Harlen v Department of Defence
[1997] IRCA 238
•06 August 1997
DECISION NO:238/97
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - whether the evidence substantiated allegations of contraventions of the Sex Discrimination Act 1984 (Cth) and the Racial Discrimination Act 1975 (Cth) - whether there was evidence of MISCONDUCT in the workplace - PROCEDURAL FAIRNESS - whether there was undue delay in completing the respondent’s inquiry
Workplace Relations Act 1996 ss 97, 170DC, 170DE(1), 170PI, 170PK
Public Service Act 1984 (Cth) ss 33(3), 55, 56, 61, 61(2), 62, 62(1), 62(6), 63B, 89A(3)
Racial Discrimination Act 1975 (Cth) ss 9, 18B to F
Sex Discrimination Act 1984 (Cth) ss 28A, 28B
Jones v Armas Nominees Pty Ltd (1994) 59 IR 61
ALAN JAMES HARLEN - v - DEPARTMENT OF DEFENCE
No. AI 1105 of 1996
Before: Judicial Registrar Millane
Place: Melbourne (heard in Canberra)
Date: 6 August 1997
INDUSTRIAL RELATIONS COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
AI 1105 of 1996
B E T W E E N :
ALAN JAMES HARLEN
Applicant
A N D
DEPARTMENT OF DEFENCE
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 6 August 1997
THE COURT ORDERS THAT:
The application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
INDUSTRIAL RELATIONS COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
AI 1105 of 1996
B E T W E E N :
ALAN JAMES HARLEN
Applicant
A N D
DEPARTMENT OF DEFENCE
Respondent
Before: Judicial Registrar Millane
Place: Melbourne (heard in Canberra)
Date: 6 August 1997
REASONS FOR JUDGMENT
On 19 June 1989, pursuant to the provisions of the Public Service Act 1922 (Cth) (the Public Service Act), the applicant commenced duty as a permanent officer with the Department of Defence. His initial duties were as an Assistant Printer Grade 1 in the respondent’s reprographics section. From the commencement of his probationary period of employment there appears to have been conflict between him and at least one other co-worker. This conflict and poor reports on his interpersonal relationships led to a protracted period of probationary employment well into 1990. In mid 1990, at the request of the Royal Military College reprographics section, the applicant was transferred to another section. Following this transfer his full time public service appointment was confirmed in September 1990.
In 1995 and, in particular August 1995, the applicant worked in the publications area of the respondent’s operation where he was involved in printing, photocopying and other duties relevant to the publication of the department’s materials and client work. The applicant was then described as a GSO Grade 3 Officer (acting ASO Grade 1). He was located in what was referred to as the Russell Offices and the basement of Building K together with some thirteen or more other employees and managers of that section.
On 16 September 1996 the respondent terminated the applicant’s employment following a year long inquiry into various allegations made by co-workers, which allegations broadly raised issues concerning sexual harassment and racial discrimination in the workplace and misconduct as defined by the Public Service Act.
The applicant did not avail himself of any of the appeal or grievance procedures provided for within the public service legislation, electing instead to lodge an application with the Australian Industrial Relations Commission seeking remedies for the alleged unlawful termination of his employment.
The applicant appeared in person at hearing and represented himself throughout the seven days over which the case was heard. Because applications seeking remedies for unlawful termination of employment are not usually accompanied by pleadings, each party was asked to open on the first hearing day and identify both the issues and the part or parts of any legislation relied on in bringing or defending the proceeding before the Court.
In summary the applicant denied the substantive truth of the charges of misconduct made against him and generally challenged the fairness of the process in bringing his employment to an end. Accordingly, the two principal issues for determination related to the alleged contravention by the respondent of section 170DE(1) and section 170DC of the Workplace Relations Act 1996 (the Act). Apart from these principal allegations, the applicant also sought to rely on alleged contraventions of the following legislative provisions:
Sub-sections 33(3)(a), (b) and (c) of the Public Service Act which sub-sections, broadly speaking, prohibit discrimination in respect to the appointment, transfer or promotion of public servants. Looking at that provision, it appears to have no relevance to a determination of the lawfulness of the termination;
Sub-sections 56(a) to (ea) inclusive of the Public Service Act. Sub-sections 56(d) and (f)(i) are relied on by the respondent in relation to the alleged failure of the applicant to fulfil his duties as an officer. The parts of those sub-sections the respondent relies on are:
“56. For the purposes of this Subdivision and Subdivisions B, C and E, an officer shall be taken to have failed to fulfil his duty as an officer if and only if:
(a) ...
(b)...
(c) ...
(d) he engages in improper conduct as an officer;
(e) ...
(ea) ...
(f) he contravenes or fails to comply with:(i) a provision of this Act, of the regulations or of a determination in force under subsection 9 (7A) or section 82D, being a provision that is applicable to him; or
(ii) ...
(g) ...”
In referring to section 56 I understood the applicant to be saying that the respondent had not met the requirement it had of establishing that he failed to fulfil his duty as an officer in the manner alleged by it;
Section 61 of the Public Service Act. This section relevantly provides:
“61.
(2) Where an officer authorized by the relevant Secretary for the purposes of this subsection is of the opinion that an officer may have failed to fulfil his duty as an officer, the authorized officer shall, as soon as practicable, decide whether he should be charged and:
(a)...
(b) if he decides that the officer should be charged - shall, by writing under his hand delivered to the officer, charge the officer with the failure.
(3) An officer charged under subsection (2) may request the relevant Secretary to furnish copies of the charge to either or both of the following, that is to say:
(a) to an organisation specified by the officer, being an organisation within the meaning of the Industrial Relations Act 1988; or
(b) to a person specified by the officer, being a person whom the officer wishes to assist him in relation to the charge;
and, if the officer makes such a request, the relevant Secretary shall comply with the request.”
Again this is a provision the respondent relies on as part of its disciplinary process and, as will be seen from the recitation of the events leading to the termination, an authorized officer did make preliminary enquiries and did decide to charge the applicant;
Section 62 of the Public Service Act. Relevantly, this provision provides:
“62. (1) Subject to subsection (2), where an officer is charged with misconduct under section 61, an inquiry shall, without undue delay, be held into the charge by the relevant Secretary or an officer appointed for the purpose by the relevant Secretary.
(2) ...
(3) In an inquiry for the purposes of subsection (1), a formal hearing is not required, but the officer shall be notified that an inquiry is to be held into the alleged misconduct and given an opportunity to state, in writing, within 7 days or such longer period as the officer holding the inquiry may allow after the notice is furnished to him, whether he admits or denies the truth of the matters alleged to constitute the misconduct and to furnish a statement in relation to those matters, including a statement submitting that the matters alleged to constitute the misconduct are, even if true, incapable in law of constituting the misconduct for the purposes of this Act.
(4) Where an officer has furnished a statement in relation to the matters alleged to constitute misconduct, the officer shall, if he so requests, be given the opportunity of making a further oral statement to the officer holding the inquiry and, if he does so, a written record of his further statement shall be made by that officer.
(5) An officer who has been charged with misconduct under section 61 shall not, by reason only of having failed to deny the truth of a matter included among matters alleged to constitute the misconduct, be taken to have admitted the truth of that matter.
(6) Where the officer holding an inquiry into a charge is satisfied that the officer charged has failed to fulfil his duty as an officer, he may counsel the officer, or cause the officer to be counselled by another officer, or, if he is of the opinion that other action is necessary:
(a) ...
(b) may direct that the officer be dismissed from the Service.(9) Where the officer holding an inquiry into a charge gives a direction of a kind referred to in paragraph (6) (a) or (b) in respect of the officer charged, he shall furnish to the officer particulars of his reasons for giving that direction.”
It was alleged by the applicant that there was contravention of section 62 of the Public Service Act because there was “undue delay” on the part of the respondent in finalising its inquiries. The uncontested history of the inquiry indicates to me that whilst the time taken to complete the inquiry was lengthy, the delay in finalising that inquiry was contributed to both by the need to interview additional witnesses named in a list supplied by the applicant and the many extensions of time granted to the applicant, particularly after the charges were notified to him on 23 January 1996, to furnish a written statement in response to the matters of misconduct alleged against him. Accordingly, I am not satisfied that there was any undue delay in completing the inquiry which would in any way cause me to conclude that some unfairness had occurred in the procedures followed by the respondent in arriving at its decision to terminate the applicant’s employment;
Sub-section 89A(3) of the Public Service Act. This section affords protection to persons making reports on officers in certain circumstances. Throughout both the inquiry and the hearing the applicant made a number of allegations against his fellow officers and those conducting the inquiry suggesting, amongst other things, that the statements made against him arose out of a management conspiracy with co-workers. His reliance on section 89 appears to be connected to his unsubstantiated belief that there was a conspiracy and that his co-workers were pressured into making their statements against him. Section 89A has no relevance to the proceedings before me. If the facts support a finding that the allegations of misconduct were the result of a conspiracy and the statements made by the co-workers were not made in good faith, then that is relevant to determining whether the respondent has discharged its burden of proof in establishing a valid reason for termination. On the evidence and after having heard from the witnesses, I am satisfied that there is no basis at all for concluding that the allegations of misconduct arose out of any conspiracy or that the statements made were not made in good faith; and
With regard to the Act (formerly known as the Industrial Relations Act 1988), section 97, section 170PI and section 170PK were also raised by the applicant and it was noted at hearing that the matters these provisions are concerned with are outside my jurisdiction.
THE WITNESSES
The applicant gave evidence on his own behalf. The respondent called the following witnesses:
-Frank William Wood (Wood), the Assistant Director of the respondent’s publishing area;
-Fiona Davidson (Davidson), the Assistant Director of the Personnel Department of the respondent’s A.C.T. Operations and the authorised officer pursuant to section 61 of the Public Service Act;
-Nicholas Leslie Mills (Mills), presently the acting Assistant Director of the A.C.T. operations and an Executive Officer with the respondent prior to August 1996. In January 1996 he was appointed to assist Fitzgerald in conducting the inquiry;
-Paul Arthur John Fitzgerald (Fitzgerald), the Head of the Defence Centre in the A.C.T. and the officer appointed pursuant to section 62 of the Public Service Act to conduct the inquiry;
-Suzanne Ida Davis (Davis), an acting Administrative Services Officer (ASO) Grade 2 at the relevant time;
-Gertrude Guinan (Guinan), an acting ASO Grade 1 at the relevant time;
-Natalie Booth (Mrs Booth), formerly known as Natalie Wain and an ASO Grade 1 at the relevant time;
-Ian Malcolm Scott Booth (Booth), who has since married Natalie Booth and was at the relevant time employed by the Defence Department but not working in Building K;
-Colin John Thomas (Thomas), an acting ASO Grade 3 and a supervisor of the applicant at the relevant time;
-Viet Quoc Au (Au), an employee within the publications section at Russell Offices;
-Jane Louise Mayo (Mayo), an ASO Grade 1 in the publications section at Russell Offices;
-Petronella Agnes Randell (Randell), an ASO Grade 3 in the publications section;
-Michael Robert Hopps (Hopps), an ASO Grade 2 in the publications section;
- Roy Jones (Jones), an ASO Grade 2 in the publications section;
-Bradley Terence McCausland (McCausland), the Production Manager in the publications section (ASO Grade 4);
-Philip James Smith (Smith), the reprographics Manager in the publications section;
-Bruce Harold Cann (Cann), the Director of publications and visual communications;
-Gary James Craven (Craven), the Assistant Director of the employee assistance service staff; and
-Raymond David Carl Bromwich (Bromwich), the respondent’s Director of Personnel Administration.
Where the respondent’s witnesses made written statements and records of interview were obtained, these documents were tendered in evidence following both identification of each document and evidence being given concerning the making of the document and the truth and the accuracy of its contents.
As I have already observed the applicant was not represented at hearing. He was, nevertheless, provided with an opportunity to cross-examine the respondent’s witnesses on both their oral and written allegations and, further, he had an opportunity to call any evidence to contradict the relevant factual matters they alleged against him.
As can be seen from an inspection of particularly the written statements, when the initial inquiry into the applicant’s conduct commenced, apart from various specific allegations of fact, the statements made are replete with expressions of opinion, conjecture and hearsay comments. Although these statements were tendered in evidence in their entirety, the respondent was informed by the Court that, for the purpose of this proceeding, the probative value of the statements would be determined by reference to two factors. The first was whether the respondent called the makers of all the statements it relied upon to find the applicant guilty of misconduct. The statements of witnesses who did not give evidence were admissible because they formed a part of the materials the respondent relied on in determining to dismiss the applicant on 16 September 1996, otherwise I have not treated them as evidence of the truth of the facts alleged. Secondly, where the respondent called the makers of the written statements and those statements contained evidence of matters not within the direct knowledge of the witnesses, in fairness to the unrepresented applicant, I have ignored what I have generally described as expressions of opinion, conjecture and hearsay evidence. In arriving at my decision I have concentrated on the credit of the witnesses and whether the evidence given by each witness is capable of substantiating the charges made against the applicant or, at the very least, capable of corroborating any other witnesses’ evidence.
THE CHARGES
It was common ground that on or about 29 August 1995 an incident occurred at Building K which incident was the catalyst for the applicant’s co-workers on 31 August 1995 to refuse to work unless the applicant was removed from the workplace.
On 29 August 1995 a Kodak representative attended the workplace with three sets consisting of a T-shirt and a cap to give to Kodak operators. One set was given to the applicant and another was given to Mayo. On observing this the other employees expressed interest in sharing in these gifts. Because there were not enough gifts to distribute amongst the employees, McCausland, as the floor manager, intervened and instructed the applicant and Mayo to give him all the items to be held by him until Smith, the manager, returned to work on the following day and made a decision about the distribution of the Kodak gifts. It was not then clear to McCausland whether there was any policy about the distribution of gifts to employees by clients. The Kodak representative took her leave promising to find out if she could obtain more items to share amongst the other employees.
If there was one complaint common to all the co-workers and the applicant’s direct managers, it was that he was unco-operative when he was instructed to do something he did not wish to do and was aggressive in response to any perceived criticism of him or his performance. When McCausland endeavoured to solve the immediate difficulty of too few items and too many interested would-be recipients, instead of returning the T-shirt and cap as Mayo did to await management’s decision on the appropriate distribution of the gifts, the applicant simply refused to co-operate maintaining that the gifts were for him personally. Whether or not that was so is immaterial because his behaviour amounted to disobedience in refusing to comply with a lawful request from his supervisor.
Rather than take the items from the applicant, McCausland then instructed the applicant to store the gifts at the workplace and not take them home.
When work resumed on 30 August 1995 Smith was still absent and it was then apparent that the applicant had ignored McCausland’s further instruction and taken the items home. Despite being instructed to go home and return the items to the workplace, the applicant refused because he insisted the gifts were his personal property.
To resolve this impasse Wood was contacted and informed by McCausland about what had happened. This led to a meeting arranged for the morning of 30 August 1995 consisting of the applicant, McCausland, Wood and at least one union representative. In part that meeting attempted, unsuccessfully it now seems, to deal with the issue of the applicant’s disobedience of the instructions he had received. As a compromise Wood decided to allow the applicant to keep the items he had been given and gave instructions that the extra T-shirt and cap be raffled for the other employees. It was the applicant’s evidence that during that meeting Wood apologised to him for what had happened. In making this assertion the applicant appeared to seek to establish that he was correct in his belief that the items belonged to him and he was therefore entitled to ignore the instructions given to him by McCausland. Wood disputed this and the assertion that he made any apology during that meeting. He pointed out that he too was concerned about the applicant’s failure to follow the instructions received from McCausland, however, in resolving the dispute as he did, he was attempting to effect a compromise. I am satisfied that it is very unlikely that Wood offered any apology to the applicant, his main concern being to bring the dispute to an end. Regrettably his efforts failed and, in acting as he did, it seems that he also failed to address McCausland’s concern about the applicant’s behaviour.
On 31 August 1995 Smith returned to work and that morning McCausland approached him and informed him that none of the reprographics employees, including McCausland, were prepared to continue to work in the same area as the applicant and they said they would not perform their duties until he was removed. On the evidence I am satisfied that it was initially McCausland’s decision not to work with the applicant and this decision was precipitated by the applicant’s disobedience in the days preceding the refusal to work with him. However, once the other employees became aware of McCausland’s intended action, they decided that they too had put up for long enough with the applicant’s behaviour and they indicated their intention not to work until he was removed. When the applicant came to work that day he was sent off for an early morning tea break whilst the respondent attempted to sort out this rather unusual problem. Smith, Wood and two union delegates met with a group of the employees who numbered some thirteen or so employees. At that meeting the employees took a vote and reiterated their refusal to continue to work with the applicant. Each employee was asked to state his or her grievance. Each identified various matters concerning the applicant’s conduct; which matters were subsequently recorded by the employees in written statements prepared by them on 31 August 1995 (see the attachments to Exhibit R1). Those statements form part of a report on the applicant’s performance prepared by Wood and submitted to Bromwich on 1 September 1995. In that report (Exhibit R1) Wood recommended that there be an urgent assessment of the applicant’s conduct and he summarised the grievances reported to him by the employees in the following way:
“a.both male and female staff had been subjected to verbal abuse from Mr Harlen;
b. Mr Harlen had gone out of his way to interfere in the staff’s private lives and to discuss his private life (in too great a detail) even when asked not to;
c. his comments to female staff have been sexually explicit, made staff feel dirty and pornographic material has been left on machines where females worked;
d.he was generally confrontational and did not respect the wishes of staff;
e. he acted in an unacceptable and unsavoury manner with female staff when they were required to remain behind to perform the security checks at close of business (Mr Harlen was seen to ‘dawdle’ when finishing his work and to follow staff to their cars asking personal questions and, as a result of this harassment, the female staff will not remain behind without another male staff member present);
f. he would not take direction from his immediate supervisors and was always arguing that he was better than everyone; and
g. he was constantly making derogatory remarks about other staff members (this is a sheltered workshop etc) and management in general.”
After the meeting on the morning of 31 August 1995, in order to allow the management to assess the situation, the applicant was sent home for the day.
Pursuant to section 61(2) of the Public Service Act, Davidson was authorised by Bromwich to conduct a preliminary investigation to determine whether charges should be laid.
On 4 September 1995 following a meeting with the applicant and advice from Davidson that the applicant may have failed to fulfil his duties as an officer within the meaning of section 56 of the Public Service Act, Bromwich determined that it would be prejudicial to the operation of the service and the interests of the other officers if the applicant continued to perform his duties pending a decision on whether to charge him or not. Accordingly, on 4 September 1995 pursuant to section 63B of the Public Service Act, Bromwich suspended the applicant on full salary.
On numerous occasions throughout the hearing the applicant asserted that his suspension was not lawful. However, on the evidence I can see no basis for maintaining this assertion or any other basis for saying that this suspension had some bearing on the lawfulness of the termination which subsequently occurred. It was common ground that once the charges were formally laid the suspension continued and, following a hardship application, the applicant continued to receive payment of his salary until 16 September 1996.
Davidson conducted her inquiry between September 1995 and January 1996. During that period she interviewed the employees and on at least two occasions, the applicant. It was accepted by the applicant that he was given copies of all the statements and records of interview relied on by Davidson and ultimately Fitzgerald before they reached their decisions. During the period of the initial inquiry conducted by Davidson the applicant corresponded with her (Exhibit R31) denying the allegations made against him. Throughout this period and after the charges were laid the applicant was assisted by his union and correspondence was forwarded to the respondent by the Commonwealth and Public Sector Union (CPSU) to advance the applicant’s interests and concerns in relation to the inquiry.
On 21 September 1995 Craven, who is a counsellor, met with the applicant and the applicant’s union representative to discuss strategies to reintegrate the applicant into the workplace. His report dated 28 September 1995 (Exhibit R32) indicates that because of what he identified as the applicant’s intractability on all of the workplace issues, there was then no possibility of any form of counselling or reintegration process occurring. Craven gave evidence and it is appropriate to note that he previously counselled the applicant in regard to conflict between the applicant and other employees during his earlier employment and, in particular, during the period he was employed in the Royal Military College section.
Having investigated the allegations made by the employees against the applicant, Davidson prepared and served a Notice of Charges under section 61 of the Public Service Act and a Notice of Inquiry under section 62 of the Public Service Act, both of which were served on the applicant on 23 January 1996 (see Exhibit R14). In effect, the applicant was on that date formally notified that he had been charged with misconduct within the meaning of sections 55 and 56 of the Public Service Act. He was informed that an inquiry would be held into the charges to examine the truth of those charges and if proven what the consequences may be pursuant to section 62 of the Public Service Act.
In respect to all the charges the applicant was charged with having failed to fulfil his duties as an officer. The first charge under section 61 of the Public Service Act, Charge A, was laid alleging contravention of sub-section 56(d) of the Public Service Act. It states:
“... that on several occasions between January 1993 and 31 August 1995 he engaged in a course of improper conduct as an officer. Particulars of the charge are that in his dealings with a number of his co-workers, he behaved in a manner, which was not acceptable in the workplace by normal standards. It is alleged that Alan James Harlen engaged in repeated harassment of a sexual nature which was unwelcome and unreciprocated and that his behaviour was such that his co-workers felt offended, humiliated and intimidated. Specific instances are as follows:
(a) On or about early 1993, in the basement of Russell Building K, on more than one occasion when Ms Suzanne Ida Davis entered the work area, the said Alan James Harlen said to Ms Davis words to the effect “We’ve voted you our sweater girl”.
(b) On or about early 1993, in the basement of Russell Building K, on more than one occasion when Ms Suzanne Ida Davis entered the work area, the said Alan James Harlen said to Ms Davis words to the effect “I like the way you fill out your top”.
(c) On or about the period mid 1994 to August 1995, in the basement of Russell Building K, on more than one occasion, the said Alan James Harlen left offensive printed material, including newspaper articles and magazines, some of which were of a sexually explicit nature, at, or near the workstations of Ms Gertrude Guinan and Ms Jayne Mayo.
(d) On or about the period mid 1994 to August 1995, in the basement of Russell Building K, the said Alan James Harlen repeatedly attempted to engage a number of his co-workers, namely, Ms Gertrude Guinan, Ms Natalie Wain, Ms Jane Mayo, Mr Edward Sharpe and Mr Roy Jones in discussions of a very personal sexual nature which they considered to be intrusive and had made them feel uncomfortable.”
Charge B under section 61 of the Public Service Act alleged that the applicant failed to fulfil his duty as an officer within the meaning of sub-section 56(f)(i) of the Public Service Act:
“... in that on several occasions between January 1993 and August 1995 he failed to comply with the provisions of the Public Service Regulation 8A(b) of the Public Services Regulations, being a provision that is applicable to him. Particulars of the charge are that in his dealings with a number of his co-workers, he failed to comply with the provisions of section 28B of the Sex Discrimination Act 1984, being an Act that is applicable to the performance of his duties. Section 28B of the Sex Discrimination Act 1984 makes it unlawful for an employee to sexually harass a fellow employee. Section 28A of the Sex Discrimination Act 1984 defines sexual harassment as including unwelcome advances, requests and conduct of a sexual nature that leaves the person harassed feeling offended, humiliated, or intimidated.”
The same incidents numbered (a) through to (d) inclusive as those referred to in Charge A were relied upon to substantiate Charge B.
Charge C pursuant to section 61 of the Public Service Act alleged that the applicant failed to fulfil his duty as an officer within the meaning of sub-section 56(d) of the Public Service Act alleging:
“... that between January 1993 and 31 August 1995 he engaged in a course of improper conduct as an officer. Particulars of the charge are that in his dealings with a number of his co-workers, he behaved in a manner, which was not acceptable in the workplace by normal community standards. It is alleged that Alan James Harlen engaged in repeated harassment of a racial nature which was unwelcome and unreciprocated and that his behaviour was such that his co-workers felt offended, humiliated and intimidated. Specific instances are as follows:
(a) On or about the period August to December 1993, in the basement of Russell Building K, on more than one occasion, the said Alan James Harlen said to an officer he was supervising, Mr Viet Au, words to the effect “Didn’t they teach you anything in your country”, which were said in a manner that left Mr Au feeling belittled, angry and upset.
(b) On or about the period August to December 1993, in the basement of Russell Building K, on more than one occasion, the said Alan James Harlen said to an officer he was supervising, Mr Viet Au, words to the effect “Fuck off” and “Go home”, which were said in a manner that left Mr Au feeling belittled, angry and upset.
(c) On or about the period August 1993 to August 1995, in the basement of Russell Building K, on more than one occasion, the said Alan James Harlen said to Ms Gertrude Guinan words to the effect “why don’t you go back to your own country”, which were said in a manner that left Ms Guinan upset and offended.”
Charge D pursuant to section 61 of the Public Service Act relied on the same specific instances as those relied on for Charge C but asserts a failure to fulfil his duty as an officer within the meaning of sub-section 56(f)(i) of the Public Service Act:
“... in that on several occasions between January 1993 and 31 August 1995 he failed to comply with the provisions of Public Service Regulation 8A(b) of the Public Services Regulations, being a provision that is applicable to him. Particulars of the charge are that in his dealings with a number of his co-workers, he failed to comply with the provisions of section 9 of the Racial Discrimination Act 1975, being an Act that is applicable to the performance of his duties, which provides that it is unlawful to do any act involving a distinction, exclusion, restriction or preference based on race colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.”
Charge E pursuant to section 61 of the Public Service Act alleges that the applicant failed to fulfil his duty as an officer within the meaning of sub-section 56(f)(i) of the Public Service Act:
“... in that on several occasions between January 1993 and 31 August 1995 he failed to comply with the provisions of Public Service Regulation 8A(e). Particulars of the charge are that he did not, in the course of his duties treat members of the public and other officers with courtesy and sensitivity to their rights, duties and aspirations. Specific instances include:
(a) On or about July and August 1995, in the basement of Russell Building K, on two occasions while Ms Gerturde (sic) Guinan was collecting a contribution for the purchase of milk for the ‘tea club’, the said Alan James Harlen said words to the effect she could “get stuffed” and he wasn’t going to contribute to the “bloody” tea club. These words were said in a very loud and aggressive manner, with Mr Harlen’s arms flailing around.
(b) During the period mid 1993 to August 1995, in the basement of Russell Building K, the said Alan James Harlen would, within the hearing distances of other staff, say words to the effect, “Oh, I need a shit” and describe various toilet-functions. Such comments being offensive to other staff.
(c) During the period mid 1993 to August 1995, in the basement of Russell Building K, the said Alan James Harlen would, repeatedly raise his voice and speak in a rude and intimidating manner to Ms Natalie Wain and Mr Viet Au. Mr Harlen often directed abusive language such as “bloody” and “fuck off” at both of these staff.”
For the sake of completeness it is appropriate to set out the relevant provisions of the Public Service Act and Public Service Regulations and the other legislation relied on, where those provisions have not already been set out in this judgment.
Section 55 of the Public Service Act:
55.(1) In this Division, unless the contrary intention appears:
...
“misconduct”, in relation to an officer, means a failure of the officer to fulfil his duty as an officer;
...
(a)...
(b)...
(c)...
(d)...
(2)...
(3)...
(4)...”
Regulation 8A of the Public Service Regulations contains the following relevant provisions:
“8A. An officer shall:
(a)...
(b) comply with any enactments, regulations, determinations, awards or departmental instructions applicable to the performance of his or her duties;
(c)...
(d)...
(e) in the course of his or her duties treat members of the public and other officers with courtesy and sensitivity to their rights, duties and aspirations;
(f)...
(g)...
(h)...
(i)...”
The Sex Discrimination Act 1984 (Cth) as amended from 13 January 1993:
“28A. (1) For the purposes of this Division, a person sexually harasses another person if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
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.
(2)...”
28B.(1) It is unlawful for a person to sexually harass:
(a)an employee of the person; or
(b)...
(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.
(3)...
(4)...
(5)...
(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both of those persons.
(7)In this section:
...
***“workplace” means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant;
“workplace participant” means any of the following:
(a)an employer or employee;
(b)...
(c)...”
The Racial Discrimination Act 1975 (Cth), section 9:
“9. (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
(1A)...
(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
(3)...
(4)The succeeding provisions of this Part do not limit the generality of this section.”
THE INQUIRY
Once the Charges A to E inclusive were laid pursuant to section 62(1) of the Public Service Act, Fitzgerald was the officer appointed by Bromwich to conduct the inquiry.
In correspondence dated 25 January 1996 and 29 January 1996 respectively, (Exhibit A4 and A7) the CPSU sought, amongst other things, clarification of the charges through the provision of more information, the interviewing by the Department of nine other officers and more time for the applicant to provide a statement he intended to provide to refute the charges and prove their falsity.
Following his appointment as the inquiry officer Fitzgerald appointed Mills as the investigating officer, that task requiring Mills to gather information and interview and, in some cases, reinterview witnesses as well as the officers the applicant nominated for interview.
The interviews covered the period between February and mid July 1996 because of the unavailability of some of the interviewees and because the applicant nominated further names for interview (see records of interview Exhibits R2, R16 to R28 inclusive).
On 9 May 1996 Mills provided a report on his investigation of the charges (Exhibit R29). This report was completed before there was a request by the applicant for the further interviews which interviews took place in July 1996.
What is apparent from the evidence is that throughout the inquiry period the applicant on many occasions indicated a desire and an intention to submit a written statement which would refute the charges made. To accommodate this request the respondent extended the time for submitting a statement on many occasions. Notwithstanding the time allowed and the provision of copies of witness statements, no written statement was forthcoming.
On 24 July 1996 what was referred to as a formal hearing of the charges (Exhibits R30 and R35) was conducted. In attendance were Fitzgerald, Mills, the applicant and his union representative.
On the evidence I am satisfied that that meeting, which lasted some two hours, was one where the charges were all read to the applicant and he was provided with an opportunity to respond to each allegation of misconduct referred to in the charges.
At hearing the applicant sought to rely on a transcript of a tape or tape recordings of the July meeting. Mills agreed when giving his evidence that there had been an attempt to record the meeting and after the first eight minutes or so the applicant had insisted that they stop and start recording again. They did this, however, according to Mills, and the applicant appeared to agree with this, most if not all of the recording was defective and could not be properly transcribed. The applicant did not cross-examine Mills at any length on this issue nor did he cross-examine Fitzgerald on this matter at all. When giving his own evidence the applicant sought to tender in evidence a transcript of a tape of the interview. This was objected to because there had been no proper opportunity for the respondent’s witnesses to respond to any alleged contradiction of their evidence the transcript provided.
On numerous occasions the applicant was invited by the Court to spell out what matters he recalled from the meeting, which matters he said contradicted Mills and Fitzgerald’s evidence and the records made of that meeting by Mills. It was common ground that most of the recording was defective and, therefore, it could not provide a complete or substantial record of what transpired at that meeting. I was not satisfied that the applicant was frank with the Court when he said that the transcript he had did contradict their evidence and that he could not give evidence from his own recollection because there were too many matters contained in that transcript to recall. The impression I gained from the applicant was that he would not co-operate once the Court declined to admit the alleged transcript of part of an alleged tape recording.
I am satisfied that the evidence of Mills and Fitzgerald concerning the meeting and, indeed, the extent of the inquiries conducted, is consistent and reliable evidence. Their evidence demonstrated to the Court the lengths to which the respondent went to satisfy the applicant’s queries; giving him many opportunities to respond to the substance of the charges made.
In relation to the charges discussed at that meeting the applicant’s response and the evidence generally can be summarised as follows:
Charges A and B - Parts (a) and (b)
The applicant admitted making the comment to Davis on one occasion only that “we have voted you our sweater girl”. He did, however, deny any sexual connotation associated with that comment. So far as the second statement was concerned, he was equivocal because he said he did not recall making the remark but nevertheless claimed that if he had it would have been in 1995 and not 1993. He also offered the comment which was repeated at hearing that he preferred women with fuller figures. To put the comment in context, I noted at hearing that the witnesses Davis, Guinan and Mrs Booth were all women who might be said to have “fuller figures”. However, at hearing, apart from making it clear that he had no sexual interest in his female co-workers, no explanation was given for making the comment.
Davis’ allegation is that the remarks about her sweaters were numerous. She was corroborated in her complaint by Guinan to the extent that Guinan’s evidence is that she heard the applicant on a number of occasions comment to Davis on how good she looked in her tops and on those occasions Guinan noted that Davis was distressed by these comments. In my view on this evidence it was open to the respondent to find that the comments were made in the circumstances alleged.
Charges A and B - Part (c)
As a result of his inquiry Fitzgerald gave the applicant the benefit of the doubt on this particular charge and found that it was not sustained. In my view the evidence called at hearing did not alter this outcome. The applicant generally denied leaving any newspaper articles or magazines of a sexually explicit kind for the female employees to see. He did, however, admit to having shown a newspaper article to both Guinan and Mayo (Exhibit A2) which he described as an historical article. That newspaper article was described by the by-line “Sex, sadism reigned on Eloisa’s island of death”. The substance of the article dealt with the life of a woman who allegedly had three male sex slaves living on an island with her during the 1930’s.
The evidence of the co-workers did not satisfy me that the applicant was responsible for leaving much of the offensive material they found in their work area, nor was I satisfied that that material was, as they described it, pornographic. I reached this lastmentioned conclusion for a number of reasons. One reason is that each of the female witnesses who saw any magazines or articles left in their work area were quick to point out that they did not read the magazines or articles because they believed them to be pornographic. Strictly speaking, pornography refers to explicit or simulated representations of sexual activity. My understanding of the evidence of Guinan, Mayo and Mrs Booth was that they were not really in a position to assert that the magazine or articles that they saw were pornographic but that their cursory inspection of material they found left in their workplace indicated that the material depicted some nudity and once they saw that they were deterred from looking any further.
The evidence which emerged both at the inquiry level and at the hearing was that other male employees had in their possession at work magazines and material that may have depicted nudity. This, of course, suggests that the workplace was not then properly supervised and there was no proper system in place for ensuring that material that may be offensive to some workers was not brought into the workplace and left for viewing by particularly the female employees. None of the witnesses were really able to describe any article or magazine in detail which they were also able to say the applicant had left in their work area. Exhibit A2 is the article the applicant concedes he left for at least Guinan to read and it is the one he claims caused her to complain to McCausland. Neither Guinan nor McCausland identified this particular article as the one which was the subject of her complaint. Accordingly, whilst I have some doubts that the original of Exhibit A2 was in fact the only article that the applicant left, I am not satisfied that the respondent has established on the balance of probabilities the facts alleged in Charges A and B, part (c). This, of course, does not mean that by telling Guinan that the subject of the article was “lucky” and leaving the article which conveys an erotic message to the reader is not conduct which may, of itself, sustain a broader allegation of sexual harassment in the workplace, particularly when it is coupled with findings relating to other unwelcome conduct of a sexual nature in the workplace.
Charges A and B - Part (d)
The evidence of his co-workers overwhelmingly supports a finding that the applicant habitually approached co-workers, particularly the three women named in these charges, and questioned them about their “love life” or “sex life” as well as burdening them with discussion about his own sex life. Despite his general denial when giving his evidence of this conduct, the applicant did somewhat inconsistently suggest that he may have used the expression “how’s your love life”, which expression he claims is common place in England, his birth place. In his view the expression does not have any sexual connotations. I am satisfied that despite attempts by the co-workers to avoid these discussions, the applicant persisted in attempting to engage them in these discussions and his female co-workers and Jones were very embarrassed by the intrusiveness of his inquiries; not to mention the information he chose to disclose about his own personal life.
Throughout both the inquiry and the hearing the applicant maintained that in the workplace his relationships were friendly and cordial and he was a co-operative and helpful employee. Notwithstanding these assertions he did, from time to time, concede that there was conflict between him and Smith, Booth, who was not employed in the same section but lunched with Mrs Booth regularly in the tea room, McCausland, Foley and Au; just to name a few. The picture that emerged at hearing was of very poor workplace relationships where there was either direct conflict with other employees or circumstances where employees such as Au and the female co-workers felt that the applicant attempted to stand over them when they did not do what he required them to do.
Charges C and D - parts (a), (b) and (c)
During the inquiry the applicant did not recall a remark directed to Au, who was born in Vietnam, to the effect of “Didn’t they teach you anything in your country?”. When he gave evidence, however, at first he said he may have said to Au “Is that the way they teach you to do things in your country?”, because Au was performing his tasks differently to the way the applicant did. When he was cross-examined the applicant appeared to suggest that he had in fact said to Au, “Is that the way they teach you to do things in your country?”. He also claimed that he found Au to be “very, very, very difficult and frustrating” to work with and because of this he may have raised his voice to him at times. Nevertheless, he denied telling Au to “get fucked” and “go home”.
It was quite apparent during the hearing that the applicant felt some degree of antagonism towards Au when he was supervising Au’s work and this caused the applicant to complain to Smith who did not accede to the applicant’s complaints but did ultimately remove Au from under the applicant’s supervision.
Generally the evidence of the co-workers confirms that the applicant, as well as some of the other employees and managers, were prone to using colourful language in the workplace. By and large, occasional swearing in the workplace, depending on the surrounding circumstances, is not a strong or reasonable basis for terminating an employee’s employment. In this case I accept that the applicant was not the only one to indulge himself by swearing in the workplace, however, the difference between the applicant and the other employees so far as his co-workers were concerned, was that the applicant was abusive towards the person the language was directed to and offered no apology after he used this language.
The weight of the evidence supports a finding that the applicant did address other employees such as Au, Guinan and Mrs Booth in abusive terms when he was angry with them or in some way frustrated by the way in which they performed their tasks. The impression I gained from the co-workers was that the applicant was a particularly intolerant individual who did not accept any criticism of his performance at all and who was impatient with the co-workers if they did not do what he believed they should be doing. Even at hearing the applicant refused to acknowledge that at any time his performance or his relationship with co-workers was the subject of any prior complaint. This was despite the matters which occurred during his period of probation and led to his transfer to another section and this was also despite his current co-workers and managers pointing to many incidents where his performance and his ability to work alongside other employees was questioned. The problems I have already canvassed between the applicant and Au illustrate this point.
Given the history of his relationship and the manner in which he conducted himself, it is more likely than not that the applicant, when he queried how Au was taught his trade in Vietnam, whatever words were used, the query was directed at Au in an abusive and insulting fashion. It is also likely, because of their difficult relationship and the applicant’s belief that Au was unco-operative, that the applicant swore at Au in an abusive way on occasions.
The expression “go home” unless placed in a particular context and expressed in a particular way, is not inherently offensive. The use of this expression was denied by the applicant. When he was cross-examined Au referred to an incident some four years earlier when he had not responded to the applicant and the applicant had said to him “fuck off, you go home”. In this context and relying on the evidence given at hearing, I am satisfied that the expression “go home” may have been used as Au suggested on up to two occasions in an abusive fashion. However, it was not clear to me from Au’s evidence what that expression meant to him at the time and in the context it was used. The statement “why don’t you go back to your own country?’ is obviously one which more readily conveys offence based on race because of its clear reference to the subject’s country of origin. Guinan was born in Sri Lanka and I accept her evidence that on three to four occasions when there were arguments between them the applicant in effect told Guinan to go back to her own country.
Charge E - part (a)
During the inquiry and at the meeting on 24 July 1996 the applicant agreed that he may have used the word “bloody” or told Guinan to “get stuffed” when there was a heated exchange between them concerning her request for him to contribute money to a tea club fund. Much was said about this argument which was observed by co-workers. The applicant conceded that he was upset at this time because he thought he was being accused of stealing milk from the fridge. In this climate it is probable that he did behave in an aggressive and abusive fashion toward Guinan. On the evidence I am not satisfied that Guinan did or said anything on any occasion on which they had discussions about his contribution to the tea club fund which in any way warranted an aggressive or abusive response for the applicant.
Charge E - part (b)
No witness evidence was called in relation to this allegation and I note that in his findings Fitzgerald found that the allegation was not sustained. Accordingly, that charge has not been proven.
Charge E - part (c)
I have already indicated that I accept that Au was subjected to abusive language from time to time because the applicant, despite his evidence to the contrary, had a poor working relationship with Au and believed that Au was not co-operative.
The witness evidence supports a finding that from time to time the applicant raised his voice and directed abusive language to Mrs Booth, who was one of the special placement employees in the workplace. Mrs Booth presented in Court as a somewhat shy and unsophisticated young woman who clearly had difficulty dealing with the applicant, both because of the intrusive nature of his inquiries about her personal life and his attempts to direct her when she was performing her work.
Following the meeting with the applicant on 24 July 1996, Fitzgerald obtained further reports from the applicant’s supervisors concerning counselling sessions and his relationship generally with other staff (see Exhibits R36 and R37). There was evidence of at least one counselling session which related to the applicant taking time off work without obtaining appropriate permission to do so. There was also another issue relating to the applicant remaining in the secured area of the building after it was supposed to be locked up and after employees were required to be out of the area. What was apparent at hearing was that the applicant did not accept that there was any lawful counselling session or criticism of him concerning his taking leave even though he acknowledged that he had not been able to obtain permission from Smith as he was directed to because Smith had gone home early. His behaviour in the context of that counselling session and his removal of the notes from the counselling session, subsequently refusing to return them to his employer, is further evidence of his unco-operative and intractable behaviour in the workplace.
At hearing the applicant attempted to provide the Court with what is best described as both a convoluted and contradictory explanation for remaining in the respondent’s security area after hours when all staff were instructed not to do so. I accept Cann’s evidence that he saw the applicant on the telephone on at least one occasion and it is likely, on the applicant’s evidence, that he did remain after work from time to time to use the telephone and did not leave the building by the time he and all the employees were required to.
On 23 August 1996 the second formal meeting took place between the applicant, his union representative and Fitzgerald. Fitzgerald’s record of that meeting (Exhibit R38) and his evidence indicate that the meeting was convened to allow the applicant to place more information before Fitzgerald on the charges. The meeting was a further occasion for the applicant to assert that his co-workers were being manipulated by Smith to give concocted evidence against him. During that meeting the applicant was invited to detail any personal matters affecting him in the last eight to ten years and he was again invited to provide any further information or a statement for Fitzgerald’s consideration before completion of the inquiry. It appears that nothing further was forthcoming.
Fitzgerald gave evidence which indicated that he deliberated at some length before deciding to terminate the applicant’s employment. This involved him in a careful analysis of the statements made by the co-workers and an attempt to establish corroboration through the statements of the matters raised in the charges (see Exhibit R34).
I have already noted that some of the co-workers who provided statements did not give evidence and for the purposes of this proceeding I have ignored the contents of their statements, apart from noting that they formed part of the material Fitzgerald considered when determining whether the charges were established and when deciding what discipline should be imposed. I am satisfied that the absence of the witnesses who provided statements which formed part of the materials before Fitzgerald does not adversely affect the proofs of the substantive charges I have found proven where the respondent has the burden of establishing a valid reason or reasons for termination.
On 16 September 1996 Fitzgerald, Craven, the applicant’s union representative, the applicant, Bromwich and David Long (the latter of whom attended to take notes), met (see Exhibit R42). On that occasion the applicant was provided with a Notice of Direction under section 62(6) of the Public Service Act. That notice sets out Fitzgerald’s findings that Charges A to E were proven and informs the applicant of his dismissal.
By a report dated 16 September 1996 (Exhibit R39) Fitzgerald sets out in detail the evidence he gathered and his findings. It is apparent from that comprehensive report, which in itself reflects a very thorough attempt to investigate the charges, that Fitzgerald found that the Charges A and B - parts (a) and (b), and Charges C and D - parts (a), (b) and (c) were “sustained in all probability”. Charges A and B - part (c), and Charge E - part (b) were “not sustained beyond benefit of doubt”. Charges A and B - part (d), and Charge E - parts (a) and (c) were “sustained”.
Essentially Fitzgerald’s findings on the facts were established on the evidence before the Court, even though as I have already observed, some of the corroborative witness evidence was not called. For instance, Fitzgerald relied on a statement from Sandra Marshall to the effect that she heard the applicant tell Au to “go back to your own country”. She did not give evidence and, of course, Au’s evidence in Court was really confined to saying that he was told to “go home”. I have accepted that the words, or words such as, “go home” in all probability were used and were used in an abusive tone, however, there is no proper and clear evidence before the Court to establish that the words carried any obvious racial imputation.
SEXUAL HARASSMENT
Under the Commonwealth Sex Discrimination Act 1984 as amended from 13 January 1993, the phrase “sexual harassment” covers conduct which is both sexual and unwelcome. There may be one act or many in order to establish sexual harassment. The applicant on many occasions stated to the Court that there was no intention on his part to offend in relation to any of the conduct alleged against him and, in particular, the conduct he conceded such as the remarks “we’ve voted you our sweater girl” and “how’s your love life”. However, as a general rule the intention of the alleged harasser is not relevant to determining whether the conduct amounts to sexual harassment.
In my decision in Jones v Armas Nominees Pty Ltd (1994) 59 IR 61 I had occasion to consider the meaning of the phrase “sexual harassment” and in that case compared the Victorian and Commonwealth legislation dealing with this conduct. It is not necessary here to repeat at length the matters discussed in that case, however, it is worthwhile noting that harassment refers to behaviour that involves words, gestures or deeds which intrude upon another person and are unwelcome. In the present case to sustain the allegations contained in Charges A and B the conduct alleged must be of a sexual nature. The Commonwealth legislation also requires that a reasonable person having regard to the circumstances would anticipate that the victim of the harassment would be offended, humiliated or intimidated by the conduct.
On the evidence I am satisfied that there is a basis for finding that the conduct complained of was sexual conduct which amounted to sexual harassment in the workplace. For instance, the applicant’s conduct in questioning the co-workers about their sex life, his suggestive comments about his co-worker’s appearance and clothing and his conduct vis-a-vis Guinan in giving her the newspaper article (Exhibit A2) concerning, amongst other things, the sexual conduct of the subject of that article when Guinan was already the victim of other unwelcome conduct of a sexual nature from the applicant, was conduct which created a sexually hostile working environment for these co-workers. Further, I am satisfied that those who experienced the applicant’s conduct did not welcome it and repeatedly attempted to avoid it. Objectively speaking, I am also satisfied that a reasonable person in the circumstances described to the Court would have anticipated that the conduct complained of would offend, humiliate or intimidate the individuals involved.
Putting to one side any requirement for the respondent to substantiate some of its charges by establishing contravention of section 28A and section 28B of the Sex Discrimination Act, arguably the behaviour described by the witnesses and the repetition of that behaviour over a lengthy period was improper conduct for the purposes of sub-section 56(d) of the Public Service Act. In other words, the conduct was not proper conduct in the context of that particular workplace where the applicant worked; for instance, with special placement employees, with women and co-workers with different racial origins.
RACIAL DISCRIMINATION
No submissions were made to the Court to demonstrate in what way the facts alleged, if proven, gave rise to a contravention of the Racial Discrimination Act and, in particular, sub-section 9(1) thereof. Broadly speaking, my understanding of that sub-section is that it relates to acts of racial discrimination but does not necessarily encompass acts of abusive or offensive conduct by employees in the workplace, which acts are offensive because of their racial overtones. In October 1995 the Racial Discrimination Act was amended by the addition of Part IIA; namely, sections 18B to F inclusive prohibiting behaviour based on racial hatred. The amendments post-date the applicant’s suspension by the respondent in September 1995. Those amendments attempt to address offensive acts done in public, which acts are based on a person’s race, colour or national or ethnic origin. The addition of Part IIA to the Racial Discrimination Act represents an attempt to provide some prohibition against racial vilification as distinct from the acts of racial discrimination dealt with by section 9 and, in so doing, confirms the narrower ambit of section 9.
In my view Charge C is sustained on the facts proven because the making of the alleged statements to co-workers was abusive and therefore improper conduct on the part of the applicant as an officer. Further, it was abusive and offensive conduct that, in at least the case of Guinan, was specifically offensive because of the circumstances in which the conduct occurred and also because it was racially hostile conduct.
Charge D is not proven because for its success it relies on a contravention of sub-section 9(1) of the Racial Discrimination Act and on the evidence and submissions I am not satisfied that the respondent has made out a case that that provision was contravened.
MISCONDUCT
Insofar as I have found that the facts alleged to have occurred did occur with regard to Charge E - parts (a) and (c), I am satisfied that there was by reason of the conduct alleged, a breach of sub-section 56(f)(i) as alleged. The evidence strongly supports a finding that the applicant was rude and abusive towards his co-workers and demonstrated a remarkable lack of sensitivity to their right to work in a workplace free of harassment of any kind including sexual or racial harassment and free of intimidation by co-workers.
CONCLUSIONS
Whilst it is apparent that on the evidence before me and on the findings I have made I have reached some different conclusions to those reached by Fitzgerald following his inquiry, it is clear that a number of the charges have been established on the balance of probabilities.
It goes without saying that there are always options other than dismissal and in this case Fitzgerald had a range of options available to him by reason of the provisions contained in section 62 of the Public Service Act.
Regardless of the differences between the Court’s findings and those of Fitzgerald, I am satisfied that on 16 September 1996 there was a valid reason for termination; namely, the applicant’s conduct. The applicant over a very lengthy period of investigation was given ample opportunity to respond to the various allegations made. He did so by generally denying all of the allegations, although his evidence ranged from blunt denials to attempts to explain the charges by suggesting that other employees were guilty of the conduct alleged and had conspired to make up all the allegations made in order to get rid of him. I am satisfied that, bearing in mind both the applicant’s history of poor interpersonal relationship within the workplace and his refusal to contemplate any changes in his behaviour to enable any reintegration in the workplace, the decision to dismiss was a fair one in all the circumstances. Accordingly, the order I propose to make is that the application be dismissed.
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
I certify that this and the preceding thirty-four (34) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 6 August 1997
Applicant in Person.
Solicitors for the Respondent: Australian Government Solicitor
Appearing for the Respondent: Mr T. Burslem
Date of hearing: 19, 20, 21, 22 and 23 May 1997
and 4 and 5 June 1997
Date of judgment: 6 August 1997
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