Culhane v St. Joseph's College [1994] QIRC 102 (1994) 149 QGIG 708

708 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [3 1 March, 1994 #################################################### QUEENSLA ND INDUSTRIAL RELATIO NS COMMISSION Industrial Relations Ace 1990 s. 174 - application for reinstatement Ba rry James Culhane AND St. Jose ph's Co!lege (N o. 8727 of 1993j COM M ISSIONER DEMPSE Y 22 March 1994 Te rmi nation of Empl oyment - D ismissal - Re instatemen1 - A ll egation oi Masturbation - Evidence - Med ical Eviden ce - Con f!ict of Evid_ence - Case Law - D i sm i ssal Harsh, Unjust and Unfair - Reinstatement Ordered - Prospective D ate for Rei nstatement. DECISION . At th e co_ncfusion oi proc eed i ngs on Thursday 17 February I is sued a decision from the Bench. Effec ti ve ly that d eci sion stated that the appl icant 's dism issa l was ha rsh , un fa ir and unjust an d th at rei ns tatement fr om a prospective date, i. e., 28 Ma rch 1994, was ordered. The grounds an d reasons for my conclusion are as foll ow s. 3 1 March, 19941 QUEE NS LAND GOYERl"lMENT INDUSTR IAL GAZETTE 709 Th e appli can t, Barry Jam es Culhane was employed as a te acher/librari an at St. Joseph's Col le ge. He was employed in that ca pa ci ty /or app roximately two yea rs an d ten mo n th s. H is employment was terminated on 11 November 1993 by letter oi the same date. The letter was tendered and marked as exhi bi t 13. It is contended that the applicant was dism issed for masturbating during the cou r se of a meeting he and five others attend ed on 15 October 1993 . The meeling took place in the Information Techno logy Centre at N udgee College. The others pre sent were Mrs O 'Gorman the applicant 's immediate superio r and the person who cha ir ed the meeti ng, Mr s Jab lonski, Mrs Pugh and Mrs D itchburn who are employed at th e Col l ege as lib rary as si stants and Mrs Green, an ad min ist ra tion officer was al so present. An agen da for the meeting had be en prepared, exhib it 11, and those previously mentioned attended to that agenda when the meeting commenced shor1 ly atter 1.30 p.m. Al l of those wh o were present i ncl uding the app li cant ack now ledge that Mr Culhane was extr em eiy vocal in the early stag es of the meeting and this continued until at le ast item 4 had been di sposed ol. Du ring the course of the meeti ng there was a number of telephone cal ls. In 1he mai n they were attended lo by M rs Green. O ne of th ese calls was from a Mr Tom Barker who wanted to sp eak to M r Culhane. The evidence suggests th e cal l was of a short duration, maybe a couple of minut es . On return to the meeting or shortly ther ea f te r the the app li can t resum ed his sea t. However by n ow the seat wa s reve rs ed and his legs were astride a centre upright stee l bar of some 60mm in w idth. The chai r is a typical typists cha ir wi th one cent ral upright bar but this parti cular chair was broken to the exten t that the actual backre st had been removed an d only the bar remained.(Reier exhibi t 1, photograp hs) It is con tended by the respond en t tha1 the act ions of the app li cant duri ng the cour se of the meeting cons1 itu ted an act of i ndecent conduct. (The act of indecent con duct and the r esp onden1s more precise deiin i tio n wil l be d ea lt w ith later.) A formal co mp l aint was lodged. The all eg ations were i nv es ti gated. All present at the meeting were interviewed, M r Culhane being 1he las t. A further inves1i gation oi an i nterna l nature in vo lving solici tors representi ng the respond en t took place although it must be noted th at on adv ice M r Culh ane d id not pa rt ici pate in that part of the investigation an d on 11 November 1993 the emp loyer 1erminated the serv ices oi the applicant. Du ri ng the course oi these proceedi ngs the applicant h as endeavoured to demonstrate that the employers actions we re harsh, unjust and unf ai r. Med i ca l practition ers visited by the ap plicant for the purpose of addressing speci fic ai lm en1s an d co ndi tions were called as w it nesse s as were spec ialists and expens in particu lar fiel ds of medicine that are relevant to the ap plicants state of health. The fact that th e appl icant suffers from a .nu mb er of ailmen ts or medical conditions is hardly conteste d however the rel eva nce of each 10 the instan t mat ter was pursued by the advocates for both the applicant an d the respondent. The respondent ca l led six w i tnesses, five or the employees who were presen t at the meeti ng on 15 October an d Br Harney, the Coll ege p rinc i pa l. For the purpose of report ing this matter I prop ose to dea l wi th the testimony of Br Harney as the decision to di sp ense with the app li cants servi ces w as m ad e by h im follow ing the investigations previously reported. The evidence given by the other w i tnesses for the res pondent w ill fol l ow . The repo rt s that fol low are not i ntended to describe i n deta il al l oi 1h e ev idence adduced from each of the w i tnesses, rather it is my i nt en ti on to cover th os e po ints th at have infl uenced my decision. Br Harney's evidence in chief can be briefly descri b ed as fol lows. On the evening of Frid ay 15 Oc tober Mrs O 'Gorm an telephoned and reported the beh av iour of M r Culhane at the meeting an d detailed her version of that event, including his d om inance oi di scussi o ns, her en deavours to obtain his atten tio n and his red face. In pa rticu lar Br Harney in his affidavit duly sworn states at poi nt 4:- " Th ese events gave the ap pe arance to ,vl rs O 'Gorm an and the other wome n at the meeting that Mr Culhane was m astu rbating in front oi the women present. M rs O'Gorman explain ed ... "(Underl ining mine) And in poi nt 5:- . . tried no t 10 no ti ce. A number of these women had b een subjected to M r Culhane's agg ressive behaviour on a daily b as is an d had resorted l o different ways of co ping." The w ee kend interve n ed maki ng an immedia1e in vestigation difficult, however the matter was investi ga t ed on Monday 18 Oc tober Br Harney interviewed each of the women i n turn an d requested they wr i te down key poi n ts on th ei r recollection of events. Thi s was done and the w ritten sta temen ts were later tender ed as exhibit s. A t approxi mately 3. 15pm the same day M r Culh ane was interviewed. He reque sted th at th e staff union re presen tat i ve be present. M r Kennedy the school admini strator w ho recorded the minutes of 1h is intervi ew was also p resen t. Two of the sta tements provid ed by th ose previ ously in terviewed were read to M r Culh ane w ho was ag it ated although he deni ed that he had behaved in an offens ive m an ner. He al so suggested he was set up. Sr Harney made reference to other issues ra i sed by way of comp l ai n t. The other is sues occ ur r ed pr ior to 15 Octobe r. At po int 10 of th is w itn es ses affidavit the ioll ow ing is found:- "! decid ed that the si tuation of M r Cu lh ane comi nuing 10 work i n the li brary wou ld cause too much upset and emotional stress so I decided to suspend him on full pay pe nding further investigation. ". This was in fact done and a letter lo this effect was d el iver ed 10 M r Culh an e. M uch more was sa id by Sr Harn ey abou t M r Culhane, hi s alt itude and ce rt ain work related problems. However as w ill emerge later these i ssues do no t appear to be the reason why the applicant was di smi ssed . Contact was then m ade w ith the school's legal and i nd us tri al advi so r s. Sta temen ts were ta k en by the sc hool's legal advi so rs from al l of the affected staff (t he five women who were p res en t at the meeting) then a letler tran sm itt ed t hrough l ega l representa ti ves oi bo th parti es was fo rwarded to the applicant requesting hi m to sh ow cause for his behaviour. The fi nal paragraph of the l etter r eads as fo llow s''- " We are instructed to invi te you r c li ent to show ca use on or before 12 noon on Monday next 25 th instant why his employment aught not to be te rminated forth wi th on the b asis of his indecent conduct at che meeting referred to above." .(underli ning is min e) Br Ha rney cl aims that the explanati ons offered by Mr Culhane were entirely unsati sfactory. The reasons th at brought abo ut the dismi ssa l of M r Culhane were elaborated in cross-examination as the w i tness was question ed about the incident in the Informat ion Tec hno logy centre (the m ee ti ng). His (Br Harney) m aj or concern w as M r Culhane's harassmen t of women staff and sh ou ld the applicant have b een co nt inued in his empl oym ent or reinstated to his former position then a numb er of the iemaie staff ha ve resolved to r es i gn . Th e decision taken was the only one ava il ab le to ensure th e effici en t and co ntinuing operati on of the library. Furt her, Br Harney ex presses the view that up 10 the time of rece iving corresponden ce from Mr Culhane dated 12 November, 1993 (exhib it 30) th at every endeavour had b ee n made 10 find a r eso lution to the problem. Br Harney al so ackn ow led ged the terms used i n the statements provi ded by the i ive persons who were presen t al the meeti ng which r an ge from - "he appeared to be - perceived was, to did not believe he (the app li can t) w as m asturbatin g" . Then there 1s at page s 220 and 22 1 1he witnesses views on what co nstiluies th e act of masturbation . The eviden ce of Mrs. O ' Go rman is for relevan t p urposes reported as follows. l. ll < li I l -- 1 of 3 -- 710 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [31 March, 1994 She is a school teacher by profession and has been employed at Nudgee College for approximately four years. In August 1993 she was appointed to the position of Director of Information Technology. Her previous responsibility was confined to computing matters. Mrs O'Gorman's account of the formal parts of the meeting are the same as those already reported, however her evidence is of importance to the instant matter from point 10 onwards in her affidavit where she observes that Mr Culhane had become quiet and observed that he had his groin pressed up hard against the central upright of the chair to the extent that:- "One could not help but observe the outline of what appeared to be his testicles on either side of the central upright through his shorts.". The witness states that Mr Culhane was moving his groin back and forth against the central upright, his face was red, he was perspiring and wiping his forehead with his hands and the applicant was observed rubbing his groin. An endeavour was made to distract him by asking if he would like a glass of water because it was hot in the room. A little later a further attempt was made to distract him and at this point the witness says his left hand was in contact with his groin and he was clearly rubbing himself. During this period Mrs O'Gorman says "he did not appear to be with us, there was no response to my overture to say something on the topic being discussed which was out of character.". Following the meeting Mrs O'Gorman reflected on what had happened and in her affidavit she states:- "Certainly, it was my impression that Barry Culhane was masturbating or seeking to stimulate himself, both on the chair back and with his hands.". The statement prepared for Br Harney by Mrs O'Gorman is in similar terms. Under cross-examination Mrs O'Gorman was questioned with respect to the agenda for the meeting and the interest Mr Culhane had on each item. Mrs O'Gorman would not accept that there was a difference between a "specific" and "general" interest on these agenda items as Mr Culhane was interested on all matters that relate to the library. However, it was acknowledged that Mr Culhane did in fact participate in items 1 to 8 although to a lesser degree in items 5,6 and 7 and only at the commencement of item 8. On the issue or reason for Mrs Jablonski leaving the meeting the witness says. that she remembers Mrs Jablonski leaving, she remembers her distress. When questioned on this observation the witness states at page 266:- "I can remember her Uablonski) looking towards Barry seeing how he was sitting, she looked back at me and sh~ got up and ran out.". Following on from this line of questioning the witness says that the incident was offensive not just the manner in which the applicant was sitting. On the issue of the applicant's testicles being observed on each side of the chairs central upright the witness says she saw shapes and assumed those shapes were in fact testicles, reference Page 273, lines 40-60, pai:;e 274 _lines 1--30. Further questions were pursued and the witness in response to suggestions of scrotum on one side, penis on_ the other maintains her position of shapes being observed and reJects the possibility of those shapes being clothing or something in the applicants pocket. The witness acknowledges that her observations were brief and when questioned on how brief her observations were the witness could not be specific but claims she looked over tv-'.o or three times. On each occasion she minimised having to observe the applicant by looking in some other direction fairly quickly. When questioned on reporting a previous incident the witness acknowledges that discussions on this subject had taken place, that Mr Culhane had apologised in the event that his actions were perceived to offend. Under these circumstances a formal complaint was not lodged. Then in the process of re-examination the following is stated at page 286:- "Mr Garske. Was it a consequence of that reflection that you then put a name or a tag on what it was you saw? That he was masturbating, yes. It was just a feeling that something was happening. He was rubbing himself, he was obviously away with the birds. The term 'masturbation' you know when I reflected on it, I thought he was masturbating, but at the time I didn't think this man was masturbating. In fact I would rather not say what I was thinking at the time.". Mrs Jablonski was the next witness and attested in similar terms to the others present with respect to agenda items etc. Then in so tar as the specific incident is concerned the witness says she only looked briefly because she was shocked and disgusted at what she saw and recalls the applicants groin against the upright on the chair. However, the witness states quite specifically:- "I was not able to make any real conclusion as to what he was doing.". The evidence of Mrs Green in her affidavit is such that she was not able to say exactly whether the applicants groin was hard against the upright of the chair. However, there was a significant degree ot movement and that it was her impression that the applicant was masturbating or seeking to sexually stimulate himself. In cross-examination Mrs Green became much more specific when she was being questioned by Mr Lawson on exactly what she saw. The witness states at page 310:- "I still say that what I saw, I believe I saw a man masturbating in front of me and I don't believe I was wrong.". The above statement was made very abruptly. Mrs Pugh and Mrs Ditchburn did not form any opinion on the issue of masturbation or sexual stimulation. . . Mr Culhane's evidence on the procedure of the meeting, tImIng, agenda etc., accords with what has been reported earlier. He acknowledges being requested to take a phone call and on return he did assume a position on the typists chair with his legs astride the upright. He accepts frequent movement occurred but denies that such movement was for the purpose of sexual stimulation or masturbation. The applicant accepts there is a possibility of being difficult to communicate with at some point in the meeting given that he suffers from hypoglycemia. The symptoms associated with this particular condition are such that a sufferer goes off to sleep or appears to be in a trance with little or no warning. This condition may have existed during the course of the meeting given his consumption of tonic water or Italian cola during the lunch break. In any event the applicant does not clearly recall this particular incident and for that matter attempts by Mrs O'Gorman to attract his attention. The applicant has attested to having a number of other medical conditions for which he _has sought treatment over a period of time. In particular he test1f1es that he Is impotent, he has been married and that his marriage has been annulled, he has attempted to consolidate a relation_ship with another woman and this attempt, whilst partially benef1c1al, did not__ last. The applicant also gave evidence with respect to spec1t1c treatment undertaken to overcome his impotence. The applicant clearly and precisely expresses his views on the relat1onsh1p between professional and non-professional staff to the extent that his bel1et Is such that matters affecting students should not be discussed between professionals in the presence of those not professionally qualified. _ It is not my intention to report on the expert medical evidence that has been adduced during these proceedings. However reference will be made to that evidence in my conclusions. CONCLUSION The reason for terminating the employment of Mr Culhane follows the complaint lodged against him by Mrs O'Gorman and the assertion that he was masturbating during the course of the meeting on 15 C)ctober 1993. The act of masturbation may not have been spec1f1cally suggested in what must now be accepted as the show cause letter. However, Br Harney's evidence in my 31 March, 1994] QUEENSLAND GOVERNMENT rNDUSTRIAL GAZETTE 711 opinion is clear to the extent he is of the view that the substance of Mrs O'Gorman's complaint was that the applicant masturbated at the meeting on 15 October 1993, and he seems to be of the opinion that the others present were of a similar view (refer point 4 of his affidavit). When questioned on the reason for dismissal Br Harney was specific to the extent that any previous incident did not influence his considerations. It was the actions of Mr Culhane during the course of that particular meeting that persuaded him to suspend and eventually dismiss Mr Culhane. It is my opinion that Br Harney was somewhat evasive when specific questions were put to him on what constitutes the act of masturbation. This is understandable. However, there appears to be an acceptance of the opinion of Mrs O'Gorman and Mrs Green that the applicant was at least sexually stimulating himself and therefore masturbation was taking place. Such a conclusion on the part of Br Harney has to be weighed together with the evidence of the complainant, Mrs O'Gorman and that of Mrs Green who cannot say and did not say:- "I saw Mr Culhane masturbate". Rather what has been said is that Mrs O'Gorman after the meeting concluded reflected on what had happened and came to the conclusion that the applicant was masturbating, and in Mrs Green's case she asserts that she knows what he (the applicant) was doing but can't say "I saw the act". Mrs Green can only say:- "I believe the actions were that of masturbation". Had these two witnesses been less definitive about their respective views it may well have resulted in Br Harney taking a more objective consideration of the complaint that was lodged, particularly when the witnesses Jablonski, Pugh and Ditchburn do not make the specific allegation of masturbation. In their statements they say they don't know what was going on. Additionally I have taken into consideration the uncontested evidence of Br Harney that when he interviewed Mr Culhane on 18 October he read to him two of the statements that were in his possession. In this regard I have wondered why he did not give the applicant all five of the statements in order to provide him with the complete picture of the reports in his possession. On the evidence given Br Harney only gave Mr Culhane selected information. It would be fair and reasonable to conclude Br Harney was well aware of the contents of the three other statements and in this regard should have proceeded with caution, rather he has pursued a course of action at that point where it might be said that Mr Culhane was denied natural justice. The evidence of Mrs O'Gorman and Mrs Green and their demeanour as witnesses leads me to the conclusion that they did not know what was going on but formed a view after the event and were endeavouring to persuade the tribunal to accept their view. Furthermore Mrs Green in the statement prepared for Br Harney and in her sworn statement says she "formed the opinion" and "it was my impression". These statements are similar. However her response to both Mr Lawson and a question posed by me was much more assertive as she says "I know what I saw". The assertiveness of this witness and the manner in which she responded to very reasonable questions gave me the impression that it would be wrong and unfair to rely on her testimony. Other statements or views expressed by the witnesses have also been considered, in particular the claim by Mrs O'Gorman that the applicant was pressed so hard against the upright on the chair that his testicles could be seen through his shorts, at least as shapes with one on either side of the upright. My own opinion on this assertion is that if what she says is correct then Mr Culhane would not be obtaining much pleasure, he would more likely be in some pain, as the upright is 60 mm wide. On this particular contention I am influenced by the evidence of Dr Cartmill, Urologist, Degree from the University of Queensland, MBBS and then Post Graduate Degree and Diploma of the Royal Australasian College of Surgeons and a Diploma from the Royal College of Surgeons of England, who when questioned on this topic says:- "Wel I for testicles to be either side of the bar the scrotum would have to be very relaxed because that's a reasonably wide bar. I mean look at it, it looks as if it'd be a couple of inches wide at least, is that right? Mmm? Well, for a testes to drop on either side of that, that means it'd have to be a very relaxed scrotum and if you're masturbating that's highly unlikely".(Pages 101 and 102). The views expressed by Or Cartmill, a specialist in this field, are such that on the one hand if Mrs O'Gorman's version is correct that testicles were either side then her other views with respect to sexual stimulation or masturbation become extremely remote. A similar conclusion must be drawn on the suggestion that rubbing the groin is somehow or other related to the act of masturbation. If one is rubbing his groin then the rubbing is taking place in an area more towards the inside leg than being central to both legs. Mrs O'Gorman's evidence tends to suggest that the testicles were being rubbed. In this regard we must recall her evidence of immediately looking away and therefore it can hardly be said that she saw a number of rubbings then in any event I could only conclude that it would be highly improbable that a man would chose to masturbate by rubbing his testicles. I have also taken into consideration evidence from those present at the meeting that they found the applicants posture offensive and accept that it is their honest opinion together with the fact that some of the witnesses for the respondent claim that Mr Culhane is difficult to get along with while one clearly states she does not like Mr Culhane. These views are understandable as I formed the impression from the applicant when he gave his evidence that he would be a difficult person to work with as he could be domineering and stubborn. This is reflected in the view he holds about the status of professionals not discussing matters even with other professionals in the presence of those regarded as non- professionals, and there is the subject of sharing facilities such as staff rooms which Mr Culhane objects to. This latter issue was the subject of much discussion at the meeting on 15 October. Mr Culhane's attitude on this matter does not fit with contemporary human and industrial relations views. Having expressed those views I would strongly recommend that Mr Culhane be counselled on these matters in clear and precise terms and that he be given the opportunity to address this apparent weakness in his personality. Counselling as suggested above would in my opinion be appropriate. Anything stronger would not be warranted as there is no evidence to support the contention of Br Harney that the applicant harassed employees on a regular or daily basis. The matter before me is not about getting on with people or being inefficient. It is not even about sitting in a position that was offensive to the females who were present, it is an issue about a complaint that was made and irrespective of the words that may have been used in the show cause letter the evidence of Br Harney and others for the respondent made it clear that the applicants conduct was such that he was masturbating. I have come to the view expressed in the preceding paragraph based on the evidence of Br Harney and have taken into consideration what was said, the circumstances that a witness endures under cross-examination, the caution I gave the witness, his subsequent testimony when examined by Mr Garske and the views expressed when he was cross-examined again by Mr Lawson. In this regard Br Harney gave me the clearest of possible views that it was the incident of 15 October that led to the applicants dismissal. On the evidence I have had to consider and the information of medical experts I came to the conclusion that the applicant was in all probability not masturbating as alleged. Furthermore, given one of his medical conditions, that of impotence, it is highly unlikely he was seeking to sexually stimulate himself.This conclusion is supported by the evidence of Dr Cartmill. In any event he was in an environment where he was agitated as a result of decisions made earlier in the meeting and he was with people who had expressed their animosity towards him on previous occasions. The allegations made against the applicant must be regarded as serious and in this regard I have been persuaded to my conclusion by a submission made on his behalf when I was referred to the matter of Brigenshaw vs Brigenshaw (1938) 60 CLR 336 per Dixon J at 361 and 362:- must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of -- 2 of 3 -- 7 12 QUEENS LA ND GOVERNMENT INDUSTRIAL GAZETTE 13 I March, 1994 the fact or facts to be proved. The seriousn ess of an al l ega ti on made, the inherent unlikeli hood of an occurrence of a given descri p ti on, or the gra vi ty of the consequences fl ow i ng from a particular finding are consideration s which must affect the answer to the question w hether the i ssue h as been proved to the reasonabl e sat isfaction of th e trib unal. In such matters 'reasonab le satisfaction ' should not be produced by inexact proofs, indeiini te tes timony, or in direct inferen ce s. Ev eryone must feel that, when, for instance, the iss ue is on wh ich of t wo dates an ad mitted occurrence took place, a sa ti sfactory co nclusion may be r eac hed on materi als oi a kind that wou ld no t sati sfy any sound and prudent judgmenl if the question w as whe th er some act had been done i nvo lving grave moral deliquency.". As sa id pr ev iously the al legat ion is of a ser ious nature. However, I am persuaded on the evidence be fore me that it is highly imp robable that the app li can t was masturba ting. At the very l eas t an d gi ven the environment it was unlikely that such actio ns were being indul ged in by the applicant as the evidence given is not preci se, i t is somewhat vague and in that re ga rd I am not sat isfied that the al l ega tio ns made against the applican t can be sustained.(Refer M .W. Davis v Cas tl emaine Perkins Limited QG IG No 7 Vo l 137 pages 138- 141). In givi ng my decision from the Be nch on 17 February 1994, I took the un usua l step oi ordering reinstatement from a prospective date . This course was consider ed to be appr opri ate gi ven that the al legations made aga inst the appli ca nt are serio us and the poss i bi lity that the accusers may have d ifficulty in accep ti ng my find ings. The w itnesses involved have been ack n ow ledged by represen tati ves /or Mr Culhane that they were honest but mistak en . I accept th at view an d it is under th ese circumstances that I considered thei r po si tion. I have not ignored the evidence that sugges ts they wo uld res ign if the applican t is reinstated. I considered that prospect and the subsequent di lemma that might emerge. It was io r t hese reasons that a period of time should be a llo wed so that the employer and employees i nvo lved in this matter cou ld re flect on the events an d where considered n ecessa ry appropri at e counselling co uld be provided. D uri ng the cou r se of these proceed i ngs I advi sed the parti es I wo uld not be influenced by th e suggestion oi possible resignations. Th is advice was no t given on the belief or view tha1 the respondent was endeavouring lo im properly ini luence the Commi ss ion. The advice was given to in form the parti es that the all egations made agai n st M r Culhane would not be influenced by res i gn ations, the all egations wou ld be dea lt w ith on meri t. It is accepted t ha t Ind ustrial tribunals need to be realistic and th e decisions made by them should consider iutu re consequen ces. However, i n this matter h ad I been influenced by the sugges tion of r es i gna tions and not decided l o reinstate th e app li cant but cons ider another form of ap pr op ri ate reliei, I would have been bound to consider the pr ov ision s of sect i on 175 (c) of the Ac t. Be ing awa re of those provisions I was of the op i nion that the lim i ta1 ions prov ided by those provisio ns were not appropria:e in these circumstances. In my opi nion reinstatemem was the only reasonab le option. Given the gravity of the al legati on s again st Mr Culhane, had I not decided to reinstate the applicant I may we ll have taken a course t ha t perpetuat ed an action by the employer I iound to be w rong. The order is sued from the Bench on 17 February an d edited by me is as fol lows :- • "In accordan ce w it h the provi sions of section 175(2) that Barry James Culhane be rei nstated to his former pos ition ot teacher/l i br ari an at St. Josep h's Col lege, San dgate Road from Monday 28 Marc h. Fu rther Order that the applican t be pa id for all en titlements from the date of his di sm is sal to the da te of his reinsta tement.". Order accordingly H. DEMPSEY, Commi ss i oner. Appearances :- Mr J. Lawson (instructed by Peter Channell an d Associa tes ) for the applican t. Mr . P. Garske for the Q u een_sl an d Coni ed eration oi Industry L;m,ted, Un ,on of Emp loye rs, (instructed bv Me ss rs Thyn ne an d Macartney) for St. Josep h' s College. • Operative Date : ,~ /A Deci si on - Reinstatement Re l eased: 22 Ma rc h 1994 ############################ ### ##################### 3 1 March, J994J QUEENSL AN D GOVERNMENT INDUSTRIAL GAZETfE 713 li -- 3 of 3 --