Ellison v State of Queensland (Department of Health - Queensland Ambulance Service) [2015] QIRC 191

1 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Ellison v State of Queensland (Department of Health - Queensland Ambulance Service) [2015] QIRC 191 PARTIES: Ellison, Paul (Applicant) v State of Queensland (Department of Health - Queensland Ambulance Service) (Respondent) CASE NO: TD/2014/130 PROCEEDING: Application for Reinstatement DELIVERED ON: 9 November 2015 HEARING DATES: 10 and 11 August 2015 HEARD AT: Townsville MEMBER: Industrial Commissioner Black ORDER: Application dismissed CATCHWORDS: INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Termination of employment - allegations of sexual harassment - civil standard of proof - procedural deficiencies and bias in investigation and decision making alleged. CASES: Industrial Relations Act 1999, s 74, s 77, s 78 Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265 LVR (WA) v Administrative Appeals Tribunal (2012) 203 FCR 166 Byrne v Australian Airlines Limited (1995) 185 CLR 410 Briginshaw v Briginshaw (1938) 60 CLR 336 McManus v Scott-Charlton (1996) 140 ALR 625 Rose v Telstra Corporation Limited (1998) IRCommA 1592 APPEARANCES: Mr D. Honchin, Counsel, instructed by Groves and Clark Solicitors, for the Applicant. Mr J. Merrell, Counsel, instructed by Crown Law. -- 1 of 26 -- 2 Decision Introduction [1] Mr Paul Ellison (the applicant) applies pursuant to s 74 of the Industrial Relations Act 1999 (the Act) for reinstatement in employment with the Queensland Ambulance Service (QAS). The applicant commenced employment with the QAS on 7 September 1998. At the time of termination, the applicant was employed as the Officer in Charge (OIC) of the QAS Ayr Station. The applicant was dismissed on 19 November 2014 for misconduct within the meaning of the term prescribed in s 18A(1)(b) of the Ambulance Service Act 1991. [2] The termination of the applicant's employment followed the lodgment of a complaint against him by an ambulance officer, Ms Sophie Allan, on 31 July 2014. Ms Allan had graduated from the University of the Sunshine Coast with a Bachelor of Paramedic Science in December 2012 and commenced employment with the QAS on 21 January 2013. Ms Allan entered the service as part of the QAS Graduate Paramedic Induction Program (GPIP). She was, on engagement, subject to a 12 month probationary period. After one month's training in Brisbane she was transferred to Ayr in February 2013. She completed her induction program on 15 December 2013. On her arrival in Ayr she was 25 years of age. [3] In her complaint Ms Allan made seven allegations of sexual harassment against the applicant in respect to events occurring in May 2013, April 2014, June 2014 and July 2014. The applicant was notified of these allegations on 4 August 2014. An external investigation into the allegations was conducted by the Verifact Group. During the course of the investigation, the applicant was transferred to the Townsville office of the Local Ambulance Service Network (LASN). [4] In its final report provided to Assistant Commissioner Walz on 15 September 2014, Verifact found that two of the seven allegations were substantiated on the balance of probabilities. Based on these findings Assistant Commissioner Walz issued the applicant with a show cause letter on 22 September 2014. The applicant was subsequently informed by the Assistant Commissioner on 28 October 2014 that he had been found liable for disciplinary action, but that he had referred the decision to be made about penalty to Assistant Commissioner Emery. Assistant Commissioner Emery concluded on 19 November 2014 that a penalty of termination of employment should be imposed. Industrial Relations Act [5] The issue for determination is whether the termination of the applicant's employment was "unfair" within the meaning of s 73 of the Act because it was "harsh, unjust or unreasonable". Section 77 of the Act provides that the Commission must consider certain matters in deciding the application: "77 Matters to be considered in deciding an application In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider- -- 2 of 26 -- 3 (a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to- (i) the operational requirements of the employer's undertaking, establishment or service; or (ii) the employee's conduct, capacity or performance; and (c) if the dismissal relates to the employee's conduct, capacity or performance- (i) whether the employee had been warned about the conduct, capacity or performance; or (ii) whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and (d) any other matters the commission considers relevant." Section 77 Matters [6] It was not argued that the application for reinstatement was supported by non-compliance with any of the terms of s 77 of the Act. The allegations were investigated in detail and the applicant was given the opportunity to defend the allegations in both the Verifact interview and in his responses to the show cause notices. The applicant was fully informed about the reason for dismissal which related to his conduct over a specified period of time. Evidence [7] Evidence in support of the application was given by:  Paul Ellison (applicant)  Lisa Smith  Lindsay Rapp The following persons filed supporting affidavits but were not required for cross- examination:  Susan Ellison  Danielle Almond  Liam Steger  Kellie Rea  Edward Bawden  Brian Sorohan [8] Witnesses for the respondent were:  Sophie Allan  Glen Davey -- 3 of 26 -- 4  Rodney Walz  Heather Laurie  Craig Emery. Allegations [9] Ms Allan's complaint against the applicant included seven allegations which were subsequently investigated by Verifact, and in respect of which Verifact made balance of probability findings in their final report. The report is included in Ms Laurie's affidavit which is in the evidence as Exhibit 17. The allegations made by Ms Allan and the response to them provided by the applicant to Verifact, are summarised below. [10] Allegation 1 - 18 May 2013 The applicant made inappropriate contact with Ms Allan at a race day event, and then had an inappropriate conversation with her via SMS text messages later the same day. The Burdekin Race Day was held on 18 May 2013. The inappropriate contact occurred when the applicant stood too close to Ms Allan and put his arm around her waist when a group photograph was taken during the race day event. The applicant states that he put his arm around Ms Allan's shoulder and not her waist which he claimed to be appropriate for a group photo. A copy of the photograph was not included in the evidence. The text messaging occurred between 9.28 pm and 10.17 pm in the evening. The applicant initiated the conversation and sent 13 messages over this period. Ms Allan responded to the texts on six occasions. The applicant's texts included a statement that "I believe you have a lovely set of breasts and it may be the wine talking but I would love to see them sometime". The applicant suggested on five occasions that Ms Allan should visit his residence. The applicant does not deny sending the text messages. [11] Allegation 2 - Early April 2014 The applicant gave Ms Allan an unwelcome hug and kiss on the forehead. Ms Allan had experienced distress following her attendance at an incident in which a young child had died. When she reported her distress to the applicant, and during a discussion about accessing counselling, the applicant hugged Ms Allan and kissed her on the forehead. The applicant agreed that he hugged Ms Allan but said it was a gesture of comfort and support and was appropriate in the circumstances. He denied kissing Ms Allan. The incident was not witnessed. [12] Allegation 3 - June 2014 The applicant made inappropriate comments about Ms Allan's underwear. It was the practice for officers to use the station washing machine for personal use. When Ms Allan was washing her clothes the applicant asked her if she had "anything small and lacy, anything lacy or racy", and asked if he could look at it. -- 4 of 26 -- 5 The applicant recalled giving Ms Allan permission to do her laundry at the station. He said that Ms Allan had her underwear on top of a basket of clothing in full view of the plant room and he asked her to be more discreet. He denied making the comments alleged to have been made by Ms Allan. The incident was not witnessed. [13] Allegation 4 - 2 July 2014 The applicant made inappropriate jokes and attempted to pull Ms Allan into a bedroom. At a time when Ms Allan and the applicant were alone in the station, but just 10 minutes before the arrival of the Minister for Health and other VIP's, the applicant grabbed Ms Allan's left hand and pulled her towards the station's bedroom saying "come on let's go." Ms Allan asked "where?" and he replied "to the bedroom, we have a little time to kill, no sense wasting it." Ms Allan pulled her hand away and told the applicant to "piss off". The applicant denied the allegation. The incident was not witnessed. [14] Allegation 5 - 9 July 2014 The applicant made an inappropriate comment on the telephone to Ms Allan prior to driving her to work. Ms Allan had agreed to perform an overtime shift at Home Hill provided that transport could be provided. The applicant decided to drive Ms Allan to the Home Hill station. When he arrived at her home he telephoned her and said "tell your boyfriend to stay away, your other lover is here and is ready to go". The applicant denied saying these words. He said that he told Ms Allan that he was "out the front and ready to go". There were no witnesses to the conversation. [15] Allegation 6 - 10 July 2014 The applicant inappropriately leaned across Ms Allan unnecessarily coming into contact with her chest. Ms Allan and Ms Anne-Marie Praeger were seated in reclining chairs in the lounge room of the station and were discussing with the applicant particular features of an old F-truck unit including how some staff did not like the set up in the vehicle because they had to lean over the patient to access equipment. Ms Allan stated that she was fully reclined with her right arm under head, when the applicant unexpectedly leant right across her torso and came into contact with her breasts, chest, stomach and upper arms, leaving her trapped beneath him on the recliner. Ms Praeger recalled the conversation but could not recall whether the applicant leant over Ms Allan or not. The applicant also recalled the conversation and agreed that he did lean across Ms Allan to demonstrate how to access equipment without making contact with the patient. He denied making any contact with Ms Allan and said that he had no intention of harassing or intimidating Ms Allan. -- 5 of 26 -- 6 [16] Allegation 7 - 10 July 2014 The applicant touched Ms Allan on the buttocks. Ms Allan states that the incident occurred when both she and the applicant were in the drug room at the station. She said that as the applicant was leaving the room he moved towards her and used his right hand to slap her left buttock. Ms Allan said that she subsequently went to the applicant's office to confront him about the incident and to complain that it was the second time that day that he had inappropriately touched her. The applicant recalled the incident but said the contact was unintentional and only happened because the room was too small to accommodate himself and Ms Allan. He accepted that his right hand did come into contact with Ms Allan's buttock. He said that when he excused himself, Ms Allan told him to "fuck off". The applicant agreed that Ms Allan came into his office after the incident. He said that Ms Allan complained that he had breached her personal space twice that day. The applicant said he noted her concerns in his diary. He did not attach any significance to being told to "fuck off" and said that this was the only time that Ms Allan had expressed a concern about his behaviour. The applicant supplied a copy of the diary note. The diary recorded that Ms Allan came to see him to complain about two touching incidents which he described as "1) hands on shoulders, 2) hand on back". Evidence Relating to the Allegations [17] In circumstances where the incidents giving rise to the allegations were not witnessed, other than to the extent that the evidence of Ms Smith and Ms Praeger was relevant, the determination to be made relies substantially on findings arising from the evidence of Ms Allan and the applicant. In this regard their evidence in the proceedings did not differ significantly from the version of events that both had earlier relayed to Ms Laurie as part of the Verifact investigation. It was the interpretation to be made upon the respective versions and considerations of credit that were mainly in dispute in the final submissions. [18] While a number of affidavits were filed in support of the applicant, most if not all of this evidence does not contribute in any significant way to findings that may need to be made in respect to the various allegations. Supporting affidavits were filed by the applicant's wife (Susan Ellison), Danielle Almond, Liam Steger, Kellie Rea, Edward Bawden, Brian Sorohan, Lisa Smith and Lindsay Rapp. Most of these witnesses were not required for cross-examination. [19] Both Ms Almond and Mr Steger are ambulance officers who had worked with the applicant at Charters Towers and/or Ayr. Both gave general character evidence for the applicant stating that they had never seen the applicant treat any female including graduates differently or inappropriately. Mr Bawden and Mr Sorohan gave the same evidence. [20] Ms Rae's evidence included comment on the revealing nature of the dress worn by Ms Allan at the Burdekin Race day and she also said that she had heard both Ms Allan and the applicant engage in crude conversation. Mr Steger worked at the Ayr Station in 2013. He knew both the applicant and Ms Allan well but had never observed the -- 6 of 26 -- 7 applicant conduct himself inappropriately toward Ms Allan. He said that both the applicant and Ms Allan appeared to "communicate fine and without any barriers". Ms Ellison's evidence supported a view that the decision to terminate her husband's employment was harsh given his personal and family circumstances. [21] It was Ms Smith's evidence in Exhibit 11 that she was at the races on 18 May 2013 and saw the group photograph being taken which included the applicant and Ms Allan. It was her recollection that the applicant had his hands around Ms Allan's shoulders but not around her lower back. She also said that Ms Allan was wearing a low-cut top. In terms of allegation 7 she said that the drug room was about 1 metre wide and five metres in length. She said that it was not uncommon for up to four people to be in the room at the same time and that it was common for her to bump into people in the drug room. [22] In general terms, Ms Smith said that crude conversations occurred from time to time at the station and that both Ms Allan and the applicant have participated on occasions. She said that "on these occasions I have heard both of them add to the conversation and neither seemed to take offence to the content". For his part Mr Rapp said (Exhibit 12) that "gutter conversation" would take place from time to time and that both the applicant and Ms Allan had participated. He said that Ms Allan did not appear to take offence at such conversations and that on occasions she would add to the conversations. [23] It was also Mr Rapp's evidence that just prior to the lodgment of the complaint by Ms Allan, the applicant had sought his advice in circumstances where a number of staff had approached the applicant regarding Ms Allan's performance. Mr Rapp also said that staff had raised concerns about Ms Allan's clinical abilities with him. Mr Rapp was not however able to express his own view on the subject because he had only worked with Ms Allan for a couple of shifts. He also conceded that, if complaints were made, they were not documented. The QAS Sexual Harassment Policy [24] The QAS Policy Statement on sexual harassment provides that all staff have a responsibility in maintaining a work environment which is free from sexual harassment. It further states that managers and supervisors have a responsibility to detect and deal with behaviour that could constitute sexual harassment, or has the potential to develop into sexual harassment. Managers and supervisors also have a responsibility to ensure that "workplaces under their control are free from sexual harassment" and to "model appropriate and ethical behaviour at all times". The statement concludes with a warning that persons found in breach of the statement may be subject to disciplinary action, which may include dismissal. [25] The respondent submitted that the applicant's conduct could not be explained by a lack of awareness of the policy. No such defence was advanced by the applicant. The applicant accepted that he knew and understood the policy. Applicant's Employment Record [26] The respondent drew attention to an incident in 2007 arising from which the applicant was formally counselled. I do not intend to take this matter into consideration in arriving at my decision. The incident occurred six years prior to the exchange of text messages -- 7 of 26 -- 8 and did not result in any formal disciplinary process. The applicant's record did not include reference to any other event which may have attracted counselling or disciplining. Allegations 2 to 6 [27] The applicant advanced the case that the unsubstantiated allegations had no role to play in the Commission's decision making process. They had been excluded from the QAS decision making process, and the applicant was not required by the decision maker to respond to the allegations. Further the applicant denied and continued to deny the allegations. In the circumstances the conclusion of the investigator and the decision makers should not be disturbed or altered by the Commission. The respondent however submitted that the evidence adduced in the proceedings in relation to the unsubstantiated allegations was sufficient to justify findings of substantiation. [28] Both Ms Allan and the applicant gave evidence about the unsubstantiated allegations. I accept that it is open to the Commission, based on the evidence, to make balance of probability findings in respect to these allegations and to take into account any findings in arriving at a decision on the application before it. [29] In respect to Allegation 2, I share the Verifact conclusion that it could be argued that "after a particularly difficult case involving the death of a child it was a not entirely inappropriate action to attempt to comfort Ms Allan with a hug." While, if it occurred, a kiss on the forehead was unnecessary and inappropriate, in the prevailing circumstances I would not be inclined to substantiate the allegation. On the other hand I accept that the applicant may have been disposed to make the inappropriate comments alleged in Allegation 3. It is agreed that he may have seen Ms Allan's underwear in the laundry process and given the evidence about the frequency of use in the workplace of banter involving sexual innuendo and crudity, the applicant might have said something inappropriate. Whether Ms Allan would typically have taken offence to such commentary is however difficult to determine. [30] My inclination in respect to Allegation 4 is that if something did happen it should not be characterised to include a threat of sexual assault or some form of physical intimacy. It was improbable that the applicant intended to progress the proposition alleged to have been made given that the Minister for Health and senior QAS officers were about to arrive. While the applicant may have tested Ms Allan's interest with an inappropriate and unwelcome suggestion, both he and Ms Allan would have known that it was very unlikely that anything could come of the proposition. My observations deal with the question of degree. Had the behaviour occurred, it must be concluded that it was unacceptable for an Officer in Charge to be promoting the possibility. [31] In making the comment alleged to have been made in Allegation 5 the applicant may have seen his behaviour as humorous or flirtatious and consistent with exchanges that were typically made between co-workers. It was not however a proposition that should have been made by an OIC to a junior officer. On the evidence adduced in the proceedings however I am not prepared to make a finding adverse to the applicant. [32] I prefer Ms Allan's evidence in respect to the competing versions around Allegation 6. In Ms Allan's email to Mr Davey on 10 July 2014 she clearly describes two incidents in -- 8 of 26 -- 9 which she had been the subject of unwelcome behaviour from the applicant. Further there is no dispute in the evidence that Ms Allan specifically complained to the applicant about two incidents of inappropriate conduct. The contemporaneous reporting of the incident and the confirmation that two incidents occurred that day support in my view a conclusion to prefer Ms Allan's evidence to the evidence of the applicant. Further I am not persuaded that the applicant was genuine in suggesting that the incidents that day referred to a tap on the shoulder and a hand on the back. I am not dissuaded, in making a finding in favour of Ms Allan, by Ms Praeger's reluctance to confirm the allegation. On consideration of all the evidence about the incident, including the Verifact Report, it is open to conclude that Ms Praeger may not have been paying close attention to the applicant's movements, may not have been in a good position to observe the incident, and may have been unsure as to what occurred and/or how close the applicant may have got to Ms Allan. Her failure to confirm that the incident occurred does not mean that it did not, in fact, occur. [33] In my view it was the conduct in Allegations 6 and 7 that caused Ms Allan to reverse her 8 July 2014 position of not wanting to make a complaint. It is likely that this occurred because, in contrast to her preceding allegations of unwelcome comments, Ms Allan was confronted with physical contact of a sexual and intimate nature. [34] While I am not prepared to enter findings to the effect that the behaviour complained about in Allegations 2 through to 5 has been proven, I am prepared to conclude that, on the balance of probabilities, the applicant did make inappropriate contact with Ms Allan on the morning of 10 July 2010 in the manner described by Ms Allan. Allegation 1 [35] In her complaint letter Ms Allan said that the applicant made "many comments on just how much he liked" her dress and that when a group photo was arranged she "got squished in the middle" with the applicant standing very close to her and with his arm around her waist. Following this Ms Allan returned to her table and there appeared to be no further contact between her and the applicant. The substantiation of this element of Allegation 1 however relied significantly on the subsequent text messaging. [36] For my part, the preferred course would be to resolve the allegation in isolation of the subsequent text messaging. In this regard it is relevant that the incident appeared to be an isolated event on a social occasion that extended for five or six hours. While there would have been other opportunities for the applicant to interact with Ms Allan, he did not appear to have done so. In the circumstances it was open to conclude that the contact in the group photo was an isolated incident which did not warrant any particular management response. The evidence of Assistant Commissioner Walz and Assistant Commissioner Emery appeared to be consistent with this conclusion while Ms Allan's view, as recorded by Verifact, was not contradictory. [37] Page 8 the Verifact report notes in respect to the group photo that "Ms Allan advised that she did not say anything at the time and she doubted anyone else would have noticed anything out of the ordinary. She said that if this event had not been followed by some SMS text messages from Mr Ellison later that evening she would not have thought too much of it". -- 9 of 26 -- 10 It is also relevant that neither Ms Smith nor Mr Kane, who either witnessed or participated in the group photo, were not interviewed by Verifact. [38] In his evidence on the matter at T2-64 Assistant Commissioner Walz said that whether the applicant's hand was around the waist or the shoulder, it was not a significant event and that the applicant's behaviour did not involve a breach of the Code of Conduct. It was Assistant Commissioner Walz's view that the show cause notices were not intended to allege and substantiate misconduct in respect to the group photo. The effect of Assistant Commissioner Emery's evidence was that, if the group photo incident had occurred in isolation of the subsequent texting event, the photo incident would not have been referred to him for consideration or action. [39] The facts associated with the second element of Allegation 1 were not in dispute. The applicant acknowledged that the exchange of text messages took place and that his behaviour was inappropriate. Questions arising from the conduct included: (i) How should the applicant's behaviour be characterised given that the exchanges occurred out of work, did not involve QAS facilities or equipment, and were private conversations that did not become known to others until 16 months after the event; (ii) What interpretation should be placed on the exchanges given that at the end of the messaging the applicant apologised for any offence caused; nothing apparently came of the exchanges in terms of the ongoing work relationship; and Ms Allan did not appear to take any offence at the time and did not make any immediate complaint about the matter. [40] The applicant advanced three lines of defence. In the first instance the applicant submitted that the text messages should be considered in circumstances where he was not trying to get Ms Allan to have sex with him, and that the exchanges were between consenting adults in the context of a flirtatious relationship in general and a working relationship which commonly featured banter involving lewd and sexual content. The second line of defence was that the applicant was intoxicated or drunk and did not have, after the event, any clear recall of what he had said in the text messages. Thirdly, the applicant maintained that the conduct was private conduct which did not seriously or adversely reflect on the ambulance service. [41] Both parties addressed the case law relevant to a consideration of whether out of work conduct could or should be relied on by an employer in terminating employment. In relying on McManus v Scott-Charlton1 and Rose v Telstra Corporation Limited2, the applicant submitted that an employee is entitled to a private life and that any supervision that an employer might legitimately have over an employees' private life needed to be "carefully contained and fully justified". It followed that the circumstances in which an employee's services could be terminated because of conduct outside of work were limited. [42] The respondent's submission was that the authorities support a proposition that an 1 McManus v Scott-Charlton (1996) 140 ALR 625 2 Rose v Telstra Corporation Limited (1998) IRCommA 1592 -- 10 of 26 -- 11 employer has rights in relation to an employee's out of hours conduct. The respondent acknowledged that the employer's rights were limited and expressed the limitations in the following terms: (a) the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or (b) the conduct damages the employer’s interest; or (c) the conduct is incompatible with the employee’s duty as an employee. [43] In addition to the application of the general principles, the applicant's conduct was also governed by s 18A (Grounds for discipline) of the Ambulance Service Act 1991 which relevantly provides: "(1) The chief executive may discipline a service officer if the chief executive is reasonably satisfied the officer has- ... (b) been guilty of misconduct; or ... (5) In this section- misconduct means- (a) inappropriate or improper conduct in an official capacity; or (b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the ambulance service." [44] Whether the applicant's behaviour could be deemed to have reflected seriously and adversely on the ambulance service was a matter in contention. Section 18A(5)(b) requires that the conduct be both inappropriate or improper as well as seriously and adversely reflecting on the ambulance service. [45] The respondent maintained that, on any reading of the text messages, it was clear that the applicant was making an unmistakable, direct and unsolicited request for sexual intercourse in a circumstance where the applicant was the Officer of Charge of the station and was Ms Allan's supervisor and mentor. The respondent said that the applicant's conduct clearly fell within the definition of sexual harassment and that the breach of the sexual harassment policy was aggravated by the following facts: (i) Ms Allan was a younger employee who was the applicant’s subordinate; (ii) As OIC, the applicant was required to model the correct behaviours and lead by example; (iii) Ms Allan, at the time of the text messages (18 May 2013), was on probation as part of the GPIP; and (iv) the applicant knew at that time (May 2013), that Ms Allan had transferred to Ayr by herself to take up her position in the GPIP. [46] In his evidence, Assistant Commissioner Emery acknowledged that neither the applicant nor Ms Allan were on duty when the text messages were exchanged and that the texts were sent and received on personal mobile phones. He said that while the Code of Conduct did not extend into all areas of an officer's personal relationships, it did have -- 11 of 26 -- 12 application to the applicant's behaviour. The effect of Assistant Commissioner Emery's evidence was that the determinative considerations were that the applicant was Ms Allan's manager and that there were different rules of engagement for managers as opposed to co-workers; that the ambulance services operates on a 24 hour basis and behavioural standards should reflect this, and that Ayr is a small community, presumably meaning that it would be much harder to contain incidents of misbehaviour and prevent adverse reputational impacts for the service. [47] Assistant Commissioner Walz's evidence on the matter at T2-70 was consistent. He said that private conduct could reflect adversely on public confidence in the ambulance service including where an officer was involved in a fight outside of hours or was engaged in an affair outside of work. It was his view that while "people have private lives and their life is their life, but if they do things that can reflect adversely upon their employer, then it is inappropriate." [48] The applicant submitted that the text messaging alone was not sufficient to sustain the decision to terminate employment. The applicant had acknowledged that his conduct was inappropriate and had apologised to Ms Allan. The event had been completely superceded by the acceptance of the apology and by a resumption or continuation of normal work and non-work relationships. [49] The applicant's contention that he apologised to Ms Allan for sending the text messages a few days after the event was disputed by Ms Allan. She denied that the applicant ever made any apology to her. This was a significant consideration in that if the applicant were genuinely remorseful and Mr Allan accepted his promise that this type of conduct or similar conduct would never occur again, there might be a basis to conclude that the matter had been resolved at all levels, both at the direct relationship level but also in terms of any potential for the incident to reflect adversely on the service. While the behaviour at the time was improper there could be no reasonable basis to conclude that service would be adversely affected. The difficulty for the applicant is that, even if all this were true, his subsequent conduct, if proven, would amount to a breach of promise and trust and bring the texting incident back into play. [50] Whether the text messages would have ever been brought to the attention of senior management had subsequent events not occurred, is a question which does not require answering. What is clear is that episode involved misconduct on the part of the applicant that was serious, and which always had the potential to attract disciplinary action. It is not sustainable to suggest that the slate should be cleaned by the passage of time and that the evaluation of the subsequent allegations should occur in isolation of the texting incident. Allegation 7 [51] It was Ms Allan's evidence that as the applicant was leaving the drug room he took a couple of steps towards her and used his right hand to plant a firm slap on her left buttock and made a suggestive comment about her weekend. She did not however recall what the suggestive comment was. Ms Allan’s evidence was that the applicant's contact was not accidental and that the applicant had deliberately touched an intimate part of her body. She said that after the contact she observed the applicant grinning which caused her to verbally retaliate by telling the applicant to "fuck off". -- 12 of 26 -- 13 [52] Ms Allan said that soon after the incident she decided to go into the applicant's office and confront him. She said that she told the applicant not to touch her. She then repeated her demand in saying words to the effect of “Stop it, don’t touch me ever again, that’s twice today I don’t like it”. As I followed the evidence Ms Allan would have finished work around 7.00 pm when she went home. She said that she was very upset by the incident at work and at 10.49 pm she sent an email to Mr Davey expressing her concerns and asking him to see her the following morning. The email is in the evidence as Attachment SA-4 to Exhibit 13. A further contemporaneous record of Ms Allan's displeasure at the applicant's conduct is provided by Attachment SA-5 to Exhibit 13, which is a copy of a Facebook conversation between Ms Allan and her friend, Ms Tealby. [53] In the Facebook exchange Ms Allan does not provide any specifics of the two incidents that occurred at work that day but she does say that the applicant was being a "perfect arsehole" at the moment; that he was "hitting on me again"; that she had "no idea how to respond"; and that the applicant "got told to fuck off and probably will leave me alone for a few weeks or months now". Ms Tealby observed that Ms Allan could respond to the applicant's behaviour in one of two ways. She said that there was the "boring responsible" way of "informing the applicant that he had crossed the line" etc., or there was the "quit it or I'm going to yell rape and kick you in the nuts" way. [54] It was the applicant's version of events that the confined dimensions of the drug room caused him to accidentally touch Ms Allan's bottom with his hand when he turned around. He said that he did not slap or smack Ms Allan. He said that he was not grinning after the contact. He said that when the contact occurred he immediately excused himself but that Ms Allan had immediately responded by telling him to "fuck off". He attributed her display of temper to the fact that Ms Allan was just finishing a 12 hour shift. The applicant agreed that after the incident Ms Allan spoke to him in his office and said something like "Don’t touch me, you've touched me twice today". He said he was not panicked but confused by the turn of events. He said he responded to Ms Allan by saying "Okay, I understand and I will make a note of it". He then made a record in his diary. He said that when Ms Allan complained about being touched twice by him, he thought she was referring to unrelated events where he had touched her on the shoulder to get her attention and then subsequently gave her a "thank you" pat on the back for her help in assembling some desks. [55] It was the applicant's evidence that this was the only occasion during the course of Ms Allan's employment at Ayr that she had informed him that she was not comfortable with his behaviour or that she thought he was treating her inappropriately. [56] The applicant challenged the reasoning of both Verifact and the decision makers' that Ms Allan's reaction in telling the applicant to "fuck off" supported a conclusion that Ms Allan's version was correct. This reasoning overlooked the presence of other factors that may have explained Ms Allan's intemperate response. These factors included tiredness from a long day at work, the impact of stress arising from multiple traumas, and the fact that Ms Allan was under some pressure because of poor performance in some areas. The difficulty for the applicant however is that while these factors might contribute to, and explain, an over-reaction to an accidental touching in the close confines of the drug room, they do not explain Ms Allan's subsequent behaviour in making a -- 13 of 26 -- 14 conscious decision to approach the applicant in his office and confront him about both the drug room incident and the incident that occurred earlier that day. Credit [57] The applicant contended that his version of events in regard to Allegation 7 was to be preferred to the version provided by Ms Allan. In support of this contention, Ms Allan's credit was questioned on various grounds: (i) Ms Allan was evasive in giving some answers and tended not to recall matters which were not supportive of her case, such as incidents where she attended alone with the applicant after the texting episode; (ii) Ms Allan refused to concede matters that should have been conceded. She should have accepted what was put to her about the version given by her to Ms Laurie, rather than requiring the audio record of interview to be played, and contesting the meaning of the spoken word; (iii) Ms Allan provided inconsistent versions in terms of what occurred when she entered the applicant’s office on 10 July 2014 to complain about the two incidents of touching; (iv) Despite Mr Davey's evidence that Ms Allan told the applicant to “fuck off” on 8 July 2014 and 10 July 2014, Ms Allan was adamant she only said it once to the Applicant, being on 10 July 2014; (v) Ms Allan's suggestions of being scared do not sit comfortably with the content of her Facebook exchanges nor with her one-on-one visits with the Applicant between Allegation 1 and Allegation 7; (vi) Ms Allan's attribution of the words “accentuated my chest” to the applicant was clearly wrong and used deliberately in an attempt to discredit the applicant; (vii) Ms Allan's deliberate decision to save the 18 May 2013 text messages for 16 months and to subsequently blindside the applicant with their use instead of discussing her concerns directly with the applicant, raises questions about her motivation in lodging her complaint against the applicant. [58] I do not accept that the attack on Ms Allan's credit has been made out. The circumstances associated with the "one on one" contacts were not unambiguously made out on the evidence. While the cross-examination would have preferred clear cut admissions, some circumspection on the part of Ms Allan could be accommodated given that the factual basis for the propositions had not been clearly established. Further, while the applicant submitted that particular social interactions indicated that Ms Allan was comfortable in his company and implied that Ms Allan may have been proactively seeking companionship with the applicant, I am unable to find evidence of any mutual intention to spend time alone together. [59] Copies of text messages included as Attachment PE-2 of Exhibit 8 allude to a visit to the applicant's unit by Ms Allan on 26 July 2013 for the purpose of inspecting the unit with a view to rental, and to Ms Allan informing the applicant that a take-away food order was ready. Other text messages demonstrate that communications were occurring between the two on a range of subjects. -- 14 of 26 -- 15 [60] Ms Allan attended at the applicant's unit with a bottle of wine for the purpose of viewing the property with an intention to take over the lease, an important pursuit given the tight rental market in Ayr. While Ms Allan may have gone to the movies with the applicant, she attended in response to a general staff invitation. The text exchange itself did not establish that Ms Allan was intending to share a take-away meal with the applicant at his unit. Also it was the applicant's evidence that Ms Allan was responding to a general invitation to staff to dine with him that evening. [61] While I would have preferred that Ms Allan recall of these events was more precise or fulsome, I do not think the interactions establish any significant inconsistency in her overall version of events, nor do I accept that any vagueness or lack of recall on her part should lead to a finding of credit adverse to her. My conclusion on the evidence is that there were out of work circumstances where Ms Allan and the applicant did find themselves in each other's company, but what weight should be assigned to this conclusion in the context of the substantiated allegations is another matter. [62] I do not attach any significance to Ms Allan's decision to accept the cross-examiner's invitation to listen to the audio recording of conversations, rather than rely on her own recollections and make more immediate concessions. Nor do I consider that anything significant turns on any variation in Ms Allan's evidence about whether the applicant was sitting or standing when she entered his office on 10 July 2014. [63] Again, in my view, not much turns on the conflict in the evidence of Mr Davey and Ms Allan about whether she had told the applicant to "fuck off" on two occasions or on one occasion. It was Mr Davey's evidence that Ms Allan reported telling the applicant to "fuck off" in consultations on 8 July 2014 and 11 July 2014. However the effect of Ms Allan's evidence was that she only reported the exchange in her consultation with Mr Davey on 11 July 2014. That the comment was reported on 11 July 2014 is entirely consistent with the evidence about events occurring on 10 July 2014, including the incident in the drug room, Ms Allan's email to Mr Davey, and her Facebook exchange with Ms Tealby. [64] Neither the applicant nor Ms Allan claimed that the applicant had been told to "fuck off" prior to 10 July 2014 and it is difficult to reconcile Mr Davey's evidence with the evidence generally. I think the most likely explanation is that Mr Davey's 8 July 2014 entry could be sourced back to the incident which has been labelled Allegation 4. In this incident Ms Allan said that she had told the applicant to "piss off". It may have been that either Ms Allan in the reporting, or Mr Davey in the recording, inaccurately used the expression "fuck off" in lieu of "piss off". [65] The applicant took issue with Ms Allan's evidence at paragraph 38 of her affidavit that she became increasingly "scared" after the text messaging on 18 May 2013. In fairness to Ms Allan, this was the only occasion that she used the word "scared" in her affidavit. In other parts of her affidavit she uses words such as "vulnerable", "confused", "wary", and "uncomfortable", and from my perspective these would be more accurate descriptors of Ms Allan's predicament. While a consideration of all the evidence does not lead to a conclusion that Ms Allan was at risk of physical harm during her employment at the Ayr station, I do not consider the use by Ms Allan of the word "scared" on one occasion in her affidavit gives rise to considerations of credit. -- 15 of 26 -- 16 [66] Nor do I accept that considerations of credit arise from Ms Allan's evidence that the applicant had said that her dress "accentuated her chest". On my understanding of Ms Allan's evidence, she was wanting to convey that the applicant had made observations about the revealing nature of her dress which made her feel uncomfortable. In her affidavit at paragraph 24 she did not attribute the words "accentuate her chest" to the applicant. What she said was that the applicant used words to that effect. [67] I think the applicant was entitled to question Ms Allan's credit in circumstances where she made a conscious decision to retain the 18 May 2013 text messages and then subsequently use them without prior warning or discussion in July 2014. However the challenge does not take him very far. There was no evidence that Ms Allan told the applicant that she had saved the messages, hence she did not try to leverage the saved content to achieve favourable outcomes at work, whether it be the GPIP assessments or overtime allocation or preferred shifts on the roster. Secondly, she did not elect to use the messages until the incidents on 10 July 2014 occurred and in circumstances where she had told Mr Davey only two days before on 8 July 2014 that she did not want to file a complaint. This factor together with the contemporaneous email to Mr Davey on 10 July 2014 and the contemporaneous Facebook exchange with Ms Tealby on the same day, support a conclusion that it was the events of 10 July 2014 that precipitated her decision to make a complaint and then to support her complaint by reference to the text messaging. In these circumstances I do not consider that reliance on the text messages was either unethical or malicious and it follows that considerations of character or credit do not arise. [68] I am satisfied that the substantiation of Allegation 7 by the decision makers was reasonably open on the evidence. I accept that it was more probable than not that Ms Allan's version of events was correct. This conclusion is reinforced by the contemporaneous communications made by Ms Allan on the night of 10 July 2014. These communications, which were not part of the Verifact investigation, support the decision to substantiate the allegation. Motivation for the Complaint [69] The applicant said that in the week following the text exchanges in May 2013 he spoke to Ms Allan at work and apologised for the transmissions. He said that Ms Allan accepted his apology and that their relationship both at work and in a social setting was normalised. Ms Allan willingly socialised with the applicant during out of work hours including visiting the applicant's unit with a bottle of wine; going to the movies with the applicant; bringing a take-away dinner to the applicant's unit; and attending pool parties at the applicant's home. [70] In the applicant's view there were no significant current events which would have prompted Ms Allan's complaint in July 2014, and he concluded that the complaint was motivated by factors other than harassment. He saw Ms Allan's decision to lodge a complaint as an attempt to divert attention from significant shortfalls found to exist in her performance, or as a vindictive response to his management style and decisions that he had made which were unfavourable to her. In this regard reference was made to damage to a vehicle on 20 July 2013; mistakes in reporting around asbestos contamination in November 2013; non-compliance with GPIP performance and meeting requirements, and ongoing complaints about uniforms and overtime allocation. It was -- 16 of 26 -- 17 also submitted that Ms Allan was motivated to complain to try to head off some form of disciplinary action which might have been imminent after Ms Allan had told the applicant to "fuck off". [71] A meeting between the applicant and Ms Allan on 27 August 2013 noted Ms Allan's poor performance and discussed a strategy to improve performance. Non-compliance with training data-base reporting was also the subject of concerns passed on to the applicant. Additionally Ms Allan's performance was subject to scrutiny when she was in charge of a vehicle which caused $5,000 damage to a roller door and when she failed to report the possible exposure of a vehicle to asbestos contamination on 11 November 2013. The applicant said in his evidence that he believed that Ms Allan's failure to be awarded two overtime shifts around the middle of June 2014 contributed to her decision to file a complaint against him. An email trail in Attachment PE-3 to Exhibit 8 explains the facts and circumstances relating to one overtime request. No supporting evidence was provided in respect to the second request. [72] The applicant's reasoning is contradicted in part by the chronological order of events. The vehicle damage occurred in July 2013, the GPIP non-compliance in August 2013 and the asbestos issue in November 2013. Further these performance problems had been resolved by the end of 2013 when Ms Allan successfully completed her training assessment and achieved the status of a qualified paramedic. However the applicant also relied on the evidence of Mr Rapp who confirmed that just prior to the lodgment of Ms Allan's complaint, the applicant had foreshadowed the need to take some form of disciplinary or counselling action in respect to Ms Allan's performance. The unsupported inference was that Ms Allan got wind of what the applicant had in mind and used the complaint to head off any disciplinary action. [73] The evidence around the uniform and overtime issues did not suggest that they were particularly significant. While a Facebook exchange between Ms Allan and Ms Tealby included in the evidence as Attachment PE-1 to Exhibit 9 discloses that Ms Allan thought that she was unfairly deprived of an overtime shift, it does not go beyond a record of this sentiment. While the email trail suggests some tension between Ms Allan and the applicant over the issue, it also suggests that the matter had been resolved and, on the balance of probabilities, to Ms Allan's satisfaction. I do not get the sense that the loss of one overtime shift in circumstances explained in the email trail would have motivated Ms Allan to lodge a complaint of sexual harassment against her manager. [74] The possibility that Ms Allan made the complaint because she feared a repercussion after telling her boss to "fuck off" is speculative. There is no support for such a notion in Ms Allan's communications with Mr Davey or her Facebook exchanges. On the evidence it is more likely than not that Ms Allan made her complaint because of the applicant's behaviour on 10 July 2014, not because of a fear of disciplinary action arising from her very direct rebuke of the applicant when he smacked her on the bottom. [75] The applicant attributed an unethical or sinister motivation to Ms Allan's declared intention to “blindside” the applicant. Ms Allan made the comment about blindsiding the applicant in a Facebook message on 28 July 2014. At this point she had decided to lodge a complaint and had a meeting scheduled with Assistant Commissioner Walz on Thursday of the same week. In his evidence Assistant Commissioner Walz said that the meeting took place on Thursday 31 July 2014. On Mr Davey's evidence, Ms Allan told -- 17 of 26 -- 18 him on 10 July 2014 that she wanted to make a complaint and sought advice regarding process. On 16 July 2014 he informed Ms Allan of the procedures to follow. He received a copy of Ms Allan's written complaint prior to the meeting with Assistant Commissioner Walz which he also attended. My understanding of the evidence was that, having decided to make the complaint, having discussed the matter in some detail with Mr Davey, and having arranged to meet Assistant Commissioner Walz on 31 July 2014, Ms Allan was pre-occupied with ensuring that the applicant did not become aware of her intentions to make the complaint prior to her meeting with Assistant Commissioner Walz. In this regard I accept that her practical day to day circumstances might become very difficult if the applicant were aware of what she was about to do. It follows that the reference to blindsiding the applicant was not maliciously motivated but was a common sense action in ensuring that the applicant did not become aware of her intentions prior to the formalising of her position with Assistant Commissioner Walz. [76] The circumstances that precipitated the lodgement of a complaint by Ms Allan were canvassed in Mr Davey's evidence. He said that Ms Allan consulted him on 9 April 2014, 17 April 2014 and 8 May 2014 about stressors associated with her operational duties including an infant death and a traumatic car accident. In a consultation on 8 July 2014 however Ms Allan expanded her areas of concern by complaining about the applicant's behaviour. She told Mr Davey that the applicant was flirting with her and that he would "hit on her". She also told him that she had told her boss to "fuck off". It was Mr Davey's evidence however that when he questioned Ms Allan about these matters she indicated to him that she felt that things were "under control". Ms Allan's view however had changed by 10 July 2014 when she emailed Mr Davey at 10.49 pm, informed him that she had been harassed by the applicant on two occasions, and asked to see him the following day. During this consultation he said that Ms Allan told him that she wanted to make a complaint against the applicant and wanted to know what her options were for so doing. [77] Following the 10 July 2014 consultation Mr Davey made enquiries with the QAS about the complaints process and established that the appropriate course would be for the complaint to be directed to Assistant Commissioner Walz. It was Assistant Commissioner Walz's evidence that sometime in July 2014 Mr Davey mentioned to him that there may be an issue in Ayr about which he might need to speak to him. At a subsequent occasion, Mr Davey told Assistant Commissioner Walz that "he had been consulting with a young girl who was facing some serious interpersonal problems" and that she had decided that she would like to meet with him for the purpose of making a complaint. This meeting was arranged for 31 July 2014 when the complaint was formally lodged. [78] It was the respondent's submission that Ms Allan, in making her complaint, was motivated by only one reason. That is, her desire to work in a workplace that was free from sexual harassment. The respondent argued that this was proven by reference to:  the impression that Ms Allan left with Mr Davey when Ms Allan informed Mr Davey of the applicant’s conduct and her feelings about the applicant’s conduct, particularly in the meeting that she had with Mr Davey on 16 July 2014 where Mr Davey talked Ms Allan through the complaint process; -- 18 of 26 -- 19  the fact that when Assistant Commissioner Walz met with Ms Allan on 31 July 2014 to discuss her complaint, he concluded that Ms Allan was “genuinely upset”;  the contemporaneous Facebook conversations between Ms Allan and Ms Tealby on 28 July 2015, where Ms Allan clearly expressed her trepidation about making a complaint against the applicant; and  the contemporaneous Facebook conversations between Ms Allan and Ms Tealby on the evening of 31 July 2014, after Ms Allan had made her formal complaint to Assistant Commissioner Walz. Verifact Investigation [79] Ms Laurie, who conducted the investigation on behalf of Verifact interviewed Ms Allan, Ms Praeger, and the applicant. A précis of the record of each interview was included in the Verifact report provided to QAS. While Ms Praeger did not have an accurate or reliable recollection about what had transpired in respect to circumstances relevant to Allegation 6, she did inform Ms Laurie that during a State of Origin night in 2014 she was sitting next to the applicant while watching the event. She said that as the applicant became more intoxicated, he moved closer to her, and then put his arm around her. [80] In her report Ms Laurie said that there was sufficient evidence to substantiate Allegations 1 and 7, but that there was insufficient evidence to substantiate Allegations 2 to 6 "as there were no independent witnesses or other corroborating evidence" and the applicant had denied the allegations. However she also concluded in respect to the unsubstantiated allegations, that having regard to the content of the text messages sent by the applicant on 18 May 2013 and her view that the complaint was neither opportunistic, frivolous nor vexatious, that "the level of proof only fell marginally short of the balance of probabilities". [81] In her report Ms Laurie said that the applicant had made a number of partial admissions. In terms of Allegation 1 he admitted putting his arm around Ms Allan's shoulder and he admitted sending the text messages; in respect to Allegation 2 he admitted hugging Ms Allan; in respect to Allegation 3 he admitted that he had observed that Ms Allan's underwear was on top of a basket of clothes; in respect to Allegation 5 he admitted to placing a call to Ms Allan when he arrived at her home; in respect to Allegation 6 he admitted to leaning across Ms Allan; and in respect to Allegation 7 he admitted that his right hand came into contact with Ms Allan's buttock and that Ms Allan told him to "fuck off". He also admitted that Ms Allan subsequently came into his office and complained that he had breached her personal space twice that day. [82] The adequacy of the Verifact investigation was called into question by the applicant who maintained that the investigator was biased and the final report was flawed because of the following failures in the investigative process: (i) Ms Laurie did not interview the other QAS officer involved in the group photo; (ii) Ms Laurie did not maintain objectivity in eliciting certain responses from Ms Allan through leading questions and by failing to critically evaluate -- 19 of 26 -- 20 Ms Allan's reasons for retaining the offending text messages for as long as she did; (iii) Ms Laurie erroneously thought that Ms Allan was a student paramedic at the time that she made her complaint and incorrectly assumed that the applicant "decided" Ms Allan's career; (iv) Ms Laurie excluded relevant evidence in not examining the content of Ms Allan's Facebook pages and she demonstrated poor judgment in observing that such a line of enquiry would be inappropriate; (v) Ms Laurie may have excluded relevant evidence in not interviewing Mr Davey and seeking access to his notes; (vi) Ms Laurie failed to view the drug room and consider the possibility of accidental contact. She did not ask other Ayr Station staff whether accidental contact was normal or frequent. It was Ms Laurie's evidence at T2-75 that she did not consider that the configuration of the drug room was pertinent to the allegation; (vii) Ms Laurie erred in not seeking a response from Ms Allan to the applicant's version of events. [83] The identification by the applicant of potential errors and omissions in the investigation was one thing, but the objective had to be to establish that, had the alleged errors or omissions not occurred, the relevant allegations would not have been substantiated. Given that the second element of Allegation 1 was not in dispute, the applicant's submissions were inevitably focussed on Allegation 7. In this regard the effect of the applicant's submission was that Ms Laurie erred in her comprehension of the power imbalance; that she was influenced too much by the May 2013 text messages which led to a predetermined view of subsequent events; that she failed to consider Ms Allan's flirtatious nature and her fondness for innuendo and crude workplace conversation; and that she too readily favoured Ms Allan's version of the drug room incident. [84] I accept that Ms Laurie could have interviewed both Ms Smith and Mr Kane as part of her consideration of the allegation about the group photo. While I accept the failure to interview Ms Smith and Mr Kane points to a deficiency in the investigation, it was not a flaw which materially impacted the outcome of the investigation. [85] I am reluctant to criticise Ms Laurie in relation to a failure to discover and take into account the Facebook content. No evidence was led pointing to negligence in the investigative process as the cause of the omission. The applicant relied on those parts of the Facebook content which suggested a disposition towards flirtatious behaviour and participation in crude workplace banter, to create a doubt about whether the applicant's behaviour toward Ms Allan was unwelcome. [86] Ms Laurie was presented with the Facebook material when giving her evidence in the proceedings. The material however did not persuade her to revise her report recommendations and she dismissed the material. Her reasoning for so doing was criticised by the applicant with some justification. However the truth of the matter is that at the time of giving evidence, Ms Laurie's investigation was closed and her opinion on these matters is not determinative. The Facebook content forms part of the evidence in these proceedings and will be taken into account in arriving at a decision. -- 20 of 26 -- 21 [87] While I accept that Ms Laurie may have presumed that Ms Allan was a student paramedic throughout the period that the alleged misconduct occurred, I do not accept that this error has significantly changed the course of the decision making. Firstly, Ms Allan was a student paramedic when the texting occurred. Secondly, while Ms Allan had graduated and was not on probation in 2014 when the majority of the incidents occurred, she was still a junior and inexperienced officer, and the applicant was her manager. Mr Laurie's error does not diminish from the principal factor that Ms Allan was a young and inexperienced officer who was away from home and engaged in her first assignment with the QAS. The applicant's duty of care toward her has to be assessed in this context. [88] I do not attach significant weight to the applicant's complaint about Ms Laurie's use of leading questions. Ms Allan's version of events had been documented in detail prior to the Verifact investigation and I think it was self-evident from her written complaint that Ms Allan did not feel comfortable with the applicant's conduct in the group photo incident. Nor do I think there needed to be any critical evaluation of Ms Allan's motivation in saving the offending text messages. She did not deny that she saved the messages for the purpose of relying on them, if necessary, at some future date. Significantly, despite the leverage they offered, there was no evidence that Ms Allan had used them against the applicant until the precipitating events of 10 July 2014. [89] While I accept that it may have been useful for Ms Laurie to have viewed the drug room, I do not agree that such an inspection was a precondition to the substantiation of the allegation. No matter how cramped the confines of the room, Ms Allan's evidence was that the contact was deliberate and predetermined and that she was not touched but smacked. For his part the applicant did not claim that the layout made it physically impossible for him to have smacked Ms Allan. Nor did the respondent advance the theory that any accidental touching of Ms Allan was impossible. In the end result the configuration of the room was not going to be determinative in the resolution of the conflict in the evidence. [90] I decline to attach significance to the decision of Ms Laurie not to interview Mr Davey. In the first instance Mr Davey, in answering questions, could only have relied on a history provided by Ms Allan. Secondly, while Mr Davey facilitated the complaint process, Ms Allan articulated her complaint directly to Assistant Commissioner Walz. Ultimately it was for Assistant Commissioner Walz to decide if the allegations were substantiated. Thirdly, there was nothing in Mr Davey's evidence in the proceedings which would have assisted the applicant's cause. [91] I am not of the view that anything of significance turns on the proposition that Ms Allan should have been invited to reconsider the veracity of her allegations in the light of the applicant's responses to the allegations. Ms Allan's complaint had been reduced to writing before the investigation process had been commenced and her allegations were not lacking particulars. It is unlikely that Ms Allan would have altered her position in response to the applicant's denials. Notwithstanding this the applicant's version of events was responded to by Ms Allan in her evidence in chief. Any procedural shortcut taken by Ms Laurie was not shown on the evidence adduced during the trial to have compromised her investigation or her conclusions. -- 21 of 26 -- 22 Delegates Decision Making Process [92] The delegates involved in the decision making process were Assistant Commissioner Waltz and Assistant Commissioner Emery. The applicant questioned the validity of their decision making on the following grounds: (i) the decision makers were not provided with complete transcripts, or an actual audio recording, of the interviews carried out by Ms Laurie. The précis of interviews provided were insufficient to convey the full evidentiary value of the interviews particularly in respect to Allegation 7 which was proved despite no independent witness; (ii) the decision makers relied on a Verifact report which was significantly flawed; (iii) the decision makers should have had access to, and have taken into account, the content of Ms Allan's Facebook pages. [93] The applicant took issue with the fact that neither Assistant Commissioner Walz nor Assistant Commissioner Emery had recourse to the complete transcript of interviews conducted by Verifact when making their respective decisions. It was the applicant's view that the summaries of evidence that were relied on by the decision makers did not properly reflect the evidence as it was adduced during Ms Laurie's investigation. It was Ms Laurie's evidence that neither the transcript nor the audio recordings of the interviews were requested by QAS. The applicant submitted that the delegates' lack of access to the Verifact recorded interviews and Ms Allan's Facebook pages would have made it impossible for the delegates to have made a proper assessment of the evidence and the credit of witnesses, particularly Ms Allan. The submission was particularly relevant to Allegation 7 where the activities were not witnessed and an assessment of credit was important. Assistant Commissioner Walz and Assistant Commissioner Emery agreed when giving their evidence that they had not seen any of the Facebook content that was introduced in the proceedings. [94] In the end result the omission from consideration of the Facebook content only becomes a factor supporting the application if the content supports a conclusion that some or all of the allegations, but particularly Allegation 7, would not have been substantiated had the decision makers had access to the Facebook content. This is however not the conclusion that I have arrived at. While I consider that the content supports the non- substantiation of Allegations 3 and 5, it also supports the substantiation of Allegation 7. On balance, on consideration of all the content, the Facebook pages do not support the grant of the application. [95] It was Assistant Commissioner Emery's evidence that notwithstanding Ms Allan's Facebook exchanges about flirting and dirty jokes, he did not forgive the applicant for his lack of judgment and that a conversation between Ms Allan and a friend was to be differentiated from a conversation between a manager and a subordinate. He said that there was a different set of rules or expectations for supervisors and managers. -- 22 of 26 -- 23 [96] The applicant submitted that where summaries of evidence that do not properly reflect the evidence are put before the delegate, the decision may be in error3. It was argued that the summaries of the interviews of the applicant prepared by Verifact were insufficient to surface all the salient facts necessary to give shape and substance to the matter in the mind of the delegate. In circumstances where Ms Allan's credit was always going to be central to the conclusion reached by the decision maker, a reference to a summary of interview alone, is insufficient and does not allow the delegate to form a proper view of that issue. [97] Having taken up the issue however, the applicant did not particularise his submission by making specific reference to parts of the transcript of interview that, had they been replicated in the précis of interviews, could have changed the decision made. It is also relevant that the decision makers had before them lengthy responses prepared by the applicant to the two show cause notices, in addition to the Verifact report. Given that these responses were prepared after the completion of the Verifact report, it was open to the applicant to draw attention to parts of the Verifact report which he considered deficient or which did not adequately explain the applicant's position arising from his interview with Ms Laurie. The Verifact report was dated 15 September 2014, while the applicant's first show cause response was dated 10 October 2014 and the second show cause response was dated 24 October 2014. [98] The applicant also argued that the decision making process was infected by a bias toward Ms Allan and by a predisposition to accepting Ms Allan's version of events in favour of the applicant's version. It was submitted that the bias manifested itself in a number of areas: (i) Mr Davey erroneously thought that Ms Allan had not qualified as a paramedic something which may have contributed to a conclusion that he was concerned "by the clear power imbalance at play, with Ms Allan being a graduate Paramedic who relied on Mr Ellison, as her OIC, to sign off on her paperwork each fortnight"; (ii) Ms Laurie demonstrated bias in a number of respects; (iii) Assistant Commissioner Waltz demonstrated bias in accepting Ms Allan's word that she had not breached confidentiality during the period of the investigation and did not pursue the matter; (iv) Despite Assistant Commissioner Walz having reservations about the conclusions reached by Ms Laurie in her report, he nevertheless opted to favour Ms Allan's circumstances over the applicant's. [99] Ultimately the determination to be made by the decision makers had to be consistent with the facts which were proven on the balance of probabilities. As I understood the evidence of both Assistant Commissioner Walz and Assistant Commissioner Emery, they did not unquestioningly accept the recommendations or conclusions contained in the Verifact report but applied their own independent thinking and consideration to all the relevant facts and circumstances. There is no doubt that Ms Allan's personal circumstances were always going to be a central consideration in the decision making process. She was just commencing her first assignment with QAS, she had been transferred from her place of 3 Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265 see also LVR (WA) v Administrative Appeals Tribunal (2012) 203 FCR 166 -- 23 of 26 -- 24 residence of the Sunshine Coast to Ayr, and the continuation of her employment with the QAS was conditional on the satisfactory completion of the GPIP and her 12 month probationary period. It would be imprudent to underestimate the challenges, both work and non-work, that confronted Ms Allan on her arrival in Ayr. [100] Further given that only three months after her arrival in Ayr the applicant elected to engage in the text messaging that he did, the decision makers were entitled to form an assessment of character which would not be favourable to the applicant and which would always be relevant to their consideration of subsequent events. I do not share the applicant's view that the decision makers acted with bias and favoritism in finding against the applicant. In my view the decision makers' acted consistently with the evidence before them, and the evidence subsequently adduced in the Commission proceedings does not support a finding that the decision makers erred in reaching their conclusions. Conclusion [101] The question to be answered in this matter is whether the decision of the respondent to terminate the applicant's employment, when viewed objectively, was harsh, unjust or unreasonable. This determination requires a consideration of the facts and circumstances which led to the respondent's decision as well as a consideration of the gravity of the employee's conduct and the effect of the decision on the employer and the employee.4 In arriving at its decision the Commission is to be governed by equity, good conscience, and the substantial merits of the case having regard to the interests of the persons immediately concerned and to the community as a whole.5 [102] The applicant submitted, in effect, that in circumstances where Allegations 2 to 6 had not been proven and were denied by the applicant, if it could be established that the decision maker erred in substantiating Allegation 7, then the application for reinstatement must succeed. The applicant contended that Allegation 7 should never have been substantiated if proper regard had been given to the following considerations: (i) The similarity in the versions of events; (ii) The fact that the applicant's version of events was equally plausible; (iii) Valid doubts about Ms Allan credit; and (iv) The probability that the contact in the drug room was unintentional. [103] Given these considerations, and in circumstances where, under the Briginshaw6 test, the evidential burden must adjust to reflect the severity of the adverse findings, the Verifact investigator in the first instance, and subsequently the decision makers, should not have substantiated Allegation 7. The error in substantiating this allegation necessarily leads to the abandonment of the case against the applicant, or at the least the application of a sanction less drastic than termination of employment. [104] The respondent submitted that the decision to terminate the applicant's employment was both procedurally and substantively fair. The applicant's conduct contravened the QAS Sexual Harassment Policy and the Code of Conduct in circumstances where the applicant 4 Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 467 5 Industrial Relations Act 1999 s 320(3) 6 Briginshaw v Briginshaw (1938) 60 CLR 336 -- 24 of 26 -- 25 was Ms Allan's supervisor, she was on her first assignment with QAS and she was working at a location remote from her home town. The respondent also relied on the facts and circumstances associated with Allegations 2 through 6, and submitted that the Commission was not restricted in its deliberations to a consideration of Allegations 1 and 7. [105] Having regard to all the relevant facts and circumstances, I prefer the submission put forward by the respondent. In my view the decision taken by Assistant Commissioner Walz to substantiate Allegation 1 (text messaging) and Allegation 7 was clearly open to him on the evidence before him. It was also justified on the evidence adduced in the proceedings. The more substantial decision to be made, in my opinion, was the determination of disciplinary penalty. In this regard the critical consideration is whether Assistant Commissioner Emery should have concluded that a penalty other than termination of employment may have been sufficient. [106] In this regard I note his evidence to the effect that he assiduously canvassed the viability of disciplinary options other than termination of employment. In his evidence he said that he gave consideration to the following matters when deliberating on the level of punishment to be applied: (i) the seriousness of the conduct found against the applicant; (ii) the applicant’s role as OIC; (iii) the passage of time between the first allegation and the later allegations including the fact that Ms Allan was trying to maintain a professional relationship with the applicant in that period; (iv) Ms Allan’s work performance; (v) the alleged apologies given by the applicant to Ms Allan; (vi) whether the applicant’s physical contact with Ms Allan in respect of Allegation 7 was intentional; (vii) the marital difficulties that the applicant stated that he was having prior to the text messages being sent in 2013; (viii) the social interaction between the applicant and Ms Allan after the text messages in 2013; (ix) the allegation of bias that the applicant said Ms Laurie had in coming to her investigation report; (x) the extenuating circumstances that the applicant would face if he was dismissed from his employment; (xi) the duty of care that the QAS has to its employees to take action in respect of incidences of bullying and harassment; (xii) public safety, given the contact between paramedics and female patients or members of the community; and (xiii) the applicant’s length of service and history, including that the applicant did not have any prior disciplinary history. [107] There is no basis upon which I could conclude that the decision makers did not approach the applicant's circumstances objectively and did not carefully and thoughtfully evaluate the competing considerations. The decision taken to terminate the applicant's employment was reasonable open to the decision makers on the material before them and on the balance of probabilities. The evidence adduced during the proceedings has not persuaded me to conclude any differently. -- 25 of 26 -- 26 [108] Having regard to all the facts and circumstances of this case, I am not persuaded that the decision to terminate the applicant's employment was harsh, unjust or unreasonable. [109] The application is dismissed. -- 26 of 26 --