct, which I regard as extreme, must be weighed. 3. The correct approach to the task of determining whether or not a particular dismissal was harsh has been set out by a Full Bench of this Commission (Walton VP, Haylen J and Bishop C) in the following passages from the decision in Department of Health v Perihan Kaplan ([2010] NSWIRComm 65): [26] One ground relied upon for this challenge was predicated upon a legal proposition that a dismissal which was based upon conduct by an employee, which constituted a breach of a fundamental and essential term of the contract of employment, "would necessarily not be harsh". No authority was given in support of that proposition except for an authority which was said to demonstrate that, in the contemporary common law of employment, an implied term may be found in every employment contract that the employee owes the employer a duty not to act in a manner likely to destroy or seriously damage the relationship of trust and confidence between them: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2007) 69 NSWLR 198. The appellant's contention would appear to be that a finding of harshness under s 84(1) could not be made in circumstances where an employee had been lawfully dismissed for breach of such a term. It was also suggested that that approach was mandated because the employee's conduct in that context would be a repudiation of the contract. [27] The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ('Little') stated: The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act. [28] This conclusion must also follow from the very meaning of the concept of "harshness" within s 84(1). The words "harsh, unreasonable or unjust" in s 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [467] ("Byrne''), per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account. [29] We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. 1. In this matter the seriousness of the applicant's misconduct is such that, despite the mitigating circumstances which are set out above, the dismissal of the applicant has not been shown to be too harsh a consequence for his misconduct. Conclusion 1. In this matter I have excluded from consideration the allegations against the applicant which were made by Probationary Special Constable Hutchinson. I have also disregarded any specific allegation of misconduct which was supported by evidence from only one witness. The allegations which I have found to have been sustained are supported by corroborative evidence from multiple witnesses, each of whom I regarded as credible. 2. I confirm the following findings of misconduct by the applicant: 1. The applicant sexually harassed Special Constable Davies by consistently talking about sexual acts and making repeated sexual references in her presence. In coming to this finding, I have relied upon the evidence of Ms Davies as well as that of Mr Pennington, Mr Craven, Mr Shearman, Mr Jurcevic, Mr Mantzoros, Mr Bassingthwaighte-Hatch, Ms Walker, Ms Cooper, Mr Lane, Mr Britt and Ms Barrett. 1. The applicant sexually harassed Special Constable Cooper by regularly making sexually driven jokes and comments in the workplace which were filled with profanities and which were demeaning towards females. This typically involved comments regarding the applicant's private sexual life, as well as sexual comments in general. In coming to this finding, I have relied upon the evidence of Ms Cooper as well as that of Mr Pennington, Mr Craven, Mr Shearman, Mr Jurcevic, Mr Mantzoros, Mr Bassingthwaighte-Hatch, Ms Walker, Ms Davies, Mr Lane, Mr Britt and Ms Barrett. 1. The applicant behaved unprofessionally on several occasions in front of his colleagues, making inappropriate and offensive comments, such as "have you ever done anal sex" whilst in the workplace. Such behaviour may be viewed as harassment and bullying. In coming to this finding, I have relied upon the evidence of those witnesses cited immediately above but, in particular, the evidence of Mr Shearman, Mr Jurcevic, Mr Bassingthwaighte-Hatch, Mr Lane and Mr Britt. 1. The misconduct of the applicant was extremely serious. He displayed a complete disregard for the sensitivities of his fellow workers, especially the young female officers who were the target of his sexual harassment and bullying. 2. The unfair dismissal provisions of the Act focus attention on the rights and obligations of the dismissed employee and the employer. However, Commissioner Manuel once famously coined the phrase 'a fair go all round' which was adopted by Sheldon J in Loty and Holloway v Australian Workers Union (1971 AR 95 at 99) and has since become firmly embedded in the industrial relations jurisprudence of this nation. Surely the concept of a 'fair go all round' extends beyond the immediate parties to an unfair dismissal application, such as that presently before the Commission, and embraces the workmates of the dismissed employee who, in a case such as this, have borne the brunt of the applicant's misconduct which led to his dismissal. They are just as entitled to a 'fair go' as is the applicant. 3. Having taken into account the evidence referred to above and the mitigating factors put forward on behalf of the applicant, I have determined that the dismissal of the applicant was neither harsh, unreasonable nor unjust. 4. The applicant's Application for Relief in relation to Unfair Dismissal must be dismissed. 5. I so order. ********** Amendments 23 January 2017 - Amended formatting 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. Decision last updated: 23 January 2017