C2002/1470, Transcript of Proceedings [2002] AIRCTrans 1178 (9 April 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT03123
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE GIUDICE, President

C2002/1470

APPEAL UNDER SECTION 45 OF THE ACT
BY PHILIP MORRIS LIMITED AND ANOTHER
AGAINST THE DECISION AND ORDER OF
COMMISSIONER SIMMONDS AT MELBOURNE ON
13 MARCH 2002 IN U2001/3551 RE STAY
ORDER

MELBOURNE

9.04 AM, FRIDAY, 22 MARCH 2002

PN1

MS F. O'BRIEN: I appear on behalf of the appellant, Philip Morris.

PN2

MR P. HOLDING: I seek leave to appear for Mr Harrington. With me is MS S. USTINOWSKI from the AWU.

PN3

JUSTICE GIUDICE: Ms O'Brien, the order in this matter requires calculation in order to derive the amounts that might be due under the order; has that been done, do you know?

PN4

MS O'BRIEN: No, it has not, sir.

PN5

JUSTICE GIUDICE: Yes, all right.

PN6

MS O'BRIEN: It would be a considerable amount. Your Honour, I am sure the principles that are relevant to the making of this application are well-known to you. Of course an applicant for a stay, as is my client in the case, is required to establish an arguable case, and that the public interest should grant leave for that matter to proceed, and then of course the balance of convenience is a matter that you need to consider. In relation to the question of the arguable case, I propose to address a couple of issues in the statement - in the notice of appeal. I have prepared an amended notice of appeal and added two additional matters and a copy of that document is coming across for you to have a look at, along with my learned friend.

PN7

One of those points goes to whether the Commissioner - or asserts that the Commissioner failed to take into account the appropriateness of reinstatement when looking at the question of reinstatement, and the second matter pertains to a matter which has just temporarily gone out of my mind, but when the document comes over I will take you to it. But in the context of how the case is put on the appeal as to the merits, the first and short point is that the Commissioner failed to apply the standard of proof on the balance of probabilities.

PN8

JUSTICE GIUDICE: Where does that appear? I have read the decision, Ms O'Brien. I cannot say I have read much else.

PN9

MS O'BRIEN: No, I appreciate that, your Honour. At paragraph 34, while I do not think the Commissioner ever refers to the standard of proof being the basis on which he must make his findings and judgments.

PN10

JUSTICE GIUDICE: Yes.

PN11

MS O'BRIEN: However, he does, at paragraph 34, in referring to Mr Harrington's evidence - Mr Harrington was the applicant in this matter:

PN12

I do not find Mr Harrington's denial of accessing inappropriate sites to be a mere denial. His explanation of how others may have accessed them under his LAN ID are not inherently implausible, and in view of the other poor security -

PN13

etcetera. He uses this inherently implausible test there. He also uses it in paragraph 35, again referring to Mr Harrington's evidence, and describes it in the middle of paragraph 35:

PN14

His explanation for that is inherently plausible.

PN15

He then, at paragraph 37, in discussing the evidence of Mr Harrington, says:

PN16

In this situation, I must weigh up the circumstantial evidence, the matters that may give rise to an inference that could bring into doubt Mr Harrington's evidence.

PN17

And then he states what he thinks could be bring into doubt Mr Harrington's evidence. Now, what we say is that those - the use of those phrases indicates that - or suggests that the Commissioner misunderstood how he was supposed to approach the test of satisfying himself, that test being the balance of probabilities.

PN18

JUSTICE GIUDICE: But if there is a contest on the evidence as to a fact in issue, isn't it relevant to - a process of assessing the evidence, to say whether a particular version is more or less plausible than another? Inherently plausible, if you analyse the words, I suppose, with a very close magnifying glass, you might say perhaps inherently plausible or inherently implausible might be slightly unusual concepts, but it did not seem to me, I must say, on reading those paragraphs, that the Commissioner was doing other than saying, well, there are - there is a plausibility about the story, taking into account all of the - - -

PN19

MS O'BRIEN: Well, I would not have had any difficulty with that, if at some point or other, the Commissioner had come to the position of saying, well, on the standard to which I am obliged to formulate my views, I accept, on the balance of probabilities, that this is - that this fact over that fact - but he never does that. He never actually says. So in approaching was he has got to do, even if you could not say that using inherent implausibility or inherent plausibility, was not the standard he was using in arriving at the ultimate test. He never actually says what the test is that he does use.

PN20

And where he talks about matters being brought into doubt, at paragraph 37 - - -

PN21

JUSTICE GIUDICE: Was there any issue before the Commissioner as to what the correct onus was?

PN22

MS O'BRIEN: No. It was not canvassed, the assumption, I suppose, being - I am sure my learned friend and I agree on this - but that there was not any argument. That was what the correct test was.

PN23

JUSTICE GIUDICE: Yes.

PN24

MS O'BRIEN: I would argue that there is fortification in that by the use of - in 37 where he talks about matters that could bring into doubt Mr Harrington's evidence, well, that is undoubtedly not the right way to proceed about the evidence that contradicted Mr Harrington's evidence. It appears not only to raise the onus for Mr Harrington; it appears to at least move the onus onto the respondent. The second point is the circumstantial evidence point. Now, the Commissioner sets out what I would submit to you is the correct approach to the circumstantial evidence; that is you must look at each fact and then decide, looking at all of the facts together, whether on the balance of probabilities the ultimate fact is made out.

PN25

But that is not the test that he uses. In fact he suggests that because Mr Harrington gave evidence on oath, that the circumstantial evidence, as he calls it, should not be preferred. In my respectful submission, that question of whether Mr Harrington gave evidence on oath of course is a part of the facts that he must assess to ultimately arrive at the conclusion; that is, did Mr Harrington access inappropriate material or not? And in my respectful submission, you cannot move the question of him giving evidence on oath out and give that some kind of special characteristic or weight that does not adhere to the other facts in the matter.

PN26

It is undoubtedly correct for him to have said, as he did, that he gave evidence on oath and that was a matter he was obviously entitled to take into account. But he had to take into account all the other evidence as well, and then arrive at, can I be satisfied that this access did occur or did not occur?

PN27

JUSTICE GIUDICE: Yes. And what do you rely on to support that?

PN28

MS O'BRIEN: That is at para 29. He says:

PN29

In spite of Ms O'Brien's submission that this is not a case based -

PN30

I am sorry, you have not got it yet.

PN31

JUSTICE GIUDICE: Some of these paragraphs seem to go for a long time,

PN32

MS O'BRIEN: Yes, this one is on page 21.

PN33

JUSTICE GIUDICE: Yes, thank you.

PN34

MS O'BRIEN:

PN35

In spite of Ms O'Brien's submission, this is not a case based solely on circumstantial evidence. In this matter ...(reads)... directly to the matter in question -

PN36

etcetera. Now, whether there was ever a submission that the case was solely on circumstantial evidence, leave that for the moment. But in my respectful submission, each of the elements of the facts going to the question of whether he accessed inappropriate sites, one of those critical aspects was the evidence that he gave on oath, undoubtedly, but also critical to that decision was the evidence that he had given to his employers in the four interviews that they had had with him. Now, all of that evidence has to be taken together for the ultimate decision to be made; that is whether he could have accepted on the balance of probabilities that there had been inappropriate access.

PN37

But he takes out the evidence on oath and says that is somehow different to all the other evidence and gives it a special quality, and pretends that it is not part of the circumstantial evidence. It is undoubtedly part of all of the facts that go up to the conclusion as to whether inappropriate access occurred. Fundamentally to this issue, of course, is that in the four interviews that were given by the applicant to the employer about these events, he gave a different version of events.

PN38

JUSTICE GIUDICE: Is it the case though that in this matter there was no proof, as it were, that ultimately it was a question of the weight or the credibility to be attached to the sworn evidence?

PN39

MS O'BRIEN: Undoubtedly it was a question - a major part of the evidence was about credibility; undoubtedly. But if you put into the equation evidence on oath, but fail - which is my next point - to put into the equation failures when you are given the first opportunity to advance the position you give on oath, that is a failure to address all of the evidence in a way which is satisfactory on ordinary principles. That is, you cannot simply say, well, someone gave evidence on oath, therefore I can simply ignore the evidence given on each of the other four occasions and say they are to outweigh the evidence on oath.

PN40

You must take all of those things together to arrive at the ultimate conclusion. And that is really my next point. What in fact happens is, of course, the first time it is ever suggested that Mr Harrington left the computer on with the Internet password on, such that someone else could come and use it, is in the witness box. But that completely plausible explanation is never raised at any of the first four interviews. So the - - -

PN41

JUSTICE GIUDICE: Well, I cannot resist saying that it is amazing how often taking the oath concentrates people's minds, and just as well.

PN42

JUSTICE GIUDICE: Concentrates their interest I think.

PN43

JUSTICE GIUDICE: Well, that may be so too. Yes, I follow the point. Yes, is there anything else you want to put in relation to that point?

PN44

MS O'BRIEN: Look, I really move to the next point, which is this failure to give - well, he fails to give weight to major parts of the evidence of the respondent. He does not deal with it at all. In fact he fails completely to deal with the evidence that the first time we hear that he has left the Internet open at his desk such as others could come and use it on his LAN ID is in the witness box. That is not even referred to in the material, and as the notice of appeal sets out at paragraph 1, there are other vital pieces of evidence which we say he just does not take into account at all.

PN45

And one of his major reasons, he asserts - that is the Commissioner asserts, I should say, for excusing Mr Harrington's evidence in the witness box is that he says that he was confused about certain evidence, and certain evidence not being put to him. Well, that is just flatly contradicted by the evidence of the respondent, and that element is not taken up at all. The next point is that he takes into - he says that Mr Harrington was being made an example of. He actually makes that finding, and that has obviously gone towards his view as to the veracity or otherwise of the valid reason, and yet there is simply no evidence that he was being made an example of.

PN46

There was evidence that nine people were dealt with and one of those was dismissed, as was Mr Harrington, but there is no evidence about on what basis, for what, and what penalties they received, what they did, or anything. So the suggestion that he was being made an example of just - in the evidence just is not there. There was also a critical piece of evidence; at the first interview, the applicant said that he had gone to Ad sites, innocent sites, and there was a dispute, as the Commissioner acknowledges at para - very early on in the material - there was a dispute between the parties about this Ad site. I will find that in a minute.

PN47

Yes, it is at paragraph 10 in the middle, at line 6 of paragraph 10:

PN48

There is a dispute about whether he agreed that he had unintentionally been to a site either games or pornography when visiting another Ad site, when something was linked to it, or had simply observed such links.

PN49

Critically here in the first interview he admits to going to Ad sites and says that he may - and it is disputed whether he said there were links going to pornography sites or merely that he observed links going to pornography sites.

PN50

JUSTICE GIUDICE: Sorry, what is an Ad site?

PN51

MS O'BRIEN: Apparently when you go onto the Internet, you can find sites which will take you to funny advertisements.

PN52

JUSTICE GIUDICE: Funny advertisements?

PN53

MS O'BRIEN: Supposedly funny advertisements, which are quite innocent and we accept that they are innocent. And at that first interview, the applicant asserted either that there had been links on these advertisement sites which were - innocent advertisement sites had links to pornography or else that he had observed these links.

PN54

JUSTICE GIUDICE: Yes, I see.

PN55

MS O'BRIEN: Now, there was evidence from my clients that the Ad sites that Mr Harrington had access had no such links, and that they were advertisement sites that you could properly allow your children to have access to. Now, that evidence is simply nowhere to be found in this decision. He refers - the Commissioner goes on and talks about this dispute and says he finds for the applicant in relation to that question; that is that he merely observed such links, but fails to address the evidence. Our evidence critically which goes to his credibility in a really fundamental way, at the first opportunity he tells what we say is a lie, and that is simply ignored, that evidence that there were no such link on those Ad sites.

PN56

And that, your Honour, we would say was symptomatic of the omissions from the evidence that the Commissioner - when the Commissioner wrote this judgment. He simply omits pieces of evidence that are advantageous to the respondent or disadvantageous to the applicant when he is assessing the evidence. He also - the applicant at first interview denied that he had accessed the Internet through his own LAN ID. So there are two systems. You go into the system on your own identification, but you cannot get onto the Internet without someone else's password, and he did not have a password.

PN57

But he denied at the first interview, first up, that he had used his own LAN ID and then used someone else's password; a major issue of credibility, because he admits in the witness box that he had gone into the Internet with his own LAN ID. That evidence is simply not in the judgment at all.

PN58

JUSTICE GIUDICE: I am sorry, I do not follow that.

PN59

MS O'BRIEN: There are two ways - to get into a computer, you have got to have your own password. To get into the Internet, he had to use somebody else's. What the - - -

PN60

JUSTICE GIUDICE: Well, there are different ways in which these systems can be configured, but I take it that he could use the company's local area network by simply logging on with his - - -

PN61

MS O'BRIEN: His own ID, yes.

PN62

JUSTICE GIUDICE: And did he have to put a password in for that?

PN63

MS O'BRIEN: His own, yes.

PN64

JUSTICE GIUDICE: Yes.

PN65

MS O'BRIEN: And that is what the evidence showed, that he had gone into the system on his own ID.

PN66

JUSTICE GIUDICE: Yes.

PN67

MS O'BRIEN: To get into the Internet, you have got to have a special password.

PN68

JUSTICE GIUDICE: Yes.

PN69

MS O'BRIEN: Which he had not been allocated but we acknowledge was available and he used.

PN70

JUSTICE GIUDICE: Yes.

PN71

MS O'BRIEN: Now, the evidence showed that his LAN ID had been used for that two step system, to get into the system and then the password was used to get onto the Internet. At the first interview he denied he had ever been - he denied he ever used his own LAN ID to move through that system to the Internet. That is not in the judgment. But of course he admits in evidence that in fact he had used his own LAN ID, he says only for innocent access. So that crucial piece of credibility evidence is just not there.

PN72

There are, I would submit, omissions in the failure of the Commissioner to draw inferences from certain facts, and there is certainly an omission, we say, to draw any adverse inference from certain facts which we would submit to you are very important inferences that should have been drawn, and inferences that should have been adverse inferences. One which is plain in the document - in the judgment of his Honour - I beg your pardon, the judgment of the Commissioner, is at page 3, and it is in paragraph 8. And you will see the table which the Commissioner has very - in a very orderly fashion set out, and the dates we say that access occurred and the name next to the date is the computer which we say the access occurred on.

PN73

There is no argument about that. But what is very interesting about this table is that the Commissioner marks those various words down on each of those three tables with an asterisk and some with a hash, and he says in the last line immediately before paragraph 9:

PN74

I am satisfied that the material on the sites marked hash and cross fit the description of inappropriate sites.

PN75

Now, the sites marked hash and cross were sites were sites which we were able to produce the evidence of what was actually viewed. But you will notice, for example, on 15 January table, the fourth site down, Porntrack, and then the sixth site down Sextracker Counter, and then the eighth site - yes, the sixth site, Sextracker Counter, and the same in 27 January, there is a number of plainly inappropriate sites not marked with either an asterisk, a cross or a hash.

PN76

One of the obvious inferences to be drawn from mere viewing of this site, without having to go in and prove the content of it, was that it was an inappropriate site. The mere name tells you; Porntrack tells you what that site is likely to contain. In my respectful submission, that is an inference the Commissioner simply did not make that he should have made. So what - the Commissioner confined himself solely to only the material which we could actually prove the content of, and yet clearly the name of the site is open to the inference that that was an inappropriate site.

PN77

So in my respectful submission there is an endeavour to minimise the seriousness of what was going on here. So, your Honour, we could not get all of - we could not get evidence of what these sites contained in every site. We could only get some back-up material, and critically my point is, an inference is open, if you have got Porntrack up on the records of a site having been accessed, it is an inference that Porntrack would contain inappropriate material. But that is not an inference the Commissioner saw fit to draw at all.

PN78

JUSTICE GIUDICE: These are sites, are they?

PN79

MS O'BRIEN: They are sites.

PN80

JUSTICE GIUDICE: They are not files?

PN81

MS O'BRIEN: They are sites, as I understand it.

PN82

JUSTICE GIUDICE: Yes.

[9.30am]

PN83

MS O'BRIEN: Then finally there was a critical issue about reinstatement. The Commissioner's decision - - -

PN84

JUSTICE GIUDICE: Ms O'Brien, can I ask you one question. There seems to be software available which provides a filter sort of material. Was that a matter of - - -

PN85

MS O'BRIEN: No, it wasn't, sir.

PN86

- - - discussion or evidence in the case?

PN87

MS O'BRIEN: No, it wasn't. It was not contested by us, it was agreed by us that security wasn't good but in my respectful submission that wasn't the point here. The point here was that the access to the innocent sites was so close in time to the access to the inappropriate sites that if Mr Harrington's explanation in the witness box that he had got up and left his desk and someone else - with the Internet open - and someone else had come along and used it inappropriately we would have heard that on the first occasion we spoke to him but we never did.

PN88

JUSTICE GIUDICE: No, I was - you may have misunderstood the point of my question which perhaps I didn't spell out. There is - there are programs which can be purchased which you can have fitted to the entire system.

PN89

MS O'BRIEN: Yes.

PN90

JUSTICE GIUDICE: So that access to these sites is simply blocked.

PN91

MS O'BRIEN: Yes. Look, I concede that that is undoubtedly probably the case but there was no evidence of that.

PN92

JUSTICE GIUDICE: No, that was my question, yes.

PN93

MS O'BRIEN: And I would certainly concede that that was certainly not in place at the workplace though we say that there was evidence that - and we say that - I beg your pardon - that the appellant says that Mr Harrington acknowledged that he understood the serious consequences should inappropriate sites be accessed.

PN94

JUSTICE GIUDICE: Yes, yes.

PN95

MS O'BRIEN: Though in the witness box he purported to say that he didn't understand termination was open. But no, that - I concede that wasn't discussed in the evidence and it wasn't in place at the site.

PN96

JUSTICE GIUDICE: Yes, I am sorry. You were talking about reinstatement.

PN97

MS O'BRIEN: Yes. Look, the critical - I think there are two elements here that are important and one goes to this question. During the - at the last interview between Mr Harrington and my client Mr Harrington produced a statutory declaration and it is exhibit 2. It is attachment MH4 to exhibit 2. And in that statutory declaration he says:

PN98

Ross Saccutelli, who was a fellow worker. made unacceptable and sexual advances towards Karen Ovenden at a function hosted by Amcor. Karen was concerned at the behaviour. She sought Roland Sacar to escort her to her vehicle.

PN99

JUSTICE GIUDICE: I am sorry. Where are you reading from?

PN100

MS O'BRIEN: I am reading from exhibit - attachment MH4 - - -

PN101

JUSTICE GIUDICE: Yes, I see.

PN102

MS O'BRIEN: - - - to exhibit 2.

PN103

JUSTICE GIUDICE: Thank you.

PN104

MS O'BRIEN: Yes:

PN105

I believe other Amcor employees in attendance at that function complained to their manager about Ross ...(reads)... much she and other directors earn as well as very personal details of Courtney's married life.

PN106

Now, there was that evidence about a fellow worker and in the witness box for the first time Mr Harrington says that when he on one occasion went into the system on his LAN ID and opens the Internet that he got up and walked out and left another person - and he named that person Darren Clark - in that room and he said it was his belief that it was Darren Clark who had accessed that inappropriate material. Darren Clark gave evidence and said that that was not the case.

PN107

And there was allegations - a second allegation - by Mr Harrington that when he was sacked the attendance by Mr Clark at his home on the evening he was sacked was because Mr Clark was endeavouring to discover whether he had in fact been reported on rather than, as Mr Clark put it in his evidence, that he was there because he was a friend. So what we have got is two major pieces of potential conflict between two fellow employees and in his decision the Commissioner actually says that the relationship with the workmates was a matter of some moment but nevertheless proceeds, without more, to reinstate.

PN108

Now, the arguable point about the reinstatement is whether the Commissioner ever looked at the appropriateness - and he doesn't refer to the word appropriateness when he is considering these matters of the reinstatement. He uses the word when he is looking at the question of whether damages is appropriate but doesn't use it in relation to the reinstatement. So that is the arguable point there. And we would say, of course, that the circumstances of this kind of evidence in this context raises a very significant question of appropriateness of reinstatement.

PN109

JUSTICE GIUDICE: Ms O'Brien, we really don't have - - -

PN110

MS O'BRIEN: Much time to be gassing on.

PN111

JUSTICE GIUDICE: Yes.

PN112

MS O'BRIEN: I beg your pardon. I will go to the point. The public interest points are obvious. The termination questions, in my respectful submission, are that - twofold. Termination matters are always a matter of public interest because the injustice of someone losing their job and an employer having to re-employ someone is a matter of significance. And secondly, the Full Bench's role in supervising these important quasi judicial matters is also important. That is the public interest issues. The balance of convenience I really address to you. I say that given the principles set out in Coal and Allied that there is no purpose in formulating generalisations about the balance of convenience.

PN113

The circumstances in this case clearly favour a stay on all issues particularly on the reinstatement. The publication of that material in the statutory declaration means the potential for conflict in this workplace is such that reinstatement should not - reinstatement should be stayed. The potential conflict that arises because of the evidence about Mr Clark for the same reason. The applicant returned to work on Monday despite requests by my client that he not do so and despite the serving of the notice of appeal on Monday. He worked Monday, Tuesday and Wednesday and he will not be returning until next Monday, Tuesday and Wednesday.

PN114

So in my respectful submission the fact that he returned to work despite our request that he not do so is of no moment in this issue. the fundamental question is that the peculiar circumstances are that the balance of convenience does not favour him being returned to the workplace on two grounds. One because of the potential conflict and two, because the prospects of the reinstatement remedy being granted if this appeal was to succeed, in my respectful submission, is pretty low. The other two points, of course, is that the balance of convenience - we say there is no hardship for Mr Harrington.

PN115

Mr Harrington had a business registered at the time he was terminated on 16 May 2001. He gave evidence of certain earnings, not a lot I certainly concede, certain earnings in that business but this is not a position where he is not earning anything. And secondly, we would say the very significant amount of time between the date of termination and the date when he may have to repay the moneys is such that even though there is no hardship it is not enough to him to give us any serious undertaking that he could repay what would probably be close to 30 to 40,000 dollars if he was to succeed.

PN116

So put shortly we say there is an arguable case on a number of grounds. The balance of convenience in these particularly special circumstances warrant a stay on all matters. There is no hardship. He couldn't repay the moneys despite there being no hardship but in any event however you want to approach this matter we say he should not be coming back into the workplace.

PN117

And if there was an undertaking prepared to be given in relation to the prospective payments so be it but that the orders, if they are to be made in that way, should only be made on the basis that they were in Coal and Allied - yes, that Commissioner O'Leary made in Coal and Allied, that they simply be payments rather than a return to the workplace. That is our alternative position. But we say the facts here don't warrant that in any event. In fact they clearly militate against that.

PN118

JUSTICE GIUDICE: Well, what undertakings is your client prepared to give in the event that a stay was granted?

PN119

MS O'BRIEN: Sir, we would certainly be happy to obviously to pay into account, an interest bearing account.

PN120

JUSTICE GIUDICE: What?

PN121

MS O'BRIEN: The back payment.

PN122

JUSTICE GIUDICE: To be ascertained?

PN123

MS O'BRIEN: To be ascertained. We say if you take the view that reinstatement is appropriate we would say we would pay those prospective payments into a interest bearing account.

PN124

JUSTICE GIUDICE: So that is salary?

PN125

MS O'BRIEN: Yes.

PN126

JUSTICE GIUDICE: From what date?

PN127

MS O'BRIEN: 13 March is the date of the orders. 13 March, your Honour, yes.

PN128

JUSTICE GIUDICE: Yes, thank you.

PN129

MR HOLDING: Your Honour, I wish, without wanting to be at all difficult, to have a copy of the amended notice of appeal before I address your Honour.

PN130

MS O'BRIEN: I am sorry. I beg your pardon. I didn't realise I had them but I do have them. They have just come.

PN131

JUSTICE GIUDICE: Mr Holding, you indicated to my chambers yesterday that you had a difficulty at 10 o'clock.

PN132

MR HOLDING: Not, it is at 10.15, sir.

PN133

JUSTICE GIUDICE: Yes.

PN134

MR HOLDING: If I can just indicate that we wanted to try and reschedule this for 8.30 but Ms O'Brien was not able to accommodate that request unfortunately.

PN135

JUSTICE GIUDICE: Well neither was I.

PN136

MR HOLDING: Neither were you. The situation is, sir, that SDP Williams - it is a mention before him. Mr Donellan has told me that he has been appraised of my position and so has the other side in that case and they are aware that there may be some delay to the commencement of it.

PN137

JUSTICE GIUDICE: Yes.

PN138

MR HOLDING: But I have a written outline of submissions, sir, that may mean that I am able to get through the material a little bit more quickly hopefully.

PN139

JUSTICE GIUDICE: Tell me, Mr Holding, what is your client's financial position at the moment?

PN140

MR HOLDING: Well, of course, he is working so he will be receiving a wage from that which is the primary position that I am going to submit to you you ought to maintain.

PN141

JUSTICE GIUDICE: What has the position been prior to this week?

PN142

MR HOLDING: He has a business as has been indicated by learned friend. He is deriving some income from that busineSS. Obviously it is only a fledgling business so the income is not great.

PN143

JUSTICE GIUDICE: Yes.

PN144

MR HOLDING: But I have a number of important matters that I wish to address you on in relation to that.

PN145

JUSTICE GIUDICE: No doubt. I am only asking you about the balance of - - -

PN146

MR HOLDING: Certainly. Because it may be, sir, that - depending on what I say to you - we may not need to consider that issue unless you have already formed the view about whether the appellant has an arguable case.

PN147

JUSTICE GIUDICE: Well, I have only heard from one side at this stage.

PN148

MR HOLDING: Yes, sir, that is what I mean.

PN149

JUSTICE GIUDICE: Well, you go on then, Mr Holding, if you want to do it your way.

PN150

MR HOLDING: Yes, sir. Your Honour, I will hand up the - my outline and provide one to my learned friend. I set out some of the principles of appeal, your Honour, which I am sure are well known to you and I have cited some extracts from some cases. In paragraph three - - -

PN151

JUSTICE GIUDICE: Mr Holding, perhaps if you could just give me a minute to read this.

PN152

MR HOLDING: Yes. Can I just indicate, sir, that in paragraph 21 of this document, I have indicated to the Commission that Mr Harrington is prepared to give an undertaking, and I apologise to the Commission that I overlooked seeking those instructions from him this morning and I don't envisage a problem about it, but I might need a short time to do that, sir. I apologise for that.

PN153

JUSTICE GIUDICE: Yes, thanks, Mr Holding.

PN154

MR HOLDING: Your Honour, the main points, as I have listed there in relation to arguable case is - and I would ask your Honour to kindly look at paragraph 40 to 42 of the decision, and there the Commissioner essentially indicates that even if he is wrong in relation to the weighing up process that in my submission he clearly does in paragraph 37 and 38 and I may come back to that, I start on this point that even if he is wrong in relation to that, there is no basis for the company accepting the allegation that he accessed inappropriate material.

PN155

Sorry, in paragraph 40, he says, even if he is wrong that there is no basis for accepting that Mr Harrington accessed inappropriate material, he doesn't believe that the allegations against Mr Harrington amount to a breach of the company's equal opportunity policy. This is because they don't establish a transmission of inappropriate material. Now, that question, sir, doesn't appear in the notice of appeal, and I would point out to your Honour that that question was a matter of quite some debate between my learned friend and the Commissioner.

PN156

JUSTICE GIUDICE: I am sorry, what question specifically?

PN157

MR HOLDING: The question of whether even if the allegations were true, that they would constitute a valid reason for termination. There was a - I don't like to say it, sir, but there was a discussion that was quite animated between the Commissioner and Ms O'Brien on that point.

[9.58am]

PN158

And because, you see, the only evidence, or the only allegations that were made were that Mr Harrington had accessed inappropriate material and looked at it by himself. There was no suggestion, sir, that he had transmitted it to anybody. There was no suggestion that anybody else had been harassed by it; eventually there wasn't. It started off there was a suggestion that you could have sexual harassment without a subject. I think in the end it was accepted that you couldn't. And there was an interesting and animated discussion between the Commissioner and Ms O'Brien about whether or not looking at the - simply looking at the material on the Internet would constitute a transmission and thereby breach the equal opportunity policy.

PN159

There was no evidence, I might say, that that policy had been - that had been brought to Mr Harrington's attention or that he had agreed to be bound by it or knew of it other than evidence about e-mails being sent to all of the employees in the company and some material being sent out there, the evidence about that was as the Commissioner finds that there were some 20 e-mails a day were received by employees. Now, the Commissioner relies in making this finding on a decision of her Honour Deputy President Drake, and whilst the main circumstances, sir, where the mere viewing of inappropriate material would constitute a valid reason or may do so, the decision of her Honour Deputy President Drake looks at the type of work place in which it has occurred.

PN160

In that case there was evidence of widespread - of this behaviour being widespread, and that was also the evidence in this case, the Commissioner finds, that there were - the respondent's witnesses admitted that they suspected that this practice was widespread. There was evidence before the Commission from Ms Ovenden that was unchallenged that Mr Saccutelli had not only looked at inappropriate materials but had described them to her while he was doing it, despite the fact that he was requested not to do so by her.

PN161

And that led into an argument that I put that there is no finding of - finding by the Commissioner in relation to disparate treatment of Mr Saccutelli and Mr Harrington. But I start from that point, sir.

PN162

JUSTICE GIUDICE: You appreciate, Mr Holding, that I am not deciding - - -

PN163

MR HOLDING: I do, I do understand that, sir.

PN164

JUSTICE GIUDICE: - - - this matter. It is a question of whether there is a sufficiently arguable case.

PN165

MR HOLDING: Well, there is a question of whether or not it was open to the Commissioner to make the finding that the allegations were not serious enough to provide a valid reason for the termination. In my respectful submission, sir, they clearly were open, and not only were they open, sir; those findings are not challenged on the notice of appeal.

PN166

So, if those findings are not challenged on the notice of appeal and it was open to the Commissioner to make those findings, it follows that there can be no arguable case that the Commissioner erred in relation to making the orders that he did, because even if they succeed in showing that all of these other matters were errors, they haven't in my respectful submission established an arguable case in relation to entirety of the reasons that the Commissioner relied upon to make the finding.

PN167

JUSTICE GIUDICE: Well, that was on the issue of valid reason.

PN168

MR HOLDING: On the issue of valid reason. Well, of course the other issue about the - he has I suppose although he doesn't specifically mention it, he has found that there was no valid reason obviously on two grounds. One is that he doesn't - that he found that Mr Harrington hadn't made the inappropriate accesses, but also if he was wrong in that, that the allegations even if they were true would not have constituted a valid reason.

PN169

JUSTICE GIUDICE: Yes.

PN170

MR HOLDING: Now, in relation to what my friend says about the appropriateness of reinstatement, Mr Harrington has returned to the work place, Mr Saccutelli has congratulated Ms Ustinowski on the win, Mr Saccutelli has stated to Ms Ustinowski that he has "shaken Harro's hand", Mr Harrington's hand. Mr Harrington confirms that and has stated to him that it was good to see him back. Mr Harrington has had a private meeting with Mr Clark, and I am instructed, sir, that Mr Clark - what my friend put to you, sir, was that Mr Harrington gave evidence that he believed that Mr Clark had accessed inappropriate material.

PN171

He never gave that evidence in the witness box, sir, never gave it. What he said was, he left Mr Clark - I have no doubt that that is what the employer told Mr Clark Mr Harrington had said, and my friend has repeated it here. Mr Harrington has spoken to Mr Clark, who by the way he doesn't work with, they are on different shifts, and has no reason to believe, nobody has said to him, including Mr Bignell, that they have a problem working with him, or that they are going to have a problem.

PN172

Now, I am unable to find a case, sir, that addresses on the question of stay orders where an employee has already returned to work. I must have searched 20 or 30 stay order cases. I can't find one. So, you are breaking new grounds in the consideration of this issue, and really, sir, to make a proper evaluation of it in terms of where the balance of convenience lies - I mean, I am giving evidence from the bar table, but maybe that is all we can do on an interlocutory-type matter.

PN173

That is the situation, sir, and the balance of convenience in my respectful submission favours Mr Harrington being able to continue to derive an income pending the outcome of this appeal. And it also means, of course, sir, that if the respondent ultimately fails in the appeal the amount of compensation that they have to pay will be reduced. So, the balance of convenience favours him being maintained in employment for that reason as well.

PN174

Now, in relation to my friend's submissions on - the thrust of her submissions goes to errors that she says the Commissioner has made in relation to ascertaining whether or not Mr Saccutelli made the inappropriate accesses. In my respectful submission, sir, she says that he ignored the initial explanations that Mr Harrington gave when first interviewed. At the hearing of this matter, sir, it came out and it was not denied by the respondent that Mr Harrington was not given any prior notice of the nature of the interview that was going to be conducted with him.

PN175

He was not told that it was an interview of a disciplinary nature. I don't know why employers do this, sir. Maybe they think that it is going to be a way of - - -

PN176

JUSTICE GIUDICE: Well, let us just stick to the facts of this case, Mr Holding.

PN177

MR HOLDING: Yes, sir. The facts are, sir, that at the first interview he - my friend has put it to you that the first time that Mr Harrington suggested that he had left his LAN ID on was in the witness box. What he was told by the respondent at the first interview, at the first interview he said, well, what if other people have used my LAN ID to make inappropriate accesses, and he was told, if it is your LAN ID it makes no difference. That is what he was told at the first interview.

PN178

I would ask my learned friend in reply to take you to the place in the evidence where she says that the applicant denied using his LAN ID to get on to the Internet. I would ask her to take you to that, sir, and I would ask her to take you to where that was put to the applicant in the witness box. In my respectful submission, sir, the Commissioner has decided this case with reference to the correct standard of proof, which is the balance of probability. My learned friend says that that was not canvassed in the discussion, what the relevant onus of proof was - in the hearing.

PN179

Well, that is frankly, sir, completely wrong, and Ms O'Brien tendered a case, a Supreme Court authority, about the appropriate way of dealing with circumstantial evidence. And that case mentioned that in a civil case it is still if it is circumstantial evidence still the balance of probability, even where there are criminal allegations involved, as was the situation in that case. It is quite correct for the Commissioner to describe the evidence against Mr Harrington as circumstantial evidence, not the evidence about the interviews where people gave evidence on oath, but the evidence of what is recorded on the hard drive in the temporary Internet files is circumstantial evidence.

PN180

Now, there is nothing wrong with that. I don't use circumstantial evidence in a pejorative way. It is reasonable on the basis of that circumstantial evidence for Mr Harrington to have to give his explanations in the witness box in relation to it or indeed in interviews. In my respectful submission, sir, the Commissioner has clearly in paragraphs 37 and 38 of his decision weighed up the relevant and important factors in terms of whether or not he would accept Mr Harrington's explanations.

PN181

He has set out the - I mean, one of the main factors that my friend relies upon is the disparity between what she says, and there is a disparity, some disparity - what Mr Harrington said when he was first interviewed and what he said in the witness box. In the last dot point in paragraph 37 the Commissioner has clearly taken that into account. He is changing the answers to the company's questions as a factor. And he balances that against the points that he says favour accepting his evidence. Now, one may disagree with that.

PN182

One may disagree with his analysis, and I have no doubt that the respondent does disagree with it, but the point is whether or not - firstly whether or not those findings there are open to him, and then secondly the other point that I made, that even if he has erred there, whether it is really arguable that he wouldn't have made the orders that he did. Then Ms O'Brien urges you to find that the Commissioner just ignored the statutory declaration that Mr Harrington gave.

PN183

Now, it may be that he hasn't mentioned it specifically, I am not certain, but he has said, as she points out, that it is some - the relationship with other workers is of some moment. But he makes a finding, and he says - what he did was agree with my submission that in relation to reinstatement Mr Harrington ought not be lumbered with Mr Saccutelli's sins. Now, where he says that he doesn't refer to it is true, all of the matters contained in the statutory declaration, but he is talking about what came out in the evidence about Mr Saccutelli's misconduct.

PN184

Now, it is a bit rich, in my respectful submission, sir, for the respondent to fail to call Mr Saccutelli to give evidence here, to say that what is in the statutory declaration is untrue, and to say if he felt that way that he didn't want to continue to work with Mr Harrington and then to come before you today and attempt to rely upon that in relation to these stay orders. In relation to Darren Clark's evidence, and again, Mr Harrington believes that he has repaired whatever damage might have been done to the relationship with Mr Clark as a result of the proceedings since his return to work, but in relation to Mr Clark's evidence the Commissioner does set out the reasons why he preferred Mr Harrington's account of why Mr Clark went to, or what was said by Mr Clark and to Mr Clark when he visited his house.

PN185

When he went, he had never visited his house before, he went from Cheltenham to Caulfield without ringing up, he brought his two-year-old child there. He said on oath that he wasn't on his way to anywhere else even though he had said that he just dropped in there. He didn't go the same night that Mr Harrington was dismissed as my friend has said to you; he went the next day. And the Commissioner has taken - and the other thing that was very important about Mr Clark's evidence and Mr Harrington's evidence for that matter was the advantage of course that the person in the first instance always has of seeing the person in the witness box and their demeanour and the way they react to cross-examination, and that was a particularly significant point in relation to Mr Clark's evidence.

PN186

Now, for my friend to get up and say, well, Mr Harrington has returned to the work place despite our request that he not do so, I mean, she is representing the employer, sir. They are the people that run their work place. Now, there was an order, it is true that Ms Ustinowski had to make some submissions in relation to that order to Ms Rush who is here, but she pointed out that the order said reinstatement forthwith, and upon that it was - they allowed Mr Harrington to return to work last Monday.

PN187

JUSTICE GIUDICE: Well, no doubt they thought they were legally required to.

PN188

MR HOLDING: Well, no doubt they did, sir.

PN189

JUSTICE GIUDICE: Yes.

PN190

MR HOLDING: As was pointed out to them by Ms Ustinowski. Just in relation to the undertaking in paragraph 21, if it is of any relevance to you, sir, I will just seek to check that with the client now; it shouldn't take long.

PN191

JUSTICE GIUDICE: 21, yes, well, there is no mention there of repayment of moneys, is there?

PN192

MR HOLDING: No. Well, the position is, sir, that if he is - what we are saying is that if he is allowed to stay in his employment pending the outcome of this appeal, then he will consent to the staying of the compensation.

PN193

JUSTICE GIUDICE: Yes, but what about the money that the company pay him in the meantime?

PN194

MR HOLDING: Well, the company hasn't paid him any money in the - what, from his earnings?

PN195

JUSTICE GIUDICE: Yes.

PN196

MR HOLDING: In employment? Well, sir, in my respectful submission he would be entitled to pay for the work that he performs.

PN197

JUSTICE GIUDICE: Yes, but if the company is ultimately successful then he should never have been reinstated and he should never have earned the money.

PN198

MR HOLDING: But surely he is entitled to be paid for - in exchange for his labour. I mean, I suppose that is the point that I make, that the status quo, if you like, is now that he has worked there is certainly that the employment relationship has been re-established, even if - you know, I contemplate the question of whether it is a new contract of employment given the continuity orders, but it would be in my respectful submission unjust enrichment for the company not to pay him for the work that he performs.

PN199

JUSTICE GIUDICE: If he works.

PN200

MR HOLDING: Pardon?

PN201

JUSTICE GIUDICE: If he works.

PN202

MR HOLDING: Yes.

PN203

JUSTICE GIUDICE: Yes.

PN204

MR HOLDING: Well, he is back at work, or has been. Those are my submissions, sir.

PN205

JUSTICE GIUDICE: Yes. Mr Holding, could I just ask you about the submission you make - just bear with me a moment. I thought I read in your submission, and I can't quickly pick it up again, a submission that the notice of appeal doesn't purport to appeal against the order.

PN206

MR HOLDING: Well, it doesn't, sir.

PN207

JUSTICE GIUDICE: Yes. But where is that in - - -

PN208

MR HOLDING: It is incompetent.

PN209

JUSTICE GIUDICE: Where is that in your - - -

PN210

MR HOLDING: It is in paragraph 3.

PN211

JUSTICE GIUDICE: Yes. Thank you. Yes. Mr Holding, I am conscious of the fact that there are probably other people waiting for you, and it may be that there is a bit more to be said in this case.

PN212

MR HOLDING: I am available later today. I can't speak for my learned friend, of course, but I don't think the matter before SDP Williams is going to take very long.

PN213

JUSTICE GIUDICE: Yes. When you say, not very long, do you have any idea?

PN214

MR HOLDING: I would be very surprised if it went for more than an hour. Probably half an hour.

PN215

JUSTICE GIUDICE: Ms O'Brien, I am contemplating adjourning now and resuming later in the morning when Mr Harrington is free of the other commitment.

PN216

MR HOLDING: Mr Holding.

PN217

JUSTICE GIUDICE: I am sorry; Mr Holding. Will it inconvenience you - - -

PN218

MS O'BRIEN: No, not at all, your Honour.

PN219

JUSTICE GIUDICE: - - - if some arrangements can be made to contact you, or - - -

PN220

MS O'BRIEN: Yes, of course.

PN221

JUSTICE GIUDICE: Well, I think we will leave it on that basis, and Mr Holding, perhaps if you could let my chambers know when you are free and can discuss then with my associate what would be a convenient time to resume.

PN222

MR HOLDING: If your Honour pleases.

PN223

JUSTICE GIUDICE: I am sorry about that, but I think in the circumstances it is probably the way to inconvenience the smallest number of people. Yes. I will adjourn till a time later this morning.

SHORT ADJOURNMENT [10.20am]

RESUMED [11.45am]

PN224

MR HOLDING: I would like to thank the Commission for its indulgence in relation to the other matter.

PN225

JUSTICE GIUDICE: That is all right, Mr Holding. Ms O'Brien. Ms O'Brien.

PN226

MS O'BRIEN: I beg your pardon, your Honour. Your Honour, just two or three points I want to make. First is there is no status quo. I think you have indicated your view, but in my respectful submission, even if that is an issue, and I would suggest to you that it is not, on the recent authorities. Someone going back into the position in an abeyance of a lawful order does not create the status quo.

PN227

Secondly, my learned friend has rightly pointed, I think, to some deficiencies in the notice of appeal. I have amended the notice of appeal in the interim, in addition to the amendments I made when I began. I would simply say to you that this was drafted very hurriedly in circumstances where its issue was obviously of considerable importance to my client, because of the failure on Friday to get the permission of - or for Mr Harrington and his legal advisers to accept that there was going to be an appeal.

PN228

You will notice the amendments so that the notice refers specifically to the orders of the Commission, and I acknowledge quite correctly from my learned friend that that was a technical omission which can leave the document inadequately drafted. And I have also added, as you can see, number 1, just the simple and obvious point that the finding in relation to valid reason for dismissal, in that the Commissioner erred, and I have added series of - at 14, 15 , 16 and 17, and 18, a series of additional grounds which address the grounds that my learned friend has referred to.

PN229

I concede they are important points, but we say there is a proper argument, an arguable case about all of those points, in particular the equal opportunity policy. It was suggested that the equal opportunity policy was somehow the law, and because there wasn't a strict breach of that law, it wasn't a breach of the policy, but it doesn't matter now. We say that it was unreasonable to find that it wasn't. And it was also unreasonable to find that transmission in the policy did not include taking material off the Internet and having a look at it.

PN230

And the other proper basis which my learned friend quite rightly points out was the assertion by the Commissioner that the sacking was out of proportion to the offence. And we would say simply that the evidence on the nature of the inappropriate access is not only in fact but in law, made it an appellable error. We say that the suggested evidence of Ms Ustinowski from the bar table shouldn't be taken into account by you, but even it was, we say that is not indication of what the following days might hold in all the circumstances here.

PN231

And finally I would say, of course, there has been no undertaking as to repayment, which in Coal and Allied, you assert to be a critical aspect in why reinstatement should not be granted.

PN232

MR HOLDING: If I could respond to those points, sir?

PN233

JUSTICE GIUDICE: Yes.

PN234

MR HOLDING: They raise some new material. Commissioner, I spoke with Mr Kennedy, my learned friend's instructing solicitor about these very points a couple of days ago. They were such - further the points were, if you look at the transcript, were debated in such a memorable way between my learned friend and Commissioner Simmonds at the time, that I find it extraordinary that these amendments - that these matters were not included in the original notice of appeal.

PN235

And I think that the Commission could infer that what they are is an attempt to now save what is essentially a desperate situation by putting in there matters that really there is no arguable case in respect of simply to try and obtain stay orders that ought not, in my submission, be granted. There is no appeal still - I note the paragraph 1, which I assume is just a typographical error, that the Commission erred in finding that there was a valid reason for dismissal. He didn't make that finding. He found there was no valid reason for dismissal.

PN236

I am happy to accept that that is a typographical error. But there is still appeal in relation to his finding, his very important finding, in my respectful submission, that this workplace was on all fours with the workplace that her Honour Senior deputy President Drake was dealing with in the decision where she found that a person who had downloaded - there is no downloading in this case - downloaded from the Internet material and saved it on his computer, that that did not constitute a valid reason for the dismissal because of the workplace environment.

PN237

Now in this case the applicant has not taken material off the Internet to look at it. That is not - if - I take it what my learned friend means by that is not what you could understand her to mean, which is that he has copied it. What he has done, on their allegation - he denies - is that he has looked at it on the video monitor. Hasn't downloaded it. Hasn't saved it. And the Commissioner also made a finding that - the Commissioner found that even if those allegations were true, in the context of this workplace environment, the evidence about it, including the evidence in relation to Mr Saccutelli and his activities, the admission by the respondent, that they suspected that - what Mr - from memory Mr Bignell said that he suspected that other employees had looked at pornographic material on the Internet, quite a number, and that their material had been deleted.

PN238

That is from the hard drive. Mr Godeassi, for the company, put it higher than that. He didn't only suspect it. His answer, when I put it to him, that this was occurring was, probably. So the evidence about the wide spread accessing of this material in the workplace is really unchallenged. And the evidence about the lack of security also in relation to people using other people's ID log-ins, and other people's - to access the Internet was also unchallenged. And that finding was not challenged in the evidence, and it is not really challenged in this notice of appeal.

PN239

So in my respectful submission, even with the amendments, belated as they are, the appeal still falls short, because it still does not challenge all of the relevant findings that in and of themselves, the Commission should not have any doubt or sufficient doubt - there is no sufficient attendant upon this decision - that the Commissioner would not have made the orders that he did, when one looks at the notice of appeal, and looks at what the grounds of appeal are.

PN240

And I think you can give weight to the fact that - the decision that his Honour relied on in the Telstra case, the decision of Deputy President Drake, is a decision of a presidential member of the tribunal, although I know that they get overturned occasionally too.

PN241

JUSTICE GIUDICE: Well, I think, more relevantly many of these decisions turn on their facts. It can be a mistake to put too much weight on decisions in similar cases, but I see the force of what you are putting, that there was a high degree of similarity in some of the facts, yes.

PN242

MR HOLDING: Yes. And then the problem was, and the evidence before him, which again was unchallenged, there was really evidence of conduct by another employee that on any view of it, it was worse than the conduct that was alleged against the applicant. Because he not only looked at the material, he described what he was looking at to another employee after she had requested him not to.

PN243

Now on the point about the transmission, I suppose that - and which is now appealed - as in before and whether - what the meaning of the word, transmission, in the equal opportunity policy means, it is arguable, I suppose, that one transmits material simply by turning on the TV, turning on the radio. And on a very literal interpretation of that word, it would be said that the applicant had transmitted the material if he looked at the pornographic material as alleged.

PN244

But in my respectful submission, sir, that is not the way most people interpret, transmission. What they think about transmission meaning is sending it to other people. And it was clearly open to the Commissioner to take that interpretation of what the word in the policy meant. In addition to that, sir, can I just point to exhibit number 11 in the respondent's exhibits. These were documents that were requested of the respondent. Now I have to say that - preface this by saying that when I did request them, my learned friend indicated that she thought that some of the material was irrelevant and that we were going to then talk about that later. It was remiss of me not to then talk to her about it.

PN245

But she did acknowledge that some of the material that was requested was relevant. I couldn't remember now exactly the numbers that she said were relevant, and weren't relevant. But one of the things that we did ask for was the documentation - I will find it here for you. Paragraph 3:

PN246

A copy of any document employers of the respondent are required to sign before being granted local area network access.

PN247

And, yes, and in then in paragraph 8, and I did call for the production of this document at the time:

PN248

Any document signed by Mr Harrington that he had read and understood Internet policies.

PN249

Because the evidence of the respondent was that when people are given access to the Internet and indeed to the internal area network, that they have to sign a document saying they understand the policy. Now, none of that was ever produced. And the respondent relied upon materials that had been distributed generally in the workplace mainly through e-mails, and there was no contest about the number of e-mails that went to - that employees received, which was a large number, and it was clearly, in my submission, open to the Commissioner to find that under those circumstances it would be unfair to burden Mr Harrington with a policy that he had never been informed of.

PN250

And that are plenty of decisions of the Commission that - I mean nobody was saying that - nobody was suggesting that - I mean Mr Harrington admitted in his evidence that he knew that - to the effect that he knew that access in pornographic material in the workplace was wrong; he admitted that. And it is commonsense, you don't need a policy. But what was being alleged, and it shifted - the case shifted - what was being alleged was initially that it was sexually harassment - that it was sexual harassment.

PN251

That is why I put all of the law on sexual harassment to the respondent's witnesses and they finally admitted that he hadn't done any of those things. It then moved from being sexual harassment to being a breach of this policy. And then moved again to being activity of a potentially sexually harassing nature, even though, on any view that to access those matters on the hard drive, if you accessed the record, first of all somebody would have to find them, and secondly, somebody would have to presumably breach the Internet policy which provides that you can't access material from the Internet, other than for business purposes in order to be sexually harassed by it. I mean, it just became absurd.

PN252

The other thing that you need to understand, your Honour, about this case is that it also moved in another very important way. That it started off, my learned friend made it very clear, from the outset, that what the case against Mr Harrington was, was that he had accessed inappropriate material, and that that was the reason why the respondent had chosen to dismiss him as opposed to merely warning numerous other employees that had breached the Internet policy.

PN253

And in contrast to suspecting that many of those other employees had viewed pornographic material. In other words, they had the goods on Mr Harrington because they had these hard drive records. Now, it moved from that, sir, to a position whereby Mr Godeassi gave evidence that - well, the two managerial witnesses gave different evidence. Mr Bignell gave evidence that Mr Saccutelli had denied everything in relation to inappropriate Internet access.

PN254

Mr Godeassi gave evidence that Mr Saccutelli had confessed to doing it, and that that was the reason why Mr Saccutelli wasn't dismissed. And that Mr Harrington had never confess and that therefore he was dismissed. So the case moved during the running of it. And based on that, sir, it was certainly open to the Commissioner to find that in the context of this workplace and in the context of what other people were doing, that it wasn't valid for the employer to dismiss the applicant, now the respondent, even if he had have done what was alleged.

PN255

Now, in relation to the fact that there was another employee who was dismissed, the respondent now seeks to make something - the appellant now seeks to make something out of that. I can't recall whether that evidence was given. I certainly remember my learned friend making a submission about it, but it is not really contested that somebody else was dismissed. But we don't know why, we don't know - there was no evidence about whether or not this person had accessed child pornography or committed something that might be an illegality.

PN256

There was no evidence about whether they had reams of it. Or if it was one access or two accesses or what, or whether that person had previously been warned for that misconduct, or other misconduct, what the length of service of that person was. There was simply no evidence produced by the respondent, even though they had been asked to produce documentation that could have resulted in that evidence being before the Commission, because they were asked to present documents of all of the interviews of employees that were interviewed in relation to this inappropriate access and misuse of the Internet, and they declined to do so.

PN257

And so there was nothing before the Commissioner that would enable him to make any proper assessment of any comparison of how Mr Harrington was treated in comparison with that other employee, who was dismissed. And that was - the respondent chose to conduct the case in that way. And now they want to bring as one of the grounds of the appeal, that the Commissioner failed to take into account that another employee was dismissed. If the Commission pleases.

PN258

JUSTICE GIUDICE: I take it, Ms O'Brien, that you are seeking leave to amend the notice of appeal?

PN259

MS O'BRIEN: Look, I do apologise to your Honour, yes, I am seeking leave to amend the notice as set in the form dated 22 March.

PN260

JUSTICE GIUDICE: Yes. Mr Holding, I am inclined to grant that application, but I will hear from you further on it, if you wish.

PN261

MR HOLDING: Well, the main things that I would say about it, sir, is this. That I spoke to - - -

PN262

JUSTICE GIUDICE: Just a moment - can I just complete what I was going to say before I - - -

PN263

MR HOLDING: Yes, sorry, I thought you had finished, sir.

PN264

JUSTICE GIUDICE: Yes. The first thing is that the time for lodgement of an appeal probably hasn't expired which - hasn't expired - which means that a fresh appeal could in any event be lodged. The second thing is that there may be an argument that the matters that go to substantive grounds of appeal might all properly be the subject of argument before a full bench that is going to hear the matter, rather than before me.

PN265

But I think that the amendment which seeks to challenge the orders directly is probably in a different category, because it seems to me to be clear enough that your client is not prejudiced by that amendment, given that it is quite clear from the application that I am dealing with today that a stay of the orders was sought. But in any event, with those comments I will hear anything you want to say about the way in which I should deal with the application.

PN266

MR HOLDING: Well, the main thing that I want to say is this, that I have already said that I did discuss it a couple days of ago with Mr Kennedy, these points, but the - because they were not there, I focussed my work, and I've done a fair bit of preparation - - -

PN267

JUSTICE GIUDICE: Yes.

PN268

MR HOLDING: - - - for the appeal. I focussed my work on those points.

PN269

JUSTICE GIUDICE: Yes.

PN270

MR HOLDING: So I didn't focus on all of the - on the detail, if you like, of all of the matters that are set out in paragraph 7.

PN271

JUSTICE GIUDICE: Yes.

PN272

MR HOLDING: And I haven't gone back and I haven't checked whether or not those points are correct, because I didn't see that there would be a need to because I thought well, this is just a blatant omission that they haven't challenged reasons that the Commissioner clearly relied upon in making the orders, and that I didn't think that I would need to. So from that point of view, I have been prejudiced somewhat, and - in the way that I - in the submissions that I have been able to put to you today.

PN273

JUSTICE GIUDICE: Yes. Yes.

PN274

MR HOLDING: The - and I am not satisfied that all of the things that my learned friend has said to you do accurately reflect what was said in evidence. But I - and again in relation to those matters, I haven't taken much time to check them, but the - I can't understand the point, I must say, about treating the applicant's evidence on oath as part of circumstantial evidence. That was a ground that I just couldn't understand because it is pretty clear to me that when someone gives evidence on oath, it is not circumstantial evidence. But anyway that is a minor point, probably.

PN275

JUSTICE GIUDICE: Yes. Yes, I think what I will do in the circumstances, Mr Holding is grant leave to amend the notice to the extent that the amended notice that has just been handed up, and which I shall mark exhibit A1, seeks to extend the operation of the notice of appeal to affect the orders by the Commissioner on 13 March as well as the decision. I will leave for further argument before the Full Bench the question of whether the other amendments to the grounds of appeal should be allowed and, no doubt, that will be a matter to be dealt with early on in the appeal itself.

EXHIBIT #A1 AMENDED NOTICE OF APPEAL

PN276

MR ROUSSEAUX: I can indicate that I formed the view, I must say on a reasonably fine balance, that there is a sufficiently arguable case that the Commissioner's decision is wrong in relation to conclusions to be drawn from the evidence and as to whether those conclusions might or might not have affected his finding that there was not a valid reason for termination. Although the notice of appeal as filed does not raise that issue in the specificity of the application for leave to amend, nevertheless, the appeal is against the decision itself and on the original notice of appeal it seems to me the matter is sufficiently raised.

PN277

Now, as to the balance of convenience there are a number of things to be said. In my view, the balance of convenience does favour a stay of the operation of the orders but subject to some matters I will now mention. Firstly, in relation to the appellant, I would require an undertaking to be given to the satisfaction of the respondent to pay salary into an interest-bearing account pending the hearing and determination of the appeal. I would also require that salary earned for work performed by Mr Harrington between 18 March and today should be paid to him in the normal course or at least within seven days.

PN278

As far as the respondent is concerned, I would be prepared to limit the operation of the stay order to a stay of order 1 only. That is the order that he be immediately reinstated. That would allow the other three orders to operate, in particular, order 2, which would require Philip Morris to make payment of the amounts due between the time of termination and 16 May. However, I would only grant a stay in that limited form if Mr Harrington provides an undertaking in a form acceptable to the appellant and, in default of agreement about that, through the execution of a deed, any moneys paid pursuant to order 2, which in due course were found not to be payable because of the success of the appeal.

PN279

It seems to me that the appropriate course at this stage would be to give counsel an opportunity to discuss those undertakings on either side and if the proposals I have made as to undertakings can be the subject of agreement, then I would grant an order staying the operation of paragraph 1 of the Commissioner's order of 13 March 2002. It seems to me that that outcome would provide some immediate relief for Mr Harrington in a financial sense but would, nevertheless, preserve the position of the appellant against the possibility that the appeal is ultimately successful. How long would you require to discuss those matters, Ms O'Brien?

PN280

MS O'BRIEN: I shouldn't think it would take very long, your Honour.

PN281

JUSTICE GIUDICE: Yes. Well, I will adjourn and leave it to one of you to get in touch with my associate as soon as it is convenient to do so and then I will come back and you can tell me how it has progressed.

PN282

MS O'BRIEN: As it please your Honour.

SHORT ADJOURNMENT [12.16pm]

RESUMED [12.37pm]

PN283

MR HOLDING: We have had some discussions and in relation to the moneys that Mr Harrington would have earned if not for the dismissal, that is, the moneys that he would have earned with Philip Morris between the date of the dismissal and the date of the Commissioner's decision, the parties are agreed that I think we are agreed - and Ms O'Brien will correct me if I am wrong - that an amount would be paid by the respondent into an interest-bearing account in relation to that. So, rather than being paid over to Mr Harrington for him to put in an interest-bearing account, the respondent will put those moneys into an interest-bearing account on his behalf so he doesn't have access to it. And that is not what your Honour had indicated - - -

PN284

JUSTICE GIUDICE: No.

PN285

MR HOLDING: - - - but he prefers that because that way he won't be able to touch the money and then will still have the benefit of it if and when he wins the appeal.

PN286

JUSTICE GIUDICE: Yes. I see.

PN287

MR HOLDING: The manner in which I understand the amount that is payable into the account should be calculated is as follows: calculate - - -

PN288

JUSTICE GIUDICE: Mr Holding, why is this a matter for me?

PN289

MR HOLDING: Well, because, sir, we are not sure about it and I would be guided by your - I would hope to be guided by you so that there is no dispute later. It shouldn't take too long. I think we are at one on it but I just wanted to make sure that I understood what your Honour was intending.

PN290

JUSTICE GIUDICE: I hadn't turned my mind to what that amount would be. I am simply looking at the orders that the Commissioner has made.

PN291

MR HOLDING: Yes, because, you see, he hasn't - see, I suppose where the complication comes in is that he has been working in his own business and my friend is saying that the only amount that they have to pay in is an amount after tax in accordance with stay orders that were granted by Commissioner Leary in - I think they were the original orders in the Coal and Allied matter.

PN292

JUSTICE GIUDICE: Yes.

PN293

MR HOLDING: So the way that the calculation would be done is you would work out the gross income from Philip Morris, work out his gross income from his business, subtract the two figures, tax that and then pay that amount in. That is what think it would be.

PN294

JUSTICE GIUDICE: Yes, I see. Well, it may be difficult to talk about in the abstract. What are the amounts earned? Is there agreement about that?

PN295

MR HOLDING: No, sir. We haven't had any discussions - - -

PN296

JUSTICE GIUDICE: No. So the disagreement is about the methodology?

PN297

MR HOLDING: I think there is agreement about that methodology, isn't there?

PN298

MS O'BRIEN: Yes. I don't think there is any disagreement about the methodology.

PN299

JUSTICE GIUDICE: Well, I am relieved to hear that.

PN300

MS O'BRIEN: Except in one small part. I don't want to mislead you. In relation to order 2, we would simply seek that you substitute pay to the applicant Michael Harrington an order that Philip Morris Limited pay to an interest-bearing account an amount equivalent to that which is lost.

PN301

JUSTICE GIUDICE: Well, I am not going to vary the orders. In light of what you have apparently agreed because of Mr Harrington's preference not to have the money is that I would simply stay orders 1, 2 and 3 on the appellant's undertaking that all moneys due would be paid into an interest-bearing account pending the determination of the appeal.

PN302

MR HOLDING: Commissioner Simmonds gave liberty to apply if we were not able to agree on that. Now, I am hopeful that we will be.

PN303

JUSTICE GIUDICE: I said orders 1, 2 and 3.

PN304

MR HOLDING: Yes. So order 4 would - - -

PN305

JUSTICE GIUDICE: It wouldn't stay.

PN306

MR HOLDING: Would that be to you or to - - -

PN307

JUSTICE GIUDICE: I think that the appropriate course, yes, would be to notify my chambers. At this stage I am the presiding member on the appeal bench and whether I will be able to deal with it myself, I am not sure, but I will try and get somebody to deal with it if that becomes necessary.

PN308

MS O'BRIEN: Sir, I am instructed to give that undertaking on behalf of the respondent.

PN309

JUSTICE GIUDICE: Yes, all right. I think at this stage then I will leave you to reach agreement on the ascertainment of the amount under paragraph 2. I must say it is not a matter that I have turned my mind to and I would - - -

PN310

MS O'BRIEN: I am sure we can work it out, sir.

PN311

JUSTICE GIUDICE: If there is a problem, then you can still activate that leave under paragraph 4 of the order. I will, hopefully before the end of the day, issue an order in the terms I have indicated. Is there anything else? Thank you both for your assistance. We will adjourn.

ADJOURNED INDEFINITELY [12.45pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 AMENDED NOTICE OF APPEAL PN276