Kelleher, S.C. v Catholic Recreation and Sporting Club Ltd

[1998] FCA 425

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - employment law - review of judicial registrar’s decision - termination of employment - termination of employment unlawful, valid reason improper conduct towards a female employee.

INDUSTRIAL LAW - EMPLOYMENT LAW - TERMINATION OF EMPLOYMENT - the decision to terminate the applicant’s employment, the OPPORTUNITY TO RESPOND required by section 170DC of the Act - whether termination of applicant’s employment contravened s 170DE(1).

Industrial Relations Act 1988 (Cth), ss: 170DC, 170DE(1), 170EDA(1)(a), 170EE, 482
Workplace Relations Act1996 (Cth)

Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199, cited

Davis v Portseal Pty Limited (Moore J, 26 November 1996, unreported), cited

Davis v Portseal Pty Limited (1997) 72 IR 414, cited

S.C. KELLEHER -v- CATHOLIC RECREATION
AND SPORTING CLUB LIMITED

NI 3336  OF   1995

O’CONNOR J
SYDNEY
28 APRIL 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 3336  of   1995

BETWEEN:	S.C. KELLEHER APPLICANT
AND:	CATHOLIC RECREATION AND SPORTING CLUB LIMITED RESPONDENT
JUDGE:		O'CONNOR J
DATE OF ORDER:		28 APRIL 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 3336 of 1995

BETWEEN:	S.C. KELLEHER APPLICANT
AND:	CATHOLIC RECREATION AND SPORTING CLUB LIMITED RESPONDENT

JUDGE:	O'CONNOR J
DATE:	28 APRIL 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HER HONOUR:
In this matter I have reviewed the decision made by Judicial Registrar Locke on the 1 July 1997, dismissing an application by Mr Kelleher that the termination of his employment on the 14 August 1995, was unlawful within the meaning of s 170DC(1) and ss 170DC(a) and (b) of the Industrial Relations Act 1988, (later to become the Workplace Relations Act 1996) (the Act).  The applicant had sought at that time the remedies of reinstatement, compensation and damages for breach of contract and seeks the same remedies in this application.

While the matter was heard as a hearing in “de novo”, both the applicant and the respondent identified parts of the previous hearing, both transcript and relation to exhibits, that they proposed to rely on in the Court hearing.  These were as follows:

The applicant;

Exhibits A to Q in the proceedings before Judicial Registrar Locke and transcript references of:

(a)Kathy Wright Kelleher, 2 October 1996 page 22 @ 20 to 31 @ 10,

(b)Sean Colin Kelleher, 2 October 1996 page 32 @ 10 to 56 @ 20,

3 October 1996, page 6 @ 10 to 32 @ 10 and

page 46 @ 5 to 87 @ 10,

(c)Rod Groth, 3 October 1996 age 33 to 45 @ 30,

(d)Dr Cram, 4 October 1996 page 69 @ 5 to 79 @ 10,

(e)Kirsty Jane West, 4 October 1996 page 2 @ 25 to  65 @ 5,

(f) Donna Marie Gibson, 4 October 1996 page 65 @ 10 to 69 @ 5,

page 79 @ 15 to 92 @ 10

(g)Phillip Gary Klaus, 4 October 1996 page 92 @ 15 to 101 @ 5

(h)Michael James Hawkins, 18 November 1996 page 3 @ 5 to 81 @ 25,

19 November 1996 page 2 to 9 @ 20

(I)Kerry Ann Hewitt, 19 November 1996 page 9 @ 20 to 29 @ 20

(j)Kevin Thomas McLoughlin, 19 November 1996, page 29 @ 20 to page 55 @ 15.

The Respondent;

The affidavits which were marked exhibits 1 to 4, and 6 to 8 during the hearing before Judicial Registrar Locke; and transcript references;

(a)Kirsty West, 4 October 1996 line 23 page 3 to 7 on page 4

(b)Donna Marie Gibson, 4 October 1996 line 12 page 66 to 17 on page 66

(c)Phillip Gary Klaus, 4 October 1996 line 12 on page 93 to 20 on page 93

(d)Michael James Hawkins, 18 November 1996 line 12 on page 22 to 13 on page 23

(e)Kerri Anne Hewitt, 19 November 1996 line 20 page 9 to 23 on page 12

(f)Kevin McLoughlin, 19 November 1996 line 21 page 29 to 35 on page 31

(g)Dr Ian Cram, 4 October 1996 line 28 page 70 to 6 on page 71

(h)Rod Groth, 3 October 1996 line 17 page 43 to line 31 on page 43

(i)Sean Colin Kelleher, 3 October 1996 from line 1 page 46 to 5 on page 82.

A number of matters were common ground between the applicant and the respondent and they were dealt with in some detail by Judicial Registrar Locke.  I refer to them only briefly in this judgement. 

The applicant was dismissed by the respondent for “improper conduct towards a female employee”.  He was paid his contractual notice entitlements.  His employer considered that he had sexually harassed an eighteen year old casual female employee of the respondent, Ms Kirsty West.  The applicant had known Ms West as a neighbour for a number of years before she was employed at the respondent’s club.  In fact, the applicant was the person who arranged for Ms West to be employed by the respondent, initially as “work experience”, and then, as a casual employee.  She continued to work, on a casual basis, in her university holidays after she commenced studies at Macquarie University.

The conduct which was the basis for the termination of employment fell into three areas:

(a)    Conduct at the staff Christmas party in December 1994;
(b)   Telephone calls;
(c)    Physical harassment of Ms West during working hours.

(a) The Christmas Party

A central issue in this case concerns the behaviour of the applicant at the 1994 Staff Christmas party.  There was a great deal of evidence concerning this matter in the previous proceedings and statements from both the applicant and Ms West giving their version of what happened.  There is also a statement from a Phillip Klaus concerning the Christmas party but he was not called as a witness in the proceedings before me.  I did however hear oral evidence from both the applicant and Ms West and they were cross-examined extensively.

The applicant’s evidence is that he was on duty at the club as a supervisor during the party, that he had not been drinking and that he had observed Ms West at the party enjoying herself.  He saw that she was drinking and that she had been kissing at least one member of the opposite sex.  He said that other people working in the club had commented to him about Ms West’s behaviour and he was annoyed and disappointed in her.  When he observed her leaving the club in the company of other people, including Mr Klaus, he asked her to come and see him.  He said he intended to speak to her about her behaviour at the party.  She responded that she would come “in a minute”.  He said that he then carried on with other tasks and that eventually Ms West did come behind the reception desk, met him in the corridor leading to a staff room and initiated a kiss.  He said that he responded to the kiss and then Ms West left the area, rejoined her friends and that he had unlocked the entrance doors to allow them to leave the club.  He understood that their intention was to take a cab to another location to continue the party.

Ms West gives a different version of events.  Whilst she agrees that she was called into the area behind the reception desk by Mr Kelleher, she said that she followed him into the staff room and that she wished him a merry Christmas and he kissed her on the cheek.  She was disconcerted by that and then he took both of her arms, pulled her towards him and kissed her ardently and attempted to put his tongue in her mouth.  She said she was shocked and upset, broke away from his grasp, left the staff room in a distressed state and went out to rejoin her friends.  She said she was very disturbed by what had happened and her friends asked her what was wrong.  She said she was in tears and explained that she had been kissed by Mr Kelleher.  The written statement by Mr Klaus, in evidence before me, corroborates this fact.  Mr Kelleher says that he saw no sign of Ms West being upset and was very firm in his evidence before me, that at no point did he initiate any physical contact with Ms West.  He asserted that she had initiated the kiss and he “kissed her back”.  Ms West gave evidence that she asked the people she was with not to talk about the incident because she just wanted to “forget it”.  She continued to work at the club and made no complaint at that time about Mr Kelleher’s behaviour.

Mr Kelleher said that Ms West did not change her behaviour towards him after that incident.  He considered that she was a good worker and she asked his advice about training and other matters.  An exhibit in proceedings includes a coaster of the club, on which is inscribed, in handwriting, identified by her as that of Ms West, her telephone number and room number in the college in which she was residing while a student in Sydney.  Mr Kelleher said that this coaster had been given to him by Ms West with an invitation to contact her if he were in Sydney so that they could meet.  He said that after the Christmas party on some occasions he had drinks with Ms West after work and that she was friendly and pleasant towards him.  She explained this by saying that although she was upset about the Christmas incident she did not wish to create an issue about it because she wanted to keep her job.  She said that she tried to treat Mr Kelleher as her supervisor and she treated him the same way as she treated the other supervisors.  She said that when she finally discussed the incident with her mother she had been advised by her to avoid being alone with Mr Kelleher.  She agreed that apart from that, she did not change her behaviour towards him.  Although conceding that it was her handwriting on the coaster in Mr Kelleher’s possession, she had no recollection of writing on the coaster nor of giving it to Mr Kelleher and could not explain how it had come into existence.

(b) The telephone calls

Between April and July of 1995 Ms West said that Mr Kelleher made telephone calls to her when his wife was absent from home.  In these calls he invited Ms West to come to his house for a “few drinks”.  On each occasion Ms West refused the invitation.  She said that she believed that “more was expected of her” if she had gone to his house other than having a drink.  Mr Kelleher did not deny making these calls but he explained the calls as being an expression of friendship which he often made to different people.  He did, at various times, both to the Board, in his statement and under cross-examination, give different explanations as to these calls and the reasons for them.  On one occasion he described them as only being related to work matters.  On other occasions he described them as being out of friendship and on another occasion he described one of the calls as being an invitation which had been originally suggested by Ms West for her and her mother to come and see the renovations in his home.  In cross-examination as to these calls, Ms West remained firm in her evidence that they were not related to work and that from her point of view the clear inference was that they were intended to invite her over for “more than drinks”.

(c)     Sexual harassment during working hours

Ms West said that, on one occasion, when she was pouring wine from a container in an open refrigerator behind the bar, Mr Kelleher came to where she was working and, standing behind her, placed his arms on her shoulders to get wine from a shelf above her and said “how does this feel” as he pushed himself against her.  She also said that, on at least one occasion he touched her on the hand and her buttocks as he moved past her in the aisle behind the bar.  She said that she tried to stop him doing this.  The fridge incident was witnessed by another employee and she made a statement to that effect.

The applicant’s employment history at the Club

Mr Kelleher’s challenge to his employer’s case that he was validly dismissed was made on two bases.  Firstly, he believed that Ms West had been encouraged or pressured to complain about him, some eight months after the first incident, for reasons other than her concern about his behaviour.  Secondly, he believed that he was dismissed as a “scapegoat” because other supervisors and employees at the club were antagonistic towards him.  He said that these employees were jealous of the fact that he had progressed so well in his employment.  Having commenced as a casual bar attendant, he had quickly become a supervisor and he was unpopular because he did the rosters as part of his duties.  There was evidence that there had been complaints about Mr Kelleher’s behaviour when he was at the club, not on official duty, attending a wedding at which he was the Master of Ceremonies.  At that function he had become very drunk and abused two other employees at the club, both of whom complained about his behaviour and continued to press the management of the club to deal with this incident as a disciplinary matter.

Mr Michael Hawkins, the Secretary Manager of the club, who gave evidence before me, said he had dealt with this incident in the ordinary way and Mr Kelleher had been cautioned as to his behaviour.  However, other complaints about Mr Kelleher’s behaviour were made by other employees even after this, including allegations about other sexual overtures Mr Kelleher had allegedly made to people working at the club.  None of those matters were before me.  I refer to them only in that there was, at the time that Mr Michael Hawkins contacted Ms Kirsty West on 8 August 1995, a hostile environment at the workplace and the Board of the Club were very concerned about the industrial repercussions from the disputes between Mr Kelleher and the other employees.  Because of these disputes, Mr Hawkins had, after a meeting with Mr Kelleher, arranged for him to go on leave with full pay until the matters were “sorted out”.  This was a short period before Ms West complained.

On 8 August, Mr Michael Hawkins rang Ms West and asked her if rumours he had heard about Mr Kelleher’s behaviour towards her were true.  She said that they were.  He then asked her to put them in writing and make a formal complaint.  She was offered by him the opportunity to discuss the matter with a Ms Hewitt, the Finance Manager of the Club before putting her complaint in writing. She did this and then decided to provide a written complaint to the Board.  They received it on the 14th of August 1995.

There was no dispute that the club, through Mr Hawkins, invited Ms West to complain about Mr Kelleher’s behaviour.  Although in her evidence she indicated her distaste for what had occurred and her concern about Mr Kelleher’s  treatment of her on a number of occasions, she was, until asked to formally complain about it, prepared to deal with it on an informal basis acting on the advice of her mother, ie. to avoid being alone with Mr Kelleher and to treat him “in a professional way” as her supervisor.

On Friday 11 August 1995, club executives had had a meeting with those staff members who were upset about Mr Kelleher’s behaviour.  This meeting was described in the minutes as a “disciplinary meeting”.  Those attending had been given the opportunity to have a representative attend with them.  Because of the dissatisfaction with management at the club, many employees had joined the union and were becoming very vocal about work problems and in particular, the problems they had with Mr Kelleher.  Mr Kelleher said he believed that the approach to Ms West and the subsequent termination of his employment were directed towards dealing with these industrial problems and that the concerns of his employers as to the alleged incidents involving Ms West was not the real reason for his dismissal.

I find that the complaints made by Ms West were solicited at the time they were in order to address in part these industrial problems.  The Board had been concerned about the “wedding incident” and its aftermath.  They were also concerned about other complaints and allegations against Mr Kelleher and they knew these would have to be addressed in some way.  The evidence is that, but for the club’s wish to “bring to a head” all of the matters concerning the employment of Mr Kelleher, in order to deal with them once and for all, there would have been no approach to Ms West on 8 August 1995, in relation to Mr Kelleher’s behaviour towards her.  Nevertheless, she did complain after being approached, the Board acted on these complaints and dismissed the applicant at the Board Meeting on Monday 14 August 1995.

The evidence about the three areas of complaint is contradictory if one compares the versions of the events given by Ms West in her complaint and the explanation of his behaviour given by Mr Kelleher.  I have taken into account in considering this matter the fact that there was an eight month delay between the first event ie the Christmas party and the actual complaint in writing made by Ms West.  I have also taken into account the fact that the complaint, when it was made, was solicited by the employer.  I do not however, consider pressure was put on Ms West to make this complaint.  The two people who contacted her before the complaint was made were Mr Hawkins, who gave evidence before me (and of whom I formed a favourable impression as being truthful person and a balanced and capable manager) and Ms Hewitt the Finance Manager, who did not give evidence at the hearing before me, but whose statement was tendered.  This evidence could not be construed as putting pressure on Ms West.

The consequence for Ms West, having made this complaint, has been a long and protracted examination of it.  She has twice appeared in court and been cross-examined on both the content of her original complaint and a written statement made for the first hearing of this matter.  She has, over all of that period, remained consistent in her version of what happened in her dealings with Mr Kelleher.  She explained her failure to complain on each occasion as being motivated by her concern not to make trouble, not to risk her job, and not to disturb Mr Kelleher’s wife who was a friend of their family.  Mr Kelleher’s only explanation for what he describes as “lies” about him, is the pressure placed on Ms West from managers and supervisors to fabricate these matters against him.  Unfortunately for Mr Kelleher, at least two of the incidents that were the subject of complaint had corroborative witnesses, who were not the managers or supervisors alleged by Mr Kelleher to be hostile to him.  In relation to the Christmas party, Ms West was described by Mr Klaus as clearly upset and crying when she came out of the area behind the reception desk.  If, as Mr Kelleher says, she initiated the kiss which was the subject of the complaint, it is improbable that she would, when she rejoined her friends, be clearly upset and in tears, particularly as she was, apparently, enjoying the party.  There would be, in my view, no motive for that behaviour.  The kiss had occurred in a private situation and if it had been initiated by Ms West then she would have had no reason to mention it to her companions or to complain or to cry when she rejoined them. 

At the hearing before me Mr Kelleher was cross-examined on the matter of the kiss at length and, at no stage, made any concession that there could be any misunderstanding about that matter.  He gave detailed evidence to contradict evidence concerning the drinks that Ms West had, concerning the impossibility that the “fridge” incident could have happened and the unlikelihood that the phone calls could have been interpreted as an invitation to visit him in his home while his wife was absent.

I consider that Ms West was a credible witness and I accept her evidence as to the truth of these matters.  She gave lengthy evidence which was cross-examined in detail.  She did not, in the proceedings before me, alter in any significant way any evidence given from the time at which she complained through the process of preparing statements and the hearing that took place before the Judicial Registrar.  Having accepted her to be a witness of truth, the consequence for the applicant in these proceedings is that on each occasion when he has on oath contradicted Ms West’s version of these matters, I am unable to accept his evidence.  I do not consider Ms West had any motive to make allegations of this kind and lie under oath in relation to them.  The same could not be said for Mr Kelleher.  I therefore find that Mr Kelleher did, on each occasion alleged, improperly conduct himself towards a female employee, ie Ms Kirsty West.

The Board Meeting

Ms West’s complaint was considered by the Board of the respondent club on Monday 14 August 1995.  At that Board Meeting Mr Kelleher was dismissed.  The complaint was received by the respondent during the day on the 14th of August 1995.  There is no dispute as to the fact that the Members of the Board were then provided with a copy of this complaint prior to the Board Meeting which had been scheduled for that evening.  A copy of the complaint was also provided to the Employer Association to which the respondent belonged and advice was sought on the matter.  Mr Kelleher, who had been notified that he should attend the Board Meeting that evening was, however, not provided with a written copy of the complaint nor made aware, in advance, that it had been made.  In my view the club had ample opportunity to do so.  Mr Kelleher gave evidence that he was not aware that any of the matters contained in the complaint would be considered at the Board Meeting prior to the actual meeting.  This is not denied by the respondent.  Mr Kelleher had been absent from his duties on full pay.  This was done because other matters, which had been raised by other members of staff, including the wedding incident and other allegations in relation to his behaviour towards other employees were being investigated.  The respondent in the evidence of Mr McLaughlin, the President of the Club said that the Board did not, formally, come to a view about the consequences of this complaint or its truth, prior to the Board Meeting, although they had discussed the matter and were concerned about the serious nature of the complaints made.  They accepted Ms West’s bona fides in making the complaints but had not investigated them.

At the Board Meeting the written complaint was read to Mr Kelleher.  He was not, however, provided with a written copy of it, or time to consider it.  The Board minutes reflect, and I accept these minutes as an accurate transcript of what occurred at the Board Meeting, that Mr Kelleher expressed disbelief about the content of the complaint when it was read to him.  He indicated that he wished to check with Ms West’s mother about whether it was a genuine complaint.  He was not however, given an opportunity to check or consult with anyone about the complaint.  He was asked by Mr Hawkins to “show cause” why, on the basis of the complaint, he should not be dismissed from his employment. The ‘show cause’ question was in the same terms as that which had been provided by the Employer Association to the club prior to the Board Meeting.  Mr Kelleher’s response to this was he would not resign his employment and that the club would have to dismiss him if they wished him to leave.  Mr McLaughlin, the President of the Club, then immediately terminated Mr Kelleher’s employment.  There had been no discussion by the Board about the matter of Mr Kelleher’s response to the complaint, either with Mr Kelleher present or privately.  The respondent described the dismissal as a “Board decision”.  I am unable to accept that.  In fact the motion to dismiss and the formal procedures of the Board to dismiss Mr Kelleher took place after Mr Kelleher had been escorted from the meeting by Mr McLaughlin to collect his belongings.  The respondent does not deny that the dismissal was made by the President and it was done immediately in response to Mr Kelleher’s reaction to the ‘show cause’ statement.  The only explanation given for this procedure was that Mr McLaughlin, the President was able to “gauge the feeling” of the Board Members without speaking to them.

Was there a breach of Section 170DC?

Under s. 170DC an employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless the employee has been given the opportunity to defend himself or herself against the allegations made.  In this case the respondent says that Mr Kelleher had been given an opportunity to defend himself in respect of the complaint of Ms West.  Mr Coleman submitted for the respondent that in each case where s 170DC is to be considered it is always a question of statutory interpretation and an application of interpretation to the facts of the particular case.  In the case of Nicolson v Heaven and Earth Gallery Pty Ltd [1994] 1 IRCR 199, the Chief Justice of the Industrial Relations Court said at page 207;

“The paragraph does not require any particular formality but this does not mean that it is unimportant or capable of perfunctory satisfaction.  Section 170DC carries into Australian Labour Law a fundamental component of the concept known to lawyers as natural justice or more recently procedural fairness.  The relevant principle is that a person should not exercise legal power over another to that persons disadvantage, and for a reason personal to him and further without first forwarding the effected person an opportunity to present a case.”

Mr Coleman submitted that s 170DC is not a section which should import all of the legal notions of natural justice which have been developed in Australian law.  He said that one should not apply an abstract or “after the event approach” to the matter.  It should be interpreted in a way that would allow it to be complied with by lay people in a practical employment situation.  I accept that submission as to the way in which I should approach an application of s 170DC to the facts of this case but I agree with the views expressed by the Chief Justice stated above as to the import of s 170DC.

At the time of Mr Kelleher’s dismissal there had been a painful and protracted period of disturbance and counselling relating to his employment.  On the Friday preceding this Monday meeting, ie 11th August, there had been a meeting of employees of the club called by management and they were expressly told they had the opportunity to have a representative present because the meeting might have “disciplinary consequences”.  At the time of the Board Meeting Mr Kelleher had been suspended from his employment on full pay for a short period of time.  He was not, therefore, in contact with other employees and there was no immediate crisis in respect of his presence among other members of staff at the club in relation to its day to day operation.  It was clear from the minutes of the Board Meeting that Mr Kelleher did not believe the complaint was genuine.  He had had no prior knowledge of the fact that a complaint had been made by Ms West or the nature of that complaint.  He was not provided with a copy of the complaint and merely had it read to him at the meeting.  The complaint had been available to the respondent for much of the day in which the meeting was held.  The respondent had provided Board Members with copies and had had time to seek advice in respect of it.  In my view, the management had ample opportunity to provide a copy of the complaint to the applicant and should, in fairness, have done so prior to the meeting.  There was no pressure of a practical kind on the Board to dismiss Mr Kelleher on the spot.  He could have been given the opportunity to read the complaint, consult others and take advice before making whatever submission he wished to make to the Board.  At the time of Mr Kelleher’s dismissal the Board Members had not even checked the corroborative evidence of Mr Klaus and others and they gave no opportunity to Mr Kelleher to do so either.

The method of dismissing Mr Kelleher is in complete contrast to the  management practices which Mr Hawkins had been pursuing in relation to Mr Kelleher’s other employment problems.  There is a history in the evidence of disciplinary meetings, counselling sessions, consideration of written material and other meetings which suggest that it was the practice of this club to allow people to have representation and an opportunity to prepare responses to complaints against them.  It is not an answer to this issue that Mr Kelleher did not “ask for” legal representation or time at the meeting.  He did, by implication, wish to consider the complaint, because he expressed disbelief and said that he would consult Mr West’s mother at one point in the meeting.  The process of dismissal was so immediate that the Board itself did not even consider Mr Kelleher’s response or any other issues before Mr McLaughlin the President, dismissed Mr Kelleher.  A formal motion to dismiss was subsequent to the event.  I find, in all the circumstances of this case and having considered all of the evidence about the conduct of the Board Meeting and the method of operation of this club, that the method of dismissing Mr Kelleher amounted to a breach of s 170DC.

I find however, that the club did have a valid reason to dismiss Mr Kelleher based upon the complaint made by Ms West.  The onus of proof which the club bears to demonstrate that the reason for dismissal is valid has been discharged in this case.  However, I do not consider that the club gave Mr Kelleher an opportunity at the time of his dismissal to be heard, as he was entitled to be, under s 170DC.

Having reached this conclusion, I now turn to consider the provisions of  170EE in relation to remedy.  The respondent has submitted that the approach I should take to the interpretation of this section, which is a discretionary remedy, should be that taken by Moore J in Davis v Portseal Pty Limited, which was approved by implication by the Full Industrial Relations Court on appeal, ((1997) 72 IR 414). This approach would lead me to ask this question, what was the likelihood of continued employment had there been compliance with s 170DC?

Submissions were made on behalf of the applicant to take the following view of this matter.  The kiss they submit occurred at a Christmas party where Ms West had admitted she had been drinking and had been ‘amorous’ to at least one other male.  Secondly, there was a delay by Ms West in submitting the complaint to the respondent, that delay being eight months.  Thirdly, the complaint was solicited by the respondent.  Fourthly, Ms West was “non-committal” in regard to questions as to whether she would have been prepared initially to attempt to conciliate any difficulties she had with the applicant.  Fifthly, Ms West did not display any overt hostility to the applicant following the alleged matter, the subject of the complaint, and gave evidence that she was prepared to work with the applicant.  Sixthly, she did not deny that in 1995 she may have given the coaster with her residential particulars in Sydney to the applicant.  Seventh, the applicant was, according to the evidence of the respondent’s witness Mr Hawkins, a competent worker and had been rapidly promoted in the club.  Eighth, the club was concerned at the time of the applicant’s termination about supervisor unrest and possible industrial action within the club.  Lastly, the applicant had an employment history with the respondent since 7 October 1993.

Based on my findings in respect of the complaint and its merit, it is my view that the respondent could have validly terminated the applicant’s employment.  I have had the benefit of hearing and reviewing all the evidence in the case and I find that there is no possibility of continued employment by the applicant with the respondent.  I find that the applicant’s conduct amounted to serious sexual harassment over a period of some seven months and I accept the respondent’s submission that some of the conduct amounts, prima facie to both assault and sexual assault, which is a criminal offence.

I do not consider that the contravention of section 170DC had any material bearing on the ultimate decision taken by the club in this case.  In any event, the evidence before me discloses that Mr Kelleher was paid his full entitlements and that this was not a case of summary dismissal.

While there was, as the applicant has submitted, a clear and fundamental breach of natural justice which amounts to a contravention of s 170DC there is also in this case not only a history of improper conduct by the applicant, but in the course of two hearings, one before the Judicial Registrar and before me, evidence given by the applicant which could not be accepted on oath.  The applicant’s primary objective in this case was reinstatement.  Even if I had not formed the view about his conduct and the seriousness of the matters complained of by Ms West, I would not have ordered reinstatement of the applicant.  The evidence of Mr Hawkins, the Secretary Manager of the club, was that the return of Mr Kelleher to employment at the club would have a highly detrimental effect on morale and the conduct of its business and I accept this evidence.

I have taken all the submissions made on behalf of this applicant into account but they do not negate my view that the seriousness of the conduct of the applicant warranted the dismissal that was made.  I do not consider that if the applicant had been given time to investigate the matters complained of that any different conclusion would have been reached by the Board.  I have had the benefit of reading a substantial amount of material including transcript of proceedings of the case before the Judicial Registrar and the transcript of four days of hearing before me.  Apart from her view in respect of s 170DC I adopt the legal reasoning of the Judicial Registrar who first heard the case and agree with her view as to the contractual claim.

The application is dismissed with costs.

I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Connor

Associate:

Dated:                  28 April 1998

Counsel for the Applicant:	J. Pentalow, M. Fishburn
Solicitor for the Applicant:	Fishburn Watson O'Brien
Counsel for the Respondent:	P. Coleman
Solicitor for the Respondent:	Minter Ellison
Date of Hearing:	17, 18, 19, 20 February 1998
Date of Judgment:	28 April 1998