Roddenby and Orange Community Accommodation Service Incorporated [2003] NSWIRComm 1059 (24 October 2003)

Last Updated: 28 November 2003

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Industrial Relations Act 1996

CAROLYN VIVIENNE RODDENBY

(Applicant)

-V-

ORANGE COMMUNITY ACCOMMODATION SERVICE INCORPORATED

(Respondent)

COMMISSIONER CAMBRIDGE 24 October 2003

Matter No. IRC 3341 of 2002

Application by C Roddenby pursuant to section 84 of the Industrial Relations Act 1996 re alleged unfair dismissal.

[ IMAGE ]

D E C I S I O N

1.

On 11 June 2002, Carolyn Vivienne Roddenby (the applicant), made a claim for Relief in relation to unfair dismissal. The claim was made pursuant to section 84 of the Industrial Relations Act 1996, (the Act). The claim named the respondent employer as Orange Community Accommodation Service Incorporated (the employer).

2.

Following unsuccessful attempts at reaching conciliated agreement to settle the matter, the Hearing of the Arbitration of the claim has involved two days of Hearing taking evidence in Bathurst, on 19 and 20 June 2003, a further day of Hearing taking evidence in Sydney on 4 July 2003, and finally Hearing of Submissions which occurred on 10 September 2003.

BACKGROUND

3.	The applicant is a woman who was 51 years of age at the time of her alleged unfair dismissal on 3 June 2002. The applicant had worked for the employer for almost two years.

4.	The employer relevantly operates emergency accommodation services at premises called Lawson House situated in Orange. The applicant worked in a position described as Manager which involved part-time regular engagement of thirty hours per week.

5.

The employer is an incorporated association established primarily for the purposes of the provision of secure, safe, emergency accommodation to homeless persons. The general control and management of the affairs of the employer is governed by a Committee of Management comprising various elected members. The applicant, as Manager of the employer, reported directly to the Committee of Management and was responsible for a broad range of managerial functions associated with the day to day operation of the employer's emergency accommodation premises at Lawson House.

6.

The applicant was advised of her dismissal during a meeting held on 3 June 2002. The applicant was summarily dismissed for what was described as sexual misconduct. The applicant's dismissal was confirmed by way of letter dated 4 June 2002, which mentioned that the basis for dismissal involved "sexual misconduct in Manager's office". The employer filed a written reply to the claim regarding unfair dismissal which stated:

"The Applicant was dismissed from her duties with the Respondent Employer due to her engaging in sexual intercourse in one of the offices of the Respondent Employer."

7.

Although some other performance and conduct issues were raised by way of complaint against the applicant, these issues were largely incidental to the central basis upon which the summary dismissal of the applicant was established, that being the event which alleged that the applicant was witnessed to have been engaged in the act of sexual intercourse with a person described as her "boyfriend". The sexual intercourse was said to have been witnessed by another employee, a Mr Darcy Callan, who entered the Manager's office at the Lawson House premises and witnessed the event as it was alleged to have been occurring.

8.

Mr Callan initially said that he observed the sexual intercourse event on 26 February 2002. Mr Callan did not immediately report the event to any other person. Mr Callan apparently told his wife about his observation of the sexual intercourse event on the day following the alleged event. Mr Callan also discussed his observation of the sexual intercourse event with another employee on or about 10 April 2002. This discussion took place with a work colleague of Mr Callan who was not in a position of authority with the employer. One further month later on 10 May 2002, Mr Callan reported his observations of the sexual intercourse event to a person in authority being a member of the employer's Committee of Management.

9.

On 14 May 2002, Mr Callan signed a document which stated that he had observed the sexual intercourse event at 6.25 pm on 26 February 2002. The employer was provided with Mr Callan's letter of 14 May 2002, which set out the allegation of the sexual intercourse event. The employer then arranged for investigation of the sexual intercourse event and suspended the applicant from duty with pay.

10.	The employer's Committee of Management held a Special Meeting on 29 May 2002, and resolved as follows:

"We recommend that, pending the outcome of the meeting between Carolyn [the applicant], (and her representative ?), Mick Long [employer appointed investigator] and Bev Petschel [Acting Chair], we are of the firm belief that gross misconduct on Carolyn's part has occurred and that we will move to dismissal." ^[1]

11.	The meeting to which the resolution of the Committee of Management referred occurred on 3 June at which time the applicant was advised of her dismissal.

12.	The applicant has asserted that her dismissal was both substantively and procedurally unfair and has requested that she be reinstated into her position as Manager at Lawson House.

THE EVIDENCE

13.

The evidence in this matter has focussed upon the alleged sexual intercourse event. This was an event which was said to have been inadvertently and very briefly observed by Mr Callan when he opened the door to the applicant's office. There were only three individuals who could provide any direct evidence about the alleged sexual intercourse event.

14.	The applicant and her "boyfriend" Mr Brown flatly denied the event as alleged by Mr Callan. The Commission has therefore been required to carefully examine the important evidence as provided by the applicant and Mr Brown, and compared with the alternative version provided by Mr Callan.

15.

Although there was a disturbing absence of precision in respect to the employer's determination of the sexual intercourse event, it was clear that the employer had concluded that the sexual intercourse event as broadly alleged by Mr Callan, did occur, and that that event represented misconduct sufficient to warrant summary dismissal. Consequently the evidence presented in this matter has included a review of the employer's process by which it came to the conclusion that the sexual intercourse event did occur.

16.

In addition, the Commission has been provided with evidence beyond that information available to the employer at the time that it took the decision to dismiss. The evidence that has been provided has therefore sought to establish a basis for review of the employer's determination, and additionally, to seek to have the Commission make certain findings of fact as to whether or not the sexual intercourse event occurred.

17.

There was a total of ten witnesses called to provide evidence in this case. The applicant and her boyfriend Mr Brown were the only witnesses in support of the applicant's claim. As would be anticipated in a matter that would largely turn upon directly conflicting evidence regarding an event such as the alleged sexual intercourse inadvertently discovered by Mr Callan, the credit of the central witnesses has become an important factor in the determination of the various questions of contested fact. It is therefore necessary to record some observations of the primary witnesses.

18.

The applicant presented as a slightly talkative character. She had an open disposition as a witness and displayed the commendable quality of not taking opportunity to be disparaging towards others who were providing evidence against her claim. Despite the obvious difficulties associated with a matter involving allegations described as sexual misconduct, the applicant presented her witness evidence in a deliberate, careful manner. The applicant also presented a somewhat stoic personality who, although clearly emotionally upset by the allegations which underpinned this matter, was determined and strong willed.

19.

The applicant did not seek to avoid difficult questions, nor did she unnecessarily embellish her answers to questions which would obviously assist her case. The applicant displayed respect and maintained dignity during some difficult cross examination. Generally she presented as a believable and intelligent woman. There were no identifiable inconsistencies or incongruities in her evidence and I conclude that she was a witness of truth.

20.

Mr Garry Brown provided witness evidence as the "boyfriend" who was alleged to have been involved in the sexual intercourse event. Mr Brown presented as a slightly nervous character. Despite his obvious anxieties he provided calm and measured answers to questions which were at times understandably difficult. Mr Brown appeared as a quiet, almost introverted personality who provided considered answers in a most respectful way. There were no significant inconsistencies identified with the evidence provided by Mr Brown, and I have accepted that he was a witness of truth.

21.

Mr Darcy Callan provided evidence as a witness. Mr Callan was a witness of vital importance to the Determination of this case. Mr Callan's alleged observations of the sexual intercourse event had been believed and adopted by the employer. Mr Callan provided evidence which, upon careful and detailed reflection, I find to be neither persuasive or believable.

22.

Mr Callan exhibited what could be described as a gruff personality. Mr Callan was clearly uncomfortable during his attendance in the witness box. The discomfort that Mr Callan displayed extended beyond the ordinary and acceptable levels of anxiety that most witnesses display. At times Mr Callan's displeasure with having to provide evidence manifest into curt and disrespectful answers during cross examination. At one point Mr Callan stated that he had developed a dislike for the cross examiner. This statement was reflective of an attitude that did not comprehend the process or experiences of providing evidence as a witness in anything but the most simplistic of notions. Mr Callan was easily confused and provided some incongruous answers to seemingly simple questions. Overall Mr Callan was not a witness who impressed as being either lucid or believable.

23.

In a matter such as this it is perhaps difficult to avoid the prospect that the dramatically different versions of the alleged sexual intercourse event must give rise to serious questions regarding the veracity of one version or the other. Consequently it would appear that the Commission may be compelled to conclude that there was some deliberately untruthful testimony. It would seem difficult to avoid such a prospect given the nature of the conflicting evidence concerning the alleged sexual intercourse event.

24.

However, I am not prepared to record such findings regarding the testimony of Mr Callan. It was clear that Mr Callan had been psychologically affected by issues arising in the workplace and which he attributed to a vendetta against him conducted by the applicant. The extent of this psychological impact had required Mr Callan to use certain anti depressant medication. In such circumstances it is conceivable that Mr Callan may have genuinely believed that he inadvertently witnessed an act of sexual intercourse which may have, in reality, been little more than an amorous embrace. Consequently I do not believe that the evidence provided by Mr Callan should be recorded as being deliberately untruthful.

25.

There were seven other witnesses called to provide evidence in support of the employer's case. Given the primary determination required in this case, it is unnecessary to record any detailed observations of the other witnesses. In general the other witnesses provided evidence which was broadly believable and did not go directly to the sexual intercourse event. In large part the evidence of other witnesses established a broadly consistent position regarding the procedures that the employer adopted in respect to the investigation and determination of the allegations as raised by Mr Callan in his document of 14 May 2002.

THE CASE FOR THE APPLICANT

26.	Mr R Moore, barrister, appeared for the applicant at Hearing. Mr Moore provided a written outline of the applicant's submissions which he supplemented with extensive oral submissions.

27.

Mr Moore's oral submissions commenced by reference to Authority established in the case of Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v. Gartrell White (No 3) (Gartrell White) [2]. Mr Moore quoted extensively from the Decision in Gartrell White and summarised that the claim in this instance involved an analysis as to whether the employer had satisfied the evidentiary onus in a case involving summary dismissal for alleged gross misconduct. Mr Moore submitted that the employer had not properly established that the alleged misconduct had occurred.

28.

Mr Moore made a further submission which advanced the prospect that even if the employer had satisfied the necessary evidentiary onus (and Mr Moore stressed that it had not), the nature of the alleged misconduct did not constitute misconduct sufficient to bring the employment relationship to an end by way of summary dismissal. In this regard Mr Moore stated that the alleged misconduct had not happened, but even so it was not conduct that in itself struck at an essential condition of the contract of employment, and thereby could not properly provide basis for summary dismissal.

29.

Mr Moore further submitted that the applicant understood that notwithstanding the evidentiary onus in cases involving summary dismissal, the applicant was required to establish a case sufficient to warrant the Commission's intervention. It was therefore necessary for the Commission to satisfy itself that there could be no justifiable basis for dismissal notwithstanding that the employer had failed to discharge the evidentiary onus relevant to a case involving summary dismissal. Consequently, according to the submissions of Mr Moore, it was necessary for the Commission to examine the primary factual contest involving the alleged incident that was the basis for dismissal.

30.

Mr Moore made extensive submissions which criticized in detail the evidence provided by Mr Callan regarding his alleged observation of the sexual intercourse event. Mr Moore said that the testimony of Mr Callan should not be believed, and that his version represented a "fantastic story, improbable in the extreme". Mr Moore urged the Commission to reject the evidence of Mr Callan and adopt the evidence provided by the applicant and Mr Brown. Consequently Mr Moore submitted that the substantive basis for dismissal did not exist.

31.

Mr Moore made further submissions which criticised the employer's investigation and determination of the allegations raised by Mr Callan. Mr Moore submitted that the employer's investigation was not commensurate with the seriousness of the allegations that had been raised. Mr Moore said that the investigation process adopted by the employer was significantly inadequate. Mr Moore submitted that the employer had ultimately decided to believe Mr Callan without providing the applicant proper opportunity to state her case. According to Mr Moore there had been a reversal of onus of proof whereby the applicant was required to disprove the allegation rather than have Mr Callan establish his assertion.

32.

Mr Moore summarised his submissions by asserting that the applicant's dismissal was both substantively and procedurally erroneous. Mr Moore urged the Commission to make Orders providing for the reinstatement of the applicant as the circumstances of this case warranted such remedy. In this regard Mr Moore stressed that the allegations of sexual misconduct had tainted the applicant and that the applicant was entitled to the primary Relief in such circumstances. Mr Moore submitted that there had been no impracticality to reinstatement established, and therefore if the applicant was unfairly dismissed she was entitled to reinstatement and other consequential Orders providing for proper rectification of a significant injustice.

THE CASE FOR THE EMPLOYER

33.	Mr S Coleman, barrister, appeared for the employer at the Hearing. Mr Coleman provided written submissions upon which he elaborated verbally.

34.

Mr Coleman commenced his submissions by defending the employer's investigation process. Mr Coleman submitted that the applicant had been given proper and adequate opportunity to put her position before the employer's Committee of Management had decided to move to dismissal. Mr Coleman submitted that the applicant had not taken sufficient and diligent steps to ensure that she met with the person that the employer had appointed to conduct the investigation, Mr Long. Mr Coleman submitted that the Commission should be mindful that the employer was under some time constraints and considerable pressure to resolve the issue at the time at which the applicant had been suspended on pay. Mr Coleman said that the applicant should be required to accept some responsibility to act in a timely and diligent manner and she was provided with proper opportunity.

35.

Mr Coleman made further submissions which rejected the attempted impeachment of the evidence provided by Mr Callan. Mr Coleman submitted that Mr Callan did not resile in any way from his allegations, and that at no time had the essential elements of his observations altered. Mr Coleman rejected suggestions that the delay that occurred between the alleged observation of the event and its reporting should operate so as to impugn the testimony of Mr Callan. Further Mr Coleman made submissions which urged the Commission to accept that Mr Callan was truthful, and that he had observed the event upon which the employer subsequently decided to dismiss.

36.	Mr Coleman submitted that sexual misconduct in the circumstances of Lawson House was very serious misconduct sufficient to warrant the summary dismissal of the applicant. Mr Coleman submitted that the dismissal of the applicant was not harsh, unjust or unreasonable in the circumstances.

37.

Mr Coleman made further and alternative submissions which went to the question of any remedy. In this respect Mr Coleman submitted that if the Commission was to find that the applicant had been unfairly dismissed it would be impractical and inappropriate for any Order of reinstatement to follow. Mr Coleman made extensive submissions about the predicted consequences of any reinstatement of the applicant. Mr Coleman suggested that any remedy if it was to be provided to the applicant, should be confined to Orders for compensation as opposed to reinstatement.

CONSIDERATION

38.

The focus of this case has involved an analysis of the evidence regarding the alleged sexual intercourse event. This is a case involving resolution of direct factual conflict. Mr Darcy Callan alleged that he witnessed the applicant and her "boyfriend" Mr Brown engaged in "sexual relations" in the Manger's Office at Lawson House. The applicant and Mr Brown flatly deny that they had engaged in any sexual intercourse in the Manager's office or any other part of Lawson House.

39.

Earlier in this Decision I have mentioned that the issue of the credit of the primary witnesses regarding the alleged sexual intercourse event has been a factor relevant to the resolution of this primary contest. Of course matters such as presentation, demeanour, and other observed characteristics of witnesses would not necessarily provide a conclusive basis upon which to settle a factual contest of this nature. The issue of credit is also often assisted by identification of inconsistencies and other deficiencies in the evidence of the witnesses that are providing any conflicting testimony.

40.

In addition to an analysis of that evidence provided by the central witnesses, there are a number of other important aspects of evidence regarding the alleged sexual intercourse event which along with the question of credit, underpin the Commission's findings. The Commission's consideration has therefore extended beyond the findings as to credit so as to include analysis of evidence of various factors regarding the alleged sexual intercourse event.

Delay in Report of the Alleged Event

41.

The first written record of the allegations of the sexual intercourse event was made approximately two and a half months after the event was alleged to have occurred. The reason provided for the delay in raising the allegation was curious. Mr Callan's letter of 14 May 2002 which first documented the allegations, included the following sentence in the opening paragraph:

"I didn't say anything to Carolyn or report this to anybody because as there was two of them and only one of me so this is hard to prove." ^[3]

42.

At the time of first documenting the allegation on 14 May 2002, Mr Callan had recognised that there would be question raised about the delay in the reporting of the incident. Consequently he mentioned that he did not "report this to anybody" and offers an explanation for that conduct. Curiously however it has been subsequently revealed that he mentioned the incident to his wife on the following day, and that he reported the matter to his work colleague Mr Chapman, on or about 10 April 2002. Strangely he made no mention of these recounts of the alleged event in his letter of 14 May 2002 despite recognising that the delay in reporting the matter would serve to bring his allegations into question.

43.

It would seem logical and reasonable that when making the written report on 14 May 2002, and being aware that some question would arise in respect of the delay in reporting of the matter, that mention would have been made of the earlier discussions with both his wife, and then subsequently with his work colleague Mr Chapman. It would seem that at very least, mention of the earlier verbal discussions regarding the incident with firstly his wife, and later Mr Chapman would have provided obvious support for his position and in particular, assisted with explanation for the considerable delay between the alleged event and its first written report.

44.

The absence of any mention of the earlier verbal report of the alleged event is further compounded by evidence that Mr Callan's letter of 14 May 2002 was typed by his wife. Mr Callan's wife was a person who apparently had been advised of the incident on the day following its alleged occurrence. It was therefore indeed curious that this fact would not be mentioned in the letter of 14 May particularly as Mr Callan's wife was involved in the construction of that document.

Incorrect Date

45.	Mr Callan's letter of 14 May 2002 commences as follows:

"Dear Committee

I am writing to you regarding something that I observed happening at work on the 26th February 02."

46.

The applicant subsequently provided evidence which established that her "boyfriend" Mr Brown was recorded as being in attendance at a meeting at a different location at the time at which the alleged event occurred. In addition the applicant provided evidence that she was dining with a friend at a restaurant at the time at which the alleged event was to have occurred. Subsequently Mr Callan has suggested that the date of 26 February would be wrong, and that the correct date would have been 25 February.

47.

Mr Callan provided an explanation for the wrong date which involved his wife checking the date of the last Monday in February on the 2001 calendar, as opposed to the 2002 calendar. Mr Callan said that the date of 26 February was a simple mistake made by his wife attempting to verify the date for the last Monday in February on the 2001 calendar, rather than the 2002 calendar.

48.

Mr Callan said that he fixed the date by reference to the last Monday in February, and that his wife's inadvertent error was based simply upon reference to the wrong year when ascertaining which date the last Monday in February fell upon. Mr Callan was cross-examined on this explanation for the incorrect date and he strongly asserted that his reference for the timing of the alleged event involved a conviction that it occurred on the last Monday in February.

49.

One would therefore anticipate that when the question of the incorrect date had been first raised with Mr Callan, those individuals that were involved in the investigation at the time would have a recollection of Mr Callan's insistence that the date was fixed by reference to the last Monday in February. There was no evidence from any of the witnesses who were involved in the investigation into the allegations that when tested on the question of the incorrect date, Mr Callan had offered the proposition that he fixed the date of the event by reference to knowledge that it was the last Monday in February irrespective of what actual date that may have been. Rather than there being any evidence which recounted Mr Callan's conviction about the issue of the timing being fixed by reference to the last Monday in February, the following evidence was provided by Father Kennedy during cross-examination:

"Q. But in terms of it there was never any identification of a date once the 26^th had become wrong, isn't that right?

A. My recollection was that he was confused or there was some mix up where he thought it was the Monday or the Sunday or the - and it was the Tuesday whatever it was, but - -" ^[4]

50.

The fixing of the precise time of the alleged event is fundamental to the allegation that Mr Callan raised. It is an important matter and that is recognised by his inclusion of the date in the opening sentence of his letter of 14 May 2002. The importance of the date was reinforced by Mr Callan's decision to have the date determined with some precision rather than to include words such as "on the Monday of the last week in February". Mr Callan's precision was subsequently said to be provided by reference to his insistence upon fixing the time of the event to the last Monday in February. There was no supporting evidence from any other of the employer's witnesses which confirmed Mr Callan's earlier insistence upon the manner in which he fixed the date by recollection of it being the last Monday in February.

51.	The issue of the wrong date arose very quickly after the allegation was documented. Strangely however there was no explanation for the inclusion of the wrong date of 26 as opposed to 25 February until some considerable time after the dismissal of the applicant.

Vendetta

52.

It is relevant to note that Mr Callan provided evidence that he believed that the applicant had conducted a vendetta against him. Mr Callan admitted that he did not like the applicant, and there had been some extensive and difficult disciplinary proceedings against Mr Callan which he perceived to be initiated by the applicant as a vendetta against him.

53.

Mr Callan was significantly affected by the disciplinary action taken against him and which he perceived to be part of a vendetta conducted by the applicant. The impact of the workplace turmoil upon Mr Callan was of such significance that he required medical treatment for the psychological consequences that he suffered. Mr Callan was prescribed medication to assist his psychological state.

54.	In these circumstances then, the judgements and actions made by Mr Callan must be considered in the context of an employee who has suffered psychologically and, as he perceived it, at the hands of his Manager, the applicant.

Details of the Alleged Act

55.

There were a variety of points of detail regarding precisely what Mr Callan alleged that he saw which established incongruity in the evidence. For instance Mr Callan stated that he was certain that he observed the act of sexual intercourse. Upon some detailed examination he provided evidence that he saw Mr Brown thrusting himself backwards and forwards in between the applicant's legs. Further, Mr Callan provided evidence that he told Father Kennedy and Mr Long about the thrusting backwards and forwards. When Father Kennedy and Mr Long were questioned about their detailed knowledge of the alleged event, neither of them mentioned that Mr Callan had described the event and used words involving the thrusting backwards and forwards. Father Kennedy provided the following evidence about the detail of the alleged event:

"Q. So you didn't ask him what it was that he saw which made him feel definite that this was sexual intercourse and not the hug or the kiss that you had alluded to?

A. Well only that sort of question, was he absolutely certain that it was intercourse and not something other than that and I think that's when that line, something about the farming - that tone, mightn't be the exact words, but certainly that was something it was definitely having sex, you know, I come from - I know from my experience." ^[5]

56.

It was therefore curious that when recounting the detail that Mr Callan had provided Father Kennedy during the investigation into the matter, Father Kennedy did not make any reference to any thrusting backwards and forwards. Mr Long was appointed by the employer to investigate the allegations made by Mr Callan. Mr Long provided the following evidence when he was asked to recall aspects of detail that Mr Callan had provided at the time of the investigation:

"Q. Yes, and facing which way? Which way would she be looking?

A. He did not point that out to me. He said that - at that point in time, he became quite distressed about the whole thing, and he had explained to me, he felt, enough; and he then wished to speak with Father Kennedy, and he said that he'll give him a further appreciation of the thing. Then I went to re-interview him a bit later - in the second interview - and he went through much the same thing, but he was becoming also again quite distressed by the whole situation.

Q. In paragraph 16 you've queried whether this could have been misinterpreted. You've said that you said, "Are you sure they were actually having sex, and it wasn't a hug or something like that?"

A. That's right, yes.

Q. Is there more detail to that questioning - - -

A. There is more detail to that. He said that he was absolutely sure that sexual intercourse was occurring, and he said that he saw legs up in the air and it was quite graphic.

Q. What was graphic? What did he say?

A. The way he described it - and that's when he became upset about the whole thing - he said that he saw legs up in the air and the act of sexual intercourse occurring; and at that point in time he became distressed by his forced recollection of the event".^[6]

57.

As with the evidence provided by Father Kennedy when questioned about the detail that Mr Callan had provided during the investigation, there was no mention by Mr Long about the thrusting backwards and forwards. It is difficult to accept that if Mr Callan had mentioned the thrusting backwards and forwards to both Father Kennedy and Mr Long, that neither of those individuals would make mention of that point of detail when providing their testimony during proceedings.

58.

Despite what would have been the surprise discovery of the alleged sexual intercourse event there was said to have been no eye contact made between Mr Callan and either the applicant or Mr Brown. The distance between Mr Callan as he opened the office door, and the individuals alleged to have been engaged in the act of sexual intercourse was about 1 to 1.5 meters. It is difficult to imagine that a surprise discovery of this nature and at such close proximity, would not involve some eye contact.

59.	The evidence about the absence of eye contact at the time of the alleged discovery of the sexual intercourse event was curious and the following extracts from transcript involving questions asked of Mr Callan are relevant:

"Q. So you were actually in the office?

A. I had one foot in the office, yeah.

Q. Pardon?

A. I had one foot in the door, yeah

Q. You had one foot in the door?

A. Yeah.

Q. So to get in the door you had to have it back a fair way, you're a big man aren't you?

A. That's obvious.

Q. Yes, and so consequently to get in the door you would have to open its full extent up and where if I was going in the door would you not? (No verbal reply)

Q. You took one step into the office?

A. I had one foot in the door.

Q. And then you backed out?

A. That's right.

Q. So it wasn't just a matter like you described yesterday just swinging the door open and closing it, you actually went to step in?

A. When I observed what was happening I backed out.

Q. What's the distance between the door of the office and the return?

A. Here to that desk.

Q. That far away?

A. Yep.

Q. And do you say these people didn't notice you?

A. I don't know whether they did or not.

Q. Pardon?

A. I don't know whether they did or not.

Q. You don't know whether they did or not?

A. No. ^[7]

...

"Q. Now there are points of detail about this which obviously are not easy to answer, but it's important that I understand exactly what you saw?

A. Mmm.

Q. Now you say that the applicant, Ms Roddenby, was lying on the return?

A. That's correct.

Q. And her feet were - would've been pointing towards the end or off the end of the return?

A. That's right.

Q. And Mr Brown was positioned between her legs?

A. That's right.

Q. And her legs were wrapped around Mr Brown?

A. That's correct.

Q. At about what point on the body of Mr Brown were her legs wrapped?

A. Around his butt.

Q. Beg your pardon?

A. Around his behind.

Q. Could you see his bare behind?

A. No. I didn't look. I didn't take note. I seen her bare behind. I didn't - as her leg is quite large I didn't get to see any other thing. I was that shocked that when I seen that I got out of there.

Q. I think - I know it's difficult, but I need to ask these questions. Did you see his pants on the floor, presumably if this is what you say occurred he would've had his pants dropped presumably?

A. I don't think he had his pants dropped. I don't recall that he did.

Q. And is your evidence that you don't recall whether the two - that is the applicant and Mr Brown, noticed you or not?

A. I don't know whether they noticed me or not.

Q. You didn't make eye contact with either of them?

A. No.

Q. But I think in your evidence earlier on you said that the applicant was looking up at Mr Brown - -

A. At him.

Q. So her head would've been side on from where you were observing this?

A. That's correct.

Q. And you didn't notice in this short time whether either the applicant or Mr Brown turned their head towards you?

A. I got that much of a shock to get out was the thing I wanted to do. My reaction was to get out of here." ^[8]

60.

It would seem that the shock that Mr Callan said that he felt would have also been experienced by the applicant and Mr Brown. Mr Callan said that the applicant was looking towards Mr Brown but he did not make eye contact with either the applicant or Mr Brown. It is inconceivable that the entrance of Mr Callan into the office would not be noticed by two people engaged in sexual intercourse on a desk within 1 to 1.5 meters of the opening door. No matter how intense the engagement may have been, the couple could not have avoided noticing the door opening and the appearance of Mr Callan, albeit brief.

61.

It should also be noted that Mr Callan made the unnecessary comments; "- as her leg is quite large I didn't get to see any other thing." These comments appeared to be made as deliberately hurtful suggestions about the applicant's physical appearance. Of course Mr Callan alleged that he saw various other things other than the applicant's leg. Mr Callan alleged that he saw the applicant's "bare behind" yet she was alleged to have been lying on the desk return facing sideways to his view. If the applicant was positioned in this way, her "bare behind" was on, and in contact with, the desk return and could not have been visible.

62.

There a variety of other points of detail of the alleged sexual intercourse event which were not recounted with levels of consistency that would be expected. The precise position of the applicant varied between being fully reclined and partially reclined. There was no identification as to whether Mr Brown had his pants on or off and there was considerable discrepancy in the extent to which the door of the office had allegedly been opened so as to permit the observation of the alleged act.

63.	When the various points of detail are examined and considered in a composite fashion there was a less than convincing picture established as to precisely what was alleged to have been observed by Mr Callan.

Corroboration

64.

There was considerable lack of evidence regarding potential corroboration about important aspects of the alleged sexual intercourse event. Mr Callan had stated that he had completed a shift handover a short time before witnessing the event. However there appeared to be no attempt to establish who may have been the other employee that Mr Callan had replaced on the evening that the alleged event took place. This person may have been able to provide potentially important evidence about recollection that the applicant and Mr Brown were seen at Lawson House at about the time of the shift handover on the evening in question.

65.

In addition there appeared to be no attempt to identify any other residents that may have been at Lawson House at the time of the alleged event. It would seem plausible that some evidence may have been provided which could have verified that Mr Brown had been seen at Lawson House on the last Monday of February 2002. The absence of evidence of attempts to corroborate any particular points of the allegations raised by Mr Callan appeared to have occurred as a consequence of the general acceptance of his allegations. It appeared that it was left to the applicant to disapprove the charge made against her, rather than have the allegation tested in order to establish its veracity and accuracy.

Implausible Aspects

66.

There were a variety of other matters which created general implausibility about the allegations made by Mr Callan of the sexual intercourse event. For instance, the door to the Manager's office which was approximately 1-1.5 metres from where the applicant and Mr Brown were alleged to be engaged in sexual intercourse was unlocked. This was despite the fact that the locking of the door would only involve the pressing of the central button on the door lock.

67.	The office has various windows some of which open on to an adjacent car park and activities area. Some of the windows to the office do not have any window covering. The area is reasonably open to view from either outside or the adjacent pool table area.

68.	The desk return was one of the smaller desk areas in the office. There was a much larger table area in the office and within short distance from the desk return. It would seem therefore that a smaller and less convenient desk location was chosen.

69.

When these implausible aspects are considered in the overall context of the various other factors that have been identified, the allegation of the sexual intercourse event cannot be sustained upon reasonable and objective analysis. Particularly when one has regard for the balance and weight of evidence, there is an extraordinary number of factors which would assist in establishing a finding against the allegation. Whilst the only basis for support of the allegation involved the alleged truthfulness of the accuser and his apparent expertise in such matters said to have been obtained from having a farming background.

Procedure

70.

Although it is not necessary, given the primary findings that the evidence compels, some brief mention regarding procedure should be made. Regrettably the process that the employer adopted in order to investigate and determine the allegations made by Mr Callan can only be generously described as inadequate.

71.

The employer appointed Mr Long as an allegedly independent investigator. Subsequently it was discovered that Mr Long (and his father) had an established connection with Mr Callan of some 20 years. It would have been a simple, indeed obvious, step to inquire of Mr Long about any associations with individuals who were central to his investigation and which might create a perception of bias. Mr Long and other Committee members were aware of the anticipated nomination of Mr Long as a Committee member, and in such circumstances he would appear to the objective, reasonable observer as other than an impartial and independent person.

72.

Further, it was astonishing that Mr Long would report to the Committee of Management before he had met and heard from the applicant. Despite the difficulties that were experienced with the attempts to make contact between Mr Long and the applicant, it was fundamental to both the appearance and actual presence of natural justice that before any determination of the allegations was made the accused was provided the same hearing as the accuser. The Committee of Management took the highly erroneous step of deciding to authorise dismissal without providing the applicant an opportunity to be heard. Fundamental natural justice and good conscience should have triggered a requirement in the mind of at least one of the members of the Committee to ensure that the applicant was treated with fairness and basic human dignity.

73.

Instead, not one voice was raised to defend the undeniable right for the applicant to be treated as innocent unless and until she be properly heard and then found guilty. The Committee reversed the presumption of innocence. It accepted the accusations, required the applicant to disprove them, and then it did not provide proper opportunity for the applicant to be heard. It is hard to imagine a more injudicious approach, particularly when the allegations have potential serious consequences including personal hurt and humiliation.

Remedy

74.

There was a considerable amount of evidence devoted to the alleged difficulties which would be associated with any return of the applicant to employment. Given the nature of the allegations which formed the basis for dismissal, it was understandable that considerable personal conflict might exist particularly as between the applicant and her accuser, Mr Callan.

75.	In addition there was evidence that other employees and individual members of the employer's Committee of Management might experience personal difficulty if the employer's decision to dismiss the applicant was overturned and reinstatement Ordered.

76.

The assessment of the obvious difficulties that would exist for both the applicant and others if the employment relationship was to be re-established, has to be carefully considered against the circumstances which involved a serious allegation of the nature that existed in this case. It would seem that if serious allegations are ultimately disproved the individual who was subject to dismissal on the basis of such allegations, would be entitled to be provided justice by way of the primary remedy.

77.	There would no doubt be difficulties experienced by other employees and members of the Committee of Management of the employer. However these difficulties do not manifest as an impracticality to reinstatement.

CONCLUSIONS

78.

This matter has been made difficult by the nature of the allegations that the employer found as representing basis for dismissal of the applicant. The applicant was alleged to have engaged in "sexual misconduct". The sexual misconduct was said to have involved the applicant participating in the act of sexual intercourse at the workplace.

79.

The Commission has carefully analysed the evidence regarding the alleged sexual intercourse event upon which the dismissal of the applicant was based. On balance and weight of evidence the Commission is compelled to determine that there can be no finding that the sexual intercourse event did, as a matter of fact, occur. There is insufficient evidence upon which the allegation made by Mr Callan and as recorded in his letter of 14 May 2002, could be established.

80.

The employer had no proper basis upon which to conclude that the applicant was guilty of any act of misconduct arising from the allegations made by Mr Callan. The employer's determination of the allegations was based upon an erroneous approach which led to fundamentally flawed conclusions. Therefore on both substantive and procedural foundations, the dismissal of the applicant was harsh, unreasonable and unjust.

81.

The applicant has sought reinstatement as appropriate remedy for her unfair dismissal. Although the Commission can appreciate the obvious difficulties that would be associated with Orders for reinstatement of the applicant, the Commission must conclude that these difficulties do not establish any impracticality to reinstatement. Consequently the Commission is prepared to provide for Orders of reinstatement and consequential Orders as sought by the applicant.

ORDERS

In this matter, for the reasons outlined herein, I have determined that the dismissal of the applicant was harsh, unreasonable and unjust and I hereby make the following Orders:

1.

The Commission Orders, pursuant to section 89(1) of the Act, that the employer reinstate the applicant to her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. The applicant is to be reinstated as soon as practicable, and within twenty one days from the date of this Decision.

2.

The Commission Orders, pursuant to section 89(3) of the Act, that the employer pay to the applicant an amount which equates with the remuneration that the applicant would, but for being dismissed, have received in the intervening period between dismissal and reinstatement, less any amounts that the applicant received as payment for remuneration from alternative employment in that period between dismissal and reinstatement. This amount is to be paid to the applicant as soon as practicable, and within twenty one days from the date of this Decision, unless there arises dispute about the amount that is to be so paid, in which case Settlement of Minutes of Order proceedings will be held upon the written request of either Party, such request having been made within twenty eight days from the date of this Decision.

3.

The Commission Orders, pursuant to section 89(4) of the Act, that the period of employment of the applicant with the employer shall be taken not to have been broken by the dismissal. The intervening period between dismissal and reinstatement of the applicant shall be counted for all purposes as a period of employment.

oooOOOooo

^[1] Exhibit 18.

^[2] Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3), Industrial Commission of NSW, Hungerford J, 35IR @ page 70.

^[3] Exhibit 2 Annexure "AS".

^[4] Transcript of proceedings, (20/06/03) @ page 92.

^[5] Transcript of proceedings, (20/06/03) @ pages 99-100.

^[6] Transcript of proceedings, (4/07/03) @ page 68.

^[7] Transcript of proceedings (20/06/03) @ page 14.

^[8] Transcript of proceedings (20/06/03) @ pages 21-22.