Andrew Powell v Calvary Health Care ACT Ltd T/A Calvary Public Hospital Bruce [2017] FWC 1160

1 Fair Work Act 2009 s.394—Unfair dismissal Andrew Powell v Calvary Health Care ACT Ltd T/A Calvary Public Hospital Bruce (U2016/8862) DEPUTY PRESIDENT KOVACIC CANBERRA, 28 FEBRUARY 2017 Application for relief from unfair dismissal harsh, unjust or unreasonable – serious misconduct – dismissal found to be fair – application dismissed. [1] Mr Andrew Powell (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 15 August 2016 alleging that the termination of his employment by Calvary Health Care ACT Ltd T/A Calvary Public Hospital Bruce (Calvary – the Respondent) on 5 August 2016 was unfair. [2] The application was heard on 8 and 9 December 2016 and 30 January 2017. At the hearing, Mr Serge Gorval appeared with permission for the Applicant and Mr Michael Easton of Counsel appeared with permission for the Respondent. [3] Mr Powell who gave evidence on his own behalf, together with his wife, Ms Mandy Powell who is employed by Calvary, Ms Linda Krisenthal, an employee of Calvary, Ms Soo Leng Davis, an employee of the Australian National University who works at its Calvary Campus two days each week, and Ms Helen Lee, a former colleague of Mr Powell. Ms Lee was not required for cross examination. [4] Ms Karen Edwards, the Respondent’s Chief Executive Officer, Ms Charmaine Hacker, a former employee of Calvary and the person who lodged the complaint against Mr Powell, Ms Alison Easton of Silver Sands Consulting, Ms Nicole Vaivads, a former employee of Calvary, and Ms Michelle Vella, who works at Calvary in a human resources role, all gave evidence for the Respondent. [5] Ms Therese Howe, an employee of Calvary and Ms Hacker’s former supervisor, gave evidence as a result of an order to attend issued by the Commission on 24 January 2017 following an application made on behalf of the Applicant. [6] For the reasons outlined below, I have found that the Applicant’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision. [2017] FWC 1160 DECISION -- 1 of 30 -- [2017] FWC 1160 2 Background [7] Mr Powell was employed in an administrative role at Calvary Public Hospital Bruce in the ACT. Mr Powell commenced in that role in September 2014 having transferred to Calvary from the Canberra Hospital. Mr Powell was employed in accordance with the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013-20171 (the Agreement). [8] On 26 May 2016 Mr Powell was suspended without pay as a result of a formal complaint made by Ms Hacker. The suspension letter issued to Mr Powell stated, among other things, that: “This letter is to confirm that you are immediately suspended from all duties without pay while Calvary conducts an investigation into allegations of serious misconduct which have made against you by another member of staff. These allegations, if substantiated, represent breach of the Calvary Code of Conduct and Section 9 of the Public Sector Management Act 1994. … The specific allegations [sic] against you is that on Thursday, 19 May 2016, you physically assaulted a female member of staff.”2 [9] In broad terms, Ms Hacker alleged that on 19 May 2016 Mr Powell assaulted her by forcefully grabbing her by the arm and subsequently placing his hands on her hips and propositioning her by suggesting that they “catch up” on the weekend. The alleged assault occurred in an area which was undergoing renovation and was therefore not occupied, meaning there were no witnesses to the alleged incident. [10] Ms Hacker did not discuss the alleged incident with anyone at work until she mentioned it briefly to Ms Vaivads on 23 May 2016. Ms Hacker discussed the alleged incident in further detail with Ms Vaivads on 24 May 2016 and with Ms Howe on 24 and 25 May 2016 prior to reporting it to Ms Adele Chadwick, Calvary’s Director – People and Organisational Development, on 25 May 2016. Ms Hacker met with Ms Chadwick on 26 May 2016 when she formalised her complaint against Mr Powell. [11] On 1 June 2016 Mr Gorval requested that the Respondent review its decision to suspend Mr Powell without pay3. On 2 June 2016 Ms Chadwick wrote to Mr Gorval inviting Mr Powell to provide any supporting documentation in support of his claim of demonstrated hardship4. On 24 June 2016 Ms Edwards decided not to alter her decision to suspend Mr Powell without pay. Her reasons for doing so were “… the seriousness of the allegations against Mr Powell and the fact he has provided no evidence to support demonstrated hardship…”5. [12] On 9 June 2016 Ms Easton was appointed by Calvary’s legal representatives to investigate the allegations. The Terms of Reference for her investigation were as follows: “We confirm discussions with you, that you are briefed to investigate: 1. The nature of Ms Hacker’s complaint and any counter claims. -- 2 of 30 -- [2017] FWC 1160 3 2. Whether Mr Powell’s actions amount to a breach of s.9 of the Public Sector Management Act 1994 namely: a. Exercise reasonable care and skill; b. Act with Probity; c. Treat members of the public and other public employees with courtesy and sensitivity to their right, duties and aspirations; d. Not to harass a member of the public or another public employee, whether sexually or otherwise. 3. Whether Mr Powell’s actions amount to a breach of Calvary’s Code of Conduct, namely: a. Hospitality – Intimidating others b. Healing – Failing to consider a person’s emotional, social and spiritual needs c. Stewardship – Placing the health, safety or welfare of ourselves or others at risk, in breach of laws that govern the workplace and breaching criminal laws d. Respect – Physical or psychological abuse of others. 4. Whether Ms Hacker’s complaint and any counterclaims amount to a breach of any other Calvary Policy or Procedure. 5. The evidence that supports or diminishes / quashes the complaint and any similar activities. 6. All relevant evidence and circumstances surrounding the complaint and any similar activities. 7. Any other relevant matters and associated issues if where proven.”6 [13] As part of her investigation, Ms Easton interviewed Ms Hacker, Ms Vaivads, Ms Howe, Ms Catherine Shadbolt (Mr Powell’s supervisor) and Mr Powell. Mr Powell was interviewed by Ms Easton on 17 June 2016 and was accompanied by his legal representative, Mr Gorval. In advance of Mr Powell being interviewed, Mr Gorval was provided with details of the allegations made against Mr Powell. Specifically, Mr Gorval was provided the following advice by the Respondent’s legal representative: “As to the particulars you have sought, I am instructed to advise: 1. The complainant is Charmaine Hacker. 2. The incident allegedly occurred on Thursday 19 May 2016 after 1.00pm. 3. The incident allegedly occurred in Residence “B” (recently renumbered from “A”). 4. Your client has been placed in the vicinity of Residence “B” (recently renumbered from “A”) by an independent third party. 5. The incident was reported to the supervisor on 25 May and the complainant appeared in deep distress and remains so.”7 [14] Prior to finalising her investigation report Ms Easton emailed Mr Gorval a typed version of Mr Powell’s responses at interview and requested that any suggested changes be -- 3 of 30 -- [2017] FWC 1160 4 marked in track changes and provided to her by close of business on 23 June 2016. Mr Gorval sent Ms Easton an email on 23 June 2016 which acknowledged receipt of the record of interview but did not suggest any changes to the document8. [15] Ms Easton finalised her investigation report on 26 June 2016. The report included the following findings and recommendations: “(G) FINDINGS I. There is enough evidence to form the opinion, based on the Briginshaw standard that Mr Powell grabbed Ms Hacker in the workplace, so as to leave her with bruising to her arm. II. Under the definition of Sexual Harassment, as applied by the Australian Human Rights Commission, Mr Powell has sexually harassed Ms Hacker. He has subjected her to unwelcome conduct of a sexual nature which made Ms Hacker feel offended, humiliated and intimidated, as a reasonable person would anticipate in the circumstances. III. Mr Powell has breached the Calvary Health Care A.C.T.’s Code of Conduct ‘Respect” [sic] and ‘Stewardship’ (see Annexure 10) by not showing respect to a work colleague in the workplace through harassment, on 19 May 2016, which has placed a work colleague’s health, safety and welfare at risk. IV. Mr Powell has breached Calvary Health Care’s Workplace Behaviour Policy and Procedure, Point 4 (see Annexure 11), through his workplace harassment of Ms Hacker on 19 May 2016. Mr Powell’s unwelcome conduct has led to Ms Hacker feeling embarrassed, frightened and uncomfortable at work. V. Mr Powell has breached Calvary Health Care’s Workplace Behaviour Policy and Procedure, Point 4, as he had not behaved “in a professional manner” nor did he treat Ms Hacker “with dignity and respect” on 19 May 2016. VI. Mr Powell has breached Section 9 (f) of the Public Sector Management Act 1994 (see Annexure 12) through his workplace behaviour toward another public employee on 19 May 2016. (H) RECOMMENDATIONS 1. Legal advice should be sought regarding Mr Powell’s ongoing employment at Calvary Health Care A.C.T. 2. Ms Hacker be informed as to the outcome of the investigation. 3. …”9 -- 4 of 30 -- [2017] FWC 1160 5 [16] On 5 July 2016 Ms Edwards wrote to Mr Powell in the following terms: “Dear Andrew INVESTIGATION OUTCOMES & COMMENCEMENT OF SHOW CAUSE PROCESSES I refer to the recent independent investigation that has been conducted into allegations of serious misconduct by you towards a fellow Calvary employee, Ms Charmaine Hacker. Ms Alison Easton of Silversands Consulting was engaged under legal professional privilege to conduct an independent investigation into the allegations and prepare a Report setting out her Findings and Recommendations. The Investigation Report has now been received by Calvary’s solicitors and considered by them and Calvary. The Report makes a number of adverse Findings against you. These include, as extracted from the report: … Calvary has accepted the Findings on the balance of probabilities and form the view that the above Findings amount to Serious Misconduct under Section H6 of the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013 - 2017 (Enterprise Agreement). Ms Easton arrived at these reasons based on her observations and assessment of statements from the witnesses interviewed. While her Report has been provided to us under legal professional privilege, Calvary is prepared to provide you with how the Findings were determined (see Annexure A). As a result of the seriousness of these matters, and in accordance with Section H10 of the Enterprise Agreement, we have decided to require you to show cause as to why Calvary should not exercise its entitlement to end your employment summarily for serious misconduct. You are now required to provide to the writer your written responses by 5.00pm, Wednesday, 20 July 2016. You can do so by e-mail or letter. Your responses will be considered and you will be informed of my final determination following that review. We are aware that you have a solicitor currently acting for you. We will also sent [sic] this letter to him.”10 [17] The findings set out in the show cause letter were as set out at paragraph [15] above while Annexure A referred to in the letter was redacted in places, primarily to remove individuals’ names. -- 5 of 30 -- [2017] FWC 1160 6 [18] On 20 July 2016 Mr Gorval replied to the show cause letter stating among other things that: “For the avoidance of doubt, my client strongly disputes Ms Alison Easton’s findings and report (the Report) and objects to any finding of misconduct or guilt on his part. Mr Powell further challenges your decision to terminate his employment and detailed reasons have been set out in the F10 Application that is enclosed with this letter. It is submitted that it would be grossly unfair and inappropriate to rely on the Report or the investigation as it is evident that Mr Powell has been denied natural justice or a fair investigation. Specifically: 1. No reasons or evidence were provided in support of Ms Easton’s appointment as the investigating officer to conduct the investigation. It is unclear what qualifications or experience Ms Easton holds that would merit her to be an appropriate person to conduct the investigation/ [sic] 2. Ms Easton further failed to contact and interview material witnesses that would have corroborated Mr Powell’s version of events. Ms Easton gave an express undertaking to contact these witnesses at the interview with Mr Powell. 3. Calvary has refused to release a copy of the Report or provide any supporting evidence with respect to its decision to terminate Mr Powell. Calvary’s legal representative has erroneously relied on client-legal privilege as a reason to withhold the report, yet it [sic] Ms Easton is neither a client or legal practitioner. It is unclear why a copy of the Report has not been provided to Mr Powell or his legal representative. 4. Ms Adele Chadwick had acted in dual capacity of both being a witness for the complainant and a decision maker for Calvary. Ms Chadwick was responsible for organising the investigation and took the decision to suspend Mr Powell without pay after (emphasis added) she had already been a witness for the complainant. Although the above list is not exhaustive, it is clear that Mr Powell was not afforded natural justice throughout the investigation and as such Calvary’s decision to terminate his employment should be discarded. As this matter is now before the Commission and has been listed for urgent conference on 21 July 2016 before Harper-Greenwell C, it would be in bad faith to presume any finding of the Commission and proceed with a decision that would adversely affect Mr Powell’s employment. For the reasons set out above Calvary’s intended course of action to terminate my client’s employment, should be discontinued.”11 [19] With regard to the reference to the “F10 Application” in the above correspondence, on 13 July 2016 Mr Gorval on behalf of Mr Powell lodged an application for the Commission to deal with the dispute in accordance with a dispute settlement procedure12. The application, inter alia, sought a review of the Respondent’s decision to commence disciplinary action against Mr Powell and its decision to suspend him without pay. The application also stated that in the interest of procedural fairness Mr Powell should be provided with a copy of the -- 6 of 30 -- [2017] FWC 1160 7 investigation report. The application was then the subject of a conference before Commissioner Harper-Greenwell on 21 July 2016 which did not resolve the dispute. [20] On 5 August 2016 Ms Edwards wrote to Mr Powell terminating his employment from that date. The termination letter stated that: “I write further to my letter dated 5 July 2016 regarding allegations of serious misconduct levelled against you namely: 1. Grabbing Ms Hacker in the workplace, so as to leave her with bruising to her arm; and 2. Sexually harassing Ms Hacker in the workplace. I have received and given careful consideration to your response to these allegations, provided by your representative in their email of 20 July 2016 at 6:02pm, and have re- read the entire case history again, prior to making this final decision. As you are aware, an external investigation was carried out by Silversands Consulting to look into these allegations. The Investigation’s purpose was to ensure an objective, fair, confidential and timely investigation so that all parties were not unduly prejudiced. Calvary cannot condone the actions taken by you or your behaviour in this regard. Considering the serious nature of the events that occurred on 19 May 2016, and the re- reading of the investigators [sic] report, the response received by your representative has fallen short of convincing me I have erred in my original determination. In considering your responses and other statements, it is my belief that the following breaches have taken place in relation to the allegations listed earlier as contained in my letter of 5 July 2016. I find that your actions have:  Breached the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013 - 2017, Section 153, Misconduct & Discipline;  Breached the Calvary Code of Conduct, specifically ‘Respect” [sic] and ‘Stewardship’;  Breached Calvary’s Workplace Behaviour Policy and Procedure; and  Breached Section 9(f) of the Public Sector Management Act 1994. Therefore, I confirm that my final decision, which is based on the balance of probabilities, is that all of the allegations against you are proved. I find that you are guilty of serious misconduct and that Calvary will be implementing the summary termination of your employment on this date, 5 August 2016 as per Section H10 of the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013 - 2017.”13 -- 7 of 30 -- [2017] FWC 1160 8 The Applicant’s case [21] The Applicant submitted that his dismissal was harsh, unjust and unreasonable because:  there was no valid reason for the dismissal;  the Respondent had engaged in conduct that failed to provide him any procedural fairness or natural justice in responding to the serious allegations made against him, primarily on the basis that he was not provided with a full copy of the investigation report when asked to respond to the show cause letter; and  the Respondent had failed to carry out a proper investigation, contending that the investigation was done in a capricious, arbitrary manner and suffered from bad faith and that Ms Easton had unreasonably or negligently refused to interview corroborative witnesses whose names he provided. [22] As to remedy, the Applicant sought reinstatement to his former position with continuity of service and back pay. [23] At the hearing, the Applicant contended, among other things, that the evidence that Ms Hacker had attended work on occasions with bruising was a possible alternate explanation for the bruising on her forearm. The Applicant also contended that had Ms Hacker been assaulted as she alleged, she would not have carried on as if nothing had happened nor would she have spoken to Ms Powell over the telephone the same day as if nothing had taken place. The Applicant also submitted that his credibility exceeded that of Ms Hacker. [24] Mr Powell deposed, inter alia, in his witness statement14 that:  he did not proposition Ms Hacker or physically or inappropriately grab her as alleged;  he did not at any stage invite Ms Hacker to join him for a cigarette while in her office at around 1.00pm on 19 May 2016;  Ms Easton when interviewing him on 17 June 2016 gave an express undertaking that she would contact his wife to arrange to interview her;  he was not aware who Ms Easton interviewed as part of her investigation as no details of the investigation or the outcome and report findings were ever provided to him;  Ms Hacker had contacted his wife at work on the mornings of 20 and 23 May 2016;  he believed that Ms Hacker’s and Ms Vaivads’ responses to Ms Easton had been scripted as neither mentioned Dr Sali Somi who worked in one of the offices behind them when asked by Ms Easton whether anyone was up the back at around 1.00pm on 19 May 2016 as contended by Mr Powell;  he considered that the Respondent had already decided to terminate his employment before he responded to the show cause letter of 5 July 2016; and  he did not consider that he had been treated fairly throughout the investigation process. [25] In his oral evidence Mr Powell reiterated key elements of his witness statement. Beyond that, Mr Powell attested that: -- 8 of 30 -- [2017] FWC 1160 9  after leaving Ms Hacker’s office at around 1.00pm on 19 May 2016 he went to have a cigarette but noticed that landscapers were still working in the area where he normally went for a cigarette so he turned around to go back inside when he was met by Ms Hacker who asked him whether he was going for another cigarette15;  after finishing their cigarettes they both proceeded to return to their respective work areas when Ms Hacker asked him if he could show her his new office area16;  after he returned to his office he received an email from Ms Hacker advising that she had completed the coding work he had asked her to do earlier that day17;  at the meeting on 26 May 2016 when he was stood down he did ask what proof the Respondent had but did not ask who had made the complaint because he knew he would not have received an answer 18;  while he was in a bit of shock at that meeting he was not too worried because he had been told that CCTV footage would be reviewed which he thought would exonerate him19;  he only became aware that Ms Hacker was the complainant on 15 June 2016, i.e. two days prior to being interviewed by Ms Easton20;  he had no idea what he had told Ms Powell on 26 May 2016 as it was a long time ago and therefore he did not know whether her description of their conversation was consistent with his recollection of that discussion21;  despite Ms Powell deposing in her witness statement that on 26 May 2016 she knew that it could only been Ms Hacker who had made the complaint against Mr Powell, he was not one hundred per cent sure that it was Ms Hacker who made the complaint until 15 June 2016 22;  on 26 May 2016 when discussing the events of 19 May 2016 with Ms Powell he did not mention to her that he went to his new office area with Ms Hacker, though he later attested that he did not know if he did or did not tell Ms Powell despite telling Ms Easton on 17 June 2016 that he had not done so23;  he did not remember what he discussed in the office area with Ms Hacker at around 1.00pm on 19 May 201624;  in his interview with Ms Easton on 17 June 2016 he was given the opportunity to go through the specifics of the events of 19 May 2016 and to say what he wanted to say about those events25; and  his response to the show cause letter said all the things he wanted to say as to why his employment should not be terminated, adding that by the time of that response he knew of the specifics of the allegations made against him despite not having a complete copy of Ms Easton’s investigation report26. [26] Ms Powell deposed in her witness statement27 that:  on 26 May 2016 Mr Powell called her stating that he had been suspended from work, adding that when she arrived home and discussed the matter with him he was in total shock and could not believe what had happened;  when discussing the matter with Mr Powell she asked him about his whereabouts on 19 May 2016 to which he responded that the only female he had dealings with apart from his own staff members was Ms Hacker;  when Mr Powell mentioned Ms Hacker’s name she knew it could only be Ms Hacker who had made the complaint;  Ms Hacker attended work on multiple occasions with bruising on her body;  Ms Hacker was a compulsive liar and manipulative person; -- 9 of 30 -- [2017] FWC 1160 10  Ms Hacker called her at 7.50am on 19 May 2016 with the conversation lasting 22 minutes;  Ms Hacker called her again on her mobile at 5.13pm on 19 May 2016 with the conversation lasting 59 minutes;  she and Ms Hacker spoke again on 20, 23 and 25 May 2016;  at no time after the alleged incident until 26 May 2016 when Ms Hacker formalised her complaint did Ms Hacker say anything to her about her husband; and  Ms Hacker and Ms Vaivads failed to tell Ms Easton that Dr Somi worked in one of the offices behind them. [27] Under cross examination Ms Powell attested that:  she had on 26 May 2016 expressed to Mr Powell her view that Ms Hacker was the complainant28;  Mr Powell told her on 26 May 2016 that he had gone to his new office area alone with Ms Hacker, later attesting that Mr Powell did not tell her that he was alone with Ms Hacker in his new office area29;  Mr Powell seemed in total shock on 26 May 2016 because he did not know what he had been suspended for as no particulars had been provided to him30;  she did not recall seeing a witness statement from Ms Krisenthal in late August 2016 or having a conversation with Ms Krisenthal prior to that time regarding Ms Krisenthal preparing such a statement, though she later attested that she first spoke to Ms Krisenthal about providing such a statement in August 2016 before recanting and attesting that she did not recall when she spoke to Ms Krisenthal31;  she first became aware that Ms Krisenthal had made a complaint against Ms Hacker when Ms Vella asked to meet with her, adding that Ms Krisenthal had previously contacted her to advise that Ms Vella was going to contact her32;  in the lead up to Mr Powell being interviewed by Ms Easton on 17 June 2016 he had told her that there was a third person up the back of Ms Hacker’s office on 19 May 2016, though Ms Powell later attested that Mr Powell had not indicated to her that there was a third person in the room and that she did not recall speaking with Mr Powell in detail about a third person in the area33;  she did not encourage Ms Krisenthal to make a complaint against Ms Hacker34; and  after Mr Powell received the show cause letter she contacted Ms Davis who verified that Dr Somi was present at Calvary on 19 May 2016, adding that she subsequently advised Mr Powell of this and that he in turn advised Mr Gorval35. [28] Ms Krisenthal deposed in her witness statement36 that on two separate occasions she witnessed bruising and swelling on Ms Hacker’s face. Ms Krisenthal further deposed that in September 2016 she made a complaint about Ms Hacker which was related to an incident some 18-24 months earlier, adding that she met with Ms Vella in late September 2016 to discuss the complaint and that the complaint was not pursued because Ms Hacker had resigned. Under cross examination Ms Krisenthal attested that she had been asked by Ms Powell to provide a statement in this matter which she did on 30 August 2016, adding that she discussed that statement with both Mr and Mrs Powell. Ms Krisenthal further attested that no one had asked her to make a complaint about Ms Hacker and that prior to making her complaint she discussed it with no one. -- 10 of 30 -- [2017] FWC 1160 11 [29] Ms Davis deposed in her witness statement37 that on two or three separate occasions Ms Hacker had told her that she had been assaulted at home. Key aspects of Ms Davis’ oral evidence were that:  she did not have any ill-feeling towards Ms Hacker38;  she was not at Calvary on 19 May 2016 but that Dr Somi would have been there that day to oversee the signing in of Year 1 students for bedside teaching39;  she did not know for certain what Dr Somi was doing at any particular time on 19 May 2016, with Dr Somi’s responsibilities in respect of the bedside teaching likely to have been performed in the vicinity of the office area40;  she could not recall Ms Hacker attending work with bruises but that she did recall one occasion when Ms Hacker’s jaw was a bit swollen41; and  she believed that the email Dr Somi sent her at 12.56pm on 19 May 201642 would have probably been sent from the desk top computer in Dr Somi’s office43. [30] Ms Lee’s witness statement44 was essentially a character reference for Mr Powell based on her experience working with him at the Canberra Hospital and later at Calvary in or around July 2015. The Respondent’s case [31] The Respondent submitted that the dismissal was not harsh, unjust or unreasonable because:  the evidence before it supported a conclusion that the conduct attributed to Mr Powell had occurred;  the conduct represented a fundamental breach of trust between it and Mr Powell;  Mr Powell had been afforded procedural fairness;  the dismissal was proportionate to the gravity of the incident; and  there were no discernible or significant mitigating factors in this case. [32] As to remedy, the Respondent submitted that, as it had completely lost trust and confidence in the Applicant, reinstatement was inappropriate in this case. The Respondent further submitted that were the Commission to find an order for compensation appropriate, having regard to the Applicant’s conduct in this case, no compensation should be ordered. [33] At the hearing, the Respondent submitted, inter alia, that:  Mr Powell’s evidence about key events was not reliable, citing that while Mr Powell could recall what he and Ms Hacker discussed when they had their cigarette at around 1.00pm on 19 May 2016 he could not recall what they spoke about when visiting his new work area;  Ms Powell’s evidence was unbalanced and unreliable, referring in particular to Ms Powell’s evidence regarding her discussions with Ms Krisenthal over the period July to August 2016; and  the fact that it took some days for Ms Hacker to report the alleged incident ought not to be a matter that speaks against the credibility of her claim. [34] Ms Hacker in her witness statement45 set out a comprehensive chronology of events over the period 19 to 26 May 2016, setting out the events of 19 May in the following terms: -- 11 of 30 -- [2017] FWC 1160 12 “20. At approximately 1:00pm, Andrew came to my desk and started telling Nicole Vaivads (“Nikki”) and I about his new offices. Both Nikki and I did not know where they were going to be located. Andrew, Nikki and myself were all engaging in this discussion. It was at this time when Andrew said to me “do you want to come and have a look?”. I responded by saying “yes”. We also discussed a second cigarette break. I found it strange that he did not ask Nikki to attend. However, at the time I did not think too much into it. Andrew and I left my office together. 21. Once Andrew and I had finished our cigarettes, Andrew asked me again whether I wanted to have a look at his new office again. I responded by saying words to the effect of “yeah alright”. 22. Whilst walking down the corridor of Residence A, Andrew asked me whether I had a partner. I replied “no”. I could not see or hear anyone else nearby. Andrew and I were alone. 23. Andrew continued to show me around Residence A. Andrew also showed me where “his girls” will be sitting, referring to the female workers that are in Andrew’s team. I responded with words to the effect of “It’s a nice area, it’s even got a kitchen”. 24. Andrew then went into his new office and started playing with the blinds as if he was about to close them. At this point, I was standing at the entrance of Andrew’s new office. I thought it was strange that he was playing with the blinds and it made me feel uncomfortable to which I then said “oh what a nice view”. I made that comment in the hope that he would stop playing and / closing the blinds. Andrew did stop playing with the blinds and the communication between Andrew and I at his office transpired as follows: Andrew – “come in”. Me – “no” as I felt weird about him playing with the blinds and the previous question Andrew asked me about whether I had a partner. Andrew – “No come in here, everyone needs to get their frustrations out”. It was at this point where I realised that he had a plan to try and do something inappropriate with me in the office. It was also the reason why I stood at the doorway and did not enter as I felt uncomfortable. Me – “no, I have to go”. Andrew – “Mandy’s not going to find out, she’s away for the weekend” Me – “Mandy is my friend” “No, it’s not going to happen. I got to go” 25. I felt very uncomfortable and frightened by Andrew’s actions and behaviour. 26. I then walked down the corridor, past the Fire Door. It was at this time that Andrew said “Charmaine, no, come here”. “Come on Charmaine, let’s get together -- 12 of 30 -- [2017] FWC 1160 13 this weekend, Mandy won’t know”. And I then said, “no no I have to go”. I made this comment whilst walking away from Andrew and trying to get out of the building. 27. Andrew said my name while I was walking away from him down the corridor, I stopped and turned around and found him standing very close to me and then he aggressively grabbed my left arm. 28. I tried to pull away but Andrew pulled me toward him and pushed me into the corner where “his girls” will be sitting. He must have seen the fear in my face because he said “Don’t be scared, it’s ok”. 29. Andrew’s grip was forceful and it was hurting me. I suffered a bruise on my left arm that my son, Hayden noticed over the weekend. 30. He then grabbed my hips with both of his hands and tried to convince me to meet up with him that weekend because Mandy was away and she wouldn’t find out. He also repeated “It’s ok”, “don’t worry”, “don’t be scared”, “let’s catch up”. I replied by saying “No, Mandy is my friend”. 31. I then managed to break free from Andrew’s grip by pushing him away. I couldn’t scream because I was shocked and scared. After I broke free, I returned to my office.”46 (Emphasis as per original) [35] Also in her witness statement, Ms Hacker deposed that when she spoke to Ms Powell on the afternoon of 19 May 2016 she “… tried to act like everything was ok as I was still in shock and did not know what I would do next as to reporting the matter. I felt extremely embarrassed, ashamed and scared. I also felt bad for Mandy [Ms Powell]. I was still very shaken and not thinking clearly”.47 [36] In her oral evidence Ms Hacker attested, among other things, that:  she could not recall whether a third person was present in her office on 19 May 2016, adding that she did not think that Dr Somi was there that day48;  to her knowledge Dr Somi does not use any other computer other than the one in her office49;  Mr Powell had invited her to have a cigarette and to show her his new office and she did not follow Mr Powell when he left her office on 19 May 201650;  the statement she gave to Ms Easton was no different to her evidence before the Commission51;  when Mr Powell grabbed her on 19 May 2016 she “… went into shock… I didn’t know what to do. My body froze. My head’s telling me stuff but my body wouldn’t move”52;  when she left work on 19 May 2016 she saw Mr Powell’s car driving behind her, adding that while she did not think he was in the car when she spoke with Ms Powell she was not sure53;  she did not mention the alleged incident to Ms Powell when they spoke on the afternoon of 19 May 201654;  she had never attended work with any injuries that could be related to an assault, though she had told people in the hospital that she had been assaulted at home55; and -- 13 of 30 -- [2017] FWC 1160 14  she had never come to work with a swollen mouth other than as a result of a dental problem56. [37] Ms Vaivads deposed in her witness statement57 that:  at about 1.00pm on 19 May 2016 she returned to her office and saw Mr Powell talking to Ms Hacker at her desk;  Mr Powell asked Ms Hacker whether she wanted to go for a cigarette and to see his new office;  Ms Hacker did not follow Mr Powell out but rather Mr Powell and Ms Hacker left the office together;  when Ms Hacker returned to the office she said that she wanted to speak with her but she was unable to do so as she was on the telephone at the time;  she recalled that Ms Hacker did not look quite alright when she returned to the office, adding that she looked flustered and uncomfortable;  in the week commencing 23 May 2016 Ms Hacker told her that someone had touched her inappropriately, with she and Ms Hacker speaking in greater detail about the alleged incident the following day at which time Ms Hacker showed her a bruise on her left arm;  Ms Hacker subsequently discussed the incident with Ms Howe but returned from that discussion upset as she did not feel supported by Ms Howe;  Ms Hacker subsequently made an appointment to see Ms Chadwick; and  she went with Ms Hacker on 26 May 2016 when Ms Hacker met with Ms Chadwick to report the incident, commenting that Ms Hacker was scared and worried when reporting the incident. [38] Key aspects of Ms Vaivads’ oral evidence were that:  she had a positive relationship with Ms Hacker and with all her teammates, adding that she held no bitterness towards Mr Powell and did not have anything against Ms Powell58;  she was one hundred per cent positive that Mr Powell invited Ms Hacker to go see his new office, adding that she had not been invited59;  she was not aware of anyone else being present in the office at the time60;  there was no reason why she did not mention Dr Somi other than she was probably not there, later acknowledging that Dr Somi could have sent the email she sent at 12.56pm from her office61;  to the best of her knowledge Dr Somi was not there62;  she could not remember Year 1 students signing in for bedside teaching in her office on 19 May 2016, adding that the students could have signed in anywhere, e.g. in the bedside area with a doctor, in one of the four meeting rooms across the hall from her office or behind her63; and  her gut feeling was that the alleged incident on 19 May 2016 did occur because of what she observed Ms Hacker go through, i.e. the terror, the crying and being scared64. [39] Ms Edwards in her witness statement65 set out the actions taken by the Respondent as a result of the incident of 19 May 2016 and also responded to aspects of both Mr and Ms Powell’s witness statements. Among other things, Ms Edwards deposed that: -- 14 of 30 -- [2017] FWC 1160 15  in accordance with Section H7.1 of the Agreement she agreed that Ms Hacker’s complaint should be investigated as she considered it to be a matter of serious misconduct;  in accordance with Section H8.8 of the Agreement she further decided that Mr Powell should be suspended without pay pending investigation of Ms Hacker’s complaint;  she was not involved in the investigation process as she was the decision-maker;  she considered the investigation report as per Section H9.5 of the Agreement and determined that on the balance of probabilities serious misconduct had occurred;  in accordance with Section H10.4 of the Agreement she wrote to Mr Powell on 5 July 2016 (the show cause letter); and  after considering Mr Powell’s response to the show cause letter she decided that he would be summarily dismissed for serious misconduct. [40] Under cross examination, Ms Edwards attested, inter alia, that:  she had not considered providing the complete investigation report to Mr Powell based on advice that the information provided to him was all that needed to be provided66;  in coming to her decision to dismiss Mr Powell she considered the findings of the investigation report and that Ms Hacker’s statements regarding the events surrounding the incident of 19 May 2016 had been corroborated by others67; and  prior to finalising the decision to dismiss Mr Powell she discussed her proposed decision with the Respondent’s in-house legal counsel to seek confirmation that her decision making was sound68. [41] In her witness statement69 Ms Easton responded to aspects of the Applicant’s Outline of Submissions and his witness statement. Key aspects of Ms Easton’s oral evidence were that:  there was no CCTV footage in the Residence A building where the alleged incident had occurred and that she did not view any other CCTV footage from within the hospital or hospital grounds70;  Mr Powell did not say to her during the investigation interview that Ms Powell knew the name of the person who was allegedly at the back of Ms Hacker’s office on 19 May 201671;  it did not appear to her that Ms Hacker and Ms Vaivads had collaborated regarding their statements to her72;  she did not interview Ms Powell as part of her investigation because Ms Powell was not in attendance at the incident and did not witness any of the events leading up to or involving the incident, adding that based on Mr Powell’s interview the two things which Ms Powell could tell her were firstly about the lengthy conversation she had with Ms Hacker on the afternoon of 19 May 2015 which she already knew from Ms Hacker and that Ms Hacker had disclosed to Ms Powell that she had been previously bruised by her son73;  her findings were drawn from events leading up to the incident74;  what tipped the scale in terms of her report findings were facts that could be corroborated as opposed to those that were not corroborated75;  she made 11 determinations on 11 facts that were either corroborated, not corroborated or could not be corroborated, adding that because everything Mr -- 15 of 30 -- [2017] FWC 1160 16 Powell had put to her could not be corroborated she then looked at some other surrounding circumstances in an attempt to see if she could corroborate some of the things Mr Powell had said but she could not do so76;  the information Mr Powell had provided were matters that could not be corroborated and which she found hard to believe, which led her to a determination that Mr Powell was not telling the truth77; and  having interviewed both Ms Hacker and Mr Powell, spoken to the independent people involved on the day and considered the matters that were raised by Mr Powell at his interview and whether they were or were not corroborated, she formed the opinion that Ms Hacker gave a truthful account of the events of that day78. [42] In her witness statement79 Ms Vella responded to aspects of Mr and Ms Powell’s witness statements. Among other things, Ms Vella deposed that she was not tasked with reviewing Mr Powell’s case, she met with Ms Powell to discuss Ms Krisenthal’s complaint against Ms Hacker, she was not the decision maker in respect of Ms Hacker’s complaint against Mr Powell and she believed her comments to Ms Powell had been taken out of context. Ms Vella also deposed that she did say to Ms Powell that based on what she had told her she thought that Mr Powell had not been afforded procedural fairness, adding that she was not involved in the matter nor did she know the specific details of what had occurred. [43] In her oral evidence Ms Vella attested that having read the investigation report she did not identify any defects in the report or any issues with the report80. Ms Vella also attested that in investigating Ms Krisenthal’s complaint against Ms Hacker she recalled saying to Ms Powell that Ms Hacker was a manipulative person based on her conversation with Ms Krisenthal and one other person, adding that she had not interviewed Ms Hacker as she had resigned which is why the investigation was not finalised81. Ms Howe’s evidence [44] Key aspects of Ms Howe’s oral evidence were that:  Ms Hacker’s performance was below average, with Ms Hacker placed on a performance improvement plan82;  she had made a complaint against Ms Hacker in January 2016 but had no knowledge of what happened in respect of the complaint83;  in her dealings with Ms Hacker she often found her to be untruthful84;  on 24 May 2016 Ms Hacker approached her seeking the telephone number for Calvary’s Employee Assistance Program, adding that Ms Hacker had said when asked that something had happened to her leaving her uncomfortable85;  Ms Hacker appeared uncomfortable on that occasion though not overtly86;  the following day Ms Hacker again spoke to her at which time she provided some more detail as to what had happened, stating that a man had come on to her and that he had grabbed her by the arm and left bruises 87;  Ms Hacker was upset during the further conversation on 25 May 201688; and  she had a positive working relationship with Mr Powell and would have no issue working with him in the future89. -- 16 of 30 -- [2017] FWC 1160 17 The statutory framework [45] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Mr Powell is a person who was protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which provide as follows: “385 What is an unfair dismissal A person has been unfairly dismissed if FWC is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy. Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388. 387 Criteria for considering harshness etc. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWC must take into account: (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct including its effect on the safety and welfare of other employees); and (b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person— whether the person had been warned about that unsatisfactory performance before the dismissal; and (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that FWC considers relevant.” [46] There is no dispute that Mr Powell was dismissed, so s.385(a) of the Act is satisfied. Mr Powell contended that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. The Respondent is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether Mr Powell was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b). -- 17 of 30 -- [2017] FWC 1160 18 Was the dismissal harsh, unjust or unreasonable? [47] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will now address these criteria. (a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees) [48] In Rode v Burwood Mitsubishi90 (Rode) a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd91. The following is an extract from the Full Bench’s decision in Rode. “[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant: “Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’. In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.” [18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a). [19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an -- 18 of 30 -- [2017] FWC 1160 19 employer to simply show that he or she acted in the belief that the termination was for a valid reason.” (Underlining added) [49] The issue of whether there was a valid reason for dismissal in circumstances where the dismissal relates to the conduct of an employee was canvassed by a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd (King)92. In King the Full Bench, drawing on Moore J’s comments in Edwards v Guidice93, stated: “[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved. [24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” [50] In this case whether the conduct attributed to Mr Powell actually occurred is, drawing on the language in King, “an issue in the proceedings”94 with Mr Powell maintaining that he did not touch Ms Hacker and Ms Hacker maintaining that he did. Accordingly, consistent with the decision in King, the Commission needs to determine as a threshold issue whether the conduct attributed to Mr Powell actually occurred. [51] While it is not disputed that Mr Powell and Ms Hacker had a cigarette together around 1.00pm on 19 May 2016 or that Mr Powell and Ms Hacker together visited Mr Powell’s new office area, just about every other aspect of what occurred is disputed. The key issues in dispute regarding the alleged incident are (i) whether Mr Powell invited Ms Hacker for a cigarette and invited her to view his new office area or alternatively whether Ms Hacker invited herself for a cigarette and asked to be shown his new office area; and (ii) whether Mr Powell grabbed and propositioned Ms Hacker when they visited his new office area. [52] I will deal with each of those disputed issues separately. However, before doing so it is worth pointing out that consistent with the principle established in Briginshaw v Briginshaw95 the standard of proof that must be established to substantiate whether or not the conduct attributed to Mr Powell occurred is the balance of probabilities. Did Mr Powell invite Ms Hacker for a cigarette and to view his new office area or alternatively did Ms Hacker invite herself for a cigarette and ask to be shown Mr Powell’s new work area? [53] Mr Powell’s evidence was that he did not invite Ms Hacker for a cigarette at around 1.00pm on 19 May 2016 but that when he left the building he noticed that landscapers were still working in the area where he normally went for a cigarette so he turned around to go back inside and was then met by Ms Hacker who asked him whether he was going for another -- 19 of 30 -- [2017] FWC 1160 20 cigarette. Mr Powell further attested that after he and Ms Hacker finished their cigarettes they both went to return to their respective work areas when Ms Hacker asked him if he could show her his new office area. [54] On the other hand, Ms Hacker’s evidence was that Mr Powell invited her for a cigarette and to see his new office area and that they left her office together to go for a cigarette. [55] Ms Vaivads evidence was that Mr Powell asked Ms Hacker whether she wanted to go for a cigarette and to see his new office and that Mr Powell and Ms Hacker left the latter’s office together. Ms Vaivads’ evidence supports Ms Hacker’s version of events. [56] While Mr Powell contended that Ms Hacker and Ms Vaivads had scripted their responses to Ms Easton’s questions, I considered Ms Vaivads evidence to be both forthright and reliable. I also note that Ms Vaivads’ evidence that she held no bitterness towards Mr Powell and did not have anything against Ms Powell was not challenged. Mr Powell’s evidence, on the other hand, was in my view less reliable. For instance, Mr Powell’s evidence was characterised by his inability to recall key aspects of discussions that he had with his wife on 26 May 2016 following his suspension without pay. I find this difficult to comprehend, even allowing for the passage of time, particularly in circumstances where he attested that he and his wife had “been sitting up till 1 and 2 o’clock every morning talking this [the alleged incident] through for six months.”96 [57] While CCTV footage of the hospital environment may have assisted in this regard, none was put before the Commission nor, more importantly, is it clear that any such CCTV footage exists. [58] In summary, the above analysis supports a finding that on 19 May 2016 Mr Powell invited Ms Hacker for a cigarette and to view his new office area and that the two left Ms Hacker’s office together. Did Mr Powell assault and proposition Ms Hacker when they visited his new office area? [59] Again, the evidence of Mr Powell and Ms Hacker as to what occurred when they visited Mr Powell’s new office area is different on all but the fact that they visited the area together. Other material before the Commission going to the circumstances surrounding the alleged incident include:  Ms Vaivads’ evidence that when Ms Hacker returned her office on 19 May 2016 she did not look quite alright but looked flustered and uncomfortable;  Ms Howe’s evidence that in her conversation with Ms Hacker in which she provided more details as to what occurred on 19 May 2016 Ms Hacker was upset;  Ms Chadwick’s file note of her conversation with Ms Hacker on 26 May 2016 when she formalised her complaint against Mr Powell which described Ms Hacker as crying and shaking and stated that the female SSS (not defined) in Calvary’s Emergency Department who Ms Hacker saw at 4.15pm on 26 May 2016 confirmed that the bruise on Ms Hacker’s arm was consistent with a thumbprint 97;  Ms Vaivads’ evidence that Ms Hacker was scared and worried when reporting the incident to Ms Chadwick on 26 May 2016; -- 20 of 30 -- [2017] FWC 1160 21  that Ms Hacker did not say anything about the incident to Ms Powell prior to making her complaint on 26 May 2016, including in their telephone conversation on the afternoon of 19 May 2016; and  Mr Powell’s evidence that he could not recall what he and Ms Hacker discussed when visiting his new office area on 19 May 2016, though he could recall their discussion when they had their cigarette just before visiting his new office area. [60] A common element in others’ descriptions of Ms Hacker’s demeanour when discussing what occurred on 19 May 2016 is some level of distress/upset. [61] Beyond this, I note there are some inconsistencies in Mr Powell’s evidence. For instance, he indicates that he was in shock on 26 May 2016 when suspended yet he also attested that when advised that CCTV footage would be reviewed he was not worried because he thought that it would exonerate him. Further, it is somewhat odd that in the meeting on 26 May 2016 in which Mr Powell was stood down he did not ask who made the complaint against him or ask what the alleged assault was or where it occurred yet he did ask “do you have proof, do you have proof”98. When questioned under cross examination as to the reason for not asking who made the complaint Mr Powell attested that he knew we would not have got an answer.99 I consider that response to be unconvincing. For all these reasons, I have doubts about the reliability of Mr Powell’s evidence, particularly in circumstances where aspects of it are contradicted by Ms Vaivads’ evidence. [62] As to Ms Hacker’s evidence, it was consistent with the statements she made at the time of formalising her complaint and in the context of Ms Easton’s investigation. Her oral evidence before the Commission did not appear contrived nor did it provide any reason to doubt its reliability. Further, her demonstration of the manner in which Mr Powell grabbed her was in my view realistic (the demonstration was given at the Commission’s suggestion following the agreement of both parties’ representatives). [63] For reasons of comprehensiveness, I would point out that in my view little weight can be attached to much of Ms Powell’s evidence primarily because it is secondary in nature given that she was not a witness to the alleged incident or to the events leading up to it. Further Ms Powell’s evidence was at times confused. For instance, Ms Powell attested that Mr Powell told her on 26 May 2016 that he had gone to his new office area alone with Ms Hacker but later added that he did not tell her that he was alone with Ms Hacker in his new office area. Similarly, Ms Powell’s evidence regarding her conversations with Ms Krisenthal over the period July to September 2016 was less than forthright. The key aspect of Ms Powell’s evidence goes to the identity of the person who allegedly was up the back of Ms Hacker’s office at 1.00pm on 19 May 2016. In this regard Ms Powell attested that after Mr Powell received the show cause letter she contacted Ms Davis who verified that Dr Somi was present at Calvary on 19 May 2016 and that she subsequently advised Mr Powell of this and that he in turn advised Mr Gorval. However, as previously noted, Mr Powell’s response to the show cause letter makes no mention of the third person, nor does it suggest that the person was Dr Somi. The significance of that evidence from a procedural fairness perspective is discussed further below. [64] As previously mentioned, the Applicant contended at the hearing that the evidence that Ms Hacker had attended work with bruising was a possible alternate explanation for the bruising on her forearm. While it was not disputed that Ms Hacker had been a victim of domestic violence, there was no evidence to suggest that Ms Hacker had been subjected to -- 21 of 30 -- [2017] FWC 1160 22 domestic violence around the time of the alleged incident. To the contrary, Ms Hacker’s evidence was that her eldest son who had assaulted her at some time prior to 2015 when he moved out of her home had not laid a hand on her since the time of that assault and that she had not been assaulted by her former husband in the nine years since she left him.100 In short, there is nothing before the Commission which gives any weight to the Applicant’s contention in this regard. [65] The above analysis supports a finding that on the balance of probabilities the Applicant did grab and proposition Ms Hacker on 19 May 2016. Procedural fairness [66] As previously mentioned, the Applicant contended that the Respondent had engaged in conduct that failed to provide him any procedural fairness or natural justice in responding to the serious allegations made against him, primarily on the basis that he was not provided with a full copy of the investigation report when asked to respond to the show cause letter. The Applicant further submitted that the Respondent had failed to carry out a proper investigation, contending that the investigation was done in a capricious, arbitrary manner and suffered from bad faith and that Ms Easton had unreasonably or negligently refused to interview corroborative witness whose names he provided. [67] With regard to the first of those contentions, i.e. that the Respondent failed to provide the Applicant with procedural fairness or natural justice primarily because a full copy of Ms Easton’s investigation report had not been provided to him, I note that the show cause letter had attached to it an extract from the investigation report. Specifically, attached to the show cause letter were a copy of the report’s findings and Ms Easton’s analysis underpinning those findings. The aspects of the investigation report which were not provided to the Applicant include the records of the various interviews undertaken as part of the investigation (the Applicant had previously been provided with a record of his interview and invited to provide any comments on that record but failed to do so), Ms Easton’s recommendations, Ms Hacker’s statement of 26 May 2016 and several of Ms Chadwick’s file notes. I do not consider the absence of these aspects of the report from the material provided to the Applicant to have diminished the opportunity provided to him to respond to the show cause letter or to have disadvantaged him in any material way. I also note that it is not uncommon for the records of interviews of other persons to be withheld in these circumstances to protect the identity and privacy of the individuals interviewed. [68] Further, the Applicant’s contention in this regard is not supported by his oral evidence that his response to the show cause letter said all the things he wanted to say as to why his employment should not be terminated and that by the time of that response he knew of the specifics of the allegations made against him despite not having a complete copy of Ms Easton’s investigation report. [69] I would also note that the Applicant had a number of opportunities to put his version of events, these include his interview with Ms Easton on 17 June 2016, the opportunity to provide comments on the record of that interview and the opportunity to respond to the show cause letter. Significantly, in my view, the Applicant did not provide any comments on the record of interview to Ms Easton and in responding to the show cause letter did not provide any further information to substantiate his version of events, e.g. he did not indicate that Dr Somi was the person at the back of Ms Hacker’s office on 19 May 2016 despite Ms Powell’s -- 22 of 30 -- [2017] FWC 1160 23 evidence that after seeing the show cause letter she subsequently advised the Applicant of this who in turn advised Mr Gorval. [70] As to the Applicant’s second contention that the investigation and ensuing report were flawed, inter alia, because Ms Easton refused to interview corroborative witnesses nominated by him, it is not disputed that Ms Easton did not interview Ms Powell. Ms Easton’s evidence was that she did not do so because Ms Powell did not witness the incident or the events leading up to the incident and would effectively only confirm aspects already disclosed by Ms Hacker. In circumstances where it is not disputed that Ms Powell did not witness the alleged incident of 19 May 2016 and where it is not disputed that Ms Hacker called Ms Powell that afternoon and did not mention anything about her husband, it is difficult to see what interviewing Ms Powell would have brought to the investigation other than perhaps hearsay material. [71] As to the presence of a third person in Ms Hacker’s office on 19 May 2016, I note Ms Powell’s oral evidence was that after the Applicant received the show cause letter she contacted Ms Davis who verified that Dr Somi was present at Calvary on 19 May 2016 and that she subsequently advised the Applicant of this and that he in turn advised Mr Gorval. However, as mentioned above, the Applicant’s response to the show cause letter makes no mention of the third person, nor does it suggest that the person was Dr Somi. No explanation was provided as to why this information was not included in the Applicant’s response to the show cause letter. The material before the Commission does not point to a procedural flaw in Ms Easton’s investigation. I note also that Dr Somi was not called to give evidence in this matter, nor was an application made seeking an order for her to attend. [72] Finally, while I attach no weight to this factor given that Ms Vella was not called as an expert witness regarding investigations, I note Ms Vella’s oral evidence that having read the investigation report she did not identify any defects in the report or any issues with the report. [73] The above analysis does not support a finding that the Applicant was denied procedural fairness or that the investigation and ensuing report were flawed. Was there a valid reason for the Applicant’s dismissal? [74] The Agreement defines serious misconduct in the following terms: “What is Serious Misconduct H6.6 Serious misconduct means conduct that is so serious that it may be inconsistent with the continuation of the employee’s employment with the Territory. Serious misconduct includes but is not limited to the kinds of serious misconduct defined within the Fair Work Regulations.”101 (Underlining added) [75] Section 9 of the Public Sector Management Act 1994 (ACT) (the PSM Act) provides as follows: “Public sector conduct (1) A public servant must— (a) take all reasonable steps to avoid a conflict of interest; and -- 23 of 30 -- [2017] FWC 1160 24 (b) declare or manage a conflict of interest that cannot reasonably be avoided; and (c) when acting in connection with the public servant’s job— (i) comply with laws applying in the Territory; and (ii) comply with any lawful and reasonable direction given by a person with the authority to give the direction; and (iii) if dealing with a member of the public—make all reasonable efforts to help the person to understand the person’s entitlements, and any requirement the person is obliged to meet, under a territory law; and (iv) treat all people with courtesy and sensitivity to their rights and aspirations; and (d) do the public servant’s job with reasonable care and diligence, impartiality and honesty. (2) A public servant must not— (a) behave in a way that— (i) is inconsistent with the public sector values; or (ii) undermines the integrity and reputation of the service; or (b) take improper advantage of the public servant’s job or information gained through the public servant’s job; or (c) improperly use a Territory resource, including information, accessed through the public servant’s job; or (d) without lawful authority— (i) disclose confidential information gained through the public servant’s job; or Note The Crimes Act 1900, s 153 (1) makes it an offence for a public servant to disclose information that it is the public servant’s duty not to disclose. (ii) make a comment that reasonably appears to be an official comment; or (e) when acting in connection with the public servant’s job—bully, harass or intimidate anyone; or (f) when doing the public servant’s job—apply improper influence, favouritism or patronage. (3) For a misconduct procedure, failing to act in a way that is consistent with subsection (1) or (2) may be misconduct. Note A misconduct procedure means a procedure set out in an industrial instrument or prescribed by regulation (see dict, def misconduct procedure).” (Underlining added) [76] The Applicant’s behaviour in my view constitutes serious misconduct as it is inconsistent with a continuation of his employment on the basis that it is contrary to s.9(2)(e) of the PSM Act in that it involved the Applicant harassing Ms Hacker. [77] In summary, I have found that on the balance of probabilities the Applicant did grab and proposition Ms Hacker as alleged and, for the reasons outlined above, that his actions constitute serious misconduct. This supports a finding that there was a valid reason for the Applicant’s dismissal. Further, drawing on the language in Rode, I am satisfied that the reason for the Applicant’s dismissal was defensible or justifiable on an objective analysis of the -- 24 of 30 -- [2017] FWC 1160 25 material before the Commission and that it was not “capricious, fanciful, spiteful or prejudiced.” (b) Whether the person was notified of that reason [78] The Applicant did not specifically address this factor in his submissions. [79] The Respondent submitted that the Applicant was notified of the reason for his dismissal by letter dated 5 August 2016. [80] From paragraph [20] above it is clear that the termination letter sets out the reason for the Applicant’s dismissal. Against that background, I am satisfied that the Applicant was notified of the reason for his dismissal. This factor therefore does not point to the Applicant’s dismissal being harsh, unjust or unreasonable. (c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person [81] The Applicant did not specifically address this factor in his submissions. [82] The Respondent submitted that it took reasonable steps to investigate the allegations against the Applicant and gave him a fair chance to respond to them, adding that the Applicant was twice given the opportunity to respond to the allegations against him, i.e. when interviewed by Ms Easton and when issued with a show cause letter on 5 July 2016. [83] As can be seen from paragraph [69] above, the Applicant was given a number of opportunities to put his version of events regarding the alleged incident on 19 May 2016. Further, the Applicant’s oral evidence was that his response to the show cause letter said all the things he wanted to say as to why his employment should not be terminated and that by the time of that response he knew of the specifics of the allegations made against him despite not having a complete copy of Ms Easton’s investigation report. This supports a finding that the Applicant was given an opportunity to respond to the allegations regarding his conduct. [84] Against that background, I consider this factor weighs against a finding that the Applicants dismissal was harsh, unjust or unreasonable. (d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal [85] It was not disputed that the Applicant attended the interview with Ms Easton on 17 June 2016 with his legal representative, Mr Gorval. Against that background, I consider this factor to be a neutral consideration. (e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal [86] The Applicant’s dismissal was not related to his performance. Accordingly, I consider this factor to be a neutral consideration. -- 25 of 30 -- [2017] FWC 1160 26 (f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal (g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal [87] The Respondent is a large employer, employing over 1,000 persons, and has a human resources area. Against that background and in the absence of any submissions to the contrary, I do not consider that either of these factors impacted on the procedures followed in effecting the Applicant’s dismissal. Accordingly, I consider these factors to be neutral considerations. (h) Any other matters that FWC considers relevant [88] The Applicant contended that regard should be had to his good record of employment, the absence of any adverse disciplinary history, the damage to his reputation caused by his dismissal, the serious financial pressures caused by the dismissal and the effect of the dismissal on his mental and emotional wellbeing. [89] The Respondent pointed to the Applicant’s relatively short employment history with Calvary and submitted that the Applicant had launched “a character assassination upon Ms Hacker rarely seen in unfair dismissal proceedings”102. The Respondent also contended that the Applicant had demonstrated a lack of remorse and a total failure to appreciate the seriousness of the alleged conduct. [90] While the material before the Commission indicates that the Applicant was a well- regarded employee of the Respondent prior to the incident, it needs to be recognised that he had been working for the Respondent for a relatively short period of less than two years. Accordingly, I do not consider his good record of employment with the Respondent and the absence of any adverse disciplinary history to be relevant considerations in this matter. [91] As to the Applicant’s contention that the Commission should have regard to the financial pressure caused by his dismissal and the effect of the dismissal on his mental and emotional wellbeing, the only material put before the Commission regarding either of these matters was the Applicant’s oral evidence that he had secured casual employment in September 2016 of anywhere between 20 to 40 hours per week103. In those circumstances, there is no basis for the Commission to consider either of these factors to be relevant matters. [92] As to the issue of reputational damage, it goes without saying that being dismissed invariably entails some reputational damage. However, no material was put before the Commission regarding the basis on which that contention was premised. For instance, there was no material before the Commission indicating that either the Respondent or Ms Hacker had publicised the reasons for the Applicant’s dismissal. As such, I do not consider this factor to be a relevant matter. -- 26 of 30 -- [2017] FWC 1160 27 Conclusion [93] Drawing on the above analysis, I find that there was a valid reason for the Applicant’s dismissal, that the Applicant was notified of that reason and given an opportunity to respond to that reason, and that there are no other relevant matters. Beyond that, I find that the remaining criteria in s.387 of the Act are neutral considerations in this case. [94] Having considered all of the criteria in s.387 of the Act I find that the Applicant’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision. Appearances: S. Gorval for the Applicant. M. Easton of Counsel for the Respondent. Hearing details: 2016. Canberra: December 8 and 9. 2017. Canberra: January 30. Printed by authority of the Commonwealth Government Printer <Price code G, PR590579> -- 27 of 30 -- [2017] FWC 1160 28 1 AE408295 2 Exhibit 3 at Annexure A 3 Exhibit 6 at paragraph 29 4 Ibid at Annexure F 5 Ibid at Annexure H 6 Exhibit 9 at Attachment A at page 4 7 Exhibit 6 at Annexure G 8 Exhibit 9 at paragraphs 12-15 9 Exhibit 9 at Annexure A 10 Exhibit 6 at Annexure I 11 Exhibit 3 at Annexure E 12 C2016/1621 13 Exhibit 3 at Annexure F 14 Exhibit 3 15 Transcript at PN710-712 16 Ibid at PN719-720 17 Ibid at PN737 18 Ibid at PN758 and PN841-844 19 Ibid at PN758-759 20 Ibid at PN857 21 Ibid at PN863-880 22 Ibid at PN939-944 23 Ibid at PN974-1008 24 Ibid at PN1104 25 Ibid at PN1222-1225 26 Ibid at PN1277-1281 27 Exhibit 5 28 Transcript at PN1546-1548 29 Ibid at PN1557-1559 and PN1564 30 Ibid at PN1604 31 Ibid at PN1685-1687 and PN1724-1726 32 Ibid at PN1746-1747 33 Ibid at PN1815-1829 34 Ibid at PN1849 35 Ibid at PN1889-1898 36 Exhibit 1 37 Exhibit 2 38 Transcript at PN470 39 Ibid at PN491-498 40 Ibid at PN547-549 41 Ibid at PN565 42 Exhibit 5 at Annexure D 43 Transcript at PN590 44 Exhibit 4 45 Exhibit 7 46 Ibid 47 Ibid at paragraph 36 -- 28 of 30 -- [2017] FWC 1160 29 48 Transcript at PN2266-2267 49 Ibid at PN2269 50 Ibid at PN2323-2325 51 Ibid at PN2481 52 Ibid at PN2504 53 Ibid at PN2556-2567 54 Ibid at PN2604-2607 55 Ibid at PN2640-2642 56 Ibid at PN2664 57 Exhibit 10 58 Transcript at PN3522-3524 and PN3787 59 Ibid at PN3533-3539 60 Ibid at PN3541 61 Ibid at PN3568-3598 62 Ibid at PN3629 63 Ibid PN3666-3669 64 Ibid at PN3789-3792 65 Exhibit 6 66 Transcript at PN2000-2003 67 Ibid at PN2092-2095 68 Ibid at PN2105-2108 69 Exhibit 9 70 Transcript at PN2967-2968 71 Ibid at PN3028-3030 72 Ibid at PN3056 73 Ibid at PN3099 74 Ibid at PN3107 75 Ibid at PN3168 76 Ibid at PN3250 77 Ibid 78 Ibid at PN3288 79 Exhibit 12 80 Transcript at PN3929-3930 81 Ibid at PN3956-3957 82 Transcript at PN3394 83 Ibid at PN3399 and PN3418 84 Ibid at PN3409 85 Ibid at PN3419 86 Ibid at PN3420 87 Ibid at PN3426 88 Ibid at PN3427 89 Ibid at PN3464-3465 90 Print R4471 91 (1995) 62 IR 371 92 Print S4213 93 (1999) 169 ALR 89 at 92 per Moore J 94 Print S4213 -- 29 of 30 -- [2017] FWC 1160 30 95 (1938) 60 CLR 336 96 Transcript at PN871 97 Exhibit 6 at Annexure C 98 Ibid at Annexure E 99 Transcript at PN841 100 Ibid at PN2651-2664 101 AE408295 102 Outline of the Respondent's Submissions at paragraph 54 103 Transcript at PN774-778 -- 30 of 30 --