Industrial Relations Commission New South Wales Medium Neutral Citation: Dighton v Secretary, New South Wales Department of Education [2020] NSWIRComm 1010 Hearing dates: 18, 19 and 27 September, 3 and 30 October 2019 Date of orders: 09 January 2020 Decision date: 09 January 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Application dismissed Catchwords: UNFAIR DISMISSAL – school teacher – allegations of misconduct during and after a Christmas party harbour cruise – most serious allegations proven – dismissal not harsh unreasonable or unjust Category: Principal judgment Parties: Wendy Dighton (Applicant) Secretary, New South Wales Department of Education (Respondent) Representation: Mr C Hammond, solicitor (Applicant) Mr A Britt of counsel, (Respondent) File Number(s): 2019/00109352 DECISION 1. The applicant, Wendy Dighton, held a casual teaching approval and worked as a casual teacher with the NSW Department of Education ("Department"). She has worked as a teacher for approximately 14 years. In 2016 and 2017 the applicant was engaged as a casual teacher at Riverstone Public School. 2. In December 2017, the Department's Employee Performance and Conduct Directorate ("EPAC") was notified of allegations of misconduct relating to the applicant's behaviour during and after a staff Christmas party held on a Sydney Harbour cruise boat on the evening of Saturday 9 December 2017. The allegations included sexual contact with another staff member, X, a [REDACTED], without X's consent. X reported the matter to the NSW Police and made a police statement but, subsequently, retracted that statement. 3. On 13 March 2018, Jane Thorpe, Executive Director of EPAC, wrote to the applicant indicating that allegations had been received and would be investigated. Ms Thorpe advised the applicant that her permission to teach in Department schools had been temporarily withdrawn and her name would be placed on the Department's "Not To Be Employed List" ("NTBE List"). 4. By letter dated 18 June 2018, Alex Walker, EPAC Investigator, advised applicant of the allegations. They were that: 1. While on a cruise with colleagues from Riverstone Public School on 9 December 2017, you made unwanted physical contact with Y when you danced with him by rubbing your buttocks against his genital area in a grinding motion. 2. In the late evening of 9 December to early hours of 10 December 2017 following the cruise, you sexually harassed X at an apartment in Pyrmont by: a. straddling her body with your legs b. kissing her neck and cheek 3. In the early hours of 10 December 2017, you indecently assaulted X by: a. rubbing your hand along the side of her torso b. touching her buttocks c. digitally penetrating her vagina 4. On the morning of 10 December 2017, you walked around the Pyrmont apartment naked and in the company of colleagues from the Riverstone Public School. 1. Correspondence then ensued between the applicant's legal representatives and the Department in which the applicant denied the allegations apart from Allegation 4, but denied that this conduct constituted misconduct. 2. On 28 March 2019, the applicant filed the unfair dismissal application which is currently before the Commission. 3. The investigation by EPAC Investigators was concluded and an investigation report finalised by 3 May 2019. The report concluded that the conduct alleged in Allegations 1, 2, 3 and 4 was sustained and that such conduct constituted misconduct. However, in relation to Allegation 1, the report contained the following: There is sufficient evidence to substantiate that the conduct at 1 occurred, to the extent that Ms Dighton made unwanted physical contact with Y in a grinding motion. The investigation has clarified that the mechanics of the grinding motion involved front-facing contact, rather than a rubbing of buttocks against Y. 1. By letter dated 8 May 2019, Ms Thorpe provided the applicant with a copy of the investigation report, the evidence and her own findings which were generally consistent with the conclusions reached in the investigation report. That letter included the following: I am satisfied that there is sufficient probative evidence to sustain the conduct occurred in all four allegations. Allegation 1 is sustained to the extent that you made unwanted physical contact with Y by dancing with him in a grinding motion. I note the witness evidence is you were facing each other rather than rubbing your buttocks on his groin. The conduct at Allegation 3 is most concerning as the evidence suggests you effectively assaulted a colleague. The sustained misconduct is totally unacceptable by an employee of the Department. I am considering withdrawing your casual approval to work for the Department of Education and permanently placing your name on the list of persons not to be employed by the Department (NTBE List). 1. The applicant was given 14 days to make a submission to Ms Thorpe about the findings and the proposed action. 2. By letter dated 30 May 2019, the applicant's solicitor forwarded a submission on behalf of the applicant to the Department. 3. On 5 June 2019, Ms Thorpe wrote the applicant and confirmed the action which she had foreshadowed in her letter of 8 May 2019. Background 1. The Riverstone Public School staff Christmas party in 2017 took the form of a cruise on Sydney Harbour on the evening of Saturday 9 December. It was attended by approximately 60 members of staff. The cruise was not exclusively for staff of the school, but was attended by the general public as well. 2. Before the day of the cruise, a number of the school's female staff had made an arrangement to book an apartment in Pyrmont where they could stay for the night after the cruise. 3. On the day of the cruise, the applicant picked up a number of her colleagues from their homes, including X, and drove them to the apartment. A number of the passengers were drinking alcoholic drinks in the car on the way to Pyrmont. After they arrived at the apartment, the applicant and X went to a local bottle shop and bought more drinks, some of which were consumed at the apartment before the group left for the cruise. 4. It was during the cruise that the alleged conduct involving the applicant and Y, an [REDACTED] at the school, occurred (Allegation 1). 5. After the cruise, a number of the staff returned to the apartment in Pyrmont. They were: Wendy Dighton, Teacher X, [REDACTED] Karen Hugo, Teacher Lana Andersen, Teacher Erin Plummer, Assistant Principal Sharon Hankinson, SLSO Helen Nystazos, Teacher Belinda Weisback, Teacher 1. Those present, or at least the majority of them, continued drinking and talking well into the night. During this time, the events which gave rise to Allegations 2 and 3 occurred. 2. With respect to Allegation 4, the applicant has admitted that, on the following, morning, Sunday 10 December 2017, she walked around the apartment naked and in the company of colleagues from the school, but has denied that this constituted misconduct. Case for the applicant 1. Following receipt by the applicant of the letter from Ms Walker of 18 June 2018, a response was prepared by the applicant's solicitor at that time, Cassandra Sweeney of Hammond Nguyen Turnbull. In her letter to Ms Walker dated 16 July 2018, Ms Sweeney, on behalf of the applicant, denied Allegation 1 but conceded that the applicant was dancing in near proximity to Y, however, she did not at any time intentionally touch him in any way. 2. In response to Allegation 2, it was stated that the applicant "strongly denies the contents of this allegation". The letter then continued: Mrs Dighton instructs that when the X announced that she was going to bed, Mrs Dighton approached her in a jovial way and touched her face, tousled her hair, and stated words to the effect of "it's a Christmas party, you can't go to bed yet!" X responded with words to the effect of "I'm tired so I'm going to bed", to which Mrs Dighton responded "Okay", and walked away from X. Mrs Dighton did not "straddle" X, nor did she "kiss" any part of her. 1. In in response to Allegation 3, Ms Sweeney stated: Mrs Dighton is shocked and surprised at this allegation, and completely denies all aspect of same. We are instructed that this allegation is a complete fabrication and would have been almost impossible to be able to have occurred in a situation where six other females were sharing an apartment, wherein Mrs Dighton and X were sleeping in separate beds, with different people, on different levels of the apartment. Enquiries are being made of Sydney City Police to ascertain what statements have been made by X in relation to this completely false statement. 1. With respect to Allegation 4, it was conceded that the applicant was naked in the apartment for approximately three minutes on the morning of 10 December 2017 due to the heat of the environment. It was stated that the applicant said to the other females in the apartment words to the effect of "if anyone is offended let me know", to which no one voiced any complaints. It was further stated that the applicant is a woman comfortable with her body, and was not attempting to sexualise or offend any of the female adults present. 2. On the same day, 16 July 2018, Ms Sweeney forwarded to Ms Walker certain NSW Police documents relating to X's complaint about the applicant which had been obtained pursuant to a GIPA application, together with seven character references and a document prepared by the applicant outlining her personal circumstances. 3. Following receipt by the applicant on 8 May 2019 of the EPAC investigation report and the findings of Ms Thorpe, the applicant's solicitor, Chris Hammond, prepared a detailed response which was provided to the Department on 30 May 2019. In that response, Mr Hammond claimed that the applicant had been denied procedural fairness throughout the investigation process. It was further stated that there were so many problems in the "evidence" that was found against the applicant, that the preliminary findings in respect of Allegations 1, 2 and 3 were erroneous and could not be established. In relation to Allegation 4, the applicant admitted to "walking naked in front of her colleagues, however this is not misconduct". 4. Mr Hammond went on to deal with the events that had occurred following the weekend of the Christmas party cruise and criticised the length of time that it took for witnesses to be interviewed. He then gave a detailed response to each of the four allegations. Allegations 1, 2 and 3 were denied. The conduct which underpinned Allegation 4 was admitted, but it was claimed that this conduct did not amount to misconduct. 5. In these proceedings the applicant gave evidence in support of her application as did Ms Hugo. The applicant 1. The applicant denied that the incident with Y during the cruise ever occurred. 2. In relation to the events at the Pyrmont apartment after the cruise, the applicant gave the following evidence: 32. The apartment had two (2) levels. On the lower level there were a table and chairs where we were seated in an L-Shaped lounge suite. The distance between the two areas I would describe at approximately five paces. 33. Several of us were seated at the table and others were in other places around the apartment. 34. After we had eaten X said she was going to bed. X had been allocated the lounge for the night. My perception was that X was tired and drunk. We had all been drinking throughout the evening. 35. X made up a bed on the lounge with a blanket and some cushions and laid down. I approached X and said words to the effect of "Come on X it's our Christmas party. You can't go to bed yet". X replied words to the effect of "I'm tired and I just want to sleep" 36. I then touched her around her hair and said good night. That was the last interaction that I had with X for the night. 37. The remainder of the group including Karen, Erin, Lana, Sharon, Helen and Belinda remained for some time. Several of us remained at the table having a few drinks and talking. 38. At approximately 1 AM Sharon and I moved to the upstairs balcony and continued chatting and finished our drinks. We were there for about a half an hour and then Sharon and l went to bed. 39. The only time I was not seated at the table or the upstairs balcony was when I used the toilet or the downstairs balcony to have a cigarette. I was never alone with X at any time. 40. I have read the allegations set out in the police statement and deny that any such incident took place. 41. The air conditioning in this apartment was down stairs and consequently the bedroom was very hot. As a result of this I slept naked. The next morning, I wanted to take a shower and I do not recall if I went to the lower floor naked. Everybody in the apartment was female and I did not think I was offending any of my colleagues by being naked. Karen Hugo 1. Ms Hugo gave the following evidence: 21. During the evening I did not notice any inappropriate incidents between any of the staff. I do not recall any occasion when the staff had to discuss any behaviours with anyone in attendance. 22. At the end of the cruise we disembarked and we were standing around discussing various options. Some suggested going for a drink elsewhere and others went home. We decided that we should go back to the apartment. 23. On the way to the apartment we stopped to get food. We went to kebab shop and got some take away food and then walked to the apartment. I was first to arrive at the apartment. I remember this as I had to wait for the others to catch up and let me in. 24. The layout of the apartment was there were 2 floors. On the lower floor there was a table and chairs and an L-shaped lounge. Toward the end of the lounge a small table with some games on it. 25. In total there were 8 of us staying the night. This was because Sharon was staying with us also. She had originally planned to take a train home, however, as it was so late we offered her to stay at the apartment. 26. This was not a large area. For the number of us who were present I felt it was cramped. The lounge was about five (5) to six (6) steps from the table. 27. X had arrived as the last person at the apartment. I remember she was wearing a jump suit with short pant legs. She got changed from her clothes into some pyjamas in the lounge room. She then sat in the comer of the couch wrapped in a blanket. 28. The group was hanging out around the table chatting and having a drink. X had moved to lying on the lounge. Wendy went over to X and approached X from the side of the lounge that was her head side. Between X and Wendy there was the side of the lounge. Wendy leaned over the lounge, touched X around the hair and asked her to stay awake and join the party. X declined saying "I am too tired". 30. After this we remained at the table talking and having a drink and eating. I did not see Wendy or any other person approach X after this. I had a clear view of X on the lounge. We were all in close proximity. The apartment was small and we could hear each other from the kitchen to the table and all the way across the room. 31. Sharon, Wendy and I then went upstairs. Sharon and Wendy were sitting on the balcony chatting and finishing their drinks. I was laying on the bottom end of the bed close to the balcony doors. The room was very hot and we left the doors open all night. 32. Sharon left the room to sleep on the lounge with X. As she was the late arrival that was the allocation. Wendy used the ensuite to brush her teeth and fill a water bottle then went to bed. It was quite hot. I slept in a shorts and t-shirt and Wendy slept naked, this was not an issue to me. Case for the Department Allegation 1 1. The respondent relied upon the evidence of a number of witnesses to support the submission that Allegation 1, as clarified in the letter to the applicant from Ms Thorpe of 8 May 2019 (at [8]), was substantiated. Y 1. In response to an email request on 10 April 2018 that he contact Ms Walker, the EPAC Investigator, Y, on 11 April 2018, emailed Ms Walker as follows: Hi Alex On the night of the school Christmas party, a group of us were dancing. Wendy Dighton came up to me and said something along the lines of "Let me show you this dance." She then proceeded to grab me and 'grind' on me. It was extremely uncomfortable as it occurred without any interaction in the lead up to it and took place in front of my wife and colleagues, all of whom were understandably shocked. I avoided Wendy for the rest of the night. Please let me know if you require any further information. 1. On 8 March 2019, Y was interviewed by Ms Walker over the telephone. He stated: The incident in question, a group of us were dancing, the Macarena I believe. We were all in a group. I was approached by Miss Dighton who said to me something along the lines of - I can't remember the wording exactly - but something along the lines of, do you know this version of the Macarena? She then proceeded to grab me by - facing me, face-to-face, but reached and grabbed me by the buttocks and pulled me into her and was grinding on me. It was only very, very brief, I was kind of somewhat in shock, as were the other people around me, including my wife and she said, oh, I guess you don't then, and walked off. ………………………….. It was her waist pressed against my waist, at the front. Emma Kriketos 1. Ms Kriketos, the school Principal, spoke to Ms Walker by telephone on 13 March 2018 and described how, during the cruise, the applicant was behaving inappropriately toward Y and was seen by Ms Kriketos "dancing inappropriately 'on' (i.e. 'grinding on') Y". 2. In an interview with Ms Walker on 14 March 2019, Ms Kriketos described the incident as follows: She walked right up, though everybody was dancing and the staff do know each other quite well, but I felt that her behaviour - I had never seen anybody engage in, I guess, any physical contact with Y like that, but she did go up and grab him and was - the expression that I used was grinding on him. It was obvious to me that he was uncomfortable, and as soon as he could get out of that situation he came to me with his wife. …………………………… She grabbed his hips and pulled him on to her. …………………………… She had her hand on her hips and it was very sexualised. She, you know, kind of groin to groin. 1. In her affidavit which was tendered in these proceedings, Ms Kriketos corrected the above statement to clarify that she meant "She had her hand on his hips", being Y. Jane Thorpe 1. On 6 May 2019, after receiving the report from the EPAC Investigators, Ms Thorpe prepared a document setting out her findings with respect to the allegations against the applicant ("findings document"). The findings document contained the following: Allegation 1 The allegation incorrectly described the 'grinding motion' as Ms Dighton rubbing her buttocks against Y when it appears that the grinding motion involved front-facing contact. Ms Dighton, through her legal representative, denied intentionally touching Y but admitted dancing in close proximity. The evidence of Y is that he, a group of colleagues and his wife were dancing the Macarena and Ms Dighton then came up to him and said something to the effect "do you know this version of the Macarena" and then grabbed him by the buttocks and pulled him against her and started grinding on him. This version was confirmed by Ms Kriketos, the principal, who stated she had witnessed Ms Dighton "grinding on" Y, groin to groin. Y and Ms Kriketos have no reason to fabricate this evidence. Ms Kriketos was sober as she drove to the event and planned to take another staff member home. Such conduct could hardly be unintentional as stated by Ms Dighton. I am satisfied that Ms Dighton did grab hold of Y and grind against him groin to groin. The allegation is made out to the extent that Ms Dighton made unwanted physical contact with Y by dancing with him...in a grinding motion. It could be argued that a number of the staff were drinking and partying and that Ms Dighton was in high spirits and engaged in poor judgment by dancing in this manner with Y. However the evidence is clear that the conduct was not encouraged, was unwanted and amounts to misconduct. Allegations 2 and 3 1. In relation to Allegations 2 and 3, the respondent relied upon the evidence of the witnesses which is dealt with below. X 1. In her affidavit, X referred to the Statement of a Witness she made to Senior Constable Mark Bullock at Riverstone Police Station at around midday on Monday 11 December 2017. That statement contained the following: 5. About 11:30pm the cruise finished at the Darling Harbour wharf and us nine girls made our way back to the hotel in Pyrmont. At the hotel all the girls seemed to stay up, talk and drink around the dining table. About 12:20am we arrived back into the hotel, I dressed into my pyjamas. I was wearing my husbands t-shirt, some boxer shorts with cotton underpants. I remember going to lay down on the lounge. It was a corner lounge. I didn't have much alcohol and was nominated as the person to walk everyone back to the hotel safely. I had consumed probably six alcoholic drinks over 6 and a half hours. My last drink was about 10:30pm. I went and laid down on the lounge in the living room and covered myself with a blanket which i'd organised earlier in the evening prior to leaving for the cruise. We'd pre-organised for me to sleep on the lounge as l was the smallest. 6. Within about 5 mins I was dozing in and out of sleep, the lights were on and the room was loud. I was laying in the foetal position facing the outside of the lounge. Just as I felt I was about to fall asleep, Wendy has jumped over the end of the lounge and straddled her legs and arms over the top of my body. Her face was on top of mine. She then kissed my face on the cheek and neck continuously. This made me feel uncomfortable immediately. l said, "What are you doing?" She said, "It's ok, I do this to my daughters". I said, "That would of made you 5 years old, I'm uncomfortable, get off me". She kissed me again another two or three limes on my right side cheek and i moved my body to the right to flatten out and she rolled off to the floor and walked off. At the time I didn't think to much of it due to the situation, the girls were all intoxicated and laughing and having a good time. I just thought it was a idiotic moment. I then went to sleep. 7. About 1:20am l was awoken by the laughter and chatter at the table by the girls. l noticed the conversation turned to discussion of sexual relationships with other women. I just continued to lay there and get back to sleep as I had no interest in the conversation at hand. I rolled over to my right and faced the inside of the lounge. About two minutes later Wendy was back over standing at the back end corner of the lounge. Still being aware, I heard someone approach me. Wendy spoke and I knew it was her standing there at the end of my seat. I briefly looked up at her. 8. Wendy then leant down over the lounge inside back and reached towards my body. She used a hand and rubbed my thing up along the side of my body up to the ribs. She said, "You're just so small, and cute". I then made a disgruntled sound and movement to let her know to stop touching me. I kicked the lounge in a frustrated manner as if to say "go away". She didn't stop. She then rubbed her hand back up my body once more and repeated the same thing, "You're just so small". As she finished the sentence, she then moved her hand back down the side of my body to under the cheeks. She then slide quickly, her three fingers inside the lower part of my bottom cheeks into my underpants and into my vagina. I felt her finger tips within me. I immediately then slapped her arm away with my left arm. It made a large slapping sound and I said in a loud voice, "Get off me''. I don't think anybody heard me, there was no reaction from any of the girls. Again I kicked the lounge out of anger. Wendy pulled away and said, "Some people can't handle their alcohol" and walked back to the table with all the girls. 9. I laid there for about 10mins in confusion and shock. I messaged my husband at 1:22am and told him I wanted to come home. He didn't reply. I then messaged one of the other teachers who was upstairs asleep to ask if she was awake. I didn't get a response. A short time later all the girls in the room, for some reason all got up from the table and went out onto the balcony. I saw that as my opportunity to run out and go upstairs to the other girls who I'd been out with. 10. I woke up Belinda and started to tell her what I'd experienced, I then heard somebody coming into the room, l cut it off and said something to the effect of, "I'm ok, I just woke up funny, i'm going back to bed". So as I began to walk out, Belinda followed me down. l went back to where I was sleeping on the lounge and Belinda sat with me. I told her everything what had happened from the start of the night. Belinda stayed with me on the lounge until the morning. 11. I did not give Wendy any permission or invitation to touch me inappropriately. This whole incident has made me feel extremely uncomfortable and violated. 1. X confirmed that the contents of the statement set out above were true and correct to the best of her knowledge and belief. In her affidavit, X made the following points of clarification with respect to her police statement of 11 December 2017: 27. I wish to note the following Statement of a Witness dated 11 December 2017 To the best of my recollection: ………………………………. c. In paragraph 6, I stated that 'I said, [to Wendy] "That would of made you 5 years old, I'm uncomfortable, get off me"'. By that, I mean that if I was her daughter then she would have been about 5 years old when she had me. This was in reference to her comment to me that she was acting towards me in a way that she does with her daughter. d. In paragraph 6, I stated 'She kissed me again another two or three times on my right side cheek and I moved my body to the left to flatten out and she rolled off to the floor and walked off'. When Wendy straddled me I was positioned laying on my left hand side with my back against the wall of the lounge in a foetal position. To get Wendy off me, I flattened my body out by moving to the right so that my head was facing down towards the lounge. This movement caused Wendy to roll off my body onto the floor. e. In paragraph 7, I stated that 'about 1:20am....I noticed the conversation turned to discussion of sexual relationships with other women.' I can't recall the details of who spoke about what. At the time I heard 'who has been with other women', this lead to a few "I have's" so I rolled over to go back to sleep now facing the inside of the lounge. ………………………………….. g. In paragraph 8, I stated that 'Wendy then leant down over the lounge inside back and reached towards my body'. To clarify, to the best of my recollection, I was now positioned laying on my right hand side with my body facing the inside of the lounge. Wendy again approached me from the end of the lounge… h. In paragraph 8, I stated that, 'She used a hand and rubbed my thing along the side of my body up to the ribs". That sentence should read, "She used her hand and rubbed her hands along the side of my body up to the ribs". i. In paragraph 8, I stated that '... she then moved her hand back down the side of my body to under the cheeks.' By this, I mean that she once again rubbed her hand up my ribs and back down following the curve of my body along the side of my body, across my bottom and in between my legs until she pushed three fingers into my vagina. j. In paragraph 8, I stated that 'She then slide quickly, her three fingers inside the lower part of my bottom cheeks into my underpants and into my vagina.' To clarify, I was wearing cotton underpants and cotton boxer shorts at this time. Wendy did not insert her fingers on the inside of my clothing when she slid her fingers inside me, Wendy did so on the outside of my clothing. When she slid her fingers into my vagina, she took my clothing with that her. I clearly recall feeling the pressure of her three fingers as she pushed them into me. k. In paragraph 9, I stated that 'I laid there for about 10 mins in confusion and shock.' To the best of my recollection, it felt like I was lying there for around 10 minutes. 1. X's affidavit then dealt with the events that occurred after the incident involving the applicant referred to immediately above, in the manner set out below. (a) X sent a text message to Ms Plummer at 1.22am asking "Are you awake?", but got no response. (b) She then sent a text message to her husband at 1.23am saying "I want to come home. Do you think I could catch a train by myself?", but got no response. (c) In the morning, X said to Ms Plummer, in the presence of Ms Weisback, "I need to go. We need to go now. It's Wendy. I can't talk about it". (d) At a food court at Darling Harbour that morning, she told Ms Weisback, Ms Plummer and Ms Nystazos about the two interactions with the applicant. (e) Later that day, X contacted Ms Kriketos and met with her at Little Athletics where she told her of the incidents in the early hours of that morning involving the applicant. (f) Later the same day, X received a text message from Ms Weisback which advised that she had been in contact with the Relieving Principal, Alison Anderson, and that Ms Anderson would be meeting with the applicant when she arrived at the school the following morning and she would be sent home and would not return to Riverstone Public School. (g) The following morning, Monday 11 December 2017, X went to the school. The applicant tried several times that morning to contact her by phone. At 7.46pm that evening the applicant left X a message on Facebook Messenger which said "Have been trying to call you. Guess you're busy. Wanted to say goodbye". At 8.14pm the applicant sent X another message which said "For fucks sake call me!!!!". (h) The following day, Tuesday 12 December 2017, the applicant sent X a further message advising that she had "got fired yesterday" and that she had "wanted to say goodbye to you and talk to you cause you always have words of wisdom. Not in a great place mentally right now". (i) Later that day, X contacted Detective Greenlees from the Sydney City Local Area Command and advised her of the attempts the applicant had been making to contact her. They had a discussion about the prospects of the applicant being criminally convicted. X made the decision that she did not want the criminal matter to proceed and on Monday 18 December 2017 she signed another Statement of a Witness retracting her previous statement. 1. X was subjected to rigorous cross-examination by Mr Hammond, solicitor for the applicant, which included the following exchanges in relation to Allegation 3: Q. I'd suggest to you, ma'am, that this incident is made up? A. It is not. Q. It didn't happen, did it? A. All of it happened. All of it is real. All of it is the truth. Q. And you made this up? A. None of it is a lie. All of this-- Q. It's a vicious lie, isn't it? A. It's all true. Q. And then you make this statement to the police, don't you? A. Yes. Q. And I think I read in your affidavit somewhere and you say you talked to the police, you wanted to pursue the matter to start with criminally, is that right? A. (No verbal reply) Q. Is that right? A. I wanted to report it, yes. Q. You gave your statement on 11 December 2017, correct? A. Yes. ………………………………… Q. And I suggest to you, and I'll put this proposition to you and you can accept it or reject it, I'm saying that effectively you've made these allegations up against Mrs Dighton to try to get her kicked out of the school, being Riverstone Public School, what do you say about that? A. No I did not make them up. ………………………………… Q. You've made the allegations up of these sexual assaults against Mrs Dighton, haven't you? A. No. Q. Because it's just not believable, is it the events in the apartment. It's just absolute nonsense, isn't it? A. It's exactly what happened. Lana Andersen 1. On 14 March 2018, Ms Andersen returned a telephone call to Ms Walker, the EPAC Investigator. In that call, Ms Andersen recalled the events of 9 and 10 December 2017 at the Pyrmont apartment after the cruise. 2. Ms Andersen stated that the applicant kept steering the conversation around to "sexual things, threesomes – she was having a laugh – asking 'Who's had a threesome? Who's gone down on a female? Who liked it?'". 3. According to Ms Andersen, X went to lay down on the lounge not long after they all got back to the apartment. The applicant was moving around the room and did go over to X calling her "Princess". Ms Andersen did not mention witnessing any physical contact between the applicant and X. 4. On 12 March 2019, Ms Andersen was interviewed over the telephone by Ms Walker. She stated, in relation to the events that occurred at the Pyrmont apartment, she didn't think to pay attention to what the applicant was doing with X. 5. Ms Andersen said that she saw X in the apartment the following morning crying. When she saw X some days later, X told Ms Andersen that she had been assaulted by the applicant. 6. In response to correspondence dated 16 July 2018 from the applicant's solicitor at that time, Ms Sweeney, which set out the applicant's denial of Allegation 2, Ms Andersen stated in her affidavit which was tendered in these proceedings: In respect of Ms Sweeney's statement under Allegation Two, I recall seeing Wendy approaching X while she was on the lounge, Wendy leaned over to her and lied on top of her. I recall Wendy calling X "princess". Erin Plummer 1. Ms Plummer was interviewed by Ms Walker on 20 March 2019 by telephone. 2. Ms Plummer did not witness any interaction between the applicant and X in the Pyrmont apartment before she went to bed. 3. In her interview, Ms Plummer recounted what she was told by X the following morning. She stated: X told me that she was lying on the lounge, Wendy came over and kind of tried to hug her. X's not a real hugger so, you know, she tried to tell her to go away, but she grabbed her hand and touched her private genital area and when X pushed her away, she tried to push a hand right up into her vagina. And X then got angry at her and told her to get lost really. 1. In her affidavit, Ms Plummer stated: After we left the apartment, X, Belinda, Helen and I walked to Darling Harbour and sat to eat breakfast. X then explained what had happened. X said that "Wendy had straddled me on the lounge and started kissing me. I told Wendy to get off and said I am tired." She said that "About an hour later Wendy then came back and then started rubbing around my ribs area stating that I was just so cute. I said get off again." X said "Wendy then got her fingers and pushed them into my vagina." I was extremely shocked and couldn't believe what had happened. At first I was unsure about what had happened and asked X to clarify. She did and I couldn't believe what had happened and didn't know what to do. I asked X "what would you do if someone you didn't know had done that to you" or words to that effect and she answered she would go to the police. I told X that is what she needed to do. Both Helen and Belinda were offering support but I don't remember exactly what they said. Sharon Hankinson 1. Ms Hankinson went back to the Pyrmont apartment with the other staff members after the cruise and stayed there for the night. She did not witness any interactions between the applicant and X and had not heard about these incidents until a few weeks before she was contacted by Ms Walker on 24 May 2018. However, she did observe X to be quite upset in the apartment on the morning after the cruise. 2. Ms Hankinson took a number of photographs on her mobile phone in the apartment after the cruise. One photo, taken at 1.16am on Sunday 10 December 2017, is of Ms Plummer and Ms Weisback in separate beds, apparently asleep (Exhibit 15). Another, taken at 1.18am, is of X lying on the lounge with a blanket over her facing the wall with her back to the camera (Exhibit 14). Helen Nystazos 1. Ms Nystazos also went back to the Pyrmont apartment after the cruise. 2. On 14 March 2018, Ms Nystazos had a telephone conversation with Ms Walker. Ms Walker's file note of that conversation contained the following: 2.3 "When it happened, I was sitting on some stairs, X was to my right, she had agreed that night to sleep on the couch. While the girls were talking, I was arguing with my brother via text. X ran upstairs past me. I didn't think twice about it. She did have an annoyed face on. I didn't know until the next day when she disclosed. 2.4 I (Ms Walker) asked Ms Fenech (nee Zystazos) whether Ms Dighton was physically close to X: "I remember Wendy going over to her, but I didn't see anything." 2.5 "In the morning, we were all going to get a lift home. That's I found out what happened. Instead of going in Wendy's car, I left with X, Belinda, and Erin." 1. Ms Nystazos stated in her affidavit: 10. In addition to my case note, I wish to note: a. An explanation to paragraph 2.3 - At some point, in the morning I left with Erin, Belinda and X. We walked to Darling Harbour and I sat to have a cup of coffee with them. That is when X disclosed that an incident had occurred, she had stated that it happened while she was on the couch. I cannot recall the specifics of the conversation and the exact words said, but I understood from what X said that she was touched inappropriately by Wendy and that X was uncomfortable. Afterwards, I left X, Erin and Belinda to catch a ferry to meet my family at a family function. X, Erin and Belinda left in a different direction to make their way home. b. For the majority of the night, I was sitting on the stairs that led up to the bathrooms and bedrooms. I wanted to stay near the group, but as I was dealing with a personal issue I sat on the stairs to have some space. The table was located in front of me (my back was towards the bedrooms), and the lounge was to my right. From the stairs I could see X on the lounge. The lounge was in an L shape with the short end of the L being at the opposite end of where I was sitting. The back of the long side of the lounge was on the same side as the kitchen. c. I finished sending text messages to my brother at 10 December 2017 at 1:19am. After that I went upstairs to bed. I had planned the evening to share a bed with Belinda, but ended up sharing with Sharon as Belinda was with X. The room I slept in could comfortably fit 2 double beds in it. Belinda Weisback 1. On 13 March 2018, Ms Weisback had a telephone conversation with Ms Walker. Ms Walker's file note of that conversation included the following: 2.1 Ms Weisback replied: "I did see her lie on top of her. I thought it was harmless. It was at about midnight. Wendy was all over her. But I thought 'We're all adults; we're all friends.' This was on the L-shaped lounge. X was already asleep and I saw Wendy go and jump on her. Wendy was talking. It was quiet - I couldn't hear any talking. Wendy was in her face, lying all over her. It was a couple of minutes. It took so long, it was getting a bit weird. I then went upstairs to bed." 2.2 "At about 2am, I got woken up by X. She was shaking and crying. tried to get her to come lie down with me and calm down. She told me what had happened with Wendy. She was distraught." "Sharon, Helen, Karen, Lana - they were outside at that stage, on the balcony, having more drinks." "I got up and pretended that I couldn't sleep. I wouldn't leave her. I laid down next to her on the floor. Sharon [Karen?] came in and wanted to know what's going on and why X was crying. I said to X 'I'll be your bodyguard.' 1. Ms Weisback was interviewed by Ms Walker on 13 March 2019. During that interview the following exchanges took place: WALKER: When X was on the couch, where was Wendy? 115 WEISBACK: There were a couple outside and then I think she came in and I remember walking past the couch and I watched her go over to X who was lying down on the couch. Clearly, she was trying to sleep. I then saw Wendy go over to her and she just fell onto her kind of thing. She just lay on her. I heard - I watched her saying stuff to her but I couldn't hear what she was saying. ……………………………………… WALKER: Yeah. Did you see Wendy do anything particular with her arms? 140 WEISBACK: Yeah, they were just all over her. It looked like she was - like a mother looks like, she wanted to, say, kiss good night. It looked like that kind of behaviour. But I thought nothing of it. But it looked that whole type of - well, I think she was trying to kiss her or something. I can't really remember. Just that type of behaviour. She lay all over on top of her. I think she would be like she would be kissing her good night but not her daughter. It was that kind of behaviour, if that makes sense. WALKER: Where did it look like she was trying to plant a kiss on her? WEISBACK: On her face. …………………………………….. WALKER: What did she say? WEISBACK: Then she proceeded to tell me what was - what had happened. 185 WALKER: I know it's a difficult answer to give, but what did she say happened? WEISBACK: She said that Wendy woke her up and that Wendy had touched her inappropriately. I think she said she was kissing her all over the face, and she said something to her, but I can't remember what she said to her. It was inappropriate, in a sexist nature, and then she said she put her fingers in between her legs and pushed. So, it went right up her but she had the blanket between her and she felt sick and just wanted to go home. 1. In her affidavit, Ms Weisback stated: 9. I have read the case note and it is true and correct to the best of my knowledge and belief. 10. However, I would like to clarify the following statements made in the case note dated 13 March 2018: a. In relation to paragraph 2.1, since reading this case note, I have reviewed pictures on my phone from that night. There is an image on my phone taken at 12:30am near the Kebab Shop. Because of this, I now think we would have returned to the apartment between 12:40am-1:00am, rather than 'about midnight' as previously stated. b. In relation to paragraph 2.1, I remained at the table and continued eating chips and talking. People were still drinking. I did not drink in the apartment. My last drink was on the cruise. I did not go to bed, immediately after seeing what I described in paragraph 2.1. c. In relation to paragraph 2.2, when X came upstairs to see me, Erin was asleep in the bed next to mine. I thought that Sharon, Helen, Lana, Wendy and Karen were still drinking as I could still hear the fridge door open and close and the clinking of bottles. Also Helen and Lana were supposed to stay in our room and they weren't there at this stage. d. In relation to paragraph 2.2, it was Sharon who came in and wanted to know what's going on and why X was crying. …………………………………………. 13. I have read the transcript of the recorded interview and it is true and correct to the best of my knowledge and belief. 14. However, I would like to clarify the following statements made in my recorded interview on 13 March 2019: …………………………………… e. In lines 140-147, I would like to clarify that on reflection the interaction was not similar to a mother kissing a child goodnight. Rather it appeared that Wendy crawled on X in an annoying way to wake her up. Wendy was directly lying on top of X and I saw the motion of Wendy on top of X with her face over X's face in close proximity. This motion alone reminded me of a mother kissing a child goodnight. I could not see a kiss. Even if Wendy did kiss X, I would not have seen as from where I was sitting, I could see the back of Wendy's head. 1. Ms Weisback was cross-examined at some length about paragraph 14.e. of her affidavit as follows: Q. What you say in your affidavit at paragraph 14 subsection (e), all right, is, I'd suggest to you, what you say in terms of your affidavit in that paragraph there is different in nature to what you describe in your record of interview at lines 140 to 147 on page 5. Do you agree with that proposition? A. I agree we worded it differently but it's still what I saw. Q. Well, you say - in your affidavit you say "on reflection". Do you see that? They're your words? A. (No verbal reply) Q. "On reflection, the interaction was not similar to a mother kissing a child goodnight." Do you see that? A. In what number? Q. Bottom of your affidavit, paragraph 14 subsection (e), first-- A. Yeah. Q. --and second line there. You got that? A. Yep. Q. So, "I would like to clarify that, on reflection, the interaction was not," your words in your affidavit, "was not similar to a mother kissing a child goodnight." Do you agree those words appear there? A. I agree those words appear there, yes. Q. Yes, and that's what you said in your sworn affidavit. Correct? A. Yes. Q. And you say in your record of interview at page 5 - have you got that in front of you? A. Yes. Q. About line 140, "It looked like she was like a mother looks like she wanted to, say, kiss goodnight." Do you see that they're the words you've used there in your record of interview? Do you agree with that? A. Yes. Q. So you're saying your record of interview it looks like she's the mother like she wanted to say and kiss her goodnight. That's what you say in the record of interview? …………………………………. Q. Yeah, and you write "not" in your affidavit, don't you? You use the word "not" in your affidavit, don't you? A. (No verbal reply) Q. "Not similar to a mother kissing a child goodnight". Do you see the difference? A. I kind of see the difference-- Q. Yeah. A. --to reword myself because-- Q. Right, and what did you reflect on to shift? COMMISSIONER: Just before you move off that, Mr Hammond, I think in fairness the witness' attention ought to be drawn to the rest of subpara (e), what appears over the page. HAMMOND: Yes. Yes, I hear what you say, Commissioner. All right. Q. Do you see at the very bottom of that page on (e), subsection (e): "Wendy was directly lying on top of X and I saw the motion," and you go over the page, "of Wendy on top of X with her face over X's face in close proximity"? Do you see that? A. Yes. Q. Then you say, "This motion alone reminded me of a mother kissing a child goodnight." Do you see that? A. Yes. Q. Then you say, "I could not see a kiss"? A. Yes. Q. So you never saw a kiss, is that right? A. Not from where I was-- Q. That's in your affidavit? A. --no. Q. A hundred per cent on that? A. (No verbal reply) Q. Is that right? That's what you say. "I could not see a kiss," do you agree with that? In your affidavit. Have you got that? A. Yes. Q. Then in your record of interview you were asked, and I have to say, and this is no criticism of you but you were asked this leading question, again, if you look at page 5 of your record of interview at about line 147 you were asked this, "Where did it look like she was trying to plant a kiss on her?" Do you see that? A. Yes. Q. And you say, "On her face." That's your answer, isn't it? A. Yes. Q. So you say in your record of interview in response to that leading question that, effectively, you saw Mrs Dighton trying to plant a kiss on X's face. That's what you've answered there. Is that how you've answered that question? A. Yes. Q. Yeah, all right. So you'd agree in your record of interview you say you saw Ms Dighton trying to kiss X, Correct? ……………………………….. Q. Trying to plant a - yeah, trying to plant a kiss? A. Trying to plant a kiss. Q. Right. A. I didn't say she did and-- Q. Well, she-- A. --from the position where I was sitting I could not see. Q. Right. Was she puckering up, was she, to kiss her? A. I could not see. Q. But you see then in your record of - sorry, in your affidavit you don't say anything about seeing Mrs Dighton trying to plant a kiss or any of that nature. You don't say anything about that in your record of interview, do you? Sorry, in your affidavit, do you? A. In which paragraph? Q. Well, you won't find it anywhere in the affidavit, will you? There's nothing in your affidavit to say that you saw Mrs Dighton either kissing or trying to plant a kiss on X. Do you agree with that proposition? A. I'm not sure what you're trying to— Q. All right. Well, in the affidavit that you've got in front of you, that's the document that you came into the witness box with? A. Mm hm. Q. That's to your right on the table. Not the folder, the other one? A. I said in my statement that she was all over her. So-- Q. I'm not asking you about that. Okay? Just listen to the question, all right? If you look at the affidavit, that's the document on your right? A. Mm hm. Q. That's the one. There's nothing in there, is there, to say that you saw X being kissed by Mrs Dighton? Do you agree with that? A. Can I just read it? Q. Yep. A. I still did say in the section (e) under 14 though in my affidavit. Q. When you say that, do you rely on the bit that says, at the bottom of that page where (e) starts off: "Wendy was directly lying on top of X and I saw the motion of Wendy on top of X with her face over X's face in close proximity"? Is that what you rely on when you say that that's where you say it? A. Yes, and the fact that it's on my recorded interview on the phone previously. Jane Thorpe 1. In relation to Allegations 2 and 3, Ms Thorpe's findings document contained the following; Allegation 2 (a) and (b) X's evidence is that a group of female staff had booked an apartment at Pyrmont and went back there after the cruise. A number of the women stayed in the living room drinking and eating. The alleged victim, X was tired and lay down on the couch in the living room because that was the spot she had been allocated to sleep. There were more people staying in the apartment than available beds. The evidence of X and several of the female witnesses was that X had not been drinking heavily and was not drunk. Further, several witnesses provided corroborating evidence that X was not a big drinker. Ms Dighton, via her legal representative, denied straddling and kissing the neck and cheek of X when X was lying on the couch and simply admitted to going over and ruffling her hair and then leaving. X's evidence was that she was dozing and was about to fall asleep when Ms Dighton came over and straddled her and then started kissing her neck and cheek. Her evidence was detailed. She maintained this version of events to the police and the Department and told one colleague about the incident that night and several others the following morning. Ms Weisback gave evidence that she observed Ms Dighton to go over to the couch and lie all over X and it looked like Ms Dighton was trying to kiss X's face. Despite Ms Dighton's denial, I am satisfied there is sufficient probative evidence to sustain both particulars of the allegation. Again, while it may be argued that Ms Dighton had a few drinks and was in high spirits, the contact was unwanted and amounts to misconduct. Allegation 3 (a)-(c) This allegation is the most serious as X's evidence is that later in the evening Ms Dighton returned to where X was asleep on the couch and effectively indecently assaulted her by rubbing her hand down X's side and then touching her buttocks and inserting her fingers into her vagina from behind. X's evidence is she kicked out and made it clear she was not happy about the contact and Ms Dighton then moved off and returned to the group. Ms Dighton's representative denies the allegation advising that it was a fabrication and questioning how it could have occurred in the circumstances of so many people being in the apartment. X's evidence is that it did occur while other people were in the living room. At this stage it appears on the evidence that at least one other person had gone to bed upstairs and the others were sitting around the table and/or out on the balcony. There is evidence from a number of the witnesses present that Ms Dighton started a sexualised conversation about threesomes and going down on women. There was also evidence that Ms Dighton did go back over to X, who was sleeping on the couch. There is evidence of X later texting her husband and one of the other teachers who had gone to bed. There is evidence from Ms Weisback that X then came up to the bedroom in which Ms Weisback was sleeping, very upset and wanting to go home, and Ms Weisback accompanied her downstairs and swapped with the other teacher who was going to share the couch and X then told her what Ms Dighton had allegedly done to her and Ms Weisback stayed with her for the rest of the night. Other teachers observed X to be distressed and crying. X retold what had occurred at breakfast the next morning to several of the teachers and met with the principal that day and also recounted what had occurred to her. She later made the statement to police. I can find no reason for X to fabricate this allegation. She did not have a poor relationship with Ms Dighton and in fact Ms Dighton tried to contact X by leaving several messages on the following Monday, after the school had terminated Ms Dighton's contract. X's genuine distress was clear to a number of the witnesses. I have formed the view that despite Ms Dighton's denial, there is sufficient probative evidence to sustain the allegation of misconduct. 1. For the reasons set out below, I have found it unnecessary to canvass the evidence relating to Allegation 4. Determination Allegation 1 1. Despite the applicant's denial, I find this allegation, as modified in the EPAC investigation report, proven to the required standard (at [7] above). 2. I accept the evidence of Y that the applicant approached him on the dance floor of the cruise boat and grabbed him by the buttocks and pulled him into her and was grinding on him with her waist pressed against his waist at the front. 3. Under cross-examination, Y did not accept the proposition that the applicant's contact with him could have been unintentional. There is no basis for concluding that Y made up this allegation. 4. Further, the incident was witnessed by Ms Kriketos. I place no significance on her description of the applicant grabbing Y's hips, as opposed to his buttocks, and pulling him on to her, given the proximity of those parts of the human anatomy. 5. It follows that I reject the applicant's assertion to the effect that she did not, at any time, intentionally touch Y. 6. The applicant's conduct in grabbing Y and pulling him to her and grinding on him waist to waist constituted misconduct. Allegations 2 and 3 1. I find both of these allegations proven to the required standard. 2. In relation to Allegation 2, the applicant's evidence that she simply touched X around her hair and said good night is contradicted by a number of other witnesses. 3. X, at paragraph 6 of her affidavit (at [38] above) states that the applicant "straddled her legs and arms over the top of my body" and kissed her face on the cheek and neck continuously. She was unshaken under cross-examination. 4. Ms Andersen stated in her affidavit that she heard the applicant call X "princess" and saw the applicant "leaned over to her and lied on top of her" (at [47] above). 5. This incident was also witnessed by Ms Weisback. Her evidence was that the applicant "was directly lying on top of X… with her face over X's face in close proximity" (at [59] above). Under cross-examination, Ms Weisback described how the applicant appeared to be kissing, or attempting to kiss, X (at [60] above). 6. Having observed the manner in which the applicant and these three witnesses gave their evidence in the proceedings, I accept the evidence of X, Ms Andersen and Ms Weisback. I reject the applicant's denial of Allegation 2. Her conduct in relation to this allegation constituted misconduct. 7. Apart from the applicant and X, there were no other witnesses to the incident that led to Allegation 3. The applicant has denied that the incident occurred and has alleged that X has made up this incident to try and get the applicant "kicked out of the school". I reject this proposition. 8. Having observed X in the witness box under intense cross-examination, I formed the opinion that she was a witness of credit and that she gave truthful evidence in relation to this allegation. 9. X told Ms Weisback what had happened to her shortly after the incident and told Ms Nystazos and Ms Plummer the following morning. I believe that what she told these ladies, and later put in her police statement, was the truth. The fact that X later retracted her police statement does not, in my opinion, diminish the credibility of her account of the incident. 10. The applicant places reliance on the timing of the photographs taken by Ms Hankinson and the two text messages which X sent after this incident occurred and the time Ms Nystazos said she went to bed after she saw X go past her up the stairs on which Ms Nystazos was sitting. 11. The photograph taken by Ms Hankinson which shows Ms Weisback asleep in bed was taken at 1.16am (Exhibit 15). I conclude that X had not gone up the stairs and woken Ms Weisback by this time. 12. The photograph of X lying on the lounge alone was taken by Ms Hankinson at 1.18am (Exhibit 14). The evidence of X is not sufficiently precise as to timing to form a conclusion as to whether the incident with the applicant happened shortly before or shortly after this photograph was taken. However, at 1.22am X sent a text message to Ms Plummer and at 1.23am she sent a text message to her husband. X's evidence, which I accept as the truth, was that both of these text messages were sent after the incident with the applicant and before she went upstairs to Ms Weisback. 13. In her original police statement, X stated that, after the incident, she "laid there for about 10 mins in confusion and shock" before she sent the text messages. However, in her affidavit, X stated that, to the best of her recollection "it felt like I was lying there for around 10 minutes". I conclude from this that X may have been lying on the lounge after the incident until she sent the text messages for a considerably shorter time than ten minutes. 14. Ms Nystazos told Ms Walker that X ran up the stairs past her and had "an annoyed face on". In her affidavit and under cross-examination, Ms Nystazos stated that she sent a text message to her brother at 1.19am and then went up the stairs to bed. 15. It is my conclusion that Ms Nystazos did not go to bed immediately after sending the text message to her brother at 1.19am, but stayed seated on the stairs for some minutes after that time during which time X went upstairs to Ms Weisback. 16. On the assumption that the times recorded for Ms Hankinson's photographs and X's and Ms Nystazos' text messages are correct, I have come to that conclusion for a number of reasons. 17. Firstly, I accept that Ms Nystazos was still sitting on the steps when she saw X go up the stairs which was after, probably immediately after, X sent the text message to her husband at 1.23am. 18. Secondly, Ms Weisback was asleep in bed at 1.16am, which was only three minutes before Ms Nystazos sent the text message to her brother. 19. Thirdly, Ms Nystazos did not go to bed until Ms Weisback got out of the bed and went downstairs with X. It is, therefore, probable that Ms Nystazos remained sitting on the stairs for four to five minutes, or thereabouts, after she sent the text message to her brother at 1.19am. 20. In his final written submissions on behalf of the applicant, Mr Hammond criticised the respondent for not providing to the applicant or to Ms Thorpe the photographs taken by Ms Hankinson which are referred to at [53] above as well as a further photograph of the group in the apartment elevator at 5.41pm before the cruise, which shows X with a bottle with drink in it in her hand (Exhibit 16). I reject this criticism. There is no evidence that anybody within the Department, apart from Ms Hankinson, was aware of the existence of these photographs prior to 8 August 2019, which was the date on which Ms Hankinson swore her affidavit which included reference to two of the photographs at paragraph 17. 21. Allegation 3 is the most serious of the four misconduct allegations against the applicant. The applicant's conduct that formed the basis of this allegation, involving, as it did, digital penetration of X's vagina, albeit through a blanket and some clothing, constituted a gross violation of X's body. This misconduct alone was sufficiently serious to justify the termination of the applicant's employment. Taken together with Allegations 1 and 2, which I have found proven, it is my determination that the termination of the applicant's employment was neither harsh, unreasonable nor unjust. Allegation 4 1. The applicant admits to being naked in front of her work colleagues in the apartment on the morning of Sunday 10 December 2017 but denies that this constituted misconduct. Whilst some of those present have expressed dismay at the applicant's display of nudity, it does not appear that any of them voiced any objection to the applicant. 2. In her findings document, Ms Thorpe stated: Ms Dighton admits to briefly appearing naked in front of her colleagues the following morning. The evidence of four of the staff members is that Ms Dighton wandered downstairs naked for a period of time with a towel over her arm and then came out of the shower again, naked with her towel around her hair on that occasion and stood in the doorway and chatted to someone. The witnesses gave evidence that Ms Dighton's conduct made them uncomfortable and was confronting. No-one corroborated that Ms Dighton made any comment about letting her know if they felt uncomfortable. There is sufficient probative evidence to sustain the allegation of misconduct. 1. It is debatable whether or not such conduct on the part of the applicant constituted misconduct. Given my findings with respect to the other three allegations, I find it unnecessary to express any concluded view on the matter. However, at the very least, such behaviour on the part of the applicant displayed a lack of respect for what many would regard as appropriate boundaries between herself and others which is entirely consistent with her conduct that formed the basis of each of the other three allegations. Order 1. I order that the unfair dismissal application of Wendy Dighton be dismissed. AMENDMENTS: 1. Pursuant to Orders made by Commissioner Murphy on 7 February 2020, the judgment delivered on 9 January 2020 has been amended. 2. Attention is drawn to the following orders which were also made by Commissioner Murphy on 7 February 2020: 1. Pursuant to sub-ss. 164A(1)(b) and (3) of the Industrial Relations Act 1996, the publication or broadcast of the version of the reasons for decision in Dighton v Secretary, New South Wales Department of Education [2019] NSWIRComm 1092 issued on 9 January 2020 ("Original Judgment") be permanently removed from the Caselaw NSW website. 2. .. 3. Pursuant to sub-ss. 164A(1)(b) and (3) of the Industrial Relations Act 1996 that the publication or broadcast of any report of appeal proceedings in matter no. IRC 109352/2019 otherwise than in the manner and form consistent with the Amended Judgment be prohibited. 4. That the Amended Judgment bear a note indicating that the original Judgment has been amended and drawing attention to the non-publication Orders in respect of the Original Judgment. 5. Pursuant to sub-ss. 164A(1)(b) and (3) of the Industrial Relations Act 1996, that the publication or broadcast of the Original Judgment, to the extent it differs from the Amended Judgment be prohibited. 6. … 7. Access to the Commission file in the matter of Dighton v Secretary, New South Wales Department of Education (File number 2019/00109352) is restricted such that the parties will be consulted by the Registrar to determine whether there is any objection before any person may be granted access. John Murphy Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2020