Boers and South Sydney Council [2003] NSWIRComm 105 (30 October 2003)

Last Updated: 10 November 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Boers and South Sydney Council [2003] NSWIRComm 105

FILE NUMBER(S): 4031

HEARING DATE(S): 03/03/2003, 04/03/2003, 05/03/2003, 06/03/2003, 07/03/2003, 24/03/2003, 30/04/2003, 19/05/2003, 05/09/2003

DECISION DATE: 30/10/2003

PARTIES:

APPLICANT

John Boers

RESPONDENT

South Sydney Council

JUDGMENT OF: Sams DP

LEGAL REPRESENTATIVES

APPLICANT

Mr A Tees, Solicitor

RESPONDENT

Ms E Brus of counsel

SOLICITORS

Ms R Sutton (Solicitor) Moray & Agnew

CASES CITED: Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385

Bankstown City Council v Paris (1999) 93 IR 209

Bigg & Anor v NSW Police Service (1998) 80 IR 434

Busways v Johnson (1994) 55 IR 255

Byrne & Anor v Australian Airlines (1995) 61 IR 32

Crown Employees Teachers in Schools and TAFE and Related Employees Salaries and Conditions Award [2002] NSWIRComm 144

D & R Commercial v Flood [2002] NSWIRComm 88

Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296

Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Bowman, and City of Sydney Council [2001] NSWIRComm 91

Franklins Ltd v Webb (1996) 72 IR 257

Hill v Department of Juvenile Justice (unreported, Sams DP, NSWIRComm 128, 27 July 2000)

John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (unreported, Sheppard J, Matter 259 of 1972, 14 September 1972)

Little v Commissioner of Police (2002) 112 IR 212

Metropolitan Meat Industries Board v Australian Meat Industry Employees' Union, New South Wales Branch (1973) 73 AR 231

Outboard World v Muir (1993) 51 IR 167

Paris and Bankstown City Council (unreported, McLeay C, IRC97/5426, 22 January 1999)

Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3 (1990) 35 IR 70

Shop, Distributive & Allied Employees' Association v Jewel Food Stores (1987) 22 IR 1

Standley and Electronics Boutique Pty Ltd (unreported, Sams DP, IRC98/4516, 18 March 1999)

Stonham v Speaker of Legislative Assembly [2003] NSWIRComm 30

Wang v Crestell Industries Pty Ltd (1997) 73 IR 454

Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273

Wilson v Department of Education and Training [2000] NSWIRComm 20

Youssef and Western Sydney Area Health Service [2002] NSWIRComm 8

LEGISLATION CITED: Industrial Relations Act 1996

Anti-Discrimination Act 1977

Local Government Act 1993

JUDGMENT:

- 114 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: SAMS DP

30 October 2003

Matter No IRC02/4031

JOHN BOERS AND SOUTH SYDNEY COUNCIL

Application by John Boers re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2003] NSWIRComm 105

1 This is an application, pursuant to s84 of the Industrial Relations Act 1996 (the 'Act'), filed by Mr John Boers (the 'applicant') seeking relief in respect to his alleged unfair dismissal by South Sydney Council (the 'Council'). The applicant had been employed as a town planner. He commenced employment with the Council in October 1997 and was dismissed for serious misconduct on 27 February 2002.

2 These proceedings have had a protracted and difficult history. Originally the applicant's Union, the Federated Municipal and Shire Council Employees' Union, New South Wales Division, filed a claim of alleged unfair dismissal on the applicant's behalf in matter IRC02/1614. That matter was later discontinued by the Union and a fresh application (the present application) was lodged on 11 July 2002.

3 The new matter was listed for directions and conciliation on 17 July 2002. Mr A Tees (Solicitor) now appeared for the applicant and Ms R Sutton (Solicitor) appeared for the Council. The Commission chaired private conferences with the parties. However, no settlement of the claim was able to be achieved. I made a finding of unsuccessful conciliation, pursuant to s87 of the Act, and set the matter for hearing commencing on 3 March 2003. Directions were issued for the filing and service of affidavit and other evidentiary material.

4 At the request of the Council, the matter was re-listed on 18 October due to a failure of the applicant to comply with the Commission's directions of 17 July. Mr Tees explained that he had made numerous attempts to contact the applicant, but he had been unable to do so and was considering withdrawing from the case. Ms E Brus of counsel (now appearing for the Council) submitted that unless the applicant filed his evidence within seven days, the application should be struck out. After new directions were issued the applicant's evidence was filed.

5 Prior to the arbitration, the Council filed two notices of motion. The first sought orders from the Commission that summonses for production and summonses to give evidence, filed by the applicant's solicitor on 25 February 2003, be set aside in whole. The second sought an order from the Commission that the applicant produce documents in accordance with the Council's summons to produce filed on 22 November 2002. An order for costs was also sought.

6 The notices of motion were listed for 28 February. Ms Brus complained that despite the Commission's earlier directions, the Council was now faced with summonses issued only a week before the arbitration. A number of persons were summonsed to give evidence. The Council had no idea what the nature or extent of their evidence would be. In any event, Ms Brus said the summonses were seriously flawed and were not issued in accordance with the Commission's Rules. For example, two of the summonsed persons were not even employees of Council but had been served at Council's address.

7 In reply, Mr Tees put that the applicant had limited financial resources and was suffering from an emotional and psychiatric disorder. It was for these reasons that the summonses had only recently been served.

8 The Commission adjourned finalising the notices of motion and directed the applicant to provide to the Commission and the Council an outline of the basis upon which the summonses were said to be relevant to the proceedings.

9 The notices of motion were subsequently dealt with on the first day of hearing. The applicant's personal file and a Council file relating to a development application ('DA') for 93 Crown Street, Darlinghurst were produced (the relevance of the latter will become evident later). All the summonses to give evidence served by the applicant on 25 February 2003 were set aside.

10 In response to the summons to produce served on the applicant, Mr Tees submitted that the applicant had produced everything he could produce, including his personal diary. Mr Tees said the applicant was open to cross examination on any matter the Council wished to explore.

Nature of the proceedings

11 It seems to me that the allegations raised by both parties broadly fall into four categories.

12 Firstly, the allegations identified by the Council in the applicant's notice of 'termination of employment' (Ex"2"), relating to his involvement with a DA for a brothel at 93 Crown Street associated with a Ms Julie Bates, a former employee of Council. This involvement was said to constitute a conflict of interest according to the Council's Code of Conduct and the Local Government Act 1993.

13 Secondly, allegations by the applicant that Council had failed to properly address his grievance concerning an offensive email circulated in his name on 12 September 2001 by an unknown person, which caused him emotional and psychological stress.

14 Thirdly, allegations by the applicant of homophobic harassment and discrimination by Council officers and the Union. These matters were said to form a backdrop to the Council's vendetta against the applicant. It is noted that the allegations against certain Council officers were the subject of formal complaint to the Anti-Discrimination Board (the 'ADB') on 18 December 2001. That matter has not yet been finalised.

15 Fourthly, the applicant's claim that he was denied natural justice and was not afforded a fair and reasonable opportunity to defend himself against the allegations made by the Council.

16 It is convenient, I think, to deal with each of these matters in the context of the totality of the evidence on each issue provided by the following witnesses. It is to be observed that not all of the witnesses gave evidence on the four issues:

MR JOHN BOERS (the applicant)

MS JULIE BATES former Sex Industry Liaison Officer (SILO) of South Sydney Council

The following witnesses were subpoenaed by the applicant:

MARK McLEAY Assistant Manager of Federated Municipal and Shire Council Employees' Union of Australia (New South Wales Division)

PETER GREGORY CHAFFE former Director of Organisational Development

The respondent relied on the evidence of the following witnesses:

JODIE CHRISTINE HARRIS former Area Manager

GRAHAME JOHN DEARSLEY former Director of Health,

Community Services and Libraries

ANDREW MICHAEL MILES Sex Industry Liaison Officer ('SILO')

GIOVANNI CIRILLO Manager, Building Services and

Planning Policy

JAMES ROBERT HARRISON former Director of Planning and

Building

WILLEM JAKOBUS VERSLUIS former Information Technology

Manager

PETER MACKLIN former Organisational Development

Officer

WILLIAM EBERHART Lands Information System Manager

NIGEL ALSDORF Land and Information System Officer

RONALD PETER WILCOXON Director of Public Works

ROBERT THORNTON Clerk, City Environment Planning

Department and Union delegate

JAMES RICHARD PARTRIDGE Industrial Manager

1. COUNCIL'S ALLEGATIONS OF CONFLICTS OF INTEREST

17 The applicant faced a second disciplinary inquiry on 24 February 2002 in which the Council's allegations against the applicant were as follows:

1. You refused to comply with a direction by the Statutory Planning Manager, Mr Giovanni Cirillo and Ms Jodie Harris, Area Planning Manager, that you were not to deal with any development applications associated with Ms Julie Bates or Urban Realists in the South Sydney City Council area.

2. You failed to disclose a conflict of interest as required by Council's Code of Conduct (5.2) and the Local Government Act (NSW) (Section 459).

3. You acted unreasonably and improperly contrary to Council's Code of Conduct (6.1(b) and 6.1(h)).

4. You failed to perform your duties efficiently in the delays you caused in the determination of the 93 Crown Street application.

5. It is alleged you have provided Mr Gibbons, without Council's permission, a copy of your personnel file. That file is Council's property, and should not have been provided to Mr Gibbons.

6. On 25 July 2001 you forwarded a minute to Mr James Harrison, Director of Planning and Building, requesting permission to attend Wagga Wagga in relation to your private consulting work. On 13 August 2001, the General Manager refused such permission and this was communicated to you by the then Director of Planning and Building, Mr James Harrison. It is alleged that despite this prohibition, you attended Wagga Wagga for the purpose of your private consultancy work.

18 The Council made no findings on allegations 4 and 5 and did not rely on them during the proceedings. That being so, it is unnecessary for the Commission to take these matters any further.

19 Annexed to this decision and marked Annexure A, B & C respectively are relevant extracts from the Council's Code of Conduct, Disciplinary and Counselling Policy and the Local Government Act.

20 Ms Jodie Harris was the applicant's direct supervisor. Ms Harris described the applicant's duties and said that at first she had found him to be happy at work. She believed he had performed his duties competently. However, around mid 2001, she had spoken to the applicant on a number of occasions about a deterioration in his performance. She said he appeared not to be focused, had started to arrive late for work and occasionally would disappear from his desk without notice.

21 Ms Harris was also concerned with the applicant's productivity in assessing DAs. She had found him to be disorganised and generally unwilling to take advice from specialist staff or responsibility for any backlog in processing applications. When she raised these issues with him, the applicant would deny any difficulties. He would not provide any clear advice on how to resolve the issues. As a result, the applicant was only allocated small and less complex development applications. Despite these comments, Ms Harris believed she enjoyed a good relationship with the applicant up until the second disciplinary inquiry.

22 Ms Harris believed that a contributing factor to the applicant's lack of focus at work was his purchase of a property in July or August 2001. Ms Harris spoke to him about her concerns and they agreed his employment was more important now that he had invested in property. In cross examination, Ms Harris denied she was jealous about the applicant's purchase of the house. On the contrary, she was happy he had done so.

23 Ms Harris agreed there had been no formal performance appraisals of the applicant. She conceded that the Planning Department was extremely busy and there was a lot of pressure on all seven staff. However, she did not believe the applicant was busier than anyone else.

24 Ms Harris recalled that in late January/February 2002, Council received a complaint concerning a delay in the processing of a DA for 93 Crown Street, which had been lodged in April 2001 and which was being processed by the applicant. Ms Harris had asked the applicant for a summary of the reasons for the delay.

25 During further inquiries, Ms Harris became aware that Ms Bates had been employed to prepare a Plan of Management for 93 Crown Street. Ms Harris recalled that the applicant had been working for Ms Bates in Wagga Wagga in the previous year, after asking approval to do so. At the time, he had advised Council that he was not involved in any development application with which Ms Bates was associated. Ms Harris now believed the applicant's conduct to be a conflict of interest and a blatant disregard for a management directive. This was because the applicant had undertaken consultancy work for Ms Bates on a development application for an adult bookshop in Wagga Wagga, despite being directed not to. Ms Harris said there was a potential for a conflict of interest, whether outside consultancy work was paid or not.

26 Ms Harris said a conflict of interest might involve strengthening a friendship or business partnership. However, she had no knowledge of whether Ms Bates made any payments to the applicant.

27 Ms Harris denied the applicant's claim that she had given him permission to assist Ms Bates in Wagga Wagga. While she said she didn't have a problem with his request, approval was still necessary from the General Manager. She had assumed the applicant had obtained the approval when he told her he was going to Wagga Wagga. Ms Harris denied that the applicant had been "set up".

28 Ms Harris hadn't known of Ms Bates' involvement in 93 Crown Street when the applicant had asked her about Wagga Wagga. Moreover, had she known of Ms Bates' involvement, she would never have instructed the applicant to continue to work on the file.

29 It was Ms Harris' belief that the applicant knew of Ms Bates' involvement in 93 Crown Street as early as May or June 2001 when the SILO Andrew Miles prepared the following file note (the 'file note'):

Friday 15 June 2001

12.00pm

T/call from Peter, applicant for above premises request site inspection. Appointment made.

12.30pm

T/call from Julie Bates stating that she represents the owners of the premises and that Peter is no longer the operator of the premises. Advised her of above and said I would call Peter to confirm status.

12.45pm

T/call to Peter. He said that he still was the applicant and that Ms Bates was trying to 'get her hands on the business'.

3.00pm

T/call to Julie Bates advising her that we would need a letter from the owner of the premises detailing their change in support for the DA. She said she would provide that to Council on 18 June 2001.

30 The file note had two dates on it - 15 June 2001 and 21 May 2001. Ms Harris assumed the two dates on the file note related to the site inspection or the date the note was created. Mr Miles had told Ms Harris he had given the file note to the applicant around May or June 2001. Ms Harris said a copy of the note was given to her at the time of the second disciplinary inquiry by Andrew Miles. She had not seen it before because it had not been placed on the file.

31 Ms Harris said that on 18 February 2002, the applicant was informed that he was to be the subject of a disciplinary inquiry and suspended on pay until the inquiry on 24 February 2002. Mr Grahame Dearsley conducted the inquiry as he was not involved in either the first disciplinary inquiry or the ADB allegations. The inquiry was taped and a transcript made.

32 Ms Harris referred to an email sent to her by the applicant on 31 January 2002 in which he had traced a history of the application. He said at point 2:

15 June 2001 applicant appeared to have changed to a 'Peter' (SILO file note dated 15 June 2001).

33 She said that during the inquiry the applicant had said he hadn't seen the file note. When shown the email of 31 January, the applicant acknowledged he had seen it. Ms Harris believed the applicant deliberately ignored the file note because he and Ms Bates were friends and he wanted to continue working on the DA with which she was involved.

34 Ms Harris did not know if the applicant had read the file note correctly or properly digested it at the time. However, the point was that he had first denied its existence, then admitted he had seen it. When asked about her understanding of the file note, Ms Harris said she believed that Ms Bates had an association with the DA and had claimed to be the applicant. She agreed there was no follow up letter confirming who was the applicant for the DA.

35 Ms Harris had seen the Plan of Management prepared by Ms Bates before she had seen the SILO file note. She denied that it was her responsibility or that she was negligent, as the applicant's supervisor, for the applicant not raising Ms Bates' involvement.

36 Ms Harris believed that the applicant behaved corruptly in the context of the Local Government Act. While the matter had been automatically referred to the Independent Commission Against Corruption (ICAC), nothing had eventuated.

37 Mr Giovanni Cirillo was acting Director of the Planning and Building Department at the relevant time and had managed twenty-one employees. He has since left the Council to work at the Sydney City Council. Mr Cirillo's evidence was that he communicated with all of the planners on a regular basis, although Ms Harris had day to day responsibility for managing the planners.

38 Mr Cirillo said he became concerned with the applicant's general lack of productivity and inability to manage his workload. Mr Cirillo said the problems included poor analysis of applications, factual errors, numerous unexplained absences, poor productivity and consistently less work than his peers. As a result, the applicant was given easier work. Mr Cirillo denied ever wanting to get rid of the applicant because of these issues. He said it was Ms Harris' responsibility to provide ongoing performance appraisals. She had brought these performance issues to Mr Cirillo's attention on many occasions during 2001.

39 Mr Cirillo accepted there was pressure in the Planning Department and the work was busy and demanding. There was some 1,400 development applications a year handled by twenty planners. This required a high level of personal organisation. Mr Cirillo did not believe 93 Crown Street was a particularly complex application - despite Ms Harris describing it as "problematic". It was the process which became problematic. He said the problem was with the assessing officer, not the application. The application was fairly simple, as it was an extension of existing usage. Approval could be given under delegation for such a DA.

40 Mr Cirillo believed the applicant's conflict of interest arose when he and Ms Harris had discovered that Ms Bates had prepared the Plan of Management for 93 Crown Street. The applicant had a known friendship with Ms Bates and it would have been inappropriate for him to deal with any application made by, or involving Ms Bates. Mr Cirillo had expressly instructed the applicant, some months earlier, not to do any work or process any DAs which involved Ms Bates or her company, Urban Realists. The applicant had agreed to this. Mr Cirillo believed it to be a lawful instruction. Mr Cirillo said the DA was lodged on 17 April 2001 and by 15 June the applicant would have known Ms Bates was involved.

41 Mr Cirillo first viewed the file for 93 Crown Street on 8 February 2002. He recalled there were two Plans of Management. He believed the first was anonymous and the second, dated 8 February 2002, had Urban Realists and Ms Bates' name on the front cover.

42 Mr Cirillo said it would have been essential for the applicant as the assessing planner, to review the Plan of Management. The applicant could not have known what it was unless he had taken it out of the envelope.

43 Upon further investigation, it was revealed that the applicant's formal request to do private consulting work in Wagga Wagga for Ms Bates' company, Urban Realists, was declined by the General Manager and Director of Planning (Mr Harrison). While Mr Cirillo personally had no objections to the work to be performed in Wagga Wagga, he was overruled by senior officers. The applicant was advised in writing not to do so. Mr Cirillo said it was quite clear, in his view, that the applicant acted completely against the direct instructions of management.

44 Mr Cirillo had raised the matter with the Acting General Manager and it was agreed to hold a formal disciplinary inquiry. Mr Cirillo excluded himself from chairing the inquiry because of the outstanding ADB complaint. Mr Dearsley was nominated to conduct the inquiry.

45 During the inquiry, Mr Cirillo said that the applicant refuted the allegations of a conflict of interest. However, Mr Dearsley found that the applicant had a non pecuniary interest involving Ms Bates and had clearly acted contrary to instructions concerning work involving Ms Bates in Wagga Wagga.

46 In re-examination, Mr Cirillo was shown a register of gifts kept by Council in which an employee is required to declare a conflict of interest. The register is referred to in the Code of Conduct. Management decides if the gift can be kept or returned. Mr Cirillo had himself received a gift of a bottle of champagne which had been left anonymously at the front desk. It was recorded in the register.

47 Mr Cirillo denied that the second disciplinary inquiry had anything to do with hostility or ill will between them. He had not been "determined to get Mr Boers" nor had he sought to victimise him.

48 Mr Cirillo admitted that his relationship with the applicant had not been a happy one. He referred to a heated exchange with the applicant some time before the first disciplinary inquiry, concerning the applicant's request for annual leave. Mr Cirillo said the applicant was upset because he wanted to take leave in short amounts with short notice, whereas Mr Cirillo preferred longer breaks to maximise efficiency. Mr Cirillo had refused the applicant's request. As a result, a number of meetings were held. Mr Cirillo denied telling the applicant in one meeting to "get out of my office". Prior to this time, Mr Cirillo said his relationship with the applicant was cordial and professional.

49 Mr Cirillo was asked about another incident in which he may have threatened to sue the applicant. He had been upset by something defamatory the applicant had said; although he couldn't remember the details of the conversation.

50 Mr Cirillo recalled another occasion in 1999 after the big Sydney hail storm when the applicant was away from work for a couple of weeks without explanation. The applicant had said he was caring for his sick mother and he was sorry for any misunderstanding. Mr Cirillo had counselled him at the time and given him a verbal warning.

51 Mr Cirillo gave evidence that he had known Ms Bates during her employment with the Council. He described the relationship as professional. Mr Cirillo had one occasion to speak to Ms Bates about idle chatter with the applicant in the office.

52 Mr Cirillo said he first became aware of the 15 June 2001 file note at the disciplinary inquiry. He described it as odd that the file note had been removed from the file. However, he had no evidence of how this had happened. Mr Cirillo believed that one of the two dates on the file note was a mistake.

53 When he first saw the file note, Mr Cirillo said the first thing he noticed was Ms Bates' involvement. While it did not show Ms Bates as the applicant, it did indicate she had an involvement as the author of the Plan of Management. Indeed, Ms Bates believed she was involved and represented the owners of the brothel. Her involvement should have caused "alarm bells" to ring for the applicant.

54 Mr Cirillo referred to emails discovered in the applicant's computer, after his dismissal, concerning a dinner appointment in November 2001 with a Mr Scarlis. The applicant had been processing a DA that Mr Scarlis had lodged with Council. Mr Cirillo said that while this matter was not pursued, it nevertheless demonstrated an inability on the applicant's part to separate his work duties from personal relationships with DA applicants. It gave rise to concern about his professionalism and understanding of the Code of Conduct. Mr Cirillo said this matter might raise a perception of a conflict of interest which would be contrary to the Code of Conduct. Mr Cirillo believed a meal with an applicant for a DA should also be included in the register.

55 Mr Cirillo conceded that Ms Harris had reviewed all the relevant documents and concluded that nothing was amiss. In any event the matter was not pursued because the applicant had already been dismissed.

56 Mr James Harrison was previously the Director of Planning and Building. He ceased employment with the Council in October 2001. It was Mr Harrison who considered the applicant's request on 25 July 2001 to assist Julie Bates in Wagga Wagga. Mr Harrison replied on 10 August 2001 in the following terms:

I have received the attached request from John Boers.

On face value preparing such planning documentation for a development application to Wagga Wagga Council would comply with Council's guidelines. However, the work is to be done for Julie Bates. Ms Bates has been known to contract this Council regarding Sex Industry Premises in South Sydney. Condition 7(d)(4) of the code of Conduct for outside work is therefor not complied with. In these circumstances I would have to recommend that under Section 353(3) of the Act you prohibit John Boers from engaging in the work.

57 Mr Harrison's office and the applicant's office were little more than ten feet apart. Mr Harrison said they had enjoyed a working relationship in which he described the applicant's work as "solid". While staff appraisals were conducted annually, Mr Harrison could not recollect any particular appraisals of the applicant. On one occasion when the applicant sought more complex work, Mr Harrison had raised his request with Mr Cirillo. Mr Cirillo had said he didn't have confidence that the applicant could deal with complex development matters. Mr Harrison had suggested that this was an issue to work through with on the job training.

58 Mr Grahame Dearsley was a Director of the Council (he has since retired). He conducted the second disciplinary inquiry on 26 February 2002. Mr Dearsley said he was asked to conduct the inquiry as an independent person as he was not named in the discrimination complaint lodged by the applicant against other Council officers.

59 Attached to Mr Dearsley's affidavit were the following documents:

- the Council's Counselling and Disciplinary Policy and Procedure;

- the notification dated 18 February 2002 to the applicant of the disciplinary inquiry;

- the transcript of the inquiry on 26 February 2002 and exhibits tendered at the inquiry;

- a minute paper dated 27 February 2002 recommending the applicant's dismissal.

60 Mr Dearsley gave evidence that the applicant had asked to be represented by a solicitor at the disciplinary inquiry. This request had been refused as Council's policy (see Annexure B) allows for representation by a Union or a support person, but not a solicitor. Mr Dearsley said he regarded the inquiry as fair and open.

61 Mr Dearsley was asked about his relationship with Mr Cirillo. He said while he was not a friend of Mr Cirillo's, the relationship had been proper and cordial. Mr Dearsley had not been aware of any ill will between Mr Cirillo and the applicant.

62 Mr Andrew Miles had worked for the Council for over two years. More recently, he has been employed as the Sex Industry Liaison Officer (SILO). He had known the applicant since 1999 and worked with him on applications involving sex industry businesses. He described the relationship as friendly and professional. Mr Miles was not aware of anyone making inquiries about the applicant that might have cast the applicant in a "bad light".

63 Mr Miles claimed he first met Ms Bates in mid 2000 when she was Council's casual SILO and he was with the Sex Workers' Outreach Project. They later became competitors for the full time SILO position. He said there had been no tension between them and, at the time, he had wished her luck. He had not been surprised when he got the job, because he was confident of his ability to perform the work.

64 Mr Miles recounted his involvement in mid 2001 with 93 Crown Street and in particular the generation of the file note of 15 June 2001 (see para 29). He explained how it was that two dates appeared on the file note. The note had been created from a computer template. At the time, he had not deleted the date of 21 May for the actual date of 15 June. He said it was a simple mistake.

65 Mr Miles said the file note recorded conversations he had with two people both of whom had claimed to be the applicant for 93 Crown Street - one was Ms Bates. He had regarded it as important to create a record of the conversations. He informed Ms Bates of what Council required if there was a change of applicant for the development. Mr Miles said he took the note to the applicant on the same day (15 June 2001) and asked him to place it on the file. He recalled the applicant was sitting at his desk when he placed the note on his desk. He could not recall the amount of paperwork on the applicant's desk at the time. Mr Miles had not discussed the note with the applicant at the time, or at any subsequent time. Mr Miles did not know how the original signed file note came to be found back on the file. He said he had given the original to the applicant.

66 Mr Miles said that at the time he created the file note he had not been concerned with Ms Bates' relationship with the applicant and had not known of her involvement with 93 Crown Street. Mr Miles did not believe that this was a "messy" DA. He said it was a fairly straight forward development application which was able to be dealt with under the Council's sex industry policy. The only point of contention was the name of the applicant.

67 Mr Miles recalled that around December 2001 there was some pressure concerning the delay in approving the DA for 93 Crown Street. Phone calls had been made to the Mayor's office about delays in processing the application. However, he was not under pressure, as his role in the process was complete at this point. He described the pressures as no more than were usual for a professional Council officer. He remembered that he thought the process of approval was slow, but couldn't recall if he had made any inquiries as to why. Mr Miles believed there was more than one Plan of Management for the application.

68 In February 2002, when Ms Harris asked him about the DA, Mr Miles had asked if a copy of the file note was on the file. She said there wasn't, and he re-issued a copy of the note. As it was obviously unsigned, it could not have been the original.

69 Mr James Partridge gave evidence that an independent investigator, Mr Gary Cox, had conducted an investigation into the Wagga Wagga and 93 Crown Street incidents. He said this wasn't unusual, as Council didn't always have the resources to undertake such an investigation.

70 Mr Partridge said that during the adjournment of the second disciplinary inquiry, he had advised Mr Dearsley of the options available under the Council's policy. Mr Dearsley had made the decision on the basis of all the relevant information he had before him.

71 Mr Partridge believed the applicant had breached the Code of Conduct and it was a serious matter, particularly for a Council planner. Mr Partridge understood the applicant believed he had done nothing wrong because he hadn't been paid by Ms Bates. However, as an experienced planner, he would have known of his obligations under the Code of Conduct. Mr Partridge said he didn't know whether Ms Bates was the applicant for 93 Crown Street. However, he believed she most certainly was involved in the DA.

Applicant's response to the allegations of conflicts of interest

72 The applicant believed that he was not prevented from going to Wagga Wagga in relation to private consultancy work. He said he went on his day off to assist a friend, free of charge. He had never been paid for it. He had provided similar advice to other friends. The applicant believed that he was entitled to do whatever, or see whoever he chose, in his private time. It was no business of the Council.

73 However, the applicant confirmed that after a suggestion from Ms Harris, he had written to Mr Harrison on 25 July 2001 seeking permission to go to Wagga Wagga. The permission was refused on 10 August. The applicant maintained that the Director's memo was a refusal to permit him to engage in paid consultancy work. He argued that, as he had not been paid, he had not refused a lawful direction and/or was not in breach of the Council's Code of Conduct or the Local Government Act.

74 The applicant acknowledged that he had read the Code of Conduct. He had concluded as a lay person, that the difference between a pecuniary and non pecuniary interest was unclear. Therefore, as he had no concerns about the Code, he didn't seek further clarification. Moreover, he believed there was no non-pecuniary conflict of interest because of the distance from Wagga Wagga to South Sydney. Although he had used the expression "I have as yet received no payment for this work", he had not anticipated any payment. However, he conceded that these words implied a possibility of payment.

75 The applicant was asked why he said in the disciplinary inquiry that he could produce all his bank records to show he received no payment from Ms Bates, but had not done so in answer to a subpoena in these proceedings. He told the Commission that he was willing to provide the Court with his bank account and password. He said he had not produced tax returns for the years 2001/2002 because they had not been lodged. He could not provide mobile phone records for the relevant period, as he had thrown the bills out.

76 In any event, the applicant maintained that Ms Bates and/or Urban Realists was not the applicant on any development application he had been processing. The applicant's evidence was that he had "scanned" through his files and he was quite certain that Ms Bates was not an applicant or "connected with any of my development applications".

77 The applicant accepted he had responsibility for the DA for the brothel at 93 Crown Street. He said it was Mr Miles' role to provide specialist advice on building and development applications relating to the sex industry. The development application for 93 Crown Street was one such application. The DA had sought an enlargement of the premises.

78 The applicant agreed that Mr Miles had prepared a file note dated 15 June 2001 relating to phone calls he had from Ms Bates concerning 93 Crown Street. However, this file note was not on the file. The applicant believed that there were two explanations for this - either he had neglected to put it there as he was very busy, or it was "manufactured" for the inquiry. The applicant observed that the unsigned file note was dated 21 May and referred to phone conversations on 15 June. Thus, the conversations were recorded after the file note had been written.

79 The applicant claimed he had not seen the file note until his second disciplinary inquiry and was taken by surprise when shown it. When asked why this was not what he had said at the inquiry, the applicant explained that he had been bombarded with questions, he was tired, anxious and confused. In addition, he questioned the accuracy of the transcript of the inquiry.

80 It was the applicant's evidence that even if he had seen the file note, there was no conflict of interest because he received no favour, reward or payment from Ms Bates and did not expect to.

81 The applicant accepted that since the first DA had been lodged in 2000 and Ms Bates was the Council's Sex Industry Liaison Officer at the time, he knew she had some involvement with 93 Crown Street. At one point in his evidence he said he had no idea about whether Ms Bates had any involvement.

82 The applicant was shown two Plans of Management for 93 Crown Street - the first dated April 2000 and a second dated 8 February 2002. He said that in respect to the first Plan of Management, he had contacted the then applicant, John Hicks, to inform him that it would need revision in line with what Mr Miles had suggested. The latter Plan had been prepared in consultation with Ms Bates, through her company, Urban Realists.

83 The applicant explained that he had not noticed her name on the Plan when it was handed in, as the DA had to be processed very quickly. He had been very busy and was under a lot of pressure. He simply opened the envelope, confirmed it was an amended Plan of Management for 93 Crown Street and handed it directly to Andrew Miles. At the time he did not know Ms Bates was involved.

84 In further evidence the applicant said that if he had seen Ms Bates' name, he would have mentioned it to his manager Ms Harris. In any event, the applicant did not think it was likely Ms Bates would be doing any work in South Sydney. The applicant recalled that the DA had been around for a long time and had involved a change of ownership and four changes of applicant. He said it was a "very messy" application.

Applicant's supporting evidence

85 Julie Louise Bates gave evidence on behalf of the applicant. She described her occupation as a health and planning consultant to the sex industry and an employee of the Bobby Goldsmith Foundation. Ms Bates started a business known as Urban Realists in early 2001. The business provides planning, health, safety and security advice to persons applying for development consent to operate sex industry businesses. The applicant had helped her in one such development for a sex shop in Wagga Wagga.

86 Ms Bates had commenced employment as the Council's first Sex Industry Liaison Officer in April 2000. When the position became permanent in November, Ms Bates applied for the job. However she was unsuccessful. She appealed the decision through the Council's processes, but was again unsuccessful.

87 The role of the SILO was to implement the Council's sex industry policy; a policy which had been developed by the applicant. She said she had relied on the applicant's advice and knowledge and found him to be a "very useful colleague". They would sometimes have a coffee or dinner together.

88 Ms Bates believed that Mr Cirillo did not want her to be associated in any way with the applicant. She had learnt about this from a Mr Rowan Connors. Mr Connors had suggested to her, that if she was serious about being a contender for the SILO position, she should cease to be associated with the applicant. Mr Connors hadn't explained why. She said this information had shocked her, as Mr Cirillo had never spoken directly to her about the matter. Ms Bates claimed she later heard it was because the applicant was not a favoured person in the Planning Department.

89 Ms Bates gave evidence that she was retained to give advice about the Wagga Wagga application in April 2001. On one occasion she had discussed the matter with the applicant when they were having dinner. She said she had asked for the applicant's help because of the difficulties with the project and her own lack of planning qualifications. There was never any intention that he would be paid by her, or the applicant for the DA. Moreover, the applicant had never asked for any payment. The applicant went to Wagga Wagga twice in September 2001. Ms Bates did not go herself. Ms Bates agreed that when the applicant appeared before Wagga Wagga Council he was recorded in the minutes as doing so for her company, Urban Realists. They had a debrief when he returned from Wagga Wagga.

90 Ms Bates gave evidence of her involvement with 93 Crown Street. She said her first contact with the DA was in June/July 2000 while she was employed as the Council's SILO. She and the applicant worked on the DA and had visited the site together. She became involved again with 93 Crown Street in January 2001 as a partner in the brothel. She described herself as "a spy in the house of love". Ms Bates recalled telling Mr Miles over the phone that new people would be operating the brothel and a new development process would be undertaken. This became the first application lodged in April 2001.

91 Ms Bates wrote a third Plan of Management for the brothel which she said better reflected the way the business should be operated. In oral evidence, she said she had not put her name on the document because she was concerned there was ill will towards her at Council. However, when shown the Plan dated 8 February 2002, Ms Bates agreed she must have done so. At this time, she was not a part owner or operator. She was purely a consultant for the applicant, Ms Paula Hicks. Ms Bates said she only received $200 for her work on the Plan. She said she was angry and upset that she wasn't paid more for her work.

92 Ms Bates was shown Mr Miles' file note of 15 June 2001. She could not recall who "Peter" was - possibly the tenant. The owner was having difficulties with the tenant and at the time she was representing the owner, Mr Tony Ziza. She denied that she was trying "to get her hands on the business". Ms Bates said she did not discuss the DA, nor have any contact at all with the applicant, because she believed Mr Miles had carriage of the matter. However Ms Bates agreed, in cross examination, that it was quite possible, when she and the applicant had coffee or dinner after she left the employ of Council, that the subject of 93 Crown Street may have been discussed.

93 Mr Mark McLeay gave evidence about his knowledge of the Wagga Wagga incident. He believed that, as the applicant hadn't received payment and did it in his own time, he had done nothing wrong. He had put this view to Council. He further believed that the action taken against the applicant was harsh and unconscionable. Council officers had already made up their minds before the inquiry.

94 Mr McLeay understood that Council believed the applicant was involved in some corrupt behaviour because of his relationship with a former employee (Ms Bates) who had a DA lodged with Council. The applicant had told him that Ms Bates had provided some advice as a consultant, but was not the applicant for the DA. The applicant had told him that he knew Ms Bates was involved when the Plan of Management was received. Mr McLeay said he had put to Council that the first time the applicant became aware of Ms Bates' involvement was when he had received the Plan of Management at the desk at the One Stop Shop.

95 Mr McLeay understood that Mr Partridge had believed that Ms Bates was the applicant. There appeared to be confusion as to the two different views of Ms Bates' involvement.

96 Mr McLeay gave evidence that he was aware of Council's conflict of interest register. He said his Union had no problem with it. However, in this case he believed the applicant had made a distinction between receiving payment and not receiving payment and therefore didn't believe it was necessary to record the matter in the register.

97 Mr McLeay believed that Mr Harrison's memo of 10 August 2001 which prohibited the applicant from going to Wagga Wagga, was ambiguous. However, he agreed the final sentence of the memo was clear. He concluded that even if there had been a technical breach of the Code of Conduct, a counselling would have been a sufficient penalty.

Applicant's further evidence

98 Upon an application by Mr Tees, the applicant was recalled to give further evidence about Mr Miles' file note and the incident concerning Mr Scarlis.

99 The applicant said that, notwithstanding his own note to Ms Harris on 31 January 2002, he hadn't recognised the significance of the file note until the second disciplinary inquiry. He claimed to have overlooked the file note in circumstances where he was stressed and under pressure to get the DA prepared before a deadline set by Council. He observed that at the time he was assessing the application, the Mayor had been threatened and so had he about the delays in approving the DA.

100 The applicant didn't believe the file note was particularly relevant or important because it didn't say anything about Ms Bates being the applicant. He had believed Mr John Hicks had been the applicant and a Mr Paul Kellaway had been the original applicant. He said that at all times there was confusion as to who the applicant was.

101 Asked about his own note to Ms Harris, the applicant agreed it existed, but he hadn't remembered it. At the time, he didn't know that Ms Bates had written the consultant's report. He found this out the day after the application had been approved. He explained that had he known beforehand, he would have asked Ms Harris for further advice.

102 The applicant said he expressed surprise by the existence of the file note and his own note to Ms Harris during his earlier evidence because he had found it too stressful to read her affidavit. He had been suffering dietary problems, depression and anxiety and felt he was being harassed. He had consulted his own GP, Dr McKenzie and a psychiatrist, Dr Lucire. He said the reasons his previous answers appeared inaccurate, were because he had a habit of trying to "contextualise" everything and be very "literal".

103 The applicant was asked about the inconsistency in his evidence with that of Mr McLeay concerning when the applicant knew of Ms Bates' involvement with the Plan of Management. He couldn't explain why Mr McLeay's recollection of events was different to his own. The applicant said that when the Plan was received at Council's One Stop Shop, he removed it from the envelope and took it upstairs to Mr Miles. He did not know if it was date stamped. In any event, it wasn't his practice to date stamp documents. As he had been expecting the Plan of Management, he said he only looked at the top of the front page and he hadn't noticed Ms Bates' name further down the page.

104 The applicant said that when Ms Harris had asked him to go through the application and find out why it had taken so long to process, he went through the documents to find out who the applicant was and how many applicants there had been. He agreed his memo to her mentioned the 15 June 2001 file note and Ms Bates' involvement. He explained that he had not recognised his memo of 31 January a month later at the disciplinary inquiry.

105 The applicant refused to acknowledge that the reference to Ms Bates in the file note meant she had an involvement in 93 Crown Street. He said it was not contrary to his assurance to Mr Harrison, that Ms Bates or her company were not connected, in any way, to any DA he was handling.

106 As to his relationship with Mr Scarlis, the applicant said Mr Scarlis was the applicant for a DA at 274 Moore Park Road. The DA had been referred to the applicant by his area manager. There was nothing particularly unusual about it and he had handled it in the usual way. The applicant said the DA had some heritage issues and he had asked Mr Scarlis to redesign the façade and submit a heritage impact statement.

107 The applicant said that during the approval process he had frequent contact with Mr Scarlis. While Mr Scarlis had appeared anxious to have the application processed, he was always very polite and restrained. The DA approval had eventually been given by Ms Harris just before Christmas 2001 under delegated authority.

108 The applicant explained that because it was close to the Christmas break, it was unlikely that Mr Scarlis would have the approval documents for some weeks. The applicant had decided to hand deliver the documents to him over a coffee. The applicant conceded that this was his idea, even though Mr Scarlis might have been able to pick up the documents or have them collected from Council.

109 The applicant stressed that he gave no special favours to Mr Scarlis - only good customer service. He had received no reward or favour from him. Moreover, there was nothing untoward with the DA. In fact, it was he who required an extensive redesign. He said, in the end, it was a very good application. The applicant said he learnt subsequently that Mr Scarlis' neighbour was upset by the development and had complained about his own competency. After an investigation of the process, the development was found to be fine.

110 The applicant said he had not invited Mr Scarlis to dinner at the Mexican restaurant. Mr Scarlis had thanked him for his work on the DA and it was Mr Scarlis who suggested they have dinner. The applicant thought it was okay. The applicant and his partner paid for their own dinner. He said "we simply had dinner together, that's all it was". In any event, by this time, Mr Scarlis was an ex applicant as his application had already been approved.

111 The applicant conceded that the restaurant where he and Mr Scarlis had dinner was within Council's area. He reiterated that he saw nothing wrong with having dinner with an ex-applicant and saw no conflict of interest. The applicant did not see anything improper in having dinner with an applicant whose DA had already been approved. The applicant agreed that the dinner had not been recorded in the Council's conflict of interest register. He hadn't believed it was necessary to do so. However, he accepted in hindsight that perhaps he should have noted it in the register.

112 During his evidence the applicant was shown the emails of Mr Cirillo and Ms Harris about the Scarlis matter. The applicant said no one had put anything to him about the matter at the time of his dismissal, or since.

113 The applicant maintained that he was not always thorough and was not someone who wrote everything down. He said that while he had a fairly general understanding of the Code of Conduct, he had received no training about it.

114 On another matter, the applicant said it was widely known that he had authored Council's sex industry policy and he was constantly asked about it. He had put a journalist from his partner's newspaper "The Hub" in touch with Ms Bates about an article on a brothel. Ms Bates was manager of a brothel and he believed she would be a good person to talk to.

2. ALLEGATIONS OF INACTION OVER THE 'OFFENSIVE EMAIL'

115 The applicant was very concerned about an email sent at 11.16 am on 12 September 2001 in his name to Mr Nick Horiatopoulos: The email was in these terms;

Do you like older Dutch men? Knowing a few Greek men are like I assume the answer is YES!!!

JB

116 The applicant said this was the second occasion an email had been sent in his name without his permission or knowledge. He had deleted the first one as he regarded it as a "one off." Management had not been informed of the first email until after the second one - some six weeks later.

117 After the second email, the applicant had sent a broadcast email at 12.34pm to all Council staff and councillors in the following terms:

To whoever has access to my email folder and is sending offensive messages

Just do me a favour and CUT IT OUT.

ITS NOT FUNNY, AND IS BEGINNING TO REALLY ANNOY ME.

To whoever receives funny messages from John Boers, they did not originate from me.

Please let me know if you have receved(sic) anything, and better still if you know who it is.

Thank you,

John Boers,

Planning and Building

118 The applicant said he sent the broadcast email, because the offensive email was very specific and it appeared somebody was "out to get" him. The applicant said he was very annoyed and upset about the offensive email and wanted something done about it. He described it as highly obscene and a slur on his character and reputation. He called it a "lurid sexual remark".

119 Notwithstanding that the original email had been sent to only one person, he believed the best way to protect himself was to inform all staff that he had not sent such a memo. While he understood that he should not have sent a general broadcast, he believed his professional reputation and character were more important than embarrassment for Council officers.

120 Two minutes after his broadcast email, a senior officer of Council's IT department, Mr Versluis emailed him back and made certain suggestions about "this serious matter". The applicant did not accept that this was a proper response from management. He claimed to have been unaware that management had undertaken an investigation into the matter. He said he was told by someone in IT that "they didn't have a clue what to do, where to look or what they were doing".

121 The applicant said that Mr Chaffe sent an email to him suggesting he change his password and that he discuss with his Director how the matter might be resolved.

122 The next day, Mr Versluis advised of a number of developments. The applicant had by now changed his password. Unsuccessful attempts had been made to trace the source of the email. The applicant was told to immediately advise of any further email sent in his name and lock his computer when he was away from his desk.

123 Despite this, the applicant believed that very little was done to find out who sent the email and prevent it from happening in the future. He was not convinced it was impossible to find the source of the email. The applicant did not know if the email had been removed from the system. He believed management was in an exercise of "damage control" and was blaming him for sending the email. He claimed it was part of a "culture" in the Council to do nothing about the distribution of pornographic emails.

124 The applicant did not know what more Council could have done as he was not an IT expert. He suggested, however, that Council should have interviewed other employees. It hadn't done so.

125 During the proceedings, the applicant was questioned about an email he had sent about three months later concerning a caption competition for a photograph of a car parking attendant named Steve. The applicant had taken a photograph of Steve and asked for amusing captions from other employees. One caption had read:

Hey Rafi mate your new job as doorman at that brothel (in John Boers' neighbours house) sounds great but are your sure you meant to say their are no girls are available when they are just cause the client looks like Luke Jackson!

The applicant said when he showed the photo and caption to Steve, he thought it was amusing.

126 The applicant did not believe his complaint about the offensive email was at all similar to this incident - even though it was only three months later. He claimed he was just attempting to be humorous.

127 However, as a result of this incident, the applicant received a warning from Ms Harris, on 4 December, in these terms:

Dear John,

you have been warned on a number of occasions about the inappropriate use of email yet it has come to my attention that you have forwarded a photo of Steve around for a caption competition and then have consequently forwarded a photo with a caption forwarded by Christine making certain inferences about car park and council staff. I became aware of this by seeing it on the printer outside Giovanni Cirillo's office.

First of all the use of Council email for the purpose of a caption competition is totally unacceptable. Secondly, Christine's suggestion was not appropriate and then your further distribution of that caption to other staff is also unacceptable. This email may be considered discriminatory on a number of counts and, as you are aware, Council must take such matters seriously pursuant to its email protocol policy.

Council's evidence in response

128 Ms Harris said that, like all Council employees, she had received the applicant's broadcast email. When she had approached the applicant at the time he appeared "genuinely upset". The applicant had claimed that he had his suspicions about who had sent it, but could not prove it. Ms Harris regarded the offensive email as a serious breach of protocol and directed that the matter be investigated. After referral to the IT section for investigation, it could not be ascertained who sent the offensive email.

129 Shortly after, Ms Harris had cause to caution the applicant about an unrelated email he had sent which she regarded as in poor taste (see para 125). She said she had found his behaviour unusual in view of his own concerns about the offensive email.

130 Ms Harris said in the ensuing weeks, the applicant had numerous meetings with Directors of Council regarding the offensive email. In one meeting, Ms Harris had advised him that counselling services were available if he wished to utilise them. He was also asked to contribute to a review of the Council's email protocol. Action was also taken to "lock up" computers when left unattended.

131 Ms Harris deposed that the applicant became increasingly angry about his belief that Council was doing nothing about his complaint. She had asked him what more could be done. However, he would not elaborate.

132 Ms Harris said that on 9 October 2001 she observed the applicant "storming out" of the office area indicating he was angry at Council's inaction. He was leaving work to speak to the Anti-Discrimination Board.

133 About two hours later, Ms Harris received a phone call from an irate ratepayer, Mr Bill Georges, who had said the applicant had abused his tenant, Ms Vanos. It was claimed the applicant had sought to use his position at Council to acquire the keys needed for access to his own property. Ms Harris requested Mr Georges have Ms Vanos put the complaint in writing. Ms Harris reported the complaint to her manager, Mr Cirillo. He informed her not to discuss the matter with the applicant until further investigation. The complaint was faxed soon after. It was in these terms:

On Tuesday 9 October 2001 at 1:30 PM Mr (Chris) Boers came into my café at 269 Bourke Street, Darlinghurst looking for Bill Georges.

I told him he was not here. He said he wanted the key to the lane.

In answer, I passed on a message given to me by Bill (Mr) Georges that Mr Boers should contact Mr Georges' solicitor on this matter.

At that point Mr Boers aggressively attacked me (verbally) saying that this was his land and then threatened as he worked at South Sydney City Council that he would notify the Council about my air conditioning motor saying that he was unable to sleep at night. All this was said at a screaming level which I found to be unacceptable and totally inappropriate.

I tried to reason with Mr Boers saying that this was not my issue and that I was only passing on a message. He continued with the yelling and stormed out of my shop.

134 Ms Harris denied telling the applicant the complaint would go no further. She denied, "manufacturing" the complaint because of the applicant's email complaint. She did not encourage the ratepayer's complaint, but merely advised Mr Georges, in accordance with Council procedure, that the complaint should be in writing.

135 Mr Cirillo's evidence was that, while he was not directly involved with the email incident, he was informed that Mr Harrison was investigating the incident with the assistance of the IT Manager and the Director, Organisational Development. However, Mr Cirillo requested the applicant not to email the entire Council as there was an investigation taking place and it was not Council policy to broadcast email on personal matters.

136 It was Mr Harrison's evidence that, after he received the applicant's broadcast email, he immediately went to see him and asked why he had sent it. Mr Harrison was concerned that the applicant appeared anxious and upset. Mr Harrison advised the applicant to immediately report any further similar emails and not delete them. Mr Harrison said he spoke to the recipient of the email, Mr Horiatopoulos. Mr Horiatopoulos had brushed it off and accepted the applicant's explanation that he hadn't sent it.

137 Mr Harrison regarded the response from another employee, Nigel Alsdorf as inappropriate and unprofessional. Mr Versluis also believed Mr Alsdorf's email was unacceptable and offensive. Mr Harrison agreed with the applicant that he would seek an explanation from Mr Alsdorf through his manager, Mr Wilcoxon. Mr Harrison had drafted an email to Mr Wilcoxon and gave the applicant an opportunity to review it. In it, Mr Harrison requested that Mr Wilcoxon investigate the matter and obtain an apology from Mr Alsdorf. The applicant agreed the email was fine.

138 This matter was investigated by Mr Eberhart - Mr Alsdorfs' direct supervisor. Mr Eberhart prepared a written response. The applicant was not satisfied with the response. At this point, Mr Harrison involved Mr Peter Chaffe, Director of Organisational Development.

139 Mr Harrison said he became aware that the IT Department had tried and failed to trace the source of the offensive email. Mr Harrison agreed that he didn’t have the technical expertise to know if the source could be traced. He speculated that it was entirely possible that someone could have gone to the applicant's unattended workstation and sent the email from there. Mr Harrison wasn't aware of any monitoring of emails sent throughout the Council.

140 Mr Harrison said that the IT investigation did not occur two weeks after the incident. He had not been frustrated or annoyed by the process. On the contrary, he viewed the matter very seriously.

141 A meeting was subsequently held with himself, the applicant, Mr Chaffe and Mr Wilcoxon in early October 2001. The applicant did not feel the response was satisfactory and said that Council should have done more to trace the email. He felt he was entitled to more than the qualified apology from Mr Alsdorf. Mr Harrison recalled the applicant reserved the right to take the matter further. Management felt that there was little else that could be done because the source of the offensive email could not be established.

142 The applicant was also invited to review the Council's EEO policy to reinforce the message that discrimination on any basis was unacceptable. Mr Harrison had not known if the applicant responded to this invitation. Mr Harrison did not keep his own notes of any of the meetings.

143 Mr Harrison said that at no time did he ever suggest the applicant should have psychological counselling. Nor did he hear Mr Wilcoxon, Mr Chaffe or anyone else suggest such a thing. The applicant had not been victimised or discredited. Mr Harrison said there was no evidence to support the applicant's claims of discrimination or victimisation.

144 Mr Willem Versluis initiated the preliminary investigation in relation to the offensive email. Mr Versluis prepared a minute paper of his investigation for the Acting Director, Corporate Services. Mr Versluis said the investigation was complicated by the fact that the applicant had deleted the two emails from his desktop and had sent a broadcast email which had alerted everyone in Council. Obviously any person/s involved would go to ground. The applicant was also reluctant to say who the email was sent to. This wasn't known until the next day. Mr Versluis claimed he had a feeling the applicant was not being helpful to his investigation.

145 Mr Versluis' report concluded as follows:

The following table shows the actions along with the response times achieved by Information technology in this matter. I believe under the circumstances we did everything possible to determine the source of the emails. Once John broadcast the incident and deleted the emails the task of identifying the culprit was made extremely difficult. We are confident that the messages came from his own desktop. Since John has changed his passwords and kept these secret no further incidents have been reported.

146 Mr Versluis gave further details of the investigation. He said that within five minutes of the applicant's broadcast email, he had responded and within two hours a preliminary investigation had been completed. Over the next five days, further inquiries were conducted. A crisis meeting was held on the following Monday, 17 September.

147 Mr Versluis said the email audit log had detected that the offensive email had been sent from the applicant's computer. It could only have been sent by someone who knew the applicant's password. Mr Versluis had not known whether other people believed the applicant had sent the offensive email. No one on his own staff had suggested the applicant had sent the email.

148 Mr Versluis said he rarely received complaints about improper or offensive emails. However, when such a complaint was received, he took a proactive stance. Mr Versluis was not aware of any private investigation of this matter. Nor was he aware that the email became the subject of a discrimination complaint by the applicant to the ADB.

149 Mr Nigel Alsdorf had worked for Council for seven years. He had responded to the applicant's broadcast email on the spur of the moment with his own in the following terms:

It wasn't me it was the one armed man...

Maybe if you weren't such a goose you wouldn't have a problem!!!!!

150 Mr Alsdorf said that the applicant approached him and asked if he had sent the offensive email. Mr Alsdorf denied doing so and told the applicant the only way it could have been done. The applicant had replied that if he found out who had sent it, he would take legal action. Mr Alsdorf said the applicant's approach was confronting. However, Mr Alsdorf made no complaint about the applicant's visit to him. Mr Eberhart had later spoken to him about the email and he had apologised to Mr Wilcoxon.

151 In oral evidence, Mr Alsdorf said that he had no contact with the applicant before this incident. At the time, Mr Alsdorf did not know the applicant was homosexual, nor did he think he was. Mr Alsdorf claimed he had heard through the grapevine about a lease back vehicle driven by the applicant which had been trashed.

152 Mr William Eberhart was Mr Alsdorf's direct supervisor. He had worked for Council for twelve years and only knew the applicant by sight or had contact with him by phone. Mr Eberhart was also the Union delegate for the Local Government Engineers' Association.

153 After receiving the applicant's broadcast email, Mr Eberhart sent a return email. He told the applicant the only way someone could have accessed his email was if his PC was logged on and unlocked, or if someone knew his password. Mr Eberhart acknowledged he was a civil engineer and not an IT specialist, however he did have a general knowledge of computers.

154 On 14 September, Mr Eberhart became aware that Mr Alsdorf had sent an email in response to the applicant's broadcast email. Mr Eberhart gave Mr Alsdorf a verbal warning and told him not to respond to such emails or call people a "goose".

155 On 17 September, Mr Eberhart responded to Mr Harrison as to everything he knew about the incident. He said at paras 2, 5 and 6:

I first became aware that Nigel Alsdorf had sent a response, not from Nigel Alsdorf but after anther staff member within the area complained of John Boers' actions. It was reported to me that John Boers had approached Nigel Alsdorf at his workstation and allegedly, had loudly and aggressively accused Nigel of sending emails under John Boers' name and that John Boers had made threats of what he would do to Nigel Alsdorf if he found out that Nigel Alsdorf was the culprit. When I discussed the incident with Nigel Alsdorf, he simply dismissed the incident although other staff in the area confirmed the incident and the noise and the and the disruption John Boers had caused.

...

I was surprised by the foolish action by John Boers to email this message to everyone within Council, including all Councillors as this was just days after staff were instructed not to use the SSCC All mail address. I am amazed that John Boers would send that message to 600 staff rather than contacting Information Technology to seek a simple solution to his problem. An email message like this from John Boers was bound to draw responses of 'It wasn't me...'.

I was even more surprised at John Boers' further email message on 14 September 2001 to many members of Council's staff (but not all staff, unless they looked at the Bulletin Board) with the level of language and threats. While I do not envy John Boers' current position with emails sent under his name, I do not believe there is a need to involve all staff when all John Boers requires is a simple change of password that Information Technology should easily be able to supply.

Mr Eberhart later met Mr Wilcoxon and Mr Chaffe to discuss the matter. He believed that they were both taking the matter seriously.

156 Mr Peter Wilcoxon had a meeting with the applicant in early October 2001 concerning the offensive email. Mr Chaffe and Mr Harrison were also present. The applicant had wanted more rigorous action taken to find out who sent the email. Management agreed to review the EEO policy to make specific reference to homophobic behaviour in the workplace.

157 Mr Wilcoxon claimed that during the meeting, the applicant alleged that Mr Alsdorf had sent the offensive email and he wanted retribution against him. Mr Wilcoxon proposed that Mr Alsdorf's supervisor, Mr Eberhart, ask Mr Alsdorf for an explanation and counsel him if necessary. Mr Eberhart did so and prepared a memo.

158 The applicant then requested another meeting with him, Mr Chaffe and Mr Harrison. This meeting took place on 8 October. As the meeting progressed the applicant became more and more agitated. Mr Wilcoxon said that the applicant wanted to refute some of the assertions in Mr Eberhart's memo and requested an opportunity to meet Mr Eberhart. The meeting did not occur as Mr Eberhart was on leave at the time and the applicant did not pursue the matter when he returned.

159 Mr Partridge had been employed by Council as Industrial Manager since 1990. He first met the applicant when he was called to a meeting with Mr Wilcoxon on 20 December 2001. The applicant was there to discuss his complaints with Council. Mr Partridge said he wasn't aware of the details and wasn't concerned to find out. However, he gave the applicant some options, such as utilising the grievance procedure or discussing his concerns with the EEO Manager. He said the applicant was upset and didn't appear to be interested in what he was saying. Mr Partridge didn't believe the applicant was interested in listening to the logic of how to pursue a grievance.

160 Mr Partridge recalled that the applicant said he had no faith in the Council's management or procedures. Mr Partridge said the discussion ended abruptly. The applicant was very agitated and left the room slamming the door. Mr Wilcoxon appeared upset at the manner in which the meeting ended.

3. ALLEGATIONS OF HOMOPHOBIA AND DISCRIMINATION

161 After three meetings with three directors the applicant filed a complaint with the ADB on 18 December 2001. The ADB informed Council in writing on 16 January that the applicant alleged:

i. Two emails containing sexual advances to male work colleagues were sent from his work computer by an employee unknown. He says the emails amounted to harassment on the basis of his homosexuality. He states that this matter has not been satisfactorily resolved by South Sydney Council.

ii. That the way that South Sydney Council dealt with a complaint made against him by Ms Melissa Vanos from Joy Bellies Café was an example of harassment on the basis of homosexuality. He further alleges that the way the matter was dealt with also amounts to victimisation as a result of him complaining about the emails above.

He named Messrs Cirillo, Wilcoxon, Chaffe and Harrison as persons who had discriminated against him. He later added Messrs Partridge and Dearsley.

162 The applicant deposed that his first contact with the ADB was in October 2001. He had told Ms Harris he was doing so. In meetings with the Board in October and November two counsellors had suggested that he lodge a complaint because of Council's inaction over the offensive email and failure to include homophobic harassment in its EEO policy. He said the ADB's advice was strong and consistent.

163 He said he filed the complaint because of management indifference and inaction. He believed Council had blamed him for the entire email incident and Council officers had suggested that he needed psychological help.

164 The applicant further believed that the first disciplinary inquiry was a means of harassing him because he had already told management he was thinking of lodging a claim over Council's inaction over the offensive email.

165 The applicant deposed that he wanted three things from Council:

1) To know who sent the email,

2) the inclusion of homophobic harassment in Council's EEO policy; and

3) expanded training for older directors and managers about gay and lesbian issues.

However, in the settlement proposal referred to in the ADB letter of 16 January 2002 the applicant had proposed:

i. an opportunity to meet with Mr Bill Eberhart to clarify the incident that occurred between himself and Mr Nigel Alsdorf regarding the emails;

ii. that the ground of 'homosexuality' be included in South Sydney Council's harassment policies. Mr Boers feels that this is not currently included in the policies; and

iii. to request an independent review of the disciplinary procedure relating to the complaint from Mr Boers' neighbour.

In cross examination, the applicant agreed that Council couldn't find out who had sent the email. He also agreed that the AOB complaint was lodged, in part, as leverage with the Council over these issues.

166 The applicant confirmed that he had told the first disciplinary inquiry that he was under a lot of stress and his health was suffering. He alleged that Mr Chaffe and Mr Herft had suggested he seek psychological counselling. He regarded this as an overreaction to his complaint of homophobic harassment.

167 The medical evidence was that around this time (October/November 2001), the applicant had consulted his own General Practitioner, Dr Mackenzie who had prescribed anti-depressants and issued him with a WorkCover Certificate on 9 October 2001 (the day after his meeting with Messrs Wilcoxon, Chaffe and Harrison). The applicant had consulted with Dr Mackenzie throughout 2001/2002. Dr Mackenzie reported that, as at 24 February 2003, the applicant's health was restored and had been since June/July 2002.

168 On 17 January 2002, Mr Herft advised the applicant that Council had appointed a private investigator, Mr Patrick Jumeau, to investigate his discrimination complaint. However, the applicant said he first learnt of the private investigator after someone phoned him to make inquiries. He believed that the union delegate had been questioned by Mr Jumeau even before Mr Herft had informed him of the investigation.

169 The applicant said he had refused to co-operate because he wanted to know what the investigation was about and who was conducting it. On 21 January, Mr Herft wrote again to the applicant advising him that Mr Jumeau had complained about his refusal to co-operate. The applicant claimed no one in management would meet him to discuss the investigation. He believed that Mr Jumeau was engaged to find "dirt" on him.

Councils Evidence in Response

170 Ms Harris deposed to a conversation she had with the applicant prior to the first disciplinary inquiry. In this conversation, Ms Harris said that the applicant told her that in order to save his job he would be lodging a complaint of discrimination on the grounds of homosexuality. He believed he had no avenue to pursue his complaints in the Industrial Relations Commission. She expressed her "disgust" at the applicant's actions. The applicant had believed she was being "manipulated" by Mr Cirillo. Ms Harris emphatically rejected this suggestion.

171 Ms Harris deposed that the applicant's claim of being dismissed because of his sexuality was simply untrue. He was dismissed because of a breach of the Code of Conduct. Ms Harris said that South Sydney Council was not a homophobic workplace. It was most accepting of cultural and sexual diversity. She highlighted her own involvement with Council's float in the Sydney Gay and Lesbian Mardi Gras.

172 Ms Harris acknowledged that the relationship between Mr Cirillo and the applicant had not been a "happy one." Ms Harris did not know the reason for the poor relationship between them. She assumed they were just very different people.

173 Mr Richard Herft had been the Council's Equal Employment Opportunity Manager for five years. His role was to provide employees with an opportunity to raise issues for mediation, or other means of resolution, so as to ensure that discriminatory practises or unprofessional behaviour was excluded from the workplace.

174 Attached to Mr Herft's affidavit were the following Council documents:

The Employee Handbook

The Equal Employment Opportunity Policy

The Sexual Harassment Policy

The Email policy

The Employee Assistance Program.

175 Mr Herft was first made aware of the applicant's complaint to the ADB on 16 January 2002. Mr Herft was surprised he hadn't heard about the complaint before the letter arrived from the Anti-Discrimination Board. On the same day he received the complaint, Mr Herft initiated an investigation and instructed a private investigator to conduct a factual investigation and interview persons who might be involved or have knowledge of the matter.

176 Mr Herft said it had been his decision to appoint the private investigator. Mr Jumeau had previously investigated other Council matters involving sexual discrimination and harassment and his company had a good reputation. He had decided to appoint an investigator because the complaints were serious and a number of Council's directors had been named. Mr Herft believed he could not provide a comprehensive investigation on his own. Mr Herft had asked Mr Jumeau to expedite the investigation and move quickly to resolve the matter as soon as possible.

177 Mr Herft said that immediately after he rang Mr Jumeau he rang the applicant and told him Mr Jumeau would be contacting him shortly. Mr Herft said that the applicant would certainly have known about the investigator. On 17 January 2002 (the next day) Mr Herft advised the applicant in writing of the investigation and the name of the investigator, and that Mr Jumeau would be in contact with him shortly.

178 Mr Herft gave evidence that he did not know, and did not ask Mr Jumeau what type of questions he would be asking, as it wasn't his business. Mr Jumeau subsequently advised Mr Herft that the applicant would not co-operate with the investigation.

179 Mr Herft sent the applicant a letter on 21 January 2002 and met with him on 23 January. At this meeting the applicant said he refused to talk to anyone about the matter and expressed concern others were being asked personal questions about him. Mr Herft told the applicant it was in his interests to co-operate with the investigation. The applicant had told him to speak to his lawyer. Mr Herft said it was not usual practice to speak to a lawyer so early in the investigation. Mr Herft had offered the applicant a support person (including himself) to talk informally with the investigator.

180 The applicant sent various emails to Mr Herft complaining about the investigation and saying it was an invasion of his privacy. Mr Jumeau wrote to the applicant on 6 February 2002 asking him again to co-operate with the investigation. Mr Herft had no further contact with the applicant after 7 February 2002.

181 In further evidence, Mr Herft said that he had not taken any action in respect to the offensive email as he believed it was being handled by the Director of his department. He had not been invited to become involved and had made no contact with the applicant about the email. Had the applicant raised it with him he would have become involved. Mr Herft said he was disappointed that the applicant had not approached him or followed the grievance policy, particularly as the applicant had approached him in the past over his annual leave request.

182 Mr Herft said that no one had ever suggested to him that it was the applicant who sent the offensive email. Mr Herft was asked about whether he believed that it was the applicant who was being investigated. He suggested that this was a surprising claim considering the applicant had never contacted the investigator.

183 Mr Cirillo gave evidence that the applicant had raised no complaints about discrimination at the first disciplinary inquiry. Mr Cirillo emphasised that although he hadn't seen the ADB complaint against him, he had never victimised the applicant. Ms Harris had told Mr Cirillo that the applicant had told her his ADB complaint was made to defend his employment. It was not because of sexual harassment. Mr Cirillo maintained that the decision to hold a disciplinary inquiry had nothing to do with the applicant's sexual preference. The applicant's sexuality was not a matter which concerned him and it was not relevant to the inquiry. The inquiry concerned a complaint which had been made that the applicant had threatened a member of the public by improperly using his position at Council.

184 Mr Harrison also rejected the applicant's claim of homosexual victimisation and harassment. Mr Harrison said the Council was an equal opportunity employer and employed a number of gay and lesbian employees. He didn't believe the applicant was treated any differently to his colleagues because of his sexual preference. Mr Harrison had known the applicant was homosexual because of a parking fine matter in which the applicant's partner had used a Council vehicle.

185 Similarly, Mr Macklin maintained that, as far as he was concerned, the applicant's sexuality bore no relationship to the way the disciplinary inquiries were conducted, nor was it relevant to their outcomes.

186 The union delegate, Mr Thornton said that at no time during or after the first disciplinary inquiry, had the applicant said anything to him about being sexually harassed or discriminated against.

187 In meetings with the applicant in October 2001, Mr Wilcoxon said the applicant had raised concerns about Council's policies on mistreatment of homosexuals in the workplace. The applicant was assured that the issue was covered in the policy. Moreover, a Heads of Department meeting had specifically examined the email policy in respect to vilification of gay and lesbian staff.

188 Mr Wilcoxon rejected any suggestion that he, Mr Chaffe or Mr Harrison had suggested the applicant obtain psychological counselling. Mr Thornton also corroborated this view. What was suggested was that he access the Employee Assistance Program. Further, Mr Wilcoxon refuted any assertion that he considered the applicant had a mental problem. While there was reference to the applicant seeking medical attention in the letter to the ADB of 20 December 2001, that information had come from the applicant himself.

189 On 20 December, when Mr Wilcoxon was acting General Manager, the applicant sought a third meeting with him concerning the disciplinary proceedings taken against him. Mr Partridge had also attended this meeting. The applicant put it to Mr Wilcoxon that he would need to be convinced not to go to the ADB because he felt discriminated against. He had appeared to want to link the email incident in September to the first disciplinary inquiry.

190 Mr Wilcoxon said that Mr Partridge tried to explain the options to the applicant. However, the applicant kept cutting him off. The applicant then stormed out of the office, slamming the door and hitting a coffee table as he went out. As he left, he said he was going to the ADB as he had no faith in senior management.

191 That same day, Mr Wilcoxon received a phone call from a Ms Rachael Bickovsky from the ADB. She informed him that the applicant had been to see her. Ms Bickovsky had expressed concern that the applicant might be dismissed when the findings of the disciplinary inquiry were released later that day. Mr Wilcoxon gave Ms Bickovsky an undertaking that the recommendations of the disciplinary inquiry would be stayed pending the ADB's opportunity to consider the applicant's complaint of sexual discrimination. Both he and Mr Partridge believed this was appropriate and reasonable. Mr Partridge was asked to draft the letter to the ADB. The applicant was advised of this decision on the same day.

192 Mr Wilcoxon said that after a number of weeks had passed, he became concerned that he had not heard from the ADB. He rang the Board a number of times and was advised that it was having trouble contacting the applicant for a statement.

193 Mr Peter Chaffe said that although he had known of the applicant for five years, his first involvement with him was in respect to the discrimination allegation in late 2001. Mr Chaffe had given the approval of Mr Herft's request for the engagement of a private investigator in respect to the applicant's complaint to the ADB.

194 Mr Chaffe said he had not been aware of the offensive email until the applicant had sent his broadcast email. Mr Chaffe had been requested by Mr Harrison to assist in trying to resolve the situation and was involved in a number of meetings involving the applicant, Mr Wilcoxon and Mr Harrison. He hadn't kept notes of the meetings - and couldn't remember the exact detail of meetings held two years ago.

195 Mr Chaffe recalled the initial meeting with the applicant. He had wanted to know who had sent the email and had sought guarantees that it wouldn't happen again. The applicant had expressed his dissatisfaction with the outcome of the investigation.

196 Mr Chaffe confirmed that the Council had tried, but was unable to track the person who sent the email. Meetings with senior staff had been told to ensure Council's policies dealt with discrimination based on sexual preference. The Council's Gay and Lesbian Officer, Ms Matthews had been involved and the email policy was later updated.

197 Mr Chaffe agreed the email was offensive. It was the reason why he had advised staff to lock their computers when they were away from their desks. Mr Chaffe believed he had acted quickly to investigate the matter and ensure Council's policies were reviewed.

198 Mr Chaffe had expressed surprise that the matter was referred to the ADB. He believed Council was dealing with the matter appropriately. He couldn't understand why he had been cited as allegedly harassing the applicant. Once the applicant had filed the ADB complaint, Mr Chaffe was advised not to discuss the matter any further with him.

4. ALLEGATIONS OF PROCEDURAL UNFAIRNESS

199 The applicant's claim of having been denied procedural fairness included issues surrounding both the first and second disciplinary inquiries.

200 The applicant gave his version of the incident which led to the first disciplinary inquiry. The applicant explained that he left work on the morning of 9 October after the meeting with Mr Wilcoxon as he was unwell. He attended a property he was moving into in Palmer Lane, Darlinghurst. He said he needed access through a gate from the laneway. The café proprietor next door held the key to the gate. As there had been a dispute with the owner of the café, the owner, Mr Georges, had told the applicant and his solicitor to get the key from the café manager, Ms Vanos. When the applicant had asked her for the key, the discussion became heated.

201 The applicant acknowledged that he had mentioned to Ms Vanos that he worked for South Sydney Council. He conceded that Mr Georges and Ms Vanos already knew that he did. He said he told Ms Vanos that the cafe's twenty-four hour air conditioner was not Council compliant as it was too noisy and that he knew how to make an effective complaint because he worked for Council. He denied using his position to threaten Ms Vanos. The applicant agreed he had lost his temper, but said it was because he was stressed and anxious. In any event, he claimed the whole issue was a private domestic matter that had nothing to do with Council. He accused Ms Harris of encouraging Ms Vanos to put a complaint against him.

202 The applicant's evidence was that he regarded the first disciplinary inquiry as improper as he was denied his rights. The Vanos' complaint had been embellished for the inquiry. He believed that this had been the first occasion any town planner had been put through such a procedure. Moreover, he had been refused legal representation.

203 However, the applicant agreed that he was accompanied by the Union delegate, Mr Thornton, and Mr Thornton had made no complaint about the inquiry. The applicant claimed that Mr Thornton "had a long history of homophobic protest at South Sydney Council and that it was well known the MEU does not help gay and lesbian members". Because of this he believed that Mr Thornton was the worst possible person to attend the meeting with him. In cross examination the applicant accepted that he had not mentioned this claim in his statement or in his complaint to the ADB. He said however, he may lodge a discrimination complaint against the Union in the future.

204 The applicant believed he was entitled to three warnings in accordance with the usual disciplinary procedure. When he was shown the disciplinary procedure in respect to misconduct, he claimed that he was unaware that three warnings didn't apply to misconduct allegations. He said in any event, he was not guilty of misconduct and the Vanos complaint was a trumped up charge in order for him to qualify for the misconduct procedure.

205 The applicant agreed that as a result of the disciplinary inquiry, he was to be placed on a three month probationary period. He accepted that this action was frozen after his complaint to the ADB. He disagreed with the suggestion that his complaint was a "pre-emptive strike" before the disciplinary inquiry's outcome was made known that day.

206 The applicant also believed that, around this time, negative reports and reprimands began appearing on his personal file. One was a trivial matter, concerning his taking an extra annual leave day without permission. On the other hand, he claimed that two letters praising his work and professionalism were not on his file.

207 Mr McLeay had no involvement in the first disciplinary inquiry. However, the applicant had asked him to attend the second disciplinary inquiry, but he wasn't available. Nevertheless, Mr McLeay had spoken to Mr Partridge before the inquiry to find out what evidence the Council had against the applicant and where the case was heading. Mr McLeay had gained the impression that Council believed it had a strong case against the applicant. Mr McLeay had discussions with Council officers after the applicant's dismissal concerning damage to a vehicle and the applicant's entitlements. He found that Council was unwilling to negotiate, as they normally would. He believed Council's actions were harsh and described its approach as "gung ho".

208 Prior to the second disciplinary inquiry, Mr McLeay said he and the applicant had spoken on many occasions. The applicant had been upset with the questioning of his professional integrity. The applicant had told him that he was being treated differently because of his sexuality. It was the first time Mr McLeay was aware of a disciplinary inquiry in Council's Planning Department.

209 Mr McLeay acknowledged that his only information about what happened at the disciplinary inquiry came from what the applicant had told him and what Council officers had told him subsequently.

Council's evidence in response

210 Ms Harris deposed that a few days after the Vanos incident the applicant provided her with a medical certificate which indicated that he had been suffering from a "medical condition". He had told her about the confrontation with Ms Vanos and said he "lost control" and was "stressed out". Ms Harris had told him that Council was already aware of the incident. On 24 October 2001 the applicant provided a Workers Compensation Certificate which indicated that he was suffering from a psychological ailment.

211 On 7 December 2001, the applicant was sent a letter concerning the disciplinary inquiry. He was provided with the details of Ms Vanos' complaint and was asked to respond to the following specific allegations:

1 On 9 October you verbally abused an occupant of a premises within Council.

2 That you threatened and attempted to coerce this person into providing you with a key to the easement on a property that you own.

3 As a result of your actions in 1 and 2 you are guilty of a breach of Council's Code of Conduct in that you are required to treat members of the public with courtesy and respect and not act in a way which may cause any reasonable person any unwanted offence or embarrassment.

212 Ms Harris deposed that during the disciplinary inquiry the applicant admitted he had "lost control" and was "stressed out". Nevertheless, the inquiry found the applicant to be in breach of the Council's Code of Conduct. In view of his medical condition, Mr Cirillo recommended that he be placed on probation in order to review his performance. He was encouraged to seek medical advice and liaise with the Council's doctors. The applicant had said he would see his own doctor.

213 In cross examination, Ms Harris agreed the applicant was distressed and upset during the inquiry. She said Mr Cirillo had asked most of the questions. No record was taken of the conversation.

214 Mr Cirillo referred to the Vanos incident. After consulting with Ms Harris and the Organisational Development Department, he was advised that it may constitute a serious breach of the Council's Code of Conduct. As such it warranted a formal disciplinary inquiry. As the Acting Director of the Department, Mr Cirillo was the person required to chair the inquiry.

215 The applicant had informed Mr Cirillo that he would not attend the disciplinary inquiry without legal representation. Mr Cirillo emailed him that the inquiry would go ahead in his absence if he didn't attend.

216 Mr Cirillo said that during the inquiry the applicant admitted he had a problem controlling his temper. He had also provided medical support for his claim of being stressed. The applicant had said that the incident was a private matter that had nothing to do with Council. Mr Cirillo said he disagreed, as the applicant had referred to his position at Council in the exchange with Ms Vanos.

217 Mr Cirillo hadn't regarded it as a minor incident which warranted a reprimand or an apology to the resident. He had recommended a three month probationary period. However, the recommendation was not implemented. Mr Cirillo did not believe the inquiry was a "heavy handed" (response) "or over the top". At the time, Mr Cirillo claimed that he wasn't aware the applicant had communicated with the ADB over the email incident.

218 Mr Macklin had attended the first disciplinary inquiry. He said Mr Partridge had decided to hold the inquiry after conferring with Ms Harris, Mr Cirillo and himself. Mr Macklin claimed to be aware of two or three other inquiries which had been conducted in the Planning Department since 1997.

219 Mr Macklin said he had not been aware of any ill will towards the applicant from Mr Cirillo. Even if he had been, he said it wouldn't have altered the disciplinary procedure, as it was Mr Cirillo's duty to conduct the inquiry. In any event, neither the applicant or his union representative expressed any objection to Mr Cirillo's participation in the inquiry and no one else had expessed any difficulty with Mr Cirillo's involvement. He didn't believe Mr Cirillo would have been biased or unfair.

220 Prior to the inquiry, the applicant had sent emails to Mr Macklin in which he had raised questions about the inquiry. He had asked for details of the outcomes of other disciplinary inquiries. Mr Macklin had replied that as this information was confidential, the request was refused. The applicant also requested a solicitor to be present. This was also refused as it was not Council policy. However, the applicant was free to bring a support person or union official to the inquiry - which he did.

221 Mr Macklin said the inquiry had been conducted in accordance with Council's Disciplinary and Counselling Procedure. While Mr Macklin had kept notes of the inquiry, he didn't know where they might be now. During the inquiry Mr Macklin recalled that the applicant believed the issue with Ms Vanos was a civil matter which had nothing to do with Council. Mr Macklin had told him that it was a Council matter because he had used his position with Council to influence the outcome of an argument with a ratepayer.

222 Mr Macklin said that the applicant had acknowledged that the incident had occurred. However, he had explained that he was under a fair amount of stress and had been seeking medical treatment. He had related this to the email incident. Mr Macklin said he was not aware of this incident prior to the inquiry or that there were allegations of victimisation arising from it. In any event, the email incident was not the issue at the inquiry.

223 The inquiry found that the allegation had been proven and recommended the applicant be given a warning and a three month period of review. Mr Macklin stated that he was not involved in the decision and had no discussions with Mr Cirillo about the decision. However, Mr Macklin believed the decision was fair in the circumstances and had been surprised when it was not implemented.

224 Mr Harrison referred to his involvement in the Vanos incident which led to the first disciplinary inquiry. Mr Harrison had asked Ms Harris to follow up the complaint from Mr Georges. Ms Vanos had been requested to put her complaint in writing. This was a standard response to anyone who made an allegation against a Council officer.

225 Mr Harrison firmly believed the incident was a matter that had to be investigated. As he was soon to leave the Council, he had not conducted the inquiry. Mr Harrison could not speculate on what he would have done in the circumstances. Mr Harrison said that the applicant's behaviour would be inappropriate, even if he had only identified himself as an officer of Council. Notwithstanding that the applicant had been upset and suffering a medical condition, it was no excuse for using his position to make a threat to a ratepayer.

226 Mr Harrison denied that he had any grievance against the applicant. Mr Harrison had no knowledge of any problem with Mr Cirillo's attitude towards the applicant, nor had he observed any personal animosity between them. However, he knew Mr Cirillo didn't think the applicant's performance was very strong. While Mr Cirillo was the proper person to conduct the inquiry, had he known of any animosity, Mr Harrison would have counselled the parties to ensure it didn't get in the way of the inquiry.

227 Similarly, Mr Wilcoxon claimed he had no knowledge of any acrimony between Mr Cirillo and the applicant. No one told him about it and he had no reason to ask. The first he heard of it was when asked in the witness box.

228 Mr Partridge said he had no involvement in the first inquiry and said he gave no advice to anyone about it. While he later became aware of the allegations, he was not able to comment on the appropriateness or otherwise of the inquiry or the recommendations or whether Mr Cirillo should have been involved. However, Mr Partridge claimed he had no knowledge of any difficulties between the applicant and Mr Cirillo.

229 Mr Partridge was however, involved with the second disciplinary inquiry. As Industrial Manager, Mr Partridge had assisted in collecting the evidence, preparing the charges and arranging the hearing in accordance with Council's Disciplinary and Counselling Procedure. He had held discussions with other Council officers, principally Ms Harris, but had kept no notes of these discussions.

230 Mr Partridge said that during the inquiry the applicant had appeared calm and presented a written statement from himself and a statutory declaration from Ms Bates. Mr Partridge could not recall if the applicant mentioned that he was being discriminated against or that the inquiry was discriminatory. When the applicant said he hadn't received two days notice of the second letter of allegations, Mr Dearsley had offered to adjourn the inquiry. However, the applicant had wanted to proceed.

231 Mr Partridge expressed the view that he had not been concerned that the applicant had no union representation. This was because he had gained the impression the applicant didn't want the Union involved and in any event, the applicant was a very articulate person.

232 The Union delegate, Mr Thornton had attended the first disciplinary inquiry in place of the usual representative, Mr McLeay. He said that the applicant had taken issue with some of the words that had been allegedly said by him to Ms Vanos. The applicant had agreed that during his exchange with Ms Vanos, he had referred to his position at Council. However, the applicant had said he regretted it and claimed he had been stressed at the time.

233 Mr Thornton believed that while he had not known the applicant before the inquiry, had he known of the background to the inquiry, he would have taken the matter more seriously. He suggested that there may have been unwarranted pressure put on the applicant.

234 Nevertheless, Mr Thornton felt the disciplinary inquiry was conducted fairly and in accordance with Council's Disciplinary and Counselling procedure. He believed the applicant would probably have received a warning, and that would have been the end of it. Management had seemed to form the opinion that a warning would be given. He observed that Council had appeared to have already made up its mind as to the applicant's guilt.

SUBMISSIONS

For the applicant

235 Mr Tees submitted that there were two allegations which led to the dismissal of the applicant: firstly, an alleged conflict of interest involving a DA for 93 Crown Street and secondly, an alleged breach of the Council's Code of Conduct relating to a management direction not to undertake work for Ms Bates in Wagga Wagga. Mr Tees put that while the applicant rejected the allegations, he did not deny that the incidents actually occurred. Rather, the explanation was that the applicant had inadvertently been involved and there was no wilful intention on his part.

236 In relation to when the applicant became aware of Ms Bates' involvement in the 93 Crown Street DA, Mr Tees submitted that the whole matter involved a great deal of confusion. There were three different assessment reports and numerous players were involved. It was not clear who the DA applicant was or whether Ms Bates was involved in the application at all.

237 Mr Tees said that the applicant's conflicting evidence in regard to the 15 June 2001 file note could be explained by a number of factors. He put that at the time the applicant was suffering from an overload of work and anxiety over the earlier email incident. This had led to a high level of stress for the applicant. Mr Tees submitted that the medical evidence tendered during the proceedings amply explained why the applicant was in the state that he was in. Given his condition, his confusing evidence was to be expected. In any event, the applicant did not see the relevance of the file note and had failed to take the note into account for the simple reason that Ms Bates wasn't the applicant and he thought she wasn't involved.

238 Mr Tees acknowledged that one reading of the file note would have indicated that Ms Bates was involved in the DA. With hindsight, it might appear to be suspicious. However, the file note could also be read and interpreted in another way - that Ms Bates was not involved in the application at all. As the applicant knew who the DA applicant was, he did not see the relevance of the file note.

239 Mr Tees submitted that even if the applicant had misinterpreted the file note his actions could not be viewed as either wilful or intentional. Indeed, Mr Tees highlighted the evidence of Mr Partridge, that he was also confused as to who the applicant for the DA was. The evidence of Mr McLeay was that he believed Ms Bates to be the applicant. This was not the case. However, that had been the key issue with regard to the decision making process in determining whether to dismiss the applicant. Mr Tees argued that with this confusion in mind, the ultimate decision to dismiss the applicant was based on incorrect information and was therefore fundamentally flawed. There must be a very strong doubt as to the efficacy of the disciplinary process on this basis alone.

240 Mr Tees dealt with the conflicting evidence of the applicant and Mr McLeay. He said that Mr McLeay's version of events was a third hand account of what had occurred and, by his own admission, his memory of the events was unclear. In these circumstances, given the straightforward and honest approach of the applicant in addressing his earlier inconsistent statements, the applicant's evidence should be preferred.

241 Mr Tees then referred to the 'Scarlis' matter. He submitted that the evidence in relation to this issue was clear - there was nothing untoward with the applicant having dinner with Mr Scarlis. Mr Cirillo had requested that Ms Harris review the matter. Ms Harris found no wrongdoing and accordingly, reliance on this matter took the Council's case nowhere.

242 Mr Tees submitted that there was a deliberate attempt to discredit the applicant in order to justify his dismissal. Mr Tees said the applicant was a "marked man," especially after the matters concerning his alleged victimisation and his complaints to the ADB. The victimisation was obvious. He referred to the incident concerning the offensive email and the investigation carried out in relation to it. He pointed to the fact that, within the Council, there was a widespread misuse of email. The evidence of Mr Alsdorf confirmed this. Yet when it was discovered, the Council overreacted and sought to discipline the applicant. The applicant had been further discredited by Mr Cirillo's suggestion that he seek medical help.

243 Mr Tees submitted that the investigation of the email was flawed and not carried out with the proper attention that it warranted. He put that it was this issue which caused a great deal of rancour between the Council and the applicant. Mr Tees put that it had been suggested that the applicant was responsible for the offensive email. This accusation only inflamed the situation. The applicant wanted three things from Council:

i) To know who had sent the email and an apology.

ii) Council's EEO policy to include homophobic harassment.

iii) Expanded EEO training for the older directors.

244 Mr Tees said that had the Council conducted a proper investigation, it would have been aware that the applicant was not at his workstation on any of the occasions that emails had been sent from his computer. This lack of concern for the applicant, evidenced by the "tardy investigation," Mr Tees submitted, caused the applicant's stress and anxiety. This in turn, resulted in conflict with the Council and ultimately led to the applicant's dismissal.

245 Mr Tees maintained that the allegations of the applicant's poor work performance should be rejected. Mr Tees said that complaints of poor performance were simply another attempt by the Council to malign the applicant. He relied on Mr Harrison's favourable comments, which had contradicted the evidence of Ms Harris and Mr Cirillo. He put that as Mr Harrison had greater experience, his evidence carried greater weight and should be preferred. This submission was supported by corroborative evidence; namely, the applicant was favourably portrayed in the South Sydney Council's Annual Community Report 2000-2001 and he had received praise from two of the Council's planning customers.

246 Mr Tees sought to highlight the poor relationship between the applicant and Mr Cirillo, as confirmed in the evidence of Ms Harris. He put that there had been a known and existing animosity between the two. He alluded to the fact that the applicant and Mr Cirillo had an earlier confrontation which had resulted in them threatening to sue each other.

247 Accordingly, Mr Tees submitted that it was inappropriate for Mr Cirillo to sit as Chairperson of the first disciplinary inquiry. Any decision made by Mr Cirillo would be tainted by virtue of his obvious conflict of interest. Mr Tees submitted that support for this contention could be found in the evidence of Mr Thornton, an experienced representative of the Union. Mr Thornton was present during the first disciplinary inquiry. He had stated in evidence, that the decision was more or less made before the inquiry began. This, Mr Tees put, was a clear example of the applicant being denied natural justice. This was the first time a town planner had been put through such an inquiry.

248 As the disciplinary inquiry was a sham, the applicant was entitled to use any method he could to overturn it, and he did so by going to the ADB.

249 While acknowledging that a breach of the Code of Conduct might have occurred, Mr Tees relied on the evidence of Mr Chaffe. He had said that the Council was subject to a high burden of proof to demonstrate that the applicant definitely engaged in conduct which was wilful or deliberate. Mr Tees said that Council had failed to meet this high standard. Mr McLeay had described the treatment of the applicant as outrageous and heavy handed. It followed, in Mr Tees's submission, that the applicant's dismissal was harsh and unfair.

250 Mr Tees added that there was no evidence that the applicant had any training in respect to the Code of Conduct - what it meant and how it was to be applied. The applicant had believed he had a perfect right to go to Wagga Wagga in his own time, for no payment and assist a friend. It was not corrupt. He had no intention of breaching the Code of Conduct.

251 Mr Tees submitted that the applicant was under great pressure, both as to his workload and also as a result of the offensive email incident. He referred again to the medical evidence and the stress the applicant was suffering, even during these proceedings. Mr Tees explained that this was why the warning bells didn't go off earlier. Mr Tees added that as Ms Bates was not popular at Council, it would have seemed unlikely for her to be involved in a DA. When the aplicant received the third report he was confused, didn't read it properly and didn't know Ms Bates was the author of the Plan of Management. However, when this came to the attention of Mr Cirillo and Ms Harris, they immediately assumed the worst.

252 Underlying all this, Mr Tees asserted, was the involvement of a private investigator called in to investigate some untoward pecuniary interest or some improper relationship with Ms Bates. There had been no evidence of this. The worst that might be said was that the applicant was careless.

253 As to process, Mr Tees put that the applicant was not given sufficient time to respond to the allegations. He had been thrown off guard by a barrage of questioning during the inquiry. In any event, Mr Thornton's evidence was that Council's decision had already been made.

254 Mr Tees concluded by submitting that while there may well have been a technical breach of the Code of Conduct, it had not been deliberate, intentional or improper. The applicant deserved the benefit of the doubt.

255 Mr Tees said the applicant was working at present, but had suffered considerable financial loss, including the loss of pro rata long service leave. Six months compensation was sought in these circumstances.

For the Council

256 Ms Brus submitted that despite the applicant's attempts to complicate this case with layers of complexity, it was in fact a simple case. She said the applicant had to have been aware of the Code of Conduct. The Code was clear and unambiguous - employees were required to record or declare any conflicts of interest that arise as part of their work with Council. However, Ms Brus put that the applicant had a complete disregard for the employer's Code of Conduct. The Code also states that, should there be any doubt as to whether a particular gift or item is in breach of the Code, then one would be covered if that potential conflict is declared. Gifts such as a box of chocolates and bottles of champagne were recorded in the Register. Ms Brus observed that the applicant had not once declared any gift throughout his entire period of employment.

257 Ms Brus argued that there could have been no mistake that the applicant was aware of the Code of Conduct and his possible contravention of it. She put that the applicant's request for advice as to whether his work in Wagga Wagga was in contravention of the Code, confirmed his knowledge of it and the potential for a conflict of interest. The timing of this request was significant - five weeks after the 15 June file note.

258 Ms Brus said that the direction the applicant received from Mr Harrison in relation to his work in Wagga Wagga was absolutely clear. Ms Brus referred the Commission to the last sentence of the document, which had strictly prohibited the applicant from engaging in the kind of work that he had proposed. She said the word "prohibit" is rarely ambiguous. The applicant had even suggested that the instruction implied that he could go to Wagga Wagga. This claim was just unbelievable. Ms Brus put that the applicant had flagrantly disobeyed this clear instruction and did whatever suited himself.

259 Ms Brus claimed that the applicant was well aware that Ms Bates was involved with the DA for 93 Crown Street, which he had before him for approval. The applicant had said he merely scanned the file and didn't notice her involvement. What was clear, not only from the evidence of the SILO file note, but the evidence of Ms Bates herself, was that they would meet not infrequently to "talk shop." It was around this time that the development application was going through the process of approval. Ms Brus put that one was able to draw the obvious inference that the applicant would have discussed the 93 Crown Street application with Ms Bates and was plainly aware of her involvement. If any warning bells should have gone off, it would have been around June - August 2001, not in 2002.

260 Ms Brus dismissed the applicant's contention that the inquiry arising out of Ms Vanos' complaint was some kind of trumped up charge or act of retribution for the earlier email incident. Mr Cirillo had an obligation to react to a complaint from a ratepayer. Ms Brus put that the two matters were completely separate and there was no evidence of any connection.

261 Ms Brus submitted that the evidence of Mr Thornton that Council officers had prejudged the first disciplinary inquiry should be disregarded. Mr Thornton's evidence was simply his view. The only finding the Commission could make was that the applicant had been given every chance to explain his actions. In considering that explanation, the Council had made the appropriate decision. There was absolutely nothing untoward about the inquiry, she said.

262 Ms Brus argued that the applicant's complaint to the Anti-Discrimination Board was completely unfounded. The applicant's contention that the Council's suggestion to him, to have a medical examination was some kind of sexual vilification was absurd. The applicant had himself raised the issue of seeking medical advice. Moreover, Ms Brus said it was entirely proper and usual for the Council to appoint an independent investigator into the ADB complaint. She noted that the applicant refused to co-operate with the investigation.

263 During the second disciplinary inquiry, Ms Brus said it had become apparent that Ms Bates was involved with one of the applicant's current development applications. When questioned as to the existence of the SILO file note the applicant had denied seeing it. Ms Brus noted that the applicant only acknowledged the existence of the file note when it had become apparent that he had indeed documented its existence in his own memo to Ms Harris. He later gave contradictory evidence before the Commission. His reference to the file note in a memo to Ms Harris on 31 January 2002 proved he had lied to conceal his involvement with Ms Bates and his deliberate flouting of the Code of Conduct.

264 Ms Brus submitted that other evidence revealed that the applicant had a total disregard for the Code of Conduct. It was not simply a misunderstanding. His disregard was further evidenced by his invitation to Mr Scarlis to have dinner with him. Ms Brus put that the applicant had not thought for a second that this might be seen as a conflict of interest. This conduct demonstrated a total failure of the applicant to adhere to correct behaviour and the principles relevant to conflicts of interest.

265 Ms Brus emphasised that Mr Dearsley was the person who had made the recommendation to the General Manager as to what action should be taken against the applicant. It was not Mr Partridge, as the applicant had suggested. She put that there was no evidence to suggest that Mr Dearsley was confused as to the allegations against the applicant. The Commission should therefore accept the evidence of Mr Dearsley.

266 Ms Brus put that there was no evidence before the Commission which would support a finding that the decision making process was flawed in any way. There had been no suggestion that the Council had not followed the well settled procedures laid down for dispute settlement or for the investigation of disciplinary matters within the Council. Indeed, the Union expressly accepted the process as outlined in the policy. Therefore there was no denial of procedural fairness to the applicant.

267 Ms Brus referred to the medical reports introduced into the evidence. She stated that, at best, this evidence was contradictory. The applicant's first medical appraisal by his own GP had found him fit during the period immediately preceding the hearing. Indeed the applicant had himself agreed that he was fit. Ms Brus observed that it had only been after the applicant had given evidence which was unhelpful to his case, that the evidence of Dr Lucire was advanced. There had been no opportunity to test the medical evidence and as a result, it should be disregarded.

268 Finally, Ms Brus submitted that the evidence before the Commission overwhelmingly supported a finding that the conduct of the applicant had been both serious and wilful. Ms Brus noted that in the alternative, if the Commission found otherwise, no evidence had been led as to any mitigation of loss by the applicant. It was not enough to simply state from the bar table that the applicant had tried to find alternative employment.

In reply

269 Mr Tees rebuffed the suggestion that the dinner arrangement with Mr Scarlis was improper. Each person had paid their own dinner bill. It was further submitted that the applicant had in fact made Mr Scarlis' DA more difficult to obtain by placing additional stipulations on its approval. Accordingly, no finding of impropriety could be made against the applicant on this matter.

270 Mr Tees reiterated his earlier submission that the applicant had been denied procedural fairness during both disciplinary inquiries. He had been refused legal representation and he had been given a very short period in which to prepare his responses. Mr Tees said that there were serious flaws in the process which should carry great weight.

271 Mr Tees reaffirmed that there was no evidence to suggest that the applicant had discussed the 93 Crown Street DA with Ms Bates. It had only been put by vague inference. Mr Tees claimed that as the Council had not provided any proof that the applicant had done so, it had not discharged its heavy onus to prove this matter.

272 In respect to Mr Harrison's directive, Mr Tees said it was legalistic and confusing. The applicant had clearly misunderstood the memo and, in any event, he had not been paid for the work in Wagga Wagga. He should be given the benefit of the doubt.

273 It was further submitted that the evidence of Mr Thornton should be accepted, insofar as it went to the fact that the inquiry procedures were flawed. Mr Thornton had plainly drawn a conclusion that Council officers had already made up their minds about the applicant's guilt.

274 Finally, Mr Tees put that while the applicant may have acted foolishly, there was no evidence to suggest that the applicant had deliberately and wilfully disobeyed the directions of Council or was in breach of Council's Code of Conduct.

CONSIDERATION

Legislation and Principles

275 The Commission would commence consideration of this matter by firstly referring to s163(1)(c) of the Act. That section requires the Commission "to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." That being so, it is my opinion, that in a case such as this, in which many issues were canvassed and developed, that the Commission must, in the end, focus on the relevant circumstances which will decide the outcome. In short, the Commission's decision must result in an outcome which is fair and just to both parties in all the circumstances. I am certain that was what the legislature had in mind when it enacted s163 of the Act.

276 It follows, therefore, that a too rigid focus on technicalities or legal forms will sometimes deflect from the fundamental principle of ensuring that justice is done in a particular case.

277 Having said that, the second point I would make is this. The many issues discussed during these proceedings might well be seen as rather unusual and unique. However, to my mind, at the end of the day, this case was no more, and no less, than a classic example of summary dismissal for serious misconduct. Viewed in this way, the usual principles the Commission is to have regard to in such cases are well settled. It is appropriate that I refer to the relevant authorities.

278 In some cases of summary dismissal the employee will contest the allegations which led to the employer's decision to terminate the contract of employment. In such cases, the employer is required to prove the allegations. The Commission must be satisfied that the employer's onus to do so has been discharged and make findings, on the balance of probabilities, that the misconduct occurred.

279 The oft quoted authority for this proposition is found in Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3 (1990) 35 IR 70:

It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street (1947) AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) (1949) AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 at 279 and Homebush Abattoir (1966) AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson (1957) AR (NSW) 547 at 552, 553; North v Television Corporation Ltd (1976) 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr Newall submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643, and in that passage from his Honour's judgment which said at 644:

Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principles to regard fault as a particular exception defeating the right only when alleged and proved.

The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it. In support of his submission on onus, Mr Walton referred to the judgment of Dey, J. in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355, in which his Honour clearly held that the necessity for proving misconduct lay upon the party setting it up, namely the employer, and even though the union had the responsibility for establishing a proper case for reinstatement. I respectfully agree with his Honour's conclusion, it being entirely consistent with well established authority

See also other Full Bench authorities on the subject in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Shop, Distributive & Allied Employees' Association v Jewel Food Stores (1987) 22 IR 1; Franklins Ltd v Webb (1996) 72 IR 257 and Bigg & Anor v NSW Police Service (1998) 80 IR 434.

280 There are other cases where the employee will admit to the misconduct, but will contend that the penalty of dismissal was too harsh. In this regard I refer to Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296:

The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233 as follows:

I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative.

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. (Our italics)

See also Busways v Johnson (1994) 55 IR 255, Byrne & Anor v Australian Airlines (1995) 61 IR 32 and my comments in Youssef and Western Sydney Area Health Service [2002] NSWIRComm 8.

281 It is obvious that the summary dismissal of an employee for misconduct can have serious, long-term implications for the employee. It is for this reason that the Full Bench in Franklins Ltd v Webb reminded employers of the need to be fully satisfied that the misconduct had been committed and that the conduct justified dismissal. The Full Bench said at p261:

We consider that the significance of decisions by employers to dismiss employees in circumstances such as occurred here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account. It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employers of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal.

See also my comments in Standley and Electronics Boutique Pty Ltd (unreported, Sams DP, IRC98/4516, 18 March 1999); Hill v Department of Juvenile Justice (unreported, Sams DP, NSWIRComm 128, 27 July 2000) and Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Bowman, and City of Sydney Council [2001] NSWIRComm 91.

282 In Hill v Department of Juvenile Justice, serious allegations concerning the supply of drugs to juvenile offenders, by a person in charge of their welfare were the alleged reasons for the employee's dismissal. The allegations had no basis in fact and could not be proven. I said at para 62-63:

In Standley v Electronics Boutique Australia Pty Ltd, IRC 4516 of 1998, 18 March 1999, I considered the serious implications for an employee where allegations of misconduct are made. I said at p14:

It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee. It can, not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee’s future employment prospects.

A finding by this Commission that a summary dismissal was justified, is a most serious matter which may unhappily burden and grievously harm an employee for years into the future.

See also my discussion of this matter in Thornton and Happy Hours Pre School Kindergarten, IRC5333 of 1999, 29 July 1999 and Taggart and Bell Sports Australia, IRC5224 of 1998, 10 September 1999.

63 The serious unproven allegations made against the applicant have gravely impugned his reputation. Left to stand unchallenged, these allegations would seriously hamper his future employment prospects, damage his reputation and more than likely, deleteriously effect his well being and that of his family. It is the Commission's duty - indeed, its obligation - to correct the injustices the applicant has so plainly suffered. I unreservedly intend to do so.

Meaning of harsh, unreasonable and unjust

283 Even if the employer discharges the onus to prove allegations made against an employee, it is incumbent on an applicant to discharge the onus of satisfying the Commission that his/her dismissal was harsh, unreasonable or unjust within the meaning of Pt 6 ch 2 of the Act (see Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273).

284 It is now well settled industrial law that each of the words - harsh, unreasonable and unjust, have their own discrete meaning and not all three descriptions of a dismissal are necessary for a finding of unfairness. In other words, a particular dismissal might be found to be "harsh" but not "unreasonable" or "unjust". This principle arises from the oft-quoted authority in Byrne & Anor v Australian Airlines where the expression "harsh, unreasonable or unjust" was considered in an Award clause. In their joint judgment McHugh and Gummow JJ said at p72:

It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

285 The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 where a Full Commission said:

First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session (Perrignon, Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said:

The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'.

It has been said that those words are a 'tautological trinity' (Davis v General Transport Development Pty Ltd) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power.

In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made.

286 A more recent authority reaffirming the distinction between the three words, and requiring the Commission to make a positive and specific finding on a dismissal, is to be found in Bankstown City Council v Paris (1999) 93 IR 209:

The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made.

Procedural fairness

287 Mr Tees argued that the applicant was denied procedural fairness and natural justice on a number of grounds. These included that:

1) Mr Cirillo had a conflict of interest because he had a known hostility towards the applicant and should not have participated in the disciplinary inquiries.

2) The applicant had not been given a proper opportunity to defend himself against the allegations of serious misconduct.

3) Council's decision arising from the first disciplinary inquiry had been already made before the inquiry began.

4) The applicant was denied an opportunity to be legally represented at both disciplinary inquiries.

288 There is abundant authority for the proposition that unfairness may be visited upon a dismissed employee, both as to the substance or merits of the dismissal and the process leading to dismissal. Put another way, it may be that dismissal was reasonably open to the employer, but the employer went about it in an unfair way.

289 For the relevant authorities on this subject, I refer again to Byrne & Anor v Australian Airlines at p72:

The distinction between procedure and substance is elusive. This is so even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights, and the Statute of Frauds, where it has an entrenched operation (217). In our view, it is unhelpful and contrary to the tenor of the Award to introduce it into cl.11(a).

That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable (218). But the question under cl.11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking at the first issue before there is seen to be any need to enter upon the second.

Brennan CJ, Dawson and Toohey JJ concluded at p43:

Save for the prescription of periods of notice, cl 11 does not require the adoption of any particular procedure for the dismissal of an employee. However, it is clear that the use of an unfair procedure may result in a dismissal being harsh, unjust or unreasonable. For example, the failure to afford an employee the opportunity to explain apparent misconduct where there is an innocent explanation available would result in the dismissal of the employee being in breach of cl 11(a).

290 Two passages from Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 are also apposite. The Full Bench said at p389:

We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.

and later, at page 390:

While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust.

See also D & R Commercial v Flood [2002] NSWIRComm 88 and Wilson v Department of Education and Training [2000] NSWIRComm 20.

291 As mentioned in the above passage, the Commission's statutory basis for considering procedural issues in unfair dismissal proceedings is found in s88 of the Act:

In determining the applicant's claim, the Commission may, if appropriate take into account:

a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and

b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behavior or to justify his or her reinstatement or re-employment, and

c) whether a warning of unsatisfactory performance was given before the dismissal, and

d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and

e) whether or not the applicant requested reinstatement or re-employment with the employer, and

f) such other matters as the Commission considers relevant.

292 It is generally accepted that an employer may take into account an employee's past conduct or warnings when making a decision to dismiss the employee. Authority for this proposition is found in John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (unreported, Sheppard J, Matter 259 of 1972, 14 September 1972):

The union's argument in relation to this matter is not easy to understand. It suggests that although the record is not a satisfactory one, it should be overlooked because the company, except for a warning and a suspension here or there, allowed it to run on and in effect condoned or waived it. It further says that the record has to be looked at in the light of the fact that there is admittedly a good deal of absenteeism generally in the plant. If one were to take this argument to its full extent, it would involve the union in saying that Mr York should have been dismissed long ago. It is no doubt possible for the company to waive particular acts of misconduct that would otherwise justify dismissal without notice. These particular acts could not subsequently be used for this purpose once a decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about dismissal. This will be all the more so where, as here, the dismissal is upon notice.

293 Of course, it is equally true that taking into account past performance works both ways. That is, it would be wrong for an employer to ignore an employee's otherwise exemplary record when weighing up all the factors in its decision to dismiss. I adopt the words of McLeay C in Paris v Bankstown City Council (unreported, McLeay C, IRC97/5426, 22 January 1999)

It is clear that no account was taken of mitigating circumstances, either associated with the misconduct (namely, that the applicant's supervisor was the instigator of the misconduct) or the employee's work record (which showed a good record of over forty years). It has long been accepted that the whole of an employment relationship is relevant to a question of dismissal (see John Lysaght (Australia) Ltd v FIA; Re York (1972) AILR 517 per Sheppard J). In my view, it is as unfair to ignore a good work record of long standing as it would be to ignore incidences of previous misconduct.

294 That is not to say that an unblemished record would mitigate completely against a particular act of serious misconduct. Each case will turn on its own facts and the gravity of the misconduct. Nevertheless, it is a factor which might tip a dismissal either way if the decision is finely balanced. It follows therefore, that an employer should be cognisant of, and give appropriate weight to the employee's past record of employment when considering whether dismissal is warranted.

See also: Metropolitan Meat Industries Board v Australian Meat Industry Employees' Union, New South Wales Branch (1973) 73 AR 231; Little v Commissioner of Police (2002) 112 IR 212 and D & R Commercial and Flood (2001) 113 IR 344 and Youssef v Western Sydney Area Health 2003 NSWIRComm 284

Anti-Discrimination Act

295 The applicant first lodged a complaint with the Anti-Discrimination Board on 18 December 2001. He lodged additional complaints of victimisation on 25 and 26 February 2002. He named Messrs Cirillo, Partridge, Chaffe, Wilcoxon, Harrison and Dearsley as persons who had discriminated against him. He summarised his complaint on 26 February as follows:

Council has via a process of constructed (sic) dismissal attempted to terminate my employment following a complaint to the ADB about homophobic harassment. This has taken the form of a questionable disciplinary enquiry culminating in a recommendation for the termination of my job (see attached statement of my defence of the allegations). The recommendation for termination of my job is made today, Tuesday 26th February 2002. It may be the case that my termination be effective today as: this second disciplinary inquiry was so hastily arranged and conducted and was conducted with the imprimatur of the General Manager as such I believe that today I may well have been effectively dismissed.

I note that the complaint to the Anti-Discrimination Board has not been determined as at the date of this judgment.

296 There is no doubt that the Commission can, and must have regard to issues of workplace discrimination in the discharge of its duties and functions under the Industrial Relations Act 1996. One of the central themes of the Act is to prevent and eliminate discrimination in the workplace. Nothing could be clearer from object (f) of the Act:

f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value.

297 There is also the general mandatory instruction in s169 which requires the Commission, in the exercise of any of its functions, to take account of the principles contained in the Anti-Discrimination Act 1977. Section 169 is obviously not limited to certain matters before the Commission and not others. It is all encompassing and must obviously apply to proceedings under Pt 6 ch 2 of the Act.

298 The significance of s169 of the Act was referred to recently in Crown Employees Teachers in Schools and TAFE and Related Employees Salaries and Conditions Award [2002] NSWIRComm 144:

The operation of s 169 was considered by the Full Commission in Re State Personal/Carer's Leave Case (1998) 84 IR 416. It was there held that s 169 was "one of a number of provisions which run through the Industrial Relations Act which together form a scheme designed to incorporate Anti-Discrimination Act concepts into the industrial jurisdiction". Those concepts were considered to be of "fundamental importance" to the operation of the present statutory scheme. The reference to the "principles" contained within the Anti-Discrimination Act in s 169(1) was considered to require the Commission to have regard to the express provisions of that Act. This would, in our view, plainly include provisions such as s 24(1)(b) of the Anti-Discrimination Act, encompassing notions of indirect discrimination.

As was expressly acknowledged by the Full Bench in Re Equal Remuneration Principle (2000) 97 IR 177 it is a "fundamental human right" that every person is entitled "to be treated equally and fairly in the sense that the person should not be dealt with on the basis of irrelevant considerations such as the person's sex, race, or age, and with a right not to be discriminated against by reference to such considerations".

While not mentioning sexual preference as a grounds for discrimination in employment, I have no doubt that the Full Bench would have intended that an employee's sexual preference would be an irrelevant consideration in how a person is treated in the workplace.

299 In addition, scattered throughout the Act, are particular references to the Commission dealing with issues of discrimination. See s19(3)(e) Review of Awards; s35 Conditions for approval of enterprise agreements; s158 Particular Deputy President to deal with discrimination in the workplace; s167(2) Intervention by President of the Anti Discrimination Board.

300 At this juncture, it is appropriate to consider one of the provisions under the Anti-Discrimination Act which is apposite to these proceedings:

"49ZH(2)

It is unlawful for an employer to discriminate against an employee on the ground of homosexuality:

a) in the terms or conditions of employment which the employer affords the employees,

b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

c) by dismissing the employee or subjecting the employee to any other detriment (my emphasis).

301 In my view, a dismissal based on a prohibited ground of discrimination under the Anti-Discrimination Act, would almost invariably be found to be a dismissal which is "harsh or unreasonable or unjust " within the meaning of Pt 6 ch 2 of the Industrial Relations Act.

302 However, here the applicant claimed that the failure of management to respond appropriately (as he saw it) to the offensive email and his treatment during the disciplinary inquiries was discriminatory and demonstrated a homophobic attitude by the Council. He claimed he was victimised and treated unfairly because of his sexuality. Indirectly, I think it was contended that his eventual dismissal had more to do with his sexuality than anything else. These are matters which, in my view, are directly covered by s49ZH(2) of the Anti-Discrimination Act and are relevant matters for the Commission to have regard to in the exercise of its functions under the Industrial Relations Act.

CONCLUSIONS

303 In deference to the applicant's case about matters which were said to form the backdrop to his dismissal, I propose to divide my consideration of the issues into the following subject headings and make specific findings on each matter.

1) Conduct of proceedings and witness credit

2) Allegations of homophobia, discrimination and victimisation

3) The offensive email and Council's investigation

4) Wagga Wagga incident (first allegation)

5) 93 Crown Street (second allegation)

6) Procedural fairness

7) Medical evidence and mitigating factors

1) Conduct of proceedings and witness credit

304 As I said at the outset of this decision, these proceedings have had a protracted and difficult history. The Commission readily acknowledges that Mr Tees conducted the applicant's case with vigour and enthusiasm. However, I don’t believe he fully appreciated the requirement to crystallise the issues and concentrate on the relevant questions to be determined in this case. In my opinion, the facts and circumstances relevant to deciding this matter did not warrant nine sitting days since March this year. I am inclined to agree with Ms Brus that this matter was relatively simple and straightforward. However, it was overloaded and complicated by a litany of extraneous, and sometimes irrelevant matters resulting in considerable unproductive time.

305 Notwithstanding overwhelming evidence to the contrary, the applicant remained doggedly convinced of his own innocence. He regarded his dismissal as a vendetta to get rid of him and every example of criticism was a subset of this vendetta. No matter how tenuous, fantastic or twisted was an explanation, the applicant could rationalise in his own mind, any evidence which was adverse to his interests.

306 For example, he had at least five explanations for not knowing about the SILO file note of 15 June 2001. Firstly, he said he hadn't seen it. Then, when it was proven he had known of its existence, he claimed he was stressed, thought it was irrelevant, had forgotten about it or didn't realise its significance.

307 Much of the applicant's evidence on other crucial matters simply defied logic or comprehension. He read words, or heard conversations, completely at odds with what a reasonable person would read into, or conclude from them.

308 In addition the applicant made some wild and bizarre allegations unsupported by any corroborative evidence. I highlight but a few. He claimed that:

i) his Union delegate was homophobic and did nothing to support him and that the Federated Municipal and Shire Council Employees' Union had a history of not helping its gay or lesbian members;

iii) management had ignored instances of theft, abuse of overtime and pornography in the workplace;

iv) the SILO file note may have been "manufactured" for the disciplinary inquiry;

v) the accuracy of the transcript of the disciplinary inquiry was doubtful;

vi) Mr Harrison had a conflict of interest because he attended a lunch with the developer, Meriton where the Mayor and other Council officers had also been in attendance;

vii) Council officers had encouraged Ms Vanos to make a complaint about him.

309 I am bound to observe that much of the cross examination of the Council's witnesses was repetitive and irrelevant. It deflected attention from the real issue to be determined in this decision. For example, Mr Tees asked Mr Partridge at least four times was he aware of any alleged acrimony between the applicant and Mr Cirrillo. Mr Partridge's answer was the same each time. It was unnecessary to labour the point.

310 Moreover, Mr Tees constantly asked witnesses to speculate on hypothetical situations or about matters which were not within their direct knowledge. For example, he spent considerable time cross examining Mr Partridge about the first disciplinary inquiry when Mr Partridge hadn't even been involved.

311 On the other side of the record, I have no difficulty in concluding that the Council's witnesses gave candid and truthful evidence. I found no evidence that any of the Council's witnesses were homophobic or were involved in any vendetta against the applicant, either on a personal basis or because of his sexual orientation. Aside from Mr Cirillo, the Council's witnesses, in my judgement displayed no animosity towards the applicant. I exclude Mr Cirillo from this comment because it was obvious enough that the relationship between him and the applicant was not amicable. However, it must be stressed that, Mr Cirillo, appropriately did not chair the second disciplinary inquiry, nor did he recommend the applicant's dismissal.

312 Moreover, if Mr Cirillo had really wanted to get rid of the applicant, it seems curious that when he had the power to recommend dismissal, he chose a three month review and a warning. It is interesting to observe that the applicant lodged his ADB complaint because he believed he was to be recommended for dismissal by Mr Cirillo. This proved not to be the case.

2) Allegations of homophobia, discrimination and victimisation

313 It is necessary to understand these allegations in the context of the time line of the two disciplinary inquiries.

314 The applicant had been involved in an unpleasant incident on 9 October 2001 involving an argument with Ms Vanos. It appears that the applicant began contacting the ADB around this time. On 14 December 2001 the applicant faced the first disciplinary inquiry about this matter. As a result of the disciplinary inquiry it was recommended that, inter alia, he be placed on three months probation. Shortly thereafter, (four days) on the same day as the recommendations of the disciplinary inquiry were to be made known, the applicant lodged a formal complaint with the ADB. The ADB intervened and as a result, all proposed disciplinary action was deferred. Whatever might be inferred by this chain of events, the ADB's intervention had the very convenient result of halting the implementation of the recommendations of the disciplinary inquiry.

315 Having regard for this chronology of events, I have serious doubts that the applicant's allegations of harassment and discrimination were genuine. His allegations came three months after the incident with Ms Vanos and coincidentally, four days after a disciplinary inquiry. I note Mr Thornton's evidence that the applicant did not raise with him any allegations of sexual harassment or discrimination before, during or after the first disciplinary inquiry.

316 Rather strangely, when the applicant filed his ADB complaint, he then refused to co-operate. He said he believed the investigation was designed to "get dirt" on him. This was an odd reaction. He had filed a complaint, but then refused to co-operate with the investigation. He claimed that he wanted to know more about the investigation and the investigator's brief. Such a response doesn't stack up. He was offered an informal meeting with the investigator with a support person. He refused this offer. It seems obvious that as long as the investigation was delayed, the recommendations of the disciplinary inquiry would not be implemented. Mr Wilcoxon had given this assurance to the ADB. One might be left to speculate that this would have been a powerful motivation not to cooperate with the investigation.

317 The applicant had also claimed that he had been victimised by being told to seek psychiatric advice during the disciplinary inquiry on 14 December 2001. A number of things need be said about this rather curious claim.

318 Firstly, and most significantly, it was the applicant himself who had told the inquiry that he was seeking medical advice. He had in fact lodged a workers' compensation claim for work related stress in October 2001. What was the Council to do? If an employee complains that he/she has a work related medical condition the employer has obligations under its duty of care. If Council did nothing, then there would have been legitimate complaint that the employer had breached its duty of care. In my opinion, the Council was doing no more than it was obliged to do.

319 In any event, I doubt the applicant's account of what he said he was told. Mr Thornton, Mr Macklin, Ms Harris and Mr Harrison all said it didn't happen as the applicant alleged. The thrust of their combined evidence was that when the applicant raised the issue of his seeking medical advice, he was told if he needed medical help, he should obtain it. I am disposed to accept this evidence and reject the assertion that the words "psychiatric advice" were used.

320 That being said, it is to draw a very long bow indeed to allege that this advice constituted victimisation because of the applicant's sexuality. However, it is entirely consistent with the applicant's amazing overreactions to anything which might be construed by him to be harassment or victimisation when it was no more than legitimate criticism or advice.

321 On one view, the applicant's claim of victimisation because of his sexuality sits rather oddly with South Sydney Council's reputation and high profile in promoting gay and lesbian issues. At the time, the Council had elected an openly gay Mayor and more recently the Council has established a register of same sex couples.

322 Moreover, and somewhat ironically, on the same page as the article about the applicant in the Council's Annual Community Report, was a report of the Council's Gay and Lesbian Liaison Officer in these terms:

The Gay and Lesbian Officer (GLLO) conducted visits to and surveys of community organisations to identify attitudes about community facilities, safety, community sector development and communication needs of gay, lesbian and transgender communities.

A successful series of free self defence workshops were delivered in conjunction with the Gay and Lesbian Anti-violence Project. The GLLO, with the Anti-Violence Project, NSW Police and the Attorney General's Department, developed a "Streetsmart" campaign on issues of street safety.

323 It seems to me that Ms Harris' evidence that the Council was not a homophobic workplace and was accepting of cultural and sexual diversity was a sound and correct observation.

Findings

1) The Commission can find no reasonable basis for the applicant's allegation that he was subject to sexual discrimination or victimisation.

2) I found no evidence that any of the Council's witnesses were homophobic or were involved in a vendetta against the applicant, either on a personal basis or because of his sexuality.

3) There was no evidence that the Union delegate or the Union was homophobic. There was no evidence as to the claim that the Union did not assist its gay and lesbian members on workplace issues.

3) The offensive email and Council's investigation

324 There can be no doubt that the offensive email was sent from the applicant's computer. There was no technical means of establishing who had sent the email. The applicant vehemently denied sending the email himself. Therefore there can only be two rational explanations. Either someone else knew his password or his computer was 'open' when he wasn't at his desk. Unless someone was observed at his computer or the culprit admitted to sending the email, it was simply impossible to determine who was responsible. Despite this reasonable conclusion, the applicant steadfastly refused to accept that the Council could not identify the culprit.

325 While it might be understandable that the applicant was upset and offended by the email, his reaction was little short of irrational. He claimed that he felt persecuted because someone was out to get him. To this day, no one knows who sent it. Of course the email was sent to a single individual, Mr Horiatopoulos. He made no complaint about it and accepted the applicant's explanation that he hadn't sent it. While the contents of the email might be held to be offensive, I cannot accept the constant mantra from Mr Tees that the email was pornographic in the sense that word is generally understood.

326 However, what I found even more extraordinary was the applicant's response to the email. Let me explain.

327 The applicant had claimed that this wasn't the first occasion an offensive email about him had been sent. He had ignored an earlier incident as a "one off". However, he kept no records of the incident. This made the later investigation more difficult. Mr Versluis said the applicant was not helpful during the investigation. For example, he didn't reveal until the next day that Mr Horiatopoulos was the person to whom the email was sent.

328 The email was sent at 11.16am on 12 September 2001. At 12.34 the applicant sent a broadcast email to all employees and officers of the Council. If the applicant was concerned with finding the culprit, it was a funny way of finding out by sending a broadcast email to all and sundry. This effectively alerted whoever it was that he was "on the case." As Mr Versluis correctly observed, the broadcast email would have ensured that anyone who was involved would have gone to ground. The obvious and sensible course was to quietly alert those persons who could best trace the source quickly.

329 I ask rhetorically, why on earth would you broadcast a complaint to all employees, managers and councillors of Council? Why wouldn't the applicant have approached the EEO officer as he had done in the past on a far less significant issue? Why would he not co-operate with an independent investigation, which he now alleges was inadequate? Why would he wait four months, and only after a disciplinary inquiry, before lodging a formal complaint with the ADB? The truth of it is that I have some difficulty accepting the applicant's reactions to the offensive email were genuine.

330 Moreover, it was rather curious to note that the applicant wasn't averse to sending offensive emails himself. He completely disavowed any offence was taken when he sent the emails about the car park attendant (Steve) in early December 2001. However, the fact was he was warned about this incident. It is to be noted that this incident occurred only three months after his own experience.

331 I am also perplexed by the applicant's criticism of the investigation of his complaint about the email and his claim that the investigation amounted to homophobic harassment. Any objective analysis of the Council's investigation would reveal that Council acted swiftly and decisively to the applicant's complaint. To demonstrate this conclusion, I propose to outline the chronology of events, which was comprehensively detailed in Mr Versluis' affidavit.

332 Within a few minutes of the appliant's broadcast email, management had responded. Mr Versluis sent his email at 12.34pm. The same day the investigation commenced, the applicant's password was changed. The IT department was instructed to conduct the appropriate inquiries. A preliminary investigation was completed within two hours. The applicant was invited to make a contribution to a change of the email policy as it related to homophobic harassment. When Mr Alsdorf responded inappropriately to the offensive email, he was reprimanded. Mr Eberhart was called up by Mr Wilcoxon and Mr Chaffe to explain his own response to the broadcast email.

333 It was apparent that the applicant believed that the Council was accusing him of sending the offensive email. His belief was without rational foundation. While I concede the applicant had been asked if he had sent the email this was not an unreasonable question in the circumstances. He could have easily denied it and did so. The facts were that the investigation made it abundantly clear that no person could be identified as sending the email.

334 In my opinion, the evidence makes palpably clear that senior management took the matter very seriously and responded accordingly. There can be no doubt that the Council's response to the applicant's complaint was swift, rigorous and exhaustive. Apart from interrogating every Council employee, I do not know what more it could have done in the circumstances. Moreover, neither did the applicant. The fact the applicant was dissatisfied with the outcome is really not the point. In my judgement, he had no reasonable basis to be critical, let alone regard the investigation as victimisation.

Findings

335 The Commission finds that:

1) The Council responded swiftly and decisively to the applicant's complaint concerning the offensive email.

2) The investigation was thorough and exhaustive.

3) It was impossible to identify who sent the offensive email.

4) The Council took further steps to address the applicant's concerns, including altering the email policy to make it more specific to homophobic harassment and changing his password.

4) Wagga Wagga incident (the first allegation)

336 On any plain reading of Mr Harrison's instruction to the applicant on 10 August 2001 there can be absolutely no doubt or ambiguity about what the applicant was directed not to do. He was prohibited from undertaking the trip to Wagga Wagga to assist with Ms Bates' application before the local Council. The words of the memo are clear and unequivocal. I reiterate the last sentence.

In these circumstances I would have to recommend that under Section 353(3) of the Act you prohibit John Boers from engaging in the work.

Ms Brus submitted that the word 'prohibit' was rarely ambiguous. I must agree.

337 Moreover, the prohibition was a direct response to the applicant's request that he be permitted to assist Ms Bates. No amount of obfuscation or distraction can detract from the clear and unequivocal instruction not to undertake the work in Wagga Wagga. The applicant did exactly what he was told he could not do.

338 It is useless to his defence to argue that he went to Wagga Wagga in his own time and that he wasn't paid for the work. It is self evident that conflicts of interests can be pecuniary or non pecuniary. That being said, it certainly appeared that the applicant had expected to be paid. In his memo to Mr Harrison he used the expression that he had not been paid "as yet", and in his original statement he said, after being refused permission to work in Wagga Wagga, "I immediately told Julie and her client that I could not work for her". From this evidence, it seems perfectly obvious that the applicant had every expectation of being paid for the work at some time in the future.

Findings:

339 The Commission finds that:

1) There was no ambiguity in the instruction from Mr Harrison to the applicant not to undertake the work for Ms Bates in Wagga Wagga.

2) The applicant deliberately and intentionally ignored the reasonable direction of management.

3) The Council's allegation found at point 6 paragraph 17 is proven.

4) The applicant's conduct was such as to constitute misconduct.

5) 93 Crown Street (second allegation)

340 The applicant gave evidence before the Commission that he had no knowledge of Ms Bates' involvement in 93 Crown Street until the second disciplinary inquiry on 26 February 2002. However, the documentary evidence revealed that the applicant had acknowledged that he knew of the existence of the 15 June 2001 file note and Ms Bates' involvement in the DA at least a month beforehand. He had written to Ms Harris on 31 January 2002 in these terms:

Dear Jodie

Further to your request for more detail on the assessment timeframe for this DA:

i) The application was lodged on 7/3/01, with applicant as Paul Kellaway. Could not make contact with applicant for some time to arrange for inspection. Held application as active rather than refusing.

ii) 15 June 2001 applicant appeared to have changed to a 'Peter" (SILO file note dated 15 June 2001) (My emphasis).

iii) 20 July 2001 letter from Remu P/L (owner of property) that all correspondence on this DA to be via Mr Conrad Vass of Oxford Real Estate (Assume this meaning that Conrad Vass is the new applicant).o (sic) advice that application amended to remove escort agency component from application.

iv) 20 July 2001 SILO request for more detail on application and Plan of Management.

v) 1 November 2001 letter from Oxford Real estate that Brandan Enterprises P/L are lessees of property and new contact for the application (assumed to mean new applicant).

vi) 3 December 2001 Applicant (Brandan Enterprises) advised verbally of the further information required for application. Copy of security contract received 17 Decmber 2001.

v) 18 December 2001 further concerns raised by SILO about lack of bathroom facilities.

vi) Week ending 21 December 2001 site inspection by John Boers, and advised amendments to submitted plans to rectify lack of bathroom facilities (viz convert downstairs laundry to bathroom, etc).

vii) 21 January 2002 further health inspection decided.

341 Not surprisingly, the Commission expressed serious concerns with this significant inconsistency in the applicant's evidence. It was crucial to the Council's case against him. The applicant was recalled to give evidence to explain this inconsistency. I have referred to this evidence earlier.

342 Notwithstanding the decisive documentary evidence, it would seem implausible that the applicant and Ms Bates would not have discussed the issue of 93 Crown Street. They were friends - so much so that the applicant had assisted her with the Wagga Wagga application. The applicant had a special interest and expertise in planning issues involving sex industry premises. Ms Bates' evidence was that when they had coffee or dinner they would "talk shop". She had said that it was quite possible that they had discussed 93 Crown Street over dinner or coffee after November 2002. It would be utterly incredible if they hadn't.

343 Further evidence points to this conclusion. At least one of the documents filed, the final Plan of Management, had Ms Bates' name and her company name on the front cover. The applicant's explanation was that he hadn't noticed Ms Bates name on the front cover of the Plan, even after he had taken it out of the envelope and conveyed it to Mr Miles. I find this explanation to be highly improbable. It is not accepted. Moreover, it was Mr McLeay's evidence, that the applicant had told him, that he had first become aware of Ms Bates' involvement in the DA when the Plan of Management was handed to him, at Council's One Stop Shop, sometime before 31 January 2002.

344 In his defence, the applicant gave a number of other explanations as to why he hadn't known of Ms Bates' involvement. For example, he said he was so busy he may have missed seeing her name on the file. He said the SILO file note may have dropped off the file. He even claimed that the file note may have been "manufactured" for the sole purpose of his disciplinary inquiry. These explanations are highly unlikely and not supported by a skerrick of evidence.

345 Ms Brus pointedly observed that the applicant's explanation for not knowing of Ms Bates involvement changed at least three times. Firstly, he denied any knowledge of the file note which linked Ms Bates to the 93 Crown Street DA. Secondly, during the disciplinary inquiry (p42) he had claimed he hadn't remembered the terms of the file as he was stressed and confused. Thirdly, as he was stressed and confused he had claimed his medical condition had affected his judgement. I shall say more about the medical evidence later.

346 It is my considered view that the applicant was aware of the file note when Mr Miles handed it to him or placed it on his desk for inclusion in the file. This was on or about 15 June 2001. The applicant rejected Mr Miles' evidence on this point. However, as I found Mr Miles to be a credible and believable witness, I would prefer his evidence to that of the applicant.

347 In any event, the issue is not whether the original signed file note disappeared from the file and mysteriously resurfaced. Nor is there any point to the different dates on the file note. The issue is squarely whether the applicant was aware of Ms Bates' involvement in the DA for 93 Crown Street when he was directed not to assist her with the Wagga Wagga application on 10 August, 2001. It beggars belief that he was not aware of his friend's involvement in 93 Crown Street until the second disciplinary inquiry.

348 In the alternative it was submitted that in any event Ms Bates was not the applicant for 93 Crown Street. This submission was misdirected. Whether Ms Bates was the applicant for 93 Crown Street is not the relevant question to be answered.

349 The facts were that when the applicant asked Mr Harrison for permission to go to Wagga Wagga, he said that Ms Bates and/or her company, Urban Realists, "is not connected in any way with any development applications that I am currently assessing". In other words, the issue for the applicant was not that Ms Bates was the DA applicant, but that she had no connection at all to any other DA he was assessing. This was patently untrue and, in my opinion, the applicant knew it to be so.

Findings

350 The Commission finds that:

1) At all material times, the applicant was aware that Ms Bates was involved in the 93 Crown Street DA.

2) The applicant knew at the time he had asked for approval to go to Wagga Wagga that Ms Bates was involved in a DA he was processing for 93 Crown Street.

3) The applicant's various explanations for not being aware of the SILO file memo of 15 June 2001 are not credible and are rejected.

4) The Council's allegation that the applicant failed to disclose a conflict of interest, as required by the Code of Conduct was proven.

5) The applicant's conduct was such as to constitute serious misconduct.

6) Procedural Fairness

351 The applicant's claim of being denied procedural fairness rested in large measure on the alleged hostility Mr Cirillo had for the applicant. It was argued that this hostility resulted in the applicant being denied due process and natural justice because of Mr Cirillo's involvement in the two disciplinary inquiries.

352 A number of observations need to be made about this claim.

353 It is true that Mr Cirillo had a less than favourable view of the applicant's performance. Moreover, there had been a number of unpleasant incidents in which threats and counter threats had been made by both the applicant and Mr Cirillo. For these reasons, Mr Cirillo wisely handed over the second disciplinary inquiry to Mr Dearsley. By this time, Mr Cirillo had also been named in the official complaint to the ADB. Whilst Mr Cirillo attended the second inquiry, so did three other officers of Council. Mr Cirillo did not make the recommendation to dismiss the applicant. There was no evidence that the applicant, or Mr Thornton complained about Mr Cirillo being present at either inquiry. It is rather strange that this complaint is now made long after the event.

354 Understandably, Mr Tees relied on Mr Thornton's view that the outcome of the first disciplinary inquiry had been decided before it began and the inquiry was therefore fundamentally flawed. This submission invites the following observations.

355 Firstly, Mr Thornton was the Union delegate. It is hardly surprising that he would have a view about the outcome of a disciplinary inquiry. It was after all, simply a view. There was no other evidence corroborating his opinion.

356 Secondly, whether Mr Thornton be right or wrong about his view, he had nothing to do with the second disciplinary inquiry. It is not open to transpose what Mr Thornton's view was about the first disciplinary inquiry as a general proposition that applied to the second inquiry.

357 Thirdly, it must be remembered that the recommendations of the first disciplinary inquiry were never implemented. It is difficult to see how the applicant was disadvantaged or prejudiced in these circumstances.

358 A number of further specific observations can be made about the disciplinary inquiries:

i) As a planner of some experience in a sensitive local government area, it would be astounding if the applicant was not aware of his obligations to be scrupulously careful in all his professional dealings. I have no doubt the applicant had known of the Council's Code of Conduct. He referred to it in his memo of 25 July 2001 when he said, "would you please advise as to whether the continuation of this work would be acceptable to South Sydney Council and if so under what conditions which would apply, as required under Council's Code of Conduct." He also had told the inquiry that he had read cl.7(d)(4) of the Code of Conduct. He said at p19 of the transcript of the inquiry, "I'm fully aware of the Code of Conduct."

ii) It is difficult to sustain a complaint that the applicant was not afforded sufficient time to prepare for the second inquiry, when the evidence was that he had prepared a lengthy written statement and supporting statutory declaration from Ms Bates.

iii) The applicant had been invited to have a representative attend the disciplinary inquiries. He had the Union delegate with him for the first inquiry. It was entirely his decision not to have anyone attend the second inquiry.

iv) The applicant had complained that he was denied legal representation at both the inquiries. Two things need to be said about that. Firstly, the Council's Disciplinary and Counselling Policy does not permit legal representation for either party at such inquiries. Secondly, Mr McLeay said his Union had no issues with the policy.

v) It was Mr Thornton's evidence that he believed the first inquiry was conducted fairly and in accordance with Council Disciplinary and Counselling Policy.

vi) In the second disciplinary inquiry the applicant was given several opportunities by Mr Dearsley, to adjourn the proceedings, if he was not ready to proceed. It was the applicant who had insisted the inquiry go ahead. (See p4 of transcript of inquiry).

viii) Mr Partridge's evidence was that in the second disciplinary inquiry, the applicant appeared calm. He had tabled and spoke to a three page statement.

359 In my judgement, both disciplinary inquiries were conducted fairly, strictly in accordance with the Council's policy and with particular attention to ensuring the applicant had every opportunity to defend himself against the allegations made against him.

Findings

360 The Commission finds that:

1) The applicant was well aware of the Council's Code of Conduct and his obligations and responsibilities under it.

2) Both disciplinary inquiries were conducted in accordance with Council's policy.

3) In the words of s88 of the Act, the applicant was given an opportunity to make out a defence and give an explanation for his behaviour.

4) The disciplinary inquiries were not intimidatory or discriminatory.

5) There was no denial of procedural fairness to the applicant.

7. Medical evidence and mitigating factors

361 Three medical reports were tendered in evidence. The first was from the applicant's General Practitioner, Dr Ian Mackenzie, dated 27 February 2003. A treating psychiatrist, Dr Yolanda Lucire provided two reports relating to her interview with the applicant on 28 February 2003. It was argued that Dr Lucires' reports demonstrated that the applicant was suffering from stress and psychological difficulties. It was said that the applicant's medical conditions explained why he gave contradictory evidence during the disciplinary inquiry and also during his evidence before the Commission. In dealing with the medical evidence, it is necessary to refer to the conclusions of both doctors given after consulting with the applicant on consecutive days.

362 Dr Mackenzie's conclusions were as follows:

Mr Boers' was last reviewed on the 24th. February 2003. I was relieved and pleases to see that he was now in excellent mental and physical health. His energy levels and, sleep patterns had returned to normal; his self esteem was considerably improved; there was no longer higher centre dysfunction with the return of concentration, motivation and short term memory problems to normal levels; he no longer awoke with a feeling of impending doom; he was enjoying life again; and he had not suffered from anxiety symptoms nor panic attacks for several months. In short, his Major Depressive Disorder, associated anxiety symptoms and Panic Disorder are now in remission. He remains on an antidepressant for the time being but I hope to be able to discontinue it in the near future.

363 The next day Dr Lucire interviewed the applicant and gave this opinion:

Diagnosis and Opinion

The formal diagnosis would be Acute Stress reaction, followed by Adjustment Disorder (this means 'reactive') with mixed emotional features.

I find that Mr Boers is suffering a good deal of distress. He is anxious. He is angry. He feels damaged and injured in that his reputation has been injured and is likely to remain to so unless he gets an apology. He cannot tolerate things that remind him of his humiliation.

He has been disadvantaged because not only did they refuse to give him his enforced entitlements that is his annual leave, the employer has withheld long service leave and other kinds of leave.

I was initially hampered by a lack of documents in this matter, and they have been made available to me. The report has been checked by Mr Boers and found to be correct as to the 'facts'.

The psychiatric opinion is mine.

364 Written one day apart, what glaringly stands out from these two opinions is that they are so obviously contradictory.

365 Such a result would appear to confirm my view that conflicting medical opinions, particularly in the field of psychological assessment, must be treated with some caution. One might be more inclined to accept the General Practitioner's opinion as the doctor well familiar with the applicant's history and experience. Moreover, Dr Mackenzie's opinion seems to be in tune with the applicant's own view of his state of health - at least when he gave his evidence before the Commission. In answer to a question from Ms Brus, the applicant agreed that he was now "fit as a trout." This would accord with my own observations of the applicant in the witness box.

366 Nevertheless, I accept that at the time the applicant saw Dr Lucire he may well have been distressed and upset. After all, he had just been dismissed. However, it is not that point of time which is relevant. He had said he was stressed and confused when he told the disciplinary inquiry that he had no knowledge of the 15 June 2001 file note. At the inquiry the applicant made no reference to being stressed or that his medical condition was why he didn't remember the file note. He had used this defence at the first inquiry. Mr Partridge described him as calm during the inquiry. Listening to the tape, the Commission could not detect any evidence of high levels of anxiety or stress beyond what might reasonably be expected during a disciplinary inquiry. He was lucid and articulate.

367 I remain unconvinced that the applicant's state of mind at the time of the inquiry or during his evidence before this Commission was such as to explain his inconsistent and contradictory answers about his knowledge of the file note.

368 Moreover, it can be readily seen from Dr Lucire's report (and to a lesser extent that of Dr Mackenzie), that both doctors were entirely dependent upon the acceptance as fact as to what the applicant told them about his experiences at Council.

369 There were numerous examples of Dr Lucire accepting, without qualm or reservation, what the applicant had told her. In most cases these so-called "facts" were simply wrong or distorted. Indeed Dr Lucire offered some rather colourful opinions which were entirely subjective. For example she said:

a) That the Council had "instituted intimidatory tactics." No evidence for this assertion was offered.

b) "It would appear that in effect Mr Cirrillo and his agents did eventually have their revenge."

c) "Certain men in the office got email proposals for sex." This was an exaggeration of the email incident.

d) That Mr Cirrillo was trying to connect the email incident with the first disciplinary inquiry. This was simply wrong. In fact, it was the applicant who had wished to make the connection between the two.

e) The first disciplinary inquiry concerned "courtesy, a private matter with a neighbour." This was not so - it was about the applicant's attempt to use his position at Council inappropriately.

f) The Council' attitude to the offensive email was "it's not such a big deal, you left your computer, its your fault forget about it." No reference was made to the thorough investigation of the incident and the inability of Council to conclude who was responsible for sending the offensive email.

g) "The employer has withheld long service leave and other kinds of leave." The applicant had been employed for less than five years and would not have been entitled to pro rata long service leave.

h) That the applicant had been "set up" to go to Wagga Wagga. There was no elaboration or evidence as to how that had happened.

i) The Wagga Wagga incident did not constitute a "financial conflict of interest." It was of course never suggested that the Wagga Wagga incident constituted a financial conflict of interest. Council had concluded it was a non pecuniary conflict of interest.

370 In my opinion, Dr Lucire's report is so self-serving and based on so many false premises, that it should be rejected as utterly unhelpful. Even Dr Mackenzie's report was based on a premise which was patently incorrect. He said:

I initially saw Mr Boers on 9 October 2001. He was extremely distressed concerning a series of emails attributed to him by senior management in his Department at South Sydney Council. He requested further investigation of these emails falsely attributed to him but this request he stated was ignored.

This assertion was just wrong - the request for an investigation was not ignored.

371 The medical evidence leads me to refer to and adopt the following passage in Stonham v Speaker of Legislative Assembly [2003] NSWIRComm 30, where Peterson J said at para 21

A major difficulty arising from the evidence of the psychiatrists is their formation of an expert opinion based upon the history which is provided to them. That history is not subjected to any testing and is accepted without regard for any contrary view which may be expressed by a person involved in any allegations made by the patient. An illustration of the risk in this approach, from the point of view of later proceedings, arises in the evidence of Dr Edwards, who was called in the applicant's case. He accepted that the ability of a person to accurately recollect events would be severely affected by the condition of depression and also alcohol and drug abuse; there would be muddled thinking and memory loss and it would be inconceivable that a person ingesting alcohol and drugs at the maximum level of intake of the applicant would have a clear recollection of events. While one can readily understand the need for medical advisers to take that approach in the interest of the patient, this case is an illustration of the danger which can arise from too ready an acceptance of the view of only one person in a series of events involving many persons.

372 In my view, his Honour's last observation is applicable here. Dr Lucire adopted "a ready acceptance of the view of only one person in a series of events involving many persons."

373 There was considerable cross examination of the Council's witnesses concerning the applicant's work performance - no doubt in an attempt to prove the Council's vendetta against the applicant. It is fair to say that Ms Harris and Mr Cirillo were less than complimentary of the applicant's work performance. However, it needs to be emphasised that the issue of the applicant's performance was never a reason for his first or second disciplinary inquiry, nor was it a reason for his dismissal for misconduct.

374 As the authorities of this Commission make clear, an employees work performance is a relevant factor to be taken into account in assessing whether dismissal was justified. If the applicant had an otherwise long and exemplary period of service that would plainly be a factor the Commission would take into account. On the other hand, it would be wrong to ignore both the 'Vanos' incident and the 'Scarlis' incident when considering the overall facts and circumstances of this case. In any event, both matters received considerable attention by both parties during the course of the proceedings.

375 Emails discovered after the applicant's dismissal reveal that during his employment the applicant had made arrangements to have lunch with Mr Scarlis. The applicant had processed a DA for Mr Scarlis. The applicant was recalled to give evidence on this matter. He said that there was no conflict of interest and he had done nothing wrong. He and his partner had paid for their own meal and, in any event, by this time Mr Scarlis' DA had been approved. Mr Scarlis was therefore an ex applicant.

376 While the Council took this matter no further and there was no evidence of any corrupt conduct, the fact that the applicant was engaged in such a silly exercise plainly demonstrated, at the very least, that he had no comprehension of what constituted appropriate conduct and behaviour for a Council planner. In my view this conduct might well be perceived by a reasonable person as a clear conflict of interest.

377 While I accept that the applicant was angry and upset on the day of the Vanos incident, his own evidence was that he mentioned to Ms Vanos that he worked for Council. In my opinion, this can only have meant one thing. The applicant used his position to exert pressure on Ms Vanos. At best, this incident displayed the applicant's poor lack of judgement and self control.

378 It seems straightforward enough that from at least mid 2001 the applicant's focus on his work was less than what was expected of an experienced planner. The applicant did not dispute the evidence of Ms Harris that she had cause to comment on his performance and behaviour during this time. He did not dispute that he received a warning when he sent his own inappropriate email in December 2001. I do not think it was a sufficient defence to rely on Mr Harrison's comment that he believed the applicant's work was "solid". This was hardly a ringing endorsement. In any event, Mr Harrison was not directly responsible for the applicant's supervision.

379 Accordingly, I cannot find any mitigating circumstances which would result in the Commission drawing a different conclusion to that taken by the Council in dismissing the applicant.

Summary of Findings

The Commission makes the following findings:

1) There was no reasonable basis for the applicant's allegation that he was subject to sexual discrimination or victimisation. There was no evidence that any of the Council's witnesses were homophobic or were involved in a vendetta against the applicant, either on a personal basis or because of his sexuality. There was no evidence that the Union delegate or the Union was homophobic. There was no evidence as to the claim that the Union did not assist its gay and lesbian members in workplace issues.

2) The Council responded swiftly and decisively to the applicant's complaint concerning the offensive email. This investigation was thorough and exhaustive. It was impossible to identify who sent the offensive email. The Council took further steps to address the applicant's concerns, including altering the email policy to make it more specific to homophobic harassment and changing his password.

3) There was no ambiguity in Mr Harrison's directive to the applicant not to undertake work for Ms Bates in Wagga Wagga. The applicant deliberately and intentionally ignored the reasonable direction of management. The Council's allegation that "you refused to comply with a direction by the Statutory Planning Manager, Mr Giovanni Cirillo and Miss Jodie Harris, that you were not to deal with any DA associated with Julie Bates or Urban Realists in the South Sydney City Council area" was proven. The applicant's conduct was such as to constitute misconduct.

4) The applicant was aware, at all material times, that Ms Bates was involved in the 93 Crown Street DA. The applicant knew at the time he sought approval to go to Wagga Wagga that Ms Bates was involved in a development application he was processing for 93 Crown Street. The applicant's explanations for not being aware of the file note of 15 June 2001 are not credible and are rejected. The Council's allegation that the applicant failed to disclose a conflict of interest, whether pecuniary or non pecuniary, as required by the Code of Conduct was proven. The applicant's conduct was such as to constitute serious misconduct.

5) The applicant was well aware of the Council's Code of Conduct and his obligations and responsibilities under it. Both disciplinary inquiries were conducted strictly in accordance with Council's policy. The disciplinary inquiries were not intimidatory or discriminatory. In the words of s88 of the Act, the applicant was given an opportunity to make out a defence and give an explanation for his behaviour. There was no denial of procedural fairness to the applicant.

380 Accordingly, the Commission is satisfied that the applicant's dismissal on 27 February 2002 was not harsh, unjust or unreasonable, either substantively or procedurally. Having regard for all the circumstances of this case and in the interests of ensuring justice is afforded to both parties, the Commission declines to intervene in the Council's decision to terminate the applicant's employment. Application IRC02/4031 is dismissed. The proceedings are concluded.

Peter J Sams

Deputy President

Annexure A:

Code of Conduct 5.1 When does a conflict of interest arise?

A conflict of interest arises if it is likely that the person with the private or personal interest could be prejudicially influenced in the performance of his or her public or professional duties by that interest, or that a reasonable person would believe that the person could be so influenced.

The interest can be either pecuniary or non-pecuniary.

A pecuniary interest is an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person or another person with whom the person is associated.

Associated persons are:

a) a person's spouse or de facto partner or relative of the person or a partner or employer of the person;

Where a relative is defined as:

(i) the parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendent or adopted child of the person or of the person's spouse;

(ii) the spouse or de facto partner of the person or of a person referred to in paragraph (i).

b) the person, or a nominee, partner or employer of the person who is a member of a company or other body.

However, a person does not have a pecuniary interest:

a) if the person is unaware of the relevant pecuniary interest of the spouse, de facto partner, relative or company or other body; or

b) just because the person is a member of, or is employed by, a council or a statutory body; or

c) just because the person is a member of, or a delegate of a council to, a company or other body that has a pecuniary interest in the matter, so long as the person has no beneficial interest in any shares of the company or body.

A non-pecuniary interest is any private or personal interest which does not pertain or relate to money (for example kinship, friendship, membership of an association, society or trade union or involvement or interest in an activity).

5.2

...

Where the interest in question is a pecuniary one, the person with the interest must comply with the Act, that is disclose the interest and take no further part in the consideration or discussion on the matter.

A staff member is also required to record the entry in their departmental Conflict of Interest Register and forward it to their supervisor/manager. The Register must also be forwarded to the General Manager on the same day the entry is made.

6.1 A councillor, member of staff or delegate must:

(b) not act unreasonably, unjustly or oppressively or in a discriminatory manner;

...

(h) not act for an improper or ulterior purpose or on irrelevant grounds.

Annexure B:

Departmental Disciplinary Inquiry

A Departmental Director will arrange a Departmental Disciplinary Inquiry when an employee is alleged to have committed an act of serious misconduct (as outlined in clause 5 of the policy) and/or where the Counselling and Discipline Procedures have failed to assist an employee in reaching an acceptable standard of work performance or behaviour.

8.1 The employee shall be notified in writing of the nature of the allegations to be addressed including two (2) clear days notice of the days the Inquiry will be conducted to enable the employee to present a defence.

8.2 When conducting a Departmental Disciplinary inquiry, a Departmental Director;

a) Shall call evidence whether hearsay or otherwise, or make such enquiries as they feel necessary to fully brief the inquiry of all the facts.

b) Shall not be bound by any rule of evidence.

c) May authorise payment of the employee or any witnesses called on behalf of the employee or Council for time spent at the Inquiry.

d) Must have authorisation from the employee and their representative to audiotape the Inquiry so as to provide a transcript. If no authorisation is given, then comprehensive notes will be taken.

8.3 In a Departmental Disciplinary Inquiry, an appropriate officer may represent Council and the employee may be represented by an official of their union (if such union is a party to Council's Awards). In a situation where an employee is not a union member they may arrange suitable representation as appropriate.

8.4 Council or the employee shall not be represented at the inquiry by counsel, solicitor or paid agent.

Annexure C:

Local Government Act 1993

s459 Disclosure of pecuniary interests when dealing with council matters.

(1) A designated person must disclose in writing to the general manager (or if the person is the general manager, to the council) the nature of any pecuniary interest the person has in any council matter with which the person is dealing.

(1A) However, subsection (1) does not require a designated person who is a member of staff of the council to disclose such a pecuniary interest if the interest relates only to the person's salary as such a member of staff or to his or her other conditions of employment or the like.

(2) The general manager must, on receiving a disclosure from a designated person, deal with the matter to which the disclosures relates or refer it to another person to deal with.

(3) A disclosure by the general manager must, as soon as practicable after the disclosure is made, be laid on the table at a meeting of the council and the council must deal with the matter to which the disclosure relates or refer it to another person to deal with.

LAST UPDATED: 05/11/2003