Dec 079/99 S Print R1221

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.45 appeal against the orders issued by Deputy President Drake on

1 May 1998 and the decision issued on 20 May 1998 [Print P9973]

Appellant

(C No. 21972 of 1998)

s.170CE application for relief re termination of employment

Applicant

-and-

Respondent

(U No. 40204 of 1997)

SENIOR DEPUTY PRESIDENT MACBEAN

  

DEPUTY PRESIDENT DUNCAN

  

COMMISSIONER DEEGAN

SYDNEY, 1 FEBRUARY 1999

Alleged unlawful termination.

DECISION

INTRODUCTION

This matter is an appeal by the appellant company (the company) against the orders made by Drake DP in Sydney on 1 May 1998 and the decision [Print P9973] and correction order made on 20 May 1998.

The orders by Drake DP the subject of the appeal were as follows:

"1. The applicant shall be re-instated to his prior position with the respondent from Monday, 18 May 1998.

2. All salary and entitlements shall be paid or otherwise accrued to the applicant from the date of termination until re-instatement as if there had been no interruption to the applicant's employment."

A correction order, also dated 20 May 1998, was issued by Drake DP in the following terms:

"1. By inserting a new clause 3 as follows:

The respondent shall be credited for all monies paid to the applicant on termination and all wages earned by the applicant during the relevant period. Details of that amount earned shall be provided to the respondent and if agreement cannot be reached the matter can be relisted before me for further Orders."

In respect of the correction order, the company submitted that it was not open to Her Honour to make such a correction order. The correction order, in the company's submission, was not one dealing with a clerical error which would come under the slip rule but a substantial order varying significantly the orders made at first instance. The correction order was beyond jurisdiction and invalid. This matter is dealt with later in our decision.

Due to the nature of the matters to be considered on appeal, the proceedings were conducted in camera and the transcript was marked "transcript in confidence". We do not intend to identify by name the employer, the dismissed employee, the female employee who made the complaint to the employer regarding the conduct of the dismissed employee or other employees referred to in our decision.

BACKGROUND

The dismissed employee and the complainant were employed by the company as international flight attendants. The two employees travelled to the same overseas destination, as part of flight crews on two company flights arriving at different times on the evening of 14 August 1997.

The company is responsible for providing accommodation and both crews were accommodated in the same hotel. The conduct the subject of the female employee's sexual harassment complaint made to the company was alleged to have occurred in the complainant's hotel room during the early hours of the following morning.

Following the crews' arrival at the hotel, a number of the two crews, including the dismissed employee and the complainant, met for drinks in the hotel bar called the "Sportsman's Bar" and later at another bar called "The Chimney". In the early hours of the following morning, the complainant became sick at The Chimney and was assisted to her hotel room by the dismissed employee. The dismissed employee stated that after "getting vomit" out of the complainant's hair and dress, he "removed her dress and put her into the bed". He further stated that he was asked by the complainant to "stay" but he said he was going back to The Chimney and that he could come back later. She said "yes, take the key", so he took the complainant's key and left.

Following further drinks at The Chimney and at another crew member's hotel room, the dismissed employee returned to the complainant's room at approximately 4.30 am. It is the conduct of the dismissed employee which occurred in the bedroom at this time and at a later time in the morning which led to the sexual harassment complaint to the company.

The company, on receipt of the complaint, conducted an investigation which involved a number of separate meetings between a solicitor employed by Clayton Utz, seconded to the company to perform the role of Equal Opportunity Consultant, together with company management personnel, the dismissed employee, the complainant and certain other flight crew members who were in the foreign destination on the same night.

It was following this investigation that the company, in correspondence dated 29 August 1997, terminated the employment of the dismissed employee. The letter was signed by the International Flight Attendant Manager and, after referring to a meeting held the previous day between company representatives and the dismissed employee, it went on to state the following [page 80 of Tab 5 of Appeal Book]:

"As advised, the Company has fully investigated the complaint made against you by [complainant]. After careful consideration of all the material presented, the Company has formed the view that your conduct in this matter was improper and in breach of Company policies.

Given the outcome of the investigation and in light of the seriousness of the allegations, the Company has no option but to terminate your employment, effective immediately."

THE APPEAL PROCEEDINGS

Submissions of the Company

The company submitted firstly that Drake DP was in error in concluding that the policies of the company "did not govern the conduct of the applicant and complainant in the early hours of 15 August 1997 in the bedroom of the complainant". The company submitted that their Sexual Harassment Policy was circulated to all the company's international flight attendants on 27 March 1997. This policy, in the submission of the company, referred to the Sex Discrimination Act 1984 (SD Act) and stated the company would not tolerate, under any circumstances, sexual harassment under the SD Act.

It was put that the SD Act imposes upon an employee a duty of care to fellow employees and makes unlawful sexual harassment on a fellow employee wherever it occurs. The company submitted that the circumstances of this case occurred, in the words of s.106 of the SD Act, "in connection with the employment of the employee".

It was also submitted that Drake DP erred by substituting "her decision and/or finding for that of the employer and did so not on the basis of the material before the employer but on the basis of the evidence before the Commission". The circumstances before the Commission were that: [Exhibit R3, page 3]:

"* The employer conducted a full and extensive investigation into all of the relevant matters as was reasonable in the circumstance;

* The employer gave the employee every reasonable opportunity to respond to allegations; and,

* The findings were based upon reasonable grounds. (DSS v Uink (1977) 77 IR 244 at 256-257)."

The company submitted that on the findings of primary fact by Drake DP the conduct of the dismissed employee was improper. It was submitted that the conduct of the dismissed employee on the morning of 15 August 1997 was both unwelcome and uninvited and no finding by Drake DP is to the contrary.

The company submitted that the complainant's evidence is that when the "first penile contact occurred there had been no invitation, or consent to any sexual conduct". The complainant was, at the time, asleep.

On a valid analysis of the primary facts available, it was submitted that the employer's finding was the only finding available. Under the heading "Fundamental Errors of Principle", the company made the following submission [Exhibit R3]:

"22. Her Honour erred in holding that the conduct was beyond the reach of the employer because of its location. This error pervades the whole of Her Honour's decision.

23. Moreover the finding renders the decision internally inconsistent. It provides that an employer is unable to discipline an employee for conduct regardless of its inappropriateness in circumstances where the employer is vicariously liable for the very conduct in question.

24. Her Honour takes a strange view of the allegations here in issue, implicitly regarding the conduct alleged as other than `intrinsically improper'. The comparison is made with, inter alia, paedophilia which properly understood is a similar kind of impropriety, the difference being that here the consent is absent, or vitiated by alcohol, as distinct from being deemed to be absent, or vitiated by age.

25. There were a range of persons whose conduct was, on the material adduced, acting in an inappropriate manner, but whose conduct did not warrant dismissal. Such was not the case for conduct of the kind here alleged. The outcome of criminal charges is irrelevant to the inquiry of the employer, and even less so the Commission.

26. The Commission below, in its findings of fact, failed to use or has palpably misused its advantaged in hearing the evidence and has acted on evidence which is inconsistent with incontrovertible facts established by the evidence, or which is glaringly improbable. Her Honour totally ignores the cross-examination and inconsistencies on the very evidence she summarises. (Voulis v Kozary (1976) 50 ALJR 59; Brunskill v Sovereign Marine & General (1985) 59 ALJR 842; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v ANR (1993) 177 CLR 472). There has been clear and demonstrable error in the findings of fact. Without limiting the above, no weight is given to the testimony of the applicant that nothing occurred prior to the first sexual contact which suggested that the complainant had recovered from her state of `leglessness' such as to warrant a view that she was capable of consent.

27. As a matter of principle a person is not entitled to presume an ability to join another in bed and make penile contact without the clearest of invitations. The applicant says there was no such invitation. Even if at a later time the applicant considered that sexual contact was acceptable (which is denied), such misapprehension was created by originally improper conduct, in breach of the employer's policies, which policies were both reasonable and appropriate.

28. The Commission below denied the employer natural justice by making findings in relation to evidence, contrary to the evidence of the complainant, which were never put to relevant witnesses nor to counsel. Her Honour impermissibly used purported personal experience contrary to sworn evidence without informing the parties in order that they may deal with the issues.

29. The Commission below was clearly in error in suggesting that no duty of care is owed by the applicant to the complainant, especially in circumstances where Her Honour criticised witnesses for paying insufficient regard to their obligation to the applicant as a fellow worker. The proposition runs counter to any modern notion of sexual harassment provisions.

30. Her Honour faced with a requirement to decide, inter alia, whether the conduct of the applicant was a breach of the employer's policy declines so to do and assuming that it was finds that the conduct (here we must assume nonconsensual) was not warranting of dismissal. Again this is both untenable and a usurpation of the proper role of the employer.

31. The criticism of the employer for not investigating with staff in Japan is made in circumstances where:

32. The employer made clear that is operational requirements were such that its staff were required to be overseas and that, inter alia, the continued employment of the applicant would create an untenable situation relating to their obligation to provide a safe working environment. In circumstances where there is no suggestion that the employer is other than genuine, even if Her Honour was suggesting (which she was not) that the applicant was blameless, dismissal is not harsh, unjust or unreasonable (See Sherman, above)."

Submissions of the Dismissed Employee

Counsel for the dismissed employee submitted that the dismissal was for conduct alleged to be improper and in breach of company policies and not for any breach of the SD Act. However, the conduct was not in breach of the company's Workplace Harassment Policy. It was submitted that the conduct did not occur in the workplace and the employees were off duty at the material times.

In the submission of counsel for the dismissed employee, the company is not able to rely on the fact that the accommodation was paid for by the company, or that the tour of duty commences when the flight from Australia commences and concludes when the flight returns to Australia. Employees during their tour of duty are entitled to have time off in foreign destinations and this time is their own. In the submission of counsel it would have been different had there been criminal misconduct charges and a conviction for a serious offence. The employer's interest would have been legitimately raised by the fact that an employee had incurred a serious criminal conviction that diminished his fitness as an employee.

The events which took place in the complainant's bedroom occurred at the "end of a long evening of partying, skylarking and consumption of excessive amounts of alcohol". Both the dismissed employee and the complainant consumed a substantial amount of alcohol during their time at the two bars. Both were substantially affected by alcohol.

It was submitted by counsel that of the events that occurred in the complainant's room, there was only one version, that of the dismissed employee one that was accepted by Drake DP. This, therefore, was not a case where the Commission was confronted with conflicting versions as to what had transpired in the complainant's bedroom.

DECISION

The company's Workplace Harassment Policy is set out at Attachment V to the affidavit of Ms N. It commences with the following [page 98 of appeal book]:

"The company is committed to ensuring that its employees are able to work in a safe and productive environment which is free of discrimination and harassment.

Harassment is any form of behaviour which is uninvited, unwelcome and offensive. It can be verbal, written, visual or physical in form. Harassment is unlawful if it is sexual, or based on sex, marital status, pregnancy, family responsibilities, sexual preference, age, physical or mental disability, religion, race, national or social origin, political opinion, trade union activity, criminal record, medical record or HIV status.

Harassment within the workplace will not be tolerated by the company under any circumstances. Management and employees have a responsibility to create and maintain a working environment in which all employees feel comfortable and are free from harassment. A workplace without harassment is a workplace where people respect and tolerate the rights and differences of others.

Employees who experience harassment are entitled to the support of management and are entitled to lodge a complaint. All complaints of harassment will be treated seriously and will be investigated promptly and confidentially. Action will be taken to ensure that the harassment stops. The company will also take action to ensure that any person who lodges a complaint, or who assists during the investigation of a complaint, is not victimised or disadvantaged in any way. Where an employee is found to be in breach of this policy, appropriate disciplinary action will be taken, up to and including dismissal."

Further on at page 104 of the appeal book, sexual harassment is dealt with and commences with the heading "What is Sexual Harassment?" under which the following is set out:

"Sexual Harassment is behaviour of a sexual nature which is unwelcome, unsolicited and unreciprocated and which makes the person experiencing the harassment feel offended, humiliated or intimidated.

Sexual Harassment is not always intended. Behaviour or acts which are acceptable to one person may hurt or offend another. However, such behaviour will constitute Sexual Harassment, regardless of intention, if the individual experiencing the harassment is offended, humiliated or intimidated by the conduct.

Sexual Harassment can occur between males and females, females and males, males and males, or females and females. It affects all categories of employees as well as non-employees, such as contractors, customers and clients.

Sexual Harassment is unlawful under the Federal Sex Discrimination Act 1984. Sexual Harassment will not be tolerated by the company, under any circumstances, and all reasonable measures will be taken to prevent it."

Section 28A of the SD Act sets out the meaning of "sexual harassment" in the following manner:

"28A. (1) For the purposes of this Division, a person sexually harasses another person (the `person harassed') if:

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated."

Drake DP concluded, in the circumstances of the case, that the policies of the company did not govern the conduct of the dismissed employee and the complainant in the early hours of 15 August 1997 in the bedroom of the complainant. Her Honour set out the reasons on which this conclusion was reached at page 3 of her decision:

"In the circumstances of this case the applicant and complainant were in the foreign port consequent upon their employment but the break was intended to be a break in the performance of their employment obligations and, except in exceptional circumstances, discussed below the employers right to an overview of an employee's conduct does not operate whilst the employment obligations are suspended as in a break. Employees were expected to engage in personal pursuits --sleep, sex, personal business, pursuit of personal relationships and shopping to name a few - all matters over which the respondent would have no domain.

In some cases the respondent would have an appropriate and proper interest in the activities undertaken during the break, eg where they might reflect on the respondent in the conduct of its business or where the act of engaging in such activities might indicate unfitness for work or is intrinsically improper conduct. These exceptional circumstances might include drug dealing, paedophilia or exposure of one's person in public. These activities can be regarded as exceptions to the general concept that an employee's conduct in personal time is not reviewable by an employer for the purpose of considering the continuance of employment, - ie any number of breaches of criminal law or the ordinary standards of social conduct. This would vary according to the circumstances of the applicant and the business undertaking of the respondent. In most cases this type of conduct would be reviewable whether it took place in a break or outside the course of employment.

The applicant and complainant in this matter were not in a place where their behaviour should or could be properly investigated and governed by the employer. They were in the complainant's bedroom. The applicant was in that bedroom, on his evidence, which is not contradicted by the complainant, (and cannot be because she alleges she has minimal recollection during that period) because the complainant invited him there to be with her because she was drunk and unwell. What happened between them following his entrance into that room in accordance with her invitation is, in my opinion, in the circumstances of this case, outside the control or intervention of the employer.

There was not any extraordinary activity of the kind discussed earlier. In all cases an activity, to be reviewed by the employer must go to the heart of the employment contract - those matters an employee is contracted to perform e.g. it would go to the heart of a contract of employment between a police officer and his employer if that officer were found to be parading naked outside a schoolyard. The activity concerned two adult employees in a hotel room engaged in heavy petting and oral sex where the only evidence available concerning what happened was that of the applicant, since the complainant alleges she can recall only 60 seconds of the event and then only vaguely. Once the applicant entered the complainant's bedroom by consent, excluding any extraordinary conduct previously referred to and possibly subject to the outcome of any criminal charges, activities therein are the concern of the participants only.

In my opinion the policies of the respondent do not govern the conduct of the applicant and complainant in the early hours of 15 August 1997 in the bedroom of the complainant."

There have been a number of decisions which have considered the circumstances in which an employer might seek to exercise supervision over an employee's conduct occurring in the employee's private time. The Federal Court in McManus v Scott-Charlton [(1996) 140 ALR 625] considered the circumstances in which an employer might intrude into the private time of an employee. The case concerned the right of an employer to give an employee a direction to prevent the repetition of privately engaged in sexual harassment of a co-employee. In his judgment, Finn J expressed the view that caution should be exercised when an employer seeks to extend supervision over the private activities of an employee. The relevant section of the judgment is as follows [page 636]:

"I am mindful of the caution that should be exercised when any extension is made to the supervision allowed an employer over the private activities of an employee. It needs to be carefully contained and fully justified. Nonetheless I am prepared to conclude that circumstances may exist which would justify an employer direction proscribing the private sexual harassment of an employee by a co-employee. In my view, an amalgam of the various matters to which I have been referring provide both appropriate justification for, and limitation upon, giving such a direction.

I should emphasise that my comments are limited to co-employee sexual harassment - conduct which is intrinsically opprobrious (and recognised as such in the SD Act s.28A) and which is unlawful if connected with the harasser's employment."

In the same decision, Finn J considered the application of the SD Act and, relevantly at pp 634 and 635, after considering the application of the SD Act upon the Commonwealth and its employees, went on to state the following:

"What is important, though, is to note how far the statute of itself can be said to go in mandating employer regulation of employee conduct. In my opinion, notwithstanding such individual view as an employer might have of the need to proscribe an employee's private, sexually harassing conduct of a co-worker and no matter how powerfully that view may be held, the SD Act alone does not provide justification for the use of binding employment directions to that end. That Act makes an employee's conduct towards a co-worker of legitimate interest to an employer for employment regulation purposes, if the conduct occurs `in connection with the employment of the employee'. Beyond this, reliance on the SD Act alone will not justify employee regulation by way of direction notwithstanding this may well seem to an employer to be a reasonable and indeed desirable intervention to protect a co-worker from privately committed acts of harassment. While the acts of the Samaritan may be laudable, they do not for that reason attract legal force to the measures taken against the perpetrator of wrongful private conduct. More is required."

And further at page 636, His Honour gives consideration to how private sexual harassment of a co-employee can have adverse workplace effects:

"There can, though, be circumstances, of which the private sexual harassment of a co-employee is an example, where conduct outside the workplace can occasion adverse workplace effects. The reason for this is that the continuing workplace proximity of the harasser and the person harassed can cause the impact of the harassment on the person harassed to endure into the workplace. It is this which in turn is capable of occasioning the effects I have been discussing. As I will later indicate, such a state of affairs was believed to exist in the present case when the impugned direction was given."

And finally at page 637, His Honour set out his conclusion on the circumstances which would warrant an employer to give directions to an employee to prevent the "repetition of privately engaged in sexual harassment of a co-employee" as follows:

"My conclusion is, then, that it is lawful for an employer to give an employee a direction to prevent the repetition of privately engaged-in sexual harassment of a co-employee where:

In another decision, Staindl JR in Hussein v Westpac Banking Corporation [(1995) 59 IR 103 at 107] in considering the test to be applied on whether an employee's out of work hours conduct had a connection to the employee's employment, concluded the following:

"...a conviction on a drink-driving charge which occurred outside work hours would not be relevant to the employment of many people. However, it would be of critical relevance to a truck or taxi driver. It seems to me that an appropriate test is whether or not the conduct has a relevant connection to the employment."

The case being considered in Hussein v Westpac involved the dismissal of an employee of Westpac following the employee's conviction on credit card fraud unconnected with his employment as a migrant liaison officer. Staindl JR in finding that Westpac had a valid reason for terminating the employment set out the circumstances on which he concluded that there was a relevant connection between the employee's criminal convictions and his employment in the following terms at p.108:

"The applicant assisted people who came into the bank: at times he would interpret for them, explain the bank's procedures, help them complete various forms, help them carry out a range of banking transactions and advise them about different services offered by the respondent. At times he assisted in the processing of traveller's cheques, he verified signatures on withdrawal forms, and was directly involved in the processing of loan application forms. Although he would not normally handle cash on behalf of customers I am satisfied that on occasions he did so. In these circumstances it is apparent that the applicant had a position of responsibility and trust. The respondent was entitled to expect that a person in his position be trustworthy. It needed to be able to rely on his honesty in the carrying out of his duties. Because of the applicant's conduct the respondent no longer had that trust and could not rely on the applicant's honesty.

In my view there is a relevant connection between the applicant's criminal convictions and his employment and the respondent was able to rely on them as constituting a valid reason for the termination of employment."

In the case of McManus v Scott-Charlton, Finn J considered it was important that there be a direct link between the harassment and the co-employee status of both the harasser and the person harassed. This, in Finn J's view, allowed the conduct to be characterised as employment-related.

In the Westpac case, the Court held that there needed to be a relevant connection between the out of work hours conduct and the employment.

Both cases demonstrate that it is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees. While the employer in this case was responsible for providing and paying for the overseas accommodation, flight attendants have time off in foreign destinations which is clearly a break from their employment obligations. What they do in their own time during these breaks, ordinarily, is their own business. However, there could be conduct which the employer would have a legitimate concern to act upon even though it occurred during the break in the employment obligations. Her Honour set out some examples in her decision and there are many more which could be cited.

We agree with the description set out in the dismissed employee's submission that the events that occurred in the early hours of 15 August occurred at "the conclusion of a long evening of skylarking and consumption of excessive amounts of alcohol and partying". The employee was in the complainant's room at her request. We consider that in the circumstances of the case, it was reasonably open to Her Honour to reach the conclusion that the company's policies did not extend to the conduct of the dismissed employee that occurred in the complainant's bedroom.

We now turn to consider that part of Her Honour's decision dealing with the conduct that occurred in the complainant's room on 15 August 1997.

The first matter we address is the company's submission that sexual harassment occurred when the dismissed employee, at the invitation of the complainant, returned to the bedroom and after getting into bed naked with the complainant cuddled into her back with his penis pressed against her. Drake DP made the following finding [page 18 of the decision]:

"To determine whether the conduct of the applicant amounts to misconduct or breach of policy justifying dismissal it needs to be considered as two separate acts.

The first of these involves the removal of his clothes, getting into bed with the complainant and then cuddling into her back - like spoons in a drawer. If this is a matter I have to examine I have to determine if such conduct is a breach of the employer's policy or misconduct. The applicant's and complainant's prior conduct, is relevant, he had removed most of the complainant's clothes without objection earlier, put her to bed, cleaned the vomit from her hair, sat her up after she vomited on the pillow and then lain on the bed talking to her for some time without objection.

It is presumptuous to get into bed with a person without permission, naked or otherwise, even considering the prior conduct referred to, and that that presumption and conduct might be a breach of the employer's general policy or misconduct. However, it is not a breach of policy or misconduct which on the facts before me justifies dismissal. In coming to this conclusion I have had regard to the applicant's belief as to the complainant's state of mind and physical health and my finding that the applicant could not have anticipated that the complainant would have been offended, humiliated or intimidated by the conduct."

We believe that Drake DP has, on the evidence, accurately set out the events that transpired when the dismissed employee entered the bedroom on the first occasion and when he returned at the request of the complainant. The Deputy President was also entitled, in making the findings in the passage cited above, to rely on the events which occurred in the earlier part of the evening, together with the findings of credit regarding the evidence of the dismissed employee and the complainant.

The conclusion reached by Her Honour in the passage cited above is that if the conduct of the dismissed employee was in breach of the employer's policy, the conduct, for the reasons set out, would not have justified dismissal.

We consider that it was reasonably open to Her Honour to reach the conclusion she did.

The next part of Her Honour's decision we deal with concerns the conduct that occurred in the complainant's bedroom following a period of sleep by both employees. The evidence of the dismissed employee detailing the conduct that occurred after the period of sleep is in the following terms [transcript, pp 22, 23, 24 and 25]:

"MR MURDOCH: Just take it steadily. What did you observe?---I observed the complainant look over her left shoulder as I got into bed and both of us moved to adjust to me getting into bed. There was - both getting comfortable and holding onto one another.

Just to be a little more detailed about holding onto one another. Who was holding who?---The complainant was - had her back to me and I was cuddled up into her or she was cuddled back into my stomach and I had my left arm over her and my head up in around her neck.

Did she move at all during that?---Yes, as I said, she moved to get comfortable and then we dozed. At some stage she rolled over onto her back and that's when I woke up again. We started kissing. I started kissing her on the neck and she started kissing me back around the neck and that developed into oral sex.

Do you have any ideal how long it was after you joined the complainant in bed that the kissing started?---I only lightly dozed or lightly slept 10 minutes. I did lie down and go to sleep but I woke up again and I'd say it was 10 minutes definitely.

Then you said there was kissing, you kissing her, she kissing you?---That's correct, yes, there was - both were responding with kisses.

Now you said you were kissing the complainant on the neck?---Yes, on the neck and I worked down and - - -

Before we get around to that you said she was kissing you. Where was she kissing you?---Around my neck.

Go on then, you worked down?---The complainant - I worked down to the complainant's breasts and I - - -

When you say worked down you were kissing and that?---Kissing, fondling, touching, licking down to the complainant's breasts, going back to her neck, going down to her breasts again and I eventually went down and gave her oral sex.

When this was going on did you make any observations as to whether she was conscious or unconscious?---The complainant was awake. She was making subtle moans. She was lying there enjoying it. There was cries of pleasure of subtle cries or moans.

HER HONOUR: So we do not have to have Mr Rothman who is not really objecting, he is just grunting from the bench there, but to stop him getting to his feet you can say she made subtle groans. You can say that you thought she was enjoying it. You cannot say she was, all right?---Okay.

MR ROTHMAN: I thought your Honour would look forward to giving me some exercise but thank you, your Honour.

HER HONOUR: Well, so far you have only been grunting, Mr Rothman.

MR MURDOCH: Anyway this situation developed in that way. I take it that during that activity that the complainant was - or was she on her back or her side or - - -?---The complainant was on her back with me on my front going down and giving her oral sex. That went on for a couple of minutes and then I got up and we got into the 69 position. The complainant had been lying on the - - -

Let us just stop there. Who was on their back?---Okay, the complainant was still on her back. She moved from her side of the bed to the middle of the bed and I turned around myself, so I made the movement and went back down on her and she started fondling me and sucking or sucking my penis and touching my scrotum.

While she was doing that were you doing anything to her?---Yes, I continued to give here oral sex and touch her with my fingers.

So she is sucking and using her hands?---That's correct.

And you are also using your mouth and using your fingers?---Yes, that's correct.

What did you do with your fingers?---I did penetrate the complainant with my fingers as well as my tongue and licked around. This - that went on for 5 minutes, 10 minutes tops the whole thing.

While all this was going on were there any sounds being made?---Yes, I heard subtle moans, subtle cries.

Anyway did you eventually remove yourself from the 69 position?---Yes, that - the oral sex finished and I turned back around. This is when the complainant and I swapped sides in the bed. I then went onto the left hand side of the bed and the complainant was on the other side - the opposite side of the bed and I was lying close to her side almost on top of her, like very close cuddling her.

How long did that go on?---We fell asleep. We both fell asleep then.

Was there any intercourse?---No, no intercourse at all.

Was there a reason for that?---Well, I didn't have any condoms with me. I was also very drunk and I did not want to have intercourse the first time with the complainant. It was just a bit of oral sex and then to sleep. It was just a bit of enjoyment.

Now, do you recall then when you woke up, when did you wake up?---The first time we woke up the complainant moved in the bed, it was about 7 o'clock, the complainant woke up, looked over and then went back to sleep. The second time we both woke up it was about 8.20, she got up, went to the toilet and then came back and got into bed alongside of me and that's when we had a conversation.

All right. What I want you to do is recall what that conversation was, who said what?---Okay. The complainant started the conversation by asking what I was doing there and I said, `I brought you home last night and stayed the night with you'. The next thing was, the complainant's concern was, `I'm not going to get pregnant, am I' and I said, `No, not at all', we just had some kissing and oral sex. She then asked me just, `Well, you'd better leave, we don't want the other crew finding out' and that's when I picked up the crew list and read the crew list and I said, `Yeah you're right' because this was about 8.30, 8.20, other crew start to rise and move about then. I agreed discretion was probably the better part and she was asking me to leave, I said, `Yes, there's six people on my floor, six people on your floor' so I got up, got dressed and left. The complainant at no stage in that initial conversation was upset. In actual fact she questioned what had happened and was quite all right with it."

The complainant's evidence was that her only memory of the events that occurred in her bedroom was for a period of "a minute". The complainant's evidence on what occurred during this time is as follows [Transcript, pp 285-286]:

"MR MURDOCH: You said that you were awake for a minute, do you recall that?---Yes, it was for about a minute.

You are not suggesting that during that minute the dismissed employee was having sexual intercourse with you in the sense that he had his penis inside your vagina and was - - -?---What I remember - - -

- - - copulating with you?---What I remember is the dismissed employee being about half way down my body and feeling pain in my vagina. That is what I remember.

Well I am trying to be very delicate about this but it seems from your answer that you are not suggesting that he was copulating with you?---I felt pain in my vagina. I can't answer your question."

In respect of the evidence given by the dismissed employee concerning his action in getting into bed and the events which subsequently occurred which we have set out earlier, the complainant gave evidence that she did not remember, apart from the evidence cited above, anything of the conduct of the dismissed employee or her own conduct during the two events which led to the complaint being notified to the company.

Drake DP found the dismissed employee to be a credible witness as to his and the complainant's conduct after both of them had left "The Chimney".

Drake DP sets out the basis on which she makes the finding on the credibility of the dismissed employee's evidence at page 14 of the decision and we set out the extract below:

"The applicant honestly believed that although the complainant was very intoxicated she was capable of conversing, making a decision to accept him in her bed, cuddle into him, respond to his sexual advances or reject those advances if she wished. That belief was reasonable. Given the history of their conduct that evening he was able to appropriately accept that her conduct in her bed in her room as acceptance of his sexual advances.

In making this finding I have accepted the applicant as a credible witness as to his and the complainant's activities during all relevant periods following their exit from `The Chimney'. Within the confines of the bar the complainant was able to stand on her own (with one fall) and to converse with people. She was not unconscious. She was able to ask for her purse. No-one, except the applicant, considered that she needed assistance to leave the room. A fellow employee, Ms DMS, asked the applicant whether he needed any help because his lifting the complainant caused her dress to ride up. No other person amongst the complainant's friends and workmates were so concerned by her demeanour that they decided to intervene and render her assistance.

Some witnesses assumed the applicant and complainant were pairing off for sexual purposes. However, none of the complainant's workmates at `The Chimney' who observed her demeanour and her pairing off with the applicant considered that she had any need for protection that justified intervention.

Within a very short period of leaving the bar the complainant alleges that she cannot remember anything. I do not reject what the complainant says concerning her absence of any recollection of any events which occurred immediately following her exit from `The Chimney'. It is not impossible to believe that the complainant was so drunk that she cannot afterwards recall what her activities may have been but was able to talk, walk and engage in social activities. For the applicant to accept that appearance of minimal sobriety was not unreasonable.

In relation to the complainant's condition from `The Chimney' to the hotel the complainant's evidence regarding her exact condition is contradictory. At various times she alleges that she blacked out, a condition indicating an absolute lack of recollection but she also remembers hearing the applicant, being put down by the applicant and that the concierge attended upon both of them when they were close to the hotel lift.

I believe that the applicant had a reasonable and honestly held belief that the complainant was able to invite him to attend on her and check on her health, accept or reject his presumption in joining her in bed naked and later, after a short sleep, to consentually engage in sexual activity."

The other findings of credit concerned the complainant and the two flight attendants, work friends of the complainant's described as friend 1 and friend 2 in Drake DP's decision.

Drake DP, at page 16 of the decision, states that the complainant's responses were evasive when being cross-examined as to the arrangement she made for her friends to be in the bathroom when she confronted the dismissed employee. Later on, Drake DP finds that the "conversation overheard by friend 1 and friend 2 through a bathroom wall and door down a small hallway in the complainant's bedroom unreliable".

Drake DP compared the complainant's evidence with other evidence and the manner in which it was given. In the case of friend 1 and friend 2, Her Honour took into account not only the location of where the two friends listened to the conversation but the motivation of their friendship with the complainant in weighing up the accuracy of their evidence.

Another finding by Drake DP concerned the statement given by friend 1 to Ms N during the conduct of the inquiry and is dealt with at page 17 of the decision. Her Honour deals with inconsistencies in friend 1's statements to the inquiry regarding the content of a phone conversation between the complainant and the dismissed employee and the evidence given before Her Honour. This is set out at page 17 of Her Honour's decision:

"The evidence of friend 1 regarding the applicant's responses to the complainant in the telephone call which she overheard changed from the interview before termination (which was relied on to terminate the applicant) to that which was provided in her Affidavit at the hearing. The difference is summarised below:

The change from the statements given during the company's inquiry and the hearing before Drake DP on whether the dismissed employee had admitted the allegations made by the complainant was a matter which Drake DP was entitled to rely upon in assessing the credibility of the evidence given by one of the witnesses called by the company to support its decision to terminate the employment.

Having regard to all the circumstances of this case we would be most reluctant to interfere with the findings of credit set out in Her Honour's decision. We do not accept as valid the criticism directed against Her Honour's findings regarding the reliability of this evidence. Drake DP had the advantage of observing and hearing the witnesses give their evidence and it was open to her to reach a finding on the reliability of such evidence [see: Bristol Myers Squibb Australia Pty Ltd (formerly known as Bristol-Myers Squibb Pharmaceuticals Pty Ltd) and anor v Minister for Health and Family Services and ors, an unreported decision of the Full Federal Court of Australia delivered 8 September 1997].

The company also submitted that Drake DP had made a fundamental error "by simply" substituting her decision for that of the employer. The company relies on this submission on the "full and extensive" investigation undertaken following the complainant's allegation.

It was also put that the findings made by the company as a result of its investigation were based on reasonable grounds. We consider the submission of the company on this point fails to take into account the findings made by Drake DP of fact and the reliability of the evidence given by the complainant and friend 1 and friend 2 and the dismissed employee.

Having regard to this and other findings it was open to Her Honour to come to the view that the finding of the employer regarding the conduct of the dismissed employee was not properly founded and, as a consequence, the dismissal was harsh, unjust and unreasonable and therefore no valid reason existed for termination. In other words, if an employer's reasons for termination are unsound or not properly founded, the Commission is entitled under the Workplace Relations Act 1996 (the Act) to interfere with the employer's decision.

Another ground relied on in the appeal concerned that part of Her Honour's decision which considered the complainant's evidence on how she felt when she awoke on the morning of 15 August. The relevant part of Her Honour's decision is as follows [page 14]:

"I did not find all the complainant's evidence credible or her responses reasonable. I do not understand what she meant when she told friend 2 that she felt when she awoke as a woman feels after having had intercourse. Given the absence of any but minimal body fluids this statement is not explicable, despite my gender and personal experience. The complainant did not expand on this and of course Mr Rothman, given his gender, was not in any position to assist."

It was submitted by Mr Rothman, counsel for the company, that there was a denial of natural justice as a result of Drake DP's criticism of the complainant's evidence which reflects on personal experience without putting such matters to the complainant during the proceedings.

The first observation we make is that the Deputy President's statement of her own experience was not central to the finding of credit or to her ultimate decision. By including her own experience in the decision, we believe it would have been prudent for Her Honour to have raised this at the time the complainant gave her evidence.

However, the failure to do so did not amount to a denial of natural justice. The Deputy President was entitled to rely on her own experiences as a basis for concluding that she could not understand the complainant's evidence on this particular subject matter. Raising her own experience at the time of the complainant giving evidence would not have altered the complainant's evidence.

Even if it could be established that the Deputy President had erred in not raising the issue of her own personal experience, we do not consider the error was one which would constitute a ground for granting leave.

For the reasons set out we are satisfied that Drake DP did not make a legal error or act on a wrong principle or make a mistake on the facts. We are satisfied that the decision was one reasonably open to her and within the proper exercise of her discretion. The fact that we may have not reached the same decision is not a reason for substituting our decision for the one made by Drake DP [see: Re Australia Meat Holdings Pty Ltd [Print Q1625]].

We would therefore not grant leave to appeal on that part of Her Honour's decision in which she made the finding that the dismissal of the applicant in the circumstances of this case was harsh, unjust and unreasonable and ordering the reinstatement of the dismissed employee.

THE CORRECTION ORDER OF 20 MAY 1998

One of the grounds relied on by the company in this appeal concerns the correction order issued by Drake DP on 20 May 1998 which was as follows:

"A. The Finding and Orders issued by the Commission on 1 May 1998 is corrected as follows:

It was submitted by the company that after the findings and orders of 1 May 1998, Drake DP was functus officio. The company also put that the terms of clause 3 of the correction order of 20 May 1998 do not, on their face, limit the terms of clause 2 of the order. Further, the correction order contained terms which were not within the power of the Commission under s.170CH(4)(b) as it did not specify an amount in respect of remuneration lost nor was it an order causing the employer to pay the employee an amount.

Dealing with the first ground, we are inclined to accept the company's submission that by issuing the orders on 1 May 1998, Drake DP effectively discharged the functions of the Commission in respect of the matter before her. To correct what was essentially an oversight rather than a matter of any substance, we propose to grant leave to appeal and quash the order of 1 May 1998. We have made a new order which is attached to our decision and is in the following terms:

BY THE COMMISSION:

SENIOR DEPUTY PRESIDENT

Appearances:

S. Rothman SC with J. Catanzariti for the appellant company.

J. Murdoch of counsel with C. Arnold and P. Kehoe for the dismissed employee.

Hearing details:

1998.

Brisbane:

July 31;

September 7.

Printed by authority of the Commonwealth Government Printer

<Price code F>

Mis 047/99 S Print R1235

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.170CE application for relief re termination of employment

Applicant

-and-

Respondent

(U No. 40204 of 1997)

SENIOR DEPUTY PRESIDENT MACBEAN

  

DEPUTY PRESIDENT DUNCAN

  

COMMISSIONER DEEGAN

SYDNEY, 1 FEBRUARY 1999

Alleged unlawful termination.

A. Further to the Full Bench decision of 1 February 1999 [Print R1221], we hereby quash the order made on 1 May 1998 and the correction order made on 20 May 1998 by Deputy President Drake and issue the following:

FINDING

The dismissal of the applicant in the circumstances of this case was harsh, unjust and unreasonable.

ORDERS

1. The applicant in U No. 40204 of 1997 shall be reinstated to his prior position with the respondent from Monday, 18 May 1998 without loss of continuity of employment.

2. The respondent is to pay an amount of money to the applicant which is to be calculated in the following manner. All salary and entitlements that would have been payable to the applicant from the date of termination until reinstatement, as if there had been no loss of continuity of the applicant's employment, less any monies paid to the applicant on termination and all wages earned by the applicant during the relevant period. If wages have been earned by the applicant, the applicant is required to provide appropriate evidence of such earnings to the respondent.

BY THE COMMISSION:

SENIOR DEPUTY PRESIDENT

Decision Summary

   

Termination of employment - unfair dismissal - appeal - full bench - company submitted errors of fact and of law - held - open to Drake DP to determine company's policy did not extend to conduct of employees occurring in these circumstances - decision open and within proper exercise of discretion - no error in relying on own experience - did not amount to denial of natural justice - leave to appeal not granted in relation to whether dismissal was harsh, unjust or unreasonable and whether reinstatement should be ordered - leave to appeal granted in relation to correction order - accepted argument Drake DP functus officio - to correct oversight orders quashed and new order issued.

Appeal against decision of Drake DP made on 1 May [Print 9973] and order made 20 May 1998

U No. 40204 of 1997

Print R1221

MacBean SDP

Duncan DP

Deegan C

Sydney

1 February 1999

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